June 2016
TABLE OF CONTENTS

COMMISSION DECISIONS
06-03-16

OAK GROVE RESOURCES, LLC and SE 2010-1236
DONNY BIENIA, employed by OAK
GROVE RESOURCES, LLC

Page 1273

06-07-16

OAK GROVE RESOURCES, LLC

SE 2009-261-R

Page 1286

06-08-16

KNIFE RIVER CONSTRUCTION

WEST 2013-1009-M

Page 1289

06-16-16

BLACK BEAUTY COAL COMPANY LAKE 2009-410

Page 1307

06-24-16

HOPKINS COUNTY COAL, LLC

KENT 2009-1441

Page 1317

06-30-16

BIG RIDGE, INC.

LAKE 2012-896

Page 1348

COMMISSION ORDERS
06-07-16

TUNNEL RIDGE, LLC

WEVA 2014-962

Page 1351

06-27-16

RIVER VIEW COAL, LLC

KENT 2016-26

Page 1354

06-27-16

ESSROC SAN JUAN

SE 2016-23-M

Page 1357

06-27-16

BAILLIO SAND COMPANY, INC.

VA 2015-300-M

Page 1360

06-27-16

GATEWAY EAGLE COAL
COMPANY, LLC

WEVA 2016-1

Page 1363

06-27-16

GIBRALTAR ROCK, INC.

YORK 2015-154-M

Page 1366

i

06-28-16

SHANE HORTON v. COAL RIVER
MINING, LLC

WEVA 2013-1183-D

Page 1369

06-30-16

APOGEE COAL COMPANY, LLC

WEVA 2016-324

Page 1372

ADMINISTRATIVE LAW JUDGE DECISIONS
06-06-16

MACH MINING, INC.

LAKE 2014-0077

Page 1379

06-06-16

SEC. OF LABOR O/B/O MINDY S.
PEPIN v. EMPIRE IRON MINING
PARTNERSHIP

LAKE 2015-386-DM

Page 1435

06-09-16

SUTTER GOLD MINING
COMPANY

WEST 2015-856

Page 1461

06-10-16

ORIGINAL SIXTEEN TO ONE
MINE, INCORPORATED

WEST 2012-1022-M

Page 1472

06-16-16

KENTUCKY FUEL CORPORATION

KENT 2015-528

Page 1510

06-24-16

NEWMONT USA LIMITED

WEST 2015-819

Page 1528

06-28-16

WEST ALABAMA SAND &
GRAVEL, INC.

SE 2009-870-M

Page 1532

06-30-16

CONVEYOR BELT SERVICES, INC.

LAKE 2014-0255

Page 1542

ADMINISTRATIVE LAW JUDGE ORDERS
06-01-16

SEC. OF LABOR O/B/O JENNIFER
MORREALE v. VERIS GOLD USA,
INC., JERRITT CANYON GOLD,
LLC, WHITEBOX MANAGEMENT,
& ERIC SPROTT

WEST 2014-793-DM

Page 1557

06-02-16

DANIEL B. LOWE v. VERIS GOLD
USA, INC., and JERRITT CANYON
GOLD, LLC

WEST 2014-614-DM

Page 1559

ii

06-02-16

SEC. OF LABOR O/B/O JACOB
WEST 2016-326-DM
HAMILTON v. AMERICAN MINING
AND TUNNELING, LLC

Page 1566

06-09-16

UNITED STATES STEEL
CORPORATION – MINNESOTA
ORE OPERATIONS

LAKE 2016-193-RM

Page 1568

06-14-16

CONSOLIDATION COAL
COMPANY

WEVA 2015-74

Page 1573

06-24-16

TETRA TECH CONSTRUCTION
SERVICES

WEST 2013-587-M

Page 1579

iii

Review was granted in the following cases during the month of June 2016:
Secretary of Labor v. Sims Crane, Docket No. SE 2015-315 (Judge McCarthy, May 3, 2016)
Secretary of Labor obo Eric Greathouse, et al. v. Mongolia County Coal Co., et al., Docket Nos.
WEVA 2015-904, et al. (Judge Miller, May 2, 2016)

Review was denied in the following cases during the month of June 2016:
Secretary of Labor v. Original Sixteen to One Mine, Inc., Docket Nos. WEST 2014-527 M, et al.
(Judge Moran, May 3, 2016)
Michael Wilson v. Jim Browning, Docket No. KENT 2016-95 D (Judge Miller, May 18, 2016)

iv

COMMISSION DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004-1710

June 3, 2016
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos. SE 2010-1236
SE 2011-782

v.
OAK GROVE RESOURCES, LLC and
DONNY BIENIA, employed by OAK
GROVE RESOURCES, LLC

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
DECISION
BY: Jordan, Chairman; Cohen, Nakamura and Althen, Commissioners
These proceedings arise under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”). These matters involve an order issued by the
Department of Labor’s Mine Safety and Health Administration (“MSHA”) to Oak Grove
Resources alleging a failure to comply with a safeguard notice, and a related individual penalty
issued to Oak Grove foreman Donny Bienia pursuant to section 110(c) of the Act.1
The safeguard notice in question requires that only approved equipment such as track
motors be used to move supply cars on a track. The order alleges that Bienia was using a winch
and cable on a scoop to move supply cars, in violation of the safeguard, when the cars broke

1

Safeguard notices effectively function as mine-specific mandatory standards. Wolf Run
Mining Co., 659 F.3d 1197, 1201-02 (D.C. Cir. 2011), aff’g, 32 FMSHRC 1228 (Oct. 2010).
They are issued pursuant to section 314(b) of the Act, which states that “[o]ther safeguards
adequate, in the judgment of an authorized representative of the Secretary, to minimize hazards
with respect to transportation of men and materials shall be provided.” 30 U.S.C. § 874(b).
Section 110(c) of the Act states in relevant part that “[w]henever a corporate operator
violates a mandatory health or safety standard . . . any director, officer, or agent of such
corporation who knowingly authorized, ordered, or carried out such violation, failure, or refusal
shall be subject to the same civil penalties, fines, and imprisonment that may be imposed upon
[the operator].” 30 U.S.C. § 820(c).

38 FMSHRC Page 1273

loose and rolled approximately 3,900 feet.2 The cited condition was designated as “significant
and substantial” (“S&S”) and the result of an unwarrantable failure.3 The Judge found the
safeguard to be valid, affirmed the order in its entirety, found Bienia personally liable, assessed
the $50,700 penalty proposed by the Secretary against Oak Grove, and assessed a reduced
penalty of $500 against Bienia. 35 FMSHRC 842 (Apr. 2013) (ALJ).
Oak Grove and Bienia challenge the validity and applicability of the safeguard notice,
and the Judge’s unwarrantable failure and personal liability determinations. For the reasons
below, the Judge’s decision is affirmed.
I.
Factual and Procedural Background
A. Factual Background
The relevant events occurred on May 12, 2010, at an Oak Grove underground coal mine
in Jefferson County, Alabama. A miner, Andrew Teel, asked foreman Bienia for assistance
moving some supply cars a short distance down the track to the crosscut for unloading. Oak
Grove refers to this as “spotting.” The six cars were coupled together on a track which sloped
outby the mine.4 The fourth car was resting against a car stop, and another car stop was located
approximately 30 feet down the slope. Bienia and Teel decided to use the winch, cable and hook
on a nearby scoop that Bienia had been operating. They planned to winch the cars a few feet
uphill to take the weight off the car stop, remove the stop, then lower the cars down the track to
the crosscut. Bienia testified that this method was used at a mine where he was previously
employed. Id. at 844, 851.
Teel attached the winch hook to a side rail, which was normally used to tie down and
secure loads, on the third car. Bienia began winching the cars uphill, and Teel removed the car
stop which the fourth car had been resting against. At that point the weld attaching the third car’s
2

A scoop is a piece of “[d]iesel- or battery-powered equipment with a scoop attachment
for cleaning up loose material, for loading mine cars or trucks, and hauling supplies.” Am.
Geological Institute, Dictionary of Mining, Mineral and Related Terms 484 (2d ed. 1997). The
winch, which was “like the winch on a pickup truck,” was mounted behind the bucket of the
scoop. Tr. 50. Counsel for the operator noted that not all scoops have winches. Tr. 17.
3

The “significant and substantial” and “unwarrantable failure” terminology is taken from
section 104(d)(1) of the Mine Act, 30 U.S.C. § 814(d)(1), which distinguished as more serious in
nature any violation that “could significant and substantially contribute to the cause and effect of
a . . . mine safety and health hazard,” and establishes more severe sanctions for any violation
caused by “an unwarrantable failure of [an] operator to comply with . . . mandatory health or
safety standards.” Oak Grove does not contest the Judge’s finding of a significant and substantial
violation.
4

“Outby” refers to areas “away from the face . . . toward the mine entrance.” Dictionary
of Mining, 383.

38 FMSHRC Page 1274

side rail to the car broke, the hook and cable came loose, and all the cars started to roll. Bienia
attempted to halt their movement by turning the bucket of the scoop into the fourth car, but doing
so caused the third and fourth cars to become uncoupled. The scoop held the last three cars,
while the first three kept moving. Bienia left the scoop and ran alongside the cars, hoping to find
some way to derail them, but was not able to keep up as the cars gained speed. The cars ran over
the outby car stop without halting or derailing, and ultimately travelled approximately 3,900 feet
before coming to a stop. No miners were injured, although one miner had to run to take refuge in
a spur track to avoid being hit as the cars went by. Oak Grove investigated the incident during
the following two days. Id. at 845, 852-53.
On May 24, 2010, an MSHA inspector received an anonymous handwritten complaint
regarding the incident and conducted an investigation. The inspector concluded that the method
used to move the supply cars violated previously issued Safeguard No. 3013658, which states:
The two longwall utility men were observed moving 3 flat cars of
supplys [sic] on the longwall section track with a diesel powered
scoop. (Note) They were pulling the cars with a 5/8” dia. wire
rope.
This notice to provide safe guard [sic] requires only equipment
such as track motors or other approved equipment be used in
moving supply cars on the track in the mine.
Gov. Ex. 4. Accordingly, the inspector issued the following order pursuant to section 104(d)(2)
of the Act:
On 5-12-2010 at approximately 11:30pm an incident occurred at
this mine that endangered the lives of miners working
underground. A Section Foreman was using the winch of a scoop
to move 3 supply cars; with 1 of the cars being loaded with 20 foot
sections of 2 inch metal water pipe. The supply cars were located
at the end of the Main North 3 track. The 3rd car inby was attached
to the winch cable. The hook on the end of the cable became
disconnected from the supply car causing the 3 most outby supply
cars (coupled together) to roll outby. There was a positive stop
located approximately 30 feet from the cars, that when contacted
by the cars, fell over allowing the supply cars to continue to gain
momentum and travel outby with no one in control of the cars. The
cars came to rest at crosscut 20 on 11 West track. The distance
traveled by the supply cars was 3,900 feet.
Gov. Ex. 2. In explaining why he determined Bienia had not been using “approved equipment,”
the inspector testified that supply cars are typically moved along a track using rail-mounted
equipment (locomotives or mantrips) equipped with couplers, and that such a method (rather
than a winch and scoop) is widely considered to be the only safe way to move supply cars on a
track. Tr. 73-74. The inspector stated that he designated the alleged violation as an unwarrantable
failure because a miner in a management position (Bienia) was directly involved. Tr. 119.

38 FMSHRC Page 1275

Bienia testified that at the time of the incident he believed his method of “spotting”
supply cars to be a safe procedure, and was unaware of the concept of safeguards or of any
“rule” prohibiting the use of a rope and winch to move supply cars. Tr. 145, 154-55, 163. Oak
Grove’s safety manager at the time, John Henry Hedrick III, testified that he believed the
safeguard did not prohibit using a winch to spot supply cars (where the winch is powering the
move), but rather prohibited using a scoop and rope to pull cars move cars (where the scoop is
powering the move). Tr. 172-75, 190-91.
B. The Judge’s Decision
In finding Safeguard No. 3013658 to be valid, the Judge relied on American Coal, 34
FMSHRC 1963 (Aug. 2012). In that case, the Commission held that a safeguard notice is valid if
it describes a hazardous condition and specifies a remedy; it need not articulate a specific risk or
harm to miners. Id. at 1969-70. The Judge determined that the safeguard at issue here “implicitly
specifies the hazardous condition and explicitly provides the remedy for it.” 35 FMSHRC at 861.
The Judge then found that the safeguard notice applied to the cited condition. He noted that both
involve the use of a scoop and wire rope to move supply cars, and found no meaningful
distinction between pushing or pulling the cars, or between powering the move with a winch or
the scoop itself. Id. at 861, 861 n.39.
The Judge concluded that the violation was the result of an unwarrantable failure, based
on the direct involvement of supervisory personnel and the gravity of the cited condition. Id. at
863. He rejected Oak Grove’s claim of an objectively reasonable and good faith belief that the
cited conduct was not violative. In rejecting the claim, he stated that Bienia’s lack of awareness
of the safeguard’s requirements was “inexcusable,” and emphasized the inspector’s testimony
that the method employed by Bienia was well-understood to be unsafe. Id. The Judge was also
unpersuaded by allegedly mitigating factors such as Bienia’s experience moving cars with a
winch and rope at another mine, the presence of the outby car stop, and Oak Grove’s subsequent
investigation. He found these factors to be irrelevant or non-determinative. Id. at 851, 854 n.27,
862 n.41, n.43.
Finally, the Judge found Bienia personally liable under section 110(c) of the Act. He
noted that Bienia had a duty to know of the mine’s safeguard notices, and thus had reason to
know that his actions ran contrary to the requirements of the safeguard and were unsafe.
However, the Judge assessed a penalty of $500 rather than the proposed penalty of $6,500. Id. at
865. In finding personal liability, the Judge rejected Oak Grove’s argument that section 110(c)
does not apply to agents of LLCs. Id. at 867.
III.
Disposition
A. Validity of the Safeguard
We conclude that the Judge properly held Safeguard No. 3013658 to be valid. The
safeguard notice describes flatcars being pulled by a scoop and wire cable (the hazardous
condition) and directs that only approved equipment such as track motors be used to move

38 FMSHRC Page 1276

supply cars on a track (the remedy). As discussed further below, we reject Oak Grove’s claim
that the safeguard is invalid because it fails to identify a hazard.
Oak Grove argues that the Commission’s holding in American Coal is in error, but fails
to offer any new reasons that would justify reconsidering the principle adopted therein.5 We
reaffirm our holding in American Coal that a notice of safeguard identifies a hazard for purposes
of section 314(b) by identifying a hazardous condition, and need not specify a particular harm or
risk to miners. 34 FMSHRC at 1969-70.
Oak Grove additionally contends that the safeguard notice fails to identify a hazardous
condition because the nature of the hazard is not evident from the condition described (moving
supply cars with a scoop and rope). The Commission, however, has looked to both common
sense and industry standards to determine whether a condition described in a safeguard notice is
hazardous. See, e.g., American Coal, 34 FMSHRC at 1976 (“it requires only common sense to
know that it is unsafe to travel in a hoist with an open gate”); Oak Grove Resources, LLC, 35
FMSHRC 2009, 2012-13 (July 2013) (“it has long been commonly recognized that pushing cars
on the main haulage roads of an underground mine is a hazardous practice”).
Here, the inspector testified that using track-mounted equipment and couplers provides a
“sure way of holding the cars,” and that conversely, Bienia’s method is considered unsafe and is
“not a common practice . . . because of exactly what happened,” i.e., runaway cars. Tr. 73-74. As
the inspector reasonably explained, a scoop and rope does not provide the same level of control
as track-mounted equipment which is “in line with . . . [and] rigidly coupled to the cars.” Tr. 84.
Even Oak Grove safety manager Hedrick conceded that “cars could run over you” when using a
scoop and rope to move cars. Tr. 174-75. Common sense and industry practice demonstrate that
the condition described in the safeguard raises concerns regarding stability and control.
Accordingly, we find that the condition described in the safeguard – use of a scoop to pull cars –
is hazardous.
Oak Grove claims that it is unclear whether the safeguard notice is directed toward
preventing runaway cars, a car riding into the scoop, or some other danger. However, as we
noted in American Coal, “many potential risks” can flow from a single condition, and “it would
be unreasonable to require the inspector to identify each and every one.” 34 FMSHRC at 1970;
see also Oak Grove, 35 FMSHRC at 2014 (a valid safeguard notice “need not foreshadow the
events that may occur if the safeguard is not implemented”). A safeguard notice is not invalid
because it describes a hazardous condition that could result in multiple specific harms; indeed, a
5

Oak Grove relies on earlier Commission caselaw and the use of the term “hazard” in
MSHA’s Program Policy Manual (“PPM”). These were already considered by the Commission
in American Coal. The caselaw was found to be consistent with our holding, and the discussion
of hazards in the PPM was found not to be persuasive. 34 FMSHRC at 1967-71. Oak Grove also
claims that the Commission in American Coal did not consider testimony from a former MSHA
district manager that inspectors were told to include hazards when issuing safeguards. Resp. Ex.
4 at Tr. 127-28. However, the testimony indicates that MSHA was simply attempting to comply
with Commission caselaw, and the Commission has since held that safeguard notices need not
identify a specific harm.

38 FMSHRC Page 1277

multiplicity of potential specific harms arising from the identified hazardous condition
emphasizes that the safeguard notice does identify a hazardous condition.6 Here, Safeguard No.
3013658 describes a hazardous condition and specifies a remedy. Within the framework of
American Coal, the safeguard is valid.
B. Applicability of the Safeguard
The Judge found that the cited condition “clearly falls within [the safeguard notice’s]
purview.” 35 FMSHRC at 861. We agree. The purpose of the safeguard notice is to ensure that
only approved equipment is used to move supply cars on a track. Oak Grove moved supply cars
on a track using a scoop and wire rope rather than approved equipment, and was cited for doing
so.
Oak Grove claims that the safeguard notice is not applicable to the cited condition.7 Oak
Grove would distinguish pulling cars using a scoop and rope, as described in the safeguard
notice, from using a winch to spot cars a short distance, as described in the order. We have
recognized that a citation should be vacated if the conditions “differ fundamentally in nature,
cause and remedy” from those in the underlying safeguard, such that the operator lacked notice
that the cited conduct was prohibited. Bethenergy Mines, Inc., 15 FMSHRC 981, 986 (June
1993); see also Southern Ohio Coal Co., 7 FMSHRC 509, 512-13 (Apr. 1985) (“SOCCO I”).
However, we see no such fundamental dissimilarity here.
The only potentially relevant difference here is the use of the winch.8 We do not find this
to be a meaningful distinction. While the use of a winch may change the mechanics of the
process to some degree, it does not alter the nature of the hazardous condition. As the inspector
testified, approved equipment (track-mounted equipment with couplers) provides control because
it is in-line with and rigidly attached to the supply cars. Tr. 84. Using non-approved equipment
that is not track-mounted – whether a rope attached to a scoop, or a winch and rope attached to a
scoop – creates a danger of loss of control and runaway cars, which is avoided by using only
approved equipment. The safeguard put Oak Grove on notice that using non-approved equipment
to move supply cars on a track is prohibited. Limiting prohibited conduct to the exact scenario in
the safeguard notice, i.e., the use of a scoop and rope but no winch, would unduly narrow the
scope of the hazardous condition identified in the safeguard notice, and allow the use of
equipment which is clearly non-approved.
6

Conceivably, an operator could be cited for conduct which is hazardous in a way truly
not contemplated by the underlying safeguard notice. However, that would affect the validity of
the citation rather than the validity of the safeguard notice, and regardless, is not the situation
here.
7

Oak Grove also contends that the violation cannot be sustained because the safeguard
notice does not clearly identify the condition to which it is directed. This involves the validity,
rather than the applicability of the safeguard notice, and has already been addressed.
8

Oak Grove also suggests a substantive distinction between pulling cars and spotting
them a short distance. Tr. 173, 190-91. However, the safeguard notice addresses moving cars
generally.

38 FMSHRC Page 1278

C. Unwarrantable failure
Unwarrantable failure is aggravated conduct constituting more than ordinary negligence.
Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987). Unwarrantable failure is
characterized by such conduct as “reckless disregard,” “intentional misconduct,” “indifference,”
or a “serious lack of reasonable care.” Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13
FMSHRC 189, 194 (Feb. 1991). Because supervisors are held to a higher standard of care, the
involvement of supervisory personnel in violative conduct may support an unwarrantability
determination. See Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001) (citing REB Enters.,
Inc., 20 FMSHRC 203, 225 (Mar. 1998)). Conversely, if an operator has acted on an objectively
reasonable and good faith belief that the cited conduct was in compliance with applicable law,
such conduct will not be considered to be the result of an unwarrantable failure when it is later
determined that the operator’s belief was in error. IO Coal Co., 31 FMSHRC 1346, 1357-58
(Dec. 2009) (citing Kelly's Creek Res., Inc., 19 FMSHRC 457, 463 (Mar. 1997).
The Judge found that the violation was the result of an unwarrantable failure, based
primarily on the direct involvement of Bienia, a supervisor. The Judge rejected Oak Grove’s
claim of an objectively reasonable and good faith belief that the cited conduct was not violative.
He acknowledged Bienia’s apparent good faith belief that his method of moving cars was not
prohibited, but considered such ignorance of the mine’s safeguard notices inexcusable, stating
that “[a]s supervisors are held to a heightened standard of care regarding safety matters, and as
there was an intentional, though inexcusably unwitting, violation of the safeguard involved here,
the conclusion that the violation was unwarrantable is inescapable.” 35 FMSHRC at 863. Oak
Grove claims the Judge erred in finding that Bienia’s belief in compliance was not objectively
reasonable, and in rejecting certain other mitigating factors.9 For the reasons below, we find that
the Judge properly rejected such arguments.
In claiming an objectively reasonable and good faith belief in compliance, Oak Grove
relies on Bienia’s testimony that the same method of moving cars was used at the mine where he
was previously employed. While this may support Bienia’s good faith belief that the method was
compliant, it does not make the belief objectively reasonable. The inspector testified that the
method used by Bienia is commonly understood to be unsafe. Tr. 73-74. Furthermore, safeguard
notices are mine-specific. A belief that a method of moving supply cars is compliant is not
objectively reasonable simply because a miner used it in an undescribed instance(s) at some
unidentified time(s) and, most importantly, without testimony that MSHA was aware of such

9

In determining whether aggravated conduct has occurred, a Judge must consider all
relevant factors, including the extent of the violative condition, the length of time the condition
has existed, whether the violation posed a high risk of danger, whether the violation was obvious,
the operator's knowledge of the existence of the violation, the operator's efforts in abating the
violative condition, and whether the operator has been placed on notice that greater efforts are
necessary for compliance. See Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb. 2013); IO
Coal, 31 FMSHRC at 1350-57. Although the Judge did not address all the relevant factors here,
Oak Grove does not challenge the unwarrantable failure determination on those grounds.

38 FMSHRC Page 1279

purported use.10 The record does not detail the extent of this experience. It may have been a
single instance as far back as 1975 and there was no evidence that MSHA ever knew of Bienia’s
use of this method. Tr. 135-36.
Oak Grove has a duty to ensure that its supervisors are aware of the proper way to move
supply cars at Oak Grove Mine. Here, it apparently failed to do so; Bienia could not recall any
training as to this particular safeguard notice. Tr. 154, 162-64. However, the “general principle
that ignorance of the law is no defense” applies in the negligence context. Douglas R. Rushford
Trucking, 23 FMSHRC 790, 793 (Aug. 2001) (citing McKinnon v. Kwong Wah Restaurant, 83
F.3d 498, 509 (1st Cir. 1996)). Neither Bienia’s experience at another mine, nor his unfamiliarity
with the requirements of the safeguard notice, is a valid ground for finding his belief objectively
reasonable.
Oak Grove also argues more generally that the text of the safeguard notice can reasonably
be interpreted as applying only to pulling cars along the track with a scoop and rope, rather than
spotting them with a winch.11 As discussed above, such an interpretation focuses on a distinction
without a difference, and is not objectively reasonable.
As for other allegedly mitigating factors, we do not find the presence of the outby
(downslope) car stop to be relevant. Bienia stated that he only became aware of the car stop after
he began winching the cars. Tr. 140. Therefore, the car stop is irrelevant to his state of mind
when deciding to engage in the cited conduct. Moreover, car stops are intended to prevent cars
from beginning to move, rather than safely stopping cars that are already moving. Tr. 44, 76-77.
Awareness of a car stop 30 feet away that would not be expected to (and in fact did not) stop the
runaway cars, does not affect the relevant standard of care.
We are also unpersuaded by Oak Grove’s contention that its investigation and remedial
actions taken after the incident are mitigating factors. The record does not indicate that any
relevant remedial actions were taken, as nothing in the investigation summary or the safety
manager’s testimony indicates that Oak Grove implemented any changes to ensure the use of

10

The Commission has recognized that prior inconsistent enforcement by MSHA can be
relevant with regard to negligence and reasonableness of belief. See IO Coal, 31 FMSHRC at
1358; see also King Knob Coal Co., 3 FMSHRC 1417, 1422 (June 1981). However, safeguard
notices are mine-specific, and there is no indication that MSHA has inconsistently enforced this
safeguard notice at this mine.
11

Oak Grove notes the safety manager’s testimony that this is what he believed. Aside
from the fact that a mere statement of belief does not make that belief reasonable, he was not the
agent acting on the operator’s behalf in this instance, so his beliefs are not relevant to the
determination of reasonable and good faith belief. See Excel Mining, LLC, 37 FMSHRC 459,
468 (Mar. 2015) (the negligence of an agent is imputed to the operator for the purpose of making
an unwarrantable failure determination).

38 FMSHRC Page 1280

approved equipment such as track motors when moving supply cars.12 See Resp. Ex. 8; Tr. 17880. In sum, we are not persuaded by the mitigating factors offered by Oak Grove. The Judge’s
unwarrantable failure finding is affirmed.
D. Personal Liability of Donny Bienia
Section 110(c) provides that whenever a corporate operator violates a mandatory standard
or any order under the Act, “any director, officer, or agent of such corporation who knowingly
authorized, ordered, or carried out such violation . . . shall be subject to . . . civil penalties.” 30
U.S.C. § 820(c). The proper legal inquiry for determining liability under section 110(c) is
whether the agent knew or had reason to know of a violative condition. Kenny Richardson, 3
FMSHRC 8, 16 (Jan. 1981), aff’d on other grounds, 689 F.2d 632 (6th Cir. 1982), cert.
denied, 461 U.S. 928 (1983); accord Freeman United Coal Mining Co. v. FMSHRC, 108 F.3d
358, 362-64 (D.C. Cir. 1997). Liability under section 110(c) only requires that an agent
knowingly acted, not that the individual knowingly violated the law. See, e.g., McCoy Elkhorn
Coal Corp. and Robinson, 36 FMSHRC 1987, 1996 (Aug. 2014), citing Warren Steen Constr.,
Inc., 14 FMSHRC 1125, 1131 (July 1992). A knowing violation thus occurs when an individual
“in a position to protect employee safety and health fails to act on the basis of information that
gives him knowledge or reason to know of the existence of a violative condition.” 3 FMSHRC at
16.
As an initial matter, we reaffirm our holding in Simola that section 110(c) applies to
agents of LLCs. Simola, employed by United Taconite, LLC, 34 FMSHRC 539, 548-49 (Mar.
2012), followed in Sumpter, employed by Oak Grove Resources LLC, 763 F.3d 1292, 1298-99
(11th Cir. Aug. 2014). Oak Grove contends that the plain language of section 110(c) explicitly
and exclusively refers to agents of corporate operators, and therefore cannot be applied to Bienia,
an agent of an LLC. However, as we explained in Simola, LLCs did not exist when section
110(c) was drafted. 34 FMSHRC at 542. Because the intent of the provision is to pierce
corporate liability, and the limited liability shield is a key characteristic of LLCs, section 110(c)

12

The parties disagree as to whether remedial actions taken after the cited event, but prior
to the issuance of a citation, can be considered mitigating factors with respect to an
unwarrantable failure determination. As we find no such relevant actions occurred, we need not
address this issue. We note that Oak Grove had 13 days from the incident until MSHA issued the
order within which to investigate the incident and make meaningful changes in its practices. It
had this much time because MSHA did not learn of the incident until the inspector received an
anonymous handwritten note from a miner in his lunch box, which the inspector properly
regarded as a complaint under section 103(g) of the Mine Act. 35 FMSHRC at 843.

38 FMSHRC Page 1281

applies to agents of LLCs. Oak Grove fails to offer any new theories that would justify
reconsidering this principle.13
Turning to Bienia’s liability, he not only knew that supply cars were being moved using a
scoop, winch, and cable, but actually directed such activity. Furthermore, as foreman, he had a
duty to be aware of the requirements of the mine’s safeguard notices.14 For the reasons discussed
above, slip op. at 7-8 supra, we find that Bienia did not have an objectively reasonable belief that
his conduct was in compliance. Bienia had direct knowledge of the condition (moving supply
cars with unapproved equipment). As an agent of Oak Grove, he authorized and carried out

13

Oak Grove relies on caselaw stating that section 110(c) does not apply to partnerships
and distinguishing LLCs from corporations for jurisdictional purposes, and notes the relatively
recent creation and hybrid nature of LLCs. The Commission in Simola considered the caselaw,
and found it distinguishable. 34 FMSHRC at 544-45, 548 n.13. Noting that LLCs have the
corporate characteristic of limited liability and that Congress had a clear intent to pierce the
corporate veil, the Commission concluded that “Congress, if given the opportunity, would have
explicitly included LLCs, within the scope of section 110(c).” Id. at 549, 550-51.
14

If the record established that Bienia had not received any training regarding the
safeguard requiring the use of approved equipment, it could be argued that he did not have
reason to know that his conduct was violative. While a foreman has a duty to know what is
required by the mine’s safeguard notices, an operator has as great a duty to ensure that
knowledge by proper training. However, the record only reflects that Bienia was unfamiliar with
the term “safeguard” and did not recall whether he was trained as to this particular requirement.
He did admit knowledge of other requirements and “rules” addressed in safeguard notices in
place at the mine. Tr. 154, 162-64.
Commissioner Cohen adds that Bienia’s defense was conducted jointly with Oak Grove’s
defense. The defense for the section 110(c) citation against Bienia personally was identical to
Oak Grove’s defense against the allegation of unwarrantable failure – that Bienia had a good
faith belief that what he did was proper. No evidence was offered by the defense as to the
training Bienia received from Oak Grove regarding the safeguards applicable at the mine. If, in
fact, Bienia had not been trained regarding Safeguard No. 3013658, his defense would have been
stronger. However, such evidence would also have weakened Oak Grove’s defense against the
unwarrantable failure designation. Thus, Bienia may have been ill-served by linking his defense
with Oak Grove’s defense.

38 FMSHRC Page 1282

conduct which he knew or should have known created a violative condition. Accordingly,
we affirm the finding of liability under section 110(c) of the Act.
III.
Conclusion
For the foregoing reasons, the Judge’s Decision is affirmed.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

/s/ William I. Althen
William I. Althen, Commissioner

38 FMSHRC Page 1283

Commissioner Young, concurring:
I continue to believe that the Commission’s expansive view of American Coal Company,
34 FMSHRC 1963 (Aug. 2012), in some previous decisions is contrary to our precedents and the
safety purposes of the Act. However, I join the majority’s opinion in this case in its entirety,
writing separately only to ensure my position on safeguards generally is not misinterpreted.
I joined the opinion in American Coal because common sense supported the conclusion
that there is no need to state the obvious in authoring a safeguard notice to specify the harm that
would foreseeably result from a prohibited, patently hazardous practice. The case before us
clearly falls within the parameters of our decision in American Coal.
Powered haulage is a significant cause of miner deaths and injuries.1 It is thus an area
where improvisational misjudgments are especially likely to have fatal consequences. Simple
matters of physics and engineering should make obvious the need to avoid using equipment other
than track motors or other approved means to move equipment.
This case presents a perfect example. Not only was the motivating force applied through
an untested wire rope and side rail that was never designed to bear it, the force moved in more
than one direction by pulling the load laterally, and not straight down the tracks as a properlycoupled connection would have allowed. There was no track motor in place to provide controlled
power through an approved connection, and the result was a foreseeable loss of control over the
cars.
This, then, is unlike the circumstances in Oak Grove Resources, LLC, 37 FMSHRC 2687
(Dec. 2015) and Black Beauty Coal Company, 38 FMSHRC 1 (Jan. 2016). In the former case,
there was no description of the hazard, and despite there being a fatal accident at issue, the
Secretary was unable even to make a case that the violation was S&S. Oak Grove, 37 FMSHRC
at 2692-94. In the latter case, a safeguard modification requiring travelways to be “free of mud
and water” failed to specify a hazard or the degree or type of accumulations so that the hazard
would be clearly discerned, and failed to relate the modification to the conditions which
prompted the original safeguard. Black Beauty, 38 FMSHRC at 10-15 (Young and Althen,
dissenting). Again, the cited breach was found not to be S&S.
I have some misgivings about finding Mr. Bienia liable under section 110(c) of the Act.
That discomfort arises from the fact that neither MSHA nor this operator has taken steps to
incorporate safeguards into the mine’s hazard training. While I suspect this is a general problem,
and should be considered along with other compelling reasons why safeguards should not be
used to address hazards common to all mines, in our opinion today, Commissioner Cohen
1

See MSHA – Coal End of Year 2015 Fatality Report and Metal/Nonmetal End of Year
2015 Fatality Report, http://arlweb.msha.gov/stats/charts/chartshome.htm (from the years 20112015, 21 of 87 total fatalities in coal mines, and 29 of 100 total fatalities in metal/nonmetal
mines, involved powered haulage); MSHA Summary Fatal Accidents with Preventative
Recommendations, http://arlweb.msha.gov/fatals/summaries/previoussummaries.asp (“The
leading cause of fatalities in the U.S. mining industry during 2012 was powered haulage . . . .”).

38 FMSHRC Page 1284

correctly notes that Bienia provided no argument or evidence concerning a lack of training. Slip
op. at 10, n.14.
The patchwork nature of regulation-by-safeguard may explain why Mr. Bienia believed it
might be permissible to move cars with a scoop, as was done in this case. Nevertheless, he was
in a supervisory position with the mine and had a duty to know all governing standards,
including the applicable safeguards. It would not be logical to hold both that the practice was
patently dangerous – as I believe it to be – and that a foreman, removed from the operational
pressures inherent in the situation that confronted Mr. Bienia in this case, would not have known
this.

/s/ Michael G. Young
Michael G. Young, Commissioner

38 FMSHRC Page 1285

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004-1710

June 7, 2016
OAK GROVE RESOURCES, LLC

Docket Nos. SE 2009-261-R
SE 2009-487

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

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
DECISION APPROVING SETTLEMENT
BY THE COMMISSION:
These proceedings arising under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (2012) (“Mine Act”), involve a citation issued by the Department of
Labor’s Mine Safety and Health Administration to Oak Grove Resources, LLC following a fatal
accident at its mine. The Secretary of Labor issued the citation for a violation of a notice of
safeguard which had been previously issued to the mine pursuant to section 314(b) of the Mine
Act, 30 U.S.C. § 874(b).
Oak Grove contested the citation and the associated civil penalty before a Commission
Administrative Law Judge. The Judge vacated the citation; he concluded that the underlying
safeguard had not been validly issued. 33 FMSHRC 846, 852-54 (Mar. 2011) (ALJ).
The Secretary filed a petition for discretionary review, which we granted. The
Commission reversed the Judge, concluded that the safeguard notice was valid, and remanded
the cases to the Judge for further proceedings. 35 FMSHRC 2009, 2015 (July 2013).
On remand, the Judge concluded that Oak Grove violated the safeguard, the violation was
significant and substantial (“S&S”), and the violation was the result of a moderate degree of
negligence on the part of Oak Grove. 35 FMSHRC 3422, 3431 (Nov. 2013) (ALJ).
Oak Grove then filed a petition for discretionary review, which we granted. On review,
the Commission affirmed the Judge’s decision that Oak Grove violated the safeguard, but
concluded that the Judge’s determination that the violation was S&S was not supported by
substantial evidence in the record. 37 FMSHRC 2687, 2695 (Dec. 2015). The Commission
remanded the proceedings to the Judge for an assessment of an appropriate penalty.

38 FMSHRC Page 1286

On remand, the Judge applied the statutory penalty criteria in section 110(i) of the Mine
Act, 30 U.S.C. § 820(i), and assessed a $50,000 penalty. In determining “whether the operator
was negligent,” as required by the penalty criteria, the Judge revised his finding that Oak Grove
was moderately negligent, and determined that the violation was the result of Oak Grove’s high
negligence. 38 FMSHRC __, slip op. at 17-19 (April 6, 2016).
The parties subsequently filed a joint petition for discretionary review. Included in the
joint petition for discretionary review is a motion requesting that the Commission approve a
settlement agreement between the parties. The Commission has granted the petition for
discretionary review in a separate order, and now disposes of these cases.
The parties’ joint request for approval of settlement was filed in accordance with section
110(k) of the Mine Act, 30 U.S.C. § 820(k), which provides, in relevant part, that “[n]o proposed
penalty which has been contested before the Commission under section 105(a) shall be
compromised, mitigated, or settled except with the approval of the Commission.” Commission
Procedural Rule 31 provides that a “proposed penalty that has been contested before the
Commission may be settled only with the approval of the Commission upon motion.” 29 C.F.R.
§ 2700.31(a). The movant is required to provide “facts in support of the penalty agreed to by the
parties.” 29 C.F.R. §§ 2700.31(b)(1), (c)(1).
In their joint filing, the parties contend that the Judge exceeded his authority when he
revised his negligence finding from moderate negligence to high negligence, given that the
original determination of moderate negligence had not been appealed, and had become law of the
case. PDR at 3 (citing Manalapan Mining Co., 36 FMSHRC 849, 852-54 (Apr. 2014)). The
parties represent that a total penalty of $35,000, rather than the $50,000 ordered by the Judge, is
appropriate based upon the Judge’s original conclusion that Oak Grove was moderately
negligent.

38 FMSHRC Page 1287

The parties’ joint request for approval of settlement is granted. We determine that the
parties have justified that a reduction of the penalty is appropriate considering the Judge’s
original finding that Oak Grove was moderately negligent. See 30 U.S.C. § 820(i) (“In
assessing civil monetary penalties, the Commission shall consider . . . whether the operator was
negligent . . .”). Oak Grove is ordered to pay the civil penalty of $35,000 within 30 days of the
issuance of this order.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

/s/ William I. Althen
William I. Althen, Commissioner

38 FMSHRC Page 1288

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004-1710

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

June 8, 2016
Docket Nos. WEST 2013-827-RM
WEST 2013-828-RM
WEST 2013-829-RM
WEST 2013-1009-M

v.
KNIFE RIVER CONSTRUCTION

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
DECISION
BY: Jordan, Chairman; Cohen and Nakamura, Commissioners
These proceedings, which arise under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”), involve an imminent danger order issued
pursuant to section 107(a) of the Act1 by the Secretary of Labor’s Mine Safety and Health
Administration (“MSHA”) to Knife River Construction. The order required a scraper that was in
operation to be immediately removed from service.
Knife River contested the order before a Commission Administrative Law Judge. The
Judge affirmed the order. Knife River then filed a petition for discretionary review with the
Commission, which we granted.
For the reasons that follow, we conclude that substantial evidence supports the Judge’s
decision to affirm the order because the inspector reasonably believed that the continued
operation of the scraper represented an imminent danger to miner safety. Accordingly, we affirm
the decision of the Judge.
I.
Factual and Procedural Background
In May 2013, MSHA inspector Bryan Chaix arrived at Knife River Construction’s
Vernalis Plant to begin a regular inspection. The Vernalis Plant is a sand and gravel mine located
in California.
1

Section 107(a) of the Mine Act, 30 U.S.C. § 817(a), provides an MSHA inspector with
the authority to order the withdrawal of miners if he observes a condition or practice that he
reasonably believes represents an imminent danger to miner safety or health.

38 FMSHRC Page 1289

Chaix was accompanied on his inspection by two representatives of Knife River: the
foreman, George Muraoka, and the safety manager, Kevin Smudrick. Chaix observed a scraper
that was in the process of moving clay material to the waste dump.1 He stopped the vehicle for
an inspection. Inspector Chaix asked the operator to demonstrate that the vehicle was capable of
stopping and holding on a grade while it was carrying a load. The operator gathered a full load of
material (approximately 70,000 pounds) and began to descend a steeply graded access road at a
slow speed. Inspector Chaix and Smudrick followed on foot.
The scraper failed to come to a stop on the graded portion of the road. It stopped briefly
after it reached the bottom, however, and then continued to travel toward the waste dump.
As the scraper drove away, Chaix issued an oral order pursuant to section 107(a) of the
Mine Act that the vehicle be immediately stopped and removed from service. The written order
was issued shortly thereafter and stated in relevant part:
[A scraper] did not stop on a grade when tested. The equipment
was in service at the time of inspection, handling both raw feed
and waste. The grade on which it was tested measured
approximately 12-14%.
Gov. Ex. 1.
The inspector also issued a citation pursuant to section 104(a) of the Mine Act, 30 U.S.C.
§ 814(a), for a violation of the mandatory safety standard at 30 C.F.R. § 56.14101(a)(1), which
provides that “[s]elf-propelled mobile equipment shall be equipped with a service brake system
capable of stopping and holding the equipment with its typical load on the maximum grade it
travels.” The citation stated that the violation was “significant and substantial” (“S&S”).2 After
the issuance of the citation, a mechanic traveled out to the scraper and fixed the brakes on site.
Knife River contested the citation and the order before a Commission Administrative
Law Judge. The Judge affirmed the section 107(a) order, concluding that the Secretary
demonstrated that the inspector reasonably believed that the continued operation of the scraper
represented an imminent danger to miner safety. 36 FMSHRC 2176, 2178-79 (Aug. 2014)
(ALJ). The Judge concluded that the inspector acted within his discretion to issue the order based
on the facts known and available to him at the time. Id. The Judge also affirmed the associated
citation that alleged a violation of the mandatory safety standard at 30 C.F.R. § 56.14101(a)(1),
but deleted the citation’s S&S designation. Id. at 2180.

1

A “scraper” is a “digging, hauling, and grading machine having a cutting edge, a
carrying bowl, a movable front wall (apron), and dumping or ejecting mechanism.” Am.
Geological Institute, Dictionary of Mining, Mineral, and Related Terms 485 (2d ed. 1997).
2

The S&S terminology is taken from section 104(d)(1) of the Act, which distinguishes as
more serious any violation that “could significantly and substantially contribute to the cause and
effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d)(1).

38 FMSHRC Page 1290

Knife River petitioned for review of the Judge’s decision to affirm the section 107(a)
order, but did not seek review of the section 104(a) citation. The Commission granted the
petition.
On review, Knife River argues that the Judge erred in finding that the Secretary
demonstrated that the inspector reasonably believed that the defective brakes on the scraper
constituted an imminent danger. Knife River also argues that the Judge’s decision to affirm the
section 107(a) order contradicts, and is otherwise incompatible with, his conclusion that the
violation of the mandatory standard was not S&S.
II.
Disposition
Section 107(a) of the Mine Act provides that if an MSHA inspector “finds that an
imminent danger exists, [the inspector] shall . . . issue an order requiring the operator of such
mine to cause all persons . . . to be withdrawn from” the relevant area until the danger no longer
exists. 30 U.S.C. § 817(a). Section 3(j) of the Act defines an “imminent danger” as a condition
“which could reasonably be expected to cause death or serious physical harm before such
condition or practice can be abated.” 30 U.S.C. § 802(j).
An inspector’s issuance of a section 107(a) order is reviewed under an “abuse of
discretion” standard. Island Creek Coal Co., 15 FMSHRC 339, 345-46 (Mar. 1993). The order
will be upheld if the Secretary proves by a preponderance of the evidence that the inspector
reasonably concluded, based on information that was known or reasonably available to him at
the time the order was issued, that an imminent danger existed. Id. at 346. The Commission has
explained that a Judge is not required to accept an inspector’s subjective perception that an
imminent danger existed but, rather, must evaluate whether it was objectively reasonable for the
inspector to conclude that an imminent danger existed. Id. We review the Judge’s determination
of whether the inspector abused his discretion under a substantial evidence standard. See, e.g.,
Connolly-Pacific Co., 36 FMSHRC 1549, 1555 (June 2014).
While the danger justifying an imminent danger order need not be immediate, the danger
must be such as to require the immediate withdrawal of miners because it could reasonably be
expected to cause death or serious harm before the danger can be abated. Freeman Coal Mining
Co. v. Interior Bd. of Mine Operations Appeals, 504 F.2d 741, 743-45 (7th Cir. 1974); see also
Connolly- Pacific, 36 FMSHRC at 1555 (citing Cumberland Coal Res., LP, 28 FMSHRC 545,
555 (Aug. 2006), aff’d, 515 F.3d 247 (3d Cir. 2008)); Blue Bayou Sand and Gravel, Inc., 18
FMSHRC 853, 858 (June 1996). In addition to the withdrawal of miners, an issuing inspector
may also require that dangerous equipment be immediately removed from service. See Utah
Power and Light Co., 13 FMSHRC 1617, 1619 (Oct. 1991).
The Mine Act’s legislative history reflects Congress’s view that “the authority under
[section 107(a)] is essential to the protection of miners and should be construed expansively by
inspectors and the Commission.” S. Rep. No. 95-181, at 38 (1977), reprinted in Senate
Subcomm. On Labor, On Human Res., Legislative History of the Federal Mine Safety and
Health Act of 1977, at 626 (1978).

38 FMSHRC Page 1291

A. Substantial evidence supports the Judge’s decision that the inspector acted
within his discretion when he issued the order pursuant to section 107(a).
The Judge affirmed the section 107(a) order, specifically noting that it was issued
immediately after the inspector observed the scraper fail to stop on a steep grade while carrying a
heavy load. 36 FMSHRC at 2178. Accordingly, the Judge concluded that the inspector did not
abuse his discretion. Id. The Judge correctly limited his analysis to whether the inspector’s belief
was reasonable at the precise time he issued the order. See Jim Walter Res., Inc., 37 FMSHRC
1968, 1971-72 (Sept. 2015); see also Wyoming Fuel Co., 14 FMSHRC 1282, 1292 (Aug. 1992)
(“the appropriate focus is on whether the inspector abused his discretion when he issued the
imminent danger order.”).
We conclude that the Judge’s decision – that the inspector reasonably believed that the
scraper operator risked serious physical harm by continuing to drive to the waste dump – is
supported by substantial evidence in the record.3
At the time he issued the oral order, the inspector was aware that the scraper was carrying
a full 70,000 pound load. Tr. 146, 155. The inspector had just witnessed that the scraper was not
able to stop on a grade. Tr. 41. Despite the defective brakes, the scraper continued to travel
toward the waste dump4, an area of the mine with multiple grades.5 Tr. 43-45. In addition, the
inspector was aware that an embankment was under construction at the waste dump. Tr. 34, 40.
The inspector testified that his primary concern was that the scraper would depart that
embankment because it was traveling to the dump site without fully functioning brakes. Tr. 39,
41 (“Primarily my concern [was] about departing the embankment.”).6 The operator’s

3

“Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as
adequate to support [the judge’s] conclusion.’” Rochester & Pittsburgh Coal Co., 11 FMSHRC
2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
4

Knife River’s safety manager Kevin Smudrick, testified that the scraper exited the
graded road, stopped on level ground, and then “took off again.” Tr. 175-76. Smudrick also
stated that the inspector asked him where the scraper was going and that Smudrick responded:
“[w]ell, evidently, you know, he doesn’t see us walking down. He’s probably going to go dump
his load and come back up to the top.” Id.
5

The dissent suggests that the inspector’s testimony that the area contained “multiple
grades” is insufficient. See slip op. at 16. Notably however, Knife River did not challenge the
inspector’s characterization of the area surrounding the dumpsite in its Post-Hearing Brief, nor
did any of its three witnesses provide alternative evidence. Accordingly, the inspector’s
testimony was not contradicted.
6

Our dissenting colleagues ignore the issuing inspector’s testimony. Instead, without
citing any evidence, they independently conclude that there was no possibility that a scraper with
inadequate brakes could depart the embankment.

38 FMSHRC Page 1292

representatives were not able to stop the driver nor communicate the order to him as they did not
have their radios at that moment. 7 Tr. 42, 84-86, 177.
Inspector Chaix understood that although there were alternative methods available to
abruptly stop the vehicle, such as the emergency brake or lowering the cutting tool, using either
method would put the driver at risk for injury. Tr. 49-50. The inspector succinctly explained why
he believed this was an imminent danger, stating “[t]hat’s a big piece of equipment and . . . some
pretty big distances and some steep grades involved. It’s the kind of thing that gets people
killed.” Tr. 44. When asked who he expected to be injured by this condition, he responded,
“[p]rimarily the equipment operator themselves, but anybody else nearby in the traffic pattern of
the scraper.” Tr. 44.
We conclude that the testimony above supports the Judge’s conclusion that the inspector
reasonably believed that an imminent danger existed.8 Accordingly, we affirm the Judge’s
conclusion that the inspector did not abuse his discretion in issuing the section 107(a) order.9
7

Our dissenting colleagues conclude that because the scraper’s brakes were tested at a
low speed and because the scraper eventually came to a stop on level ground, the inspector could
not have reasonably believed that its driver was in any serious danger during the test. See slip op.
at 9-10. Their analysis is flawed as it entirely ignores context; the order was issued as the scraper
drove away from the inspector toward the dumpsite after demonstrating that its brakes were
defective. Hence, the inspector’s inquiry as to whether an imminent danger existed was not
confined to the testing conditions (involving a slow-moving truck on a grade with barricades),
but also properly took into account the fact that after leaving the grade, the truck would travel at
a faster speed in locations where it would not be protected from overtravel by barriers. Tr. 39-41.
Our colleagues also ask (somewhat ironically): “why did the inspector not ensure that the
scraper remained at the bottom of the grade once it stopped, instead of allowing [it] to continue
traveling through the mine with defective brakes?” Slip op. at 11. Of course, the answer is that he
did do something; the inspector ordered the representatives of the operator to stop the driver
immediately, pursuant to the authority provided by section 107(a) of the Mine Act. The
representatives of the operator simply failed to halt the driver as they did not have their radios
available at the time the order was issued.
8

We note that no one disputes the outcome of the imminent danger order (that the scraper
be removed from service) and that the scraper operator, unaware of the imminent danger order,
parked the scraper and removed it from service for repairs. KR Reply Br. at 9.
9

We are troubled by the dissent’s contention that “[h]ere, there is also a real question of
whether an abuse of discretion may be found where an inspector issues an imminent danger
order but does nothing to prevent the continued operation of the subject machinery.” Slip op. at
8. This statement appears to suggest that no inspector should issue an imminent danger order
without first trying to singlehandedly abate the potential danger, and that the Secretary must put
on evidence of such efforts in order to sustain an imminent danger order, a contention we
categorically reject. The issuance of an imminent danger order is the tool a mine inspector uses
to withdraw miners from danger.

38 FMSHRC Page 1293

B. The Judge’s conclusions with respect to the section 107(a) order and his
conclusions with respect to the S&S designation on the section 104(a) citation are
not irreconcilable.
Knife River also argues that the Judge’s ruling on the imminent danger order should be
overturned because it is allegedly inconsistent with his ruling that the related citation was not
S&S. We disagree.
The Secretary did not petition for review of the deletion of the S&S designation from the
citation issued pursuant to section 104(a), and accordingly the Judge’s conclusions regarding the
citation are not before the Commission. Therefore, we take no position on the legality of his
findings regarding the S&S designation.10 However, we observe that the Judge’s ruling on the
imminent danger order and his ruling on the S&S designation in the citation involve different
evidentiary considerations.
It is well-established that an inspector has the discretion to issue a section 107(a) order if
he reasonably believes there is an imminent danger, even if the imminent danger at issue does
not violate a mandatory safety standard. See Utah Power & Light, 13 FMSHRC at 1622. In
evaluating the issuance of the order, a Judge necessarily considers the evidence from an
objectively reasonable inspector’s perspective at the time of issuance. The key question is
whether the inspector abused his discretion.
In contrast, violations of mandatory safety standards must be proven by the Secretary by
a preponderance of the evidence at a hearing before a Commission Judge. See Garden Creek
Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989). The Judge considers the evidence of the
violation de novo; he does not view the evidence from the inspector’s perspective. The key
question is whether the Secretary satisfied his burden of proof.

10

A violation is S&S if, based on the particular facts surrounding the violation, there
exists a reasonable likelihood that the hazard contributed to by the violation will result in an
injury or illness of a reasonably serious nature. See Cement Div., Nat'l Gypsum Co., 3 FMSHRC
822, 825 (Apr. 1981). In Mathies Coal Co., the Commission further explained:
In order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum, the
Secretary of Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard — that is, a
measure of danger to safety — contributed to by the violation; (3)
a reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature.
6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); accord Buck Creek Coal, Inc. v. FMSHRC, 52
F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Sec'y of Labor, 861 F.2d 99, 103 (5th Cir.
1988) (approving Mathies criteria).

38 FMSHRC Page 1294

With respect to the citation issued to Knife River for inadequate brakes, the Judge
credited the testimony of Kevin Farewell, the scraper operator, who stated that even if the brake
did not bring the scraper to a stop on the grade, he was able to rely on the engine retarder to
remain in control of the vehicle. See 36 FMSHRC at 2180; Tr. 148, 161. After considering
Farewell’s testimony, the Judge deleted the S&S designation. Even assuming arguendo that the
Judge’s action was appropriate, it would not preclude a finding that the inspector, upon
observing the driver’s inability to bring the scraper to a stop on grade, could reasonably believe
such failure amounted to an imminent danger.
Because the Judge’s conclusions were made after appropriately using different standards
of review, we hold that his conclusions are not irreconcilable.
III.
Conclusion
For the foregoing reasons, we conclude that the Judge’s decision is supported by
substantial evidence in the record, and, therefore, we affirm it.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

38 FMSHRC Page 1295

Commissioners Young and Althen, dissenting:
The majority summarily affirms the decision below sustaining an imminent danger order.
However, a full and fair exposition of the record demonstrates that substantial evidence does not
support an objectively reasonable basis for the inspector to have reasonably expected a death or
serious injury before abatement. Inspectors must act quickly when they see an imminent danger,
but the evidence in this case does not come close to providing an objectively reasonable basis for
issuance of an imminent danger order. For that reason, we respectfully dissent.
DISCUSSION
An imminent danger is “the existence of any condition or practice in a coal or other mine
which could reasonably be expected to cause death or serious physical harm before such
condition or practice can be abated.” 30 U.S.C. § 802(j). Unquestionably, inspectors must have a
substantial amount of authority to issue imminent danger orders and we must uphold orders
unless we conclude that inspector abused his discretion. Old Ben Coal Corp. v. Interior Bd. of
Mine Operations Appeals, 523 F.2d 25, 31 (7th Cir. 1975); Rochester & Pittsburgh Coal Co., 11
FMSHRC 2159, 2164 (Nov. 1989). Here, there is also a real question of whether an abuse of
discretion may be found where an inspector issues an imminent danger order but does nothing to
prevent the continued operation of the subject machinery. This inaction is untenable where an
inspector holds a reasonable belief that death or serious injury would reasonably result if the
activity at issue did not immediately cease.
Four factors comprise the existence of an imminent danger. These are, (1) a condition or
practice in a mine (2) that could reasonably be expected to cause (3) death or serious physical
harm (4) before such condition or practice can be abated. The Commission has rejected any
notion that a judge or the Commission must accept the subjective perception of an inspector.
Instead, we are to review the facts determining instead “whether it was objectively reasonable for
the inspector to conclude that an imminent danger existed.” Mill Branch Coal Corp., 37
FMSHRC 1383, 1389 (July 2015) (citing Island Creek Coal Co., 15 FMSHRC 339, 346 (Mar.
1993)). The inspector here did not even evince a subjective belief in an imminent danger.
Therefore, it is impossible for the inspector’s belief to be found objectively reasonable if we
review the Judge’s determination looking at the objective facts presented at the hearing. See,
e.g., Connolly-Pacific Co., 36 FMSHRC 1549, 1555 (June 2014).1

1

The Commission requires that an inspector make a reasonable investigation that permits
the Judge and Commission to determine whether the facts known to him, or reasonably available
to him, support the issuance of the imminent danger. Island Creek, 15 FMSHRC at 346 (citing
Wyoming Fuel Co., 14 FMSHRC 1282, 1292 (Aug. 1992)). That element does not particularly
come into play in this case. This case boils down to whether the inspector acted in an objectively
reasonable manner by issuing and maintaining an imminent danger order when he observed a
scraper creep down a grade at two miles-per-hour and come to a complete stop at the bottom of
the grade.

38 FMSHRC Page 1296

In Utah Power & Light Co., 13 FMSHRC 1617, 1622 (Oct. 1991), the Commission
observed that, if any hazard that has the potential to cause a serious injury qualifies as an
imminent danger, the distinction between an imminent danger and a significant and substantial
violation is lost. The outcome-determinative difference is that, for an imminent danger, the
expectation must be for serious injury or death “before the condition or practice can be abated.”
The objective facts presented at the hearing must provide substantial evidence in support of the
inspector’s determination.2
The majority correctly but only partially defines substantial evidence in its opinion. See
slip op. at 4 n.4. Importantly, in assessing whether a finding is supported by substantial evidence,
the record as a whole must be considered including evidence in the record that “fairly detracts”
from the finding. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). The record in this
case, when fully reviewed, contains overwhelming evidence detracting from the imminent
danger finding. In particular, the Judge failed to take into account his own findings that establish
a slow (two mph) rate of speed, the ability of its operator to use other means besides the brakes
to stop the scraper at any time, the absence of any other persons who might have been injured
during the event, the impossibility of overtravel on the enclosed grade, the protective measures
shielding the operator from hazards arising from a low-speed collision, and the inspector’s own
inconsistent testimony in the face of all of these facts.
Among the detracting evidence, the inspector eventually concedes that, with the scraper
moving at two mph, he knew, or should have known, that the scraper operator could have
stopped almost immediately at any time and at the operator’s discretion, including during the
descent down the grade. Tr. 49. Having made that telling admission, the inspector does not
provide any evidence to support a finding that such stopping would be expected to cause serious
injury or death. Indeed, the evidence confirms that the section 104(a) citation issued for the
defective brakes would have resulted in abatement just as quickly and as efficiently as the
section 107(a) order. Moreover, these errors are only a portion of the detracting evidence that we
now review.
It is uncontested that the maximum speed of the scraper throughout its descent was
approximately two miles per hour. Tr. 155, 167. As explained by the scraper operator, Mr.
Farwell, the scraper was equipped with a “retarder” that slows the transmission and engine
thereby slowing the rate of descent, to guard against a runaway. Tr. 148, 156. The retarder
automatically engages at speeds greater than two to three miles per hour. In this case, the scraper
was moving so slowly that the retarder did not even engage. Tr. 156. The scraper operator
explained that he never was in any danger, (Tr. 155), and, had he felt any danger, he with
certainty could have stopped the scraper virtually immediately (from its two mph speed) by
lowering the cutting tool. Tr. 148. More importantly for our review of the inspector’s order, the
inspector’s testimony, though inconsistent, shows that the inspector himself realized that the
scraper was not out of control and had come to a complete stop at the bottom of the grade.
Prior to the inspection on the date of the imminent danger order, the scraper operator had
been working in a relatively flat area of the mine, Tr. 153, and the scraper’s brakes were fully
2

Here, the Judge determined the violation was not significant and substantial.

38 FMSHRC Page 1297

operational. Tr. 154. The inspector asked the scraper operator how the operator wanted to
demonstrate the brakes were working. The operator himself responded that he was heading to a
new work area and the inspector could watch his performance in that new area. The inspector
agreed. Tr. 34.3
The inspector testified that no equipment or people were down the grade from where the
brake test occurred. Tr. 74. Thus, at the suggestion of the scraper operator, the inspection
occurred on the first run by the scraper, fully loaded, down a new and steep grade. Tr. 154-55.
From this point, the record demonstrates conclusively that an imminent danger did not exist as
the scraper crawled down the slope at two mph with the operator able to stop it at any moment.4
First, the inspector’s testimony was inconsistent in critical areas related to his actions. On
direct examination, the inspector testified he could not recall whether he saw the scraper stop at
the bottom of the grade. He testified that it continued its loop back to the work place from which
it started downhill. Tr. 38. The inspector testified that the reason he could not recall if the scraper
stopped was because he “was engaged in a discussion with agents of the operator at that time.”
Tr. 38. If this testimony were correct, then the inspector did not watch the scraper complete its
descent down the grade.
This questionable and unreliable testimony contrasts sharply with Knife River’s case,
wherein all of its witnesses, including the scraper operator, testified that the scraper completely
stopped at the bottom of the grade when it reached the flat area. After that testimony, the
Secretary recalled the inspector. The inspector then testified that he had started walking toward
the bottom of the grade but turned around because the scraper was “way out ahead of me, and [it]
kept going after reaching the bottom of the grade.” Tr. 205. This testimony varies from his
earlier testimony that he was talking to Knife River’s employees so he did not see what
3

During his testimony, the inspector seemed to emphasize that the scraper operator had
not tested the brakes on that specific grade before the inspector observed him. However, the
inspector acknowledged that the scraper operator had told him that the operator had tested the
brakes at the start of his shift and they were working fine where he was then operating the
scraper. Tr. 48, 154. The inspector also testified that: (1) the scraper operator told him that he
was going to start working a new area; (2) the scraper operator himself suggested that grade as
the appropriate place for a test; and (3) the appropriate method of testing is for a fully loaded
scraper to travel the grade and attempt to stop. Tr. 33-34. Because this was the first run of the
day on that area, the absence of a prior “test” of the brakes in that area with a full load before the
inspector watched is a meaningless distraction.
4

The inspector’s testimony demonstrates that he had little understanding of how a
scraper operates. The inspector did not know about, or at least did not identify, the important
safety assistance provided by the equipment’s “retarder.” The retarder slows the transmission
and engine. Tr. 148. The retarder works automatically if the scraper exceeds three mph. In this
case, the retarder did not come into play because the scraper never reached a speed at which it
would automatically operate. The inspector either did not know or, at least, did not testify that he
was aware that the retarder works as an auxiliary braking system on the scraper.

38 FMSHRC Page 1298

happened, but it is generally consistent with his earlier testimony that he did not see the scraper
stop.
After the Secretary completed his case, however, the Judge asked the inspector whether
the scraper stopped at the bottom of the grade and the inspector had a change of heart, mind, or
memory and equivocally testified, “[y]ou know, I think it might have stopped briefly.” Then, the
Judge honed in and directly asked, “[b]ut he did stop? He was able to stop on flat ground?” The
inspector finally remembered clearly and responded with a simple “yes.” Tr. 208. The inspector
actually knew the scraper had stopped completely when it reached the bottom of the grade. This
fact raises an obvious question not accounted for by the Judge or the majority: why did the
inspector not ensure that the scraper remained at the bottom of the grade once it stopped, instead
of allowing the purported menace to continue traveling through the mine with defective brakes?
From this testimony, inconsistent and changing as it was, we see that the inspector,
though at first denying the knowledge, actually knew that the scraper stopped promptly and
properly while still carrying the 70,000 pound load that it would soon drop as it took the 2 to 3
minute trip back to the starting point.5 It is uncontested that the scraper returned to the top of the
grade in a matter of 2 to 3 minutes, and the inspector knew it was completing a loop and
returning to the top of the ramp. This means that the scraper could have continued carrying the
70,000 pounds for only a very brief period in the open drop area depicted in photographs entered
into the record by MSHA before dropping the load and returning to the top of the ramp. The
majority makes no effort to explain why, during the very brief period, the operator could not
have used the same techniques that the majority does not contest could have been used to quickly
stop the scraper on the 14% grade.
The majority does not deal with the inspector’s inconsistent testimony and, therefore,
does not account for the fact that the inspector grudgingly and only with a judicial push admitted
he had seen the scraper come to a complete stop at the bottom of the steep grade. Further, the
evidence is clear that the scraper’s job was to move material from the top of the grade to the flat
area at the bottom and then return to the top of the grade. The inspector himself testified that the
scraper would continue its loop upward to the top of the grade, (Tr. 38, 54), — a process that
took only a couple of minutes. Tr. 116.
Second, uncontested facts contradict the inspector’s assertion of danger. The inspector
stated his primary concern was the safety of the scraper operator and when the Secretary’s
counsel asked the inspector about any danger to the scraper operator, the inspector responded
that he was concerned that he might “over-travel the roadway.” Tr. 38-39. That testimony is
obviously incorrect; indeed, it is incredible. Operator witnesses and photographs of the site

5

The majority asserts the ground was level when the scraper stopped; no testimony
supports that assertion. However, if the ground was level, or if the grade had diminished only
minimally but the scraper was able to stop, as the record establishes it did, there is no reasonable
explanation for the inspector’s failure to have the scraper remain at its stopping point in the face
of what he asserts was an imminent danger arising from its continued operation.

38 FMSHRC Page 1299

demonstrate that there were significant barriers on each side of the roadway. Mr. Farwell, the
scraper operator, testified that overtraveling the roadway was not possible:
I had a 30-foot wall on one side and about 100-foot wall on the
other side. At the very bottom, I've still got the 100-foot wall, and
I've got a berm that is mid-axel height on the -- on the scraper. So I
-- I had no problems.
Tr. 157.
The inspector’s testimony that the scraper could have dangerously left the roadway is
objectively and tellingly wrong. Either the inspector did not recognize the physical conditions at
the site or, despite his testimony, he could not actually have had concerns of overtraveling the
roadway. Indeed, Mr. Farwell graphically explained the virtual walls on the sides of the roadway,
the area to which he was heading, the speed of the scraper, and the braking mechanisms. All this
led to Mr. Farwell’s testimony that he never was in any danger and never considered stopping
the scraper although he could have at any moment. Tr. 155-60.6
Further, the inspector did not testify from the photographs or otherwise how the scraper
operator could have overtraveled the dumpsite.7 He did not point to any dangerous
“embankment” that the operator could overtravel. Further, as noted above, the inspector
eventually acknowledged that the scraper came to a complete stop at the bottom of the grade.
Third, when the Secretary’s counsel asked if there was a way of stopping the scraper
other than the brake system, the inspector first testified, “I guess you could run into something
. . . .” Tr. 49. We must attribute this remarkable statement to the inspector’s lack of any objective
knowledge regarding the operation of a scraper. Mr. Farwell, the scraper operator, testified quite
clearly that you can slow and stop a scraper without “running into something,” (Tr. 148), and
eventually the inspector agreed he also knew that the scraper could have stopped immediately.
Tr. 49-50.
This acknowledgment alone should have been fatal to any pretense of appropriate
concern and discretion, especially after the inspector’s ludicrous testimony about “running into
something.” The inspector, in fact, testified that he knew that, relying upon the parking brake or
emergency brake, the scraper operator actually could stop the scraper immediately through
means other than the brakes if danger arose. Tr. 50. Regardless of the inspector’s overall
6

Of course, a miner may not perceive the danger. In this case, however, the inspector
testified that the scraper operator was his primary concern. Tr. 44-45. Therefore, the scraper
operator’s testimony is important because he identifies many objective reasons that were, or
should have been, known by the inspector, thus showing any alleged concern for the operator
was wholly and objectively misplaced.
7

A scraper drops its load by opening doors underneath the scraper so the loaded material
falls directly below it. Tr. 146. The equipment does not lift a bed to dump material.

38 FMSHRC Page 1300

unfamiliarity with a scraper, he knew the operator could stop the scraper immediately. That
recognition demolishes the need for an imminent danger order.
The inspector’s recognition that the scraper operator could easily have stopped the
scraper in case of any perceived danger creates an insoluble and undiscussed conundrum for the
majority. If the inspector knew, or should have known, that the scraper operator could stop the
scraper virtually immediately to avoid any danger from continuing movement, then there can be
no reasonable expectation of serious injury or death.
Despite this, the majority endorses the inspector’s literally incredible, unreasonable
belief, without any assertion of expertise or reasoning, that stopping from two mph could
reasonably be expected to seriously injure or kill the scraper operator, who was wearing a
seatbelt inside the cab.8 Tr. 50. Aside from the inspector’s testimony that is unsupported, nonexpert, and clearly runs counter to the human experience of equipment drivers, the Secretary
presented absolutely no evidence of how a stop from a speed of two mph could reasonably be
expected to seriously injure a driver wearing a seatbelt.9 Without any evidence, it is impossible
for the Secretary to overcome the obvious and commonsense understanding that seat-belted
drivers are completely uninjured, let alone not seriously or fatally injured, when stopping their
vehicles traveling at two mph.
Fourth, under the facts of this case, the inspector’s issuance of the section 104(a) order
clearly precludes any reasonable basis for issuance of an imminent danger order. Upon observing
defective brakes in operation, it was entirely proper for the inspector to issue a section 104(a)
citation and to order immediate abatement. He took that action. Having received such a citation,
it was incumbent upon Respondent to cause the scraper to stop and to remove it from service
until completion of brake repair. In this case, it had a duty to take that action as quickly under the
104(a) citation as under the imminent danger order. Knife River took that action. That being so,
there is no basis to find that the brakes that slowed the scraper to two mph under extremely high
stress would be reasonably expected to cause a fatality or serious injury before the citation could
be abated. In other words, with the issuance of the 104(a) citation, there was no basis to find an
objectively reasonable expectation of death or injury before abatement.
Fifth, we must again note — and in fact cannot stress enough — that the inspector’s
actions belie any notion of an imminent danger. Having seen the scraper completely stop at the
bottom of the hill and then continue, there is no evidence that the inspector took or ordered
emergency action to try to get in touch with the driver. There would be no excuse for such
inaction if the inspector actually thought the driver was in imminent danger of death or serious
injury. The inspector himself testified that the operator’s representatives were only a few yards
away from the truck where they had left their radios. Tr. at 85. While the majority suggests we
8

The inspector testified that he knew the driver was wearing a seatbelt. Tr. 76.

9

It should be noted that the scraper, a fairly-long piece of equipment, was in an enclosed
roadbed and thus could not logically have even encountered the walls containing its travel headon. It seems even less likely that any serious consequences could fall upon the driver from an
oblique low-speed collision.

38 FMSHRC Page 1301

believe the inspector should have “[tried] first to singlehandedly abate the potential danger,” slip
op. at 6 n.10, nothing in the record explains why he did not order the operator’s representatives
to run to retrieve their radios and order the scraper to stop immediately, if he believed an
imminent danger existed.
The imminent danger provision in section 107(a) exists for one purpose: to prevent
serious injuries or loss of life by empowering an inspector to order immediate withdrawal and
cessation of mining activity until the danger no longer exists. An inspector who fails to follow
through under such circumstances is either derelict or does not believe that an imminent danger
truly exists, because a reasonable person would never permit the continuation of the activity
giving rise to the danger. Whether the inspector should have single-handedly sought to abate the
violation is immaterial: it is beyond argument that the Act conferred on him the power — and the
duty — to take the steps necessary to protect miners from the immediate risk of serious injury or
death, if such danger reasonably appeared to exist. It is also beyond argument that the inspector
not only failed to take any immediate action, he let the scraper continue its loop through the
mine.
Here again the majority stumbles over inconvenient facts. If the inspector was truly
concerned about the scraper imperiling its operator at the site of the embankment, there can
certainly be no argument whatsoever that the inspector should have used whatever time was
available — as the machinery ponderously made its way to the dump site — to ensure the
equipment was stopped and removed from service at once so that the danger could be abated.
Thus, the majority entirely ignores the immediacy component essential to the issuance and
enforcement of imminent danger orders.
Of course, as noted above, the inspector actually knew the driver was returning upgrade
to the top of the slope and so waited at the top of the grade for the driver to return, i.e., he took
no action at all despite his purported belief that the scraper operator was in mortal peril. Such
action, or rather inaction, is wholly inconsistent with a finding of an imminent danger of death or
serious injury to the driver.

38 FMSHRC Page 1302

Finally, in an effort to support an unsustainable decision, the majority turns to incorrectly
characterizing the testimony and imagining areas and events not supported by any evidence. The
testimony could not be clearer that the inspector decided to issue the imminent danger order
when and because he observed the scraper crawling down the ramp at two mph.10
As the testimony turned out, it became clear that movement down the 14% grade at two
mph did not present an imminent danger. By focusing on the two or three minute trip after the
scraper stopped, the majority effectively concedes that the condition for which the inspector
issued the order, the scraper crawling down the grade at two mph and capable of stopping at any
moment, did not constitute an imminent danger.
Rather than vacating the unwarranted order, the majority attempts to shift the focus away
from the reason for which the inspector issued the order — the controlled descent down the
ramp. To do so, they create a rationale for which there is no evidence. Not only does the
evidence show the order was issued for the passage down the ramp, but also there is no
meaningful testimony or other evidence to support an imminent danger when the scraper
resumed travel after stopping at the bottom of the ramp.
Every witness testified that the scraper came to a complete stop at the bottom of the
ramp. Indeed, the inspector, albeit after initially refusing to admit it, saw this complete stop.
Further, the inspector also testified that he knew the scraper would then complete an upgrade
“loop” to the top of the grade from where he departed — a loop that took all of 1.5 to 3 minutes.
Tr. 39, 42, 159. Thus, the inspector knew from his personal observation both that the scraper
stopped even when it was transporting a 70,000 pound load at the bottom of the grade. He further
knew the operator would drop the load and return to the top of the grade within a couple of
minutes.
10

Q. Inspector, I'd like to start with the order numbered 8699159
behind GX1 [imminent danger order]. Why did you issue this
order?
A. I issued this order when I observed a scraper unable to stop on a
grade.

Tr. 30.
Q. When the service brakes didn't stop the scraper on the ramp,
what did you do?
A. I turned to the agents of the operator and explained that if I was
seeing what I thought I was seeing -- in other words, a scraper not
stopping on a grade -- that was clearly an eminent [sic] dangertype situation and that they needed to get that piece of equipment
stopped immediately and remove it from service so that the
condition could be corrected to protect people.
Tr. 41.

38 FMSHRC Page 1303

To build its theory for an imminent danger order, the majority cites a passage in the
transcript where the inspector testified that an embankment was under construction. Slip op. at 4
(citing Tr. 34). The majority does not take into account the fact that the embankment was under
construction.11 Embankments are not built from the top to the bottom. The scraper was
transporting material to build the embankment or to provide a base for its construction. There is
no possibility that the scraper could overtravel an embankment when it was transporting material
to build the embankment, and the inspector did not offer any such testimony. The majority notes
the inspector testified that the scraper could “depart” the embankment. It is impossible to fathom
the meaning of that statement. If the inspector simply means the scraper would leave the area to
which it was bringing material for construction then it is nothing more than saying he knew the
scraper would continue its two-minute loop to the starting point. If it is expressing some sort of
concern about overtraveling an embankment, then it is simply a demonstration that the inspector
failed to grasp that the material was being used to build the embankment so the scraper was not
in any danger of falling from an embankment. This error, however, is only the beginning of the
fatal flaws in the majority’s effort to save the order.12
In one passage the inspector, while focusing on the ramp, mentions “multiple grades.” He
said, “[t]he equipment’s in operation in that condition; the equipment’s on a grade not stopping -not able to stop in an area with multiple grades.” Tr. 43-44. The majority attempts to use this
passing reference for which no evidence was presented to sustain its theory. Nowhere in the
inspector’s testimony or the exhibits is there evidence of multiple grades. Other than this passing
reference there is no testimony by any witness about multiple grades in the area. Were any such
grades actually present? The inspector focused only on the ramp for which he did a test to
11

An embankment is
A linear structure, usually of earth or gravel, constructed so as to
extend above the natural ground surface and designed to hold back
water from overflowing a level tract of land, to retain water in a
reservoir, tailings in a pond, or a stream in its channel, or to carry a
roadway or railroad; e.g. a dike, seawall, or fill.

Am. Geological Institute, Dictionary of Mining, Mineral, and Related Terms 186 (2d ed. 1997).
The drop area is the place where the scraper deposits material for the floor of the impoundment
or for use in constructing the embankment
12

The inspector did testify to a fear that the scraper might depart the drop site. However,
he did not provide any testimony about what that meant. Obviously, the scraper had to leave the
drop site to return to the top of the ramp. That does not support an imminent danger. The
inspector does not say how a scraper can overtravel a wide open area from which an
embankment is being constructed. The majority uses scraps of testimony to support an
unsustainable conclusion. Even assuming for argument’s sake that this was the inspector’s
primary concern, he obviously had more time available for intervention between the issuance of
the order and the scraper’s arrival at the embankment site. While the inspector’s testimony about
what happened in that time is somewhat cloudy, it is clear that he did not use the time to order
the operator to intercept the scraper on its way to the embankment site.

38 FMSHRC Page 1304

measure the percent slope. There is no evidence of grades in the drop area or any imminent
danger from any grades after the scraper left the 14% ramp because there is no evidence about
any such grades.
There are photographs in the record that show the area below the ramp and the area
where the embankment was going to be constructed. Those photographs do not depict any
discernable grades and, again, the inspector did not offer any testimony about the drop area such
as the existence, size, spacing, slope, etc. of any grades. The inspector did not testify that he saw
the drop area, knew what it looked like, or of what it consisted. His testimony was that he
stopped watching after the scraper reached the bottom of the ramp. In any event, neither the
inspector nor anyone else suggests that there was anything even minimally approaching the 14%
grade of the ramp.13
There is no testimony about the speed of the scraper after it reached the bottom of the
ramp. There is no testimony asserting that the scraper could not have easily stopped at any
place on its return to the start area. The majority has accepted that the scraper operator could stop
the scraper immediately after descending a 14% ramp carrying 70,000 pounds, but then
fabricated a proposition that it presented an imminent danger on the return to the top of the
grade. If, as the majority essentially admits, the failure to stop when traveling with 70,000
pounds down a 14% grade is not an imminent danger, it defies logic to suggest that an imminent
danger existed on its return trip with the scraper empty and traveling upgrade. However, even if
such a theory might be plausible, there is not substantial evidence in the record to support it.
14

In short, there is no evidence about grades in the drop area or on the return trip, there is
no evidence about speed, there is no evidence contending that the scraper could not stop, there is
much evidence that it could quickly stop, and there is no evidence about the effect of such a stop.
Indeed, the testimony shows that the scraper stopped by using brakes alone while still carrying
the 70,000 pound load and had stopped effectively all morning in areas off the 14% ramp.
Further, as noted, there is no testimony about any grade including the length or steepness of a
13

The majority complains that operator witnesses did not testify about the drop area. That
is unsurprising. As noted at the outset of our dissent, the testimony demonstrates that the
inspector based his order on the transit down the ramp. The majority’s reliance upon a passing
and unsupported reference to unknown “grades” in the drop area is simply part of its effort to
reassign the issuance of the order to an area of land that clearly played no role in the inspector’s
decision to issue the order while the scraper was on the ramp.
14

The majority asserts the scraper would travel at faster speeds. Slip op. at 5 n.8.
Although it is logical to think the speed would increase, the Secretary presented no evidence of
the speed at which the scraper drops its load or that the brakes would not work at such unknown
speed for the brief period until it dropped its load. Nor does it explain why the same measures
that could have slowed or stopped the scraper on the ramp would not work in the drop area. They
also assert the scraper would not be protected by overtravel barriers. Perhaps, this comes from
their misperception of how an embankment is constructed. In fact, there is no evidence about the
drop area (its dimensions, topography, total size, perimeter, etc.) or how it could be
“overtraveled.” As elsewhere in its opinion, the majority does its own construction — it
constructs theories for which there is no evidence.

38 FMSHRC Page 1305

grade. Finally, there is no evidence that if a grade actually existed, why the same techniques
useable on the 14% ramp would not have worked as effectively.
Here, the majority rejects the real reason the inspector issued the imminent danger order
but creates out of whole cloth an alternate theory for which the Secretary did not present any
evidence. The majority is simply unwilling to overturn a clearly meritless order.
CONCLUSION
In closing, we affirm that an inspector should not hesitate in issuing an imminent danger
order when he perceives a reasonable expectation of death or serious injury before a dangerous
condition can be abated. However, in this case, the imminent danger order, without doubt, is not
objectively reasonable. The Commission should not summarily affirm such clearly erroneous
orders based upon inconsistent testimony and obvious post-hoc rationalizations. Here, a review
of the record as a whole demonstrates there was no objectively reasonable basis for the issuance
of an imminent danger order. We respectfully dissent.

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ William I. Althen
William I. Althen, Commissioner

38 FMSHRC Page 1306

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE NW, SUITE 520N
WASHINGTON, DC 20004-1710

June 16, 2016
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos. LAKE 2009-410
LAKE 2009-412
LAKE 2009-413
LAKE 2009-414
LAKE 2009-415

v.
BLACK BEAUTY COAL COMPANY

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
DECISION
BY THE COMMISSION:
These proceedings arise under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (2012) (“Mine Act”). They involve three citations and two orders which
were issued to Black Beauty Coal Company (“Black Beauty”) by the Department of Labor’s
Mine Safety and Health Administration (“MSHA”). Citation No. 8414923, in relevant part,
alleges a violation of a safeguard notice and its subsequent modification. Citation No. 8414910
alleges a “significant and substantial” (“S&S”)1 violation of the safety standard in 30 C.F.R.§
75.370(a)(1), which concerns ventilation in mines. Citation No. 6680994 and Order Nos.
8414938 and 8414939 allege three S&S violations of the safety standard in 30 C.F.R. § 75.400,
which concerns accumulations of combustible materials in mines. The two orders also alleged
that the violations were a result of the operator’s unwarrantable failure to comply.2
The Administrative Law Judge affirmed the citation issued for a violation of the
safeguard notice. The Judge also affirmed the violations alleged in the other two citations and the
two orders. However, he did not find the other citations or either order to be S&S and did not

1

The S&S terminology is taken from section 104(d)(1) of the Act, 30 U.S.C. §
814(d)(1), which distinguishes as more serious any violation that “could significantly and
substantially contribute to the cause and effect of a . . . mine safety or health hazard.”
2

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

38 FMSHRC Page 1307

find that the orders constituted unwarrantable failures to comply. 36 FMSHRC 1821-59 (Mar.
2014) (ALJ).3
The parties filed cross petitions for discretionary review, which we granted.
For the reasons that follow, we affirm the Judge’s decision that Black Beauty violated
the safeguard notice. However, we vacate and remand the Judge’s decision that the ventilation
and accumulations violations were not S&S. We also remand the Judge’s decision that the
violations subject to the two orders were not the result of the operator’s unwarrantable failure to
comply with a mandatory safety standard.
I.
Factual and Procedural Background
A. Citation No. 8414923 - Violation of a Safeguard Notice
In May 2003, an MSHA inspector issued Black Beauty a notice to provide safeguard at
its Air Quality No. 1 Mine which stated, in relevant part:
This is a Notice to Provide Safeguard(s) requiring a clear
travelway at least 24 inches wide [to] be provided on both sides of
all belt conveyors. Where roof supports are installed within 24
inches of a belt conveyor, a clear travelway of at least 24 inches is
required on the side of such support farthest from the conveyor. 4
Safeguard No. 7591942; Ex. G-87.
In August 2007, an MSHA inspector issued the following modification: “[t]his is to
modify the safeguard requiring a clear travel way of at least 24 inches along both side[s] of all
conveyor belts. The above referenced safeguard is hereby modified to require [ ] that the 24 inch
travel way shall be clear of mud and water.” Ex. G-87 at 3.
In January 2009, MSHA Inspector Franklin issued Citation No. 8414923 at the Air
Quality #1 Mine for an alleged violation of 30 C.F.R. § 75.1403-5(g). Ex. G-86. The citation
alleged that a clear 24-inch walkway was not provided on either side of the 2-B belt line at
crosscut numbers 22 to 23 as water accumulated to a depth of 2 to 14 inches in the entry for a
distance of 55 feet. The citation was based on Safeguard No. 7591942, as modified in 2007. Ex.
G-87.
3

The Judge’s decision was issued in March 2014, but is set forth in the Commission
Bluebook for July 2014.
4

Section 314(b) of the Act states that “[o]ther safeguards adequate, in the judgment of an
authorized representative of the Secretary, to minimize hazards with respect to transportation of
men and materials shall be provided.” 30 U.S.C. § 874(b).

38 FMSHRC Page 1308

The Judge found that Safeguard No. 7591942 as modified by No. 7591942-03 was valid
on its face and that the Secretary had established a violation of this safeguard notice. 36
FMSHRC at 1842-44.
B. Citation No. 8414910 - Ventilation Violation
In January 2009, Inspector Franklin issued Citation No. 8414910 to Black Beauty for an
alleged violation of 30 C.F.R. § 75.370(a)(1).5 The citation alleged that the operator was not
complying with the approved ventilation plan in the number 1 active section. Specifically, the
citation claims that a continuous miner being operated in the number 7 entry did not have
adequate ventilation to dilute, render harmless and carry away flammable explosive gasses, dust,
and fumes while mining. In this regard, the inspector noted that the air velocity at the inby end of
the wing curtain was approximately 4,982 cubic feet per minute (“CFM”) and that the plan
requires a minimum of 7,000 CFM.6 The inspector determined that the violation was S&S. Ex.
G-59. Equipment on the section included a number of safety features intended to minimize the
hazards from dust and explosive gasses, including a methane monitor on the continuous miner
(which was set at 2%), a scrubber on the continuous miner (which included water sprays to keep
the dust down), and a fan that would pull air across the duct work, faces and the miner itself. Tr.
III 8; 36 FMSHRC at 1851.
The Judge found that the Secretary had established a violation but that the violation was
not S&S. The Judge based his non-S&S finding partly on the presence of a safety measure, the
methane monitor on the continuous miner, which would “have shut the operation down if
methane reached 2%.” 36 FMSHRC at 1851.
C. Citation No. 6680994 - Accumulations Violation
In February 2009, MSHA issued Citation No. 6680994 at Black Beauty’s Riola Mine
Complex for an alleged violation of 30 C.F.R. § 75.400.7 The citation alleged that oil, oilsaturated coal fines, and brake fluid were present on a mantrip located in Unit #1. Specifically,
the accumulations were in the transmission, brake caliper and muffler compartments, and ranged
from a film of oil to a quarter of an inch in depth. The inspector determined that the violation
was S&S. Ex. G-9. The mantrip was equipped with safety measures, including a heat-activated
fire suppression system and a “murphy switch” that automatically shuts down the mantrip if
engine temperatures exceed 230 degrees. Tr. I 129-31.
5

30 C.F.R. § 75.370(a)(1) states that “[t]he operator shall develop and follow a
ventilation plan approved by the district manager. The plan shall be designed to control methane
and respirable dust and shall be suitable to the conditions and mining system at the mine.”
6

The approved ventilation plan, in a supplement filed June 17, 2008, provides that the
mine “will maintain 7000 cfm of air at the end of the line curtain without the scrubber running.”
Ex. G-63.
7

30 C.F.R. § 75.400 requires, in part, that “[c]oal . . . and other combustible materials []
shall be cleaned up and not be permitted to accumulate in active workings, or on diesel-powered
and electric equipment therein.”

38 FMSHRC Page 1309

The Judge found that the Secretary had established a violation but that the violation was
not S&S. The Judge based his non-S&S finding partly on the presence of a safety measure, the
fire suppression system, which he believed reduced the likelihood of a fire. 36 FMSHRC at
1827-28.
D. Order No. 8414938 – Accumulations Violation
In February 2009, Inspector Franklin issued Order No. 8414938 at the Air Quality #1
Mine for an alleged violation of 30 C.F.R. § 75.400. The order stated that there was float coal
dust deposited on rock dusted surfaces from the belt tail going outby for three crosscuts. The
inspector alleged that the violation was S&S and a result of the operator’s unwarrantable failure
to comply with the standard. Ex. G-24. The inspector testified that a “traveling roller was rubbing
very hard against the frame, causing an ignition source.” Tr. I 207. Witnesses testified about
safety measures present in the area, including fire suppression devices and carbon monoxide
(“CO”) monitors, which would notify the firefighting brigades of the presence of a fire. Tr. I
208-09, 221. Each member of the firefighting brigades at the mine was equipped with a
breathing device, foam generator and a foam cannon. Tr. I 221, 256-57.
The Judge found that the Secretary had established a violation but that the violation was
not S&S. The Judge examined whether a confluence of factors existed to create the likelihood of
a fire, citing in part Texasgulf, Inc., 10 FMSHRC 498, 500-03 (Apr. 1988). During his S&S
analysis, the Judge considered the presence of safety measures such as water sprays, CO
monitors, fire suppression devices, a fire brigade, breathing devices and turnout gear for
firefighters. The Judge stated that “while [he] considered the presence of water sprays, CO
monitors and other protections, [his] non-S&S holding [was] not based solely on these
protections. The risk of fire was quite low taking into consideration continued mining operations,
including the operator’s practice of frequent examinations and cleaning.” 36 FMSHRC at 183435.
The Judge also ruled that the violation was not a result of the operator’s unwarrantable
failure to comply with the standard. While the Judge found that the violation was obvious and
the operator had been put on notice that greater efforts were necessary for compliance, he found
that the violation did not exist over several shifts, was not extensive, did not present a high
degree of danger and that the operator did not have knowledge of the existence of the violation.
Id. at 1835.
E. Order No. 8414939 – Accumulations Violation
In February 2009, MSHA issued Order No. 8414939 charging a violation of 30 C.F.R. §
75.400. The order alleged that a thin coating of float coal dust on rock dusted surfaces, was
allowed to accumulate upon the energized main south belt from head to tail. Float coal dust and
fine coal had also been allowed to accumulate in crosscuts 8 and 9. The inspector determined
that the violation was S&S because there were many rollers in the area and testified that “[a]ll it
takes is one of the rollers malfunctioning, going out, dropping down in this material, and the hot
bearings igniting the fuel source.” Tr. I 212. The inspector also alleged that the violation was a
result of the operator’s unwarrantable failure to comply with the standard. Ex. G-25.

38 FMSHRC Page 1310

The Judge found that the Secretary had established a violation but that the violation was
not S&S. The Judge did not explicitly base his non-S&S finding on the presence of safety
measures, but did conclude that, “as stated above with respect to [Order No. 8414938] an injury
would be unlikely if fire would start.” 36 FMSHRC at 1837-38. Given the Judge’s discussion of
safety measures during his S&S analysis for Order No. 8414938, it is unclear as to whether the
Judge implicitly considered safety measures during his S&S analysis for Order No. 8414939.
The Judge also found that the violation was not a result of the operator’s unwarrantable
failure to comply with the standard. The Judge found that the violation was extensive and
obvious and that greater efforts were necessary for compliance. However, he also held that the
violation did not present a high degree of danger, that there was no evidence that the violative
condition had existed for a long period of time, and that the operator had no knowledge of the
existence of the violation. 36 FMSHRC at 1837-38.
II.
Disposition
Black Beauty contends that the Judge erred in affirming a violation of the modified
safeguard. In particular, the operator argues that the modified safeguard is invalid because it fails
to identify a hazard with specificity. Black Beauty recognizes, however, that the validity of the
safeguard and the modification at issue here were the subject of another docket pending on
appeal before the Commission when the petitions for review were filed in the instant case.
In his petition, the Secretary maintains that the Judge erred by considering the presence
of safety measures when ruling that the ventilation and accumulations violations were not S&S.
The Secretary also argues that the Judge’s unwarrantable failure rulings related to the two orders
may have been affected by his erroneous S&S analyses. The Secretary requests that the
Commission remand the S&S and unwarrantable failure issues to the Judge.
A. Validity of Safeguard No. 7591942, as Modified
On January 28, 2016, after the parties had filed their petitions, we issued a decision
affirming modified Safeguard No. 7591942. Black Beauty Coal Co., 38 FMSHRC 1 (Jan. 2016).
Our decision in that case specifically addressed the same issue before us in this case , i.e.
whether the safeguard, as subsequently modified, identified a hazard with specificity. We
rejected the operator’s challenge and affirmed the safeguard:
Because the validity of . . . safeguard notice and modification is a
purely legal issue, we review the judge's decision de novo . . . We
conclude that when the original issuance and its modification are
read in conjunction, the modified safeguard notice identifies a
hazardous condition and modified remedy with sufficient
specificity to provide the operator with notice as to the conduct

38 FMSHRC Page 1311

Id. at 4.

that is prohibited or required. Accordingly, we find that the
original safeguard notice and its modification are valid.

The operator did not seek judicial review of that decision. Therefore, the validity of the
modified safeguard has been established as a matter of law by Commission precedent.8
B. S&S Issues
The S&S terminology is taken from section 104(d) of the Mine Act, 30 U.S.C. § 814(d),
and refers to more serious violations. We have held that a violation is S&S if, based on the
particular facts surrounding the violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious nature. See Cement Div.,
Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co., 6 FMSHRC 1 (Jan.
1984), the Commission further explained:
In order to establish that a violation of a mandatory safety standard
is significant and substantial under National Gypsum, the Secretary
of Labor must prove: (1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard — that is, a measure of
danger to safety — contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury in question will be of
a reasonably serious nature.
Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir.
1995); Austin Power, Inc. v. Sec. of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving Mathies
criteria).
The Commission evaluates the reasonable likelihood of injury assuming that normal
mining operations will continue. See U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug.
1985). When examining whether an explosion or ignition is reasonably likely to occur, it is
appropriate to consider whether a “confluence of factors” exists to create such a likelihood.
Texasgulf, 10 FMSHRC at 501; see Eastern Assoc. Coal Corp., 13 FMSHRC 178, 184 (Feb.
1991). Some of the factors to be considered include the extent of accumulations, possible
ignition sources, the presence of methane, and the type of equipment in the area. See Utah Power
& Light Co., 12 FMSHRC 965, 970-71 (May 1990); Texasgulf, 10 FMSHRC at 501-03.
It is well settled that safety measures are not to be considered in determining whether a
violation is S&S. Cumberland Coal Res., LP, 717 F.3d 1020, 1029 (D.C. Cir. 2013); Knox Creek
Coal Corp., 811 F.3d 148, 162 (4th Cir. 2016); Buck Creek, 52 F.3d at 135; Brody Mining, LLC,
8

Commissioners Althen and Young dissented from the Commission’s decision in the
Black Beauty case referenced above. They recognize the decision in that case represents the law
of the case here and governs the finding on the same safeguard in this case but continue to
believe the safeguard should be found invalid for the reasons set forth in their earlier dissent.

38 FMSHRC Page 1312

37 FMSHRC 1687, 1691 (Aug. 2015); Cumberland Coal Res., LP, 33 FMSHRC 2357, 2369
(Oct. 2011).
In Cumberland, the D.C. Circuit confirmed that safety measures are irrelevant to the S&S
analysis. 717 F.3d at 1028-29. The operator argued that the Commission erred in finding that
certain violations were S&S by failing to consider evidence of preventative measures that would
have rendered both the occurrence of an emergency and the resulting injuries less likely. The
D.C. Circuit concluded that consideration of redundant safety measures is inconsistent with the
language of section 104(d)(1) of the Mine Act and broadly held that “[b]ecause redundant safety
measures have nothing to do with the violation, they are irrelevant to the significant and
substantial inquiry.” Id. at 1029. By using the phrase “significant and substantial inquiry” rather
than referring to a specific step in the S&S analysis, the court made clear that safety measures are
irrelevant to all elements of the S&S analysis.
The Court also indicated that all types of safety measures are “irrelevant to the significant
and substantial inquiry” because the focus of the significant and substantial inquiry is the nature
of the violation. “By focusing the decisionmaker's attention on ‘such violation’ and its ‘nature,’
Congress has plainly excluded consideration of surrounding conditions that do not violate health
and safety standards.” Id. at 1029, citing Sec'y of Labor v. FMSHRC, 111 F.3d 913, 917 (D.C.
Cir. 1997).
Similarly, the Fourth Circuit recently held in Knox Creek that safety measures, at least
those that are required by mandatory standards, are irrelevant to the S&S analysis. 811 F.3d at
162. ‘“If mine operators could avoid S&S liability—which is the primary sanction they fear
under the Mine Act—by complying with redundant safety standards, operators could pick and
choose the standards with which they wished to comply.’ Such a policy would make such
standards ‘mandatory’ in name only.” Id. The Fourth Circuit also approvingly cited the D.C.
Circuit ruling in Cumberland that safety measures, without any qualification, are irrelevant to the
S&S analysis.
In Brody Mining, we held that “[w]hen deciding whether a violation is S&S, courts and
the Commission have consistently rejected as irrelevant evidence regarding the presence of
safety measures designed to mitigate the likelihood of injury resulting from the danger posed by
the violation.” 37 FMSHRC at 1691 (citing Cumberland, 33 FMSHRC at 2369). Therefore, in
Brody we interpreted the decision of the D.C. Circuit in Cumberland as applying to all safety
measures without qualification or exception.
Black Beauty nevertheless argues that safety measures must be considered as part of the
S&S analysis. The operator claims that two court of appeals decisions stating that safety
measures are irrelevant to the S&S analysis are very limited in scope and thus not applicable to
this case.
First, Black Beauty contends that the D.C. Circuit’s decision in Cumberland, holding that
safety measures are irrelevant to the S&S analysis, was limited to the specific facts at issue in
that case, i.e., violations involving emergency safety standards. However, nothing in the D.C.
Circuit’s decision limits the ruling to the circumstances of that case. Although the court

38 FMSHRC Page 1313

recognized that emergency standards under the Mine Act are different from other Mine Act
standards for purposes of S&S determinations, that part of the decision had nothing to do with
whether safety measures must be considered in the S&S analysis.
The court later rejected, on two separate grounds, the operator’s argument that safety
measures must be considered. The court pointed out that for an emergency to occur, one must
assume that all the redundant safety measures have failed. Id. at 1028-29. Importantly, the court
also concluded that “consideration of redundant safety measures is inconsistent with the
language of [section 104(d)(1)].” Id. at 1028-29. It explained that Congress intended that the
focus of the S&S inquiry be “the nature of the violation,” not the surrounding conditions. Id. at
1029. The D.C. Circuit also cited with approval the Seventh Circuit’s decision in Buck Creek, 52
F.3d at 136, for the proposition that safety measures “are irrelevant to the significant and
substantial inquiry.” Id. Accordingly, we reject the operator’s argument.
Second, Black Beauty argues that the Seventh Circuit’s decision in Buck Creek – that the
presence of safety measures “to deal with a fire does not mean that fires do not pose a serious
safety risk to miners” – did not explicitly hold that safety measures are irrelevant to all elements
of the S&S analysis. 52 F.3d at 136. We note that the Seventh Circuit’s decision is consistent
with our practice of finding that safety measures are irrelevant to all elements of the S&S
analysis, including the likelihood that a fire would occur. For example, prior to Buck Creek, we
had clarified that the exercise of caution by miners is irrelevant to the S&S analysis, including
the portion of the S&S inquiry that seeks to determine the likelihood of injury from a hazard. See
Eagle Nest, Inc., 14 FMSHRC 1119, 1123 (July 1992). This principle applies equally to the
relationship between safety measures and the S&S analysis.
Thus, the Judge erred in considering safety measures when determining that the
ventilation and accumulation violations were not S&S. Specifically, the methane monitor, fire
suppression system and devices, water sprays, CO monitors, fire brigade, breathing devices and
turnout gear for firefighters are the sort of safety measures that we, and the appellate courts, have
held to be irrelevant to the S&S analysis under the Act. We remand to the Judge to reconsider his
S&S findings for these violations in light of our ruling in this decision.
C. Unwarrantable Failure Issues
The Judge held that the accumulations violations underlying the two orders before us
were not a result of the operator’s unwarrantable failure to comply with a standard, partly
because the violations did not pose a high degree of danger.9 36 FMSHRC at 1835, 1838. The
Secretary claims that the Judge’s erroneous non-S&S findings for these orders led him to view
9

In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined
that unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id.
at 2001. Unwarrantable failure is characterized by such conduct as “reckless disregard,”
“intentional misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at 2003-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek, 52
F.3d at 136 (approving Commission’s unwarrantable failure test).

38 FMSHRC Page 1314

the available safety measures as a mitigating factor and influenced his findings as to the degree
of danger, and consequently, his determinations as to unwarrantable failure.
The Commission has recognized that whether conduct is “aggravated” in the context of
unwarrantable failure is determined by considering the facts and circumstances of each case to
determine if any aggravating or mitigating circumstances exist. Whether the conduct is
“aggravated” in the context of unwarrantable failure is determined by looking at (1) the extent of
the violative condition, (2) the length of time it has existed, (3) whether the violation posed a
high risk of danger, (4) whether the violation was obvious, (5) the operator’s knowledge of the
existence of the violation, (6) the operator’s efforts in abating the violative condition, and
(7) whether the operator had been placed on notice that greater efforts were necessary for
compliance. Brody Mining, 37 FMSHRC at 1691; Consolidation Coal Co., 35 FMSHRC 2326,
2330 (Aug. 2013); Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb. 2013); IO Coal Co., 31
FMSHRC 1346, 1351-57 (Dec. 2009).10
In particular, the Commission has relied upon the high degree of danger posed by a
violation to support an unwarrantable failure finding. See BethEnergy Mines, Inc., 14 FMSHRC
1232, 1243-44 (Aug. 1992) (finding unwarrantable failure where unsaddled beams “presented a
danger” to miners entering the area); Warren Steen Constr., Inc., 14 FMSHRC 1125, 1129 (July
1992) (finding violation to be aggravated and unwarrantable based upon “common knowledge
that power lines are hazardous, and . . . that precautions are required when working near power
lines with heavy equipment”); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988) (finding
unwarrantable failure where roof conditions were “highly dangerous”). The Commission has
specifically noted that the factor of dangerousness, by itself, may warrant a finding of
unwarrantable failure, though the absence of significant danger does not necessarily preclude a
finding of unwarrantable failure. Manalapan Mining, 35 FMSHRC at 294.
As discussed above, the Judge’s determinations that the violations in these orders were
not S&S may have been flawed due to consideration of redundant safety measures. We further
conclude that the Judge’s non-S&S findings might have influenced his view of the degree of
danger, and consequently his unwarrantable failure determinations for these orders. 11
10

A judge may determine, in his or her discretion, that some factors are not relevant or
may determine that some factors are much less important than other factors under the
circumstances. Brody Mining, 37 FMSHRC at 1692.
11

Of course, S&S violations are not synonymous with unwarrantable failures. An S&S
inquiry centers on whether a “violation is of such nature as could significantly and substantially
contribute to the cause and effect of a coal or other mine safety or health hazard.” 30 U.S.C. §
814(d)(1). An unwarrantability determination, on the other hand, involves an analysis similar to
gross negligence or reckless disregard. Sec’y of Labor v. FMSHRC, 111 F.3d at 919 (“the
Secretary and the Commission interpret the words ‘unwarrantable failure’ to require a culpability
determination similar to gross negligence or recklessness”). The Judge must analyze the relevant
factors to determine whether the operator engaged in aggravated conduct constituting an
unwarrantable failure. Emery Mining, 9 FMSHRC at 2001, 2003-04. On remand, therefore, the
Judge’s consideration of the S&S issue and unwarrantability issue will require separate analyses.

38 FMSHRC Page 1315

Accordingly, we remand this case to the Judge to reconsider his unwarrantable failure
findings for these violations in light of our ruling in this matter.
III.
Conclusion
We affirm the Judge’s determination that the modified safeguard is valid and that the
operator failed to comply with it.
We remand the Judge’s S&S and unwarrantable failure findings at issue for
reconsideration in light of our decision.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

/s/ William I. Althen
William I. Althen, Commissioner

38 FMSHRC Page 1316

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004-1710

June 24, 2016
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No.

v.

KENT 2009-820-R
KENT 2009-821-R
KENT 2009-822-R
KENT 2009-1441

HOPKINS COUNTY COAL, LLC
Before: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
DECISION
BY: Jordan, Chairman; Cohen and Nakamura, Commissioners
These contest and civil penalty proceedings arise under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”). Hopkins County
Coal, LLC (“HCC”) appeals an Administrative Law Judge’s decision upholding the validity of
two citations and one failure to abate order issued by the Department of Labor’s Mine Safety and
Health Administration (“MSHA”). The violations were issued in response to HCC’s refusal to
release personnel records to inspectors as part of a MSHA discrimination investigation. The
Secretary of Labor requires the records to determine whether there was a violation of the antidiscrimination provisions of the Act.
The issues before us are: (1) whether section 105(c) of the Mine Act authorizes the
Secretary to investigate a miner’s complaint of discrimination filed with MSHA if the complaint
does not state a specific protected activity; (2) whether the Secretary has the authority under
sections 103(a) and (h) of the Mine Act to demand access to personnel records in furtherance of
a discrimination investigation; (3) whether the personnel records sought in the subject
proceedings were “reasonably required” under section 103(h); (4) whether the “reasonable”
standard of section 103(h) mandates notice of the protected activity as a prerequisite to the
Secretary’s power to demand records; (5) whether the Secretary’s demand for personnel records
violates the operator’s Fourth Amendment rights; and (6) whether the section 104(b) order issued
to HCC was valid.
For the reasons discussed below, we affirm the Judge. We hold that pursuant to the plain
language of section 105(c) of the Mine Act, the Secretary did not exceed his authority by
investigating allegations of discrimination and that HCC’s compliance with the investigation was
required in spite of the unidentified protected activity. We hold that section 103(h) of the Mine
Act permits the Secretary to demand access to the disputed personnel records and conclude that
the records were reasonably required to enable the Secretary to perform his function of
determining HCC’s compliance with the anti-discrimination provisions of the Act. We also find
that section 103(h)’s “reasonabl[e]” standard does not require notice of the protected activity to
the operator as a prerequisite to the Secretary’s investigation or an operator’s compliance.

38 FMSHRC Page 1317

Finally, we conclude that the Secretary’s demand for records does not violate the Fourth
Amendment rights of HCC and that the section 104(b) order was properly issued.
I.
Factual and Procedural Background
A. The Factual Background
Robert Gatlin was employed as a belt examiner at HCC’s Elk Creek Mine in
Madisonville, Kentucky. On January 8, 2009, Gatlin was fired by HCC after he refused to
perform a pre-shift examination. With the assistance of a complaint processor,1 Gatlin filed a
discrimination complaint form with MSHA on January 20, 2009, and alleged that he was
discharged in violation of section 105(c) of the Mine Act, 30 U.S.C. § 815(c). 2 Specifically, the
complaint stated:
I feel that I was unfairly terminated due to being directed to do
more than my regular job duties on a daily basis, which I would do
on weekends for extra pay. I also feel that the comment about the
union played a part in my being discharged. I would like my job
back, any negative comments deleted from my personnel file and
backpay for the time I’ve been off. I feel that my name has been
black balled in the mining industry around here and they will not
hire me.
Gov. Ex. 1 at 1-2. The complaint did not set forth a protected activity as outlined in section
105(c)(2). Gatlin also requested temporary reinstatement. MSHA Supervisory Special
Investigator Kirby Smith interviewed Gatlin the next day and determined that Gatlin may have
engaged in protected activity and may have suffered adverse action.3 34 FMSHRC 789, 790
(Apr. 2012) (ALJ).
1

A complaint processor is an MSHA employee who assists miners with filling out the
MSHA complaint form.
2

30 U.S.C. § 815(c)(1) states, in pertinent part:
No person shall discharge or in any manner discriminate against . .
. or otherwise interfere with the exercise of the statutory rights of
any miner . . . because such miner . . . has filed or made a
complaint under or related to this Act, including a complaint
notifying the operator or the operator’s agent, or the representative
of the miners . . . of an alleged danger or safety or health violation
....

3

At the time of the trial, Smith had been a special investigator for approximately five
years, routinely investigating section 105(c) discrimination complaints. He had investigated
approximately 75 discrimination complaints while serving in this position. Tr. 32-33.

38 FMSHRC Page 1318

On January 26, 2009, the MSHA District Manager, Carl E. Boone, II, advised HCC by
letter that MSHA wanted to interview five named miners in response to Gatlin’s discrimination
complaint “during the fact-finding segment of this investigation.” Gov. Ex. 2. Boone requested
that HCC contact MSHA Special Investigators Smith or Rodney Adamson by February 6 “with a
convenient date and time to conduct these interviews.” Id. In a letter dated February 6, counsel
for HCC refused to arrange the requested interviews unless MSHA identified the protected
activity alleged in the complainant’s discrimination claim. Gov. Ex. 3.
On February 23, 2009, Boone sent HCC’s counsel a letter requesting a number of
documents, including Gatlin’s personnel file and the “personnel files of all employees at the Elk
Creek Mine who were disciplined, reprimanded or terminated during the period of January 1,
2004 – January 20, 2009 for engaging in the conduct which led to the termination of Robert
Gatlin.” Gov. Ex. 4. This request would later be clarified. MSHA requested that the documents
be provided to Smith by the close of business on March 2, 2009. After the exchange of several
letters, HCC eventually agreed to provide the requested documents, except for the personnel
files.
In letters discussing MSHA’s document request, HCC made repeated requests for
clarification of the protected activity alleged by Gatlin, and declared in its March 23 letter that if
MSHA could not provide the protected activity, which HCC was entitled to know, “then the
agency has no case to investigate, no jurisdiction, no entitlement and no basis upon which to
make any request.” Gov. Ex. 9. MSHA never responded.
On March 23, Investigators Smith and Adamson arrived at the mine. After reviewing the
examination books, the investigators requested the personnel files, which the mine’s general
manager, William Adelman, refused to provide on the grounds that the request was vague and
that privacy concerns prevented release of the files. Tr. 119-20. Smith then issued section
104(a) Citation No. 6694904 alleging that HCC violated sections 103(a) and (h) of the Act by
failing to produce the requested records.4
Smith gave HCC until 9:00 a.m. (45 minutes) to abate the violation, but at 8:50 a.m.
Adelman informed Smith that he had spoken to counsel and he did not intend to comply. Smith
waited until 9:00 a.m. and then issued section 104(b) withdrawal Order No. 6694905, stating
that: “The [operator‘s] agent . . . refused to comply with Citation No. 6694904 requiring the
operator to produce/provide records requested by MSHA Special Investigators during the
performance of their official duties in the investigation activities under [section] 105(c) of the
Mine Act.” Gov. Ex. 11. The order was designated “No area affected,” and no miners were
withdrawn.
After another five minutes, the requested documents still were not produced and at 9:05
a.m., Smith issued another section 104(a) citation, No. 6694906, to HCC for continuing to work
in the face of a section 104(b) withdrawal order. He set an abatement time of 10:00 a.m. When

4

Sections 103(a) and (h) of the Mine Act provide the Secretary with broad authority to
inspect and investigate mines and to request records of mine operators. 30 U.S.C. § 813(a) and
(h).

38 FMSHRC Page 1319

the citation was not abated, HCC became subject to the provisions of section 110(b)(1) of the
Act, which imposes daily civil penalties of up to $5,000 a day. 30 U.S.C. § 820(b)(1).
Later that day, HCC filed notices of contest with the Commission and shortly thereafter, a
motion requesting an expedited hearing, which the Secretary opposed. The following day, in a
conference call with a Commission ALJ, HCC received clarification that MSHA sought the
personnel records of similarly situated miners who had been disciplined for insubordination.
Tr. 56, 91, 156-58, 161-62. On March 26, HCC produced Gatlin’s personnel file and the
redacted files of four other employees. In a March 27 conference call, the parties informed the
Judge that abatement of the citations and order had occurred one day prior, thereby ending
HCC’s continuing liability under section 110(b)(1) and obviating the need for an expedited
hearing. The Judge then issued an order denying HCC’s motion to expedite. The parties then
filed cross-motions for summary decision.
B. The Judge’s Decision
In his April 2, 2012 decision, the Judge upheld the citations and order. 34 FMSHRC at
789. He rejected HCC’s argument that section 103 of the Act does not authorize the Secretary to
request personnel files during a discrimination investigation. He determined that because
investigating discrimination claims is a function of the Secretary, information relevant to
assessing the merits of those claims is “reasonably required.” The Judge found the Secretary’s
interpretation of sections 103(a) and (h) reasonable and entitled to deference. 34 FMSHRC at
803. He determined that the requirement in section 103(h) that the information sought be
“reasonably required” obligates the Secretary to have a reasonable understanding of the
complainant’s claim prior to making a document request. He found that Smith had credibly
testified that he had a reasonable understanding of Gatlin’s claim before making the request, and
rejected HCC’s claim that the request was a fishing expedition. Id. at n.15. 5
The Judge rejected HCC’s Fourth Amendment challenge on the grounds that under
Donovan v. Dewey, 452 U.S. 594, 604 (1981), warrantless inspections under the Mine Act are
permissible because the mining industry is pervasively regulated, and the certainty and regularity
of the Act’s inspection scheme provide an adequate substitute for a warrant. He further stated
that the Secretary’s interest in promoting miner safety outweighs HCC’s general interest in its
personnel records. 34 FMSHRC at 798-99.

5

Investigator Smith testified that by February 6, he had not yet established a protected
activity, but based on allegations made by Gatlin in the interview, Smith began looking into the
possibility of a protected activity related to determining and reporting safety hazards. Tr. 46-48.
Specifically, Gatlin alleged that as a belt examiner he had been required to perform work beyond
his regular job duties, which made his job so burdensome that he did not have enough time to
correct the safety hazards he found. He alleged that as a result, he began citing more hazardous
conditions in the pre-shift and on-shift exam books. Gatlin stated that he had been told that he
did not necessarily have to record a hazard if it was corrected. Tr. 47-48.

38 FMSHRC Page 1320

The Judge disagreed with HCC’s contention that section 104(b) orders cannot be issued
for violations where there is no “area affected.” He concluded that the provision’s language as to
whether an affected area must be identified and whether miners must be withdrawn is unclear.
He accorded deference to the Secretary’s interpretation that he may exercise his discretion in
deciding to designate an order as “no area affected” and in declining to withdraw miners. Id. at
804-05.
II.
Disposition
A. Whether the Secretary had authority to investigate Gatlin’s complaint of discrimination
although it failed to identify a protected activity.
HCC argues that because Gatlin’s MSHA complaint failed to allege a specific protected
activity, the Secretary had no basis, and therefore no authority, to carry out an investigation on
the miner’s behalf. 6 The Secretary counters that the Mine Act authorizes MSHA to investigate
every discrimination complaint filed by a miner, regardless of whether it alleges every element
of a prima facie case of discrimination.7
We first turn our attention to the language of the statute. In considering the question of
statutory construction, our first inquiry is “whether Congress has directly spoken to the precise
question at issue.” Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842
(1984); Thunder Basin Coal Co., 18 FMSHRC 582, 584 (Apr. 1996). If a statute is clear and
unambiguous, effect must be given to its language. See Chevron, 467 U.S. at 842-43; accord
Local Union 1261, UMWA, 917 F.2d 42, 44 (D.C. Cir. 1990). In ascertaining the meaning of the
statute, courts utilize traditional tools of construction, including an examination of the “particular
statutory language at issue, as well as the language and design of the statute as a whole,” to
determine whether Congress had an intention on the specific question at issue (“Chevron I”
analysis). Id.; Local Union 1261, UMWA v. FMSHRC, 917 F.2d at 44; Coal Employment
Project v. Dole, 889 F.2d 1127, 1131 (D.C. Cir. 1989). If a statute is ambiguous or silent on a
point in question, deference is accorded to the interpretation of the agency charged with
administering the provision in question, provided that the interpretation is reasonable (Chevron
II” analysis). See Chevron, 467 U.S. at 843-44; Energy West Mining Co. v. FMSHRC, 40 F.3d
457, 460 (D.C. Cir. 1994).
6

The Secretary argued in his response brief that the Commission should decline to
consider this argument because HCC raised it for the first time on appeal. However, based on
our review of the record, we conclude that the argument was adequately raised below and that
the Judge had an opportunity to pass on the question. Accordingly, we will consider the issue.
7

In order to establish a prima facie case of discrimination under section 105(c), a
complainant must present evidence demonstrating that (1) the individual engaged in protected
activity, (2) that there was an adverse action, and (3) that the adverse action complained of was
motivated in any part by that activity. See Pasula v. Consolidation Coal Co., 2 FMSHRC 2786
(Oct. 1980); UMWA o/b/o Franks & Hoy v. Emerald Coal Res., LP, 36 FMSHRC 2088, 2093
(Aug. 2014).

38 FMSHRC Page 1321

Section 105(c)(2) of the Mine Act authorizes the Secretary to investigate a complaint of
discrimination upon the filing of a complaint. Specifically, the Act states that:
Any miner or applicant for employment or representative of miners who
believes that he has been discharged, interfered with, or otherwise
discriminated against . . . may . . . file a complaint with the Secretary
alleging such discrimination. Upon receipt of such complaint, the
Secretary shall forward a copy of the complaint to the respondent and
shall cause such investigation to be made as he deems appropriate. . . . If
upon such investigation, the Secretary determines that the provisions of
this subsection have been violated, he shall immediately file a complaint
with the Commission . . . .
30 U.S.C. § 815(c)(2) (emphasis added).
According to the statutory language, a miner’s mere belief that he or she has been
discriminated against and the filing of the MSHA complaint form expressing that belief are
sufficient grounds to trigger an investigation of discrimination by the Secretary. The statute does
not include a requirement that the miner state the protected activity that allegedly motivated the
adverse action, nor that he proclaim any other element of a prima facie case of discrimination. In
fact, beyond the miner alleging his belief of discrimination, the provision says nothing of form or
content of the miner’s charging complaint. Compare Title VII of the Civil Rights Act of 1964,
42 U.S.C.A. § 2000e-5(b) (requiring through regulation that a charge contain “[a] clear and
concise statement of the facts, including pertinent dates, constituting the alleged unlawful
employment practices.” 29 C.F.R. § 1601.12(a)(3)).8 The statutory provision here is silent on
whether the miner’s charging complaint must specifically identify a protected activity.
Although the legislative history is equally silent in this regard, it does provide a useful
context for the proper consideration of protected activity, as well as how section 105(c) should
be administered. Specifically, Congress was clear that “[t]he listing of protected rights contained
in section 10[5](c) is intended to be illustrative and not exclusive, and that “the scope of the
protected activities be broadly interpreted by the Secretary.” S. Rep. No. 181, 95th Cong., 1st
Sess. 35-36 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine Safety and Health Act
of 1977, at 623-24 (1978). It further stated that section 105(c) was to be construed “expansively
to assure that miners will not be inhibited in any way in exercising any rights afforded by the
legislation.” Id. at 36. It went on to say that “[i]t is the Committee’s intention to protect miners
8

EEOC v. United Air Lines, Inc., 287 F.3d 643 (7th Cir. 2002), relied upon by our
dissenting colleagues for the proposition that the Seventh Circuit will not enforce administrative
subpoenas absent a cognizable claim of discrimination, is inapposite. Slip op. at 8. In that Title
VII case, alleging discrimination on the basis of national origin and sex because of the airline’s
failure to make contributions to the French social security system, the threshold sufficiency of
the charge was not at issue. 287 F.3d at 651 (“UAL does not point to any infirmities in the
charge.”). Rather, the Court rejected a records request that extended far beyond the inquiry into
the airline’s social security payments and that would have taken five full-time employees more
than a year to satisfy. Id. at 648, 655. That is not the situation here. See Tr. 130.

38 FMSHRC Page 1322

against not only the common forms of discrimination, such as discharge, suspension, demotion . .
. but also against the more subtle forms of interference . . . . The bill requires the Secretary to
rigorously enforce these rights with discrimination complaints receiving high priority.” Id.;
Pasula, 2 FMSHRC at 2789 (“[T]he 1977 Mine Act is remedial legislation, and is therefore to be
liberally construed.”). Therefore, even if the complainant does not assert a protected activity
expressly protected under the Act, the activity may still be protected if it furthers the purpose of
the legislation. Pasula, 2 FMSHRC at 2789.
The Act does not prohibit the commencement of the Secretary’s investigation until a
protected activity or actionable cause can be articulated. Instead, the Act requires that the
Secretary investigate “upon receipt” of the complaint, “as he deems appropriate.” 30 U.S.C.
§ 815(c)(2); see also S. Rep. No. 95-181 at 36-37 (1977) (“The Secretary’s investigation of
matters alleged in the complaint must commence within fifteen days of receipt of the
complaint.”).9 The statutory language and the legislative history together make clear that an
investigation deemed appropriate by the Secretary should be afforded to every “miner . . . who

9

Our dissenting colleagues’ reliance on Wilson v. Farris, 38 FMSHRC 341 (Feb.
2016)(ALJ), is misplaced. Slip op. at 4-5. Wilson was a discrimination case, in which MSHA
had determined, after investigation, that a violation of section 105(c) had not occurred. The
complainant then filed an action under section 105(c)(3), and subsequently requested discovery
from the respondents. As the dissent notes, the administrative law judge denied the discovery
request and granted summary decision to the respondents because the complainant had not
alleged a cognizable claim of discrimination. The clear difference between Wilson and the
present case is that here the document request is being made by MSHA in carrying out its
statutorily-mandated duty to investigate the complaint.
Likewise, our dissenting colleagues’ reliance on Hatfield v. Colquest Energy, Inc., 13
FMSHRC 544 (Apr. 1991) is misplaced. In Hatfield, the Commission reviewed a judge’s order
denying a motion to strike a miner’s amended 105(c)(3) complaint. The dissent cites Hatfield for
the proposition that a miner’s private complaint filed with the Commission pursuant to section
105(c)(3) is limited by the terms of the miner’s initial complaint filed with MSHA. Slip op. at 4.
We read Hatfield somewhat differently. The Commission remanded the case to the Judge to
determine if the protected activities cited in the miner’s amended section 105(c)(3) complaint
“[were] investigated by the Secretary in connection with Hatfield’s initial discrimination
complaint to MSHA.” 13 FMSHRC at 546. Although Hatfield’s initial complaint was “general
in nature” and “allege[d] no specific protected activities” the Commission reasoned that the
statutory scheme of the Mine Act “provides to miners a full administrative investigation and
evaluation of an allegation of discrimination” prior to the miner’s private right of action. Id.
Thus, the Commission held that it was not the terms of the initial complaint to MSHA that
controlled whether the amended complaint could go forward, but the Secretary’s investigation of
the initial complaint. This holding acknowledges that the Secretary has the authority to
investigate possible discriminatory acts, even if the miner’s initial complaint is deficient.

38 FMSHRC Page 1323

believes that he has been discriminated against” and has “file[d] a complaint with the Secretary
alleging such discrimination.” 30 U.S.C. § 815(c)(2).10
There may be instances where a protected activity cannot be set forth because the miner
does not actually engage in protected activity, but may nonetheless experience adverse action as
a result of the operator’s erroneous suspicion that the miner has engaged in such activity. See
Moses v. Whitley Dev. Corp., 4 FMSHRC 1475 (Aug. 1982), aff’d, 770 F.2d 168 (6th Cir. 1985).
In such situations, the miner is hardly the best person to draw the necessary legal distinction
between a claim where he has exercised his rights and one in which he has not exercised them,
but where his employer has sought to interfere with his ability to do so. He may not understand
that such interference is still prohibited under the Mine Act.
Indeed, Supervisory Special Investigator Smith testified that “[a] lot of times in the fact
finding segment [of the investigation], miners don’t even know their miner’s rights. They don’t
know what to tell you. They don’t know the key phrases, and when we go and investigate and
talk with them, we try to pull that.” Tr. 52-53. He further testified that the majority of
discrimination claims that cross his desk do not clearly set forth a protected activity. Tr. 37.
Thus, in cases where a miner is uninformed or unclear about what constitutes a protected activity
but believes that he or she has been wronged by an employer, the Secretary’s investigation into
this “belief” serves as a necessary safety mechanism that ensures the miner has the opportunity
to fully develop his possible claim of discrimination.11
The dissent expresses concern that MSHA “was seeking to find a basis for a claim that
had not been made by the miner.” Slip op. at 2. However, Investigator Smith testified that based
on allegations made by Gatlin in the interview, he began looking into the possibility of a
protected activity related to determining and reporting safety hazards. Tr. 46-48. Specifically,
Gatlin alleged that as a belt examiner he had been required to perform work beyond his regular
job duties, which made his job so burdensome that he did not have enough time to correct the
safety hazards he found. Gatlin alleged that as a result, he began citing more hazardous
conditions in the pre-shift and on-shift exam books. Gatlin stated that he had been told that he
did not necessarily have to record a hazard if it was corrected. Tr. 47-48. Thus, based on the
10

Investigator Smith testified that MSHA formerly had a practice of assessing whether
protected activity had occurred in section 105(c) complaints based solely on what the
complainants initially reported. This resulted in some complainants being turned away without
an investigation if protected activity was not apparent. After miners complained to Congress that
they were being turned away without an investigation on the merits, MSHA changed the
practice, and discovered that complainants did not know their rights as miners (for example, to
complain to management about hazardous conditions), and thus sometimes did not articulate
protected activity in their complaints although it had occurred. Tr. 110-11.
11

MSHA’s initial interview with the miner can provide the investigator with much
needed clarity regarding the allegations, and can possibly lead to the discovery of other violative
conduct the miner did not know to allege or had trouble articulating in his charging complaint.
See Tr. 53, 80.

38 FMSHRC Page 1324

interview, MSHA determined that it had a basis to investigate Gatlin’s allegations as a possible
violation of section 105(c), even though protected activity was not specifically alleged in
Gatlin’s written complaint. This is precisely what the Mine Act contemplates in section
105(c)(2) by creating a provision for MSHA to investigate a complaint made upon a miner’s
“belie[f].” The judge credited the investigator’s testimony, finding that he had an understanding
of the miner’s claim and “did not . . . embark on a ‘fishing expedition.’” 34 FMSHRC at 803
n.15. The dissent’s contention that the inspector failed to describe Gatlin’s possible protected
activity or how it could have related to adverse action, slip op. at 6, n. 7, is incorrect.12
The Act requires that the Secretary’s investigation “commence within 15 days of the
Secretary’s receipt of the complaint, and if the Secretary finds that such complaint was not
frivolously brought, the Commission, on an expedited basis upon application of the Secretary,
shall order the immediate reinstatement of the miner pending final order on the complaint.”
30 U.S.C.A. § 815(c)(2). In its discussion of the provision, Congress explained that “[u]pon
determining that the complaint appears to have merit, the Secretary shall seek an order of the
Commission temporarily reinstating the complaining miner pending final outcome of the
investigation.” S. Rep. No. 95-181 at 36-37 (1977) (emphasis added). Thus, it is during this
preliminary investigation that the Secretary must determine only whether there may be validity to
the miner’s claim, or in other words, that the claim was “not frivolously brought.” See Jim
Walter Res., Inc. v. FMSHRC, 920 F.2d 738, 747 (11th Cir. 1990), citing S. Rep. No. 95–181.13
It appears that HCC confuses the minimal requirements that must be satisfied to trigger
the Secretary’s section 105(c) investigative power with the threshold requirements that must be
met before the Commission in order to establish that a miner’s case is not being frivolously
12

Commissioner Cohen notes that our dissenting colleagues also state: “It is difficult to
believe that the majority actually thinks MSHA has authority to investigate every adverse
employment action in the mining industries through sweeping document demands about
uninvolved employees without any alleged basis in section 105(c). Yet that is the inevitable
outcome of its decision.” Slip op. at 3-4. The short answer is that we don’t believe that MSHA
has authority to investigate “every adverse employment action in the mining industries through
sweeping document demands,” nor does MSHA. The document demands were made in this case
only after Inspector Smith determined, based on his interview with Gatlin, that discrimination
under the Act may have occurred. As noted above, the Judge found that MSHA’s document
request was not a “fishing expedition.”
13

In Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 214-16 (1946), the Supreme
Court upheld an administrative subpoena issued by the Secretary of Labor seeking records
during investigation to determine whether a company was violating the Fair Labor Standards
Act. In relying on the statute which conferred subpoena power to aid the Department of Labor in
enforcement and in investigations to determine compliance, the Court rejected the company’s
argument that without charge or complaint, Labor’s subpoena amounted to a fishing expedition
to secure information on which to base a charge. It stated that “[t]he very purpose of the
subpoena and of the order, as of the authorized investigation, is to discover and procure
evidence, not to prove a pending charge or complaint, but upon which to make one if, in the
Administrator’s judgment, the facts thus discovered should justify doing so.” Id. at 201.

38 FMSHRC Page 1325

brought. The “not frivolously brought standard” has been deemed the functional equivalent to
the “reasonable cause to believe” standard. Id. at 748, n.10. As one Commission Judge has
noted, in practice, in order to prevail on this very low burden of proof, the Secretary need only
establish protected activity and one of the circumstantial indicatives of motive. Comunidad
Agricola Bianchi, Inc., 32 FMSHRC 206, 211 n.9 (Feb. 2010) (ALJ). However, the threshold
for initiating the Secretary’s investigative power is even lower. It only requires the filing of a
complaint with MSHA. It does not require that the Secretary establish protected activity before
it may investigate, because whether or not a protected activity exists is determined during the
preliminary investigation, not before.14
HCC’s theory that the Secretary’s investigative authority rests solely on the initial
statements of the complaining miner is contrary to the statute’s language, Congressional intent,
and the purpose of the provision.15
B. Whether the Secretary’s records demand was authorized under section 103 of the Act.
1. The Secretary has the right to obtain records an operator is not legally required to
maintain.
HCC maintains that section 103(a) does not grant the Secretary the right to compel the
production of documents, and that his authority under section 103(h) is limited to records that an
operator must keep to allow the Secretary to conduct his functions under the Mine Act. We
disagree.
In Big Ridge, Inc., 34 FMSHRC 1003, 1012-13 (May 2012), aff’d,715 F.3d 631, 638 (7th
Cir. 2013), we upheld the Secretary’s right to inspect and copy records, (including personal
medical information) not required by law to be maintained, in order for the Secretary to
determine compliance with Part 50 accident reporting requirements. We emphasized that the
Secretary has broad authority to conduct inspections and investigations under section 103(a).
See Big Ridge, 34 FMSHRC at 1012; Tracey & Partners, 11 FMSHRC 1457, 1464 (1989). That
14

See United States v. Powell, 379 U.S. 48, 58 (1964) (holding that agency need not
meet any standard of probable cause to obtain enforcement of administrative summons); In re
Subpoena Duces Tecum, 228 F.3d at 348, citing Oklahoma Press, 327 U.S. at 213 (finding that if
the issuance of investigative subpoenas were based upon showings of probable cause, “the result
would be the virtual end to any investigatory efforts by governmental agencies . . . .”).
15

The Commission has previously held that “the Secretary’s decision to proceed with a
complaint to the Commission, as well as the content of that complaint, is based on the
Secretary’s investigation of the initiating complaint to [him], and not merely on the initiating
complaint itself.” Sec’y o/b/o Callahan v. Hubb Corp., 20 FMSHRC 832, 837 (Aug. 1998); see
Sec’y o/b/o Dixon v. Pontiki Coal Corp., 19 FMSHRC 1009, 1017 (June 1997); Hatfield, 13
FMSHRC at 546. If the content of a discrimination complaint filed with the Commission is
based on that which is uncovered during the Secretary’s investigation, then it follows that the
Secretary’s authority to investigate in the first instance cannot be circumscribed by the early and
often uninformed statements made by a miner in his charging complaint.

38 FMSHRC Page 1326

provision states in relevant part that “the Secretary . . . shall make . . . investigations in . . . mines
. . . for the purpose of . . . determining whether there is compliance with the mandatory health or
safety standards . . . or other requirements of this chapter.” 30 U.S.C. § 813(a). Thus, the
language of section 103(a) generally authorizes the Secretary to verify, through investigation,
operator compliance with the anti-discrimination requirements of section 105(c) of the Act.
Section 103(h) states that:
In addition to such records as are specifically required by this
chapter, every operator of a . . . mine shall establish and maintain
such records . . . and provide such information, as the Secretary
. . . may reasonably require from time to time to enable him to
perform his functions under this chapter.
30 U.S.C. § 813(h) (emphasis added). We held in Big Ridge that the plain language of section
103(h) provides a broad Congressional grant of authority to the Secretary to carry out his
functions under the Act. 34 FMSHRC at 1012, aff’d,715 F.3d at 638; see also Energy West
Mining Co. v. FMSHRC, 40 F.3d 457 (D.C. Cir. 1994) (recognizing broad scope of section
103(h)).
Section 103(h) does not restrict the Secretary’s access to records that are specifically
required to be maintained by the Act and regulations. Big Ridge, 34 FMSHRC at 1012, aff’d 715
F.3d at 641-42; see also BHP Copper, Inc., 21 FMSHRC 758, 766 (July 1999). In fact,
“Congress rejected earlier proposed versions of this section, which had limited the Secretary’s
access to operators’ records to those specific records which the Secretary had ‘prescribe[d] by
regulation.’ S. 717, 95th Cong., at 20, reprinted in Leg. Hist. at 129; H.R. 4287, 95th Cong., at
20, reprinted in Leg. Hist. at 207.” Big Ridge, 34 FMSHRC at 1013.
In its decision in Big Ridge, the Seventh Circuit stated that section 103(h) provides that
“MSHA may ‘reasonably require’ mines to produce non-required records when the additional
information would enable MSHA ‘to perform [its] functions’ under the Act. This text permits
MSHA to make information demands for a wide range of purposes—any reasonable requirement
that would help MSHA fulfill the purposes of the Mine Safety Act.” Big Ridge, 715 F.3d at 641;
see also S. Rep. No. 95-461, at 47 (1977), reprinted in Senate Subcomm. on Labor, Comm. on
Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 1325
(1978) (“the House amendment . . . authorized the Secretary to require records, reports, and other
information not otherwise specified by the Act.”).
Accordingly, we conclude that section 103(h) broadly authorizes the Secretary to request
access to records not required to be kept by operators, as long as the records are “reasonably
require[d]” to enable him to perform his function under the Mine Act.
2. The personnel records were “reasonably required.”
We now consider whether the Secretary’s demand satisfies the requirements of section
103(h). We conclude that the personnel records requested by the Secretary are “reasonably

38 FMSHRC Page 1327

require[d] . . . to enable him” to carry out his investigative “functions” under sections 105(c) and
103 of the Act. 30 U.S.C. § 813(h).16
The request for personnel records by the Secretary was reasonable because it met the
standard set forth by the Seventh Circuit in Big Ridge, as it was “sufficiently limited in scope,
relevant in purpose, and specific in directive so that compliance will not be unreasonably
burdensome.” 715 F.3d at 646 (quoting See v. City of Seattle, 387 U.S. 541, 544 (1967)). 17
First, the records demand was sufficiently limited in scope, as it was tailored to capture
only records of employees who had been disciplined, reprimanded, or terminated for engaging in
the same or similar conduct as Mr. Gatlin. The scope was further limited by the time frame
covered and the manner of inspection. Specifically, the time period was limited to records from
the last five years. This is a reasonable window of time for capturing any relevant information
given that the records sought would contain a discrete type of employee conduct. The manner
was limited to MSHA’s request to inspect and copy the records and did not include the agency
rummaging through the files of HCC.

16

Contrary to the operator’s assertion at oral argument (Oral Arg. Tr. 12-19), the
“relevant and necessary” standard applied in Big Ridge is not applicable here. That standard was
imposed by regulation and applies to the Secretary’s power to demand records in the context of
Part 50 audits. There is no applicable regulation here; thus, there are no regulatory requirements
the Secretary’s record demand must satisfy.
17

The Seventh Circuit used this well-established standard for purposes of determining if
the Secretary of Labor’s demand for information from a mine operator was in accordance with
the Fourth Amendment. Big Ridge, Inc., 715 F.3d at 646 (citing See v. City of Seattle, 387 U.S.
541, 544 (1967). The Circuit adopted this standard because it recognized that the Secretary’s
request for information and records from an operator pursuant to section 103(h), for Fourth
Amendment purposes, “amounts to an administrative subpoena in substance.” Id. In order to
create a test for determining whether a request by the Secretary under section 103(h) is
“reasonably required . . . to enable him to carry out his investigative functions,” it is appropriate
for the Commission to apply the standard used to evaluate subpoenas under the Fourth
Amendment.
In Warrior Coal, LLC, the Commission therefore applied this standard when determining
that the Secretary’s request was “reasonable” as required by section 103(h). Warrior Coal, LLC,
38 FMSHRC ___, slip op. at 5-8, KENT 2011-1259-R et al. (May 17, 2016), appeal docketed,
No. 16-3646 (6th Cir. June 15, 2016). The limitations placed on the Secretary’s information
requests by the application of this standard appropriately balances the Secretary’s authority
against the burden of compliance placed on the mine operator and the possibility of government
overreach.

38 FMSHRC Page 1328

Second, these specific directives also made compliance with the request manageable and
not unreasonably burdensome, which is evidenced by Adelman’s statement that it only took them
“a few hours” to gather the requested files. Tr. 130; see also infra at 15.
Third, the personnel records were relevant to the purpose of a discrimination
investigation. 34 FMSHRC at 803. They were critical aids in the Secretary’s determination of
disparate treatment, which is relevant to a finding of discrimination. Investigator Smith testified
that Gatlin’s personnel file would show his work history, including any disciplinary action taken
against him, to find any information corroborating Gatlin’s allegations and to determine his
general credibility. Tr. 56, 68. The personnel files of other similarly situated employees were
requested in order to determine whether there was evidence of disparate treatment. Tr. 56, 91;
34 FMSHRC at 792.
Further, the request enables the Secretary to carry out his investigative functions under
sections 105(c) and 103(a). See Big Ridge, 34 FMSHRC at 1017. Verifying operator
compliance with the Mine Act is one of the express purposes for which section 103(a) authorizes
MSHA to inspect and investigate mines, see Big Ridge, 715 F.3d at 642, and verifying HCC’s
compliance with section 105(c) falls squarely within this function. This type of inquiry is
particularly important because the Act protects miners against discrimination in order to
encourage their active role in improving mine safety. Swift v. Consolidation Coal Co., 16
FMSHRC 201, 205 (Feb. 1994).
Congress specifically stated that: “If our national mine safety and health program is to be
truly effective, miners will have to play an active part in the enforcement of the Act. . . . [I]f
miners are to be encouraged to be active in matters of safety and health, they must be protected
against any possible discrimination which they might suffer as a result of their participation.” S.
Rep. No. 95-181 at 35, Leg. Hist. at 623. “The [discrimination] complaint procedure, therefore,
serves an important function in accomplishing the legislation’s broader goals of improving mine
safety and protecting miners.” Vulcan Const. Materials, LP v. FMSHRC, 700 F.3d 297, 302 (7th
Cir. 2012). As the Judge stated, “[w]here the Secretary’s function is the evaluation of a
discrimination claim, information that is relevant to assessing the merits of that claim, including
evidence of protected activity, adverse action or discriminatory intent may be ‘reasonably
required.’” 34 FMSHRC at 803.
Accordingly, we hold that records that tend to establish or disprove an element of a prima
facie case of discrimination generally are, in our view, reasonably required to enable the
Secretary to perform his investigative function under section 105(c) of the Mine Act.
3. HCC is not entitled to “notice” prior to MSHA commencing an investigation.
HCC also asserts that MSHA was required to provide it with a threshold level of “notice”
of the protected activity so that HCC could determine whether a colorable claim was being
alleged and whether its compliance was required. We disagree. The statute does not entitle
HCC to “notice” of the protected activity, and therefore, “notice” is not a prerequisite to the
Secretary’s investigation or to an operator’s compliance with the investigation.

38 FMSHRC Page 1329

We first begin by noting that HCC misconstrues its authority. The Mine Act does not
permit the operator to determine the scope or dictate the direction of an MSHA compliance
investigation. According to section 105(c), the Secretary “shall cause such investigation to be
made as he deems appropriate.” 30 U.S.C. § 815(c) (emphasis added). Thus, this duty is
committed to the sole discretion of the Secretary. The Mine Act also does not allow the operator
to determine if a colorable claim has been alleged. That initial determination is also made by the
Secretary and only reached after he has investigated to an extent that he has deemed appropriate.
Section 105(c)(2) requires that once a miner who believes that he has suffered
discrimination files a complaint with MSHA, “[u]pon receipt of such complaint, the Secretary
shall forward a copy of the complaint to the respondent and shall cause such investigation to be
made as he deems appropriate.” 30 U.S.C. § 815(c)(2) (emphasis added). The language says
nothing about providing “notice.” Under a plain reading, the Secretary is only required to
forward a copy of the complaint, as filed by the miner, to the operator. As previously noted, the
provision contains no guidance on what a charging complaint must include. There is also no
language that suggests the Secretary must provide to the operator anything more than a “copy” of
what the miner has filed before he may commence his investigation into the complaint.18
Congress did, however, intend for section 105(c) to be construed broadly to ensure that miners
would not be hindered in any way in exercising their rights. Consequently, we have no basis to
read conditions into the Act that might further complicate a miner’s process for exercising his
rights under this section.
18

In similar instances, Congress has chosen not to impose specific content requirements
on a charging complaint or a service of notice requirement on the agency involved. See, e.g.,
United States v. Woerth, 130 F. Supp. 930, 943 (N.D. Iowa 1955), aff’d, 231 F.2d 822 (8th Cir.
1956) (“There is no provision in the [Packers and Stockyards] Act or in any of the regulations
promulgated thereunder that the contents of a complaint against a registrant be made known to
him before an investigation may be made of his records in connection therewith.”); Solis v.
Laborer’s Int’l Union of N. Am., 775 F. Supp. 2d 1191, 1212 (D. Haw. 2010) (rejecting
respondent’s argument that prior to release of any records the Secretary of Labor must provide
the nature of and identify specific allegations of the election challenge, and concluding that “[i]t
is evident from reading the LMRDA that Congress intended that the Secretary exercise broad
authority in investigating labor unions, such that ‘[t]he Secretary is not required to demonstrate
probable cause exists to launch a LMRDA investigation.’ McLaughlin, 880 F.2d at 174.”);
EEOC v. Merrill Lynch, Pierce, Fenner & Smith, 677 F. Supp. 918, 926 (N.D. Ill. 1987) (holding
that the EEOC was not required to give employer Title VII notice of sex discrimination charge
before commencing investigation or requesting disputed report from employer under Equal Pay
Act and Fair Labor Standards Act).
In contrast, certain other statutes specifically impose a notice requirement. For instance,
Title VII originally required that the EEOC simply provide a copy of a charge to the employer
accused of discrimination. Pub.L. 88-352, § 706(a), 78 Stat. 259. However, in 1972, the
provision was amended to require that the Commission “serve a notice of the charge (including
the date, place and circumstances of the alleged unlawful employment practice) on [the]
employer . . . within ten days” of the charge being filed. 42 U.S.C. § 2000e-5(b); see also EEOC
v. Shell Oil Co., 466 U.S. 54, 63 (1984).

38 FMSHRC Page 1330

HCC additionally asserts that notice is required here because it is analogous to the notice
to service of process in a civil suit, which is to give the party notice of a claim or charge being
filed against it. Oral Arg. Tr. 9. However, this is not the proper context in which to view the
miner’s complaint to MSHA or the Secretary’s investigatory power. HCC erroneously seeks to
apply the procedures associated with formal court proceedings to the Secretary’s pre-proceeding
investigation.
The miner’s charging complaint here is not a pleading and does not initiate a formal
section 105(c)(2) proceeding before the Commission. The miner’s complaint only serves as the
mechanism by which the Secretary’s investigative function is activated. It is the predicate to,
and not the result of, the Secretary’s determination that the Mine Act has been violated. See U.S.
v. Morton Salt Co., 338 U.S. 632, 641-43 (1950) (drawing distinction between the judicial
process and the administrator’s function of investigating). In this regard, we find NLRB
precedent helpful:
A charge does not initiate a formal . . . proceeding against a party.
[It] is filed by a private party and “serves merely to set in motion
the investigatory machinery of the Board.” Texas Indus., Inc. v.
NLRB, 336 F.2d 128, 132 (5th Cir. 1964). . . . The charge “is not
designed to give notice to the person complained of . . . Once . . .
filed, the Board decides whether to issue a complaint, terminate the
investigation as unfounded, or dispose of the matter through
informal methods. Before [filing] a complaint, the action remains
purely investigatory; no parties or judicial hearings exist.
NLRB v. H.P. Townsend Mfg. Co., 101 F.3d 292, 294-95 (2d Cir. 1996) (internal citations
omitted); see also Russell-Newman Mfg. Co. v. NLRB, 407 F.2d 247, 249 (5th Cir. 1969).
Consistent with our holding in Big Ridge, we conclude that section 103(h) broadly
authorizes the Secretary to request access to personnel records not specifically required to be
kept by operators, as long as the records are “reasonably require[d]” to allow the Secretary to
perform his function of investigating complaints of discrimination made pursuant to section
105(c) of the Mine Act.
C. Whether the Secretary’s demand violates HCC’s Fourth Amendment rights.
HCC argues that MSHA infringed upon its constitutional rights by seeking to conduct a
warrantless search of operator records that are not required to be kept under the Mine Act and
that are not reasonably required by MSHA to perform its functions under the Act. It also asserts
that MSHA’s demand was unreasonable because the records were not necessary to determine
compliance, the records were irrelevant to the statutory scheme, and the request was overbroad
and burdensome.

38 FMSHRC Page 1331

1. The inspection was reasonable under Donovan v. Dewey.
Recognizing that mining is a pervasively regulated industry, the Supreme Court has
upheld warrantless inspections under the Mine Act using a three-part test. Donovan v. Dewey,
452 U.S. 594, 599, 601-05 (1981). The Court held that an inspection is reasonable if it is: (1)
authorized by law; (2) necessary for the furtherance of federal interests; and (3) the occurrence is
not “so random, infrequent, or unpredictable that the owner, for all practical purposes, has no
real expectation that his property will from time to time be inspected by government officials.”
Id. at 599; see also Colonnade Catering Corp. v. United States, 397 U.S. 72, 77 (1970); Marshall
v. Barlow’s, Inc., 436 U.S. 307, 323 (1978).
The instant case satisfies the Donovan test. First, the document request was authorized
by sections 105(c) and 103 of the Mine Act. Second, as stated above, the document request
furthered the anti-discrimination provisions of the Act, which serve as an integral component in
the enforcement of the Act’s health and safety regulations. Specifically, the Secretary has a
substantial interest in protecting miners against discrimination and deterring operators from
engaging in discriminatory conduct so that miners remain actively engaged in improving health
and safety conditions at mines. Finally, the Act charges the Secretary with the function of
investigating complaints of discrimination made against mine operators. These investigations
are not uncommon, and presumably anticipated by operators upon being notified that a
discrimination claim has been filed.
2. The request satisfied the Fourth Amendment requirements for an administrative
subpoena.
Recently, in reviewing the Commission’s decision in Big Ridge, the Seventh Circuit
decided that, although “highly instructive,” the Donovan analysis “does not fully answer the
Fourth Amendment question,” for Donovan concerned physical safety inspections of mines, not
demands for production of medical and personnel files in mine custody. 715 F.3d at 645. The
court further observed that the investigation at issue did not involve an intrusion in which
government inspectors personally opened file cabinets and examined computer hard drives, but
rather required mine operators to allow MSHA to review and keep copies of records. Id; see also
Donovan v. Lone Steer, Inc., 464 U.S. 408, 415 (1984).
Focusing its Fourth Amendment analysis on the substance of MSHA’s inspection request,
the Seventh Circuit determined that MSHA’s document review authority under section 103(a)
and (h) amounts to an “administrative subpoena” in substance rather than a search or seizure.
Big Ridge, 715 F.3d at 646. Such a subpoena implicates the Fourth Amendment to the extent
that it requires the demand for information be “sufficiently limited in scope, relevant in purpose,
and specific in directive so that compliance will not be unreasonably burdensome.” Id., citing
See v. City of Seattle, 387 U.S. at 544. Once an agency has satisfied the requirements for an
administrative subpoena, the respondent carries the burden of showing that the request is
overbroad, unduly burdensome, irrelevant, or otherwise an abuse of the court’s process. See
United States v. Whispering Oaks Resid. Care Facility, LLC, 673 F.3d 813, 817-19 (8th Cir.
2012) (citing United States v. Powell, 379 U.S. 48, 58 (1964)); NLRB v. N. Bay Plumbing, Inc.,
102 F.3d 1005, 1008-09 (9th Cir. 1996); F.T.C. v. Invention Subm. Corp., 965 F.2d 1086, 1090
(D.C. Cir. 1992); F.T.C. v. Texaco, Inc., 555 F.2d 862, 882 (D.C. Cir. 1977).

38 FMSHRC Page 1332

We conclude that the Secretary’s request satisfies the “administrative subpoena”
requirements of the Fourth Amendment. First, the parameters of the request are sufficiently
limited in scope because its reach is restricted to the personnel records of employees who were
“disciplined, reprimanded or terminated” within the last five years for engaging in the same
conduct that led to Mr. Gatlin’s termination.
Second, these records would corroborate or undermine Gatlin’s allegations of disparate
treatment. These records are relevant to the Secretary’s overall purpose of identifying and
abolishing the culture of intimidation and retaliation aimed at miners who may want to report
safety hazards. Protecting miners from reprisals for their participation in the safety process plays
a vital role in the improvement of safety conditions in mines.
Finally, the request was specific and clear enough that it was not unreasonably
burdensome for HCC to produce the targeted records. Once HCC received clarification from
MSHA on the exact reach of the records demand, the request, as already noted, was specific in
scope in that it involved employee disciplinary records that were restricted to a particular type of
employee conduct, time frame, and manner of inspection. Searching within such well-defined
confines would not be burdensome. In fact, General Manager Adelman testified that after the
clarification, HCC only needed to search through “just those terminated employees,” and that it
took him only five hours to locate the five relevant records that were ultimately produced.
Tr. 130, 159.
Nonetheless, we recognize that MSHA’s original request was hardly a model of clarity.
We also acknowledge that given the irrelevant and private information contained therein, in the
interest of time and fairness, the agency should have informed the operator at the outset that it
would accept redacted copies of the files. However, as this is not HCC’s first exposure to an
MSHA discrimination investigation, there is no reason to believe that HCC was not already
aware that redaction was an option.
Although the Secretary’s request would have captured private information that was not
relevant to the discrimination claim, we nonetheless conclude that this is not a legitimate basis
upon which an operator can rest its refusal to cooperate with an authorized demand for records.
See Woerth v. United States, 231 F.2d at 824 (“It may be that the records requested pertain to
transactions not within the scope of the Act and which are irrelevant to the investigation in
question. However, the fact that the respondent may have intermingled irrelevant information in
the records in question cannot serve to defeat the right of the Secretary of Agriculture to examine
those records as to transactions which had their origin in the activities of the respondent as a
registered dealer.”). At the very least, HCC could have released the relevant portions of the
records.

38 FMSHRC Page 1333

We also hold that the burden was on HCC to raise its concerns regarding the
reasonableness of the section 103(h) records request prior to issuance of any citation.19 Had
HCC properly raised these concerns regarding the terms of the request, MSHA would have had a
duty to discuss the concerns with HCC in good faith. Courts have held that before they will
conclude that a subpoena is “arbitrarily excessive,” they expect the person served “to have made
reasonable efforts . . . to obtain reasonable conditions” from the government. United States v.
Morton Salt, 338 U.S. 632, 653 (1950); In re Subpoena Duces Tecum, 228 F.3d 341, 349, 351
(4th Cir. 2000) (“as a condition to maintaining the argument that an investigative subpoena is
overly broad and oppressive, [the subpoenaed party] would have to be able to point to reasonable
efforts on his behalf to reach accommodation with the government”).
Had HCC taken minimal steps early on to negotiate with MSHA, the imposition of daily
penalties might have been avoided. After providing HCC with clarification, the Secretary
accepted the records in redacted form with no objections and terminated the violations on March
26, 2009.
D. Whether the section 104(b) order was valid.
Finally, HCC argues that the section 104(b) order issued to it is invalid on its face
because the Secretary failed to follow the statutory requirements that he determine an affected
area and withdraw miners. We disagree.
1. The Secretary’s interpretation of section 104(b) was reasonable.
Section 104(b) of the Act provides that, if on an inspection following the issuance of a
section 104(a) citation, the Secretary finds:
(1) that a violation described in a citation issued pursuant to subsection (a)
has not been totally abated within the period of time as originally fixed
therein or as subsequently extended, and (2) that the period of time for the
abatement should not be further extended, he shall determine the extent of
the area affected by the violation and shall promptly issue an order
requiring the operator . . . to immediately cause all persons . . . to be

19

Beyond demanding identification of the protected activity, HCC did nothing to remedy
the deficiencies it would later identify in MSHA’s demand. It failed to raise concerns about the
vagueness or broadness of the language or seek a revision of the request until the March 24
conference call with the assigned Judge. This was one month after MSHA first requested the
documents, a week after being notified by MSHA that Investigator Smith would visit on March
23, and one day after the citations and order had been issued and the daily penalties began to
accrue. See Gov. Exs. 4, 6. Mine Manager Adelman testified that he did not seek clarification of
the request because he felt that the personnel files were “off limits anyway,” but indicated that if
it had been clarified he “may have been able to determine what part of a [] file might be needed”
and they “could have worked that out.” Tr. 119-20; see also ALJ Dec at 17-18.

38 FMSHRC Page 1334

withdrawn . . . until . . . the Secretary determines that such violation has
been abated.
30 U.S.C. § 814(b) (emphasis added).
The first clause of the provision plainly sets out two enumerated conditions the Secretary
must establish before he can issue a withdrawal order: (1) that the underlying violation has not
been totally abated within the set abatement time, and (2) the abatement time should not be
extended. If those two conditions are satisfied, clause two, the center of our controversy,
mandates that the Secretary must determine the extent of the area affected by the violation, and
then issue an order which requires the withdrawal of all persons from that area. HCC’s reading
of the provision would have us treat clause two as an additional finding the Secretary must make
before he is authorized to execute a section 104(b) order. We reject this interpretation.
When the Mine Act is silent on an issue, the Secretary’s interpretation which reasonably
effectuates the health and safety goals of the Act is controlling. Sec’y of Labor ex rel. Wamsley
v. Mutual Mining, Inc., 80 F.3d 110, 115 (4th Cir. 1996). Deference is accorded to “an agency’s
interpretation of the statute it is charged with administering when that interpretation is
reasonable.” Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994) (citing
Chevron, 467 U.S. at 844).
We conclude that the Mine Act is silent on this issue, and that the Secretary’s
interpretation of the statute, which permits an MSHA inspector to issue a section 104(b) order
upon a determination that there is no area affected and/or no miners to physically withdraw, is a
reasonable interpretation of the provision. It is significant that nothing in the language of section
104(b) prohibits the Secretary from issuing a “no area affected” order. The language indicates
that, if the two conditions above are met, the MSHA inspector “shall determine the extent of the
area affected by the violation” and order the appropriate withdrawal of miners from “such area”
until it is determined that the violation has been abated. Thus, if no specific area of the mine is
affected by the violation, it is reasonable to read the statute as requiring the inspector to state that
determination and issue a corresponding section 104(b) order.
The Secretary’s authority to issue a section 104(b) failure to abate order is not predicated
on proving that an affected area exists, but on showing that the underlying violation was not
properly abated and that the time should not be extended. Indeed, Congress stated that “[s]ection
10[4](b) provides the Secretary with such authority upon a determination that the violation has
not been totally abated within the original or subsequently extended abatement period, and that
the abatement period should not be further extended.” S. Conf. Rep. No. 95-181, at 30 (1977),
reprinted in Legis. Hist. at 618. The language of section 104(b) also makes clear that if the preconditions are met, the Secretary is statutorily required to issue an order regardless of the extent
of the area affected. See 30 U.S.C. § 814(b) (“If . . . the Secretary finds that a violation . . . has
not been totally abated . . . and that the period . . . should not be further extended, [then] he shall
determine the extent of the area affected . . . and shall promptly issue an order”) (emphasis
added).
The purpose of section 104(b) is to spur swift abatement of existing violations and
compel operator compliance with the Act. A “no area affected” order provides an important

38 FMSHRC Page 1335

deterrent to operators who fail to abate violations in a timely fashion. See Thunder Basin Coal
Co., 16 FMSHRC 671 (Apr. 1994) (acknowledging the Secretary’s practice of issuing “no area
affected” section 104(b) orders). The issuance of an order for a failure to abate promotes
compliance by imposing a consequence on an operator that refuses to comply with the Mine Act.
Moreover, penalizing an operator’s refusal to comply with the Act in some instances, while
allowing its refusal in others, falls short of fulfilling the Act’s purpose. Thus, the Secretary’s
broad interpretation is consistent with the remedial nature of the Act, its structure, and its
progressive enforcement scheme of increasingly severe sanctions that are applied when an
operator incurs repeated violations and refuses to comply. See 30 U.S.C. § 814(d), (e); Pattison
Sand Co. v. FMSHRC, 688 F.3d 507, 513 (8th Cir. 2012).
While an operator’s continued refusal to turn over records may not present an immediate
safety risk, it is nonetheless hazardous in that it hinders the Secretary’s investigations, which are
intended to ensure operator compliance with the Act’s safety measures. Consequently, the rapid
abatement of all violations, not only those that present immediate physical hazards, is essential
for the protection of miners. Otherwise, absent our approval of the Secretary’s interpretation,
MSHA would have no remedy or leverage to force timely compliance should an operator refuse
to comply with a reasonable request for information in furtherance of an investigation.
Accordingly, we conclude that the Secretary’s interpretation of section 104(b) is
reasonable and entitled to Chevron II deference. We hold that an operator’s failure to abate any
violation is a sufficient basis for the issuance of a section 104(b) order.
2. The Secretary has met his burden of proof regarding the section 104(b) order.
Lastly, having determined that MSHA’s issuance of a section 104(b) order was proper
under the circumstances, we now decide whether the Secretary has met his burden of proof
regarding the validity of the withdrawal order issued to Hopkins due to its failure to abate.
In general, to establish a prima facie case that a section 104(b) order is valid, the
Secretary must prove by a preponderance of the evidence that the underlying violation has not
been abated within the time fixed or extended for abatement. Martinka Coal Co., 15 FMSHRC
2452, 2455-56 (Dec. 1993), citing Mid-Continent Res., 11 FMSHRC 505, 509 (Apr. 1989). The
operator may also challenge the reasonableness of the time period set for abatement, or the
Secretary’s refusal to extend the time period. Energy West Mining Co., 18 FMSHRC 565, 568
(Apr. 1996).
In the instant case, it is undisputed that HCC refused to turn over the personnel records
within the 45-minute abatement time. Investigator Smith determined that the abatement time
was reasonable and should not have been extended because there was no justification to do so.
34 FMSHRC at 793. Smith’s refusal was not unreasonable considering that just prior to
expiration of the abatement period, mine General Manager William Adelman indicated that he
had no intention of complying. 34 FMSHRC at 793; Tr. 72. Adelman then continued to refuse
after the section 104(b) order had been issued, which then led to issuance of a section 104(a)

38 FMSHRC Page 1336

citation for continuing to work in the face of the section 104(b) order. HCC made it clear that
regardless of the time set for abatement, it would not comply.20
Accordingly, we conclude that the Judge did not err in finding that the section 104(b)
Order No. 6694905 was validly issued.
IV.
Conclusion
For the reasons set forth herein, we conclude that the Judge did not err in finding that the
citations and order were validly issued. Accordingly, Citation Nos. 6694904 and 6694906 and
Order No. 6694905 are all affirmed.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

20

It has been HCC’s position from the beginning that the Secretary is not entitled to the
requested personnel records as part of its investigation. See Gov. Ex. 7 at 2 (refusing to release
records on ground that “there has been no basis established for such request, given that no
protected activity exists in this case”). HCC did not provide the parts of the record that were
clearly relevant, while withholding the objectionable parts. In fact, HCC’s counsel stated at the
oral argument that the personnel records were not necessary because the Secretary could have
obtained the disparate treatment information through other means, such as interviews. She stated
that even if a protected activity had been provided, it was HCC’s position that the Secretary was
not entitled to the requested personnel records because they were not “relevant and necessary” to
his investigation. Oral Arg. Tr. 19. Therefore, a longer abatement time would not have changed
the outcome.

38 FMSHRC Page 1337

Commissioners Young and Althen, dissenting:
In this case, neither the miner nor MSHA alleged or identified any basis for a claim of
discrimination under section 105(c). The miner’s complaint asserted insubordination as the
reason for his discharge, and MSHA failed and refused to identify any basis for a claim of
discrimination. Nonetheless, the majority upholds imposition of a civil penalty arising from
MSHA’s demand that the operator search and then produce five years of personnel records
unrelated to any activity by the claimant miner. The Secretary utterly failed to carry his burden
of proof of showing a reasonable basis for the document demand. We respectfully dissent.
Disposition1
Section 103(a) of the Mine Act authorizes the Secretary to make inspections and
investigations for, inter alia, “determining whether there is compliance with the mandatory
health or safety standards or with any citation, order, or decision issued under this title or other
requirements of this Act.” 30 U.S.C. § 813(a). Additionally, section 103(h) requires that
operators “provide such information, as the Secretary or the Secretary of Health and Human
Services may reasonably require from time to time to enable him to perform his functions under
this Act.” 30 U.S.C. § 813(h) (emphasis added). Here, the Secretary pursues a function under
section 105(c) of the Mine Act. 30 U.S.C. § 815(c). The ultimate issue, therefore, is whether the
Secretary reasonably required disclosure of five years of personnel records of uninvolved mine
employees when the miner has not alleged discrimination based on protected activity and MSHA
did not identify any alleged basis for a claim of discrimination.
Section 105(c) permits a miner who believes he has been discharged “in violation of this
section” to file a “complaint” with MSHA. The miner initiates the investigation by filing a
written complaint alleging that he/she suffered adverse employment action because of the
exercise of a right protected by the Mine Act. There are three prerequisites to a Mine Act
discrimination case: protected activity, adverse employment action, and a motivational
connection (a link) between the protected activity and the adverse action. Sec’y of Labor on
behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev’d on other
grounds, 663 F.2d 1211 (3rd Cir. 1981); Sec’y of Labor on behalf of Robinette v. United Castle
Coal Co., 3 FMSHRC 803 (Apr. 1981). Therefore, a cognizable claim of discrimination exists
when a miner or MSHA alleges that the miner engaged in protected activity and suffered adverse
employment action that was at least partly motivated by the identified protected activity.
Here, MSHA did not base its demand for five years of personnel records upon any factual
allegation made by the miner or MSHA to the operator that the miner might have suffered
1

Commissioner Young also disagrees with the majority’s analysis of the request here as
an “administrative subpoena” and incorporates in this opinion his dissent in Warrior Coal, LLC,
38 FMSHRC ___, slip op. at 15-21, KENT 2011-1259-R et al. (May 17, 2016), appeal docketed,
No. 16-3646 (6th Cir. June 15, 2016). An MSHA request for documents under section 103(h) is
not an administrative subpoena. Commissioner Althen continues to agree with observations in
Commissioner Young’s dissent in Warrior Coal regarding the nature of an administrative
subpoena versus an MSHA document request as set forth in his separate opinion in Warrior
Coal.

38 FMSHRC Page 1338

adverse employment action based upon protected activity. Neither the miner nor MSHA ever
made any allegation of even possibly unlawful discrimination. The miner himself alleged his
discharge resulted from his own insubordination and MSHA, without saying more, demanded
five years of personnel records for employees not connected in any way to the complaining
miner.
Robert Gatlin, filed a complaint (Gov’t Ex. 1) and, as required by section 105(c), MSHA
served that document upon the operator. The alleged complaint, however, is factually defective.
It plainly did not assert a violation of section 105(c). The so-called complaint did not allege
either protected activity or any adverse action motivated by unnamed protected activity. In its
entirety, it alleged:
I feel that I was unfairly terminated due to being directed to do
more than my regular job duties on a daily basis, which I would do
on weekends for extra pay. I also feel that the comment about the
union played a part in my being discharged.
I would like my job back, any negative comments deleted from my
personnel file and backpay for the time I’ve been off. I feel that
my name has been black balled in the mining industry around here
and they will not hire me.
Gov’t Ex. 1-2.
Gatlin’s claim was that he insisted upon doing work on weekends for extra pay. In short,
he simply refused to do assigned work on a weekday. He does not admit insubordination; he
proclaims it. In doing so, he does not allege either protected activity or any adverse action
motivated by protected activity. Thus, he fails to allege even implicitly two out of the three
elements of a violation of section 105(c). He actually alleges that the operator discharged him
for a legitimate reason—insubordination. Our colleagues in the majority completely agree that
Gatlin’s claim did not assert discrimination because of protected activity. Indeed, they devote
many pages to discussing a specific heading of whether MSHA could “investigate Gatlin’s
complaint of discrimination although it failed to identify a protected activity.” Slip op. at 5.
Thus, they concede that the miner’s complaint did not state either protected activity or a nexus to
adverse action.2 They further concede, therefore, that from the very outset of MSHA’s
investigation, it was seeking to find a basis for a claim that had not been made by the miner.
2

Miners may initially fail to assert in precise legal terms the elements of a discrimination
claim in their written complaint. When, as here, a miner’s complaint is facially invalid, MSHA
is entitled to ask questions and investigate whether any facts asserted by the miner at that point
might support a discrimination claim—that is, can the miner allege the elements of protected
activity and adverse action because of such activity. Here, MSHA conducted such a further
inquiry of Gatlin’s complaint even though Gatlin did not make a claim of protected activity or
nexus to adverse action. The right to conduct such follow-up to a facially invalid complaint is
not at issue at this point. Here, the miner, admittedly by the majority, did not at any point state a
claim of protected activity. Thereafter, MSHA was not investigating a claim; it was hunting to
(continued…)

38 FMSHRC Page 1339

Nor does the majority contend that MSHA ever identified any potential claim of
discrimination because of protected activity. When asked by the operator what the claim was –
that is, what the protected activity was and what the nexus to discharge was, MSHA failed to
reply. Plainly, neither the miner nor MSHA ever alleged or otherwise notified the operator of
any cognizable claim of section 105(c) discrimination as a basis of the need for five years of
personnel records of other miners.
Despite the absence of any basis for a discrimination claim, MSHA demanded six
categories of records from the operator. Of course, the operator only knew that the miner
complained that insubordination was the reason for his discharge. Through counsel, therefore,
the operator responded reasonably to the facially unreasonable demand by requesting a statement
of any alleged protected activity and discrimination asserted by the miner that would serve as a
reasonable basis for the sweeping document demand. MSHA flat out failed and refused to
provide any reason for the demand.3
Nowhere in the record do we find any allegation of the basic elements of a violation of
section 105(c), by inference or otherwise, from the miner or from MSHA. The miner did not
even testify at the post-citation hearing. Therefore, without a doubt, Gatlin never alleged a
cognizable claim. He certainly provided no basis for a reasonable need for years of personnel
records unrelated to the reason for his discharge. We must accept that this miner knew and
honestly expressed his objection to his discharge. The miner’s expression of discontent was only
that the operator did not schedule the miner’s work to permit extra pay on Saturday. Without a
claim of protected activity or nexus to an adverse action, the miner’s complaint is simply that the
operator fired him for insubordination.
For its part, MSHA never supplemented the miner’s complaint with any basis for a claim
of discrimination or reason that, given the absence of a discrimination claim, it was reasonable to
demand five years of personnel files. This is particularly important because the requested
records did not even go to the complaining miner’s conduct. It is difficult to believe the majority
actually thinks MSHA has authority to investigate every adverse employment action in the
mining industries through sweeping document demands about uninvolved employees without
any alleged basis in section 105(c). Yet, that is the inevitable outcome of its decision.
In Hatfield v. Colquest Energy, Inc., 13 FMSHRC 544 (Apr. 1991), the Commission
recognized that the miner’s complaint establishes the contours for subsequent action. When
2

(…continued)
see if it could find a claim. The question here is whether an MSHA demand for disclosure of
five years of confidential company records is reasonable when no one, neither the miner nor
MSHA, has provided the respondent with any reasonable legal basis for the disclosure of the
records.
3

Eventually, notwithstanding MSHA’s refusal to identify any basis for a claim of
protected activity, the operator capitulated with respect to all the demanded documents except
the five years of personnel records. Upon this refusal, MSHA issued the citation for violation of
section 103(a).

38 FMSHRC Page 1340

MSHA found no merit in Hatfield’s initial complaint, he filed a pro se action. The operator
moved to dismiss the complaint for failure to state a claim, and the Judge issued a Show Cause
Order. Id. In response, Hatfield filed an amended complaint. Id. at 545. The Judge denied the
motion to dismiss, and the Commission granted a petition for interlocutory review. Id. at 544.
On review, the Commission described the structure of section 105(c). It found that
Hatfield’s original complaint was general in nature and contained no indication of the new
matters apparently alleged for the first time in the amended complaint. Id. at 546. The
Commission held that the initial complaint formed the basis of MSHA’s investigation. Id. After
MSHA refused to act on that initial complaint, the miner could not expand his pro se claim by
alleging matters not within the scope of the initial complaint and never investigated by MSHA.
The Commission remanded the case to the Judge to determine if the activities alleged in the
amended complaint were part of matters investigated by MSHA in connection with the initial
complaint. Thus, the miner’s subsequent pro se complaint was limited by the terms of his initial
complaint.
The recent case of Wilson v. Farris, 38 FMSHRC 341 (Feb. 2016) (ALJ), pet. for
discretionary rev. denied, Unpublished Notice, KENT 2015-672-D (Mar. 11, 2016), relies upon
Hatfield to find correctly that, absent a cognizable discrimination claim, there is no reasonable
basis for permitting sweeping discovery. There, a miner’s representative filed a section 105(c)
complaint against three rank-and-file miners asserting the miners asked a federal inspector how
they could get rid of him as a miner’s representative. Id. In a well-reasoned opinion, the
administrative law judge denied the complainant’s request for discovery and granted summary
judgment for the respondents. Id. at 353. The miner’s complaint did not state a cognizable claim
of discrimination. Discovery was thus not warranted.
In ruling upon Respondents’ Motion for Summary Decision, the
Court works from the proposition that each of Wilson’s allegations
in his complaint is taken to be true. Thus, the Court is left ‘only
with the question of whether, as a matter of law, Complainant has
alleged a cognizable claim of discrimination under section 105(c)
of the Mine Act.’
Id. at 350. In Wilson, the claimant did not allege the necessary element of adverse action in his
complaint. The Judge did not allow depositions to be taken in the mere hope of finding some
element of support for a cognizable claim of discrimination—a type of claim not made in his
Complaint. More specifically, the Judge found, “[h]aving failed to establish any adverse action,
it would be entirely inappropriate to saddle Respondents with the expense and time attendant to
such discovery in Complainant’s attempt to see if he can manufacture a claim, when the four
corners of Wilson’s complaint utterly fall short.” Id. at 353. The Commission declined to hear
Wilson’s petition for discretionary review on March 11, 2016.
Throughout the proceedings in this case, MSHA never made any effort to expand upon or
in any way provide the operator with any claim of an adverse action motivated in any part by

38 FMSHRC Page 1341

protected activity that could support the reasonableness of its document demand.4 It is similarly
inappropriate here to saddle Respondent with the expense and time attendant to responding to
MSHA’s fishing expedition in hopes it can manufacture a claim for a miner, when the miner’s
complaint failed to state one, and the agency after its investigation cannot and/or does not
articulate any alleged basis for a discrimination claim.
The majority holds that “the burden was on HCC to raise its concerns regarding the
reasonableness of the section 103(h) records request prior to issuance of any citation.19 Had
HCC properly raised these concerns regarding the terms of the request, MSHA would have had
a duty to discuss the concerns with HCC in good faith.” Slip op. at 17-18 (emphasis added.) In
footnote 19, the majority evinces a compelling sense of irony saying, “Beyond demanding
identification of the protected activity, HCC did nothing to remedy the deficiencies it would later
identify in MSHA’s demand.”
The operator’s concern with whether there existed a cognizable claim of protected
activity – that is, whether there was any basis for a claim of discrimination – goes directly to the
heart of the “reasonableness” of a document request. That is the critical “concern” raised by the
operator.5 In the absence of a cognizable claim, there simply was no reasonable basis for a
4

The majority relies upon irrelevant dicta in NLRB v. H.P. Townsend Mfg. Co., 101 F.3d
292 (2d Cir. 1996). Slip op. at 15. The majority fails to acknowledge that the National Labor
Relations Act grants the NLRB the authority to issue administrative subpoenas enforced by court
order. 29 U.S.C. § 161(1)-(2). Nor does the majority note that the genesis of the cited case was
a motion to quash a subpoena duces tecum. H.P. Townsend, 101 F.3d at 293-94. Further, the
case did not even involve the review of an administrative subpoena but instead whether an
individual could be bound to an order when the NLRB failed to serve an amended complaint
naming him as a respondent. Id. at 293. The court distinguished between a charge and a
complaint in the context of considering a necessary precursor to imposing an order upon a
private citizen. Id. at 294. In this matter, MSHA seeks to impose a fine upon a private citizen
without any notice of a cognizable claim to which the demanded documents could be relevant
and in advance of any judicial determination of the propriety of the document demand.
5

On February 6, 2009, the operator’s attorney wrote MSHA “we fail to grasp, and would
appreciate your identifying, what the alleged protected activity is under this Mine Act
discrimination complaint.” Gov’t Ex. 3. On February 23, 2009, MSHA sent its document
demand. Gov’t Ex. 4. On March 16, 2009, MSHA sent a brief follow-up demand for the
documents. Gov’t Ex. 6. The operator quickly responded, as the majority would require. By
letter dated March 18, 2009, the operator responded to the demand for five years of personnel
files, stating, “Hopkins County Coal objects to this request on the basis that there has been no
basis established for such request, given that no protected activity exists in this case, that the
company does not release personnel files as requested absent consent from the individual
employee, and that, otherwise, no employee other than Mr. Gatlin was disciplined, reprimanded
or terminated for engaging in the conduct which led to his own termination.” Gov’t Ex. 7. This
request did not result “in good faith discussion” by MSHA. Instead, in action directly contrary
to the majority’s holding, MSHA sent a one-page letter on March 20, 2009, without any
information whatsoever regarding any basis for a discrimination claim that would make the
(continued…)

38 FMSHRC Page 1342

demand of five years of personnel records. MSHA did not even offer to discuss the operator’s
legitimate concern.6
Having held that MSHA had a legal obligation to discuss the operator’s concerns, the
majority does not, and cannot, cite any evidence that MSHA was willing to engage in any such
good faith discussions with the operator notwithstanding the operator’s requests. MSHA never
addressed in any way other than through citation the operator’s legitimate concern that MSHA
demanded confidential documents even though neither the miner nor MSHA claimed even any
possible basis for finding adverse action because of protected activity. Clearly, that was an
“operator concern.” Yet, MSHA refused to discuss it. The majority’s own holding completely
undercuts its decision.
Unable to provide a colorable basis for its document request, MSHA simply stonewalled
the operator’s counsel’s request for a charge of protected activity within the scope of section
105(c) or any nexus with adverse employment action. The only attempt made by MSHA to
allege protected activity occurred at the hearing—that is, after the operator necessarily had to
decide whether to capitulate or assert its rights and face a civil penalty. Even then, the hearing
record fails to identify any allegation of any connection between any protected activity and an
adverse employment action.7
The records demanded by MSHA do not go to the complainant’s performance or any
actions with respect to him. The majority states the “records would corroborate or undermine
5

(…continued)
request reasonable, but instead advising that inspectors would be at the mine on March 23 and a
terse, “We expect that the personnel files will be provided to Investigators Smith and Adamson
at this time.” Gov’t Ex. 8. The final two steps are a letter from the operator’s counsel dated
March 23, 2009 stating, “[L]et me again reiterate that the agency has repeatedly delayed and
refused to answer a simple question to which my client is entitled: What is the protected activity
in this case? If that question cannot be answered, then the agency has no case to investigate, no
jurisdiction, no entitlement and no basis upon which to make any request.” Gov’t Ex. 9. That
same day MSHA issued the citation. Gov’t Ex. 10. We search the record in vain for any
evidence of a willingness of MSHA to engage, let alone actual engagement, in good faith
discussions over the request. This failure is especially compelling because the requested
documents do not even go to whether the miner engaged in any protected activity.
6

Footnote 19 also begs the question: What could the operator do to “remedy the
deficiencies in the MSHA’s demand”? The deficiency was that MSHA did not provide any
reasonable basis for it. Only MSHA could remedy that deficiency.
7

In a footnote, the majority complains that other than “demanding identification of the
protected activity, HCC did nothing to remedy the deficiencies it would later identify in MSHA’s
demand.” Slip op. at 17 n.19. The operator’s request to find out the basis for an assertion of a
cognizable claim of discrimination was an effort to remedy a deficiency in the demand—namely,
the demand did not relate to any cognizable claim. The majority fails to explain how the
operator could “remedy” the principal deficiency that no cognizable claim of protected activity
existed.

38 FMSHRC Page 1343

Gatlin’s allegations of disparate treatment.” Slip op. at 17. However, there is no evidence in this
record that Gatlin ever made any allegation of disparate treatment. Further, there is no evidence
anywhere in the record that MSHA had any reason to investigate disparate treatment or asserted
to the operator that possible disparate treatment was a reason it wanted records. By
manufacturing an unspoken reason for demanding the records, the majority essentially
acknowledges that the demand was a fishing expedition by MSHA to see if it could find a basis
for a claim that had not been made by the miner.
Remarkably, the miner did not testify at the hearing. Only one inspector testified for
MSHA. He admitted that the demanded personnel records would not be helpful in determining
whether the miner engaged in protected activity. Tr. 95. The inspector also admitted that 21
days after the filing of the complaint (the target date for filing a Request for Temporary
Reinstatement), he had no idea of protected activity by Gatlin. Tr. 86, 89. The inspector further
agreed that MSHA did not notify the operator of any protected activity. Tr. 88. Indeed, the
inspector conceded that on the very day he issued the citation—March 23, which was 62 days
after the miner filed the complaint—the inspector still did not know of any protected activity by
the complaining miner other than insubordination. Tr. 101-02.8 Therefore, prior to the citation
and even the hearing, MSHA neither had nor had presented the operator with any claim of
protected activity that might form the first predicate for a section 105(c) claim.9
8

The Inspector’s testimony was,

Q. Okay, now, as of March 23rd, had you determined what the protected activity
was?
A. No.
Q. Okay. So you still don’t know what conduct it is you’re looking for?
A. I do know what the conduct was, insubordination.
Tr. 101-02. The inspector testified only that Gatlin was a belt examiner and that he had
unidentified “suspicions” of protected activity. He did not describe what those suspicions were
or how those suspicions could have related to adverse action. Hundreds of miners are examiners.
Every mining position entails duties that may result in the miner engaging in protected activity.
Having a job in a mine does not constitute “protected activity” within the meaning of section
105(c).
9

The majority emphasizes that when, as here, a miner requests temporary reinstatement,
MSHA’s preliminary investigation “must determine only whether there may be validity to the
miner’s claim, or in other words, that the claim was ‘not frivolously brought.’” Slip op. at 9
(emphasis in original). MSHA did not seek temporary reinstatement for the miner within the 62
days between the filing of the demand for documents unrelated to protected activity of the
claimant and the issuance of the citation. Therefore, according to our colleagues, MSHA had not
even determined the miner’s complaint was not frivolous. Yet, MSHA penalized the operator for
refusing to provide documents unrelated to the claimant’s conduct while MSHA also refused to
explain the basis for the need for such documents despite the operator’s repeated requests.
(continued…)

38 FMSHRC Page 1344

MSHA’s failure was fundamental; it refused to provide any reason-based claim of any
alleged protected activity upon which the miner could base a complaint under section 105(c).10
Further, neither the miner nor MSHA ever stated any connection between any of the unidentified
protected activity and any adverse employment action. MSHA simply insisted upon production
of the documents without providing any legal basis for its request, beyond strong-arming the
operator with demands and threats. This is not an issue of an operator having a right to know the
full extent of a miner’s contentions; it is an issue of MSHA failing to provide any reasoned basis
for the mandatory production of records.
Without an assertion of protected activity and nexus to adverse action, there is no
“complaint of discrimination” upon which to base a “reasonable” request for years of personnel
records. It is only a complaint that “I got fired and I do not like it.” The Secretary’s position,
stated most succinctly, is that there need not be an allegation of a section 105(c) violation in
order to compel delivery of extensive files. The Secretary asserts, and the majority would
wrongly grant MSHA, a carte blanche right to records under section 105(c) even when neither
MSHA nor the complainant alleges that there is an actual claim of discrimination on the table.
Our colleagues accept that position as reasonable. We vigorously disagree.
Under the majority’s reasoning, the statutory requirement that the miner file a
“complaint” that is served on the operator has no purpose. It is merely a notice that a miner has
asked MSHA to investigate an adverse employment action without an actual claim of section
105(c) discrimination. Then, MSHA—without a claim of, or any basis for a claim of, any
possible protected activity or any possible nexus to adverse action—may demand whatever it
wishes including five years of personnel records that have nothing whatsoever to do with
whether the subject miner engaged in protected activity. Effectively, under the majority’s
reasoning, MSHA may make a plenary demand for documents without demonstrating there has
been an actual claim of discrimination.
To the majority, MSHA has absolute authority to investigate through extensive document
demands the possibility of disparate treatment although neither the miner nor MSHA had

9

(…continued)
MSHA never provided any evidence that it even had a colorable claim of discrimination and,
certainly, never provided the operator with any reasonable basis for disclosure of years of
personnel records.
10

At most, the inspector stated that the complainant “alluded” to some things that “did
not pan out.” Tr. 112. Attempting to cover this defect, the Secretary’s counsel implicitly
suggested that the inspector should testify without identifying any claim of protected activity
because MSHA prefers not to let the respondent know the nature of the claim against it. Tr. 48.
Consequently, MSHA seeks to impose a monetary penalty for a failure to produce records
claiming that it need not even support its demand to the adjudicatory body evaluating whether to
assess the demanded penalties. Apparently, even at the adjudication stage, the majority asks that
we simply assume there might have been a basis for the inspector’s unsupported “suspicions” of
some unidentified protected activity.

38 FMSHRC Page 1345

articulated any claim of protected activity or a nexus between protected activity and an adverse
action. That is nonsense.
Even when agencies are empowered with the right to issue administrative subpoenas,
federal courts do not permit fishing expeditions in the absence of an actual claim. For example,
the Seventh Circuit will not enforce an administrative subpoena for documents when that
claimant has not made a cognizable claim of discrimination. EEOC v. United Air Lines, Inc.,
287 F.3d 643, 654-55 (7th Cir. 2002) (“Nothing in the charge suggests systemic discrimination
on the basis of national origin or sex with respect to life, health, disability and leave benefits.”).
Similarly, nothing in this miner’s charge or MSHA’s conduct suggests discrimination based on
protected activity.
The majority fails to come to grips with the fundamental problem in this case. Section
103 requires that document requests be “reasonable.” This means that MSHA must provide a
reasonable basis for the request for the demand. The majority focuses on irrelevancies such as
specificity, quantity, and five-year period without ever dealing with the actual problem. MSHA
never explained why, or identified any claim with respect to which, the records were reasonably
necessary. Without an explained connection between an even possibly cognizable claim of
discrimination and the requested documents, the demand is simply an unfettered investigation to
see if MSHA can manufacture a claim when no claim has been made. Federal courts reviewing
administrative subpoenas do not permit fishing expeditions such as MSHA undertook in this
case.11 See, e.g., EEOC v. Royal Caribbean Cruises, Ltd., 771 F.3d 757 (11th Cir. 2014)
(company-wide information need not be produced in connection with investigation of allegation
by specific individual); EEOC v. Burlington N. Santa Fe R.R., 669 F.3d 1154, 1157-58 (10th Cir.
2012) (court refused to enforce broad subpoena in charge filed by two complainants); EEOC v.
Kronos Inc., 620 F.3d 287 (3d Cir. 2010); EEOC v. S. Farm Bureau Cas. Ins. Co., 271 F.3d 209
(5th Cir. 2001) (EEOC not entitled to subpoena information about gender of employees as part of
investigation of employer on race discrimination charge under Title VII); In re McVane, 44 F.3d
1127 (2d Cir. 1995); EEOC v. K-Mart Corp., 694 F.2d 1055, 1066 (6th Cir. 1982) (“[T]he
subpoena cannot be so broadly stated as to constitute a ‘fishing expedition.’”).
In EEOC v. Kronos Inc., 620 F.3d at 300-02, the Third Circuit refused to enforce a
subpoena by the Equal Employment Opportunity Commission seeking files relative to possible
race discrimination when the complaint before it was for discrimination on the basis of disability.
As here, no facial claim of the type of discrimination the agency sought to investigate was
pending before the agency. There, at least, there was a cognizable charge of another form of
discrimination. Nonetheless, a demand for documents to support an investigation into a form of
discrimination for which there was not a cognizable complaint was not reasonable. It was a
fishing expedition. Fishing expeditions simply are not reasonable.
11

This is especially important under the Mine Act because MSHA does not have the
authority to issue administrative subpoenas. As a result, the Mine Act does not afford any predisclosure hearing rights to challenge a request in the first instance. MSHA’s power to enforce
document requests through issuance of penalty is a powerful coercive weapon. It is especially
important, therefore, for the Commission to be scrupulous in requiring that MSHA provide a
reasonable basis for document demands that an operator may refuse only at significant
immediate peril.

38 FMSHRC Page 1346

There simply is nothing in the allegations by Gatlin or MSHA’s preliminary investigation
that alleged protected activity or adverse action based on protected activity and nothing MSHA
said changes that fatal fact. When there is not even a claim of protected activity or adverse
action based on protected activity by the miner or MSHA, a request for five years of personnel
records is a fishing expedition not authorized by the statute as a reasonable request.
The miner filed an honest statement that he refused to do work unless he could do it for
more pay on weekends. He suffered the predictable consequences from a refusal to work—
discharge. That claim, without any subsequent information or explanation by MSHA alleging
protected activity or such activity as a motivating factor for adverse action, does not provide a
reasonable basis for an invasive document request under section 105(c).
We respectfully dissent.

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ William I. Althen
William I. Althen, Commissioner

38 FMSHRC Page 1347

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004-1710

June 30, 2016
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
BIG RIDGE, INC.

Docket Nos. LAKE 2013-66
LAKE 2012-506
LAKE 2013-251
LAKE 2013-252
LAKE 2013-307
LAKE 2012-896

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
DECISION APPROVING SETTLEMENT
BY THE COMMISSION:
These proceedings arising under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (2012) (“Mine Act”), involve Order No. 8445268 in Docket No. LAKE
2013-66, which was issued by the Department of Labor’s Mine Safety and Health
Administration to Big Ridge, Inc. Big Ridge contested the order and associated civil penalty
before a Commission Administrative Law Judge, who issued a decision in the case on April 16,
2014. 36 FMSHRC 999 (Apr. 2014) (ALJ).
Order No. 8445268 was issued under section 104(d)(1) of the Mine Act, 30 U.S.C.
§ 814(d)(1), for a violation of the electrical equipment examination requirements set forth in 30
C.F.R. § 75.512. The Secretary alleged that the violation was an unwarrantable failure to comply
with a mandatory standard that resulted from the operator’s high negligence, and proposed a
penalty of $25,810. The Judge removed the unwarrantable failure designation, determined that
Big Ridge had acted with moderate negligence, and assessed a penalty of $15,000 for this
violation. 36 FMSHRC at 1024-25, 1046. The Secretary of Labor filed a petition for
discretionary review (“PDR”), which we granted. The Secretary’s PDR sought to reverse the
Judge’s changes to the unwarrantable failure and negligence designations for this order, as well
as a higher penalty. Neither party sought review of the remaining citations, orders, or their
associated penalties.
The Secretary and Big Ridge subsequently filed a joint motion requesting that the
Commission approve a settlement agreement between the parties. The request for approval of
settlement was filed in accordance with section 110(k) of the Mine Act, 30 U.S.C. § 820(k),
which provides, in relevant part, that “[n]o proposed penalty which has been contested before the
Commission under section 105(a) shall be compromised, mitigated, or settled except with the
approval of the Commission.” Commission Procedural Rule 31(a) provides that a “proposed
penalty that has been contested before the Commission may be settled only with the approval of

38 FMSHRC Page 1348

the Commission upon motion.” 29 C.F.R. § 2700.31(a). The movant is required to provide “facts
in support of the penalty agreed to by the parties.” 29 C.F.R. §§ 2700.31(b)(1), (c)(1).
In their joint filing, the parties seek to settle this matter for the $15,000 penalty assessed
by the Judge for Order No. 8445268. This amount is a reduction from the Secretary’s original
penalty proposal of $25,810. 36 FMSHRC at 1025. The parties have also agreed that the
Secretary’s original unwarrantable failure and high negligence designations will be restored.
The parties’ joint request for approval of settlement is granted. In light of the factual
justifications provided by the parties, we determine that the penalty is appropriate under the
criteria set forth in section 110(i) of the Mine Act, 30 U.S.C. § 820(i). We further find that the
terms of the settlement are supported by the record, in accordance with Commission case law.
See Black Beauty Coal Co., 34 FMSHRC 1856, 1864 (Aug. 2012), citing Knox Ct.y Stone Co., 3
FMSHRC 2478, 2480 (Nov. 1981). Finally, we note that the Willow Lake Portal Mine, where
the violation took place, has been permanently closed. 36 FMSHRC at 1037. Because the
operator has paid the assessed penalties in full, Big Ridge owes no further payment in executing
the terms of the settlement.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

/s/ William I. Althen
William I. Althen, Commissioner

38 FMSHRC Page 1349

COMMISSION ORDERS

38 FMSHRC Page 1350

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004-1710

June 7, 2016
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No.
A.C. No.

v.

WEVA 2014-962
46-08864-345488

TUNNEL RIDGE, LLC
BEFORE: Jordan, Chairman; Young, Cohen, Nakamura and Althen, Commissioners
ORDER
BY:

Jordan, Chairman; Young, Nakamura and Althen, Commissioners

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On May 21, 2014, the Commission received from Tunnel
Ridge, LLC (“Tunnel Ridge”) 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).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. 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).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on March 19, 2014, and became
a final order of the Commission on April 18, 2014. Tunnel Ridge asserts that it failed to timely
contest the proposed assessment because it currently has only a part time safety director. Tunnel
Ridge says that it will hire a full-time safety director in the near future to ensure that future

38 FMSHRC Page 1351

penalty assessments are timely contested. The Secretary does not oppose the request to reopen,
but urges the operator to take steps to ensure that future penalty contests are timely filed.
Having reviewed Tunnel Ridge’s request and the Secretary’s response, in the interest of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

/s/ William I. Althen
William I. Althen, Commissioner

38 FMSHRC Page 1352

Commissioner Cohen, dissenting:
I dissent from my colleagues’ decision to reopen this proceeding, and conclude that
Tunnel Ridge has not established good cause for its failure to timely respond. The crux of the
operator’s motion is that it failed to timely file because it did not have a full-time Safety Director
on staff. I conclude that a large coal mine’s failure to timely file a notice of contest is not
excused because the mine lacks a full-time Safety Director.
In its motion to reopen, Tunnel Ridge represents that beginning in January 2014, it began
to phase out the Safety Director’s responsibilities while it searched for a new Safety Director.
Thus, its Safety Director worked in this capacity only on a part-time basis. MSHA’s proposed
assessment was received on March 19, 2014. The part-time Safety Director did not discover that
the proposed assessment had gone uncontested until May 5, 2014, and attempted to file a contest
of some of the proposed penalties then. After MSHA rejected the attempted contest as untimely,
the motion to reopen was filed on May 20, 2014. Tunnel Ridge states that at the time it filed the
motion with the Commission it was still seeking to hire a full-time Safety Director. Mot. at 2.
Apparently, the mine had lacked a full-time Safety Director for a period that stretched for almost
five months.
Tunnel Ridge operates a large coal mine. At the time the citations were issued, the mine
produced over two million tons of coal annually, and its controlling entity produced over ten
million tons of coal annually.1
Tunnel Ridge’s decision to phase out the responsibilities of its Safety Director before a
new Safety Director was hired was a self-imposed problem that does not justify relief pursuant to
Rule 60(b). The prolonged absence of a full-time Safety Director at a large coal mine
demonstrates a complacency toward the operator’s responsibilities under the Mine Act that
should neither be condoned nor deemed “excusable neglect” by the Commission.

/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner

1

The Proposed Assessment reflects that MSHA assigned the mine 15 out of 15 “Mine
Points” and 10 out of 10 “Controller Points.” Proposed Assessment Case No. 000345488; see
also 30 C.F.R. § 100.3.

38 FMSHRC Page 1353

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

June 27, 2016

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

Docket No. KENT 2016-26
A.C. No. 15-19374-389074

RIVER VIEW COAL, LLC

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, 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. (2012) (“Mine Act”). The Commission has received a motion from the operator
seeking to reopen a penalty assessment which had become a final order of the Commission
pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 813(a). The Secretary states that he does
not oppose the motion.

38 FMSHRC Page 1354

Having reviewed movant’s unopposed motion to reopen, we reopen this matter and
remand it to the Chief Administrative Law Judge for further proceedings pursuant to the Mine
Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Consistent with Rule 28, the
Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R. § 2700.28.
The granting of this motion is not precedential for the consideration of any other motion
before the Commission.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.
Robert F. Cohen Jr., Commissioner

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

/s/ William I. Althen
William I. Althen, Commissioner

38 FMSHRC Page 1355

Distribution:
Kevin Vaughn
Director of Safety and Training
River View Coal, LLC
835 SR 1179
Waverly, KY 42462
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450

38 FMSHRC Page 1356

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

June 27, 2016
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2016-23-M
A.C. No. 54-00120-388990

v.
ESSROC SAN JUAN

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, 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. (2012) (“Mine Act”). The Commission has received a motion from the operator
seeking to reopen a penalty assessment which had become a final order of the Commission
pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 813(a). The Secretary states that he does
not oppose the motion.

38 FMSHRC Page 1357

Having reviewed movant’s unopposed motion to reopen, we reopen this matter and
remand it to the Chief Administrative Law Judge for further proceedings pursuant to the Mine
Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Consistent with Rule 28, the
Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R. § 2700.28.
The granting of this motion is not precedential for the consideration of any other motion
before the Commission.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.
Robert F. Cohen Jr., Commissioner

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

/s/ William I. Althen
William I. Althen, Commissioner

38 FMSHRC Page 1358

Distribution:
Robert Huston Beatty, Jr.
Lorna Waddell
Dinsmore & Shohl LLP
215 Don Knotts Blvdd., Suite 310
Morgantown, WV 26501
Jason M. Nutzman
Dinsmore & Shohl LLP
900 Lee Street, Suite 600
Charleston, WV 25301
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450

38 FMSHRC Page 1359

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

June 27, 2016
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. VA 2015-300-M
A.C. No. 44-06068-384434

v.
BAILLIO SAND COMPANY, INC.
BEFORE:

Jordan, Chairman; Young, Cohen, Nakamura, and Althen, 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. (2012) (“Mine Act”). On August 21, 2015, the Commission received from Baillio
Sand Co., Inc., (“Baillio”) a motion seeking to reopen a penalty assessment that had appeared to
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
On June 17, 2015, the Secretary mailed the proposed assessment to Baillio by U.S. Postal
Service Certified Mail. On August 17, 2015, the proposed assessment was deemed a final order
of the Commission, when it appeared that the operator had not filed a Notice of Contest within
30 days.
Baillio asserts that it never received the proposed assessment. Tracking information
submitted by Baillio shows that the proposed assessment reached the Virginia Beach, VA post
office on June 20, 2015, but does not show that the proposed assessment was delivered. The
Secretary states that the U.S. Postal Service was not able to locate a signed delivery receipt. The
Secretary does not oppose the request to reopen, but notes that the proposed assessment was
mailed to the address of record on Baillio’s Mine ID report. The Secretary asserts that he has
sent other proposed assessments, which Baillio has contested, to this address.

38 FMSHRC Page 1360

Having reviewed Baillio’s request and the Secretary’s response, we conclude that the proposed
penalty assessment did not become a final order of the Commission because Baillio did not
receive the proposed assessment. See 29 C.F.R. § 2700.26 (“[a] person has 30 days after receipt
of the proposed penalty assessment within which to notify the Secretary that he contests the
proposed penalty assessment.”)
Accordingly, Baillio’s motion to reopen is moot, and this case is remanded to the Chief
Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission's Procedural Rules, 29 C.F.R. Part 2700.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.
Robert F. Cohen Jr., Commissioner

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

/s/ William I. Althen
William I. Althen, Commissioner

38 FMSHRC Page 1361

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
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450

38 FMSHRC Page 1362

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

June 27, 2016
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
v.

Docket No. WEVA 2016-1
A.C. No. 46-08637-380428

GATEWAY EAGLE COAL
COMPANY, LLC

BEFORE:

Jordan, Chairman; Young, Cohen, Nakamura, and Althen, 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. (2012) (“Mine Act”). On October 1, 2015, the Commission received from Gateway
Eagle Coal Company, LLC (“Gateway Eagle”), a motion to reopen Docket No. WEVA 2016-1.

38 FMSHRC Page 1363

Gateway Eagle thereafter requested to withdraw its motion to reopen in Docket No. WEVA
2016-1.
We hereby grant Gateway Eagle’s motion to withdraw in Docket No. WEVA 2016-1.
Accordingly, this case is dismissed.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.
Robert F. Cohen Jr., Commissioner

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

/s/ William I. Althen
William I. Althen, Commissioner

38 FMSHRC Page 1364

Distribution:
Jonathan R. Ellis
Katrina N. Bowers
Steptoe & Johnson PLLC
P.O. Box 1588
Charleston, WV 25326-1588
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450

38 FMSHRC Page 1365

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

June 27, 2016

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

Docket No. YORK 2015-154-M
A.C. No. 28-00021-365489

GIBRALTAR ROCK, INC.

BEFORE:

Jordan, Chairman; Young, Cohen, Nakamura, and Althen, 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. (2012) (“Mine Act”). The Commission has received a motion from the operator
seeking to reopen a penalty assessment which had become a final order of the Commission
pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 813(a). The Secretary states that he
does not oppose the motion.

38 FMSHRC Page 1366

Having reviewed movant’s unopposed motion to reopen, we reopen this matter and
remand it to the Chief Administrative Law Judge for further proceedings pursuant to the Mine
Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Consistent with Rule 28, the
Secretary shall file a petition for assessment of penalty within 45 days of the date of this
order. See 29 C.F.R. § 2700.28.
The granting of this motion is not precedential for the consideration of any other motion
before the Commission.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.
Robert F. Cohen Jr., Commissioner

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

/s/ William I. Althen
William I. Althen, Commissioner

38 FMSHRC Page 1367

Distribution:
Thomas Benjamin Huggett
Littler Mendelson, PC
Three Parkway
1601 Cherry Street, Suite 1400
Philadelphia, PA 19102-1321
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450

38 FMSHRC Page 1368

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

June 28, 2016
SHANE HORTON
v.
COAL RIVER MINING, LLC
BEFORE:

Docket No. WEVA 2013-1183-D
MSHA Case No.: HOPE-CD-2012-14

Jordan, Chairman; Young, Cohen, Nakamura, and Althen, 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. (2012) (“Mine Act”). On October 29, 2015, the Commission received from Shane
Horton a motion seeking to reopen a discrimination proceeding and relieve him from the Default
Order entered against him.
On June 10, 2015, Judge Zane Gill issued an Order to Show Cause in response to
Horton’s perceived failure to communicate with the court or participate in settlement
negotiations.1 When Horton did not file a response within 30 days, the Judge entered an order of
dismissal effective July 21, 2015.
Horton asserts that he did not receive the Order to Show Cause because the Judge used
the wrong P.O. Box number on correspondence intended for him. Commission records show
that Horton stated in his initial discrimination complaint to MSHA and his section 105(c)(3)
complaint to the Commission that his address was P.O. Box 164, Danville, West Virginia.
However, the Secretary’s discrimination determination letter was mailed to P.O. Box 803. The
Judge appears to have adopted the latter address in all of his attempted correspondence with
Horton.
Coal River Mining opposes Horton’s motion to reopen. The operator argues, inter alia,
that Horton failed to demonstrate justifiable circumstances or good cause to excuse the
significant delay between the accident he alleges as the basis of his harassment and the filing of
his original complaint to MSHA.
The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R.
§ 2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s
1

Judge Gill was assigned this case on March 27, 2014. In his Order to Show Cause, he
stated that “[w]e have no record of any communications or filings from Shane Horton since I was
assigned this case in March 2014.” However, the record shows that Mr. Horton wrote a letter to
Chief Judge Robert J. Lesnick on April 26, 2014. Mr. Horton had also written a lengthy letter to
Judge Lesnick, with evidence attached, on March 10, 2014.

38 FMSHRC Page 1369

decision may be sought by filing a petition for discretionary review within 30 days of its
issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not
direct review within 40 days of a decision’s issuance, it becomes a final decision of the
Commission. 30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final
decision of the Commission.
In evaluating requests to reopen final orders, the Commission has found guidance in Rule
60(b) of the Federal Rules of Civil Procedure under which the Commission may relieve a party
from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or
other reason justifying relief. 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”); Jim Walter Res., Inc.,
15 FMSHRC 782, 786-89 (May 1993). We have also observed that default is a harsh remedy
and that, if the defaulting party can make a showing of good cause for a failure to timely
respond, the case may be reopened and appropriate proceedings on the merits will be permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Horton’s request and the operator’s response, in the interest of justice,
we hereby reopen the proceeding and vacate the Default Order. Accordingly, this case is
remanded to the Administrative Law Judge for further proceedings pursuant to the Mine Act and
the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.
Robert F. Cohen Jr., Commissioner

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

/s/ William I. Althen
William I. Althen, Commissioner

38 FMSHRC Page 1370

Distribution:
Shane Horton
P.O. Box 164
Danville, WV 25053
Max L. Corley, III, Esq.
Dinsmore & Shohl LLP
707 Virginia St., Suite 1300
Charleston, West Virginia 25301
Chief Administrative Law Judge Zane Gill
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450

38 FMSHRC Page 1371

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

June 30, 2016
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
v.
APOGEE COAL COMPANY, LLC, et
al.1
BEFORE:

Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
ORDER

BY THE COMMISSION:
These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On March 23, 2016, the Commission received a joint motion
seeking to reopen 562 penalty assessments issued to subsidiaries of Patriot Coal Corporation
(“Patriot”) 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

For the limited purpose of addressing these motions to reopen, we hereby consolidate
docket numbers WEVA 2016-324, WEVA 2016-325, WEVA 2016-326, WEVA 2016-327,
WEVA 2015-343, WEVA 2016-344, WEVA 2016-322, WEVA 2016-323, WEVA 2016-303,
WEVA 2016-304, WEVA 2016-305, WEVA 2016-306, WEVA 2016-307, WEVA 2016-308,
WEVA 2016-309, WEVA 2016-310, WEVA 2016-311, WEVA 2016-312, WEVA 2016-313,
WEVA 2016-315, WEVA 2016-316, WEVA 2016-317, WEVA 2016-318, WEVA 2016-319,
WEVA 2016-320, WEVA 2016-321, WEVA 2016-328, WEVA 2016-329, WEVA 2016-330,
WEVA 2016-332, WEVA 2016-333, WEVA 2016-334, WEVA 2016-335, KENT 2016-288,
WEVA 2016-340, WEVA 2016-341, WEVA 2016-342, WEVA 2016-336, WEVA 2016-337,
WEVA 2016-338, WEVA 2016-339, WEVA 2016-348, WEVA 2016-351, WEVA 2016-282,
WEVA 2016-295, WEVA 2016-296, WEVA 2016-297, WEVA 2016-298, WEVA 2016-299,
WEVA 2016-300, WEVA 2016-301, WEVA 2016-302, WEVA 2016-345, WEVA 2016-346,
WEVA 2016-476, and WEVA 2016-347 involving similar procedural issues. 29 C.F.R. §
2700.12. For the sake of brevity, the relevant operator’s names, A.C. numbers, and associated
docket numbers have been listed in Exhibit 1, attached to this order.
2

On June 16, 2016, the parties filed a joint motion to reopen an additional penalty
assessment in addition to the 55 penalty assessments in their original motion.

38 FMSHRC Page 1372

We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. 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).
On or about May 12, 2015, Patriot filed for Chapter 11 bankruptcy in the U.S. District
Court for the Eastern District of Virginia. Pursuant to the court-confirmed reorganization plan,
Patriot was required to sell substantively all of its assets. For the vast majority of cases, Patriot
contends that, due to the issues surrounding the bankruptcy and change in ownership, it was
unable to timely contest penalties issued between the time that it declared bankruptcy and when
it was able to transfer ownership of its mines. For other cases, Patriot claims that ongoing
settlement negotiations made it unclear which penalties needed to be contested. The Secretary
agrees that these cases should be reopened. 3
Since the parties filed the joint motion to reopen, events have transpired that affect our
consideration of the joint motion. Eastern Associated Coal, LLC, a subsidiary of Patriot, had a
motion to reopen Case No. 000389549 (Docket No. WEVA 2016-61) pending before the
Commission prior the filing of the joint motion. However, the joint motion also requested that
this case be reopened. On April 5, 2016, the Commission granted Eastern Associated Coal’s
motion and reopened the case, rendering the joint motion to reopen Docket No. WEVA 2016308 moot.
Additionally, in an email dated April 12, 2016, the parties informed the Commission that
Case No. 000402707 was not a final order at the time the joint motion was filed and that Midland
Trail Energy subsequently filed a timely contest. The contest has since been docketed by the
Commission as WEVA 2016-390. As the penalties in this case never became final orders of the
Commission, the joint motion to reopen Docket No. WEVA 2016-339 is moot.

3

While it does not affect our consideration of the joint motion, we note that the parties
have reached a proposed global settlement as to the all of the proposed penalties. In exchange
for the Secretary accepting lower penalty amounts, Patriot has agreed that the Secretary will not
be treated as a general unsecured creditor under the reorganization plan. Pursuant to 29 C.F.R.
§ 2700.31, approval of the proposed settlement will be subject to Commission review on remand.

38 FMSHRC Page 1373

Having reviewed the joint motion, we conclude that the motion to reopen Docket Nos.
WEVA 2016-308 and WEVA 2016-339 are moot. As for the remaining cases, we hereby reopen
these matters4 and remand them to the Chief Administrative Law Judge for further proceedings
pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.
Accordingly, the Secretary shall file petitions for assessment of penalty in each case within 45
days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.
Robert F. Cohen Jr., Commissioner

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

/s/ William I. Althen
William I. Althen, Commissioner

4

Subsequent to the filing of the joint motion, the parties informed the Commission that
they only sought to reopen certain penalties associated with Case Nos. 000393531 (WEVA
2016-332), 000394461 (WEVA 2016-351), 000393293 (WEVA 2016-296), and 000394895
(WEVA 2016-305). Accordingly, we reopen those penalties specified in Exhibit 2, attached to
this order.

38 FMSHRC Page 1374

Distribution:
Michael T. Cimino, Esq.
Jackson Kelly PLLC
P.O. Box 553
Charleston, WV 25322
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Robert S. Wilson, Esq.
Regional Solicitor’s Office
U.S. Department of Labor
102 12th Street South, Suite 401
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450

38 FMSHRC Page 1375

Exhibit 1
Operator
Apogee Coal Company, LLC
Apogee Coal Company, LLC
Apogee Coal Company, LLC
Apogee Coal Company, LLC
Brody Mining, LLC
Brody Mining, LLC
Catenary Coal Company, LLC
Catenary Coal Company, LLC
Eastern Associated Coal, LLC
Eastern Associated Coal, LLC
Eastern Associated Coal, LLC
Eastern Associated Coal, LLC
Eastern Associated Coal, LLC
Eastern Associated Coal, LLC
Eastern Associated Coal, LLC
Eastern Associated Coal, LLC
Eastern Associated Coal, LLC
Eastern Associated Coal, LLC
Eastern Associated Coal, LLC
Eastern Associated Coal, LLC
Emerald Processing, LLC
Emerald Processing, LLC
Emerald Processing, LLC
Emerald Processing, LLC
Emerald Processing, LLC
Emerald Processing, LLC
Gateway Eagle Coal Company, LLC
Gateway Eagle Coal Company, LLC
Gateway Eagle Coal Company, LLC
Gateway Eagle Coal Company, LLC
Gateway Eagle Coal Company, LLC
Gateway Eagle Coal Company, LLC
Gateway Eagle Coal Company, LLC
Grand Eagle Mining, LLC
Hobet Mining, LLC
Hobet Mining, LLC
Hobet Mining, LLC
Midland Trail Energy, LLC
Midland Trail Energy, LLC
Midland Trail Energy, LLC
Midland Trail Energy, LLC
Remington, LLC
Remington, LLC

Docket Number
WEVA 2016-324
WEVA 2016-325
WEVA 2016-326
WEVA 2016-327
WEVA 2015-343
WEVA 2016-344
WEVA 2016-322
WEVA 2016-323
WEVA 2016-303
WEVA 2016-304
WEVA 2016-305
WEVA 2016-306
WEVA 2016-307
WEVA 2016-308
WEVA 2016-309
WEVA 2016-310
WEVA 2016-311
WEVA 2016-312
WEVA 2016-313
WEVA 2016-315
WEVA 2016-316
WEVA 2016-317
WEVA 2016-318
WEVA 2016-319
WEVA 2016-320
WEVA 2016-321
WEVA 2016-328
WEVA 2016-329
WEVA 2016-330
WEVA 2016-332
WEVA 2016-333
WEVA 2016-334
WEVA 2016-335
KENT 2016-288
WEVA 2016-340
WEVA 2016-341
WEVA 2016-342
WEVA 2016-336
WEVA 2016-337
WEVA 2016-338
WEVA 2016-339
WEVA 2016-348
WEVA 2016-351

38 FMSHRC Page 1376

A.C. Number
46-01368-393525
46-01368-395956
46-08939-400382
46-08939-398390
46-09086-398610
46-09086-396167
46-07178-394670
46-07178-392504
46-01456-392345
46-01456-401466
46-01456-394895
46-03135-394896
46-03135-397257
46-06448-389549
46-09152-389555
46-09152-392353
46-09152-394901
46-09152-397265
46-09152-397265
46-08610-397263
46-08759-393297
46-08759-398125
46-08993-398129
46-09258-393310
46-09258-398137
46-03085-398118
46-06618-390824
46-06618-393529
46-06618-398383
46-08637-393531
46-08637-390827
46-08637-400380
46-08637-398386
15-16231-393377
46-04670-393291
46-05398-393292
46-05398-398120
46-09297-393779
46-09297-396169
46-09297-398612
46-09297-402707
46-09230-396828
46-09230-394461

Speed Mining, LLC
Speed Mining, LLC
Speed Mining, LLC
Speed Mining, LLC
Speed Mining, LLC
Speed Mining, LLC
Speed Mining, LLC
Speed Mining, LLC
Speed Mining, LLC
Thunderhill Coal Company
Wildcat Energy, LLC
Wildcat Energy, LLC
Wildcat Energy, LLC

WEVA 2016-282
WEVA 2016-295
WEVA 2016-296
WEVA 2016-476
WEVA 2016-297
WEVA 2016-298
WEVA 2016-299
WEVA 2016-300
WEVA 2016-301
WEVA 2016-302
WEVA 2016-345
WEVA 2016-346
WEVA 2016-347

38 FMSHRC Page 1377

46-05437-398121
46-05437-402270
46-05437-393293
46-05437-406785
46-09099-390556
46-09099-393305
46-09099-398132
46-08571-393296
46-08571-398124
46-08818-393301
46-09427-398396
46-09427-390835
46-09427-393540

Exhibit 2
Eastern Associated Coal, LLC
Citation/ Order Nos.:
9084090
9084130
9084092
9084131
9084093
9084133
9084134

WEVA 2016-305

46-01456-394895

9084135
9084097
9084098
9084136
9084137
9084138

9084100
9084139
9084101
9084102
9084140
9084143

Gateway Eagle Coal Company, LLC
Citation/ Order Nos.:
9055817
9055819
9059321

WEVA 2016-332

46-08637-393531

9059323
9009770
9009771

9059325
9059327

Remington, LLC
Citation/ Order Nos.:
9008107
9008108
9008109
9008110
9008111

WEVA 2016-351

46-09230-394461

9008112
9008113
9008115
9054964
9053404

9008116
9008117
9052207
9052208

Speed Mining, LLC
Citation/ Order Nos.:
9052040
9052044
9052045
9052046
9055591

WEVA 2016-296

46-05437-393293

9055592
9007911
9055593
9059120
9059121

9056072
9055595
9056073
9052327
9055596

38 FMSHRC Page 1378

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9958 / FAX: 202-434-9949

June 6, 2016
CIVIL PENALTY PROCEEDING

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

Docket No. LAKE 2014-0077
A.C. No. 11-03141-334561
Docket No. LAKE 2014-132
A.C. No. 11-03141-337701

v.
MACH MINING, INC.,
Respondent

Mine: No. 1 Underground Mine
AMENDED DECISION AND ORDER
Appearances:

Thomas J. Motzny, Esq., Office of the Solicitor, U.S. Dept. of Labor,
Nashville, Tennessee for Petitioner
Christopher D. Pence, Esq., Hardy Pence, PLLC, Charleston, West
Virginia for Respondent

Before:

Judge McCarthy

The Decision and Order that issued on May 25, 2016 is hereby amended pursuant to
Commission Rule 69(c), 29 C.F.R. § 2700.69(c), to read as set forth below.
I. Statement of the Case
These cases are before me are upon two Petitions for Assessment of Civil Penalty under
section 105(d) of the Federal Mine Safety and Health Act of 1977, as amended, (“the Mine
Act”), 30 U.S.C. § 815(d). The two dockets at issue contain 20 citations alleging violations of
mandatory health and safety standards.
A hearing was held on July 22-24, 2014 in Carbondale, Illinois. During the hearing, the
parties introduced testimony and documentary evidence.1 Witnesses were sequestered.
Thereafter, the parties submitted post-hearing briefs. During hearing, the parties made a joint
motion to settle nine of the 20 citations. The joint motion to approve settlement was read into the
record. Tr. 377-84.
1

ALJ Exhibits (ALJ Exs.) 1-8, Petitioner Exhibits (P. Exs.) 100-115, Respondent
Exhibits (R. Exs.)1-8 and 11, and Joint Exhibit (J. Ex.) 1 were received into evidence. Tr. 10, 1920, 304. R. Exs. 9 and 10 were not offered into evidence. Tr. 757.

38 FMSHRC Page 1379

In Docket No. LAKE 2014-0077, the parties moved for the approval of the settlement of
nine of the thirteen citations, and proposed a reduction in penalties from $10,933 to $7,392. Tr.
386. The Secretary vacated Citation No. 8439443. Tr. 383. The Secretary’s discretion to vacate a
citation or order is not subject to review. E.g., RBK Constr. Inc., 15 FMSHRC 2099 (Oct. 1993).
The parties agreed to settle Citations No. 8439449, 8439450, 8439452, 8445747, 8448973, and
8449000 with no modifications or reductions in penalties. Tr. 383. The parties also request that
Citation No. 8445731 be modified to reduce the level of negligence from “moderate” to “low.”
Tr. 383-84.
I have considered the representations and documentation submitted at hearing, and I
conclude that the proffered settlement in Docket No. LAKE 2014-0077 is appropriate under the
criteria set forth in section 110(i) of the Act. The settlement amounts are as follows:
Citation No.
8439449
8439450
8439452
8439460
8445731
8445747
8448973
844900
TOTAL

Assessment
$224
$224
$334
$3,143
$4,689
$308
$207
$1657
$10,933

Settlement
$224
$224
$334
$2,438
$2,000
$308
$207
$1657
$7,392

In Docket No. LAKE 2014-0132, the parties moved for the approval of the settlement of
four of the seven citations, proposing a reduction in penalties from $4,826 to $3,252. Tr. 381.
Citation No. 8445755 remains unchanged. Tr. 378. Citation No. 8445758 also remains
unchanged, but the Solicitor justifies the reduction in proposed penalty by stating that there were
legitimate factual and legal disputes regarding gravity and negligence. Tr. 380-81. The parties
also request that:
Citation No. 8445758 be modified to reduce the level of from “moderate” to low,” and
Citation No. 8451650 be modified to reduce the number of persons affected from
“twelve” to “six.”
Tr. 378-80.

38 FMSHRC Page 1380

I have considered the representations and documentation submitted at hearing, and I
conclude that the proffered settlement in Docket No. LAKE 2014-0132 is appropriate under the
criteria set forth in section 110(i) of the Act. The settlement amounts are as follows:
Citation No.
8445758
8451649
8451650
8445755
TOTAL

Assessment
$2,282
$1,530
$807
$207
$4,826

Settlement
$1,845
$700
$500
$207
$3,252

At hearing, Respondent moved for a directed verdict on Citation Nos. 8443200 and
8443901 in Docket No. LAKE 2014-132. The undersigned granted the motion because the
Secretary’s evidence did not support a violation of section 75.821(a). Tr. 242-62.2
2

Both citations alleged that Respondent violated Section 75.821(a) because chip alerts
were not working on longwall equipment. A mule train is comprised of several pieces of
equipment that distribute power to the longwall. Tr. 53. Power enters the unit through a
disconnect box, which can be switched on or off, and then travels to the power centers within the
mule train. Tr. 55. Chirp alerts indicate that the equipment is energized by making a chirping
noise and emitting a flashing light. Tr. 32-33. On the cited disconnect box in Citation No.
8443200, the chirp alert failed to make the chirping sound. Tr. 37. On the cited power center in
Citation 8443901, the chirp alert failed to make the chirping sound and the flashing light failed.
Id. MSHA inspector John Butcher testified that without notification from the chirp alerts that a
piece of equipment is energized, the miners are at risk of fatal injuries from electrocution. Tr. 6566, 74-75. Essentially, the Secretary argues that since the equipment was not being maintained,
there was a violation of Section 75.821(a). Section 75.821(a) requires that every seven days, a
person qualified to perform electrical work must test and examine longwall equipment to
determine that such equipment is being properly maintained. 30 U.S.C. § 75.821(a).
The Secretary failed to establish that Respondent did not assign a qualified person to test
and examine the chirp alerts within the last seven days to ensure that the equipment was being
properly maintained. Inspector Butcher conceded on cross examination that as far as he knew,
the required testing was actually performed and that he was not alleging that the mine was not
conducting the appropriate testing and examination, but merely alleging that the chip alerts on
the inspected equipment were not working properly. Tr. 109.
Q:
A:
Q:
A:
Q:

…As far as you know, the test that was required every seven days was
actually performed, correct?
As far as I know, yes.
Okay. And that’s not your allegation, is it, that the test—
No.
—wasn’t performed?
(continued…)

38 FMSHRC Page 1381

Citations No. 8451651 in Docket No. LAKE 2014-0132, and Citation Nos. 8439446,
8432319, 8439454, and 8452203 in Docket No. LAKE 2014-0077 were litigated at hearing.
For the reasons set forth below, I modify Citation No. 8451651 to reduce the level of
negligence from “high” to “moderate.” I modify Citation No. 8452203 to raise the level of
negligence from “moderate” to “high.” I find that Citation Nos. 8439446, 8432319, 8439454
were properly issued, as written. I assess a total civil penalty of $32,636 for the five citations
adjudicated herein.
Based on a careful review of the entire record, including the parties’ post-hearing briefs
and my observation of the demeanor of the witnesses,3 I make the following findings of fact and
conclusions of law:
II.

PRINCIPLES OF LAW

A. Establishing a Violation
To prevail on a penalty petition, the Secretary bears the burden of proving by a
preponderance of the evidence that a violation of the Mine Act occurred. RAG Cumberland Res.
Corp., 22 FMSHRC 1066, 1070 (Sept. 2000), aff’d, 272 F.3d 590 (D.C. Cir. 2001). A mine
operator is held strictly liable for violations that occur at its mine. Spartan Mining Co., 30
FMSHRC 699, 706 (Aug. 2008). The operator may avoid liability only by showing that it was
not properly on notice of the violative nature of its conduct. Even in the absence of actual notice,
the Secretary may properly charge the operator with a violation when a reasonably prudent
person familiar with the protective purposes of the cited standard and the factual circumstances
surrounding the allegedly hazardous condition, including any facts peculiar to the mining
industry, would have recognized a hazard warranting corrective action within the purview of the
2

(…continued)
A:
No.
Q:
Okay. So your—your allegation is — is not that the mine wasn’t
conducting examinations? Your allegation is — is, When I inspected this
equipment, the chirp alert wasn’t working, right?
A:
Yes.
Q:
So there’s no dispute in your mind that the tests that are required by
[Section] 75.821(a) were actually performed at the times required, correct?
A:
Correct.

Tr. 109. In these circumstances, I found that Respondent complied with the requirements of §
75.821(a), and granted Respondent’s motion for directed verdict. Tr. 242-62.
3

In resolving conflicts in testimony, I have taken into consideration the demeanor of the
witnesses, their interests in this matter, the inherent probability of their testimony in light of
other events, corroboration or lack of corroboration for testimony given, experience and
credentials, and consistency, or lack thereof, within the testimony of witnesses and between the
testimony of witnesses.

38 FMSHRC Page 1382

applicable regulation. LaFarge North America, 35 FMSHRC 3497, 3500-01 (Dec. 2013); Ideal
Cement Co., 12 FMSHRC 2409, 2415-16 (Nov. 1990); Alabama By-Products Corp., 4
FMSHRC 2128, 2129 (Dec. 1982).
B. Gravity
The gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), “is
often viewed in terms of the seriousness of the violation.” Consolidation Coal Co., 18 FMSHRC
1541, 1549 (Sept. 1996) (citing Sellersburg Stone Co., 5 FMSHRC 287, 294-95 (March 1983),
aff'd, 736 F.2d 1147 (7th Cir. 1984); Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 681
(Apr. 1987)). The seriousness of a violation can be examined by looking at the importance of the
standard violated and the operator’s conduct with respect to that standard, in the context of the
Mine Act’s purpose of limiting violations and protecting the safety and health of miners. See,
e.g., Harlan Cumberland Coal Co., 12 FMSHRC 134, 140 (Jan. 1990) (ALJ).
The gravity analysis focuses on factors such as the likelihood of an injury, the severity of
an injury, and the number of miners potentially injured. The Commission has recognized that an
assessment of the likelihood of injury is to be made assuming continued normal mining
operations, without abatement of the violation. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130
(Aug. 1985).
C. Significant and Substantial (S&S)
The Mine Act describes an S&S violation as one “of such nature as could significantly
and substantially contribute to the cause and effect of a coal or other mine safety or health
hazard.” 30 U.S.C. § 814(d)(1).4
In a seminal early decision interpreting this statutory provision, the Commission held that
a violation is S&S “if, based on the particular facts surrounding the violation, there exists a
reasonable likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
In so holding, the Commission rejected the Secretary’s argument that all violations are S&S
except technical violations or violations that pose only a remote or speculative risk of injury or
illness. The Commission found that the Secretary’s interpretation would result in almost all
violations being categorized as S&S, which would be inconsistent with the statutory language
and the role the S&S provision is intended to play in the Mine Act’s graduated enforcement
scheme. 3 FMSHRC at 825, 828. The Commission also found that the Secretary’s interpretation

4

See also id. § 814(e), the Mine Act’s pattern-of-violations provision, which is the only
other provision that mentions S&S, and which defines the term the same way as § 814(d)(1).

38 FMSHRC Page 1383

would leave little room for inspectors to exercise their independent judgment. Id. at 825-26.5 In
addition, the Commission found that the Secretary’s interpretation would render the Act’s S&S
language almost superfluous, and would render the Act’s pattern-of-violation provisions wholly
punitive by making it almost impossible for a mine to be relieved of withdrawal order liability
once placed on notice of a pattern of violations. Id. at 826-27. Although the Commission did not
develop a test to determine whether violations are S&S, it enunciated several guiding principles.
Specifically, it stated that the term “hazard” denotes “a measure of danger to safety or health”
and that a violation is S&S if it “could be a major cause” of such a danger. Id. at 827.
In its subsequent Mathies decision, the Commission set forth a four-prong test for
determining whether a violation is S&S under National Gypsum. Mathies Coal Co., 6 FMSHRC
1 (Jan. 1984). To establish an S&S violation, the Secretary must prove: (1) the underlying
violation of a mandatory safety standard; (2) a discrete safety hazard – that is, a measure of
danger to safety – contributed to by the violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a reasonable likelihood that the injury in question
will be of a reasonably serious nature. Id. at 3-4. The Secretary, mine operators, and the federal
appellate courts have accepted the Mathies test as authoritative. See Knox Creek Coal Corp. v.
Sec’y of Labor, 811 F.3d 148, 160 (4th Cir. 2016) (noting federal appellate courts’ uniform
adoption of Mathies test and parties’ recognition of authority of test); Mach Mining, LLC v.
Sec’y of Labor, 809 F.3d 1259, 1267 (D.C. Cir. 2016) (applying Mathies criteria); Buck Creek
Coal, Inc. v. Fed. Mine Safety & Health Admin., 52 F.3d 133, 135 (7th Cir. 1995) (recognizing
wide acceptance of Mathies criteria); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th
Cir. 1988) (approving use of Mathies criteria).
Ensuing case law has solidly established several general principles regarding the proper
application of the Mathies test. The Commission has held that the S&S determination should be
made assuming “continued normal mining operations.” McCoy Elkhorn Coal Corp., 36
FMSHRC 1987, 1990-91 (Aug. 2014) (citing U.S. Steel Mining Co., 7 FMSHRC 1125, 1130
(Aug. 1985)). The assumption of continued normal mining operations considers “the length of
time that the violative condition existed prior to the citation and the time it would have existed if
normal mining operations had continued,” without any assumptions as to abatement. Black
Beauty Coal Co., 34 FMSHRC 1733, 1740 (Aug. 2012), aff’d sub nom. Peabody Midwest
Mining, LLC v. FMSHRC, 762 F.3d 611 (7th Cir. 2014); Rushton Mining Co., 11 FMSHRC
1432, 1435 (Aug. 1989); see also Knox Creek, 811 F.3d at 165-66 (upholding Commission’s
rejection of “snapshot” approach to evaluating S&S for accumulations violation); Mach Mining,
809 F.3d at 1267-68 (citing with approval McCoy Elkhorn’s discussion of operative timeframe
for S&S). The Commission has repeatedly stated that the S&S determination must be based on
5

The Commission has consistently reiterated that the inspector’s judgment is an
important element of the S&S determination. However, the concept has generally been raised in
the context of deferring to the inspector’s opinion that a violation was S&S, rather than in the
context of examining whether the inspector exercised independent judgment in forming this
opinion as opposed to merely following the “mechanical approach” advanced by the Secretary
and rejected by the Commission in National Gypsum, 3 FMSHRC at 825. See, e.g., Wolf Run
Mining Co., 36 FMSHRC 1951, 1959 (Aug. 2014); Maple Creek Mining, Inc., 27 FMSHRC 555,
563 n.6 (Aug. 2005); Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998).

38 FMSHRC Page 1384

the particular facts surrounding the violation. See, e.g., Wolf Run Mining Co., 36 FMSHRC 1951,
1957-59 (Aug. 2014) (remanding S&S finding for further consideration of relevant
circumstances); Black Beauty, 34 FMSHRC at 1740; Peabody Coal Co., 17 FMSHRC 508, 51112 (Apr. 1995); Texasgulf, Inc., 10 FMSHRC 498, 500 (Apr. 1988).
A line of cases beginning with the Seventh Circuit’s decision in Buck Creek, supra, has
established that an operator cannot rely on redundant safety measures to mitigate the likelihood
of injury for S&S purposes. See, e.g., Brody Mining, LLC, 37 FMSHRC 1687, 1691 (Aug.
2015).6 Finally, Commission precedent indicates that the likelihood of injury is the key
consideration in determining whether a violation is S&S. Consolidation Coal Co., 18 FMSHRC
1541, 1550 (Sept. 1996) (comparing S&S inquiry, which focuses on “the reasonable likelihood
of serious injury,” with gravity inquiry, which focuses on “the effect of the hazard if it occurs”).
The evolving case law, however, has presented conflicting guidance as to how some of
these principles should be applied. In particular, there is some confusion about how to evaluate
the facts surrounding the violation and the likelihood of injury under the second and third prongs
of the Mathies analysis. The Fourth Circuit’s recent decision in Knox Creek, supra, and the
Seventh Circuit’s decision in Peabody Midwest Mining, LLC v. FMSHRC, 762 F.3d 611 (7th Cir.
2014), have cast doubt on whether the traditional application of the literal language of the second
and third prongs of the Mathies test is still valid.
Traditional Application of Mathies Test
Under the traditional approach, Commission Administrative Law Judges (ALJs) have
conducted the fact-intensive component of the analysis and evaluated the reasonable likelihood
of injury at the third prong. In one of its earliest decisions applying the Mathies test, the
Commission explained that “the reference to ‘hazard’ in the second element [of the test] is
simply a recognition that the violation must be more than a mere technical violation – i.e., that
the violation present a measure of danger.” U.S. Steel Mining Co., 6 FMSHRC 1834, 1836.
“There is no requirement of ‘reasonable likelihood’” encompassed in this element. Musser
Engineering, Inc., 32 FMSHRC 1257, 1280 (Sept. 2010). Rather, longstanding Commission
precedent indicates that the likelihood of harm should be accounted for in the third Mathies
element, which “requires that the Secretary establish a reasonable likelihood that the hazard
contributed to will result in an event in which there is an injury.” U.S. Steel, 6 FMSHRC at 1836
(quoted by the Commission on numerous occasions over the next two decades, including in Elk
6

It is not completely clear whether redundant safety measures are precluded from
consideration such that it is error to take them into account, which could make it difficult for
judges at the trial level to discharge their duty of considering all the particular facts surrounding
the violation, or whether arguments that rely on redundant safety measures are simply disfavored
as a defense to S&S. Compare Brody Mining, 37 FMSHRC at 1691 (stating that evidence
regarding redundant safety measures has been “consistently rejected as irrelevant”) with Black
Beauty, 36 FMSHRC 1121, 1125 n.5 (May 2014) (stating only that such measures “do not
prevent a finding of S&S”) and Buck Creek, 52 F.3d at 136 (“The fact that Buck Creek has safety
measures in place to deal with a fire does not mean that fires do not pose a serious safety risk to
miners.”).

38 FMSHRC Page 1385

Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005); Bellefonte Lime Co., 20 FMSHRC 1250,
1254-55 (Nov. 1998); Zeigler Coal Co., 15 FMSHRC 949, 953 (June 1993); and Texasgulf, 10
FMSHRC at 500). As the Commission explained in another early decision, “The third element
embraces a showing of a reasonable likelihood that the hazard will occur, because, of course,
there can be no injury if it does not.” Consolidation Coal Co., 6 FMSHRC 189, 193 (Feb. 1984).
Following this guidance, ALJs have traditionally applied Mathies by identifying the
potential hazard at the second prong, and then at the third prong, assessing whether there is a
reasonable likelihood that the hazard will result in injury under the particular facts of the case at
hand, with the caveat that normal mining operations are assumed to continue without abatement
of the violation. The crux of this traditional Mathies analysis is the third and fourth prongs of the
test, which effectuate National Gypsum’s definition of S&S (reasonable likelihood of a
reasonably serious injury) and are often combined into a single showing (reasonable likelihood
that a particular serious injury will occur under the facts of the case). Consistent with this
approach, MSHA inspectors determine whether a violation meets the criteria for S&S by the
likelihood of injury and the expected severity of injury, which correspond to the third and fourth
Mathies elements.7
Over the years, it appears that the Commission, with court approval, has developed
special rules for applying the Mathies test in two situations. First, for violations that contribute to
the hazard of an ignition, fire, or explosion, the Commission has held that the third Mathies
element is satisfied only when a “confluence of factors” is present that could have triggered an
ignition, fire, or explosion, under continued normal mining operations. Zeigler Coal Co., 15
FMSHRC at 953; Texasgulf, 10 FMSHRC at 501; see, e.g., Paramont Coal Co. Va., LLC, 37
FMSHRC 981, 984 (May 2015). Second, for violations of emergency safety standards, the
Commission assumes the emergency when making the S&S evaluation. See, e.g., Cumberland
Coal Res., LP v. FMSHRC, 717 F.3d 1020, 1027-28 (D.C. Cir. 2013); Mill Branch Coal Corp.,
37 FMSHRC 1383, 1394 (July 2015).
Effect of Recent Fourth & Seventh Circuit Decisions
The Fourth Circuit’s recent Knox Creek decision issued in January 2016 appears to shift
the focus of the S&S analysis from the third to the second Mathies prong and to restrict
consideration of the facts bearing on the reasonable likelihood of injury under the third prong.
The Fourth Circuit interpreted the second Mathies prong to entail an inquiry into the likelihood
of harm, stating:
In our view, the second prong of the test … primarily accounts for
the Commission’s concern with the likelihood that a given
7

The Secretary’s citation/order form contains boxes for inspectors to check the likelihood
of injury and the expected severity of injury immediately above the line where they designate the
violation S&S or non-S&S. Inspectors are trained not to designate a violation as S&S, unless
item 10.A on the form is marked “reasonably likely,” “highly likely,” or “occurred,” and item
10.B is marked “lost workdays or restricted duty,” “permanently disabling,” or “fatal.” See
MSHA, PROGRAM POLICY MANUAL, Vol. I, § 104 (2003).

38 FMSHRC Page 1386

violation may cause harm. This follows because, for a violation to
contribute to a discrete safety hazard, it must be at least somewhat
likely to result in harm.
Knox Creek, 811 F.3d at 162. Significantly, the Fourth Circuit further held that the occurrence of
the hazard must be assumed under the third prong of the Mathies test. Id. at 161-65. Evidence of
the likelihood that the hazard will occur is not considered at this prong, according to the Fourth
Circuit. Rather, the inquiry is whether the hazard, assuming it occurred, would result in serious
injury. Id. at 162.
The particular hazard confronted by the Fourth Circuit in Knox Creek was the escape of
ignited gas into the mine atmosphere through impermissible enclosures. Id. at 164. The parties
had stipulated that the mine was a “gassy” mine that liberated more than 500,000 cubic feet of
methane or other explosive gases per day. Id. at 164. Consequently, the ALJ had found that
methane was reasonably likely to accumulate to explosive concentrations. Id. The ALJ had also
found that a resulting explosion was reasonably likely to cause serious injuries, but he had
ultimately declined to find that the violation was S&S because the Secretary had failed to prove
the likelihood of an ignition. Id. at 154, 164-65. Without discussing the likelihood of ignition, the
Fourth Circuit deemed the ALJ’s other findings sufficient to satisfy the third Mathies prong. Id.
Previously, in Peabody Midwest Mining, the Seventh Circuit had similarly suggested that
the S&S analysis assumes the occurrence of the hazard. The violation at issue in that case was
the mine operator’s failure to erect berms on an elevated roadway. The Seventh Circuit defined
the hazard as the risk that a vehicle would veer off the roadway and go over the edge. Peabody
Midwest, 762 F.3d at 616. The operator had argued that a vehicle was not reasonably likely to
veer off the road. Id. However, the Seventh Circuit stated that the question “is not whether it is
likely that the hazard (a vehicle plummeting over the edge) would have occurred” but “whether,
if the hazard occurred (regardless of likelihood), it was reasonably likely that a reasonably
serious injury would result.” Id.
Peabody Midwest does not discuss the proper role of deference in the S&S context, but
the Fourth Circuit reached its holding in Knox Creek by deferring to the Secretary’s
interpretation that the third Mathies element requires proof that the hazard, not the violation
itself, is likely to cause injury. 811 F.3d at 161 (declining to afford deference under Chevron,
USA, Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), but finding the Secretary’s
interpretation persuasive and therefore entitled to deference under Skidmore v. Swift & Co., 323
U.S. 134 (1944)). The Fourth Circuit further asserted that this interpretation is consistent with a
number of prior cases, including the Seventh Circuit’s decisions in Peabody Midwest and in
Buck Creek, supra, 52 F.3d at 135 (assuming occurrence of fire at third Mathies prong when ALJ
had engaged in “confluence of factors” analysis at second prong); the Fifth Circuit’s decision in
Austin Power, supra, 861 F.2d at 103-04 (declining to require evidence that the hazard was likely
to occur); and the Commission’s decision in Musser Engineering, supra, 32 FMSHRC at 128081 (stating that the third Mathies prong requires a showing that the hazard, not the violation

38 FMSHRC Page 1387

itself, will cause injury). 811 F.3d at 161-62.8 The Fourth Circuit rejected the operator’s
argument that under Zeigler Coal Company, supra, the Secretary must show that an ignition is
reasonably likely under the third Mathies prong. 811 F.3d at 164. The Court found this position
to be “flatly contradicted” by Musser Engineering and by decisions of other federal appellate
courts. Id.
The Fourth Circuit emphasized, however, that the Mathies approach that it has adopted
“still allows plenty of room for a fact-intensive S & S analysis, both under prong two, where the
Secretary must establish that the violation contributes to a discrete safety hazard, and within
prongs three and four, where evidence is still necessary to establish that the hazard is reasonably
likely to result in a serious injury.” Id. Realistically, however, it will likely require very little
fact-specific analysis to conclude that any given non-technical violation contributes to a discrete
safety hazard, because the Secretary generally does not promulgate a mandatory health and
safety regulation (except technical regulations), unless the Secretary has already found that
violating the standard would contribute to a hazard. Under the third Mathies prong, judges must
consider all of the facts surrounding the violation, but must assume continued normal mining
operations without abatement of the violation, and may not rely on redundant safety measures to
mitigate the likelihood of injury. Now, under Knox Creek and Peabody Midwest Mining, judges
must also assume that the hazard will actually occur. At some point, so many circumstances are
either assumed or precluded from consideration that judges will find themselves evaluating the
likelihood of injury in the abstract. If this is the case, the Commission will have turned its back
on the principles set forth in National Gypsum because the Mathies test will have become a
longhand expression for “non-technical violations.” S&S will apply to almost all violations and
therefore will no longer serve as a statutory tool by which the Secretary can single out the
violations that he believes the Commission should consider significant and substantial when
assessing a penalty.
As noted above, the Fourth Circuit reached its result in Knox Creek by deferring to the
Secretary’s interpretation of the Mine Act, and the Seventh Circuit reached a similar result. At
8

It is debatable to what extent Austin Power and Buck Creek truly stand for the
proposition the Fourth Circuit seems to be embracing, which is that the actual likelihood of
injury is irrelevant, except to the extent necessary to establish a “discrete” hazard at the second
Mathies prong. In Austin Power, the Fifth Circuit upheld an S&S finding for a fall protection
violation, reasoning that “[a] danger of falling is a necessary element of this violation, so by the
very nature of a violation there was a discrete safety hazard.” 861 F.2d at 103. However, the
hazard had actually occurred and had resulted in a fatality, which may have influenced the
Court’s failure to require additional evidence of likelihood at the third Mathies prong. 861 F.2d
at 100. In Buck Creek, the Seventh Circuit did not expressly discuss the proper application of the
Mathies test, but simply rejected the mine operator’s argument that the ALJ had not put enough
emphasis on the third and fourth Mathies factors when evaluating S&S for an accumulations
violation. 52 F.3d at 135. The ALJ had made a finding at the second Mathies prong (rather than
the third) that there existed a confluence of factors, including fuel sources and ignition sources,
that could trigger a fire. Id. By contrast, in Knox Creek, the Fourth Circuit did not require a
“confluence of factors” analysis or a showing that an ignition source existed at any prong of the
Mathies test.

38 FMSHRC Page 1388

the outset of its analysis, the Fourth Circuit indicated that it would review the Commission’s
legal conclusions de novo but would afford deference to the Secretary’s, not the Commission’s,
legal interpretations. Id. at 157 (citing Sec’y of Labor ex rel. Wamsley v. Mut. Mining, Inc., 80
F.3d 110, 113-15 (4th Cir. 1996), in which the Fourth Circuit discussed the Mine Act’s splitenforcement scheme and concluded that an informal rule created and implemented by the
Secretary was entitled to deference over a contrary Commission decision).
It is not surprising that the Circuit Courts have departed somewhat from the traditional
Mathies analysis in favor of the Secretary’s legal interpretation, given the rule of deference
mentioned above, and given the fact that the Secretary’s attorneys, and not the Commission’s,
are the ones who argue for enforcement of the Commission’s decisions in the Circuit Courts of
Appeals. That latter protocol is strange. Notwithstanding the propriety of the rule of deference
applied by the Fourth Circuit, which raises concerns that I previously discussed in Knife River
Corporation Northwest, 34 FMSHRC 1109, 1125-27 (May 2012) (ALJ), it does not make sense
that although Congress conferred independent adjudicatory authority upon the Commission to
serve as an impartial forum for Mine Act litigation, and although the Commission itself laid out
the test that parties have followed for more than thirty years to litigate S&S in this forum, the
Secretary is permitted to challenge the Commission’s interpretation of this long-standing test in
the Circuit Courts of Appeals and litigate his own interpretation on behalf of the Commission. It
should be obvious that since the Secretary is one of the litigating parties before the Commission
at the trial level, the Commission’s and the Secretary’s views on interpretation of the Act may
differ. See e.g., The American Coal Co., 36 FMSHRC 1311 (May 2014) (ALJ), petition for
interlocutory review granted, Unpublished Order dated July 11, 2014. In my view, the
Commission’s interpretations of Mine Act provisions that turn on adjudication and not
enforcement should be accorded at least some form of deference based on the power to persuade,
as evidenced by the fact that courts and litigants have uniformly followed the Commissionderived Mathies test.9 Compare Chevron, supra (according full deference to agency’s reasonable
interpretation of ambiguous statutory provision) with United States v. Mead Corp., 533 U.S. 218
(2001) (according deference based on “power to persuade” under Skidmore, supra, and finding
that Chevron applies only where the agency was authorized by Congress to make rules carrying
the force of law and did in fact promulgate the proffered interpretation in the exercise of that
authority). It is within the Commission’s authority to specify how the second and third factors of
the Mathies test should be applied – particularly, whether the hazard must now be assumed at the
third factor, and if so, what steps of the test account for the facts surrounding the violation – and
whether the Mathies test is still intended to effectuate National Gypsum’s interpretation of the
S&S provisions of the Mine Act or whether the Commission now interprets S&S differently.
Because I am bound by the Mathies test, I will evaluate S&S under this test after taking
into consideration the more recent approach set forth in Knox Creek and Peabody Midwest
Mining.

9

But see Cumberland Coal Res., LP v. FMSHRC, 717 F.3d 1020, 1027 (D.C. Cir. 2013)
(expressly declining to address validity of Mathies test).

38 FMSHRC Page 1389

D. Negligence
Negligence is not defined in the Mine Act. The Commission has found “[e]ach
mandatory standard thus carries with it an accompanying duty of care to avoid violations of the
standard, and an operator’s failure to satisfy the appropriate duty can lead to a finding of
negligence if a violation of the standard occurred.” A.H. Smith Stone Co., 5 FMSHRC 13, 15
(Jan. 1983) (citations omitted). In determining whether an operator meets its duty of care under
the cited standard, the Commission considers what actions would have been taken under the
same or similar circumstances by a reasonably prudent person familiar with the mining industry,
the relevant facts, and the protective purpose of the regulation. See generally U.S. Steel Corp., 6
FMSHRC 1908, 1910 (Aug. 1984). See also Jim Walter Res., Inc., 36 FMSHRC 1972, 1975,
1976-77 (Aug. 2014) (requiring Secretary to show that operator failed to take specific action
required by standard violated); Spartan Mining Co., 30 FMSHRC 699, 708 (Aug. 2008)
(negligence inquiry circumscribed by scope of duties imposed by regulation violated).
The Mine Act imposes a high standard of care on foremen and supervisors. Midwest
Material Co., 19 FMSHRC 30, 35 (Jan. 1997) (holding that “a foreman … is held to a high
standard of care”); see also Capitol Cement Corp., 21 FMSHRC 883, 892-93 (Aug. 1999)
(“Managers and supervisors in high positions must set an example for all supervisory and
nonsupervisory miners working under their direction,” (quoting Wilmot Mining Co., 9 FMSHRC
684, 688 (Apr. 1987)); S&H Mining, Inc., 17 FMSHRC 1918, 1923 (Nov. 1995) (heightened
standard of care required of section foreman and mine superintendent).
Although MSHA’s regulations regarding negligence are not binding on the Commission,
see Wade Sand & Gravel Co., 37 FMSHRC 1874, 1878 n.5 (Sept. 2015), MSHA defines
negligence by regulation in the civil penalty context as follows:
Negligence is conduct, either by commission or omission, which
falls below a standard of care established under the Mine Act to
protect miners against the risks of harm. Under the Mine Act, an
operator is held to a high standard of care. A mine operator is
required to be on the alert for conditions and practices in the mine
that affect the safety or health of miners and to take steps necessary
to correct or prevent hazardous conditions or practices. The failure
to exercise a high standard of care constitutes negligence. The
negligence criterion assigns penalty points based on the degree to
which the operator failed to exercise a high standard of care.
When applying this criterion, MSHA considers mitigating
circumstances which may include, but are not limited to, actions
taken by the operator to prevent or correct hazardous conditions or
practices . . . .
30 C.F.R. § 100.3(d).
MSHA regulations further provide that mitigation is something the operator does
affirmatively, with knowledge of the potential hazard being mitigated, and that tends to reduce

38 FMSHRC Page 1390

the likelihood of an injury to a miner. This includes actions taken by the operator to prevent or
correct hazardous conditions. 30 C.F.R. § 100.3(d). According to MSHA, the level of
negligence is properly designated as high when “[t]he operator knew or should have known of
the violative condition or practice, and there are no mitigating circumstances.” 30 C.F.R. §
100.3, Table X. The level of negligence is properly designated as moderate when “[t]he operator
knew or should have known of the violative condition or practice, but there are mitigating
circumstances.” Id. The level of negligence is properly designated as low when there are
considerable mitigating circumstances surrounding the violation. Id.
Recently, the Commission held that Commission judges are not required to apply the
level-of-negligence definitions in Part 100 and may evaluate negligence from the starting point
of a traditional negligence analysis rather than from the Part 100 definitions. Brody Mining, LLC,
37 FMSHRC 1687, 1701 (Aug. 2015); accord Mach Mining, LLC v. Sec’y of Labor, 809 F.3d
1259, 1263-64 (D.C. Cir. 2016). Moreover, because Commission judges are not bound by the
definitions in Part 100 when considering an operator’s negligence, they are not limited to a
specific evaluation of potential mitigating circumstances, and may find “high negligence,” in
spite of mitigating circumstances, or moderate negligence, without identifying mitigating
circumstances. Brody, 37 FMSHRC at 1701; Mach Mining, 809 F.3d at 1263-64. In this regard,
the gravamen of high negligence is “an aggravated lack of care that is more than ordinary
negligence.” Brody, 37 FMSHRC at 1701 (citing Topper Coal Co., 20 FMSHRC 344, 350 (Apr.
1998)0. Thus, in making a negligence determination, a Commission judge is not limited to an
evaluation of allegedly mitigating circumstances and may consider the totality of the
circumstances holistically. Under such an analysis, an operator is negligent if it fails to meet the
requisite high standard of care under the Mine Act. Id.
E. Penalty Assessment
The Act requires that the Commission consider the following statutory criteria when
assessing a civil penalty: (1) the operator’s history of previous violations; (2) the appropriateness
of the penalty to the size of the business; (3) the operator’s negligence; (4) the operator’s ability
to stay in business; (5) the gravity of the violation; and (6) any good-faith compliance after
notice of the violation. Douglas R. Rushford Trucking, 22 FMSHRC 598, 600 (May 2000); 30
U.S.C. § 820(i). The Commission is not required to give equal weight to each of the criteria, but
must provide an explanation for any substantial divergence from the proposed penalty based on
such criteria. Spartan Mining Co., 30 FMSHRC 699, 723 (Aug. 2008).
As I discussed in my final Big Ridge decision, in an effort to avoid the appearance of
arbitrariness, I look to the Secretary’s penalty regulations and assessment formula as a reference
point that provides useful guidance when assessing a civil penalty. Big Ridge Inc., 36 FMSHRC
1677, 1681-82 (July 2014) (ALJ); see also Wade Sand & Gravel, supra, at 1880 n.1 (Chairman
Jordan and Commissioner Nakamura, concurring). See also Bowles v. Seminole Rock & Sand
Co., 325 U.S. 410, 414 (1945) (holding that an agency’s interpretation of its own regulation
should be given controlling weight unless it is plainly erroneous or inconsistent with the
regulation). This formula is not binding, but operates as a lodestar, since factors involved in a
violation, such as the level of negligence, may fall on a continuum rather than fit neatly into one
of five gradations. Unique aggravating or mitigating circumstances will be taken into account

38 FMSHRC Page 1391

and may call for higher or lower penalties that diverge from this paradigm. My independent
penalty assessment analysis applies to each of the citations at issue in this case.
III. Stipulated Facts
A. Stipulations of Fact
At hearing, the parties agreed to the following stipulations:
1. Respondent is subject to the Federal Mine Safety and Health Act of 1977 and to the
jurisdiction of the Federal Mine Safety and Health Review Commission.
2. The presiding Administrative Law Judge has the authority to hear this case and issue a
decision.
3. Respondent has an effect upon commerce within the meaning of Section 4 of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 803.
4. At all relevant times, Respondent operated Mach No. 1 Mine, Mine ID 11-03141.
5. The violations in this docket are complete, authentic and admissible, but the
Respondent does not stipulate to the allegations asserted therein.
6. Respondent mined 7,528,061 tons of bituminous coal in 2012 at Mach No. 1 Mine.
7. The violations in this docket were properly served on Respondent by a duly authorized
representative of the Secretary on the dates stated therein.
8. The penalties proposed in this docket would not affect Respondent’s ability to remain
in business.
9. Respondent abated the citations involved herein in a timely manner and in good faith.
8. Tom Crum, Jr. is an agent of the operator Mach Mining. Tr. 272.
J. Ex. 1.
IV. Background Information
Mach Mining’s No. 1 Mine is an underground coal mine located in Marion, Illinois. The
height of the mine is generally nine to ten feet. Tr. 619. The mine is subject to five-day spot
inspections by the Department of Labor’s Mine Safety and Health Administration (MSHA),
pursuant to § 103(i) of the Mine Act because the mine liberates more than one million cubic feet
of methane or other explosive gases during a 24-hour period. 30 U.S.C. § 813(i); see Tr. 35, 21110. At the time of the October 14, 2014 inspection, the mine liberated approximately two million
cubic foot of methane in a 24-hour period. Tr. 158, 211-10.

38 FMSHRC Page 1392

V. Citation No. 8451651
A. Findings of Fact
1. The Inspection
On October 15, 2014, MSHA inspector Chad Lampley10 issued Citation No. 8451651
during an E16 inspection of Mach Mine’s No. 1 mine.11 Tr. 140-42. Mark Schilke, the mine
safety manager, accompanied Lampley during the inspection.12 Tr. 143, 152, 159-160. The
inspection was conducted during a production shift. Tr. 155. At the time of Lampley’s
inspection, however, mining had halted due to a problem with a conveyer belt. Tr. 153-54, 21415.
2. The Location of the Truck
During the inspection, Lampley noticed a Dodge Ram pickup truck parked facing inby in
the #3 tailgate entry at the no. 109 crosscut, two crosscuts from the longwall face. Tr. 144-45,
152; see P. Ex. 113.13 Lampley used a 25-foot tape measure and determined that the dieselpowered truck was approximately 144 feet from the face, rather than the required 150 feet. Tr.
146-47.14 Shilke observed Lampley measure the distance between the face and the truck. Tr. 302,
316. Neither Shilke nor Lampley reported any other measurements of the truck’s location. Tr.
147, 301-02. Respondent does not dispute that the truck was closer than 150 feet from the
longwall face. R. Post Hr’g Br. 4.
10

At hearing, Lampley had been a certified mine inspector with MSHA for seven years.
He received a degree in Applied Science from Southern Illinois University (SIU). Upon
graduation, Lampley worked in the automotive field and taught classes at SIU in automotive
base, and electrical theory and operation. Prior to his employment at MSHA, Lampley worked at
American Coal performing general mining tasks and maintenance. Tr. 140-41.
11

MSHA ceased its regular EO1 quarterly inspections and normal 103(i) spot inspections
during the 2014 government shutdown. Tr. 142. Nonetheless, Lampley still conducted E16 spot
inspections of the working areas of the mine. Id.
12

Schilke was a certified mine manager, examiner, instructor, and mine rescuer. 299-300.
He worked for Respondent since 2010 in a variety of roles. Tr. 299. He had a bachelor’s degree
in mining engineering from SIU. Tr. 299-300.
13

There is some confusion about the correct crosscut numbers. The crosscut referenced in
the text above as no. 109 is referred to in Lampley’s testimony as no. 108 and in Schilke’s
testimony as no. 109. Similarly the crosscut referred to herein as no. 110 is referred to in
Lampley’s testimony as no. 109 and in Schilke’s testimony as no. 110. In the interest of clarity, I
use Schilke’s numbers as he was more certain about this issue at hearing.
14

Electric face equipment must be permissible within 150 feet from pillar workings or
longwall faces or in return air outby the last open crosscut. 30 C.F.R. §§75.1002 and 75.507-1.

38 FMSHRC Page 1393

Lampley learned that Tom Allen Crum, Jr. (Crum), the longwall maintenance supervisor,
drove the truck. Tr. 152-53, 162, 213. Lampley did not speak to Crum. Tr. 215.
Crum testified that he drove his truck into the #3 tailgate entry to repair a conveyor belt.
Tr. 265-67, 287.15 Schilke testified that the truck was parked “slightly” inby the outby corner of
crosscut 109. Tr. 305-06. Crum, however, testified that the truck was even with the outby corner.
Tr. 268-69. I credit Schilke, particularly since his testimony is consistent with Respondent’s map
of the area where Crum parked. See R. Ex. 8.
There were no footage markers to indicate the distance from the face. Tr. 316. Crum
estimated that he parked over 150 feet from the face because the crosscut centers were 120 feet
and the face appeared 50 feet further than the last crosscut center. Tr. 268-71, 284. Because that
crosscut was open, Crum knew that he was not permitted to drive further into the return air. Tr.
282-83. There were no obstructions blocking Crum from driving the truck all the way to the face.
Tr. 216. Crum testified that had he intended to breach the 150-feet limit, he could have easily
parked by the face. Tr. 271-72, 280. Crum opined that his actions demonstrated his intent to
comply with the permissibility requirements, and that they negate any classification of high
negligence. Tr. 279-80.
Crum further testified that he would have moved his truck before production resumed. Tr.
286-87. He further admitted that he would have started the truck’s ignition to do so, because he
had assumed that it was not parked in return air. Tr. 287.
3. The Presence of Methane
a. The Temperature of the Air
Inspector Lampley was concerned that the non-permissible diesel truck was parked in
return air, which presented a methane ignition hazard. Tr. 148-49. Lampley testified that return
air is warm and moist due to heat emitted from the longwall mining unit. Tr. 144, 146, 150. Near
the truck, Lampley observed that the air approaching him from the face was warmer than the
intake air at his back, indicating the presence of return air. Tr. 144, 146, 199.
Respondent’s witnesses disagree. Schilke testified that the vehicle was in intake air
because he felt cool air at his back and warm return air was not present until the middle of the
intersection. Tr. 305-08. Crum testified that when he exited his truck, he felt cool intake air at his
back. Tr. 273-76. Crum testified that there was little to no air movement where he parked the
vehicle. Tr. 273. Crum further testified that he did not feel return air until midway through the
crosscut. Tr. 283.

15

Crum had 13-14 years of mining experience and had worked at several companies in a
variety of roles. Tr. 263-64. Crum was a certified mine electrician, with face and examiner
papers. Tr. 264. He was a member of mine management and a stipulated agent of Respondent.
Tr. 272.

38 FMSHRC Page 1394

Longwall coordinator Parker Phipps drove an Electric Mine Utility vehicle (EMU) to the
longwall tailgate that day. Tr. 324.16 Phipps was aware of the requirement to park in intake air at
least 150 feet from the face. Tr. 339. He parked approximately 150 feet from the face near open
crosscut no. 109. Tr. 324, 340; see P. Ex. 110 and R. Ex. 8. After learning about the citation,
Phipps observed Crum’s truck underground. Tr. 330. Phipps testified that Crum’s truck was
parked even with the outby rib, approximately two feet from the solid coal wall. Tr. 330-331,
333. Phipps testified that the front of Crum’s truck was within ten feet of the front of his own
vehicle. Tr. 343. Facing inby, Phipps walked into the area between Crum’s truck and the solid
right-hand rib. Tr. 333. Phipps testified that the air was cool and moved inby. Id. Because return
air from the longwall was warmer and more humid, Phipps opined that the truck was in intake
air. Tr. 325, 328.
By the feel of the air, Phipps opined that the return air began in the center of the crosscut.
Tr. 329, 358-359. Phipps referred to the crosscut center as a mixing zone for return and intake
air. Tr. 329. Mixing zones are classified as return air. Tr. 363. Phipps believed that the mixing
zone was inby Crum’s truck, which left the truck entirely within intake air. Tr. 329-331, 335,
363. Phipps later testified, however, that the truck was near a “dead spot” with little air
movement, where both the outby and inby air courses met. Tr. 353-54.
b. Inspector Lampley’s Smoke Test
After noting the temperature differentials, Lampley performed a smoke test to determine
the direction of return air. Tr. 150-51. A smoke test reveals the path of air along the mine’s
ventilation pattern. Id. With respect to ventilation in this area, Respondent sent 90,000-100,000
cubic feet of air per minute (cfm) from the headgate, which was well over the required 60,000
cfm. Tr. 181-82. Phipps testified that a great velocity of air would dilute gases. Tr. 355. In fact,
Phipps opined that as little as 50 cfm of air would render flammable or noxious gases harmless,
although Phipps did not know if the air around the truck reached that velocity. Tr. 361-62.
Lampley released smoke at the mining face and observed it travel down the entry. Tr.
145-46, 150-51, 207-08. The heavy airflow displaced the smoke, so Lampley released smoke
into the atmosphere several times as he neared the truck. Tr. 208-10.
The smoke test revealed that the air traveled down the longwall face to the T-split, where
it either seeped into the gob or branched off towards the #2 and #3 tailgate entries. Tr. 145, 176,
182-84.17 Because the #2 entry had lower air pressure than the #3 entry, the majority of the air
moved from the #3 entry into the #2 entry through the open no. 110 crosscut. The remaining air
in the #3 entry reached the open no. 109 crosscut where the truck was located. Tr. 145, 184, 20507. Stoppings were legally removed at the nos. 109 and 110 crosscuts (the first two crosscuts
after the T-split) to allow this air movement. Tr. 187.
16

Phipps was a licensed, professional engineer and was a certified mine examiner,
manager, and fire boss. Tr. 323. His duties included running the longwall on a day-to-day basis,
planning production, and dealing with MSHA inspectors. Tr. 323-324.
17

A “gob” is an area of the mine where coal has been removed and the roof and strata
have been allowed to cave in. Tr. 177.

38 FMSHRC Page 1395

Because the return air that reached the no. 109 crosscut was also drawn into the #2 entry,
it moved faster at the corner near the crosscut than it did in the middle or other side of the entry
near Crum’s truck. Tr. 186, 194-95. Lampley noticed that while a large portion of the return air
hugged the inby corner near the crosscut, some smoke traveled directly over the hood,
windshield, and cab of the truck. Tr. 151, 185-87, 194, 200. Rather than continue over the back
of the truck, the air turned and exited into the #2 entry through the crosscut upon meeting the
intake air in a “mixing zone.” Tr. 147, 161, 198. Lampley testified that the front of the truck up
to the cab area was in return air, and that the cab to the tailgate bumper at the back of the truck
was in the intake air. Tr. 146, 198-99.
During the inspection, Schilke watched Lampley conduct the smoke test. Tr. 303, 308.
Schilke testified that Lampley had to stand “almost over the hood of the truck” before the smoke
sample traveled over the hood. Tr. 308. No smoke test was conducted at the tailgate of the truck.
Tr. 313-14.
Schilke testified that when Lampley tested further inby from the truck, the sample
traveled towards the no. 109 crosscut, rather than over the hood of the truck. Tr. 309-311.
Further, Schilke testified that when Lampley tested directly over the hood of the truck, the smoke
rose and spread out, indicating to Schilke that the truck was in a dead spot. Tr. 307-309, 315.
Schilke determined that this dead spot was caused by a “mixing zone” where return and intake
air met. Tr. 307. On cross examination, however, Schilke conceded that if the truck was in the
intake air, that air would push the smoke inby above the truck, which did not occur, rather than
allow the smoke to rise and spread, which did occur. Tr. 315-16.
Lampley testified that the exact location of the truck within the return air was not
important. Tr. 158-59. Rather, any place inby the intake air at crosscut no. 109 posed an equal
hazard because it had the same, undiluted gas concentration where no additional air was added.
Tr. 158-59, 194, 196-97, 221-22. Because of this, Lampley chose not to test the air volume. Tr.
166, 195-96, 198, 219. Lampley conceded, however, that the concentration of gas would
diminish in a mixing zone. Tr. 198. Most of the mixing occurred near the corner where the air
velocity was greatest, not above the truck. Tr. 200-201, 222. Lampley did not see any swirling
smoke over the truck to indicate the mixing of intake and return air. Tr. 222-23. Lampley
agreed, however, that there was no way to easily distinguish between return air and intake air. Tr.
201-02.
c. Other Considerations
Schilke testified that the cited area usually had 20.9 % oxygen and up to 0.1 % methane
during production. Tr. 318. By contrast, Phipps testified that methane concentrations typically
reached 0.6 % to 0.8 % during production. Tr. 332. While Phipps was in the cited area, his
methane spotter reported 20.8 % oxygen, no methane, and no carbon monoxide. Tr. 331. He
testified that historically no methane was produced in the area when the longwall was down. Tr.
331-332.

38 FMSHRC Page 1396

Crum also carried a methane detector, which produces audio and visual warnings when
methane concentrations reach one percent. Tr. 276-77. Crum watched his detector closely and
observed no methane in the cited area. Tr. 277.
During the repair work near the longwall face, the miners were required to take air
readings every fifteen minutes with individual methane spotters. Tr. 289-90. The readings
detected no methane. Id. Crum reported that all the checks were properly conducted. Tr. 290.
Schilke testified that no methane or carbon monoxide was present because the longwall
had been down for several hours before Crum’s truck arrived. Tr. 312-13. Lampley did not know
how long the longwall had been down before Crum parked his truck, but Lampley noted that the
hood of Crum’s truck was still warm at the time of the inspection. Tr. 155, 213-14.
Schilke testified that the inspection began at approximately 6:00 a.m. Tr. 301. Phipps
testified that the longwall had been down for several hours when Phipps arrived between 5:00
and 6:00 a.m. Phipps further testified that Crum’s truck had not yet arrived. Tr. 332, 338, 341-42.
Crum, however, testified that after working the day shift, he returned to the mine between 2:00
and 3:00 a.m. because the longwall was down. Tr. 265.
4. Issuance of Citation No. 8451651
After observing that Crum’s non-permissible, diesel-powered pick-up truck was being
used where permissible electrical equipment was required, Lampley issued Citation No. 8451651
for a violation of 30 C.F.R. § 75.1907(a), which requires that all diesel-powered equipment used
where permissible electrical equipment is required must be approved under part 36. Tr. 147-48.
Lampley determined that the violation was S&S and contributed to a methane ignition hazard
that was reasonably likely to result in fatal injuries affecting four miners, as a result of
Respondent’s high negligence. Tr. 156, 162-63. The Secretary proposed a penalty of $16,867.
Lampley determined that the cited diesel truck was not permissible because it lacked
properly enclosed electrical components necessary to prevent a methane ignition in the mine
atmosphere. Tr. 147-49. Engine enclosures prevent flame paths from reaching the atmosphere.
Tr. 149.
Lampley determined that the truck would likely ignite methane for several reasons. The
truck had numerous ignition sources including a starter motor and a combustion engine, which
produced thousands of combustions per minute. The electrical components of the truck were not
sufficiently enclosed to contain any sparks from the engine. The diesel-powered truck did not
have countermeasures, such as flame arresters, that were required in permissible equipment. Tr.
156-7. Most of the ignition sources were in the front of the truck and exposed to return air. Tr.
224. The cited truck was in the tailgate (rather than a headgate), which increased the likelihood
of a methane ignition because the air in that area had ventilated the face. Tr. 175-176. Further,
Lampley opined that since Crum was apparently unaware that he parked the truck in return air, it
was likely to remain there until the longwall resumed production. Tr. 156. Further, during
production, the face would move 2 and ½ feet closer to the truck with each pass of the longwall
drum. Tr. 177.

38 FMSHRC Page 1397

Lampley was not aware of any reserves of methane at the mine, nor was he aware of the
average concentration of methane in the mine atmosphere. Tr. 211-12. Lampley testified,
however, that methane would be present in return air coming off an active longwall face in a
gassy mine, which has gob, and would most likely be found at the tailgate or at a bleeder system
at the wall. Tr. 158. Lampley found no methane present when he took readings at the T-split of
air, when production was down. Tr. 189-91, 197. Lampley testified that regardless of air quality,
or the fact that when the citation was written, the air from the T-split of the longwall outby
Crum’s truck was sufficient to dilute or render harmless any methane, MSHA regulations do not
allow shorter permissibility distances when the longwall is not in production. Tr. 173-74, 227-29.
Apart from the likelihood of ignition during production, Lampley explained that an
ignition hazard could be realized spontaneously from a rock fall. Tr. 155, 189-92. He noted that
rock falls were not unusual and major gob falls were fairly common in longwall mining and that
the methane concentration “at the gob line where the T-split occurs, that could change at any
given moment whenever a roof fall occurs back there, and it’s going to fall, it’s just when it’s
going to fall.” Tr. 190-92, 230. If a major rock or gob fall prevented the absorption of methane
by sealing the gob, the resulting change in air pressure would pull methane from the gob area and
allow methane to accumulate in the active working area. Tr. 227-30. Such a rock fall in the gob
is fairly common given mining conditions in that area, although pressure changes in this mine
were somewhat less likely because of the blowing and exhausting fans. Tr. 230-33.
Lampley testified that a methane ignition in a gassy mine could result in a “massive”
explosion. Tr. 162. A massive methane explosion would be fatal to some or all of the miners on
the face. Tr. 162-63. Lampley ascertained that at least two shearer operators, a shieldman, and a
stage loader operator would be affected by an explosion. Tr. 162-64. Lampley referenced the
Upper Big Branch explosion as one caused by the ignition of methane on a tailgate. Tr. 158.18
With respect to the negligence designation, Lampley found no mitigating circumstances
and determined that Respondent’s agent Crum should have been aware of the presence of return
air when parking his truck. Tr. 163-64, 167. Given the change in air temperature and humidity
and the lack of a visible stopping, Lampley opined that Crum knew or should have known that
the truck’s location created a permissibility violation. Tr. 163-64. Crum was a member of
management who should have been aware of the methane ignition hazard created once Crum
drove into the return air and broke the plane of the intersection. Tr. 171-73. According to
Lampley, once Crum broke the plane and entered return air, it was too late to correct the
condition. Tr. 173. Rather, Lampley testified that Crum should have stopped 300 feet from the
face to ensure compliance. Tr. 174-175. Further, Lampley opined that Respondent also could
have placed signs 150 feet from the face or blocked off the area to prevent the entrance of diesel
equipment. Tr. 178. Lampley emphasized that the hazard remained whether the truck was parked
six feet within the 150-foot limit or directly next to the face. Tr. 166-167. Rather, the dispositive
issue was that the truck was in return air. Tr. 166-67.
18

Lampley did not personally investigate the explosion and could not testify whether the
majority of the air samples taken at Upper Big Branch contained methane rather than natural gas,
or whether the gas originated from the face, or from another location, such as a crack in the floor.
Tr. 210-11.

38 FMSHRC Page 1398

To abate the alleged violation, the truck was pulled by chain by another piece of
equipment from intake air, and moved to an outby location outside the 150-foot limit where no
return air was coursing over the pickup. Thereafter, the truck was disconnected and driven an
additional 150 feet away from the face. Tr. 179; S. Ex. 114.
B. Analysis and Disposition
1. The Violation of §75.1907(a)
30 C.F.R. §75.1907(a) provides that diesel-powered equipment must meet permissibility
standards where permissible electrical equipment is required. 30 C.F.R. §75.1907(a). Electric
face equipment must be permissible within 150 feet from pillar workings or longwall faces or in
return air outby the last open crosscut. 30 C.F.R. §§75.1002 and 75.507-1. The truck cited by
inspector Lampley was diesel-powered equipment that did not meet permissibility requirements.
Tr. 148. It is undisputed that the equipment was closer than 150 feet from the longwall face. R.
Post Hr’g Br. 4. Accordingly, I find that the Respondent violated the cited standard.
2. The Violation was Significant and Substantial
a. There was a Violation of a Mandatory Safety Standard
For the reasons explained above, I have found the underlying violation of mandatory
safety standard § 75.1907(a).
b. The Violation Contributed to a Discrete Measure of Danger to Safety
With regard to the second Mathies factor, the Secretary must show that the violation
contributed to a discrete safety hazard, “which implicitly requires a showing that the violation is
at least somewhat likely to result in harm.” Knox Creek, 811 F.3d at 163 (citing Black Beauty, 34
FMSHRC at 1741, n.12 (“[I]f the roadway here had lacked berms for only a short distance
[thereby making the hazard of a vehicle falling off the edge less likely], or if the violation had
been otherwise insignificant, the trier-of-fact could have found that the violation did not
contribute to a discrete safety hazard, and hence that the Secretary had failed in her proof under
the second element of Mathies.”)), aff’d sub nom. Peabody Midwest, 762 F.3d 611; Cumberland
Coal Res., LP, 33 FMSHRC 2357, 2368 (2011) (the violation, under the particular
circumstances, was likely to contribute to the relevant hazard under Mathies’ second prong),
aff’d sub nom. Cumberland Coal Res., LP v. FMSHRC, 717 F.3d 1020 (D.C. Cir. 2013); E.
Associated Coal Corp., 13 FMSHRC 178, 183 (1991) (same); Utah Power & Light Co., 12
FMSHRC 965, 970 (1990) (same). For the reasons set forth below, I find that the violation of
parking an impermissible diesel-powered truck in return air where permissible equipment was
required contributed to a discrete safety hazard or measure of danger to safety, that is, a methane
ignition or explosion.
Permissibility requirements like the one at issue here ensure that ignitions occurring
within enclosures on mining equipment with electrical circuits will not escape into the mine
atmosphere. Knox Creek, 811 F.3d at 153-54; Consolidation Coal Co., 35 FMSHRC 2326, 2336

38 FMSHRC Page 1399

(Aug. 2013) (permissibility requirement is designed to prevent hot gases from escaping from an
enclosure containing electrical connections, thus causing an ignition outside the enclosure.”).
Thus, the permissibility requirements are intended to prevent the ignition of explosive airmethane mixtures surrounding mine equipment. Consequently, I must determine whether it was
somewhat likely that the violation contributed to the hazard or danger of allowing an ignition
source to be available in this gassy mine. Cf., Consolidation Coal, 35 FMSHRC at 2335-36
(Commission affirmed judge’s description of relevant hazard contributed to by the violation and
her determination that second prong of Mathies was satisfied because the violation contributed to
the hazard of “the danger of allowing an ignition source to be available in this gassy mine.”).
When examining the likelihood of a permissibility violation to contribute to the hazard of
a methane ignition or explosion, the Commission has traditionally examined whether a
“confluence of factors” is present based on the particular facts surrounding the violation.
Texasgulf, Inc., 10 FMSHRC 498, 501 (April 1988). The Commission has held that the
confluence-of-factors analysis requires consideration of the particular circumstances in the mine,
including the possible ignition sources, the presence of methane, and the type of equipment in
the area. Excel Mining, LLC, 37 FMSHRC 459, 465 (Mar. 2015); Utah Power & Light Co., 12
FMSHRC at 970-71; Texasgulf, 10 FMSHRC at 501-03. For example, the mine in Texasgulf
contained only miniscule amounts of methane and had never had a methane ignition or
explosion. See 10 FMSHRC at 501. Given detailed testimony establishing the mine's history of
low methane emissions, the absence of previous ignitions or explosions, and testimony
establishing a reasonable expectation of low methane emissions in the future, the Commission
concluded that that substantial evidence supported the judge's findings that there was not a
reasonable likelihood that the hazard contributed to would result in a mine ignition or explosion.
On the other hand, numerous other Commission cases have upheld an S&S determination
where the particular facts surrounding a violation established that a methane ignition was
reasonably likely in a gassy mine. See e.g., U.S. Steel Mining Co., Inc., 6 FMSHRC 1866, 1867–
69 (Aug. 1984) (upholding significant and substantial finding where coal mine liberated over one
million cubic feet of methane in 24-hour period, had a history of methane ignitions, and there
was an excessive accumulation of coal nearby); United States Steel Mining Co., Inc., 7 FMSHRC
1125, 1128–30 (Aug. 1985) (upholding significant and substantial finding where coal mine
liberated over one million cubic feet of methane in a 24-hour period, had a history of past
methane ignitions, could liberate dangerous levels of methane in a relatively short period, and
ventilation was substandard); Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 677–678
(upholding significant and substantial finding where coal mine was subject to inspection
pursuant to section 103(i) and sudden outburst of methane had occurred recently); Consolidation
Coal Co., 35 FMSHRC at 2337 (upholding a significant and substantial finding for a roof bolter
that violated permissibility standards where methane was emitted during roof bolting, the bolter
was located near the gob and far from the bleeder fans, and the mine was gassy).
Applying the confluence-of-factors analysis to the instant facts, I find that supervisor
Crum’s truck was a non-permissible ignition source that was parked in return air and would
therefore likely be exposed to an explosive concentration of methane released from the longwall
face during continued normal mining operations. Parking impermissible, diesel-powered
equipment within 150 feet of the face in return air contributed to the discrete safety hazard that

38 FMSHRC Page 1400

restarting the truck could ignite any explosive concentration of methane present in return air
during continuous mining operations. Accordingly, I find that the violation contributed to the
hazard of a methane explosion caused by the location of impermissible equipment in return air.
Although the testimony of Crum, Schilke and Phipps suggested that the return air was
inby the location where Crum parked his non-permissible, diesel-powered Dodge truck (Tr. 275,
283-84, 308, 330-31), I find that the hood of the truck extended into the mixing zone intersection
and into return air and was not in intake air as Phipps, Crum and Schilke suggested. I credit
Lampley’s testimony and measurements that the truck was parked within 150 feet of the face,
and the hood of the vehicle, including the combustion engine, was actually parked within the
plane of the intersection or crosscut. Tr. 146-147, 158, 171, 198-99, 217. Crum’s testimony and
Respondent’s own map indicate this. Tr. 269; R. Ex. 8. Lampley and Phipps both described the
intersection at crosscut 109 as a mixing zone, where return air met intake air. Tr. 107, 329.
Lampley and Phipps both noticed that warmer and more humid air that was characteristic of
return air was present in the intersection or crosscut itself, where such air mixed with fresh intake
air. Tr. 150, 328. Phipps conceded that areas containing return air, including mixing zones, are
properly classified as return air. Tr. 363. Further, I have credited Schilke’s testimony that the
truck was parked slightly inby the outby corner of crosscut 109 (Tr. 305-06), over Crum’s
testimony that the truck was parked even with the outby corner. Tr. 268-69.
Although Schilke testified that Lampley had to stand directly at the Dodge truck and
almost over the hood of the truck to get the smoke to travel over the hood of the truck, Schilke
thereafter acknowledged that the smoke was in a dead spot and automatically spread out over the
hood of the Dodge truck. Tr. 309. I credit Lampley’s testimony that the results of his smoke test,
which recreated the movement of air from the longwall face to the truck, established that return
air wafted over the hood of the truck where the engine was located, and then out across crosscut
109. Tr. 151. Based on Lampley’s credited testimony, as supported by the results of the smoke
test, I find that return air, which would be carrying methane during continuous mining operations
in a gassy mine, reached the hood and windshield of the truck, which extended into the
intersection and mixing zone. Tr. 151, 194, 202.
I further credit the testimony of Lampley that the truck was an ignition source. Tr. 15657. Lampley identified several sources of ignition within the truck that Respondent did not
contest. Id. Most notably, the engine produced thousands of combustions per minute. Id. It is
undisputed that the truck was not permissible equipment. Tr. 156-57, 275, 319. Consequently,
the truck did not prevent sparks released by the combustions from encountering potentially
explosive methane concentrations in the air. Tr. 147-49. Due to the numerous ignition sources
within the truck, the number of ignitions per minute, and the lack of countermeasures to arrest a
methane ignition, I find that the truck was a likely source of methane ignition because it was
parked in return air in a gassy mine on five-day spot protocol where methane would be coming
off an active face and heading outby past gob and over the truck, during continuous mining
operations. Tr. 157-59.
It is important to emphasize that the Mach #1 Mine was subject to section 103(i) spot
inspections every five days because of its excessive liberation of methane. Although the
Secretary put on no evidence of any prior ignition at the Mach #1 Mine, and there is no mention

38 FMSHRC Page 1401

of a prior methane ignition on MSHA’s data retrieval, there is some evidence of the presence of
high dust concentration, including float coal dust, which might propagate a methane ignition. For
example, inspector Robert Bretzman specifically testified that the mine normally had high dust
concentration. In this regard, with respect to Citation 8432319, alleging that on September 12,
2013, almost a year before Citation No. 8451651 was written, the longwall shearer on the
headgate six unit did not have a visible warning device to adequately alert the shearer operator
when the methane concentration reached 1.0 percent, inspector Bretzman testified as follows:
I determined that if—in the event that we did have a high degree of
methane, excessive methane, and the operators were not aware of
the methane and we was in a high dust concentration, like we
normally are, we could have an ignition . . . .
Tr. 411 (italics added). As further explained below, these facts coupled with Lampley’s
testimony that methane would travel off the active face in return air and past gob to the truck (Tr.
157-59) are sufficient to make an accumulation of methane at explosive concentrations
reasonably likely during continued normal mining operations. Cf., Knox Creek, 811 F.3d at 164;
Consolidation Coal Co., 35 FMSHRC at 2336.
Respondent argues that the truck was not exposed to methane, much less any explosive
concentration of methane. This argument is unconvincing in the context of continued normal
mining operations. Although no methane was found in the readings taken at the time of the
citation, I credit Lampley’s testimony that the truck was exposed to numerous sources of
methane. The most likely source of methane was from the gas released from the face during coal
production, under continued normal mining operations. Tr. 158. Additionally, Lampley
convincingly testified that bursts of methane released from rock falls within the gob could
spontaneously increase methane concentrations to explosive levels quickly. Tr. 189-92. Finally,
as noted above, the Commission has consistently found permissibility violations to be S&S
where mines are characterized as gassy. See e.g., Consolidated Coal Co., 35 FMSHRC at 2336
(affirming judge’s finding that of reasonable likelihood of injury from an explosion despite no
methane detected at time of violation because methane was emitted as bolter drilled into the roof,
the bolter was close to the gob and far from the bleeder fans, and the mine was a gassy mine).
As emphasized, this mine was on a five-day spot and liberated approximately two million
cubic foot of methane in a 24-hour period. Tr. 158. The risks of dangerous concentrations of
methane quickly rising to an explosive level from the above sources are increased where the
mine liberates such high quantities of methane. Although Respondent offered its ventilation
scheme as a sufficient countermeasure against methane accumulation, the Commission has
consistently found that adequate ventilation within a mine is not sufficient to remove the danger
of explosive levels of methane. U.S. Steel, 6 FMSHRC at 1869; Excel Mining, LLC, 37
FMSHRC at 466. Based on the entire record, I find it reasonably likely that under continued
normal mining operations, Crum’s non-permissible truck would be exposed to an explosive
concentration of methane in the return air where it was parked.
Respondent argues that the truck would have been removed before production restarted,
thus eliminating the presence of the ignition source. Tr. 286. I reject this argument. As the

38 FMSHRC Page 1402

Fourth Circuit recently recognized, the Commission has long “held that an S&S determination
ought to be ‘made at the time the citation is issued (without any assumptions as to abatement).’
Sec’y of Labor v. U.S. Steel Mining Co., 6 FMSHRC 1573,1574 (1984) (emphasis added); see
also Sec’y of Labor v. McCoy Elkhorn Coal Corp., 36 FMSHRC 1987, 1991 (2014) (rejecting
the argument that an S&S finding was erroneous ‘because [the mine operator] was in the process
of cleaning the accumulations when the inspector arrived’); Sec’y of Labor v.Gatliff Coal Co., 14
FMSHRC 1982, 1986 (1992) (finding that the ALJ erred in ‘inferring that the violative condition
would cease’ in the course of normal mining operations).” Knox Creek, 811 F.3d at 165. In
addition, Crum’s testimony that the truck would have been removed before production restarted
is speculative and unsupported by any evidence. Apart from Crum’s interest as a longwall
maintenance supervisor in remaining by the longwall to ensure that the belt and longwall
operated properly before he returned to his truck and the surface, Crum likely would have been
delayed in any number of ways as longwall maintenance supervisor. Furthermore, because
Crum was ignorant of the violative condition (see e.g., Tr. 284), I find it likely that he would
have started the truck while it was in return air after production restarted, thus increasing the
likelihood of a methane ignition.
In sum, I find that the presence of an ignition source, the location of that ignition source
within return air reserved only for permissible equipment, the likelihood of a methane build up to
an explosive level during continued normal mining operations in this gassy mine, and the
testimony that the mine normally had high dust concentrations make it likely that the violation
contributed to a discrete methane ignition or explosion hazard. As such, I find that the second
prong of Mathies test was satisfied.
c. The Violation Contributed to a Hazard That was Reasonably Likely to
Result in Injury
As the Fourth Circuit has recognized, the third and fourth prongs of Mathies, which are
often combined in a single showing, are primarily concerned with gravity or the seriousness of
the expected harm. To the extent that the third and fourth prongs are concerned with likelihood at
all, they are concerned with the likelihood that the relevant hazard will result in serious injury
because requiring a showing at prong three that the violation itself is likely to result in harm
would make prong two superfluous. Knox Creek, 811 F.3d at 162, citing Mathies, 3 FMSHRC at
3-4.
Regarding the third Mathies factor, the Secretary demonstrated a reasonable likelihood
that the hazard contributed to by the violation, i.e., a methane explosion contributed to by
parking an impermissible ignition source in return air, was reasonably likely to result in an injury
to the four miners working near the face. As noted, for this element to be satisfied “[t]he
Secretary need not prove a reasonable likelihood that the violation itself will cause injury.”
Cumberland, 33 FMSHRC 2357, 2365 (Oct. 2011) (quoting Musser Engineering, Inc. & PBS
Coals, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010). Nor is the Secretary required to prove that
the hazard contributed to will actually result in an injury-causing event. Youghioghemy & Ohio
Coal Co., 9 FMSHRC 673, 678 (April 1987).

38 FMSHRC Page 1403

Rather, the test under the third prong of Mathies is whether there is a reasonable
likelihood that the hazard contributed to by the violation . . . will cause injury. Knox Creek, 811
F.3d at 161, citing Musser Engineering, 32 FMSHRC at 1281, where the Commission assumed
the existence of the relevant hazard and considered only “evidence regarding the likelihood of
injury as a result of the hazard.” Although the Commission’s decision in Ziegler Coal Co., 15
FMSHRC 949, 953 (1993), supports the argument that evidence of the likelihood of the hazard is
relevant at prong three, as the Fourth Circuit noted, that position is flatly contradicted by more
recent Commission precedent in Musser, 32 FMSHRC at 1281, and by the unanimous voice of
the Fourth, Fifth and Seventh Circuits. See Knox Creek, 811 at 164; see also Peabody Midwest
762 F.3d at 616 (holding that the question is not whether it is likely that the hazard would have
occurred, but only if the hazard occurred, regardless of likelihood, it was reasonably likely that a
reasonably serious injury would result); Knox Creek, 811 F.3d at 161 (Skidmore deference
applied to Secretary’s litigating positions 1) that third prong of Mathies focuses on the likelihood
that the hazard to which the violation contributes will cause injury, not on the likelihood of the
hazard occurring, and 2) the existence of the relevant hazard should be assumed); Buck Creek, 52
F.3d at 135 (the third prong of Mathies is satisfied where the ALJ determined that in the event of
the hazard, a reasonably serious injury would result); Austin Power, 861 F.2d at 103-04 (finding
third prong of Mathies satisfied where the hazard “would almost certainly result in serious
injury,” without requiring evidence that the hazard itself was likely); cf. Cumberland Coal, 71
F.3d at 1027-28 (Secretary’s interpretation that decision maker should assume the existence of an
emergency when evaluating whether the violation of an emergency safety standard is S&S is not
inconsistent with Mathies or Commission precedent).
I credit inspector Lampley’s testimony that the violation, parking the impermissible
truck with unapproved electrical components in return air, contributed to a methane ignition or
explosion hazard that was reasonably likely to result in an injury to the four miners working at
the face. Tr. 156-63. The Commission has long recognized that a methane ignition or explosion
is likely to result in a fatal injury to exposed miners. See Consolidation Coal, 35 FMSHRC at
2337 (affirming judge’s determination that the lack of a permissible light on a roof bolter would
contribute to the hazard of a methane gas ignition or explosion, which is reasonably likely to
cause a permanently disabling or fatal injury); Black Diamond Coal Mining, 7 FMSHRC 117,
1120 (1985)(“We have previously noted Congress’ recognition that ignitions and explosions are
major causes of death and injury to miners”); Jim Walter Res., Inc., 37 FMSHRC 1968, 1976
(Sept. 2015)(“horrific mine explosion[s took] the lives of 12 miners at Sago Mine”); Sec’y of
Labor v. Performance Coal Co., 34 FMSHRC 587, 588 (2012) (ALJ) (explosion at longwall
section due to an ignition of methane propagated by coal dust resulted in deadliest U.S. mine
disaster in 40 years, killing 29 miners); cf. Knox Creek, 811 F.3d at 163 (permissibility violations
where a mine’s atmosphere contains explosive concentrations of methane contribute to a
methane ignition or explosion hazard that is reasonably likely to result in an injury-producing
event). Accordingly, I find that the third prong of Mathies was satisfied.
d. There was a Reasonable Likelihood That the Injury in Question Will Be of a
Reasonably Serious Nature
With regard to the fourth Mathies factor, I find a reasonable likelihood that any injury
from a methane explosion would be of a reasonably serious nature. A methane-related explosion

38 FMSHRC Page 1404

contributed to by the violation was reasonably likely to result in fatal injuries to the four miners
working at the face. Consolidation Coal Co., 35 FMSHRC at 2337; Black Diamond Coal
Mining, 7 FMSHRC at 1120; Jim Walter Res., Inc., 37 FMSHRC at 1976; Sec’y of Labor v.
Performance Coal Co., 34 FMSHRC at 588. Fatal injuries are necessarily serious in nature.
Thus, I find the fourth Mathies factor satisfied.
In sum, considering all relevant factors, I find the violation was S&S.
3. Respondent’s Negligence is Reduced from High to Moderate
I find that Respondent’s negligence should be reduced from “high” to “moderate.” It was
not unreasonable for Crum, an agent of the operator, who was visually estimating distances, to
mistake 144 feet for 150 feet and to park the hood of his truck slightly in return air. I find this
honest mistake to be a mitigating circumstance that supports a reduction in Respondent’s
negligence from high to moderate.
4. Civil Penalty for Citation No. 8451651
Applying the penalty assessment criteria set forth in section 110(i) of the Mine Act, I find
that Respondent, Mach Mining, Inc., operates the Mach Mining No. 1 Underground Mine, which
mined 7,528,061 tons of bituminous coal in 2012. The parties stipulated that the originally
proposed penalty of $16,867 will not affect Respondent’s ability to remain in business. MSHA
recognized Respondent’s good-faith compliance in abating the citation. I have affirmed MSHA’s
gravity and S&S determinations. I have modified MSHA’s negligence determination from high
to moderate. After consideration of the penalty assessment criteria set forth in section 110(i) of
the Act, I assess a $5,081 civil penalty against the Respondent for Citation No. 8451651.
VI. Citation No. 8439446
A. Findings of Fact
1. Inspector Stanley’s Testimony
After determining that Respondent’s methane monitor attached to a roof bolting machine
failed to register explosive concentrations of methane, Inspector Phillip Wayne Stanley19 issued
Citation No. 84539446 for a violation of 30 C.F.R. § 75.342(a)(4). Tr. 465-66. The cited
standard requires that methane monitors be maintained in proper operating condition. Tr. 465.
Properly operating monitors de-energize electrical equipment when methane concentrations
reach 2.0 percent or when the monitor is not operating properly. 30 C.F.R. § 75.342(c); Tr. 465.
Stanley determined that the violation was S&S and contributed to a methane ignition hazard that
19

At the time of the hearing, Stanley had been a coal mine inspector for MSHA for four
years and eight months. Tr. 461. Starting in December 1990, Stanley worked in potash mining
for sixteen to seventeen years. Id. Thereafter, he worked in coal mining for approximately eight
years. Id. Stanley graduated from high school in 1980, worked in the military for four years, and
completed his training at the National Mine Safety and Health Academy. Tr. 461-62.

38 FMSHRC Page 1405

was reasonably likely to result in flash burns affecting two miners, as a result of Respondent’s
moderate negligence. Tr. 156, 162-63. The Secretary proposed a penalty of $1,412.
On August 6, 2013, Stanley conducted a regular inspection at Mach Mining. Tr. 461-62.
As part of that inspection, Stanley tested the methane monitor attached to roof bolter #4 on the
eighth headgate panel. Tr. 462, 464. Stanley conducted the inspection with a calibrator that
displayed a digital readout, which listed the methane level. Tr. 464-65. When Stanley applied
2.5% methane to the monitor, it only read as high as 1.6 % methane. Id. The roof bolter is
programmed to automatically de-energize at 2.0 %. Tr. 465. With an inaccurate methane
monitor, the machine would likely fail to de-energize in explosive levels of methane. Tr. 468.
Under MSHA regulation, methane readings must be taken every twenty minutes during
the process of roof bolting. Tr. 466, 496; 30 C.F.R. §75.362(d)(2). If a roof bolter lacks a
methane monitor, readings must be taken with a probe at the deepest point of the cut
approximately a foot from the roof or face. Tr. 467, 493-94. If the roof bolter has a methane
monitor, readings can be taken within sixteen feet of the front of the machine. Tr. 466-67, 49495. Stanley opined, but was not positive, that the methane monitor on the bolter did not run all
day and was only used when a reading was taken. Tr. 495.
Stanley issued Citation No. 8439446 for a violation of 30 C.F.R. § 75.342(a)(4). Tr. 46566. The cited standard requires that methane monitors be maintained in proper operating
condition. Tr. 465. Properly operating monitors de-energize electrical equipment when methane
concentrations reach 2.0 percent or when the monitor is not operating properly. 30 C.F.R. §
75.342(c); Tr. 465.
Stanley marked the citation as “reasonably likely” to result in an injury because the
machine would not de-energize when encountering an explosive concentration of methane. Tr.
468. The mine liberated two million cfm of methane in a 24-hour period, and the eighth headgate
panel itself released 25,000 cfm of methane in a 24-hour period. Id. Although more methane is
released during extraction, some methane is released during roof bolting. Tr. 496. Because
methane is lighter than oxygen, it accumulates in the top third of the entry where bolting occurs.
Tr. 472-73. The methane monitor was placed on the automated temporary roof support system
(ATRS) to gather readings in this accumulation zone. Tr. 468-69, 492. Additionally, the area
near the roof of the mine was susceptible to sparking because the carbide tips of the bolter’s drill
bits encountered materials such as sandstone, limestone, and shale. Tr. 469. The roof bolter also
created sparks when its wrench and bolt rotated against a steel-bearing plate. Id. Stanley referred
to a 2012 ignition at Prosperity Mine to demonstrate the hazard resulting from a malfunctioning
methane monitor on a roof bolter. Tr. 470.
Given the malfunctioning methane monitor, the likelihood and location of methane
accumulation, and the potential for sparking, Stanley expected resulting injuries from an ignition
to manifest as flash burns. Id. Stanley determined that these injuries would result in lost
workdays or restricted duty and would affect the two machine operators. Tr. 470-71.
At the time of the citation, Respondent’s ventilation system met regulatory standards. Tr.
490-92. Looking inby, the system ventilated the roof bolter with air traveling from right to left,

38 FMSHRC Page 1406

and included a line curtain to assist with ventilation. Id. This air acted to render harmless or
remove noxious and hazardous gases and dust. Id., Tr. 505. However, ventilation systems may be
inadequate where methane bleeders are encountered. Tr. 505-06. Bleeders are pockets of
methane pressured under the strata. Id. They may continually replace explosive concentrations of
methane faster than the ventilation can sweep the air. Id.
In deference to Respondent’s implementation of seven-day checks on its methane
monitors rather than the thirty-one day intervals required by the regulations, Stanley determined
that Respondent’s negligence was moderate. Tr. 471.
2. The Testimony from Respondent’s Witnesses
a. Mark Schilke’s Testimony
Schilke accompanied Stanley during his inspection of the roof bolter. Tr. 552. At the time
of inspection, the bolter was pulled back approximately eighty feet from the face and outby the
feeder break or last open crosscut. Tr. 555-56. The roof bolter is typically pulled in to secure
unsupported roof after the continuous miner takes a fresh cut at the face. Tr. 557-58.
Schilke testified that prior to positioning the roof bolter, the roof bolt operators would
take a methane reading. Tr. 553. A separate handheld methane monitor was attached to the probe
and extended at least fifteen feet beyond the bolter. Tr. 553, 629-630, 635. The bolter operators
repeated these readings every twenty minutes with a probe. Tr. 553, 624, 644. Schilke testified
that having a methane monitor attached to the bolter did not affect the nature of the twentyminute gas checks in any way. Tr. 629-632. There was no evidence to suggest errors in the
equipment or data derived from these regular methane checks. Tr. 554.
Both Stanley and Schilke wore methane spotters and neither reported methane near the
face. Tr. 559. Schilke testified that although the cited methane monitor failed to deenergize the
machine, it did emit a warning during the methane test. Tr. 552, 628-29. Schilke also emphasized
that methane monitors were an optional safety precaution. Tr. 552-53.
During roof bolting, Respondent ran a curtain to the tail of the bolter, to facilitate the
flow of approximately 3000 cfm of intake air. Tr. 556-57. This ventilation system directed the air
towards the face and across the bolter to remove gas and dust from the bolter. Tr. 556-58.
Schilke admitted that the amount of ventilation would not diminish the necessity of twentyminute gas checks. Tr. 633.

38 FMSHRC Page 1407

b. Johnny Robertson’s Testimony
General Manager Johnny Robertson20 testified that methane was only liberated when the
continuous miners or the longwall shearers cut coal. Tr. 710-11, 742. Robertson testified that
methane is less likely encountered during roof bolting than mining, and is usually only present
when roof bolting into a coal seam. Tr. 716. Robinson testified that during his four years of
tenure with Respondent, there were no reports of methane released from the roof or during
bolting. Tr. 718-19.
According to Robertson, the regularity of spot inspections is determined by the amounts
of methane and intake air in the mine. Tr. 743. Higher volumes of intake air reduce the methane
content within the mine. Tr. 743-44. Robertson explained that Respondent’s ventilation plan
required a minimum of 3000 cfm of intake air blowing against a line curtain and across the back
of the roof bolters. Tr. 711. Although Respondent met the ventilation requirements, its methane
levels nonetheless required five-day spot inspections. Tr. 709-10, 743-44. Robertson conducted
weekly methane readings where methane accumulated at the bleeder system behind the longwall.
Tr. 710. He testified that during his time as general manager, neither his readings, nor any
readings reported to him, were above 0.7 % methane. Tr. 711.
Robinson confirmed that Respondent used a continuous miner to carve out entryways. Tr.
717. After it cut forty feet of coal and withdrew, the roof bolter moved in to support the roof.
Id., Tr. 742-43. Robertson testified that the light on the monitor was generally visible to the
operator when the continuous miner cut and loaded coal. Tr. 723-24. He testified that the
operator stood in front of the methane monitor. Tr. 745. He acknowledged, however, that the
operator might turn away from the monitor while the cutter drum cut coal, whenever the shuttle
car approached and loaded coal. Tr. 723-25, 745. Under such circumstances, the methane
monitor was not visible for a few seconds. Tr. 723-25, 746. The continuous miner was not
programed to automatically de-energize in concentrations of one-percent methane. Tr. 746-47.
Instead, it was de-energized manually. Id.
Robertson also confirmed that when the roof bolter had a methane monitor attached to the
ATRS, the operators probe sixteen feet in front of the bolter. Tr. 719. These methane checks
were repeated every twenty minutes during roof bolting. Id. If the bolter did not have an attached
methane monitor on the ATRS, these checks would occur with a different handheld monitor at
the deepest point of penetration about twelve inches from the face and roof. Tr. 720.
20

Robertson had thirty-two years of experience in mining. For six years before
commencement of employment with Mach Mining, Robertson was employed at Foresight
Energy, which owns Mach Mining. Tr. 706. Before that, he worked for Massey Energy for
twenty-six years, and held positions in engineering, safety, and operations. Id. He supervised
multiple mine sites and was president of one of Massey Energy’s large resource groups. Tr. 70607. He was certified in Ohio, New Mexico, and Illinois as a foreman or mine manager. Tr. 707.
Robertson was a MSHA instructor with certifications in dust and noise. Tr. 707. He has a
Bachelor’s Degree from Marshall University in West Virginia. Id. Robertson served in the Army
Special Forces. Id.

38 FMSHRC Page 1408

B. Analysis and Disposition
1. The Violation of § 75.342(a)(4)
Section 75.342(a)(4) requires that operators maintain methane monitors in permissible
and proper operating condition and calibrate them with a known air-methane mixture at least
once every 31 days. A methane monitor in permissible and proper operating condition shall
automatically de-energize electric equipment or shut down diesel equipment on which it is
mounted when the methane concentration reaches 2.0 percent or when the monitor is not
operating properly. 30 C.F.R. § 75.342(c).
Respondent admitted the violation. Tr. 552. See R. Br. 12. The methane monitor failed to
de-energize the machine when methane concentrations reached 2% and failed to provide
readings higher than 1.6 %. Tr. 464-65. Respondent argues that the violation was not S&S, that
its negligence was less than moderate, and that the proposed penalty calculation is inappropriate.
2. The Violation was Significant and Substantial
a. There was a Violation of a Mandatory Safety Standard
For the reasons explained above, I have found and Respondent admits the underlying
violation of a mandatory safety standard, i.e., § 75.342(a)(4).
b. The Violation Contributed to a Discrete Measure of Danger to Safety
As stated previously, the second Mathies factor requires a showing that the violation
created a discrete safety hazard, “which implicitly requires a showing that the violation is at least
somewhat likely to result in harm.” Knox Creek, 811 F.3d at 16, citing Black Beauty Coal Co.,
34 FMSHRC at 1741, n. 12, aff’d sub nom. Peabody Midwest, 762 F.3d 611 (7th Cir. 2014);
Cumberland, 33 FMSHRC at 2368, aff’d sub nom. Cumberland, 717 F.3d 1020; E. Associated
Coal Corp., 13 FMSHRC at 183; Utah Power & Light Co., 12 FMSHRC at 970. Where a
violation poses a risk of fire or explosion, this likelihood is demonstrated by the presence of a
“confluence of factors,” such as possible ignition sources, the presence of methane, and the type
of equipment in the area. Excel Mining, LLC, 37 FMSHRC at 465, slip op. at 7, (Mar.
2015); Utah Power & Light Co., 12 FMSHRC at 970-71; Texasgulf, 10 FMSHRC at 501-03. For
example, in Consolidation Coal, the Commission found that a methane ignition was reasonably
likely because methane was emitted during roof bolting, the bolter was located near the gob and
far from the bleeder fans, and the mine was gassy. Consolidation Coal Co., 35 FMSHRC at
2337.
A properly functioning methane monitor is expected to automatically de-energize
electrical equipment in two percent methane to avoid the potential ignition of explosive levels of
methane at the 5-15% range. The monitor at issue in the present citation did not detect two
percent methane when tested, and would not automatically de-energize the roof bolter in rising
concentrations of methane, thus contributing to the likelihood of a methane ignition should
methane accumulate to an explosive level during continued normal mining operations.

38 FMSHRC Page 1409

Consequentially, I find that the hazard contributed to by the violation was a methane-related
ignition caused by undetected explosive levels of methane where ignition sources were present.
The risk of excessive methane in Respondent’s mine nearly parallels the risk cited in
Consolidation Coal. Methane was liberated during roof bolting. Tr. 469. Due to its weight, the
methane accumulated near the top third of the entry where bolting occurred. Tr. 468-69. The
potential for bleeders increased the possibility of dangerous methane concentrations. Tr. 505-06.
Furthermore, the Commission has held that if a mine liberates high levels of methane
there may be an even greater potential for a methane ignition to occur and that this may be
considered in a confluence-of-factors analysis. Excel Mining, LLC, 37 FMSHRC 465, slip op. at
7, (Mar. 2015); Knox Creek Coal Corp., 36 FMSHRC at 1134. As stated previously, the Mach
Mining No. 1 Underground Mine is a gassy mine that is on a five-day spot inspection schedule.
Tr. 35. The mine liberates over two million cfm methane in a 24-hour period and approximately
35,000 cfm methane at the eighth head-gate panel. Tr. 468. I find that the confluence-of-factors
test is satisfied here and that the violation created a discrete safety hazard, which was at least
somewhat likely to result in harm.
Citing facts discussed in the Consolidation Coal ALJ decision, Respondent argues in its
response to the Secretary’s Post-Hearing brief that the risk of excessive methane in the present
case is substantially different from the risk of excess methane in Consolidation Coal. R. Resp.
Br. 6-7. According to Respondent, respondent Consolidation Coal had higher levels of methane
because the roof bolters and continuous miners shut down four to five times in a cycle, and a
curtain was removed by a foreman, thus raising methane levels to 7.7%. Id. However, the facts
that Respondent relies on were not determinative in Consolidation Coal. Instead, the
Commission cited only three factors when establishing a sufficiently dangerous risk for a
methane ignition. Consolidation Coal Co., 35 FMSHRC at 2337 (emphasis added). The
Commission cited the emission of methane while roof bolting, the location of the roof bolter near
the gob and further from the bleeder fans, and the fact that the mine was gassy. Id. (“[T]he
Robinsons Run mine liberates more than a million cfm of methane during a 24-hour period and
is subject to five-day methane spot inspections”). Given the cited conditions, the Commission
quoted the inspector’s testimony that “it would only take a roof-fall for the gob air to … create
an explosive amount of methane.” Id. at 2336. With the additional danger of encountering
pockets of methane bleeders, the present risk factors are nearly identical to those enumerated by
the Commission in Consolidation Coal. Accordingly, I do not find Respondent’s argument
persuasive.
Respondent also cites Judge Zielinski’s decision in Ohio County Coal for the proposition
that a malfunctioning methane monitor is not S&S where the mine has low levels of methane
concentrations. Ohio County Coal Co., 32 FMSHRC 220 (Feb. 2010)(ALJ). Ohio County Coal
is distinguishable from the present case in at least one major way. The mine in Ohio County Coal
did not liberate excessive quantities of methane, as noted by Judge Zielinski in his analysis. 32
FMSHRC at 224 (comparing Freedom mine to mines that liberate greater quantities of methane
and are subject to spot inspections). Instead, the mine in that case emitted a mere 12,000 to
13,000 cfm methane in a 24-hour period, in comparison to Respondent’s liberation of one
million cfm methane in a 24-hour period. Id.

38 FMSHRC Page 1410

In short, Respondent roof bolted with a malfunctioning methane monitor in an area of
methane emission and accumulation within a gassy mine. The inspector credibly testified that
sparks released from roof bolting in excess methane concentrations will cause an ignition. I find
that this combination of risk factors satisfies the confluence-of-factors test for a methane ignition
hazard and supports a finding that the hazard is at least somewhat likely to occur. Accordingly, I
find that the second Mathies factor is satisfied.
c. The Violation Contributed to a Hazard That was Reasonably Likely to
Result in Injury
As stated previously, federal appellate law and Commission precedent have sufficiently
established that a methane explosion is reasonably likely to result in injures. See Buck Creek, 52
F.3d at 135; Consolidation Coal Co., 35 FMSHRC at 2337; Black Diamond Coal Mining, 7
FMSHRC at 1120; Jim Walter Res., Inc., 37 FMSHRC at 1976; cf. Knox Creek, 811 F.3d at 16465. Accordingly, I find that the third Mathies factor is met.
d. There was a Reasonable Likelihood That the Injury in Question Will Be of a
Reasonably Serious Nature
With regard to the fourth Mathies factor, I find a reasonable likelihood that any injury
from a methane explosion would be of a reasonably serious nature. The record establishes that a
methane-related ignition contributed to by the violation was reasonably likely to result in a
serious injury or illness to at least two miners working with the bolter, who would suffer flash
burns from a methane ignition. I find that the designation of “lost workdays or restricted duty”
was appropriate for this violation.
In sum, considering all the relevant factors, I find that the violation was properly
designated as S&S.
3. Respondent’s Negligence was Appropriately Designated as Moderate
Based on the testimony and briefs, I do not find considerable mitigating circumstances
that would justify reducing the negligence designation from moderate to low. Respondent knew
or should have known of the violation. Respondent’s ventilation and weekly methane monitor
calibrations are mitigating circumstances that support a moderate negligence designation.
However, Respondent highlighted no action that considerably mitigated the likelihood or
severity of a methane ignition during roof bolting without a properly functioning methane
monitor. In these circumstances, I conclude that the Secretary properly designated Respondent’s
negligence as moderate.
4. Civil Penalty for Citation No. 8439446
Applying the penalty assessment criteria set forth in section 110(i) of the Mine Act, I find
that Respondent mined 7,528,061 tons of bituminous coal in 2012. The parties stipulated that the
originally proposed penalty of $1,412 will not affect Respondent’s ability to remain in business.
MSHA recognized Respondent’s good-faith compliance in abating the citation. I have affirmed

38 FMSHRC Page 1411

MSHA’s gravity, negligence, and S&S determinations. After consideration of the penalty
assessment criteria set forth in section 110(i) of the Act, I assess a $1,412 civil penalty against
the Respondent for Citation No. 8439446.
V. Citation No. 8432319
A. Findings of Fact
1. Inspector Bretzman’s Testimony
After observing the absence of an auxiliary methane alarm light on a longwall shearer,
MSHA inspector Robert L. Bretzman21 issued Citation No. 8432319 for a violation of 30 C.F.R.
§ 75.342(b)(2), which requires that “[t]he warning signal device of the methane monitor shall be
visible to a person who can de-energize electric equipment or shut down diesel-powered
equipment on which the monitor is mounted.” Tr. 409. Bretzman determined that the violation
was unlikely to contribute to a methane ignition hazard, but that any injuries that did result from
the hazard would result in lost work days or restricted duty affecting three miners, as a result of
Respondent’s low negligence. Tr. 409-411. The Secretary proposed a penalty of $117.
On September 11, 2013, Bretzman was among several inspectors who conducted a
quarterly inspection of Respondent’s longwall. Tr. 396-97. Bretzman testified that the longwall
was probably producing coal when he arrived, but he could not say for sure. Tr. 418. During the
inspection, Bretzman noticed that there was no auxiliary alarm light on the longwall shearer. Tr.
398. In Bretzman’s experience, longwall shearers always have auxiliary alarm lights. Tr. 407,
410. The shearer at issue has an electric panel with a four to six-inch LED screen, which
constantly displays the current concentration of methane. Tr. 439-440. This methane reading
flashes when methane levels reach a certain percentage. Tr. 440-441. When methane
concentrations reach one percent, an alarm light turns on to alert the shearer operator of
excessive methane. Tr. 441. This alarm light is located in the bottom right-hand corner of the
panel and is approximately the size of a quarter. Tr. 411-412, 441; S. Ex. 102.
Respondent usually has two longwall shearer operators, a headgate operator and a tailgate
operator, and each has a remote control box that can de-energize the shearer. Tr. 404-05, 433.
The shearer also has an emergency stop button that can be operated by anyone in the area,
including the stage loader operator. Tr. 434-36. Bretzman testified that the stage loader operator
works in a stationary position at the headgate of the longwall. Tr. 435-36. Bretzman testified
that the only way to see the alarm on the shearer is to stand directly in front of the monitor. Tr.
21

Inspector Bretzman was employed by MSHA as a special investigator for two and a
half years, and as an electrical specialist for five years. Tr. 394. Bretzman worked in mining
since 1977. Tr. 395. He held positions as a belt maintenance worker, a shieldman, a mechanic,
and a maintenance foreman. Id. Additionally, Bretzman worked for a short time in the electrical
department for Joy Technologies, a mine manufacturing company. Id. Bretzman holds an
Associate’s degree and received his Bachelor’s degree from Southern Illinois University in work
force education and training. Tr. 396. He was a certified mine examiner, who possessed a federal
electrical card. Tr. 398.

38 FMSHRC Page 1412

402, 413. Respondent failed to present any testimony that the stage loader operator could see the
auxiliary light on the longwall shearer.
Bretzman did not observe the longwall in operation and did not know for certain where
the operators stood that particular day. Tr. 437-438, 442. However, Bretzman testified that it was
highly unlikely that a miner would stand where he could see the monitor because from that
location he would be unable to see the cutting drums. Tr. 402-403. At any given time, an
operator may stand anywhere along the shearer, up to twenty-five feet from the monitor. Tr. 41215, 438-439, 447. Upon questioning headgate operator Mike Skelton, Bretzman learned that he
was positioned outby the headgate drum when it traveled towards the headgate. Tr. 446; see S.
Ex. 100, p. 3. This location confirmed Bretzman’s suspicion that the shearer operator would not
see the warning light. Tr. 446. Bretzman’s notes from the day of the inspection do not indicate
the tailgate operator’s usual location, although Bretzman opined that Skelton would have
volunteered that information if it was exculpatory. Tr. 456-57.
Bretzman returned to MSHA and verified that alarm lights were required on the shearer.
Tr. 405, 408, 443. Bretzman decided, and the MSHA field office supervisor agreed, that a
citation was appropriate. Tr. 444. Bretzman returned to the mine the next day and issued the
citation. Tr. 408. The cited standard requires that “[t]he warning signal device of the methane
monitor shall be visible to a person who can de-energize electric equipment or shut down dieselpowered equipment on which it is mounted.” 30 C.F.R. § 75.342(b)(2); see also Tr. 409.
Bretzman determined that the operator could not see the monitor during normal mining
operations unless he was in the direct line of sight of the readout. Tr. 409, 412, 441. As a result,
the operator would not have accurate methane readings during mining. Tr. 409. However,
Bretzman conceded that the standard does not specifically say that the monitor must be visible to
the headgate or tailgate operator. Tr. 436-37. Any person assigned to watch the monitor would be
sufficient. Tr. 437, 439. To Bretzman’s knowledge, no one stood at the center of the shearer. Tr.
447. Furthermore, Bretzman could not recall anyone from Respondent telling him that the
indicator light could be seen by a person who could de-energize the machine. Tr. 446.
Respondent argues that the lack of previous citations from past inspections suggests that
the condition was not a violation. Tr. 725-27. Since 2006, Respondent developed longwall panels
for three miles and was subject to many inspections, including E01 inspections, spot inspections,
and permissibility certifications for 2G longwall equipment. Tr. 422-442. Bretzman testified that
the 2G approvals were irrelevant because they only certified diagrams and plans of the mine, and
not the ways in which equipment was actually used. Tr. 451-452. For instance, Bretzman
recalled a similar citation at the same mine requiring an auxiliary alarm light on a stage loader.
Tr. 406. In that case, the stage loader satisfied 2G permissibility requirements if one assumed
that the operator was in view of the methane alarm. Tr. 451-52. In practice, however, MSHA
inspectors observed that the operators were not always in position to view the alarm and
therefore issued a citation. Id. Bretzman could not recall if he had spoken with Respondent
previously about the failure to place a light on the shearer, although he believed he had. Tr. 422,
431. Bretzman testified that every longwall shearer that Bretzman worked with at Consol, and
most of the ones at Joy Technologies had auxiliary alarm lights. Tr. 407.

38 FMSHRC Page 1413

Bretzman determined that the unlikely injury that would result from the alleged violation
was lost work days or restricted duty for three miners. Tr. 410-11. He testified that there was
normally a high concentration of coal dust at the site. Tr. 411. Excessive methane in an
environment with coal dust creates an ignition hazard. Id. As a result, Bretzman determined that
the shearer operators and shieldman were at risk for burns. Id. Bretzman wrote the citation as
unlikely because mining had stopped and he had no evidence to suggest that methane was
present. Tr. 410, 420. Furthermore, Respondent’s ventilation pushed over 100,000 cfm of intake
air over the headgate, and the shearers were designed to automatically de-energize at 2.5 %
methane. Tr. at 417-21. The monitors designed to shut off the shearers worked properly at the
time of the citation. Tr. 421.
To abate the alleged violation, Respondent ordered the equipment necessary to install an
auxiliary alarm light on the shearer. Tr. 412. Respondent installed a new, two-inch flashing light
that was visible to the shearer operators. Tr. 448. The citation was terminated by another
inspector. Tr. 457-58.
2. The Testimony from Respondent’s Witnesses
a. James Key’s Testimony
James Key was a shearer operator for the Respondent.22 Key explained that a longwall
shearer is a piece of equipment with two drums, one at the head and one at the tail end. Tr. 649650. As the shearer passes from the headgate to the tailgate, the tail drum cuts the top, and the
head drum cuts the bottom. Id. The headgate operator runs the head drum with a remote control
as cuts are made, while the tailgate operator does the same with the tail drum. Tr. 650-52. The
remotes have stop buttons that can turn off, but not de-energize, the machine. Tr. 651. Instead,
the shearer has an emergency stop that de-energizes the machine. Tr. 652.
When the shearer moves from the headgate to the tailgate, the tailgate operator typically
stands approximately six to seven feet to the right of the alarm light in the direction of the
tailgate. Tr. 653, 664. Key further testified that the alarm light was visible to the tailgate
operator, if he turned his head. Tr. 664. According to Key, the headgate operator was usually in a
variety of locations, including anywhere from right behind the tailgate operator to the back of the
head drum. Tr. 653-54, 664-65, 668. Key testified that the headgate operator could also see the
light, if he turned his head. Tr. 664.
Key testified that when the shearer moved in the opposite direction, the tailgate operator
typically stood on the head side of the drum. Tr. 655, 666-68. The headgate operator was usually
located closer to the alarm light, although neither operator remained in a certain location. Tr.
666-68. Although the light was usually visible, the operators might not have been in position to
22

Key had been employed by Mach Mining since January 2007. Tr. 647. At the time of
the citation, Key was certified as a mine examiner and mine manager. Tr. 648. Prior to that, Key
worked as a shearer operator on the longwall at American Coal’s Galatia Mine for 20 months.
Tr. 646-48. Key had twenty years of mining experience. Tr. 647.

38 FMSHRC Page 1414

see the light at any given moment. Tr. 666. Key admitted that there was not always someone
standing in front of the light during mining. Tr. 674.
Key was familiar with the methane monitor and the lights on the display. Tr. 661. Key
had worked for a different coal company with a similar longwall system, which had the monitor
in the same location. Tr. 669. According to Key, the light, which turned on when methane levels
reached one percent, was “pretty bright.” Tr. 662-63, 665. The light was approximately an inch
in circumference. Tr. 663. It was located within an enclosure that jutted out around the edges. Tr.
673. The raised edges limited the light’s visibility at certain angles from the monitor. Tr. 673-74.
b. Johnny Robertson’s Testimony
General Manager Robertson was familiar with the methane monitor on the longwall
shearer. Tr. 720-21. Robertson testified that in one percent methane, a yellow light turned on. Tr.
722, 746. Further, given adequate ventilation, the operator merely had to stop mining to halt
methane liberation. Tr. 722. Once methane levels dropped below one percent, the operators
could resume mining. Id.
Robertson testified that Respondent had never received a citation for the location of the
auxiliary alarm light on the shearer during the prior six years when Respondent used the
longwall. Tr. 725-27. Additionally, Robertson testified that Massey Energy used the same
methane display and never received a citation during his four years as a general manager there.
Tr. 725-28. Until the instant inspection, Robertson had never heard of a citation for this issue. Tr.
729. Robertson testified that, apart from the issuance of the citation, Respondent suffered no
reported negative consequences from the location of the alarm light. Tr. 751-53. Respondent
abated the citation by ordering an alarm light and installing it on a Saturday, when the longwall
was down. Tr. 756.
Robertson testified that approximately five years before the date of the hearing, MSHA
inspector, Dean Cripps, issued a similar citation for lack of visibility on a monorail methane
monitor.23 Tr. 728-30, 749-50. Robertson testified that Cripps’ concern about the location of the
alarm light was limited to the monorail because Cripps did not issue a citation for the alarm light
on the longwall shearer. Tr. 730. According to Robertson, Cripps informed Robertson’s
supervisor, Anthony Webb, that any change in policy for the shearer methane monitors would be
accompanied by written verification from MSHA. Tr. 730, 738. Robertson testified that
Respondent never received verification in writing on this issue until the issuance of the citation.
Tr. 738-41.
Robertson further testified that two years ago, Webb and Robertson determined that
installing the light required partially dismantling the shearer, and therefore, any necessary
alterations to the alarm light would occur when the shearer was rebuilt for another mining panel.
23

Both Robertson and Bretzman referred to a prior similar citation. Tr. 728-30, 749-50.
Bretzman testified that the alarm light in the prior instance was on a stage loader, and Robertson
testified that the citation was for a monorail alarm light. Id. The particular equipment is not
determinative in the present case.

38 FMSHRC Page 1415

Tr. 730-32, 749-50. Robertson, however, admitted that Respondent did not have to rebuild the
shearer to install the light for abatement purposes. Tr. 752.
Robertson relayed his conversations with Cripps and Webb to Bretzman. Tr. 733, 739-40.
B. Analysis and Disposition
1. Respondent had Adequate Notice of the Requirements for § 75.342(b)(2)
Respondent argues that it did not have fair notice of the standard before receiving the
citation. R. Br. 25-27. Respondent asserts that a previous MSHA inspector (Cripps) assured
Respondent that a change in policy on the methane monitors would be accompanied by written
notification. Tr. 730, 738. Respondent contends that Cripps’ assurance, coupled with a lack of
previous citations on the longwall shearer’s methane monitor, establish that Respondent did not
receive fair notice of the standard.
Due process considerations prevent the adoption of an agency’s interpretation of a
regulation that “fails to give fair warning of the conduct it prohibits or requires.” LaFarge North
America, 35 FMSHRC 3497, 3500-01 (Dec. 2013)(citing Gates & Fox Co. v. OSHRC, 790 F.2d
154, 156 (D.C. Cir. 1986)). The Commission has held that adequate notice is provided where a
regulation has clear meaning and is not inconsistent with MSHA’s Program Policy Manual
(PPM). Jim Walter Res., Inc., 28 FMSHRC 579, 594-95 (Aug. 2006). Where a regulation is not
expressly defined, the Commission has found adequate notice where clarification is found in
MSHA policy publications. See e.g., Dolese Brothers Co., 16 FMSRHC 689, 693-94 (Apr.
1994)(where MSHA’s PPM and a policy letter clarified the applicable standard).
Here, the language of the regulation is clear when it states that the “[t]he warning signal
device of the methane monitor shall be visible to a person who can deenergize electric equipment
or shut down diesel-powered equipment on which the monitor is mounted.” § 75.342(b)(2). This
standard is further explained in MSHA’s Program Policy Manual (PPM) for machines operated
by remote controls. Thus, even assuming some ambiguity in the regulatory language, the PPM
was sufficiently clear regarding the requirements of the standard. See Coal Employment Project
v. Dole, 889 F. 2d 1127, 1130 n. 5 (D.C. Cir. 1989)(PPM, although not binding, is an accurate
guide to current MSHA policies and practices); accord Mettiki Coal Corp., 13 FMSHRC 760,
766-67 & nn. 6 & & (May 1991). For such machines, the PPM requires that methane warning
devices be installed “in such a location that [it] can be readily seen or heard by…the machine
operator…at all locations from which the machine is operated.” V MSHA, U.S. Dep’t of Labor,
Program Policy Manual, Part 75.342 at 41(2015) (emphasis added). I find that the plain
language of the regulation, coupled with the accompanying explanation in the PPM, provided
clear and fair notice to Respondent regarding the interpretation of the cited standard. That is,
MSHA requires that methane warning devices for remote-controlled machinery be visible from
all locations from which the operator is located. 30 C.F.R. 75.342(b)(2).
Respondent’s argument that it detrimentally relied on inspector Cripps’ assurances that a
change in policy on the methane monitors would be accompanied by written notification is not
persuasive. Essentially, Respondent argues that MSHA should be estopped from issuing a

38 FMSHRC Page 1416

citation on the methane warning light on the longwall shearer because of Cripps’ assurances and
lack of previous enforcement. The Commission has declined to apply equitable estoppel against
the government, or in this case, its agents. King Knob Coal Co., 3 FMSHRC 1417, 1421 (June
1981). Generally, “those who deal with the Government are expected to know the law and may
not rely on the conduct of government agents contrary to law.” Heckler v. Community Health
Services, 467 U.S. 51, 63 (1981). The Commission has held that “an inconsistent enforcement
pattern by MSHA inspectors does not prevent MSHA from proceeding under an application of
the standard that it concludes is correct.” Mach Mining, 34 FMSHRC 1769, 1774 (Aug. 2012)
(citing Austin Powder Co., 29 FMSHRC 909, 920 (Nov. 2007)).
I have credited Bretzman’s testimony that MSHA requires visible alarm warnings on
methane monitors on longwall shearers. Bretzman recognized an alleged violation and verified
the applicability of the regulation with his supervisor at MSHA. Tr. 444. I have found that the
plain language of the regulation, coupled with the accompanying explanation in the PPM,
provided clear and fair notice to Respondent regarding the interpretation of the cited standard.
Accordingly, I conclude that Respondent had adequate notice of the requirements of 30 C.F.R. §
75.342(b)(2).
2. The Violation of § 75.342(b)(2)
Section 75.342(b) provides that the warning signal device of the methane monitor must
be visible to a person who can de-energize the equipment on which the monitor is mounted. 30
C.F.R. § 75.342(b)(2). The regulations require the monitor to give this alarm signal when
methane concentrations reach one percent. 30 C.F.R. § 75.342(b)(1). At that point, the miner
must de-energize or shut down the equipment. 30 C.F.R. § 75.342(b)(2).
The Commission and the D.C. Circuit have previously examined the application of this
regulation to longwall methane monitors. Consolidation Coal Co., 136 F.3d 819 (D.C. Cir. 1998)
affirming Consolidation Coal Co., 18 FMSHRC 1903 (Nov. 1996). The D.C. Circuit determined
that a visible alarm is essential because it alerts miners of dangerous concentrations of methane
should other safety measures fail. Id. at 822. The warning functions as a fail-safe to ensure that
miners respond to potentially hazardous situations. Id. at 823. The D.C. Circuit Court concluded
that the Secretary’s interpretation of § 75.342(b) which requires that a warning signal be visible
at all times to a miner who can “react to increasing methane levels and, if necessary, de-energize
mining equipment,” was appropriate. Id. at 822.
Respondent attempts to distinguish the present case from Consolidation Coal on the basis
of notice. R. Resp. Br. 25-26. In that case, the Commission found actual notice where MSHA
reiterated the requirement in seven meetings over the course of one year. Consolidation Coal,
Co., 18 FMSHRC at 1907. Those facts do not prevent a finding of fair notice in the present case,
for the reasons explained above.
I credit Bretzman’s testimony that the longwall shearer operators would not be able to see
the alarm light from various positions. Tr. 446. Although Key described the warning light as
bright, both he and Bretzman testified that it was quite small, only up to an inch in
circumference. Tr. 412, 661. Furthermore, the control panel in which the alarm light was

38 FMSHRC Page 1417

contained had raised edges, which further limited its visibility at certain angels. Tr. 673-74.
Finally, Bretzman credibly testified that the operators worked up to twenty-five feet from the
warning light. Tr. 415.
Respondent argues that because Bretzman did not observe an operator working thirty feet
from the monitor, the citation was inappropriate. R. Resp. Br. 26. However, Key corroborated
Bretzman’s testimony that the operators were not stationary during mining. Tr. 664-668.
Further, Key acknowledged that the alarm was not in the line of sight of the operators at certain
locations or angles. Tr. 666. Bretzman determined that the operator could not see the monitor
during normal mining operations unless he was in the direct line of sight of the readout. Tr. 409,
412, 441. Therefore, I find that the Secretary proved by a preponderance of the evidence that the
small methane alarm light on the longwall shearer was not visible from all locations where the
machine was operated, to a person, especially a machine operator working up to twenty-five feet
from the control panel, who could de-energize the equipment. Indeed, a light the size of a quarter
and located within the enclosure described, would not be visible at much shorter distances.
Respondent failed to rebut the Secretary’s case by establishing that a person could see the alarm
light from all locations from which the machine was operated remotely. Further, Bretzman could
not recall anyone from Respondent telling him that the indicator light could be seen by a person
who could de-energize the machine. Tr. 446. Accordingly, I find a violation of § 75.342(b)(2).
Bretzman determined that because production had halted and because he had no evidence
of methane present at the time of the citation, the violation was unlikely to result in an injury. Tr.
410, 420. Under extant Commission precedent, I lack authority to modify the non-S&S
designation and make it S&S.24
3. Respondent’s Negligence was Appropriately Designated as Low
The Secretary argues that Respondent’s negligence was low, citing the lack of previous
enforcement as a mitigating factor in the inspector’s analysis. P. Post Hr’g Br. 3-4 (quoting Mach
Mining, LLC, 34 FMSHRC 1769, 1744 (Aug. 2012), citing Austin Powder Co., 29 FMSHRC
909, 920 (Nov. 2007)). In determining the weight to be given the lack of enforcement, I note that
Commission judges are not bound to apply the levels of negligence definitions that are
designated by potential mitigating circumstances in the Secrtary’s regulations. Brody, 37
FMSHRC at 1701; Mach Mining, 809 F.3d at 1263-64. While the Commission has held that
inconsistent enforcement is not a defense to liability, it is relevant to the determination of
negligence, and may be cited as a mitigating factor in reducing said negligence. Mach Mining, 34
FMSHRC at 1744 (citing King Knob Coal Co., 3 FMSRHC 1317, 1422 (June 1981), aff’d sub
nom Mach Mining, LLC v. FMSRHC, 809 F.3d 1259 1259 (D.C. Cir. 2016) (inconsistent
enforcement of a regulation may reduce the level of negligence and detrimental reliance on
MSHA’s incorrect interpretation of a regulation is properly considered in mitigation of penalty).
Both this citation and the previous citation involve violations of the same standard. While
the similarity between the citations might result in comparable negligence determinations, the
24

Mechanicsville Concrete, Inc. t/a Materials Delivery, 18 FMSHRC 877, 880 (June

1996).

38 FMSHRC Page 1418

precedent cited above permits consideration of inconsistent prior enforcement at this juncture to
determine the appropriate level of negligence. I credit Robinson’s testimony that MSHA
overlooked the violation of §75.342(b)(2) on the instant shearer for years before issuing a
citation on the date of the inspection. Tr. 725-27. Given the lack of previous enforcement, I find
that the Secretary properly designated Respondent’s level of negligence as low.
4. Civil Penalty for Citation No. 8432319
Applying the penalty assessment criteria set forth in section 110(i) of the Mine Act, I find
that Respondent mined 7,528,061 tons of bituminous coal in 2012. The parties stipulated that the
originally proposed penalty of $117 will not affect Respondent’s ability to remain in business.
MSHA recognized Respondent’s good-faith compliance in abating the citation. I have affirmed
MSHA’s gravity and negligence determinations. After consideration of the penalty assessment
criteria set forth in section 110(i) of the Act, I assess a $117 civil penalty against the Respondent
for Citation No. 8432319.
VII. Citation No. 8439454
A. Findings of Fact
1. Inspector Stanley’s Testimony
On August 15, 2013, Stanley returned to the mine to conduct a regular inspection of the
surface of the property, including any underground equipment found on the surface. Tr. 472.
Stanley inspected a Kubota 10, a two-seater diesel Road Taxed Vehicle (RTV), used to transport
men or material underground. Tr. 473. Stanley did not know who operated the Kubota, but
thought that it was Schilke. Tr. 499. Stanley examined the steering components of the vehicle as
the operator turned the steering wheel. Tr. 474, 482. Stanley inspected the Kubota again in the
repair shop. Tr. 486. Stanley testified that both times, he observed impermissible play in the
lower left ball joint. Id.
Stanley observed and concluded that there was excessive wear and play in the lower left
ball joint for three reasons. Tr. 474-75, 482. First, the tires did not simultaneously turn with the
steering wheel. Tr. 474-75, 508. Stanley described this as hesitation or delay in the steering. Tr.
474-75. Second, there were areas of shine on the ball joint. Tr. 474, 508. Stanley observed that
the shiny area was more than an eighth of an inch. Tr. 483. He testified that this shine occurs
when the tie-rod end wears on the ball. Tr. 474. Finally, Stanley observed that there was in
excess of an eighth of an inch of play on the joint. Tr. 474, 480.
Stanley did not use a dial indicator or any other tool to assist his measurements during
either inspection. Tr. 483, 487, 507. Instead, he examined for separate movement in steering
components. Tr. 474-75, 487, 498. Stanley testified that an excess of an eighth of an inch of play
contravenes MSHA out-of-service criteria. Tr. 507-08. Stanley was unable to verify where the
standard for an eighth of an inch of play could be found in writing. Tr. 511-12. Stanley further
testified that the day before the hearing, he learned from Kubota’s service personnel that a
steering linkage component with any play must be replaced immediately. Tr. 475, 507, 510.

38 FMSHRC Page 1419

After observing excessive wear on the ball joint of a Kubota vehicle, inspector Stanley
issued Citation No. 8439454 for a violation of 30 C.F.R. § 75.1914(a), which requires that all
diesel equipment be maintained in proper operating condition. Tr. 465, 476. Stanley determined
that the violation was S&S and contributed to a loss of steering hazard that was reasonably likely
to result in a lost workdays or restricted duty injury for one miner as a result of Respondent’s
moderate negligence. P. Ex. 107; Tr. 476-77. The Secretary proposed a penalty of $1,026.
The Kubota was driven at speeds up to approximately 21 miles per hour (mph) in the
mine. Tr. 500, 503. When underground, the Kubota was driven on a rough, concrete travel road,
with potholes and a steep decline of approximately 3000 feet. Tr. 477, 501-02. Stanley described
the slope as having at least an eight-percent grade. Tr. 478. He testified that an excessively worn
and unrepaired ball joint will cause “the steer tire [to] most likely fold over and lay down…
[resulting in a] complete loss of steering on the vehicle.” Tr. 477. Stanley determined that such a
hazard was likely to cause injury to the Kubota operator or one of the pedestrian miners clearing
coal near the conveyor belt along the travelway. Tr. 477-79. The latter type of injury would
result from the Kubota either striking a miner or pinching a miner against other structures. Tr.
478. Stanley testified that the brakes on the Kubota were in good working condition, and that
operators generally drove at speeds consistent with road conditions. Tr. 499-500.
Stanley opined that the condition needed more than one day to develop. Tr. 479. He
further testified that the wear would not likely be discovered during weekly inspections. Id.
Stanley did not recall whether Respondent’s miners made any statements about mitigating
factors when he issued the citation. Tr. 488. Without evidence indicating how long the condition
actually existed, Stanley classified the Respondent’s negligence as moderate. Tr. 479.
The citation was abated later that day when the tie-rod end and the ball joint were replaced.
Tr. 480, 488. Stanley did not take measurements after abatement, although he did go under the
Kubota to examine the repair. Tr. 498.
2. The Testimony from Respondent’s Witness
a. Schilke’s Testimony
As noted, Schilke accompanied Stanley during the inspection. Tr. 560. Schilke testified
that he did not recall if Stanley initially examined the vehicle. Tr. 563. Schilke then testified that
Stanley observed the steering while Jeff Wilkins, the Kubota operator, was directed to turn the
steering wheel. Tr. 560, 563-64.
According to Schilke, after Stanley’s inquiry, Wilkins told Stanley that Wilkins had
checked the Kubota prior to use and found no issues with the steering. Tr. 560-61, 624, 627.
Stanley then directed Wilkins to drive the Kubota to the repair shop. Tr. 561-62. Schilke
observed no problems with the steering as Wilkins drove the vehicle to the shop. Id., Tr. 624. At
the shop, the vehicle was lifted and the ball joints were examined. Tr. 561, 567. There Schilke
observed movement in the ball joint, although neither he nor Stanley used an instrument to
quantify how much movement was present. Tr. 561-62, 567-68, 621, 625. Schilke opined that the

38 FMSHRC Page 1420

movement was less than an eighth of an inch, or less than the thickness of a quarter. Tr. 568, 622,
625. Schilke conceded that the movement would get worse over time if not repaired. Tr. 625.
Schilke testified that the Kubota that Wilkins drove was very similar to the Kubota that
Schilke drove. Tr. 565-66; see R. Ex. 5 (photograph of Schilke’s Kubota). Schilke described the
brakes on the Kubotas as “pretty good.” Tr. 566. The Kubotas have hydrostatic transmissions,
which slow down the vehicles when pressure is removed from the gas pedal. Id. Finally, Schilke
described the concrete slope in the mine as rougher than an interstate, with a rutted and grooved
surface. Tr. 636.
When asked on direct examination to offer any mitigating circumstances, Schilke
testified that the movement of the ball joint had little impact on the steering. Tr. 569. He also
mentioned that any impact on steering was further reduced by the soft tread of the tires on the
soft clay floor of the mine. Id. Finally, Schilke reiterated that Wilkins had driven the Kubota
down to the seals of the mine and back, and that Wilkins had found no difficulty with steering.
Id.
Schilke also testified that he spoke with a mechanic for Respondent after Stanley issued
the citation. The mechanic did not testify at hearing. Schilke testified that the mechanic told him
that he would not have allowed an unsafe Kubota to go underground. Tr. 627, 637. According to
Schilke’s testimony, the mechanic was of the opinion that the Kubota was safe because Wilkins
had told him that the steering worked fine. Id. Schilke further testified that the mechanic told him
that although the Kubota manufacturer wants no movement in the ball joint, in practice, vehicles
that are used in a mine experience similar movement. Tr. 561-62, 566. Schilke later conceded on
cross-examination that the steering in a private vehicle is very different from the steering in a
Kubota. Tr. 620.
b. Jeff Wilkins’ Testimony
Jeff Wilkins was a mine examiner for Respondent.25 Tr. 683. Wilkins operated the
Kubota in question every day. Tr. 685-686, 697. On the date of the inspection, Wilkins
conducted a pre-operational check of the Kubota. Tr. 687. This check included an examination of
the steering, which he performed by turning the wheel back and forth to ascertain any slack.26 Tr.
687-88. Wilkins stated that a visual inspection of the ball joint while the wheel was turned was
not necessary to detect movement in the ball joint. Tr. 688-89. Instead, the movement would
manifest as play in the steering wheel. Id. Wilkins testified that without turning the wheel, he
would not notice wear in the ball joint, unless it was substantial. Tr. 699. Wilkins claimed that he
25

Wilkins was employed with Respondent for seven and a half years. Tr. 683. Apart from
his position as an examiner, Wilkins worked as an outby laborer and foreman. Id. Prior to his
employment with Respondent, Wilkins worked at three separate mines: Willow Lake Mine,
Eagle Valley Mine, and Sahara Mine. Tr. 683-84. Wilkins was a certified examiner with an
electrical card. Tr. 685.
26

When the wheel turned, suspension rose and descended, pivoting the ball joint that was
threaded in the tie rod. Tr. 701-03. The ball joint had a nut and cotter pin that were intact. Id.

38 FMSHRC Page 1421

would notice gradual slack in the Kubota’s steering over time. Tr. 698. Wilkins further testified,
consistent with Schilke’s account, that Wilkins did not notice any problems with the steering
during his pre-operational check of the vehicle. Id.
After concluding his pre-operational check, Wilkins drove his Kubota underground for
approximately one hour. Tr. 689-90. He described the underground path driven as a fairly steep
slope, with smooth and rough patches, with rough conditions encountered where rocks fell off
beltlines and along intake ways. Tr. 695-96. He testified that the Kubota was a slow-moving
vehicle and he experienced no problems with the steering or the brakes. Tr. 690-91, 701.
Wilkins contrasted his trip on the day of the citation with an earlier experience that he
had driving a Kubota with faulty steering. Tr. 692. In the later instance, Wilkins noticed the
steering arm loosen and jerk when he drove over a rough area. Id. He testified that without
repair, such a steering arm may disconnect from the steering jack, forcing the vehicle to halt
instantly. Id. Wilkins testified that the Kubota automatically stops when the wheel is turned and
the operator removes his foot from the gas. Tr. 693.
Contrary to Schilke’s testimony, Wilkins testified that he did not operate the Kubota
around Stanley. Tr. 696. Rather, Wilkins testified that he left the Kubota after returning to the
surface. Tr. 693-94. Wilkins was not present for Stanley’s initial inspection of the vehicle or for
the inspection that occurred in the repair shop. Id. When Wilkins returned to the vehicle, Stanley
and Schilke had already decided to relocate the vehicle to the repair shop. Id.
B. Analysis and Disposition
1. The Violation of § 75.1914(a)
Section 75.1914 imposes two duties upon an operator: (1) to maintain machinery and
equipment in safe operating condition, and (2) to remove unsafe equipment from service.
Derogation of either duty violates the standard. Peabody Coal Co., 1 FMSHRC 1494, 1495 (Oct.
1979). The Kubota cited by inspector Stanley was mobile equipment. It is undisputed that such
mobile equipment was in service when cited. The dispute is whether the Kubota was maintained
in safe operating condition. I find that the Kubota was not maintained in safe operating condition
and was not removed from service. Accordingly, I find the violation.
Equipment is in unsafe operating condition when a reasonably prudent person familiar
with the factual circumstances surrounding the alleged hazardous condition, including any facts
peculiar to the mining industry, would recognize a hazard warranting corrective action within the
purview of the applicable regulation. Ambrosia Coal & Construction, 18 FMSHRC 1552, 1557
(Sept. 1996) (citing Alabama By-Products Corp., 4 FMSHRC 2128, 2129 (Dec. 1982) (applying
identical standard in underground coal mines)).
The Commission has recognized that movement in steering linkage ball joints alone can
rise to the level of a hazardous defect. See LaFarge North America, 35 FMSHRC at 3500
(applying § 56.14100(c), which concerns defects that make continued operation hazardous, and
remanding to determine amount of movement in ball joints and whether such amount constitutes

38 FMSHRC Page 1422

a hazardous defect). Stanley credibly testified that MSHA finds violations where there is excess
play in the ball joint. Tr. 507. Both Stanley, and through Schilke’s hearsay admission,
Respondent’s mechanic, reported that the Kubota manufacturer requires no movement in the ball
joint. Tr. 475, 561. In addition, I take administrative notice of the North American Standard Outof-Service Criteria, issued by the Commercial Vehicle Safety Alliance.27 This manual provides
that a vehicle is to be taken out of service if any of its ball and socket joints exhibit “any motion,
other than rotational, between any linkage member and its attachment point of more than 1/8
inch (3.2 mm) measured with hand pressure only” or if any tie rod exhibits “any looseness in any
threaded joint.” Commercial Vehicle Safety Alliance, North American Standard Out-of-Service
Criteria, at 44 (revised April 2010).
I credit inspector Stanley’s testimony that there was impermissible movement in the
lower left ball joint. A simple visual inspection by Stanley as the operator turned the wheel
revealed a hesitation in steering, while the shine on the ball joint itself supplied physical
evidence of wear. Tr. 474. Schilke corroborated the play in the ball joint when recalling the
examination conducted in the repair shop. Tr. 561-62. The operator, Wilkins, used the Kubota
after conducting a pre-operational examination, which he admits did not include a visual
examination of the ball joint, and failed to reveal the play in the ball joint. Tr. 687-89.28 Neither
side disputes that, if left unchecked, the movement would grow worse over time. Tr. 477, 625.
Accordingly, I find that excess play in the ball joint as visually observed by inspector Stanley
constitutes a hazard making continued operation of the Kubota unsafe and requiring its removal
from service.
I discredit the recollection of Respondent’s witnesses concerning the ball joint
examination. Respondent’s witnesses contradict themselves and each other with regard to the
Kubota’s inspection. Schilke alleged that he could not recall Stanley’s examination of the
Kubota’s steering, and then immediately proceeded to describe the inspection. Tr. 563-64.
Although Wilkins did not remember participating in the inspection, both Stanley and Schilke
confirmed the participation of Wilkins during Stanley’s inspection. Tr. 482, 560-64, 693.
Based on my review of the testimony, I find that the Secretary proved by a preponderance
of the evidence that Respondent violated § 75.1914(a) by failing to maintain the Kubota in safe
operating condition, and by failing to remove it from service.

27

This manual is relied on and cited by the United States Department of Transportation.
49 C.F.R. Pt. 385.4(b)(1)(2013); 79 F.R. 27766, (May 15, 2014). Under Commission precedent,
judicial notice can be taken of the existence or truth of a fact or other extra-record information
that is not the subject of testimony, but is commonly known, or can safely be assumed, to be true.
Union Oil, 11 FMSHRC 289, 300 n.8 (Mar. 1989).
28

Although Respondent was not cited for an inadequate pre-operational inspection, I
have determined in previous cases that a proper pre-operational inspection of a ball joint requires
one person monitoring the steering linkage while another person moves the steering wheel. Extra
Energy, 36 FMSHRC 2733, 2743 (Oct. 2014)(ALJ). Wilkins failed to conduct a visual
inspection of the ball joint while another person turned the wheel, or vice versa.

38 FMSHRC Page 1423

2. The Violation was Significant and Substantial
a. There was a Violation of a Mandatory Safety Standard
For the reasons explained above, I find the underlying violation of mandatory safety
standard § 75.1914(a).
b. The Violation Contributed to a Discrete Measure of Danger to Safety
My finding of a violation supports a finding of a discrete measure of danger to safety as
the standard violated requires a failure to maintain mobile equipment in safe operating condition.
Accordingly, if the Kubota is not maintained in safe operating condition, there is necessarily a
discrete measure of danger to safety. This conclusion is supported by the fact that MSHA, the
Kubota manufacturer, and the North American Standard Out-of-Service Criteria manual require
that vehicles with ball joints exhibiting excessive wear must be immediately repaired or removed
from service. Tr. 507, 475. Furthermore, Stanley credibly testified that such a ball joint, if left
unrepaired, would fail and result in compromised steering and control over the vehicle. Tr. 477.
Accordingly, I find that the second Mathies factor is satisfied.
c. The Violation Contributed to a Hazard That was Reasonably Likely to
Result in Injury
Regarding the third Mathies factor, the Secretary demonstrated that the hazard
contributed to by the violation, i.e., loss of steering of a Kubota within the mine, was reasonably
likely to result in an injury. Schilke and Wilkins testified that Kubotas are slow to a stop when
pressure is removed from the gas pedal. Tr. 499, 692-93. However, a Kubota driven at speeds up
to approximately twenty-one miles an hour on rough mine roads at an eight degree slope with
undiscovered excess wear on the ball joint, is reasonably likely to contribute to compromised
steering and loss of control of the Kubota, which hazard is reasonably likely to result in injury to
the driver or injury to a miner working nearby. The driver is exposed to injury due to the
excessive wear in the ball joint, which contributes to a compromised or loss-of-steering-control
hazard that would likely result in collision with an object or rib and injury to the driver. Further,
Stanley’s testimony credibly establishes that miners working along the conveyer belt adjacent to
the travelway were exposed to injury from a collision due to the loss of control of the Kubota. In
these circumstances, the loss-of-control hazard contributed to by the violation, was reasonably
likely to result in injury during continued operation of the Kubota with excessive wear in the ball
joint.
d. There was a Reasonable Likelihood That the Injury in Question Will Be of a
Reasonably Serious Nature
With regard to the fourth Mathies factor, I find a reasonable likelihood that any such
injury would be of a reasonably serious nature. The loss-of-control hazard contributed to by the
failure to maintain the Kubota in safe operation condition was reasonably likely to result in a
collision with associated serious or fatal injury to the Kubota operator or pedestrian miners
working nearby. The Kubota is large enough to seat two people and has a dump bed in the back.

38 FMSHRC Page 1424

See R. Ex. 5. A collision with a miner, the rib, or other equipment would likely be serious or
fatal. A miner struck by the Kubota and pinned against the vertical supports within the mine
would likely suffer serious injuries. Accordingly, the Secretary has shown a reasonable
likelihood that an injury resulting from the hazard contributed to by the violation was reasonably
likely to be serious or fatal.
3. Respondent’s Negligence was Appropriately Designated as Moderate
As discussed above, a reasonably prudent operator engaging in appropriate buddy-checks
of steering linkage components should have been aware of the cited condition. Based on the
testimony and briefs, I do not find considerable mitigating circumstances that would justify
reducing the negligence designation from moderate to low. Respondent’s assertion that the soft
floor of the mine would reduce the impact of malfunctioning steering is not persuasive. There
was no evidence that the floor disturbed the speed or performance of a Kubota in safe operating
condition. Therefore, I discredit Schilke’s inference that the same floor would hinder a Kubota
with compromised steering. Tr. 569. Further, the assertion that the Kubota’s operator (Wilkins)
noticed no defect in the steering that day does not eliminate the likelihood of the danger. Rather,
the insufficient examination procedure supports at least a moderate negligence designation.
Respondent’s Kubota operator failed to perform any visual examination the vehicle, much less
while another person turned the wheel. Tr. 699. In these circumstances, I find that the Secretary
properly designated the Respondent’s level of negligence as moderate.
4. Civil Penalty for Citation No. 8439454
Applying the penalty assessment criteria set forth in section 110(i) of the Mine Act, I find
that Respondent mined 7,528,061 tons of bituminous coal in 2012. The parties stipulated that the
originally proposed penalty of $1,026 will not affect Respondent’s ability to remain in business.
MSHA recognized Respondent’s good-faith compliance in abating the citation. I have affirmed
MSHA’s gravity, negligence, and S&S determinations. After consideration of the penalty
assessment criteria set forth in section 110(i) of the Act, I assess a $1,026 civil penalty against
the Respondent for Citation No. 8439454.
VII. Citation No. 8452203
A. Findings of Fact
1. Inspector Horseman’s Testimony
After observing a missing portion of an emergency lifeline, MSHA inspector Steven Paul
Horseman29 issued Citation No. 8452203 for a violation of 30 C.F.R. § 75.380(d)(7)(i), which
29

At the time of hearing, inspector Horseman had been employed with MSHA for one
year and eleven months. Tr. 515. Apart from a four-year stint with a phone company, Horseman
had worked in mining since 1991. Tr. 516. He has experience in longwall and continuous mining
and has held various positions, including equipment operator, examiner, IT specialist, electrician,
and mine supervisor. Id.

38 FMSHRC Page 1425

requires that lifelines be installed and maintained throughout the entire length of the escapeway.
Tr. 465, 476. Stanley determined that the violation was S&S and contributed to an inability-totimely-escape hazard that was reasonably likely to result in injuries affecting thirty miners as a
result of Respondent’s moderate negligence. Tr. 156, 162-63. The Secretary proposed a penalty
of $13,268.
On September 8, 2013, Horseman conducted an EO2 section 103(i) spot inspection,
while being accompanied by safety manager Schilke. 30 U.S.C. §813(i); Tr. 517; P. Ex. 109. On
the way toward headgate seven, Horseman lost sight of the lifeline along the East Mains travel
road. Tr. 517. He asked Schilke to pull over and the two of them located the lifeline one entry
over in the secondary escapeway. Tr. 517, 529. They returned to their vehicle and followed the
lifeline until they found a break in the line. Id. The lifeline dangled from the ceiling,
approximately five feet above the ground. Tr. 517-18. The other end of the line was located
approximately 160 feet away. Tr. 518. Horseman measured the gap between the ends of the
lifeline, while Schilke found replacement line. Id. With the extra line, Horseman and Schilke
connected the two ends of the lifeline. Id., 525-26.
Horseman issued Citation No. 8452203 for a § 75.380(d)(7)(i) violation. Tr. 519.
§75.380(d)(7)(i) requires lifelines to be installed and maintained throughout the entire length of
the escapeway. Id. A lifeline is typically a durable, nylon rope. In the event of an emergency, a
lifeline provides disoriented miners with a tactile method of escape if the entry fills with smoke.
Tr. 520. The lifeline has cones and reflective lights that direct the miner towards the exit near the
slope. Tr. 543-45; 30 C.F.R. § 75.380(d)(7)(iii-v).
Horseman opined that all lifeline citations are not automatically S&S. Tr. 526. He
designated the instant violation as S&S because he determined that the violation contributed to a
hazard that was reasonably likely to result in fatal injuries affecting 30 miners. Tr. 523-24. With
respect to likelihood, Horseman testified that the lifeline would only be used in the event of an
emergency. Tr. 523. If a fire or explosion occurred, Horseman testified that it would not be
unusual for ventilation control devices to fail. Id. With failed ventilation, Horseman testified that
miners would inhale toxic fumes from smoke, or find themselves in a buildup of carbon
monoxide. Id. Even assuming sufficient time to don self-contained self-rescuers (SCSRs),
Horseman noted the reduced efficacy of these devices should the miners panic or fumble during
the emergency. Tr. 523. He recalled an incident from his own experience as a miner when a
smoke-filled entry limited visibility to the point where “you could not see your hand in front of
your face.” Tr. 521. He testified that in such conditions, 160 feet of missing lifeline would
prevent a miner from locating the other end of the lifeline and escaping the mine. Id.
Additionally, he testified that the miners may not have been aware that the lifeline changed
entries, which left them susceptible to further disorientation. Tr. 522. Given these conditions,
Horseman believed that fatal injuries were reasonably likely. Tr. 523. With respect to the number
of persons affected, Schilke informed Horseman that three loading crews comprised of ten
miners apiece were working inby the missing lifeline. Tr. 524.
Horseman designated the Respondent’s negligence as moderate. Id. He made this
designation because he could not determine how long the condition existed. Tr. 524-25. He
conceded that of the 35,000 feet of secondary escapeway, he found only 160 feet of the lifeline

38 FMSHRC Page 1426

that was missing. Tr. 542-43. He confirmed that Respondent held escape drills for miners to
familiarize themselves with using the escapeways. Tr. 547. Additionally, Respondent’s vehicles
had tethers. Id. A tether allows miners to stay attached to one another in case a single miner
grows disoriented. Tr. 547-49.
2. The Testimony from Respondent’s Witnesses
a. Schilke’s Testimony
Schilke confirmed that a portion of the lifeline was missing in the East Mains #1
travelway. Tr. 570-72. Schilke did not know how the condition occurred, or for how long it had
existed prior to discovery by Horseman. Tr. 601-02. Schilke admitted that he traveled that route
daily and had not discovered the condition. Tr. 615. The mine records did not contain any
notations regarding the missing lifeline. Tr. 602. The cited condition was in an area where
tractors were driven all day long, including the third-shift tractors, which had passed through the
area before the inspection. Tr. 602-03. Schilke did not find the disconnected section of the
lifeline and speculated that it could have been dragged away by a passing vehicle. Tr. 612-15.
The remaining ends of the lifeline, normally at shoulder height, were on the ground. Tr. 613-14.
Schilke testified about the location of the missing lifeline. If one walked towards the exit
of the mine, the lifeline primarily followed the direction of the travel road. Tr. 600. The travel
road headed north before turning west into the #3 entry of the East Mains #1 route. Id. The
lifeline did not turn with the travel road, but continued into the #2 entry before turning west. Tr.
601. This detour ran parallel to the travel road and past three crosscuts. Id. The gap in the lifeline
occurred within this detour in the #2 entry. Tr. 578, 599-601. The detour turned south down the
#29 crosscut to rejoin the travel road in the #3 entry. Tr. 597-601; see R. Ex. 11. A miner, who
followed the lifeline into the #2 entry, needed to walk through two crosscuts to find the other end
of the line. Tr. 574-75.
Schilke testified that the miners were aware of the detour because the lifeline had
followed that path since the area was developed. Tr. 610. He conceded, however, that miners
would not be expecting the section of the lifeline to be missing. Tr. 611. Schilke opined that
miners, who encountered a gap in the lifeline, would continue forward following the flow of air
rather than choose to retrace their path to rejoin the travel road. Tr. 608. However, he admitted
that in an emergency, the direction of air can change, thus preventing miners from using air
courses as directional indicators. Tr. 616. Nonetheless, he opined miners would know which
direction they were walking because the mine graded up as it headed outby. Tr. 616-17.
According to Schilke, if the miner could not find the other end of the line, he or she
would eventually hit stoppings placed west and north of the detour through the #2 entry.30 Tr.
30

There was a stopping in the #2 entry inby the # 29 crosscut, which prevented miners
from walking further westward. Tr. 595-96. There were additional stoppings that blocked access
to the crosscuts and entries to the north of the #2 entry. One of the stoppings in the crosscuts
north of the #2 entry had a man door. Tr. 596. A man door allow miners to cross through a
stopping. Id. During normal production, man doors are closed. Tr. 595-96.

38 FMSHRC Page 1427

596, 608. Thus, disoriented miners would eventually be forced to turn south or return east in the
direction from which they came. Tr. 596-98, 608. When choosing between these options, Schilke
opined that the miners would not return east in the direction from where smoke traveled. Tr. 608.
The remaining direction, south, would lead the miners to the travel road. Tr. 596-97, 608.
The self-contained self-rescuers (SCSRs) are equipped to last from forty-five minutes to
an hour. Tr. 617. Schilke recalled that the nearest self-rescuer caches were approximately 2,500
feet inby the missing lifeline, and 3,000 feet outby the missing lifeline. Tr. 640-42. As noted, the
height of the mine is generally nine to ten feet. Tr. 619. Schilke estimated that it would take
approximately an hour to travel about 5,700 feet, although some miners may move more slowly
than others. Tr. 619, 637, 644. Additionally, disoriented or lost miners may take longer to reach
a cache. Tr. 644-45. According to Schilke, the distance from the three working sections to the
missing lifeline was 15,000 feet. Tr. 618. The distance between the missing lifeline and the slope
exit of the mine was about another 15,000 feet. Tr. 617-18. On foot, it would take a miner nearly
three hours to reach the slope from the missing lifeline. Tr. 619, 637.
Schilke opined that directional signals on the lifeline and Respondent’s safety protocols
reduced the danger of the violation. On either end of the missing lifeline section, Respondent’s
lifeline had cones and reflectors that indicated the direction towards the exit. Tr. 572-73, 614.
The reflectors were visible in the cited area. Tr. 573-74. Reflectors were spaced every twentyfive feet and were attached to either a cone or the lifeline itself. Tr. 573. Schilke recalled that the
cones were spaced every 100 feet. Tr. 573. The cones were situated on the lifelines so that a
miner’s hand would slide smoothly over the tip of the cone towards the base as the miner
traveled towards the exit. Tr. 573. If a miner traveled in the wrong direction, the miner’s hand
would stop against the base of the cone. Tr. 573.
Additionally, Schilke testified that escaping miners would not rely solely on lifelines
during an emergency situation. Tr. 609. He testified that in the event of an emergency, the ideal
method for escape was by vehicle. Tr. 574, 604-05, 609. He further testified that an escaping
vehicle would continue along the main travelway, rather than detour into the adjacent entry to
follow the lifeline. Tr. 574. Depending on the level of smoke, however, Schilke was uncertain
whether the vehicle could drive down the secondary escapeway. Tr. 611-12. Schilke opined that
a pedestrian miner would exit the mine along the main travelway, rather than follow the lifeline.
Tr. 574-576. He conceded, however, that a miner might become disoriented, panic, and become
lost in an emergency. Tr. 611, 644-45.
Schilke confirmed that Respondent held escapeway drills every ninety days and
instructed miners to use tethers to keep together during a mine evacuation. Tr. 603-605, 609,
611. Additionally, he testified that signs labelling the crosscut numbers would indicate a miner’s
location. Tr. 573-74. Schilke maintained that these precautions, combined with the miner’s
knowledge of the mine’s topography and air flow, were sufficient for miners to find their way
out of the mine in an emergency situation. Tr. 608-10.

38 FMSHRC Page 1428

B. Analysis and Disposition
1. The Violation of § 75.380(d)(7)(i)
Section 75.380(d)(7)(i) provides that a continuous directional lifeline must be installed
and maintained throughout the entire length of each escapeway. 30 C.F.R. § 75.380(d)(7)(i).
Neither side contests that a portion of the lifeline was missing. Tr. 572; see R. Ex. 14 (missing
lifeline denoted in red). The missing portion of the line was approximately 160 feet. Tr. 518. A A
missing portion or gap in the lifeline makes it non-continuous under the plain meaning of the
standard and creates a violation of § 75.380(d)(7)(i).
Respondent argues that the violation was not S&S because the missing portion of the
lifeline was relatively small compared to the full length of the line, and because additional safety
measures were adequate to ensure the safe evacuation of the miners.
2. The Violation was Significant and Substantial
a. There was a Violation of a Mandatory Safety Standard
For the reason explained above, I find the underlying violation of mandatory safety
standard § 75.380(d)(7)(i).
b. The Violation Contributed to a Discrete Measure of Danger to Safety
With regard to the second Mathies factor, the violation created a discrete safety hazard or
measure of danger to safety. The Commission has found that an accurate description of the
hazard contributed to by an inaccessible lifeline is “the danger of not being able to access or use
the lifeline in the event of an emergency where visibility is reduced and miners must rely upon
the tangible nature of the lifeline to quickly and safely escape the mine.” Black Beauty Coal Co.,
36 FMSHRC 1121, 1124 (May 2014). This description supports the Commission’s earlier
understanding of the hazard as “miners not escaping quickly in an emergency with attendant
increased risk of injuries due to a delay in escape.” Cumberland, 33 FMSHRC at 2346, aff’d sub
nom., Cumberland Coal Res., LP v. FMSHRC, 717 F.3d 1020 (D.C. Cir. 2013). I find that a 160foot gap in the lifeline is a significant and substantial hindrance that contributes to the hazard of
not being able to use the lifeline to escape the mine in an emergency situation.
Respondent argues that an S&S designation is inappropriate because 160 feet of missing
lifeline is a small percentage of the length of the entire lifeline. R. Br. 20-21. The percentage of
uninterrupted line is essentially immaterial to the impact that a 160-foot break in the line would
have on escaping miners. In Black Beauty, the Commission found that 110 feet of inaccessible
lifeline was reasonably likely to contribute to an inability-to-timely-escape hazard that would
result in injury. Black Beauty, 36 FMSHRC at 1124-25. Given the greater length of missing
lifeline in the present case, I find that 160 feet of missing lifeline supports my S&S finding for
this violation.

38 FMSHRC Page 1429

Respondent also argues that its miners would use quicker alternatives to escape, and that
their knowledge of the primary escapeway would keep them on the quickest path towards the
exit, allowing them to disregard the lifeline entirely. I reject this argument. Although the
Commission has not yet defined the weight that must be given to the presence of additional
safety precautions, the Commission discounts the argument that additional safety measures
prevent an S&S finding. See Brody Mining, 37 FMSHRC at 1691 (stating that evidence of
redundant safety measures has been consistently rejected as irrelevant); Black Beauty, 36
FMSHRC at 1125 n.5 (stating that additional safety measures do not prevent a finding of S&S);
Cumberland, 33 FMSHRC at 2369 (stating that allowing redundant safety measures to provide a
defense to a finding of S&S would defeat the purpose of any safety protection, and citing Buck
Creek, 52 F.32 at 136). Thus, alternative safety protocols do not undercut the significant and
substantial contribution that violations of mandatory standards have toward discrete safety
hazards.
In the present case, I examine the impact of a missing lifeline on a miner that must rely
upon said lifeline to quickly and safely exit the mine in an emergency situation. In short, I find
that the hazard contributed to by the violation was the prevention of a quick escape from the
mine by miners who were entitled to rely on a continuous lifeline when escaping the mine during
an emergency. Accordingly, the second Mathies factor is satisfied.
c. The Violation Contributed to a Hazard That was Reasonably Likely to
Result in Injury
I find that the violation contributed to the hazard that miners would become lost,
disoriented, or otherwise unable to quickly escape from the mine because of a compromised
lifeline, and that such hazard was reasonably likely to result in injury. The Commission requires
its judges to examine the S&S factors for lifeline violations within the context of emergency
conditions. Cumberland, 33 FMSHRC at 2357, aff’d Cumberland Coal Res., LP v. FMSHRC,
717 F.3d 1020 (D.C. Cir. 2013). The Commission has discussed different hazards that are
reasonably likely to result in an injury because of a lifeline violation in an emergency situation.
Black Beauty, 36 FMSHRC at 1125 (inaccessible lifelines contribute to injuries that are
reasonably likely to result from hazards such as tripping or stumbling, an interruption of
ventilation, miner panic and disorientation during an emergency, and excessive smoke filling a
corridor as a result of an a fire inby). In the present case, should miners follow the lifeline into
the secondary escapeway, and should the secondary escapeway fill with smoke, visibility may be
completely compromised. Because the gap in the lifeline occurs within the secondary escapeway,
miners will be unable to use the lifeline to navigate out of the secondary escapeway in conditions
of reduced visibility, re-enter the primary escapeway and continue exiting the mine via the
primary escapeway. Tr. 522; R. Ex. 11. Inspector Horseman testified that he personally
experienced a situation where smoke within the mine was so thick that he could not see his hand
in front of his face. Tr. 521. With such reduced visibility, locating a lifeline 160 feet away is a
staggering and time-intensive obstacle to overcome. A miner with little to no visibility and no
lifeline is likely to be disoriented or lost.
The Commission has discussed different ways a lifeline violation in an emergency
situation was reasonably likely to result in injury. Black Beauty, 36 FMSHRC at 1125

38 FMSHRC Page 1430

(inaccessible lifelines contribute to injuries that may result from hazards such as tripping or
stumbling, an interruption of ventilation, miner panic and disorientation during an emergency,
and excessive smoke filling a corridor as a result of an a fire inby). Should ventilation fail in an
emergency, miners may breathe toxic air or a buildup of carbon monoxide. Tr. 523. The miners
carry portable ventilation self-rescuers that only last for forty-five minutes to an hour. Tr. 617.
This time is reduced if the miners fumble or panic in an emergency. Tr. 523. In an emergency,
time spent lost or disoriented due to a missing lifeline reduces precious air supply, may prevent
miners from reaching the next self-rescuer supply cache, or may thwart them from escaping the
mine entirely.
Respondent put on evidence that it has adequate safety protocols and training to ensure
that miners will not panic in an emergency. Tr. 608-10. However, the Commission has reasoned
that even experienced miners “panic and become disoriented in an emergency.” Black Beauty, 36
FMSHRC at 1124. I find it likely that panic will exacerbate the consequences of reduced
visibility or limited ventilation.
I conclude that a miner who becomes lost, disoriented, or delayed in locating a missing
portion of the lifeline in order to escape during a mine emergency is reasonably likely to suffer
injury from smoke inhalation, carbon monoxide inhalation, or entrapment during the emergency.
Accordingly, the third Mathies factor is satisfied.
d. There was a Reasonable Likelihood That the Injury in Question Will Be of a
Reasonably Serious Nature
With regard to the fourth Mathies factor, any such injury from a delayed escape from the
mine is reasonably likely to be of a serious nature. Black Beauty, 36 FMSHRC at 1125 (“The
hazard of delayed or no escape at all due to an inaccessible lifeline in an emergency is
reasonably likely to result in serious or fatal injuries”); Cumberland, 717 F.3d at 1029 (“[T]he
lifeline violations at issue here would delay miners from escaping from an emergency and that
such a delay would be reasonably likely to cause serious injuries or death”). The hazard of a
delayed escape is supported by inspector Horseman’s testimony. He reasonably determined that
limited air supply from the self-rescuers in a corridor filled with smoke and carbon monoxide,
miner panic and disorientation during an emergency, and reduced visibility are reasonably likely
to inhibit a timely escape from the mine. Tr. 523-24. I credit his testimony that the prolonged
inhalation of smoke and carbon monoxide during such an escape from the mine is reasonably
likely to be of a reasonably serious nature or fatal. Id. Accordingly, the Secretary has
demonstrated a reasonable likelihood that any injury resulting from the hazard contributed by the
violation would be serious or fatal.
3. Respondent’s Negligence is Raised from Moderate to High
I find that Respondent’s negligence should be raised from moderate to high. Respondent
knew or should have known of the missing lifeline and there are no mitigating circumstances.
Initially, I note that escapeways must follow “the most direct, safe and practical route to the
nearest mine opening suitable for the safe evacuation of miners.” 30 C.F.R. § 75.380(d)(5). The
lifeline followed a circuitous route used by drivers to avoid a belt drive that was once installed in

38 FMSHRC Page 1431

the main travelway. Tr. 610. However, at the time of the citation, the belt was no longer within
the travelway. Tr. 610. Respondent’s failure to move the line to the primary travelway indicates
that Respondent paid little to no attention to the path of the line after the belt drive was removed.
Furthermore, Respondent failed to discover the condition of the lifeline for an undetermined
length of time.
The violation before me presents more than a lifeline that was merely in poor condition.
A portion of the primary escapeway did not have a lifeline because the lifeline took a detour into
the secondary escapeway that was costly in both time and distance for a miner escaping on foot.
Within that detour, 160 feet of lifeline was entirely absent. Schilke testified that he traveled the
route daily and did not notice the condition. Tr. 615. Respondent’s inability to definitively
explain why the line was missing or for how long the violation existed is not a mitigating
circumstance, but instead, is further evidence of a cavalier lack of care towards a condition that is
essential to the survival of miners in an emergency situation. Further, Respondent’s ignorance
raises the concern that a similar section of the lifeline could go missing again without discovery.
Finally, Respondent has not justified its failure to maintain an intact lifeline -- a failure that
jeopardized the lives of thirty miners. I find that the Respondent should have known of the
violative condition and corrected it immediately as a top priority. Accordingly, Respondent’s
negligence is raised from moderate to high.
4. Civil Penalty
Applying the penalty assessment criteria set forth in section 110(i) of the Mine Act, I find
that Respondent mined 7,528,061 tons of bituminous coal in 2012. The Secretary originally
proposed a penalty of $13,268 and the parties have stipulated that the total proposed penalty
from all seven citations equaling $39,500 will not affect Respondent’s ability to remain in
business. MSHA recognized Respondent’s good-faith compliance in abating the citation. I have
affirmed MSHA’s S&S determination. I have modified MSHA’s negligence determination from
moderate to high for the reasons stated above. After consideration of the penalty assessment
criteria set forth in section 110(i) of the Act, I assess a $25,000 civil penalty against the
Respondent for Citation No. 8452203. Respondent’s new total penalty from the combined
citations is now $32,636. Given that this is lower than the total amount which Respondent
stipulated will not affect its ability to remain in business, I find that this increase in penalty is
appropriate and justified for the gravity and severity of the violation and would not affect
Respondent’s ability to remain in business.
VIII. ORDER
WHEREFORE, the joint motion for settlement presented at hearing is GRANTED.
It is ORDERED Citation No. 8445731 be MODIFIED to reduce the level of negligence
from “moderate” to “low.”
It is ORDERED Citation No. 8445758 be MODIFIED to reduce the level of from
“moderate” to low,” and

38 FMSHRC Page 1432

It is ORDERED Citation No. 8451650 be MODIFIED to reduce the number of persons
affected from “twelve” to “six.”
It is further ORDERED that Citation No. 8451651 be MODIFIED to reduce the level of
negligence from high to moderate.
It is ORDERED that Citation No. 8439446 be AFFIRMED, as written.
It is ORDERED that Citation No. 8432319 be AFFIRMED, as written.
It is ORDERED that Citation No. 8439454 is AFFIRMED, as written.
It is ORDERED that Citation No. 8452203 be MODIFIED to raise the level of
negligence from moderate to high.
It is further ORDERED that the operator pay a total penalty of $43,28031 within thirty
days of this decision.32

/s/ Thomas P. McCarthy
Thomas P. McCarthy
Administrative Law Judge

31

As noted herein, I assess a penalty of $5,081 for Citation No. 5481651, $1,412 for
Citation No. 8439446, $117 for Citation No. 8432319, $1,026 for Citation No. 8439454, and
$25,000 for Citation No. 8452203.
32

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

38 FMSHRC Page 1433

Distribution:
Marty J. Gayer, Conference & Litigation Representative, U.S. Department of Labor, MSHA,
2300 Willow St, Suite 200, Vincennes, IN 47591
Christopher D. Pence, Esq., Eric L. Silkwood, Esq., Hardy Pence PLLC, 500 Lee St. East, Suite
701, Charleston, WV 25301
Jason Grover, Esq., Office of the Solicitor, U.S. Dept. Of Labor, 201 12th Street South, Suite
500, Arlington, VA 22202-5450
Daniel McIntyre, Esq., U.S. Dept. of Labor, Office of the Solicitor, Cesar E. Chavez Memorial
Building, 1244 Speer Blvd, Suite 515, Denver, CO 80204
Thomas J. Motzny, Esq., U.S. Dept. Of Labor, Office of the Solicitor, Castner Knott Building
618 Church Street, Suite 230, Nashville, TN 37219-2440

38 FMSHRC Page 1434

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9950 / FAX: 202-434-9949

June 6, 2016
DISCRIMINATION PROCEEDING:

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of MINDY S. PEPIN,
Complainant,

Docket No. LAKE 2015-386-DM
MSHA Case No. NC-MD 15-02
Mine: Empire Mine
Mine ID: 20-01012

v.
EMPIRE IRON MINING PARTNERSHIP,
Respondent.

DECISION
Appearances:

Suzanne F. Dunne, Esq., U.S. Department of Labor, Office of the
Solicitor, Chicago, Illinois, on behalf of Complainant
R. Henry Moore, Esq., Jackson Kelly PLLC, Pittsburgh, Pennsylvania, on
behalf of Respondent

Before:

Judge Barbour

This case is before me upon a complaint filed by the Secretary of Labor (“the Secretary”)
on behalf of Mindy Pepin pursuant to the interference provision of Section 105(c) of the Federal
Mine Safety and Health Act of 1977 (“Mine Act” or “the Act”), 30 U.S.C. § 815(c), and on an
amended complaint seeking the assessment of a civil penalty filed by the Secretary against
Empire Iron Mining Partnership (“Empire Iron”) pursuant to Sections 105 and 110 of the Act, 30

38 FMSHRC Page 1435

U.S.C. §§ 815 and 820.1 On December 2, 2014, Pepin filed a complaint with the Mine Safety and
Health Administration (“MSHA”) alleging that her shift supervisor, Tim Hooper, confronted her
about a safety concern she raised and accused her of using safety to bottleneck production. On
April 6, 2015, the Secretary filed this action on behalf of Pepin alleging that “Pepin was illegally
interfered with by [Empire Iron] when she was confronted and intimidated by a management
official for engaging in activities protected by [the Act].” Sec’y Complaint at 2.
The Secretary proposes a civil penalty of $20,000 for Empire Iron’s alleged violation of
section 105(c)(1) and an order granting Pepin unspecified monetary compensation for pain,
suffering, and emotional distress. Additionally, the Secretary requests a finding that Empire Iron
unlawfully interfered with protected activity, an order that the company cease and desist from the
unlawful interference, an order that the company’s mine superintendent read a notice to all
miners informing them of their 105(c) rights and of the company’s 105(c) violation, and an order
that the company post a written copy of that notice to the mine bulletin board for a period of one
year.
The case was assigned by the Chief Judge to the court, and the parties presented
testimony and documentary evidence at a hearing on January 20, 2016, in Marquette, Michigan.
For the reasons that follow, the court concludes that Empire Iron interfered with the rights of
Pepin under the Mine Act in violation of section 105(c).
I.

STIPULATIONS
1. At all times relevant to this proceeding, [Empire Iron] did business and
operated the Empire Mine . . . and associated processing plants and is . . . an
"operator" as defined in Section 3(d) of the Act. . . .
2. The subject Empire Mine wherein [Empire Iron] operates the surface mine . . .
is a "mine" as defined in Sections 3(b) and 4 of the Act. . . .

1

Section 105(c)(1) states, in part:

No person shall discharge or in any manner discriminate against or . . . cause
discrimination against or otherwise interfere with the exercise of the statutory
rights of any miner . . . because such miner . . . has filed or made a complaint
under or related to this Act, including a complaint notifying the operator or the
operator’s agent . . . of an alleged danger or safety or health violation in a coal
or other mine . . . or because of the exercise by such miner . . . of any statutory
right afforded by this Act.
30 U.S.C. § 815(c)(1) (emphasis added). Section 105(a) requires the Secretary to advise the
operator of the amount of the civil penalty proposed for an alleged violation of section 105(c)(1),
and section 110(a)(1) requires the Commission to assess a penalty if a violation of section
105(c)(1) is found to have occurred. 30 U.S.C. § 820(a)(1). Section 105 mandates the assessment
of a penalty for a violation of the Act, and Section 110(i) sets forth criteria the Commission must
consider in assessing any such penalty. 30 U.S.C. § 820(i).

38 FMSHRC Page 1436

3. At all times relevant herein, Mindy S. Pepin . . . worked at . . . Empire Mine
and was a "miner" as defined in Section 3(g) of the Act. . . .
4. Empire Mine is subject to the jurisdiction of the [Act]. . . .
5. Empire [Mine] is a large open pit mine near Ishpeming, Michigan. Empire
[Iron] produces iron ore pellets for use in the steelmaking industry.
6. Pursuant to Section 113 of the Act . . ., the Federal Mine Safety and Health
Review Commission has jurisdiction over the subject matter of this case.
7. The presiding Administrative Law Judge has jurisdiction over these
proceedings, pursuant to Section 105 of the Act.
8. The parties stipulate to the authenticity of their exhibits, but not to the
relevance or truth of the matters asserted therein.
9. [Empire Iron's] operations affect interstate commerce.
10. On the morning of October 31, 2014, an alert generated by the ThorGuard
lightning detection system was "cleared" and the mine returned to full
operating mode.
11. On November 2 and 3, Ms. Pepin had recorded the clearing of a lightning red
alert on what [are] known as "Take 5" cards.[2] These cards were signed by
Mike Gauthier who made Tim Hooper aware of the notations. Copies of such
cards are identified as Exhibit G-1 and may be admitted into evidence.
12. A section 103(g) complaint was filed concerning the issue.[3] On November
3-4, MSHA Inspector Ernie Letson investigated the Section 103(g) complaint
concerning the clearing of the lightning red alert. A copy of such complaint as
presented to the mine is identified as Exhibit G-2 and may be admitted into
evidence.
2

A red alert indicates the potential for lightning in the area.

3

Section 103(g)(1) of the Act states, in pertinent part:

Whenever a . . . miner . . . has reasonable grounds to believe that a violation of
this Act or a mandatory health or safety standard exists, or an imminent danger
exists, such miner . . . shall have a right to obtain an immediate inspection by
giving notice to the Secretary or his authorized representative of such violation or
danger. Any such notice shall be reduced to writing, signed by the . . . miner, and
a copy shall be provided the operator or his agent no later than at the time of
inspection. . . . The name of the person giving such notice and the names of
individual miners referred to therein shall not appear in such copy or notification.
Upon receipt of such notification, a special inspection shall be made as soon as
possible to determine if such violation or danger exists in accordance with the
provisions of this title.
30 U.S.C. 813(g)(1).

38 FMSHRC Page 1437

13. On November 4, 2014, after extensive interviews of hourly and management
personnel, Mr. Letson issued a notice of negative findings[4] to Steve Baril,
who forwarded it to Tyson Murphy, who forwarded it to the Mine Operations
Supervisory team, including Tim Hooper, Ms. Pepin's direct supervisor. A
copy of the negative findings [is] marked as Exhibit G-3 and may be admitted
into evidence.
14. The Secretary has no independent knowledge of whether or when Ms. Pepin
was informed of the outcome of the Section 103(g) complaint she filed related
to the ThorGuard lightning detection system. Pursuant to MSHA
requirements, MSHA investigators routinely inform company management
and union officials of results of hazard complaints. MSHA does not routinely
inform complainants of results of hazard complaints.
15. Mr. Hooper gave a copy of the findings to Ms. Pepin on the evening of
November 4, 2014 before the start of her shift.
16. Ms. Pepin and Chad Filizetti then went to Mr. Hooper's office for a
discussion. The nature and content of such discussion is at issue in this case.
17. On December 2, 2014, Ms. Pepin filed a complaint with the Secretary of
Labor charging discrimination pursuant to Section 105(c)(l) of the Act.
18. The total proposed penalty for the citations at issue ($20,000) will not affect
Respondent's ability to continue in business.[5]
J-Ex. 1.
II.

THE TESTIMONY
1. Background and the 103(g) Complaint

Empire Iron owns and operates two adjacent open pit iron ore surface mines, the Empire
Mine and the Tilden Mine, both of which are located in Marquette County, Michigan. Tr. 17, 93.
At the Empire Mine, iron ore is extracted, crushed, and concentrated. Tr. 93. Mindy Pepin is a
crusher operator at the Tilden Mine. Tr. 24. She has approximately six years of experience in her
current position, and nearly eleven years of experience at the mines. Tr. 24.
In the early morning of October 31, 2014, at the end of a midnight shift, Pepin walked
into the dispatch office at the mine and noticed a “red alert” on a computer screen for two
different ThorGuard systems, which she believed indicated a “great potential for lightning.” Tr.
4

A notice of negative findings informs an operator at the end of a 103(g) complaint
investigation that no violation of the Act or a mandatory health or safety standard has been
found.
5

No citation or citations were actually issued. Rather, the Secretary seeks the assessment
of a $20,000.00 penalty for the company’s violation of the Act in an amended complaint. Sec’y
Amended Complaint at 3.

38 FMSHRC Page 1438

24-25. The ThorGuard system monitors electrical activity in the atmosphere in order to assess
the potential for a lightning strike at the mine. Tr. 94. Witnesses for both the Secretary and the
company testified that it was snowing that day. Tr. 25, 96. However, Pepin also testified to
seeing thunder and lightning around the start of her shift. Tr. 25, 96.
Pepin maintains that up until that night “the ThorGuard system was used as … the holy
grail,” meaning if there was a red alert, the company evacuated the areas that could be affected
by lightning. Tr. 27. However, in this instance, the company “disregarded the red alert” and
informed employees at the mine that they could continue working in the affected area. Tr. 26-27.
Pepin was concerned about employees working on the ground, especially near a blast pattern, or
in areas where they might be handling energized cables, because the ThorGuard system was still
indicting the potential for a lightning strike, and lightning could cause explosives to detonate. Tr.
79.
When she entered the dispatch room, Pepin asked her supervisor Tyson Murphy, the
section manager for mine production, why Empire Iron chose to disregard the red alert. Tr. 26,
92. Murphy testified that he provided Pepin with a 30 second explanation for why he did not
believe there was a hazard. Tr. 98. Part of this explanation was that the ThorGuard system is
prone to show false positives, especially when it is snowing, and all of the other evidence that the
company looks to in these circumstances suggested that there was no lightning hazard.6 Tr. 98.
Murphy described Pepin’s demeanor during this conversation as “agitated” and “upset,”
and he believed that at the end of the discussion Pepin “still wanted to argue the point.” Tr. 100.
Murphy testified that Pepin turned around with a “humpf” and “stormed down the hallway”
saying something he could not make out. Tr. 100. According to Jeffrey Delmont, a blasting
supervisor at the mine who walked by her while she was leaving the office, Pepin said, “Fucking
red is red.” Tr. 116. Witnesses for the company admitted that as of October 31, there was nothing
explicit in the electrical storm notification procedures available to employees at the mine dealing
with ThorGuard system false positives. Tr. 109-10, 118-19, 130-31.
On the 2nd and 3rd of November, Pepin filled out a Take 5 card, a workplace inspection
form on which employees may raise safety concerns with the company. Tr. 27-28, 100-01. On
both dates, Pepin documented on the cards that management permitted employees to reenter the
area affected by a potential lightning strike on October 31, even though the ThorGuard system
was still displaying a red alert. Tr. 28; Sec’y Ex. 1. At the end of each shift, Pepin placed the
cards in a box, where they would be picked up and reviewed by the shift supervisor. Tr. 29.
Pepin testified that prior to this incident she had only written a safety concern on a Take 5 card
three or four times over the course of approximately five years. Tr. 29.

6

According to Murphy, none of the supervisors or dispatchers to whom he spoke
observed lightning, nobody called in and reported seeing lightning, and an online lightning strike
map indicated that the nearest lightning was in Texas. Additionally, Murphy and Jeffrey
Delmont, a blasting supervisor at the mine, testified that ThorGuard and Weather Channel radar
maps did not indicate any nearby thunderstorm activity. Tr. 97, 114-15.

38 FMSHRC Page 1439

Daniel Keranen, the area manager of mining operations, testified that it is the company’s
expectation that when employees raise safety issues on Take 5 cards, they will receive a response
from management. Tr. 171. When asked whether management responds to these complaints,
Keranen responded affirmatively, and clarified that the employee’s supervisor may be the one to
respond. Tr. 171-72. However, Keranen conceded that the company does not have any way of
ensuring that supervisors respond, and therefore he could not say for sure how Take 5 complaints
are addressed in practice. Tr. 172-73. Pepin testified that in the three or four prior instances in
which she raised a safety concern on her Take 5 cards, she never received a response from
management, nor had she received a response to the one additional concern she raised following
her ThorGuard complaints. Tr. 58-59. She stated it was typical not to get an answer from the
company. Tr. 58-59.
On the morning of November 3, shortly after turning in her Take 5 card at the end of her
shift, Pepin contacted MSHA and made a complaint pursuant to section 103(g) of the Act raising
the same concerns about the company sending miners back to work even though the ThorGuard
system displayed a red alert. Tr. 29; Sec’y Ex. 2. Pepin testified that this was the first time she
had ever made a safety complaint to MSHA. Tr. 36. On November 3 and 4, MSHA investigated
the complaint, interviewing hourly and management personnel in the process. Tr. 112; Stip. 12.
On November 4, MSHA issued a notice of negative findings for the allegations in Pepin’s 103(g)
complaint. Stip. 13; Sec’y Ex. 3. MSHA did not interview Pepin as a part of the investigation or
inform her of its findings. Tr. 30. The inspector who investigated the incident personally
delivered the findings to Steve Baril, a safety representative for the company. Tr. 122-23. Baril
scanned the document and emailed the findings to supervisors Dan Keranen, Tyson Murphy,
Dan Wegleitner, and Richard Carlson. Tr. 123. Baril claims he expected them to communicate
the findings to the employees at the company through intermediate supervisors in toolbox
meetings. Tr. 123-24. He also testified that supervisors often communicate the findings from an
MSHA complaint inspection this way. Tr. 124.
2. The Ready Room Incident
On the evening of November 4, Mindy Pepin was seated in the employee’s ready room in
a building at the mine waiting to start her shift. Tr. 64. With her, at the time, was Chad Filizetti, a
fellow miner and her then-fiancé. Tr. 64. At least two or three other miners were also in the
room. Tr. 32, 64. Tim Hooper, her shift supervisor for the night, entered the ready room at
approximately 10:10 p.m., walked up to Pepin, and gave her a piece of paper containing
MSHA’s negative findings on her 103(g) complaint. Tr. 31, 65, 137-38. According to Pepin,
Hooper “shoved” the paper in her face and said, “Here, I thought you’d like to see this.” Tr. 31.
He then left the room and went back to his desk. Tr. 139; see also Tr. 65.
Hooper testified that he merely “handed” the paper to Pepin by “set[ting] it on the
counter right in front of” her and Filizetti. Tr. 137, 139. Then, in Hooper’s account, he stated
“Here[,] . . . I thought you’d be interested in seeing this. This is the findings from MSHA on the
ThorGuard.” Tr. 139. According to him, he did not stick around to have a discussion “because
[he] knew it would probably escalate into an argument” which he wished to avoid. Tr. 139-40.

38 FMSHRC Page 1440

Pepin testified that she was taken aback by Hooper’s decision to give her the complaint
because it was not a normal practice. Tr. 33. She interpreted Hooper’s actions as “giving [her] a
message that he knew it was [Pepin] that called MSHA.” Tr. 33. Filizetti testified that he
interpreted Hooper’s actions similarly. Tr. 74, 84.
Hooper insisted that he merely intended to address the concerns Pepin raised in her Take
5 cards, and that he did not even know she filed the section 103(g) complaint.7 Tr. 136-37, 140.
Hooper testified that he arrived at the decision to present Pepin with the negative findings in
consultation with his supervisor Joe Garnsey, because “obviously by filling her Take 5 card out
two days in a row, [Pepin] was very concerned” about the October 31 incident. Tr. 135-36.
Garnsey stated in a deposition that he thought Hooper should show Pepin the findings because
they would relieve her anxiety, and that the decision had nothing to do with proving Pepin
wrong. Resp’t Ex. 19 at 10. Garnsey did not know whether Pepin filed the MSHA complaint, but
he assumed she had. Resp’t Ex. 19 at 11, 16.
Additionally, Hooper testified that he planned to discuss the MSHA negative findings
with the rest of the shift crew during their standard toolbox meeting at 10:45 p.m. on November
4, which he subsequently did. Tr. 137-38, 145. However, Pepin started her shift early, normally
at 10:20 p.m., before the rest of the crew. Tr. 137. Therefore, Hooper informed Pepin of the
findings individually apart from the rest of the crew. Tr. 137.
3. The Confrontation in Tim Hooper’s Office
After Hooper left the ready room, Pepin followed him into his office because, according
to her, she “was curious to see why he felt the need to give [her] the MSHA findings.” Tr. 33.
She denied that she had any intent to provoke Hooper, although she was “aware that Mr. Hooper
has a temper.” Tr. 47, 53. At Pepin’s request, Filizetti accompanied Pepin. Tr. 33.
Pepin testified that she calmly asked Hooper why he gave her the findings. Tr. 33-34.
According to Pepin, Hooper responded, “Because we all knew it was you that called MSHA.”
Tr. 34. Pepin said she was shocked by that statement and told Hooper, “Just because you know
it’s me doesn’t mean you’re supposed to be telling me it’s me.” Tr. 34. According to Pepin’s
testimony, when asked how he knew it was Pepin who had called MSHA, Hooper answered that
it was because she wrote the same complaint on her Take 5 cards. Tr. 34.
At some point during this interaction, Pepin claims that Hooper “came flying out of his
chair at his desk” and that the conversation “got pretty heated really fast.” Tr. 34-35. Pepin
recalled that Hooper asked, “Do you know how many people I had to pull off of equipment to go
7

Hooper stated that he found out about the complaint almost immediately after seeing
Pepin’s Take 5 card complaints, so the thought crossed his mind that it was Pepin who called
MSHA. Tr. 147, 150. However, Hooper agreed that Pepin could have raised the issue with the
safety committee of the United Steelworkers of America (Pepin’s union), and a member of the
union’s safety committee, rather than Pepin, could have called MSHA. Tr. 154. Hooper
maintained that he would have no way of knowing who filed the 103(g) complaint in that
scenario. Tr. 154-55.

38 FMSHRC Page 1441

in for your interview?” Tr. 35. She interpreted this question to mean that the MSHA
investigation was a major inconvenience for the company. Tr. 35. Pepin also alleged that Hooper
told her she used “safety [complaints] to bottleneck production” and that Pepin and Filizetti were
the “ringleaders of the bottlenecking” operation.8 Tr. 35, 37. When asked by Pepin for further
elaboration, Hooper allegedly replied, “[E]verybody in the back office knows what [you are] up
to and they’re watching [you].” Tr. 37. As far as Pepin was aware, the back office would have
included Dan Keranen, Tyson Murphy, and all upper salary management personnel. Tr. 38.
Pepin testified that Hooper next threatened to send her home for insubordination. Tr. 38.
When Filizetti asked how Pepin was being insubordinate, Hooper allegedly answered, “Because
she’s scolding me for the way I’m talking to her,” and “I’m just telling her everything that
everyone else wants to say but is afraid to.” Tr. 38. Pepin testified that she was angry and
shocked at the turn the conversation had taken, and that she told Hooper the conversation was
over and left. Pepin recalled that at the end of the conversation she realized she had backed out
into the hallway after Hooper got up from his chair, even though she had started the conversation
at his desk. Tr. 47.
Although Filizetti’s recollection of the meeting was much hazier than Pepin’s and
omitted a few statements that Pepin alleged Hooper made, Filizetti corroborated Pepin’s
testimony that Hooper accused her of filing the MSHA safety complaint and of using safety
complaints to bottleneck production. Tr. 66-68. Filizetti also recalled Hooper getting out of his
chair at some point during the conversation, although in his telling Hooper “slowly came [their]
way” instead of “flying at” them. Tr. 70.
After Pepin left, Filizetti remained with Hooper in his office. Tr. 39. Although Filizetti
had trouble recalling most of the ensuing conversation, he testified that Hooper explained,
regarding his interaction with Pepin, that he does not have “people skills.” Tr. 75. According to
Filizetti, Hooper also stated that “everybody in the back hallway knew what [Pepin] was up to,”
which Filizetti interpreted to mean that his superiors were watching Pepin. Tr. 75-76. Filizetti
agreed that the tension eased in the room after Pepin left. Tr. 86.
Hooper’s account of the meeting differed slightly from Pepin’s. According to Hooper,
Pepin started asking questions right away and the interaction became increasingly hostile. Tr.
140. Pepin was allegedly loud, agitated, and full of attitude. Tr. 142. Hooper also testified that he
made sure he was seated the entire time, because he did not want to look intimidating, whereas
Pepin was “moving around.” Tr. 142, 145. Hooper admitted that he did become slightly angry
during the conversation. Tr. 145-46. He stated that “it’s hard not to be [angry] when stressful
situations are thrown at you like that.” Tr. 146.

8

Pepin believed that she did not make safety complaints very often and only regarding
issues that were “really concerning.” Tr. 35-36. She had never made a complaint to MSHA prior
to this incident, although she did recall bringing what she termed “minor things” to the attention
of a shift supervisor or salaried employee verbally. Tr. 36-37. These included issues regarding a
disintegrating walkway grating and berms of insufficient height. Tr. 37.

38 FMSHRC Page 1442

Hooper claimed that he did not know Pepin had called MSHA until she brought up the
subject. Tr. 140-41. Hooper stated that once the conversation started to get hostile, he announced
that the conversation was over and told Pepin and Filizetti to leave. Tr. 141. However, they did
not leave, and Pepin continued to ask questions. Tr. 141. It was at this point that Hooper claims
he threatened Pepin with insubordination because she would not leave the room when told to do
so. Tr. 141. Hooper then told Filizetti, “She cannot . . . come in here and quiz me on anything she
feels is relevant at the time.” Tr. 142.
Hooper next described his conversation with Filizetti after Pepin left the room. After
complaining about Pepin’s attitude, Hooper told Filizetti, “I don’t know what’s happened to this
crew. That crew . . . used to be one of the top crews, and now it seems like there are a few people
on the crew that are using safety as a crutch to not do their work.” Tr. 143. Hooper clarified that
he was referring to “minor equipment issues” where employees would shut down equipment that
was actually safe to run. Tr. 143-44. Hooper also believed that there had been frivolous
complaints filed with MSHA, including one where an employee had contacted MSHA because a
toilet was plugged without notifying management. Tr. 144. Hooper generally did not view
MSHA as an ideal first option for raising safety issues.9 Tr. 151.
Hooper testified that he then continued, “You know, have you seen the price our stock is
trading at? . . . [W]e need to work through some of these safety issues together to take care of
them, not in this manner.” Tr. 144. As noted, Hooper believed that the majority of safety issues
could be taken care of if they were brought to management’s attention. Tr. 144-45. That said, he
maintained he did not intend to prohibit or discourage Pepin or Filizetti from filing complaints
with MSHA. Tr. 145.

9

Hooper believed miners should raise safety complaints with management before
complaining to MSHA. He expressed this belief during the following exchange with the solicitor
at the hearing:
Q: [Y]ou felt that some people were making frivolous safety complaints?
A: Not frivolous safety complaints. Frivolous complaints to MSHA.
Q: So you think a complaint to MSHA is not a safety complaint?
A: Not if it’s—if it’s not a real one.
Q: So who is to judge what a real safety complaint is then?
A: Well, I guess the safety committee and the supervisors.
Q: So then the miners should take their complaints only to the supervisors and not
call MSHA if they feel that they have a complaint, to check to see if it’s a real
safety complaint?
*
*
*
A: Firstly, yes.
Q: So firstly they should take a complaint to the supervisors instead of taking the
complaint to MSHA?
A: Yes.
Tr. 151.

38 FMSHRC Page 1443

4. The Toolbox Meeting
At around 10:45 p.m. on November 4, Hooper subsequently discussed the MSHA
negative findings with his crew in a toolbox meeting in the ready room. Tr. 77. Pepin was not a
part of this meeting. Tr. 77. According to Filizetti, Hooper made mention during that meeting
that the company’s stock had been dropping and that the company was not in good shape
financially. Tr. 77. Filizetti took this comment, immediately following discussion of the MSHA
negative finding, to mean that unsubstantiated safety complaints were costing the company
money. Tr. 78. Hooper denied discussing the company’s stock prices with the crew, and instead
claims that he only mentioned that to Filizetti in private due to Filizetti’s own personal interest in
the matter. Tr. 153.
Hooper claimed that he had provided MSHA negative findings in a toolbox meeting prior
to this, but later admitted that he could not remember if he had. Tr. 148-49. Daniel Keranen, the
area manager of mining operations, testified that the company communicates MSHA negative
findings with the crew during toolbox meetings and that he had told Tyson Murphy to
disseminate information regarding the negative findings at issue in this case to all of the crews at
the mine. Tr. 171
5. Relevant History Between Mindy Pepin and Tim Hooper
Pepin testified that while she and Hooper did have a “couple of small run-ins” prior to the
events of this case, she considered her relationship with Hooper to be friendly and professional
up until this point. Tr. 40. The “run-ins” to which Pepin referred included an incident where
Hooper informed Pepin that she needed to start scanning in and out of the mine at the end of her
shift and an incident where he allegedly berated her for using the wrong door to exit a changing
room at the mine. Tr. 41, 53-54. Hooper clarified that there were several other employees who
were reprimanded for not scanning in and out of the mine at the time, but that the changing room
reprimand was specific to her. Tr. 146. These incidents were documented by the company in a
record of verbal redirections, although Pepin claims that she was not aware that such a record
existed until this proceeding. Tr. 40; Sec’y Ex. 4, 5. Pepin also recalled an incident in the fall of
2011 where Hooper reprimanded her for questioning a management decision on the company
radio. Tr. 42. According to Pepin, Hooper angrily slammed open the door where Pepin was
working and told her, “Don’t ever say something like that again on the radio.” Tr. 42.
Filizetti testified that Pepin and Hooper have similar personalities, in the sense that it is
very difficult to change their minds when they think they are right. Tr. 81. Multiple witnesses
also testified about the fiery attitudes of both individuals. Keranen stated that although he and
Pepin had been childhood friends and neighbors, she had been aggressive and abrasive toward
him at work in the past, Tr. 169-70, while Garnsey claimed that Pepin is easily agitated. Resp’t
Ex. 19 at 7-9. Both Pepin and Filizetti testified that everyone who knows Hooper is aware that he
has a temper. Tr. 53, 86.

38 FMSHRC Page 1444

6. Damages and Aftermath
Pepin testified that following her encounter with Hooper, she cried during her shift and
felt very frustrated. Tr. 39. Because of allegedly being told that everyone in the back office is
watching her, she claims that she now feels there is a target on her back and worries that the
company is looking for a reason to fire her. Tr. 45. Filizetti confirmed that Pepin has expressed
feeling this way. Tr. 78-79. Keranen testified that Pepin later told him that she felt threatened by
Hooper and did not want to work with him. Tr. 174. Pepin stated that the stress of having to
interact with Hooper has affected her personal life. Tr. 45-46. According to her, the situation was
a contributing cause to the dissolution of her relationship with her then-fiancée and co-worker
Filizetti. Tr. 46, 55-56. However, at the time of the hearing, Pepin and Filizetti were once again
engaged. Tr. 33, 87. Pepin has also not sought treatment or medication for her stress. Tr. 58.
Other employees at the mine have learned about Pepin and Hooper’s confrontation from
Pepin and Filizetti. Tr. 60. Pepin testified that those employees have said that they are “floored”
by this situation, and have told her sympathetically, “That’s what you get for filing safety
complaints.” Tr. 60. Pepin claims that she will have significant reservations about raising safety
issues in the future. Tr. 46.
Pepin has become a member of the union safety committee since the alleged interference.
Tr. 53. She has raised a safety issue within the company and made a safety complaint during a
crew meeting since then as well. Tr. 158, 170. Since the alleged interference there has not been a
decline in the number of section 103(g) complaints filed by mine employees at the company.
Resp’t Ex. 17.
III.

SECTION 105(C) INTERFERENCE CLAIMS

1. The Law
The Secretary alleges that Empire Iron interfered with the exercise of Pepin’s statutory
rights in violation of Section 105(c)(1) of the Mine Act. Section 105(c)(1) states in pertinent part:
No person shall discharge or in any manner discriminate against . . . or
otherwise interfere with the exercise of the statutory rights of any miner .
. . because such miner . . . has filed or made a complaint under or related
to this Act . . . or because of the exercise by such miner . . . of any
statutory right afforded by this Act.
30 U.S.C. § 815(c)(1) (emphasis added). This section establishes a cause of action for unlawful
discrimination, which the Commission normally analyzes under the Pasula-Robinette framework
laid out below. However, in plurality and concurring opinions in a recent case, a majority of
Commissioners recognized that this section also “establishes a cause of action for unjustified
interference with the exercise of protected rights which is separate from the more usual
intentional discrimination claims evaluated under the Pasula-Robinette framework.” UMWA on
behalf of Franks v. Emerald Coal Res., LP, 36 FMSHRC 2088, 2103 n.22 (Aug. 2014) (Young

38 FMSHRC Page 1445

& Cohen, Comm’rs), vacated, 620 Fed. Appx. 127 (3d Circ. 2015); id. at 2105-07 (Jordan &
Nakamura, Comm’rs).
Under the traditional Pasula-Robinette framework, a complainant alleging discrimination
must prove, by a preponderance of the evidence, (1) that he or she engaged in protected activity;
(2) that he or she suffered an adverse action; and (3) that the adverse action taken against him or
her by the mine operator was motivated in any part by the protected activity. The operator may
rebut a prima facie case by showing that no protected activity occurred or that the adverse action
was in no part motivated by the miner's protected activity. Sec'y of Labor on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980) (rev'd on other grounds); Consolidation
Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Sec'y of Labor on behalf of Robinette v.
United Castle Coal Co., 3 FMSHRC 803 (Apr. 1981). If the operator is unable to rebut the
miner's prima facie case, it may nevertheless defend itself affirmatively by proving (1) that it
was also motivated by the miner's unprotected activity and (2) that it would have taken the
adverse action in any event for the unprotected activity alone. Haro v. Magma Copper Co., 4
FMSHRC 1935 (Nov. 1982).
Additionally, certain business policies that on their face plainly and explicitly
discriminate against protected activity may be “so ‘inherently destructive of employee interests'
that [they] may be deemed proscribed without need for proof of an underlying improper motive.”
See Swift v. Consolidation Coal Co., 16 FMSHRC 201, 206 (Feb. 1994) (quoting NLRB v. Great
Dane Trailers, 388 U.S. 26, 33 (1967). This is because “some conduct carries with it
unavoidable consequences which the employer not only foresaw but which he must have
intended and thus bears ‘its own indicia of intent.’” Great Dane Trailers, 388 U.S. at 33
(emphasis added).
In contrast to the detailed analysis that the Commission has provided for discrimination
claims, there is relatively little Commission case law on the appropriate framework for analyzing
interference claims. The most significant Commission cases dealing with interference are Moses
v Whitley Dev. Corp., 4 FMSHRC 1475 (Aug. 1982), aff’d, 770 F.2d 168 (6th Cir. 1985) and
Sec’y of Labor on behalf of Gray v. N. Star Mining, Inc., 27 FMSHRC 1 (Jan. 2005).
Additionally, the Secretary and two Commissioners have recently proposed a framework for
interference claims, discussed more fully below, that the Commission as a whole has yet to
adopt. Franks, 36 FMSHRC at 2108 (Jordan & Nakamura, Comm’rs). The Secretary urges the
court to adopt the Franks framework, in part because he argues it is consistent with Commission
precedent, specifically Moses and Gray. Sec’y Br. 11. Therefore, the court will discuss these two
cases in depth below.
In Moses v Whitley Dev. Corp., the Commission held that persistent and accusatory
interrogation directed toward a miner in response to that miner’s filing of a 103(g)(1) complaint
constituted prohibited interference under the Act. Moses, 4 FMSHRC at 1480. In reaching that
result, the Commission first cited to Mine Act legislative history indicating that section 105(c)(1)
was directed against “not only the common forms of discrimination, such as discharge,
suspension, [and] demotion . . ., but also against the more subtle forms of interference, such as
promises of benefit or threats of reprisal” and then found that “coercive interrogation and
harassment over the exercise of protected rights” were among the “more subtle forms of

38 FMSHRC Page 1446

interference” that the drafters of the Act had in mind. Id. at 1479 (citing S. Rep. 95-191, 95th
Cong., 1st Sess. 36 (1977) [“S. Rep.”], reprinted in Senate Subcommittee on Labor, Committee
on Human Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine Safety and
Health Act of 1977, at 624 (1978) [“Legis. Hist.”]). The Commission was especially concerned
about the tendency of an employer’s actions or statements to instill a fear of reprisal in the minds
of its employees and chill the exercise of protected rights. Moses, 4 FMSHRC at 1479. In a
footnote, the Commission attempted to distinguish between comments or questions regarding a
miner's exercise of a protected right that are “innocuous or even necessary to address a safety or
health problem” and those that constitute unlawful interference: “Whether an operator’s actions
are proscribed by the Mine Act must be determined by what is said and done, and by the
circumstances surrounding the words and actions.” Id. at 1479 n.8.
In a separate part of the Moses decision, dealing primarily with discharge, and
secondarily with interference, under the Pasula-Robinette framework, the Commission also held
that an operator may be held liable for adverse actions motivated by the suspicion of protected
activity, even if the complainant had not actually engaged in such protected activity. Moses, 4
FMSHRC at 1480. The Commission acknowledged that a literal interpretation of section
105(c)(1) might require the actual or attempted exercise of protected activity, but reasoned that
such a narrow interpretation would frustrate Congressional intent. Id. Instead, the Commission
adopted a broad interpretation of the statutory language, “No person shall discharge . . . any
miner . . . because of the exercise by such miner . . . of any statutory right afforded by this Act.”
The Commission’s interpretation turned on the motives and beliefs of the “person” discharging
the miner, rather than the activities of the miner. Id.
The Commission subsequently distinguished interference from discrimination claims and
raised new questions about the intent requirement in section 105(c) interference cases in the
matter of Sec’y of Labor on behalf of Gray v. N. Star Mining, Inc. In Gray, a mine’s
superintendent repeatedly asked an employee about his grand jury testimony stemming from an
MSHA investigation and sought assurances from the miner that he did not testify against the
superintendent, joking that if he had, the superintendent would kill him. Gray, 27 FMSHRC at 23. A Commission ALJ evaluated the interference allegations under the Pasula-Robinette
framework and found that the alleged interference did not qualify as adverse actions under the
Act because, in part, the superintendent did not literally intend to harm the employee. Id. at 4-5;
Sec’y of Labor on behalf of Gray v. N, Star Mining, Inc., 25 FMSHRC 198, 202 (Apr. 2003)
(ALJ). The ALJ found it unnecessary to reach the issue of discriminatory motivation, having
already found no adverse action. Gray, 25 FMSHRC at 216. The Commission vacated the ALJ’s
interference finding and remanded the matter for “further consideration of the facts and
circumstances surrounding the statements to determine if they were coercive under section
105(c)(1) of the Mine Act.” Gray, 27 FMSHRC at 12.
After first announcing that coercive operator statements are not to be analyzed under the
normal Pasula-Robinette framework, the Commission identified several other errors in the ALJ’s
decision that hinted at how the Commission would prefer interference claims to be analyzed.
Gray, 27 FMSHRC at 7 n.6. In particular, the Commission noted “that the judge examined [the
superintendent’s] statements too narrowly by considering largely, if not exclusively, [his] intent
or motive in making the statement.” Id. at 10. The Commission found error in the ALJ’s belief

38 FMSHRC Page 1447

that “the presence or absence of a violation of section 105(c) of the Mine Act turned on whether
[the supervisor] literally intended by his words to cause physical harm to [the employee] or any
other miner who testified against him during the grand jury investigation.” Id.. Instead, citing
Moses and case law on section 8(a)(1) of the NLRA, the Commission held that the ALJ should
have analyzed the “totality of circumstances surrounding [the supervisor’s] statements to
determine whether they were coercive and violative of section 105(c)” because they carried
implicit “threats of reprisals or of employment discrimination,” which the Commission had
already recognized in Moses as capable of giving rise to claims of prohibited interference. Id.
2. The Secretary’s Proposed Test
The Secretary of Labor has proposed a test for evaluating interference claims. Sec’y Br.
9-12. The Secretary originally proposed this test before the Commission, and two
Commissioners chose to adopt it. Franks, 36 FMSHRC at 2108 (Jordan & Nakamura, Comm’rs).
Under the Franks test, an interference violation occurs if:
(1) a person’s action can be reasonably viewed, from the perspective of members of the
protected class and under the totality of the circumstances, as tending to interfere with
the exercise of protected rights, and
(2) the person fails to justify the action with a legitimate and substantial reason whose
importance outweighs the harm caused to the exercise of protected rights.
Franks, 36 FMSHRC at 2108.
Under the first prong of the test, in order to establish that conduct tends to interfere with
the exercise of protected rights “it is not necessary [for the Secretary] to show that a miner has
been actually prevented or deterred from exercising rights” or “that the operator acted with
discriminatory motivation or unlawful intent.” Franks, 36, FMSHRC at 2107; Sec’y Br. 12. The
second prong of the test “ask[s] whether the operator’s actions were narrowly tailored enough to
promote its business justification without undue interference to the rights of the miners.” Franks,
36 FMSHRC at 2118 n.14; Sec’y Br. 10-11.
Empire Iron asks the court to reject the Secretary’s proposed test, particularly because the
company believes that discriminatory motive must be a required element of a section 105(c)
violation. Resp’t Br. 12. The Secretary in turn claims that his proposed test is entitled to Chevron
deference, and provides two rationales for why the court should adopt this test. Sec’y Br. 10; see
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984). First, the
Secretary argues that section 105(c)(1)’s prohibition on “interference” reflects parallel language
in section 8(a)(1) of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 158(a)(1), and that
section 8(a)(1) has been interpreted by courts and the National Labor Relations Board (“NLRB”)
not to require a showing of intent. Second, the Secretary claims that his proposed test is “firmly
grounded in both Commission and NLRA precedent.” Sec’y Br. 11.

38 FMSHRC Page 1448

Even assuming that the Secretary’s entire test is deserving of Chevron deference if it is
found to be a reasonable interpretation of an ambiguous provision,10 the court finds the
Secretary’s interpretation of section 105(c)(1) to be unreasonable as to the question of whether
the Secretary is required to prove unlawful intent in interference proceedings but reasonable as to
the question of whether it is necessary to show that a miner has actually been deterred from
exercising rights.
3. The Plain Language of the Act and NLRA Guidance
The court first acknowledges that certain elements of section 105(c)(1) of the Act are
ambiguous. For instance, the types of actions that may qualify as “interference” under the section
are open to interpretation. However, the court cannot envision any permissible interpretation of
section 105(c)(1) that entirely reads out the word “because” and all subsequent language from
the phrase: “No person shall . . . interfere with the exercise of the statutory rights of any miner . .
. because such miner . . . has filed or made a complaint under or related to this Act . . . or
because of the exercise by such miner . . . of any statutory right afforded by this chapter.” 30
U.S.C. § 815(c)(1).
It is a general principle of legal interpretation that every word and phrase in a statutory
provision must be given effect. And a statutory provision that prohibits a person from acting
“because of” a protected status or activity is generally given the effect of requiring that the
protected status or activity “was the ‘reason’ that the [person] decided to act,” Gross v. FBL Fin.
Servs., Inc., 557 U.S. 167 (2009), or at least a motivating factor. See E.E.O.C. v. Abercrombie &
Fitch Stores, Inc., 135 S.Ct. 2028, 2032 (2013).11 The court concludes that within section 105(c),
the phrase beginning with the word “because” clearly denotes a requirement that a miner’s
protected activity motivated an operator’s interference with his or her exercise of protected
rights.
The Secretary instead relies primarily on the similarities in both language and purpose
between section 105(c)(1) of the Mine Act and section 8(a)(1) of the NLRA and argues that the
interference language in each statute does not carry with it an intent requirement. Sec’y Br. 11.
Section 8(a)(1), in full, states, “It shall be an unfair labor practice for an employer to interfere
with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this
title.” 29 U.S.C. § 158(a)(1). While there are some similarities between the two sections that
justify the inference that section 8(a)(1) informed the drafting of section 105(c), the court
10

The court notes that the Court of Appeals for the Sixth Circuit, wherein the mine that is
the subject of this proceeding is located, has previously refused to grant Chevron deference to the
Secretary’s interpretation of an ambiguous Mine Act provision. See North Fork Coal Corp. v.
FMSHRC, 691 F.3d 735 (6th Circ. 2012).
11

In exceptional circumstances involving disparate impact language in antidiscrimination
statutes closely modeled after Title VII of the Civil Rights Act of 1964, courts have occasionally
declined to give such effect to the words “because of,” however this court does not find that
section 105(c)(1) of the Mine Act fits into this exception. See, e.g., Griggs v Duke Power Co.,
401 U.S. 424 (1971); Smith v. City of Jackson, 544 U.S. 228 (2005), Texas Dept. of Hous. &
Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015).

38 FMSHRC Page 1449

nevertheless cannot ignore the obvious difference between the statutory provisions: section
8(a)(1) does not use the word “because” or include any intent requirement, while section
105(c)(1) unambiguously does. The additional language must serve some distinct purpose.
Of further relevance, section 8(a)(4) – a clearly separated sub-section within the same
section of the NLRA – provides that, “It shall be an unfair labor practice for an employer to
discharge or otherwise discriminate against an employee because he has filed charges or given
testimony under this subchapter.” 29 U.S.C. § 158(a)(4) (emphasis added). If the drafters of the
Mine Act had indeed sought guidance from section 8(a) of the NLRA, they would have found a
straightforward template for separating discharge and discrimination from interference and for
ensuring that the intent requirement for the first two causes of action did not apply to the third.
Instead, the Mine Act clearly groups “discharge,” “discriminate,” and “interfere” together and
applies the same intent requirement to all three.
The Secretary also notes that the Commission has previously identified an identical
purpose between section 8(a)(1) of the NLRA and section 105(c) of the Mine Act, namely “to
provide legal protection against adverse action to employees who exercise rights afforded by
law.” Sec’y Br. 11 (citing Sec’y of Labor on behalf of Johnson v. Jim Walters Resources, Inc., 18
FMSHRC 552, 558 (Apr. 1996) (finding subjective and objective evidence of an adverse action’s
chilling effect on the exercise of rights is relevant to the gravity criterion for a civil penalty
assessment in discrimination proceedings)). The court agrees that the two provisions share an
identical purpose when framed in that broad level of generality. However, the different language
in the two statutes indicates that section 105(c) is aimed in a more targeted fashion at providing
legal protection against adverse actions motivated by the exercise of rights afforded by law.
One possible explanation for this difference is that section 8(a)(1) of the NLRA deals
with labor organizing and negotiation over terms of employment and assumes a naturally
adversarial relationship between employers and employees in that process. Cf. Franks, 36
FMSHRC at 2120 (Althen, Comm’r, dissenting). Therefore, intent may be inferred in employer
actions that interfere with the right to organize or collectively bargain. In contrast, the Mine Act
deals with miner health and safety and does not automatically assume that employers and
employees always have adverse interests in the goal of promoting safety.
The Secretary, finding support in NLRA case law, also takes the position that he need not
prove that a complainant “has been actually prevented or deterred from exercising rights” in
order to “show that [the alleged] conduct tends to [unlawfully] interfere with the exercise of
protected rights.” Sec’y Br. 12 (citing Flagstaff Med. Cir., Inc. v. NLRB, 715 F.3d. 928, 930
(D.C. Cir. 2012); NLRB v. Air Contact Transp., Inc., 403 F.3d 206, 212 (4th Circ. 2005); NLRB v.
Okun Bros. Shoe Store, 825 F.2d 102, 107 (6th Cir. 1987)). This issue is relevant in this matter
because the company claims that Hooper’s alleged interference has not in fact affected Pepin’s
exercise of her protected rights. Resp’t Br. 30-31.
In this limited context, the court agrees with the Secretary’s use of applicable NLRA
principles. The Secretary’s position is not contradicted by the plain language of the statute, and
the court recognizes that a complainant’s perseverance in the face of efforts to deter his or her
exercise of protected rights should not defeat any potential interference claims. Therefore, the

38 FMSHRC Page 1450

court finds the Secretary’s position regarding the lack of a need to prove that the exercise of
protected rights was actually restricted to be reasonable and persuasive, under both a Chevron
and Skidmore analysis. See Skidmore v Swift & Co., 323 U.S. 134, 139 (1944) (deferring to an
agency’s interpretation of an ambiguous provision due to its power to persuade).
4. Commission Precedent
The Secretary argues that his proposed test is consistent with Commission precedent
regarding interference, specifically in Moses and Gray. Regardless of whether or not this
assertion is correct, the court does not find that Commission precedent compels the Secretary’s
interpretation.
Reading the statute broadly in Moses, the Commission articulated a totality of the
circumstances test to assess whether certain statements or actions rise to the level of unlawful
interference and affirmed an ALJ’s finding of discrimination even when an operator was
motivated by suspicion of a miner’s protected activity rather than actual knowledge. Moses, 4
FMSHRC at 1479 n.8, 1480. It did not, however, suggest that such a test would be sufficient to
establish a violation of section 105(c)(1) absent any showing of intent.12
Gray provides stronger support for the Secretary’s claim that intent is not a necessary
element of an interference claim. See discussion supra p. 13. However, it is important to keep in
mind that the ALJ had analyzed the case under the Pasula-Robinette framework and had only
addressed the issue of the operator’s intent in the context of finding that the Secretary had failed
to prove any adverse action. It was this finding alone that the Commission found to be in error,
as the ALJ did not reach the issue of discriminatory motivation.
It is therefore unclear to this court whether the Commission in Gray found the ALJ to be
in error for requiring the Secretary to prove any intent whatsoever (which is one possible
interpretation of the opinion given the Commission’s extended discussion of section 8(a)(1) of
the NLRA), or whether it concluded the ALJ erred by finding that the alleged statements could
not qualify as adverse actions unless the superintendent in the matter intended his statement as a
literal threat on the complainant’s life, rather than as a threat of reprisal more generally. The lack
of a clearly articulated standard or holding from the decision regarding the role or relevance of
intent in interference proceedings, and the extent to which a broad holding would have
represented a significant development in the law, cautions against drawing too broad a
conclusion from the language therein. Instead, the court reads the opinion to reaffirm the
importance, first articulated in Moses, of looking at the totality of circumstances in interference
allegations and focusing on the tendency of an employer’s actions or statements to instill a fear
of reprisal in the minds of its employees and chill the exercise of protected rights.

12

The Commission in Gray speculated that the totality of the circumstances test in Moses
may have been derived from section 8(a)(1) of the NLRA and subsequent case law. Gray, 27
FMSHRC at 10. This finding is consistent with this court’s approach in drawing from NLRA
precedent in its interpretation of section 105(c)(1) where appropriate. Exactly how much of that
case law should be imported into the Mine Act, however, is open to question.

38 FMSHRC Page 1451

5. Additional Considerations
The court is troubled by the possible implications of the Secretary’s proposed test in
interference cases going forward. The test may even introduce uncertainty into the relatively
settled area of discrimination law under the Mine Act.
Normally a discharge or suspension, or similar acts of serious discipline, would trigger
the Pasula-Robinette analysis, whereby the Secretary would need to prove all of the elements
mentioned previously: protected activity, adverse action, and discriminatory motivation. Then,
not only may an operator rebut the Secretary’s prima facie case and prevail by establishing nondiscriminatory motives for its actions, but it may even avoid liability in spite of discriminatory
motives through an affirmative defense. Additionally, other acts of discipline or reprisal can also
trigger the Pasula-Robinette analysis, provided that they satisfy the Burlington Northern
standard, which asks whether such actions are “harmful to the point that they could well dissuade
a reasonable worker from [engaging in protected activity],” “depend[ing] upon the particular
circumstances” surrounding the actions. Sec’y on behalf of Pendley v. Highland Mining Co., 34
FMSHRC 1919, 1930-31 (Aug. 2012) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 57 (2006)). This language closely resembles the Secretary’s proposed test for
interference claims.13 However, the Burlington Northern test still fits within the PasulaRobinette framework, and therefore still requires proof of discriminatory motivation (along with
protected activity) once an adverse action is established.
In contrast, under the Secretary’s theory of section 105(c), alleging subtler acts of
interference would trigger a far less demanding test, where the Secretary would no longer be
required to prove any protected activity, adverse consequences for the complainant in his or her
employment relationship, or improper motivation on the company’s part. Further, even if the
13

The similarities between the Commission’s adverse action test and interference test are
not coincidental. The “interference” analysis in Moses spawned two divergent lines of cases and
culminated in these two related tests. One line of cases (Moses-Gray-Franks) treats
“interference” as a separate cause of action, with a distinct framework for analysis. See Franks ,
36 FMSHRC 2088, 2103 n.22 (Young & Cohen, Comm’rs); id. at 2105-07 (Jordan & Nakamura,
Comm’rs) (citing Gray, 27 FMSHRC at 8 n.6). Another line of cases (Moses-Hecla DayPendley) treats the “interference” analysis in Moses as a guide for deciding when actions other
than “discharge” or “suspension” qualify as adverse actions for traditional discrimination claims.
See Sec’y of Labor on behalf of Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842, 1847-48,
1848 n.2 (Aug. 1984) (noting that when faced with actions outside of the “self-evident form[s] of
adverse action, like discharge or suspension, . . . [the Commission] must examine closely the
surrounding circumstances to determine the nature of this action.”) (citing Moses, 4 FMSHRC at
1478); see also Pendley, 34 FMSHRC at 1930-31 (adopting the Burlington Northern adverse
action test in large part due to its consistency with Moses and Hecla-Day). This has created, over
time, no little confusion regarding exactly when the Gray-Franks interference test is appropriate
and when the Hecla Day-Pendley discrimination test should be used instead. See, e.g., McNary v.
Alcoa World Alumina, Inc., 37 FMSHRC 2205 (Sept. 2015) (ALJ) (currently on appeal over
whether the ALJ erred in analyzing the interference claims under the Hecla Day-Pendley adverse
action test instead of the Gray-Franks interference test.)

38 FMSHRC Page 1452

operator established a motive unrelated to the exercise of protected rights, the company would
then need to prove that its justification for its action was substantial, business-related, and that its
importance outweighed the harm caused to the exercise of protected rights—additional hurdles
not present in the Pasula-Robinette analysis. The lack of a substantial business justification
whose importance outweighs the interests of the protected activity may provide circumstantial
evidence that an operator’s proffered justification is merely pretextual. However, this is not the
only factor or evidence that the court considers in evaluating an operator’s true motivation. The
court cannot see how any allegation that satisfied the traditional discrimination requirements
would not likewise satisfy all of the elements of the Secretary’s proposed interference test,
whereas the reverse would not hold true in many instances.
In effect, under the Secretary’s suggested test, the less severe of a disciplinary action that
a complainant alleges, the lower the burden will be for establishing a section 105(c) violation.
This could create a perverse incentive for a petitioner to recast every act of overt discrimination
as one of the subtler forms of interference in order to obtain that lower burden, especially since
many subtle acts that subject an employee to a detriment in his employment relationship may
qualify as either acts of interference or adverse actions under the Burlington Northern standard.
Additionally many overt acts of discipline alleged to be discriminatory are often preceded
or accompanied by acts or statements that may otherwise tend to interfere with the exercise of
protected rights. For example, in Franks, three out of five Commissioners disagreed with the
ALJ’s finding that a company’s suspension of its miners constituted unlawful discrimination
under section 105(c) of the Act, but the Commission nonetheless affirmed the ALJ’s ruling based
in part on two Commissioners finding that the suspension and the company’s interviews with its
miners leading up to the suspension interfered with their protected rights. Franks, 36 FMSHRC
2088. The court is unclear as to whether the complainants could have alleged interference, and
therefore could have prevailed as they ultimately did, absent the allegation of “subtler acts” of
coercive interrogation preceding the suspension. If the answer is no, this creates a problematic
incentive to allege coercive operator statements or other subtler acts of interference alongside
every allegation of traditional discrimination.14 If the answer is yes, the court does not see why a
complainant would ever again allege a suspension to be an act of discrimination, rather than an
act of interference.
6. The Court’s Interference Test
Based on the foregoing, the court holds that to prove an allegation of illegal interference
under section 105(c)(1), the Secretary must show that (1) the Respondent’s actions can be
reasonably viewed, from the perspective of members of the protected class and under the totality
14

The court recognizes that the alleged acts of interference preceding the suspension in
Franks were serious and substantial. However, the plurality opinion finding interference did not
specify that acts of interference must be any more serious and substantial than the acts that
qualify as adverse actions under Burlington Northern. Were the Commission to provide
clarification along those lines, the court would be less concerned about the potential for
opportunistic pleading to avoid the additional hurdles of the Pasula-Robinette test.

38 FMSHRC Page 1453

of the circumstances, as tending to interfere with the exercise of protected rights,15 and that (2)
such actions were motivated by the exercise of protected rights.16
The respondent may rebut the Secretary’s prima facie case by showing that its actions did
not tend to interfere with the exercise of protected rights or that the actions were in no part
motivated by the miner's protected activity.
If the operator is unable to rebut the miner's prima facie case, it may nevertheless defend
itself affirmatively by demonstrating a legitimate and substantial reason whose importance
outweighs the harm caused to the exercise of protected rights.
IV.

APPLICATION OF THE COURT’S INTERFERENCE TEST

1. Actions Tended to Interfere with the Exercise of Protected Rights
Section 103(g) protects the anonymity of miners in making safety complaints and
encourages complaints when miners have “reasonable grounds to believe” that a violation exists.
30 U.S.C. 813(g)(1). The court finds that Mindy Pepin engaged in protected activity when she
filed an anonymous section 103(g) safety complaint with MSHA under a reasonable belief that a
violation existed. The fact that the company’s procedures did not deal with the possibility of a
false positive on the ThorGuard system, and that Pepin did not receive a response when she filed
multiple Take 5 complaints within the company raising the issue, supports the reasonableness of
Pepin’s belief. Tr. 58, 109-10, 118-19, 130-31.
The court further finds that Hooper’s response to Pepin’s protected activity tended to
interfere with the exercise of protected rights. The court finds Pepin’s account of the substance of
her conversation with Tim Hooper in his office to be credible, and the statements Hooper made
in that account would tend to instill within the mind of a reasonable person a fear of reprisal for
exercising protected activity.
15

By focusing on the tendency to interfere with protected activity, the court adopts the
Secretary’s position that “it is not necessary to show that a miner has been actually prevented or
deterred from exercising rights.” Sec’y Br. 12. Further, the court’s interference test does not
focus on the type of employer decisions that necessarily subject a miner to an actual detriment in
his or her employment relationship, such as discharge, suspension, or demotion. Thus, statements
that could reasonably chill the exercise of protected rights may qualify as acts of interference
even if the exercise of those rights has not been chilled and the particular complainant in a
proceeding has suffered no detriment in his or her employment relationship.
16

The court notes that while the Pasula-Robinette test prohibits retaliation against the
complainant’s actual, attempted, or suspected exercise of protected rights, the Secretary has
urged the Commission to adopt an interference test that encompasses attempts to chill the
exercise of rights going forward without any showing of protected activity. See, e.g., Sec’y of
Labor, on behalf of McGary v. The Marshall County Coal Co., 37 FMSHRC 2597 (Nov. 2015)
(ALJ). The court takes no position on this issue, as the instant matter involves the actual exercise
of protected activity.

38 FMSHRC Page 1454

Unlike acts that the Commission has previously found to constitute interference, this
matter does not involve persistent questioning over the course of multiple interactions, explicit
threats, or attempts to isolate the complainant in an inherently coercive one on one setting.
However, this matter does involve implicit threats of reprisal and intimidating behavior by a
supervisor, which the Commission has noted takes on special significance given the supervisor’s
“ability to impact the employment relationship of [the complainant].” Gray, 27 FMSHRC at 8.
Hooper’s accusations that Pepin was using safety complaints to bottleneck production and that
Pepin and Chad Filizetti were the ringleaders of a bottlenecking operation are examples of
intimidating language directed against the exercise of protected rights. Tr. 35, 37, 66-68. His
statement that his superiors in the back office were watching Pepin can also be reasonably
viewed as a threat of reprisal or of employment discrimination. Tr. 37, 75-76.
In regard to the ready room incident, the court first notes that Hooper’s decision to hand
Pepin the results of the MSHA investigation might not be reasonably viewed as tending to
interfere with the exercise of protected rights when taken in isolation. Rather, the decision could
be viewed as a reasonable response to the concerns on Pepin’s Take 5 cards. However, under the
totality of the circumstances, given Hooper’s subsequent statements in his office (“We all knew
it was you that called MSHA,” and “Do you know how many people I had to pull off of
equipment to go in for your interview?”), the court’s finding that Hooper’s actions tended to
interfere with protected rights encompasses the events in the ready room as well.17 Tr. 34-35.
The company argues that Hooper’s alleged acts of interference within his office would
have never occurred had Pepin not followed him in there and instigated a confrontation. Resp’t
Br. 28, 31. The court agrees with this assessment. The company also argues that Pepin’s
behavior during the meeting was likely much more “agitated” and “challenging” than how she
portrayed it in her testimony, given other witnesses’ descriptions of her normal behavior, while
Hooper’s demeanor was likely less “threatening.” Resp’t Br. 29-30. Be that as it may, Hooper’s
statements were sufficiently threatening in context that Hooper’s and Pepin’s respective
demeanors and the alleged provocation for the statements are not decisive factors in the court’s
analysis of their tendency to interfere with protected rights.
The Secretary alleges that Hooper’s statements to Filizetti, privately, and to Hooper’s
crew during a toolbox meeting with Pepin out of the room also affected other miners. Sec’y Br.
15. Whether actions directed wholly toward miners other than the complainant are relevant to
that complainant’s interference claim need not be decided at this juncture, as the court does not
find that those statements or activities tended to interfere with protected rights regardless.
There is some discrepancy between Hooper and Filizetti about whether Hooper discussed
the company’s falling stock prices and financial condition in the toolbox meeting with the entire
crew or only in the private conversation between the two of them after Pepin left Hooper’s
17

The court however does not agree with the Secretary that Hooper’s actions interfered
with the rights of others seated in the ready room at the time. Sec’y Br. at 15. Hooper did not
publicize his message for Pepin to anyone else in the room, and there is insufficient evidence in
the record to find that anyone else in the room knew or could have known what Hooper’s actions
meant. Tr. 57.

38 FMSHRC Page 1455

office. Tr. 77, 144, 153. Although both witnesses had difficulties with their recollection in their
testimony, the court credits Hooper’s testimony that he only discussed falling stock prices with
Filizetti in his office, and only because Filizetti had expressed interest in the subject previously.
Tr. 153. Given this context that Filizetti would have understood, the court does not find that this
statement would tend to interfere with Filizetti’s protected activity, or Pepin’s protected activity
indirectly.
Similarly, the court does not find that the presentation of MSHA’s negative findings in
Hooper’s toolbox meeting constituted interference. The court credits Keranen’s and Baril’s
testimony that the company often communicated MSHA negative findings with the crew during
toolbox meetings. Tr. 124, 171. While Hooper himself may not have presented negative findings
in a toolbox meeting prior to this incident, a reasonable person at the mine listening to the
presentation would not necessarily draw an inference that Hooper was motivated by animus
toward Pepin, since Hooper did not mention Pepin at the time nor use the findings to discourage
safety complaints. Tr. 148-49.
In summary, the court finds that Hooper’s statements to Pepin in his office and his
decision to hand Pepin MSHA’s negative findings from her 103(g) complaint tended to interfere
with her exercise of protected rights, because they carried with them implicit threats of reprisal.
However, the court does not find that Hooper’s statements to Filizetti in private or to the crew
during his toolbox meeting violated section 105(c) of the Act, because under the totality of
circumstances a reasonable person in the miners’ positions would not interpret them as threats or
hostile gestures.
2.

Actions Were Motivated by the Exercise of Protected Rights

With traditional discrimination claims, a complainant will often have to rely on
circumstantial evidence in order to prove that an adverse action was motivated by protected
activity, since “direct evidence of motivation is rarely encountered.” Sec'y of Labor on behalf of
Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev. on other grounds sub
nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). The Commission has
clarified that circumstantial evidence may include: (1) knowledge of protected activity, (2)
hostility or animus toward the protected activity, (3) coincidence in time between the protected
activity and the adverse actions and (4) disparate treatment. Chacon, 3 FMSHRC at 2510. The
court finds such evidence to be equally useful in analyzing whether the actions that give rise to
an interference claim were intended to interfere with protected activity.
The court first finds that Hooper had at least a strong suspicion that Pepin had filed a
103(g) MSHA complaint based on his knowledge that she had filed nearly identical Take 5
safety complaints within the company. Tr. 147. While Hooper could not be sure that the MSHA
complaint came from Pepin (rather than a United Steelworkers safety committee member), he
admitted that the thought crossed his mind, and his supervisor Joe Garnsey admitted that he
assumed she had. Tr. 150; Resp’t Ex. 19 at 11-16.
Hooper also expressed hostility and animus toward the protected activity both in his
statements to Pepin in his office and at the hearing during cross-examination. Several of

38 FMSHRC Page 1456

Hooper’s statements that form the basis of Pepin’s interference claim also provide evidence of
Hooper’s hostility toward protected activity. These include accusing Pepin of using safety
complaints to bottleneck production and expressing significant frustration at having to pull
miners away from production to participate in the MSHA investigation. Tr. 34-5, 37, 66-68. At
hearing, Hooper also complained about frivolous complaints to MSHA, and suggested that all
complaints should go through the company or safety committee first in order to determine
whether or not they are frivolous. Tr. 151. The court finds these statements also indicate animus
and hostility toward 103(g) complaints and those who make them, in this case Pepin.
The coincidence in time between Pepin’s protected activity and the alleged interference is
a less relevant factor in this analysis, since the company contends that the alleged interference
was a response to Pepin’s Take 5 complaints, which were filed contemporaneously with her
103(g) MSHA complaint. Tr. 136-37. Additionally, there may have been disparate treatment in
the way the company responded to Pepin’s Take 5 complaints by using MSHA negative
findings, as there is sufficient evidence to suggest that the company did not normally respond to
employees about their Take 5 complaints at all. Tr. 58-59. However, this disparate treatment can
be explained by the persistence with which Pepin raised concerns about the ThorGuard issue. Tr.
135-36.
There are two additional considerations for the court in this matter. First, the heart of
Pepin’s interference claims is contained in her confrontation with Hooper in his office. That
confrontation never would have happened if she had not followed him into his office. Second,
Hooper’s temper, Pepin’s adamant questioning, and past disciplinary “run-ins” between the two
likely contributed to Hooper’s outbursts during the meeting.
Taken together, these findings lead to the conclusion that the proven acts of interference
in the proceeding were not premeditated. However, the court concludes that they were motivated
by Hooper’s animus toward Pepin’s exercise of protected rights, which boiled to the surface
during a heated exchange, and they were intended in that moment to deter Pepin from filing
safety complaints with MSHA in the future. The court finds this sufficient to establish intent to
interfere with protected activity.
3. Actions Had No Legitimate and Substantial Business Justification
The court finds that Hooper could not have had any legitimate business justification for
the statements he made to Pepin in his office and that his proffered rationale for presenting Pepin
with the MSHA negative findings was not narrowly tailored to achieve the company’s interests
of adequately responding to Pepin’s Take 5 complaints without doing undue harm to her right to
make anonymous safety complaints with MSHA. Empire Iron could have achieved the same
purpose by simply explaining the findings of its own investigation to Pepin after she filed her
Take 5 cards. Alternatively, the company could have posted the MSHA negative findings in the
ready room as it normally did. Tr. 57. This approach would have protected Pepin’s anonymity
and would not have created the perception that she was being singled out for reprisal because she
exercised her 103(g) rights.

38 FMSHRC Page 1457

V.

REMEDIES

1. Civil Penalty
The court has found a violation and it must assess a civil penalty taking into account the
statutory civil penalty criteria, including the size of the operator, its history of previous
violations, the effect of the penalty on the operator’s ability to continue in business, the
operator’s negligence, the gravity of the violation, and the demonstrated good faith of the
operator in attempting to achieve rapid compliance after notification of a violation. 30 U.S.C. §
820(i).
The Secretary has proposed a $20,000.00 civil penalty. The Secretary relies primarily on
the “high negligence” and “substantial” gravity of Hooper’s conduct in justifying the penalty.
Sec’y Br. 18. Empire Iron argues that the Secretary’s assessment lacks evidentiary foundation
and that the company evidenced no animus toward protected activity. Resp’t Br. 33, 35.
The court first notes that the parties stipulated to the fact that Empire Mine is large and
that the assessed penalty would not impact the mine’s ability to continue in business. Stip. 5, 18.
Additionally, the mine’s history of assessed violations admitted into evidence showed no history
of 105(c) violations. Sec’y Ex. 7.
In regard to the company’s negligence, the court has found that Hooper intentionally
interfered with Pepin’s protected rights. This intent establishes an elevated level of negligence,
and that intent is imputed to the company. However, the court has also found that Hooper’s
interference was not premeditated. Additionally, there was scant evidence at hearing, outside of
Hooper’s own comments during his confrontation with Pepin, that other officials at the company
displayed animus toward Pepin’s protected activity or that backroom management officials were
actually watching Pepin and plotting reprisal as Hooper claimed. Hooper’s interference did not
reflect a concerted effort by multiple agents of Empire Iron to interfere with Pepin’s protected
rights.18 Indeed, one of those backroom officials Hooper referenced was Keranen, a childhood
friend of Pepin’s, who gave serious attention to her complaints regarding Hooper and offered to
formally investigate her allegations against him – which the court also considers a good faith
effort to remedy the violation. Tr. 169-70, 174; Resp’t Ex. 5. These factors mitigate Empire
Iron’s level of negligence.
The court finds that the gravity of the violation was serious. The right to make
anonymous safety complaints to MSHA is an important and necessary one. Therefore, the
expression of animus toward those rights and efforts to chill their exercise must not be tolerated.
18

The court observes that this factor may often distinguish interference from
discrimination claims. The adverse actions in a typical discrimination proceeding, including
discharge and suspension, often require multiple agents to sign off on the decision giving rise to
a cause of action and therefore tend to reflect a level of deliberation and coordination (or at least
a systemic failure of oversight and supervision) that may not be present in an interference case
stemming from the words of a single supervisor in the heat of the moment. The court believes
that the civil penalties in these matters should reflect this distinction.

38 FMSHRC Page 1458

However, different actions have varying degrees of chilling effect on the exercise of rights. An
oral confrontation where a supervisor expresses animus regarding a miner’s exercise of protected
rights may not have the same effect as a discharge or suspension or even an overt threat of
dismissal. As indicated earlier, the Secretary did not allege persistent questioning over multiple
interactions, explicit threats, or attempts to isolate the complainant in an inherently coercive one
on one setting. The record also does not indicate that Hooper’s actions have had any effect on the
filing of MSHA safety complaints, which the court finds slightly relevant for its gravity
determination. Resp’t Ex. 17. Furthermore, the court has found that Hooper did not widely
publicize his hostility regarding Pepin’s protected activity, which limited the number of persons
affected by his act of interference. Consequently, the court finds the gravity of the violation to be
lower than alleged.
Given these findings, the court assesses a civil penalty of $8,000.00 for the violation.
2. Other Relief Requested
As Pepin was not terminated, suspended, or officially disciplined, there is no back pay
owed. Pepin instead seeks unspecified compensation for pain, suffering, and emotional distress
caused by the company’s interference. The Secretary acknowledges that the “Commission has
never specifically decided whether emotional distress damages may be awarded under the Act.”
Sec’y Br. 16. And, the complainant acknowledged that she did not seek or incur expenses for
treatment or medication related to her distress. Tr. 58. However, the Secretary argues that
emotional distress damages are nonetheless necessary to fulfill the Act’s remedial purpose of
making the complaining party whole. Sec’y Br. 16.
The court expresses no opinion as to whether emotional distress damages may ever be
awarded under the Act, absent any concrete injury or financial loss, but finds that this case does
not present the sort of exceptional circumstances that might merit such an award. Pepin may
have been justifiably upset by her encounter with Hooper, but being upset by workplace disputes
is part and parcel of the workplace experience, and there is nothing in the record to indicate her
encounter with Hooper caused her to seek medical and/or psychological assistance, or that it
interfered with her normal daily activities. Pepin also alleged that the violation had strained her
relationship with her fiancé, Chad Filizetti, and caused them to break their engagement.
However, Pepin and Filizetti were again engaged at the time of the hearing. Tr. 33, 46, 55-56, 87.
Given these facts, the court denies the request for emotional distress damages.
In regard to the Secretary’s request for Empire Iron to have its Mine Superintendent (a
position that the company alleges does not exist at its mine) read a notice to all miners at Empire
Mine acknowledging the violation and reiterating miners’ rights, the court deems it sufficient for
deterrence purposes to order the company to post a notice to that effect to the mine bulletin
board, for a period of one year.
ORDER
Based on the above, the court finds that Respondent violated section 105(c) of the Act by
unlawfully interfering with the protected activity of Pepin. It is hereby ORDERED that Empire

38 FMSHRC Page 1459

Iron cease and desist from the unlawful interference that forms the basis of the interference
violation. It is further ORDERED that within 30 days of the date of this decision Empire Iron
post on the mine bulletin board, for a period of one year, a written notice stating that: (1) a
section 105(c) complaint was filed against Empire Iron based on the above-described conduct;
(2) Empire Iron has been found to violate section 105(c); (3) miners have a protected right to
communicate safety and health concerns to Empire Iron management; (4) miners have the
protected right to confidentially and independently communicate safety and health concerns to
MSHA; and (5) mine management will not interfere with or engage in discrimination based on
the exercise of those protected rights. Finally, within 30 days of the date of this decision,
Respondent is hereby ORDERED to pay a civil penalty of $8,000.00.19

/s/ David F. Barbour
David F. Barbour
Administrative Law Judge

Distribution:
Suzanne F. Dunne, Esq., U.S. Department of Labor, Office of the Solicitor, 230 S. Dearborn
Street, 8th Flr., Chicago, Illinois 60604
R. Henry Moore, Esq., Jackson Kelly PLLC, Three Gateway Center, 401 Liberty Ave., Suite
1500, Pittsburgh, Pennsylvania 15222
Mindy S. Pepin, 1545 South Westwood Circle, Ishpeming, MI 49849
/rd

19

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

38 FMSHRC Page 1460

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
721 19TH ST., SUITE 443
DENVER, CO 80202-2500
OFFICE: (303) 844-5266/FAX: (303) 844-5268

June 9, 2016
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. WEST 2015-856
A.C. No. 04-05038-384525

v.
SUTTER GOLD MINING COMPANY,
Respondent.

Mine: Lincoln Mine Project

DECISION AND ORDER
Appearances:

Daniel Brechbuhl, United States Department of Labor, Office of the
Solicitor, Denver, CO, for Petitioner;
Katie Jeremiah, Jordan Ramis, PC, Lake Oswego, OR, for Respondent.

Before:

Judge Miller

This case is before me upon a petition for assessment of a civil penalty filed by the
Secretary of Labor pursuant to Section 105(d) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 815(d) (“the Act”). This docket involves four citations issued pursuant to
Section 104(a) of the Mine Act with proposed penalties totaling $6,406.00. The parties presented
testimony and evidence regarding these citations at a hearing held in Sacramento, California, on
May 4, 2016. Based upon the parties’ stipulations, my review of the entire record, my
observation of the demeanors of the witnesses, and consideration of the parties’ legal arguments,
I make the following findings and order.
I. MSHA’S INSPECTION
The Lincoln Mine Project is an underground gold mine in Sutter Creek, California,
operated by Sutter Gold Mining Company. At the time of the inspection in March 2015, the
Lincoln Mine Project was non-producing but was being maintained for future production. This
involved operating an underground water treatment facility and maintaining escapeways. On the
date of the inspection, only one employee of Sutter Gold was working at the mine. The previous
two days, several contractors had been working at the mine doing safety inspections and
maintenance. The parties have stipulated that Sutter Gold is an “operator” as defined in Section
3(d) of the Mine Act, 30 U.S.C. § 803(d), and is subject to the jurisdiction of the Commission. Jt.
Stips. ¶¶ c, d.

38 FMSHRC Page 1461

On March 4, 2015, Inspector Kimberly Hakala traveled to the Lincoln Mine Project to
conduct a general inspection. Hakala has been a mine inspector for approximately four years and
has conducted hundreds of inspections of underground mines. Prior to becoming a mine
inspector, she worked for seven years at a family-owned gypsum mine, including as a safety
representative who accompanied mine inspectors.
Upon arriving at the mine, Inspector Hakala went into the mine’s office and asked to see
the person in charge. She was directed to Pat Carney, a consultant at the mine. Hakala recalled
that on her last visit to the mine, Carney had been identified as a supervisor or foreman. Carney
escorted Hakala underground to conduct the inspection. David Cochrane, Vice President for
Environment, Health, and Safety at the mine, arrived at 10 a.m., after Carney and Hakala had
begun the inspection. Cochrane attempted to reach Carney and Hakala when he arrived, but
could not. Instead, he met with Hakala when she returned from underground to discuss the
citations she had issued and advised her that Carney was a contractor and did not have the
authority to act on behalf of the company. Cochrane did not ask to revisit any underground areas
with Hakala.
Sutter Gold argues that its walk-around rights were violated when Hakala conducted the
inspection accompanied by Carney, a contractor, instead of Cochrane. Section 103(f) of the Mine
Act requires that “a representative of the operator and a representative authorized by his miners
shall be given an opportunity to accompany the Secretary or his authorized representative during
the physical inspection of any coal or other mine . . . .” 30 U.S.C. § 813(f). However, the Act
specifies that “Compliance with this subsection shall not be a jurisdictional prerequisite to the
enforcement of any provision of this Act.” Id. The Commission has explained that where an
operator’s Section 103(f) rights are violated, “the judge is permitted to consider the effect of the
improper denial of the operator's walkaround rights on the operator’s ability to present its case.”
SCP Investments, LLC, 31 FMSHRC 821, 822 (Aug. 2009).
At the outset, I find no problem with the actions of Inspector Hakala. She did not refuse
to allow a representative to accompany her; rather, no one from management was present when
she arrived at the mine. The inspector had met Carney on earlier inspections and was unaware
that his position had changed from manager to consultant. She did everything she was required to
do, including asking for the person in charge and going underground with someone who she
thought, from previous experience, was management at the mine. Carney did nothing to indicate
he was not in charge and accompanied her underground. Further, Carney was familiar with the
mine and worked there regularly. I find no merit to Respondent’s argument that there was an
improper denial of its right to have a representative accompany the inspector.
II. PRINCIPLES OF LAW
A. Establishing a Violation
To prevail on a penalty petition, the Secretary bears the burden of proving an alleged
violation by a preponderance of evidence. RAG Cumberland Res. Corp., 22 FMSHRC 1066,
1070 (Sept. 2000), aff’d 272 F.3d 590 (D.C. Cir. 2001); Jim Walter Res., Inc., 9 FMSHRC 903,
907 (May 1987). The Secretary may establish a violation by inference in certain situations, but
only if the inference is “inherently reasonable” and there is “a rational connection between the

38 FMSHRC Page 1462

evidentiary facts and the ultimate fact inferred.” Garden Creek Pocahontas Co., 11 FMSHRC
2148, 2152-53 (Nov. 1989).
B. Significant and Substantial
A “significant and substantial” (“S&S”) violation is described in Section 104(d)(1) of the
Mine Act as a violation “of such nature as could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health hazard.” 30 U.S.C. § 814(d)(l). A
violation is properly designated S&S “if based upon the particular facts surrounding that
violation, there exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC
822, 825 (Apr. 1981).
In Mathies Coal Co., the Commission established the standard for determining whether a
violation is S&S:
In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum, the Secretary of Labor
must prove: (1) the underlying violation of a mandatory safety standard;
(2) a discrete safety hazard—that is, a measure of danger to safety—
contributed to by the violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a reasonable likelihood that
the injury in question will be of a reasonably serious nature.
6 FMSHRC 1, 3-4 (Jan. 1984).
The second element of the Mathies test must be evaluated with respect to specific
conditions in the mine. See, e.g., McCoy Elkhorn Coal Corp., 36 FMSHRC 1987, 1991-92 (Aug.
2014) (finding that an accumulations violation contributed to a combustion hazard because of the
extensiveness of the accumulations of coal, their highly combustible makeup, and the amount of
methane liberated by the mine); Mathies, 6 FMSHRC at 4 (finding that a broken sander on a
mantrip contributed to the hazard of a derailment or collision because of damp conditions at the
mine and the steep route of the mantrip). With respect to the third element, the Commission has
explained that the Secretary must “establish a reasonable likelihood that the hazard contributed
to will result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 6 FMSHRC
1834, 1836 (Aug. 1984). The Commission has made clear that the “Secretary need not prove a
reasonable likelihood that the violation itself will cause injury,” but rather that the hazard created
would cause an injury. Musser Eng’g, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010); see also
Cumberland Coal Res., LP, 33 FMSHRC 2357, 2365 (Oct. 2011). Finally, the Commission has
held that the S&S determination should be made assuming “continued normal mining
operations.” McCoy, 36 FMSHRC at 1990-91.
C. Negligence
The Secretary’s regulations categorize negligence into five categories, from “no
negligence” to “reckless disregard.” 30 C.F.R. § 100.3, Table X. The Commission has
emphasized, however, that these regulations apply to the Secretary’s proposal of penalties only,

38 FMSHRC Page 1463

and are not binding on the Commission. Brody Mining, LLC, 37 FMSHRC 1687, 1701 (Aug.
2015). The Commission instead directs its judges to “evaluate negligence from the starting point
of a traditional negligence analysis . . . . Under such an analysis, an operator is negligent if it fails
to meet the requisite standard of care—a standard of care that is high under the Mine Act.”
Brody, 37 FMSHRC at 1702. In evaluating an operator’s negligence, the judge should consider
“what actions would have been taken under the same circumstances by a reasonably prudent
person familiar with the mining industry, the relevant facts, and the protective purpose of the
regulation.” Jim Walter Res., 36 FMSHRC 1972, 1975 (Aug. 2014).
While the Secretary’s regulations focus on the presence or absence of mitigating
circumstances in determining the level of negligence, 30 C.F.R. § 100.3, the Commission has
indicated that Commission judges are not limited to this analysis and “may find ‘high
negligence’ in spite of mitigating circumstances or may find ‘moderate’ negligence without
identifying mitigating circumstances.” Brody, 37 FMSHRC at 1702-03. High negligence is
characterized by “an aggravated lack of care that is more than ordinary negligence.” Id. at 1703.
III. FINDINGS OF FACT AND CONCLUSIONS OF LAW
The findings of fact detailed below are based on the record as a whole and my careful
observation of the witnesses during their testimony. My credibility determinations are based in
part on my close observation of the witnesses’ demeanors and voice intonations. In resolving any
conflicts in testimony, I have taken into consideration the interests of the witnesses,
corroboration or the lack thereof, and consistencies and inconsistencies in each witness’s
testimony and among the testimonies of the various witnesses. Any failure to provide detail on
each witness’s testimony in this decision should not be deemed a failure on my part to have fully
considered it. The fact that some evidence is not discussed does not indicate that it was not
considered. See Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000).
A. Citation No. 8873031
Citations 8873031, 8873032, and 8873033 relate to the water treatment area of the mine.
The treatment area is accessed regularly for maintenance, and miners had been working there the
day prior to the inspection.
Inspector Hakala testified that as she entered the water treatment area, she observed
material on the ground and timbers being used to support the roof. Carney informed her that
some material had recently fallen from the roof, and miners had scaled the area and added the
timbers as additional support. He informed her that the timbers were a temporary fix until the
condition could be properly addressed. Hakala conducted a visual inspection of the area and
observed a fracture in the rock. She thus determined that a fall of material hazard existed. She
did not sound the material, however, and testified that the timbers were stable and in good
condition.
The mine’s witnesses disputed Carney’s assertion that a fall of materials had occurred in
the area. Cole McGowan had gone to the water treatment area to check ground conditions in
February 2015. He testified that he had been sent to check the area not because of a recent fall,

38 FMSHRC Page 1464

but rather in preparation for electricians to work there. McGowan had scaled the area, but
noticed some hollow-sounding rock that would not come down with a scaling bar. He thus
suggested to Cochrane that they install timbers as extra support. McGowan stated that he did not
believe that the hollow-sounding rock was in danger of falling, but wanted to provide extra
support in case of vibrations during the upcoming electrical work. The timbers were installed on
March 2 and 3. McGowan’s opinion was that the timbers had fixed the problem, and the area
was safe. Cochrane testified that the rock in the area was of a strong type that was unlikely to
fall. Inspector Hakala agreed that the rock was of a solid type. She admitted that she did not
believe that there was an imminent danger of materials falling.
Inspector Hakala cited the mine for a violation of 30 C.F.R. § 57.18002(c) based on the
conditions in the water treatment area. Section 57.18002(c) requires that
conditions that may present an imminent danger which are noted
by the person conducting the [shift] examination shall be brought
to the immediate attention of the operator who shall withdraw all
persons from the area affected (except persons referred to in
section 104(c) of the [Act]) until the danger is abated.
30 C.F.R. § 57.18002(c). The persons referred to in Section 104(c) include
(1) any person whose presence in such area is necessary, in the
judgment of the operator or an authorized representative of the
Secretary, to eliminate the condition described in the order; … and
(4) any consultant to any of the foregoing.
30 U.S.C. § 814(c).
The Secretary alleges that a fall of material hazard existed in the area, and thus that the
mine should have withdrawn all persons from the area. While Carney told the inspector that an
imminent danger existed in the area, the Secretary presented no further evidence to support that
finding. The inspector admitted at hearing that she did not believe a rock was going to fall while
she was in the water treatment plant. The mine’s witnesses all agreed that there may have been a
“drummy” portion of the roof in the area, but that the timbers had been set as an extra precaution
and that they had resolved the issue.
I find that the Secretary has failed to prove that the ground conditions constituted an
imminent danger, a necessary element of the standard. Accordingly, the citation is vacated.
B. Citation No. 8873032
Citation No. 8873032 also relates to ground conditions in the water treatment area.
Inspector Hakala cited the mine for a violation of 30 C.F.R. § 57.3200, which provides:
Ground conditions that create a hazard to persons shall be taken
down or supported before other work or travel is permitted in the

38 FMSHRC Page 1465

affected area. Until corrective work is completed, the area shall be
posted with a warning against entry and, when left unattended, a
barrier shall be installed to impede unauthorized entry.
The Secretary alleges that no warning signs or barriers were posted to warn miners of the
possibility of falling materials in the water treatment area.
The mine’s witnesses testified that a chain with warning signs was ordinarily in place in
front of the water treatment area. Inspector Hakala recalled seeing this chain on previous
inspections. See Gov’t Ex. 2 at 8. However, it was not in place on the date of the inspection. The
mine’s witnesses explained that this was because the mine had held an emergency drill at the end
of the shift prior to the inspection, and because miners were required to leave their work stations
immediately the chain had not been replaced it at the end of the shift. Inspector Hakala believed
that even if the chain had been present, the mine should have had a sign specifically referring to
hazardous ground. David Cochrane also testified that there is a barrier made of a rail and 55
gallon drums several feet before the chain that impedes entry to the area.
To prove a violation of § 57.3200, the Secretary must prove first that hazardous ground
conditions were present, and second that the required warning signs or barriers were not
provided. The Commission has stated that a number of factors should be considered in
determining whether loose ground is present in a metal mine, including, but not limited to: “the
results of sounding tests, the size of the drummy area, the presence of visible fractures and
sloughed material, ‘popping’ and ‘snapping’ sounds in the ground, the presence, if any, of roof
support, and the operating experience of the mine or any of its particular areas.” ASARCO, Inc.,
14 FMSHRC 941, 952 (June 1992); Amax Chem. Corp., 8 FMSHRC 1146, 1149 (Aug. 1986). In
ASARCO, the Commission found that no violation had been proven where the area had been
examined and tested, testimony indicated that ground conditions were not believed to be
hazardous, scaling had been performed, there were no popping or snapping sounds, and the
dolomite formation in the mine was stable. 14 FMSHRC at 952-53.
I find that the Secretary failed to present sufficient evidence of a ground condition
creating a hazard in this area. The inspector based her conclusion that a hazard existed on a
visual inspection and information provided by Carney that may not have been accurate. She did
not conduct a sounding test and did not have reliable information about past roof falls. The area
had been scaled and Cochrane testified that the rock in the area was stable. While miners had
found that some rock in the area was hollow sounding, they had placed timbers to support it, and
there was no evidence that those would not be effective at preventing rock from falling. Before
the timbers were added, the chain with warning signs was in place to impede entry. For these
reasons, I find that the Secretary did not meet his burden of proof. Therefore, I vacate the
citation.
C. Citation No. 8873033
While in the water treatment area, Inspector Hakala observed a number of electrical
panels used to power the water treatment equipment. The seven panels were hanging by chains
and not secured to the ribs. Inspector Hakala testified that the panels were 480 volts, which is

38 FMSHRC Page 1466

considered high voltage. The panels were energized when Hakala observed them. The chains
holding the panels were meant to keep them off the floor and out of the water but at a reasonably
accessible height, but Hakala did not believe that the chains were sufficient to hold the panels.
She observed that an S-hook connecting a chain to the wall was pulling apart and away from the
wall. Several links appeared stressed and one was cracked. She believed that this was an
indication that the chains were holding too much weight or had been struck. She also observed
that the panels swayed when touched. Given the small size of the area, she was concerned that
the panels would hit someone if they were to fall.
Cochrane pointed out that the chains were capable of holding 800 pounds and were
connected to rock bolts, which were in turn connected to face plates. Cochrane believed that the
chain mounting system was standard practice in many mines and was sufficient to support the
weight of the panels. Randy Dutton, who had installed the panels, also testified that the chain
mounting was a common practice in other mines. He believed that there was no chance that the
panels would fall, and noted that blasting had occurred numerous times near the panels and they
had not fallen. While there had been no blasting since the mine was put on non-producing status,
the mine did not dispute or address the strength of the chains in the weakened condition observed
by the inspector.
Carney informed Inspector Hakala that Cal-OSHA had advised the mine to update the
chain system on a previous inspection. Carney characterized the Cal-OSHA statement as a
“warning,” but Cochrane described it as a “comment,” saying that Cal-OSHA was merely
recommending that the mine update the system to conform to the changing practice in other
mines of using a solid mount. The mine had attempted to hire someone to address the condition,
but the person had not yet been available to do the work. The inspector understood that several
people were going in and out of the water treatment area each week. She noted that it was a tight
area where workers would be very close to the hanging panels.
Inspector Hakala cited the mine for a violation of 30 C.F.R. § 57.12030, which requires
that “When a potentially dangerous condition is found it shall be corrected before equipment or
wiring is energized.”
I credit the testimony of Inspector Hakala that there were defects in the chains that
weakened their effectiveness. It was unclear from her testimony whether the damage to the
chains was enough to contribute to a fall or whether some work or vibration was necessary to
contribute to the failure of the chains. However, the panels were heavy and there was activity in
the mine that could have loosened or weakened the chains further. I find that the Secretary has
demonstrated a violation of the mandatory standard. Because the mine was aware of the
condition based on the Cal-OSHA inspection but had hired someone to fix the panels, I affirm
the Secretary’s moderate negligence assessment.
The Secretary alleges that the violation was reasonably likely to result in an injury
causing lost workdays or restricted duty and that it was S&S. The Secretary has proven that a
violation occurred, satisfying the first element of the Mathies test for S&S.

38 FMSHRC Page 1467

To satisfy the second element, the Secretary must prove the existence of “a discrete
safety hazard—that is, a measure of danger to safety—contributed to by the violation.” Mathies,
6 FMSHRC at 3-4. Here, the inspector observed that the chain links supporting the electrical
panels appeared stressed and the panels swayed when touched. She observed that one of the Shooks was pulling away from the wall and one of the chains had signs of cracks. The
maintenance work in the area, such as scaling and setting timbers, could create a vibration that
could cause the panels to fall. Given that the panels were heavy and the ability of the chains to
hold their full weight was compromised, I find that the Secretary has demonstrated that the
violation created a discrete safety hazard of the panels falling. The inspector observed that
conditions in the area were tight and that miners would be in close proximity to the panels. The
presence of timbers for roof support made it especially difficult to maneuver in the area. While
there is some dispute as to how many people routinely worked in the area, it is clear that scaling
had to be done and the water treatment area maintained, indicating that someone would be in the
area two to three times each week. Such a person would likely be seriously injured if a panel
were to fall. Therefore, I find the violation to be S&S.
D. Citation No. 8873030
In addition to inspecting the water treatment plant, the inspector and Carney traveled the
secondary escapeway. Citation 8873030 concerns conditions in the secondary escapeway at the
1100-1200 level. Carney told Inspector Hakala that the escapeway had been examined and the
roof scaled on the day prior to the inspection. But Hakala observed loose and cracked material in
a number of areas as she walked the escapeway, an indication to her that the roof had not been
properly scaled. She believed the loose materials were obvious and should have been pried off
before anyone traveled the escapeway. Some of the loose areas were as large as one and a half
feet wide by two feet long. If these fell, they would be likely to cause fatal injury. While there
were roof bolts in places, some of the loose materials were not near the bolts. The Secretary
produced photographs showing the condition, though they were not particularly illustrative due
to the dark conditions in the mine. Gov’t Ex. 4 at 4-10. Hakala did not conduct sounding tests
and the roof was not making any sounds, but Carney tested an area with a bar and material fell.
Hakala understood that miners did not regularly access the escapeway except for maintenance,
but that they should be checking it every time they went underground, approximately two to
three times per week.
David Cochrane confirmed that scaling was done in the secondary escapeway on a
monthly basis, and it had been done by an independent contractor the previous day. The
contractor, Cole McGowan, testified that he and another contractor had spent two days scaling
the secondary escapeway. Cochrane had not inspected the area because of the safety drill the
previous day, but McGowan had told him he had finished. McGowan testified that he had
performed the scaling thoroughly, taking down any loose ground with a scaling bar. He stated
that no material was falling or obvious, but that he did bring some material down. He also
brought down any material that sounded drummy, even if it was not loose. He stated that
typically he moved the material brought down during scaling to the side, but could not
completely remove it because of the difficulty of getting the appropriate equipment into the area.
Cochrane and Dutton testified that hard hats would be worn in the area, and any materials that
would have fallen would not have been large enough to injure someone.

38 FMSHRC Page 1468

Cochrane testified that when McGowan scaled the area to abate the citation, he was able
to bring down only a few pieces, none bigger than egg size. Randy Dutton, who also assisted
with the scaling, stated that the only pieces large enough to hurt someone were low on the ribs.
Inspector Hakala was not present for the termination, but believed that large pieces were brought
down. The termination photos show a few large pieces, though it is unclear whether they were
brought down from the roof or the ribs.1 See, e.g., Gov’t Ex. 4 at 12, 17. It is also possible that
the pieces were brought down in prior scaling, given that the area had not been cleaned in over a
year.
Inspector Hakala issued Citation No. 8873030 based on the conditions in the secondary
escapeway. The Secretary alleges a violation of 30 C.F.R. § 57.3200, which requires that:
Ground conditions that create a hazard to persons shall be taken
down or supported before other work or travel is permitted in the
affected area. Until corrective work is completed, the area shall be
posted with a warning against entry and, when left unattended, a
barrier shall be installed to impede unauthorized entry.
As stated with regard to Citation No. 8873032, the Commission has stated that a number of
factors should be considered in determining whether loose ground is present, including, but not
limited to: “the results of sounding tests, the size of the drummy area, the presence of visible
fractures and sloughed material, ‘popping’ and ‘snapping’ sounds in the ground, the presence, if
any, of roof support, and the operating experience of the mine or any of its particular areas.”
ASARCO, Inc., 14 FMSHRC at 952; Amax, 8 FMSHRC at 1149.
McGowan and the inspector walked the secondary escapeway a day apart, but had
differing views of the roof conditions. McGowan believed he had thoroughly scaled the area just
prior to the inspection, whereas Hakala saw roof problems including cracks and loose material in
a number of areas. McGowan admitted that it was possible for the ground material to have
shifted overnight. In any case, I credit the inspector’s testimony with regard to the roof
conditions. While she did not conduct sounding tests or observe popping or snapping sounds, she
noticed cracks and loose material. There were roof bolts in the area, but some loose areas were
not captured by the bolts. Accordingly, I find that there was a ground hazard as alleged by the
Secretary. Because there was no barrier or warning sign in the area, the condition was in
violation of § 57.3200.
The Secretary alleges that the violation was the result of moderate negligence. Because
the area had been recently scaled, I agree that the negligence was moderate.
1

Respondent argues that evidence of termination should not be admitted because it
constitutes evidence of subsequent remedial measures, which is inadmissible as proof of
culpability under Federal Rule of Evidence 407. However, the policy behind the Federal Rule is
to avoid discouraging safe conduct after an accident. That policy is inapplicable here, where
abatement of the alleged violation is required by statute. See 30 U.S.C. § 814(b). Accordingly, I
find that evidence of abatement measures is admissible, but I do not rely on it as evidence of the
violation.

38 FMSHRC Page 1469

The Secretary alleges that the violation was reasonably likely to result in a fatal injury
and was S&S. Respondent offered evidence that miners would be wearing hard hats and any
material that fell would be small and therefore would not injure a miner. However, Hakala
observed loose materials that were large enough to injure or kill a person if they fell. While the
loose materials were only in some areas of the escapeway, given that miners travelled the area, it
was reasonably likely that a fall would injure a miner.
Applying the Mathies test to this citation, the Secretary has proven that a violation
occurred. The inspector observed fractures and loose materials, which indicate that the hazard of
falling material was present, satisfying the second Mathies element. Some of the loose rocks
were large and miners were frequently in the area. Even though some of the loose rocks were
small, a small falling rock could still cause serious injury to a miner, even one wearing a hard
hat. See Springfield Underground, Inc., 17 FMSHRC 613, 620 (Apr. 1995) (ALJ) (upholding
S&S for violation of § 57.3200 where only fist-sized rocks were brought down in abatement,
because those could still seriously hurt someone). I find that a fall of materials would be likely to
cause serious injury, satisfying the third and fourth elements. Accordingly, the citation was
properly designated S&S.
IV. PENALTY
The principles governing the authority of Commission Administrative Law Judges to
assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i)
of the Mine Act delegates to the Commission and its judges “authority to assess all civil penalties
provided in [the] Act.” 30 U.S.C. § 820(i). The duty of proposing penalties is delegated to the
Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the Secretary that it
intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29
C.F.R. § 2700.28. The Act requires that in assessing civil monetary penalties, the judge must
consider six statutory penalty criteria: the operator’s history of violations, its size, whether the
operator was negligent, the effect on the operator’s ability to continue in business, the gravity of
the violation, and whether the violation was abated in good faith. 30 U.S.C. § 820(i). In keeping
with this statutory requirement, the Commission has held that judges must make findings of fact
on the statutory penalty criteria. Sellersburg Stone Co., 5 FMSHRC 287, 292 (Mar. 1983), aff'd,
736 F.2d 1147, 1152 (7th Cir. 1984). Once these findings have been made, a judge’s penalty
assessment for a particular violation is an exercise of discretion “bounded by proper
consideration of the statutory criteria and the deterrent purposes underlying the Act’s penalty
scheme.” Id. at 294; see also Cantera Green, 22 FMSHRC 616, 620 (May 2000).
The Secretary has proposed a penalty of $243.00 for Citation No. 8873033, the violation
related to the electrical boxes and a penalty of $807.00 for Citation No. 8873030, the violation
related to hazardous ground conditions in the escapeway. Sutter Gold is a small operator for
purposes of penalty calculations. The Secretary introduced the mine’s history of violations,
which shows that the mine had two violations in the year prior to the inspection at issue. Gov’t
Ex. 7. With regard to the two violations at issue, the Secretary has proven that the operator was
moderately negligent and the violations were reasonably likely to cause serious injury. The
parties have stipulated that the operator demonstrated good faith in abating the violations. Jt.
Stips. ¶ f. No evidence was presented that the proposed penalties would affect the operator’s

38 FMSHRC Page 1470

ability to continue in business. Accordingly, I find that a penalty of $500.00 is appropriate for
Citation No. 8873033 and because the violation was extensive, I find that a penalty of $1,000.00
is appropriate for Citation No. 8873030.
V. ORDER
Respondent is hereby ORDERED to pay the Secretary of Labor the sum of $1,500.00
within 30 days of the date of this decision.

/s/ Margaret A. Miller
Margaret A. Miller
Administrative Law Judge

Distribution: (U.S. First Class Certified Mail)
Daniel Brechbuhl, Office of the Solicitor, U.S. Department of Labor, Cesar E. Chavez Memorial
Building, 1244 Speer Boulevard, Suite 216, Denver, CO 80204
Katie Jeremiah, Jordan Ramis, PC, Two Centerpointe Drive, 6th Floor, Lake Oswego, OR 97035

38 FMSHRC Page 1471

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE NW, SUITE 520N
WASHINGTON, D.C. 20004

June 10, 2016
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 2012-1022-M
AC No. 04-01299-289667
Docket No. WEST 2013-321-M
AC No. 04-01299-306795-01
Docket No. WEST 2013-322-M
AC No. 04-01299-306795-02

v.
Docket No. WEST 2013-323-M
AC No. 04-01299-306795-03
Docket No. WEST 2013-365-M
AC No. 04-01299-309234
ORIGINAL SIXTEEN TO ONE MINE,
INCORPORATED,
Respondent

Docket No. WEST 2013-486-M
AC No. 04-01299-311898
Mine: Sixteen to One Mine

AMENDED DECISION
Appearances:

Jan M. Coplick, Esq., Seema N. Patel, Esq., U.S. Department of Labor,
Office of the Solicitor, San Francisco, California, for Petitioner;
Michael M. Miller, President, Original Sixteen to One Mine, Inc.,
Alleghany, California, for Respondent.

Before:

Judge Bulluck

This Amended Decision CORRECTS the proposed penalty figures as follows: page 2 –
the introductory paragraph, line 5 and footnote 1, line 3; page 34 – Penalties section, paragraph
1, line 1.
These cases are before me upon Petitions for Assessment of Civil Penalty filed by the
Secretary of Labor (“Secretary”) on behalf of the Mine Safety and Health Administration
(“MSHA”) against Original Sixteen to One Mine, Incorporated (“Original Sixteen”), pursuant to

38 FMSHRC Page 1472

section 105(d) of the Federal Mine Safety and Health Act of 1977 (“Act”), 30 U.S.C. § 815(d).
The Secretary seeks a total penalty of $10,141.00 for 29 alleged violations of his mandatory
safety standards.1
A hearing was held in Nevada City, California.2 The following issues are before me: (1)
whether Original Sixteen violated the cited standards; (2) whether the violations were significant
and substantial, where alleged; (3) whether the violations were attributable to the level of
negligence alleged; and (4) whether the violations were attributable to unwarrantable failures to
comply with the cited standards, where alleged.
I.

STIPULATIONS
The parties stipulated as follows:
1.

Original Sixteen to One Mine, Incorporated, is the owner and operator of
the Sixteen to One Mine (hereafter “the mine”), MSHA I.D. No. 0401299.

2.

The mine is an underground gold mine located near Alleghany, California.

3.

The subject citations were properly served by a representative of the
Secretary upon an agent of Respondent on the date and place stated
therein, and may be admitted into evidence for the purpose of establishing
their issuance and not for the truthfulness or relevancy, if any, of the
statements asserted therein.

4.

The exhibits to be offered by Respondent and the Secretary are stipulated
to be authentic, but no stipulation is made as to their relevance or the truth
of the matters asserted therein.

5.

Photocopies of the parties’ exhibits are presumed to be accurate copies of
the originals.

6.

Documents pertaining to violations and quarterly production that are
downloaded from MSHA’s on-line Data Retrieval System at MSHA.gov
are presumed to contain accurate information.

1

The parties reached a settlement on 15 of the 29 contested citations/orders. The total
civil penalty proposed for the 14 remaining citations/orders adjudicated in this proceeding is
$7,843.00.
2

By my direction, a complete set of MSHA Inspectors William Edminister’s and Roshan
Gulati’s field notes were provided by the Secretary and received in evidence as exhibits P-16 and
P-17, respectively, post-hearing. See Tr. 540-43.

38 FMSHRC Page 1473

7.

Documents reflecting information downloaded from the Security and
Exchange Commission’s on-line data retrieval system at SEC.gov are
presumed to contain accurate information.3

Tr. 7-8.
For the reasons set forth below, I VACATE two citations; AFFIRM 10 citations and 2
orders, as issued; and assess penalties against Respondent.
II.

FACTUAL BACKGROUND

Original Sixteen operates the Sixteen to One mine, an underground gold mine in
Alleghany, California. Jt. Stip. 1. Michael Miller is the President of Original Sixteen.
Tr. 543-44. Michael Miller, his son Reid Miller, Joseph Sauer, and Aaron (Chico) Aguirre
were working in the mine during the 2012 inspections at issue. Tr. 389, 475, 430-31.
On March 20, 2012, William Edminister, an MSHA inspector since early 2009,
conducted a regular inspection of the mine. Tr. 16, 19. He issued a citation to Original Sixteen
for loose ground in the main haulageway. Ex. P-1A. Two days later, he returned to the mine and
issued a citation for failure to maintain the 600 and 1000 level secondary escapeway in safe and
travelable condition. Ex. P-2A.
On September 18, 2012, Inspector Edminister, accompanied by MSHA Inspector David
Blankenship, conducted another regular inspection of Sixteen to One and cited several
conditions. Tr. 362-63. Edminister issued a citation for failure to maintain the 600 and 1000 level
secondary escapeway in safe and travelable condition (Ex. P-4A); a withdrawal order concerning
a miner working alone where hazardous ground conditions existed (Ex. P-5A); a withdrawal
order for loose ground in the 21 Tunnel secondary escapeway (Ex. P-6A); and an order
withdrawing miners from all underground areas of the mine for failure to maintain the 21 Tunnel
secondary escapeway in safe and travelable condition (Ex. P-7A). He also issued citations for
failure to barricade an unsafe area beyond the 800 station (Ex. P-8A); failure to take down
hazardous material in an elevated ore chute (Ex. P-9A); failure to provide fire protection for
timbered construction in the 21 Tunnel secondary escapeway portal (Ex. P-10A); failure to guard
or insulate output terminals on a welder (Ex. P-11A); failure to clear dry vegetation in close
proximity to the Upper Bench mine opening (Ex. P-12A); and failure to accurately depict mine
openings on the mine map (Ex. P-14A).
On October 10-11, 2012, MSHA Inspectors Roshan Gulati and Blankenship conducted a
regular inspection of the mine. Tr. 320. Gulati issued citations for working in the face of the
September 18 withdrawal order pertaining to the 21 Tunnel (Ex. P-3), and failing to repair a
defect affecting the safety of an electric hoist in a timely manner (Ex. P-13A).

3

No SEC documents were offered or received in evidence, and the only testimony
relating to Original Sixteen’s filings with the SEC presumably bears on jurisdiction, which is not
at issue in these proceedings. See Tr. 607-09.

38 FMSHRC Page 1474

III.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

A.

Citation No. 8612839

Inspector Edminister issued 104(a) Citation No. 8612839 on March 20, 2012, alleging
a violation of section 57.3200 that was “unlikely” to cause an injury that could reasonably be
expected to be “fatal,” and was caused by Original Sixteen’s “moderate” negligence.4 The
“Condition or Practice” is described as follows:
Loose ground was found approximately 1800 ft from the 800 Level Mine Portal
along the main haulage way. There is large fractured rock overhead along the slip
plain that has come free from the plain and dropped down about ¼ inch. This rock
is about 2 ft by 3 ft by about 6 inches thick and about 5-7 ft over the travel way
which is about 6 ft wide. There was other unscaled or unsupported ground
conditions around the slip plain in this area. This condition exposes miners
traveling through the area to fatal type injuries had this condition been allowed to
further exist.
Ex. P-1A.5 The citation was terminated on March 22 after Original Sixteen barred down
the fractured rock, and installed a wood sprag and two additional stalls. Ex. P-1B.
1.

Fact of Violation

In order to establish a violation of one of his mandatory safety standards, the Secretary
must prove that the violation occurred “by a preponderance of the credible evidence.” Keystone
Coal Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas
Co., 11 FMSHRC 2148, 2152) (Nov. 1989)).
The Secretary contends that the cited ground conditions were hazardous and unsafe.
Sec’y Br. at 9-10. Original Sixteen argues that the ground conditions were not hazardous, and
that Edminister lacks the qualifications to inspect the Sixteen to One mine. Resp’t Br. at 6-7.
As a preliminary matter, I note that Original Sixteen stipulated to Gulati’s and
Blankenship’s competence to inspect the Sixteen to One mine. Tr. 318; 361. However, it

4

30 C.F.R. § 57.3200 provides that “[g]round conditions that create a hazard to persons
shall be taken down or supported before other work or travel is permitted in the affected area.
Until corrective work is completed, the area shall be posted with a warning against entry and,
when left unattended, a barrier shall be installed to impede unauthorized entry.”
5

In the context of a previous, analogous standard, 30 C.F.R. § 57.3-22, the Commission
interpreted loose ground to refer “generally to material in the roof (back), face, or ribs that is not
rigidly fastened or securely attached and thus presents some danger of falling.” Amax Chem. Co.,
8 FMSHRC 1146, 1148 (Aug. 1986).

38 FMSHRC Page 1475

essentially raised a standing challenge to Edminister’s qualifications to inspect the mine and
make judgments respecting the cited hazards. Tr. 192-93.
Edminister came to MSHA with eight years experience as a safety representative at a
surface mining operation, and six months of training in identification of loose ground and ground
support systems; as an MSHA inspector, he had participated in several underground mine
inspections. Tr. 13-18. Notably, when making determinations as to loose ground, he relied upon
the array of techniques recognized by the Commission. Tr. 276-77; see Asarco Inc., 14
FMSHRC 941, 952-53 (June 1992). Accordingly, I find that Edminister was qualified to inspect
Sixteen to One and issue the citations and orders contested in this proceeding.
Edminister testified that section 57.3200 requires Original Sixteen to remove or support
loose ground conditions in travel or work areas. Tr. 38-40. He stated that he observed a slip plane
directly above the travelway, evidence of water seepage through it, and a 2ʹ by 3ʹ by 68ʹʹ rock
slab that had dropped ¼ inch along the plane, indicating that it was loose.6 Tr. 28, 30-31, 34;
Exs. P-1C, P-1D, P-1E, P-1F, P-1G, P-1H; see P-16 at 3. It was his opinion that the slab had
been scaled down by hand to terminate the citation, confirming his conclusion that it was, in fact,
loose ground. Tr. 40; see Exs. P-1J, P-16 at 6. He also opined that, in the unlikely event that the
slab were to fall on a miner from the height of five to seven feet, it could cause fatal injuries. Tr.
42-43.
Michael Miller testified that the roof was not loose, that there were ground supports near
the cited slab, that experienced miners who pass through the travelway regularly and are trained
to identify loose ground had not noticed the cited condition, and that the metamorphic geology of
Sixteen to One makes it resistant to formation of loose ground. Tr. 545-46. Joseph Sauer testified
similarly, that the roof was not unstable, and that there were ground supports near the slab. Tr.
502-03. He stated that he did not scale down the slab, that it was still in place, and that stalls
were installed to support it. Tr. 487-88, 502-03.
The evidence indicates that the travelway was regularly used by the miners, and that the
cited area of roof contained cracks or fractures. I credit Sauer’s testimony that he did not scale
down the slab. However, crediting Edminister’s testimony that upon his return the next day, he
observed fragments of the slab on the ground, it is clear that someone had scaled it down or that
rock fragments had broken away from the roof. Furthermore, the loose ground created a hazard
since crushing injuries from a falling slab, while unlikely, would be reasonably expected to be
fatal. Accordingly, I find that the Secretary has established a violation of section 57.3200.
2.

Negligence

Edminister opined that Original Sixteen’s negligence was moderate because the
travelway was regularly used, but he considered as mitigating factors that the area was dimly lit
and the unstable slab was not readily noticeable, and that Original Sixteen had no recent
6

A slip plane is “[c]losely spaced surfaces along which differential movement takes
place in a rock. Analogous to surfaces between playing cards.” Am. Geological Institute,
Dictionary of Mining, Mineral, and Related Terms 514 (2d ed. 1997) (“DMMRT”).

38 FMSHRC Page 1476

violation for loose ground. Tr. 43-44. Original Sixteen offered no rebuttal. I find the lack of
obviousness of the roof condition and Original Sixteen’s clean history to be mitigating factors.
Therefore, I find that Original Sixteen was moderately negligent in violating the standard.
B.

Citation No. 8612841

Inspector Edminister issued 104(a) Citation No. 8612841 on March 22, 2012, alleging
a violation of section 57.11051 that was “unlikely” to cause an injury that could reasonably be
expected to be “fatal,” and was caused by Original Sixteen’s “moderate” negligence.7 The
“Condition or Practice” is described as follows:
The Secondary escape way designated and posted on the mine map along the 600
and 1000 level is not being maintained in safe or travelable condition. There are
several areas along the 600 level escape way where there is a 3 inch air line
crossing the tracks about 6-10 inches above the ground level creating a tripping
hazard. There is a 3 inch metal pipe line crossing the travel way 48 inches off the
pass away level. There are areas where the lagging for the stopes have given way
allowing loose unconsolidated material to enter the passage way creating
additional hazards.[8] There is a section of the passageway that is under up to 14
inches of water and has a 2ʹʹ x 12ʹʹ x 7ʹ long piece of timber floating in the water.
There are two large boulders ranging up to 44 inches wide, 45 inches long and 20
inches thick that have fallen from a slip plain and or old stope workings. There is
a section of unconsolidated and unsupported material from an overhead stope that
is resting directly above the passageway exposing the miners to a hazard of being
struck by falling material. These conditions exposed the miners needing to access
the secondary escape in the event of an emergency to serious to fatal type injuries
in the event of an accident. The miners access many different areas at the mine
depending on maintenance and repairs.
Ex. P-2A. The citation was terminated on March 27 when Original Sixteen barricaded the area
from which the secondary escapeway is accessed. Ex. P-2B.
1.

Fact of Violation

Original Sixteen argues that the 600 and 1000 level secondary escapeway was not
required because miners had not worked in the area served by the escapeway for several years.
Resp’t Br. at 7.
7

30 C.F.R. § 57.11051 provides that “[e]scape routes shall be (a) [i]nspected at regular
intervals and maintained in safe, travelable condition; and (b) [m]arked with conspicuous and
easily read direction signs that clearly indicate the ways of escape.”
8

A stope is “[a]n excavation from which ore has been removed in a series of steps.”
DMMRT at 541.
Lagging is “[material that] wedges and secures the roof and sides behind the main timber
or steel supports in a mine and provides early resistance to pressure.” DMMRT at 302.

38 FMSHRC Page 1477

Edminister testified that section 57.11051 requires Original Sixteen to keep escapeways
clear of tripping hazards and loose ground. Tr. 55, 57, 65. He stated that he observed numerous
tripping hazards impeding a miner’s emergency exit through the travelway, including a threeinch air line crossing in front of a ladder used to reach the secondary escapeway (Tr. 47;
Ex.
P-2C); an air or water line zig-zagging three inches off the travelway floor (Tr. 54;
Exs. P2D; P-2L); multiple piles of old shot rock in the travelway (Tr. 60, 62; Exs. P-2E; P-2F; P-2I; P2K); an unsupported ledge from a mined-out stope (Tr. 57; Exs. P-2G, P-2H); and a piece of
timber floating in a twelve-inch deep water accumulation (Tr. 61; Ex. P-2J). Edminister opined
that, in the context of a mine emergency requiring use of the secondary escapeway, a miner
would be exposed to tripping hazards, fatal crushing injuries from groundfalls, and drowning
from slips and falls in accumulated water. Tr. 64-65. He also testified to the unlikelihood of the
occurrence of injury, having relied on Michael Miller’s assertion that no miners had been
working in the affected area. Tr. 64.
Michael Miller testified that miners had not worked in the area served by the 600 and
1000 level escapeway in 2012. Tr. 549. Sauer testified that the pipe crossing the ladder posed no
tripping hazard to an experienced miner, that the piles of material only partially blocked the
travelway, that the line crossing the travelway was not a tripping hazard because it was waisthigh, and that the hazards associated with the cited condition were not as severe as cited by the
inspector. Tr. 522, 524-25; Resp’t Br. at 7.
An operator’s duty to maintain escapeways free of hazards impeding safe exit is not, as
Original Sixteen argues, contingent upon whether they are required. Rather, by its plain
language, section 57.11051(a) requires an operator to maintain all active escapeways in “safe,
travelable condition.” Original Sixteen to One Mine, Inc., 23 FMSHRC 1158, 1173-74 (Oct.
2001) (ALJ) (holding that even if Original Sixteen’s secondary escapeway was not required, it
was not relieved of its duty to maintain designated escapeways safe and travelable). In this case,
the 600 and 1000 level travelway was designated as a secondary escapeway on the mine map,
and no barricade or warning signage removed from service either the escapeway or the area it
serves. Thus, the evidence indicates that miners were able to access the area from which the
secondary escapeway is accessed and the escapeway, itself. Accordingly, I find that Michael
Miller’s testimony that the area served by the 600 and 1000 level secondary escapeway had not
been used in 2012, while unchallenged, fails to absolve Original Sixteen of its duty to maintain
the escapeway in safe and travelable condition since it had not been taken out of service.
Original Sixteen presented no direct evidence that the conditions observed by Edminister
did not exist, and I find no merit in contentions that the totality of the cited conditions was not as
hazardous or serious as alleged by the Secretary. Even experienced miners would be faced with
the “panic factor” where “it would be unrealistic to fail to take into consideration that miners
may be hurrying, possibly with limited vision because of smoke.” Id. at 1163. Therefore, I find
that the combination of the hazards, each posing an obstacle to speedy exit in the event of an
emergency, and risk of serious to fatal injury, amounted to failure to comply with the standard.
Accordingly, the Secretary has established a violation of section 57.11051.

38 FMSHRC Page 1478

2.

Negligence

Edminister opined that Original Sixteen’s negligence was moderate because, although
miners had not been working in the area served by the secondary escapeway, it was designated
on the mine map as an active escapeway. Tr. 65. While Original Sixteen may have believed that
the escapeway was not required, Michael Miller is an experienced miner and mine owner who
should have known that where a designated escapeway is accessible and, therefore, active, there
is an obligation to maintain it in safe, travelable condition. Furthermore, it is noteworthy that
Original Sixteen had been cited for similar violations in 1999 and 2011. See id. at 1161; Original
Sixteen to One Mine, Inc., 36 FMSHRC 2224, 2227 (Aug. 2014) (ALJ). Accordingly, I find that
Original Sixteen was moderately negligent in violating the standard.
C.

Citation No. 8695844

Inspector Edminister issued 104(d)(1) Citation No. 8695844 on September 18, 2012,
alleging a “significant and substantial” violation of section 57.11051 that was “reasonably
likely” to cause an injury that could reasonably be expected to be “fatal,” and was caused by
Original Sixteen’s “high” negligence and “unwarrantable failure” to comply with the standard.
The “Condition or Practice” is described as follows:
The mine operator has removed the barricade put in place to impede access to the
working and or travel areas where the secondary escape located on the 600 and
1000 Level would be needed in the event of an emergency. Miners travel this area
as needed to metal detect for ore and get supplies as needed. The Mine President
Mike Miller stated that there is no area in this mine that is abandoned and that
they can travel and access any area of the mine. This secondary escape was under
citation (8612841) issued on 03/22/2012 and was terminated based on the mine
president’s statement that the area has been abandoned and there was no need to
access the area; therefore installed a barricade and warning sign. The cited
condition along the secondary escape have not been corrected as required by the
previous citations termination (8612841-01). Due to the actions and inactions of
the mine operator, this condition/practice has been evaluated at higher than
ordinary negligence.
Standard 57.11051 was cited 1 time in two years at mine 0401299 (1 to the
operator, 0 to a contractor). This violation is an unwarrantable failure to comply
with a mandatory standard.
Ex. P-4A. The citation was terminated on October 17 when the mine operator reinstalled a
barricade blocking access to the secondary escapeway. Ex. P-4E.
1.

Fact of Violation

The Secretary argues that Sixteen to One was in a production rather than exploration
mode, which requires the operator to have and maintain a secondary escapeway and, irrespective

38 FMSHRC Page 1479

of whether it was producing or exploring, it was required to maintain its active secondary
escapeways in safe, travelable condition.9 Sec’y Br. at 8-9, 15.
Original Sixteen argues that no miners were working in the affected area at the time of
the inspection, and that there were no workplaces or travelways on the 1000 level. Tr. 552-53;
Resp’t Br. at 12. It further contends that the mine was in an exploration mode, requiring no
secondary escapeway and, therefore, access to the affected area was permitted. Resp’t Br. at 12.
In other words, Original Sixteen is essentially arguing that since no secondary escapeway was
mandated, it was not required to either maintain the 600 and 1000 level escapeway or take it out
of service.10
Edminister testified that upon returning to inspect the mine in September 2012, he
observed that the barricade that Original Sixteen had installed to terminate Citation No. 8612841
had been removed, and that Reid and Michael Miller told him that the hazards cited in the 600
and 1000 level secondary escapeway in March had not been abated. Tr. 66; Exs. P-2, P-16 at 30.
He testified that he was never told when or why the barricade had been taken down, or how
frequently miners had been entering the area beyond the barricade. Tr. 72. He stated that Michael
Miller told him that miners were free to travel anywhere in the mine, and that Original Sixteen
was not required to have a secondary escapeway because the miners were engaged in
exploration. Tr. 66; Ex. P-16 at 30. In his opinion, it would be reasonably likely that a miner
attempting to exit the mine in an emergency situation would be unable to safely negotiate the
unabated slipping, tripping, and crushing hazards in the travelway, thereby delaying timely
escape. Tr. 81-82.
On cross-examination, Sauer testified that the secondary escapeway had not been cleaned
up, that the barricade had been removed and, for approximately one week, the affected area had
been open until a gate with a lock had been installed. Tr. 525-28, 535. He also stated that, to his
knowledge, no miners had actually entered the affected area after Original Sixteen was cited in
March. Tr. 525.
In each instance where Original Sixteen was cited for conditions relating to either the 600
and 1000 level secondary escapeway or the 21 Tunnel, the Secretary contends, and Original
Sixteen contests, that Original Sixteen was in a production mode and, therefore, required by
regulation to have a secondary escapeway. See Sec’y Br. at 8-9, 12-14. While I note that the
evidence shows little, if any, material distinction between Original Sixteen’s core mining
methods for production and exploration, it is unnecessary to resolve this issue because,
irrespective of the mine’s operational mode, the standard clearly requires that active escape
routes be maintained free of hazards impeding safe exit.
9

Section 57.11050(a) provides that “[e]very mine shall have two or more separate,
properly maintained escapeways to the surface . . . . [a] second escapeway is recommended, but
not required, during the exploration or development of an ore body.”
10

There are two separate secondary escapeways identified in these proceedings; the 600
and 1000 level escapeway at issue in Citation Nos. 8612841 and 8695844, and the 21 Tunnel at
issue in Order Nos. 8695848, 8695849, and 8695846.

38 FMSHRC Page 1480

In this case, by Original Sixteen’s own account, the hazards cited in the 600 and 1000
level secondary escapeway in March had not been cleaned up, and it had only been taken out of
service temporarily. Without evidence to the contrary, by removal of the barricade and
installation of the gate, it is reasonable to conclude that Original Sixteen intended that its miners
have access to the area served by the secondary escapeway. Consequently, once the barricade
was removed, miners were exposed to the hazardous conditions in the escapeway. Accordingly, I
find that the Secretary has established a violation of section 57.11051(a).
2.

Significant and Substantial

In Mathies Coal Company, the Commission set forth four criteria that the Secretary must
establish in order to prove that a violation is “significant and substantial” (“S&S”) under Nat’l
Gypsum, 3 FMSHRC 822 (Apr. 1981): 1) the underlying violation of a mandatory safety
standard; 2) a discrete safety hazard - - that is, a measure of danger to safety - - contributed to by
the violation; 3) a reasonable likelihood that the hazard contributed to will result in an injury; and
4) a reasonable likelihood that the injury in question will be of a reasonably serious nature.
6 FMSHRC 1, 3-4 (Jan. 1984); see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135
(7th Cir. 1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103-04 (5th Cir. 1988), aff’d
9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria). Evaluation of the third
criterion, the reasonable likelihood of injury, should be made in the context of “continued normal
mining operations.” U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). Since the “need
for adequate escapeways will only arise in the context of an emergency evacuation from the
mine . . . the S&S nature of an escapeway violation must be considered in the context of an
emergency.” Mill Branch Coal Corp., 37 FMSHRC 1383, 1395 (July 2015). Moreover,
resolution of whether a violation is S&S must be based “on the particular facts surrounding that
violation.” Texasgulf, Inc., 10 FMSHRC 498, 501 (Apr. 1998); Youghiogheny & Ohio Coal Co.,
9 FMSHRC 2007, 2001-12 (Dec. 1987). The Secretary need not prove a reasonable likelihood
that the violation, itself, will cause injury. Musser Eng’g, Inc., 32 FMSHRC 1257, 1280-81 (Oct.
2010).
The fact of violation has been established. Miners using the secondary escapeway in
the event of an emergency would be exposed to slip and trip, crushing, and drowning hazards,
thereby impeding speedy exit from the mine. The focus then, is the third and fourth Mathies
criteria, i.e., whether the hazard was reasonably likely to result in an injury, and whether the
injury would be serious. Here, miners impeded in exiting the mine through the 600 to 1000 level
secondary escapeway during an emergency would be reasonably likely to suffer serious to fatal
injuries. Therefore, I find that the violation was S&S.
3.

Negligence and Unwarrantable Failure

Unwarrantable failure is aggravated conduct constituting more than ordinary negligence.
Energy Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987). Unwarrantable failure is
characterized by such conduct as “reckless disregard,” “intentional misconduct,” “indifference,”
or a “serious lack of reasonable care.” Id. at 2001-04; Rochester & Pittsburgh Coal Co.,
13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, 52 F.3d at 136. The Commission
has recognized the relevance of several factors in determining whether conduct is “aggravated”

38 FMSHRC Page 1481

in the context of unwarrantable failure, such as the extensiveness of the violation, the length of
time that the violation has existed, whether the violation posed a high degree of danger, whether
the violation was obvious, the operator’s knowledge of the existence of the violation, the
operator’s efforts in abating the violative condition, and whether the operator has been put on
notice that greater efforts are necessary for compliance. See Wolf Run Mining Co., 35 FMSHRC
3512, 3520 (Dec. 2013); Consolidation Coal Co., 35 FMSHRC 2326, 2330 (Aug. 2013);
Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb. 2013). Each case must be examined on its
own facts to determine whether an actor’s conduct is aggravated, or whether mitigating
circumstances exist. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). Although
some factors may be irrelevant to a particular scenario, all relevant factors must be examined.
ICG Hazard, LLC, 36 FMSHRC 2635, 2637-38 (Oct. 2014) (citing IO Coal, 31 FMSHRC 1346,
1351 (Dec. 2009).
In arguing that Original Sixteen’s conduct was characterized by high negligence that
rose to the level of an unwarrantable failure to comply with section 57.11051(a), the Secretary
contends that Original Sixteen deliberately left the affected area unbarricaded for, at least, a
week, despite the fact that this secondary escapeway was cited in March for hazardous
conditions that it had not cleaned up. Sec’y Br. at 16. Original Sixteen does not directly address
the Secretary’s contentions, but argues that no miners were working in the area at the time of the
inspection, that there were no workplaces or travelways on the 1000 level, and that the mine was
in an exploration mode. Resp’t Br. at 12.
The hazardous conditions cited were obvious and existed in several locations throughout
the escapeway. Furthermore, after Edminister cited the hazards in March, Original Sixteen was
on notice that further efforts for compliance were necessary. Original Sixteen’s conduct was
aggravated by its removal of the barricade, permitting access to the area served by the secondary
escapeway. Original Sixteen’s argument that the mine was in an exploration mode does not
mitigate the seriousness of its conduct, given that the operator was on notice from a previous
violation that it had a duty to maintain active designated escapeways safe and travelable,
regardless of whether they are required, or take them out of service.
Despite the initial barricade, Original Sixteen’s subsequent removal of the barrier then
replacement with a locking gate, without addressing the hazards, was egregious. I find that the
violation posed a high degree of danger because of the consequences of delayed escape.
Regarding duration, it is undisputed that the area was unbarricaded for, at least, a week - - a
sufficient period of time to sustain an unwarrantable failure finding given the seriousness of the
violation. See, e.g., Buck Creek Coal, Inc., 52 F.3d 133, 136 (7th Cir. 1995) (upholding an
unwarrantable failure designation where accumulations existed for more than one shift).
Therefore, I find that the Secretary has established that Original Sixteen was highly negligent in
violating the standard, and engaged in aggravated conduct that constitutes unwarrantable failure.
D.

Order No. 8695848

Inspector Edminister issued 104(d)(1) Order No. 8695848 on September 18, 2012,
alleging a “significant and substantial” violation of section 57.18025 that was “reasonably
likely” to cause an injury that could reasonably be expected to be “fatal,” and was caused by

38 FMSHRC Page 1482

Original Sixteen’s “high” negligence and “unwarrantable failure” to comply with the standard.11
The “Condition or Practice” is described as follows:
No employee shall be assigned, or allowed, or be required to perform work alone
in any area where hazardous conditions exist that would endanger his safety
unless his cries for help can be heard or he can be seen. A miner was assigned to
work alone in the secondary escape where the timbers and lagging had collapsed
allowing material from the upper stope to fall into the travel way. There is
unsupported and unstable ground conditions in the stope near the area the miner
was performing his duties. It was stated that the miner was working in the area
alone while clearing the fallen debris while the other two miners were working
the heading near the 848 split where the miners cries for help would not be heard.
This practice posses an imminent danger to the miners working alone where
hazardous conditions exist.
This violation is an unwarrantable failure to comply with a mandatory standard.
Ex. P-5A, P-5B, P-5D. Gulati terminated the order during his October 12 inspection upon
confirmation that Original Sixteen would be enforcing its applicable work policy. Ex. P-5C.
On October 22, 2012, MSHA modified the order by deleting the following wording from the
“Condition or Practice” section:
This condition was a factor that contributed to the issuance of Imminent Danger
Order No. 8695845 dated 09/18/2012. Therefore, no abatement time was set.
Ex. P-5D.12
1.

Fact of Violation

Original Sixteen argues that Edminister did not actually observe anyone working alone in
hazardous conditions and, therefore, the order should never have been issued. Resp’t Br. at 13.
Edminister testified that several hazardous conditions existed in the 21 Tunnel. He noted
two instances where ground failures had occurred, timbers and lagging that had not been
properly maintained, material that had collapsed into the travelway due to improperly maintained
timbers and lagging, and a nearby ground support that was at risk of collapse. Tr. 83-85, 90, 306.
He opined that section 57.18025 requires Original Sixteen to prevent its miners from working
alone in an area with groundfall hazards, where a miner’s call for help would not be heard. Tr.
11

30 C.F.R. § 57.18025 provides that “[n]o employee shall be assigned, or allowed, or
be required to perform work alone in any area where hazardous conditions exist that would
endanger his safety unless he can communicate with others, can be heard, or can be seen.”
12

Imminent Danger Order No. 8695845 was vacated by the Secretary on November 21,
2012, and is not at issue in these proceedings. P-3D, P-3E, P-3F.

38 FMSHRC Page 1483

83-84. According to Edminister, Reid Miller told him that approximately two weeks before the
inspection, Michael Miller had assigned him to work by himself in the 21 Tunnel to clear timbers
that had fallen two weeks before that, and Reid Miller agreed with Edminister’s assessment that
the 21 Tunnel was unsafe. Tr. 84, 302-06; Ex. P-16 at 32. He estimated the distance between
Reid Miller and other miners to have been several hundred feet, explaining that the sound of
distress cries would have had to have traveled around a ninety degree angle, and that the miners
told him that they would not have been able to hear the lone miner’s cries from where they were
working. Tr. 84-85. Edminister also opined, in light of previous and impending groundfalls, that
it was reasonably likely that a miner would suffer fatal injuries from head trauma and
asphyxiation. Tr. 85-86, 309.
Michael Miller testified that Original Sixteen had never assigned or permitted any miner
to work alone in hazardous conditions. Tr. 553; Ex. P-17 at 9. Reid Miller testified that he told
Chico Aguirre to pick up old wood laying in the drift by the 849 Station, and that he would
return to check on him. Tr. 392. Aguirre testified that it was he who was working alone in the 21
Tunnel, taking out and replacing old timbers laying on the rib. Tr. 431. Aguirre also testified that
the old timbers had not fallen, but had been pulled out by the miners. Tr. 431. He stated that he
did not notice any hazardous conditions when he began work, and that a landline phone is
located some 200 feet from where he was working. Tr. 433-35.
Notwithstanding the fact that Edminister may have been told by Reid Miller that it was
he who had been working alone, I credit Reid Miller’s and Aguirre’s testimony that Aguirre was
the solitary miner. I also credit Edminister’s testimony that there had been previous ground
failures, and that another was imminent, absent any credible challenges by Original Sixteen.
Indeed, Aguirre’s testimony that there had not been a ground failure, and that he had not noticed
any hazardous conditions while he was working is unconvincing, given his overall nervousness
and unwillingness to answer questions directly. Likewise, Original Sixteen failed to rebut
Edminister’s contention that other miners would not have been able to hear Aguirre’s calls for
help, and the presence of the landline telephone does not negate the violation, given the
likelihood that a miner in distress would be in no condition to access the landline, much less use
it. According to Gulati’s field notes respecting termination of the order, miners told him that they
check on each other every 20 minutes. Ex. P-17 at 9. However, there is no evidence of Reid
Miller’s oversight beyond his assurance to Aguirre that he would check on him - - evidence that
falls short of the structured monitoring necessary to satisfy the standard. See Cotter Corp., 8
FMSHRC 1135, 1139 (1986) (holding that while contact with the solitary miner need not be
continual, it must be regular and dependable, and commensurate with the hazard presented).
Accordingly, I find that the Secretary has established a violation of section 57.18025.
2. Significant and Substantial
The fact of violation has been established, and I find that the lone miner was exposed to
impending groundfalls, without benefit of being heard by nearby workers. The focus then, is the
third and fourth Mathies criteria, i.e., whether the hazard was reasonably likely to result in an
injury, and whether the injury would be serious.

38 FMSHRC Page 1484

I find, in the context of continued normal mining operations and the impeding threat of
groundfall, that the lone miner was reasonably likely to sustain serious to fatal crush injuries,
suffocation, and/or head trauma. Therefore, I find that the violation was S&S.
3. Negligence and Unwarrantable Failure
In arguing that Original Sixteen’s conduct was characterized by high negligence that rose
to the level of an unwarrantable failure, the Secretary contends that the hazardous ground
conditions were open and obvious, that Reid Miller, as lead miner, had knowledge of them and,
by permitting work under such conditions, set an unsafe example for other miners. Tr. 86; Sec’y
Br. at 16-17. Original Sixteen only addresses the Secretary’s contentions by arguing that the
conditions in the 21 Tunnel were not hazardous. Resp’t Br. at 13.
The record indicates that the ground conditions were obvious and extensive, as there was
more than one area where a groundfall had already occurred, and loose ground in the area was
likely to fail. Reid Miller, as lead miner, had assigned Aguirre to work alone in an area with
obvious hazards. Since the task involved replacing old timbers where a ground failure had
occurred, I find that Reid Miller knew or should have known that working alone under these
conditions would be perilous. The relatively short duration of this violation, having occurred
during one shift, and the absence of any violation history, is counterbalanced by the seriousness
of the hazard posed by the miner working alone in an area of loose ground, and by Original
Sixteen’s lack of any effort to comply with the standard. Accordingly, I find that the Secretary
has established that Original Sixteen displayed a high degree of negligence in violating the
standard, and aggravated conduct that constitutes unwarrantable failure.
E.

Order No. 8695849

Inspector Edminister issued 104(d)(1) Order No. 8695849 on September 18, 2012,
alleging a “significant and substantial” violation of section 57.3360 that was “reasonably likely”
to cause an injury that could reasonably be expected to be “fatal,” and was caused by Original
Sixteen’s “high” negligence and “unwarrantable failure” to comply with the standard.13 The
“Condition or Practice” is described as follows:
The ground supports used at the secondary escape along the 800-21 tunnel are not
being maintained to support the ground. There is a section near the entrance about
60 feet in that has collapsed due to old deteriorated timbers. The old stalls and
lagging was not being maintained in good condition which allowed the material
from the old upper stope above the escape way to collapse into the travel way.
There is loose unsupported ground along the back (roof) of the old stope which
13

30 C.F.R. § 57.3360 provides that “[g]round support shall be used where ground
conditions, or mining experience in similar ground conditions in the mine, indicate that it is
necessary. When ground support is necessary, the support system shall be designed, installed,
and maintained to control the ground in places where persons work or travel in performing their
assigned tasks. Damaged, loosened, or dislodged timber use[d] for ground support which creates
a hazard to persons shall be repaired or replaced prior to any work or travel in the affected area.”

38 FMSHRC Page 1485

would enter into the escape way that is not immediately obvious to persons
accessing the area. The unsupported ground in the stope area ranges up to about 3
x 2 feet thick. The miner felt the area was too unsafe to continue through the area
and stated that other work along the secondary escape was done about 2 weeks
ago by accessing through the secondary escape portal. The affected area at this
point is about 15 feet long. There is another stall and lagging along the rib just
beyond this point that is on the erg [sic] of failing. There is another section further
down the escape way that has unsupported ground directly over head in the
escape way. There is material that had previously fallen from the back (roof) at
this location. The loose deteriorating material (“serpentine slip,” steeply dipping
vertically above the travel way) is not supported nor miners protected from the
falling material. The miners stated that they did not want to scale down the loose
material due to it may cause additional roof fall, nor would barring be an option
due to the vibration could also cause the slip to give way. This area affected by
the slip is about 40 ft in length.
Standard 57.3360 was cited 1 time in two years at mine 0401299 (1 to the
operator, 0 to a contractor). This violation is an unwarrantable failure to comply
with a mandatory standard.
Exs. P-6A, P-6B, P-6G. The order was terminated when Original Sixteen scaled down the loose
material, installed additional lagging and stalls, and conducted a safety talk with the miners.
Ex. P-6H. On October 17, 2012, MSHA modified the order by deleting the following wording
from the “Condition or Practice” section:
There is another stall and lagging for another old stope just beyond this point that
is on the erg of failing. This condition was a factor that contributed to the issuance
of Imminent Danger Order No. 8695845 dated 09/18/2012. Therefore no
abatement time was set.
Ex. P-6G.
1. Fact of Violation
Original Sixteen argues that if the ground support conditions in the 21 Tunnel existed,
as cited, they would have been noted in Original Sixteen’s monthly examinations, and during
previous MSHA inspections. Resp’t Br. at 11-12, 14-15.
Edminister opined that section 57.3360 requires Original Sixteen to maintain ground
support in proper condition, and to support loose ground before miners can perform work in the
vicinity of inadequate support. Tr. 86-87. Upon entering the 21 Tunnel secondary escapeway
during the September inspection, Edminister observed two sections of ground support that had
collapsed, and noted another section that was on the verge of collapse. Tr. 87, 90, 285; Exs. P6I, P-6J, P-6O. He opined that one of the sections had failed because ground support stalls were
not being properly maintained. Tr. 91, 93; Ex. P-16 at 17. He testified that Reid Miller was
working where a rib had collapsed, and that he issued an imminent danger order and

38 FMSHRC Page 1486

discontinued the inspection out of concern for his own safety and that of the miners. Tr. 87-89;
Ex. P-16 at 33. According to him, Reid Miller stated that he, too, felt the 21 Tunnel to be too
unsafe for the inspection to continue. Tr. 88, 285; Ex. P-16 at 33. Edminister noted that a month
later the hazardous conditions had been abated and he continued farther into the 21 Tunnel,
where he observed a “seam of serpentine” overhead, indicating that the roof was unstable. Tr.
91-92; Exs. P-6K, P-6L, P-16 at 58-60. He testified that the miners abated the condition by
scaling down some of it, and installing stalls and lagging over the travelway to protect passers-by
from falling ground. Tr. 92-93; Exs. P-6M, P-6N. Edminister explained that based on these
observations, he surmised that Original Sixteen was in the habit of waiting until its ground
supports fail before maintaining or replacing them. Tr. 87.
Joseph Sauer testified that he accompanied Edminister during the inspection, that the
21 Tunnel is designated for use in an emergency, and that he participated in abating the hazards
cited by Edminister in the travelway. Tr. 484, 506. He explained that, in identifying loose
ground, he looks for evidence of stalls taking on weight, or splitting or rotting from age. Tr. 520.
He testified that he never saw the potential for a hazard in the 21 Tunnel, but noted that there was
a lot of material on the floor that he estimated to have had been there for 50 or 60 years. Tr. 486.
He also stated that miners clear a path through the travelway, as needed, by throwing material off
to the side. Tr. 519. In his opinion, the material in the travelway was “not necessarily something
that has collapsed due to bad ground,” but appeared to be lagging that “gave out.” Tr. 530-31.
Reid Miller testified with great difficulty, clearly carrying the weight of being questioned
by his father while under the expectation of being truthful and, in any event, supportive of his
father and the family business. Despite his apparent nervousness and conflicted responses,
however, Miller’s testimony essentially corroborated Edminister’s account of the hazards in the
21 Tunnel, and lent credence to Edminister’s contention that Miller had agreed that it was unsafe
to proceed with the inspection. See Tr. 393-94.
In crediting Edminister’s contention that he had observed two sections of failed ground
support and another close to collapsing, I find that Sauer’s and Reid Miller’s accounts of the 21
Tunnel’s condition fall short of mounting a successful challenge to the charges levied by the
Secretary. Furthermore, Original Sixteen’s own witness, Sauer, described old timber in the
escapeway that he estimated to be extremely old, as well as the mine’s common practice of
pitching material to the side to clear a pathway. The evidence lends some credence to the
suggestion that Original Sixteen maintains its ground support only after it fails, although that
conclusion remains in the realm of speculation. However, the record amply supports a
conclusion that the ground supports cited in the 21 Tunnel were deteriorated or otherwise
damaged and in need of maintenance or replacement. Accordingly, I find that Original Sixteen
violated the standard.
2.

Significant and Substantial

The fact of violation has been established, and I find that inadequately maintained ground
supports exposed miners to potential groundfalls. The focus then, is the third and fourth Mathies
criteria, i.e., whether the hazard was reasonably likely to result in an injury, and whether the
injury would be serious.

38 FMSHRC Page 1487

Since the 21 Tunnel is a secondary escapeway, I find that miners requiring access to the
travelway in an emergency situation, exposed to the impending threat of groundfalls, would be
reasonably likely to sustain crushing injuries and head trauma. Therefore, I find that the violation
was S&S.
3.

Negligence and Unwarrantable Failure

In arguing that Original Sixteen’s conduct was characterized by high negligence that rose
to the level of an unwarrantable failure, the Secretary asserts that the deteriorated condition of
the ground supports in the 21 Tunnel was open and obvious, that Original Sixteen had
knowledge of the hazard, and that no action was taken to address it over a period of four weeks.
Sec’y Br. at 17-20. Original Sixteen argues the contrary, that the ground supports were not
hazardous, and that MSHA had not cited these conditions previously. Resp’t Br. at 8-12, 14-15.
The evidence indicates that this violation was extensive and obvious because there were
two areas where a groundfall had occurred, and another where a groundfall was at risk of
occurring. Regarding notice and duration, I fully credit Edminister’s testimony that Reid Miller
told him that one of the ground failures had occurred four weeks prior to the inspection. While
Original Sixteen points out that MSHA had not identified or cited these ground support
deficiencies in the 21 Tunnel previously, the operator was fully aware of the age of the timbers
used in this secondary escapeway, and the previous groundfalls coupled with the miners’ practice
of pitching aside fallen material put Original Sixteen on notice that greater efforts were necessary
for compliance. As previously stated, the violation was very serious, in that it exposed miners to
head trauma and fatal crushing injuries. Furthermore, while Aguirre had been replacing old
timbers in the 21 Tunnel two weeks before the inspection, Original Sixteen failed to taken any
further remedial measures. Accordingly, I find that the Secretary has established that Original
Sixteen displayed a high degree of negligence in violating the standard, and aggravated conduct
that constitutes unwarrantable failure.

38 FMSHRC Page 1488

F.

Citation No. 8695846

Inspector Edminister issued 104(a) Citation No. 8695846 on September 18, 2012,
alleging a “significant and substantial” violation of section 57.11051 that was “reasonably
likely” to cause an injury that could reasonably be expected to be “fatal,” and was caused by
Original Sixteen’s “high” negligence.14 The “Condition or Practice” is described as follows:
The designated secondary escape at the 800-21 tunnel is not being maintained in
safe travelable condition. There is a section near the entrance about 60 feet in that
has collapsed. The old stalls and lagging was not being maintained in good
condition allowing the material from the old upper stope above the escape way to
collapse into the travel way. There is lose unsupported ground along the back
(roof) of the old stope. The unsupported ground in the stope area ranges up to
about 3 x 2 feet thick. The miner felt the area was too unsafe to continue through
the area and stated that other work along the secondary escape was done about 2
weeks ago by accessing through the secondary escape portal. The affected area at
this point is about 15 feet long. There is another stall and lagging along the rib
just beyond this point that is on the erg [sic] of failing. The entrance to the
secondary escape at the 800-21 tunnel is not barricaded or posted with a warning
sign. The tunnel is not being maintained in a safe travelable condition. There are
numerous locations throughout the secondary escape tunnel that present a tripping
hazard due to numerous hoses ranging up to about 3 inches in diameter crossing
the travel way. There are locations where timbers protrude across the travel way
with pot holes on each side that are covered with water creating additional
tripping hazards. Heading towards the exit of the secondary escape tunnel there
are even more tripping hazards due to the travel way not being maintained and
washed out from the mines drainage. There are large rocks and 2 x 12 planking

14

This citation was originally issued as a 104(d)(1) order withdrawing miners from all
underground areas of the Sixteen to One mine. By subsequent action on October 22, 2012,
MSHA modified the order to a 104(a) citation, and deleted the following wording from the
“Condition or Practice” section:
There is another stall and lagging for another old stope just beyond this point that
is on the erg of failing. This condition was a factor that contributed to the issuance
of Imminent Danger Order No. 8695845 dated 09/18/2012. Therefore no
abatement time was set. Standard 57.11051 was cited 2 times in two years at mine
0401299 (2 to the operator, 0 to a contractor). This violation is an unwarrantable
failure to comply with a mandatory standard.
Ex. P-7D.

38 FMSHRC Page 1489

crossing the escapeway with about a 12 inch clearing for the mines drainage. This
secondary escapeway is used for emergencies in the event of an accident.
Exs. P-7A, P-7B, P-7D, P-7E. The citation was terminated on October 18, 2012, when Original
Sixteen cleared the tripping hazards from the travelway, and a safety talk was conducted with the
miners. Ex. P-7C.
1.

Fact of Violation

The Secretary asserts that at the time of the inspection, Original Sixteen was in a
production mode and, therefore, required to have and maintain the 21 Tunnel secondary
escapeway; furthermore, he argues, Original Sixteen was required to maintain its secondary
escapeways in safe and travelable condition, regardless of whether the mine was engaged in
exploration.15 Sec’y Br. at 8-9. In response, Original Sixteen argues that the conditions cited
were not hazardous, and that the mine was in an exploration mode. Resp’t Br. at 12, 15.
Edminister testified that the 21 Tunnel was identified on the mine map and referred to by
the miners as a secondary escapeway. Tr. 281. He stated that he observed several tripping
hazards in the escapeway, including a 2ʹ to 3ʹ thick rock located in the middle of the travelway
(Ex. P-7G); an unsecured ladder resting against the rib (Ex. P-7H); uneven ground covered in
slippery, wet clay-like sediment (Exs. P-7H, P-7I, P-7K); old hoses or pipes laying in the
travelway (Ex. P-7H); at least two holes in the middle of the walking lane that were obscured by
standing water (Exs. P-7I, P-7K); uneven ground due to timber and channels that had been
created by running water (Ex. P-7L); and a pinch point in the walking lane that restricted miners’
passage to a narrow path between the rails and a pipe (Ex. P-7J). Tr. 94-101; Ex. P-16 at 58-60.
He also testified that he based this violation on the same ground conditions that he had cited
earlier, i.e., two sections of loose ground support that had already collapsed, and another section
that was on the verge of collapse. Tr. 94-95; see Exs. P-7M, P-7N, P-7O, P-16 at 32-33.
According to him, Michael Miller slipped while walking along the travelway during the
inspection. Tr. 293-94; Ex. P-16 at 56.
Michael Miller testified that he did not remember slipping in the 21 Tunnel during the
inspection. Tr. 555-56. Sauer testified that he did not find any of the conditions cited by
Edminister to be hazardous to an experienced miner. Tr. 480, 486-87. He also opined that the
significant amount of material strewn along the 21 Tunnel was from collapsed lagging along the
side of the travelway, not from an overhead groundfall. Tr. 486, 493. Sauer explained that the
mining process consists of rounds of drilling and blasting and that, in general, gold is not found
in every round, but tends to appear randomly in large pockets; if gold is found in sufficiently
large quantities, the miners notify Michael Miller, who then develops an extraction plan.
Tr.
507, 510-11. He stated that the last time Original Sixteen found gold was two years prior to the
2012 inspections. Tr. 489-90.

15

The Secretary’s arguments in their entirety were based on MSHA originally charging
Original Sixteen with an unwarrantable failure under a withdrawal order, and make no reference,
whatsoever, to MSHA’s modification of the order to a 104(a) citation.

38 FMSHRC Page 1490

I credit Edminister’s observations as to the hazardous conditions in the 21 Tunnel, and
that such conditions posed tripping hazards to passing miners. For the same reasons stated
earlier, I find that the ground supports in the 21 Tunnel were deteriorated or otherwise damaged
and in need of maintenance or replacement. Obviously, any miner requiring use of the 21 Tunnel
to exit the mine in an emergency situation, experienced or not, should not be subjected to
navigating an obstacle course. As noted earlier, irrespective of whether Original Sixteen was in a
production mode, it was required to maintain its active secondary escapeways safe and
travelable. Accordingly, I find that the Secretary has established a violation of section 57.11051.
2.

Significant and Substantial

The fact of violation has been established, and I find that inadequately maintained ground
supports in the 21 Tunnel secondary escapeway exposed miners to impending groundfalls, and
the debris in the walkway would likely result in slips, trips, and falls. The focus then, is the third
and fourth Mathies criteria, i.e., whether the hazards were reasonably likely to result in an injury,
and whether the injury would be serious.
Edminister opined that the risk of a groundfall, combined with the tripping hazard posed
by the large rock in the center of the escapeway, would likely subject miners to fatal crushing
injuries. Tr. 95. Additionally, he testified that miners travel the 21 Tunnel, at least, monthly in
order to perform examinations. Tr. 95. Original Sixteen confirmed that miners examine the 21
Tunnel, but argues that the cited conditions could not contribute to injury or death. Resp’t Br. at
15-16.
The record indicates that the 21 Tunnel secondary escapeway was used, at least, monthly
for examination purposes. I find that miners subjected to the impending threat of groundfalls,
whether from the roof or the lagging, combined with the slip, trip, and fall hazards in the
walkway, would be reasonably likely to sustain serious to fatal musculoskeletal and crushing
injuries. Therefore, I find that the violation was S&S.
3.

Negligence

The Secretary contends that the deteriorated condition of the ground supports and slip,
trip, and fall hazards were open and obvious. Sec’y Br. at 20-21. Conversely, Original Sixteen
argues that the ground supports were adequate, and that the 21 Tunnel escapeway did not pose
slip, trip, and fall hazards. Resp’t Br. at 15-16.
As noted earlier respecting Order No. 8695849, the record indicates that this violation
was extensive and obvious, given that loose, unsupported ground and fallen timber existed in
several locations, in addition to other slip, trip, and fall hazards that were dispersed throughout
the 21 Tunnel. I find that Original Sixteen had been aware of the ground failures for, at least,
four weeks, and while it had not been cited previously for these ground support and tripping
hazards in this travelway, the threat of groundfalls and the variety of slip and fall hazards
throughout it put the operator on notice that greater efforts were necessary for compliance.
Accordingly, I find that Original Sixteen was highly negligent in violating the standard.

38 FMSHRC Page 1491

G.

Citation No. 8695857

Inspector Edminister issued 104(a) Citation No. 8695857 on September 18, 2012,
alleging a violation of section 57.20011 that was “unlikely” to cause an injury that could
reasonably be expected to be “fatal,” and was caused by Original Sixteen’s “moderate”
negligence.16 The “Condition or Practice” is described as follows:
The area beyond the 800 Station is not barricaded or posted with a warning sign
to impede access. The area was deemed unsafe to enter by the miner due to the
area not being examined and may pose a danger. The area was open for travel and
was being used as a storage area. This condition exposed the miners entering into
the area to fatal type injuries in the unlikely event of an accident.
Standard 57.20011 was cited 1 time in two years at mine 0401299 (1 to the
operator, 0 to a contractor).
Ex. P-8A. The affected area was barricaded and a warning sign was posted. Ex. P-17 at 6, 8.
1.

Fact of Violation

Original Sixteen argues that ore cars stored in the area created a barrier, that a barricade
or warning sign was unnecessary and would only desensitize miners to legitimate safety
concerns, and that Edminister was wrong to have requested that Reid Miller examine the ground
in the cited area. Resp’t Br. at 17.
Edminister testified credibly that in response to questioning Reid Miller as to what
activities, if any, were conducted in a cut-out where ore cars were parked, Miller stated that the
area was out of service, that it was unsafe to enter because the ground had not been examined,
and that he, himself, refused to examine the area. Tr. 102-03, 265-66; Exs. P-8C, P-16 at 31.
Edminister stated that he did not see any hazards or evidence of previous groundfalls. Tr. 103,
268. Therefore, finding no reason for miners to be in the cited area, and observing no obvious
hazards, he opined that a groundfall would be unlikely to result in fatal crushing injuries. Tr.
126, 267.
Michael Miller testified that there were no hidden hazards in the cited area, and that the
only way to have determined whether hazards existed would have been to conduct an
examination. Tr. 556-57. I credit Edminister’s uncontradicted testimony that Reid Miller alerted
him to the danger of entering the unexamined area, and that were a groundfall to occur, it would
be unlikely to result in serious injuries, given the unlikelihood of miners entering the area. The
record establishes that the area was open to access, and that the mine cars did not create an

16

30 C.F.R. § 57.20011 provides that “[a]reas where health and safety hazards exist that
are not immediately obvious to employees shall be barricaded, or warning signs shall be posted
at all approaches. Warning signs shall be readily visible, legible, and display the nature of the
hazard and any protective action required.”

38 FMSHRC Page 1492

effective barrier or explicit warning to miners of the hazards posed by unexamined ground.
Accordingly, I find that the Secretary has established a violation section 57.20011.
2.

Negligence

Edminister opined that Original Sixteen’s negligence was moderate based on lack of any
open and obvious hazards in the cited area, and because Reid Miller was aware that the area had
not been examined. Tr. 126. Original Sixteen argues that experienced miners would know not to
enter this or other out-of-service areas without first examining them. Resp’t Br. at 17. Since Reid
Miller was a lead miner who knew that this area was unexamined, and because Original Sixteen
had not taken the area out of service by placing a barricade or posting warning signage, I find
that Original Sixteen was moderately negligent in violating the standard.
H.

Citation No. 8695859

Inspector Edminister issued 104(a) Citation No. 8695859 on September 18, 2012,
alleging a “significant and substantial” violation of section 57.3200 that was “reasonably likely”
to cause an injury that could reasonably be expected to result in “lost workdays or restricted
duty,” and was caused by Original Sixteen’s “moderate” negligence.
The “Condition or Practice” is described as follows:
Safe means of access is not being maintained at the 2nd Ore Chute along the 800
S[p]lit leading to the 848 Split. This is due to the Ore Chute being wedged open
with timbers and has loose unconsolidated material over head. There is a large
rock ranging about 8ʹʹ by 10ʹʹ by 12ʹʹ resting on top of the unconsolidated material
that would fall into the travel way. The large rock is about 9 ft up along the 7 ft
wide travel way. Miners access this area daily to the work heading. This condition
exposed the miner traveling in the area to serious type injuries in the event of an
accident.
Exs. P-9A, P-9B (October 22, 2012 modification charging a violation of section 57.3200). The
condition was abated by removing the rock and installing boards to keep unsecured material
from falling onto the travelway. Tr. 493-94; Ex. P-17 at 7.
1.

Fact of Violation

Original Sixteen contends that the rock situated in the chute was not hazardous because if
it were, it would have been noted by miners who regularly use the travelway, or cited by MSHA
during previous inspections. Resp’t Br. at 18.
Edminister testified that he observed an old ore chute elevated over a travelway, wedged
open by two timbers, containing a large rock resting on unconsolidated material. Tr. 127-28, 130;
Exs. P-9C, P-9D, P-16 at 32. He opined that the loose material and rock were angled directly
toward the center of the travelway. Tr. 134.

38 FMSHRC Page 1493

Michael Miller testified that the chute had been out of service, and that the rock posed
no danger of striking a miner because the design of the chute had been altered to prevent loose
ground from falling into the travelway where people walked. Tr. 558. Sauer testified that the
rock had been lodged in the chute for at least 10 years, and had never fallen. Tr. 493-94.
The record establishes that the travelway was regularly used by miners, that the ore
chute door was wedged open, and that the rock, resting on unconsolidated material, created a
groundfall hazard. Accordingly, I find that the Secretary has established a violation of section
57.3200.
2.

Significant and Substantial

The fact of violation has been established. The second criterion of the Mathies test has
been met, in that the large rock, resting on loose material, contributed to the danger of a
groundfall. Respecting the third and fourth Mathies criteria, the evidence establishes that, while
the chute had been out of service for several years, there was a reasonable likelihood that a
groundfall would result in musculoskeletal injuries, and those injuries, including lacerations,
contusions, and fractures were reasonably likely to be serious. Tr. 135. Therefore, I find that the
violation was S&S.
3.

Negligence

Original Sixteen argues that the hazard had not been cited previously by MSHA, and
Edminister opined that the miners may not have had actual knowledge that the condition posed
a hazard. Resp’t Br. at 18; Tr. 134. However, because the rock was situated on unconsolidated
material, and this condition had existed for at least 10 years without any action by Original
Sixteen to correct it, I find that Original Sixteen should have known that the condition was
hazardous and required attention. Therefore, I find that Original Sixteen was moderately
negligent in violating section 57.3200.
I.

Citation No. 8695860

Inspector Edminister issued 104(a) Citation No. 8695860 on September 19, 2012,
alleging a violation of section 57.4560(c) that was “unlikely” to cause an injury that could
reasonably be expected to be “fatal,” and was caused by Original Sixteen’s “low” negligence.17
The “Condition or Practice” is described as follows:
The area within 200 feet inside the mine 21 Tunnel Secondary escape portal is not
provided with a fire suppression system, other than fire extinguishers and water
hoses, capable of controlling a fire in its early stages; or covered with shotcrete,
gunite, or other material with equivalent fire protection characteristics; or coated
17

30 C.F.R. § 57.4560(c) provides that the area “at least 200 feet inside the mine portal
or collar timber used for ground support in intake openings and in exhaust openings that are
designated as escapeways shall be . . . (c) [c]oated with fire-retardant paint or other material to
reduce its flame spread rating to 25 or less and maintained in that condition.”

38 FMSHRC Page 1494

with fire-retardant paint or other material to reduce its flame spread rating to 25 or
less and maintained in that condition. The portal is constructed with timber stalls
and 2ʹʹ x 12ʹʹ lagging. This condition exposed the miners underground to fatal type
injuries in the unlikely event of a fire.
Standard 57.4560(c) was cited 1 time in two years at mine 0401299 (1 to the
operator, 0 to a contractor).
Ex. P-10A.
1.

Fact of Violation

At hearing, Original Sixteen stipulated to the fact of violation, and limited its contest to
the fatality allegation. Tr. 261. Original Sixteen’s arguments, however, relate to the fact of
violation, rather than the gravity designation. See Resp’t Br. at 18-19.
2.

Gravity

Edminister testified that section 57.4560(c) requires Original Sixteen to apply fire
resistant coatings to timber stalls and lagging in intake or exhaust openings that are designated
secondary escapeways and lack fire suppression systems. Tr. 136. Addressing the gravity of the
violation, he opined that the timbers in the 21 Tunnel secondary escapeway were very dry, and
that if a fire were to occur and smoke entered the mine, miners could suffocate from smoke
inhalation, but could escape if they overcame panic and were wearing self-rescuers.
Tr. 136, 138, 220-21.
Michael Miller testified that even if the secondary escapeway were filled with smoke, the
primary escapeway would be available for use. Tr. 558-59. Specifically, he testified that the
primary escapeway is comprised of very hard rock and contains an insubstantial amount of
timbers; therefore, he opined, miners would be able to exit the mine through the primary
escapeway in the event of an emergency in the secondary escapeway. Tr. 558-59.
The evidence makes clear that Original Sixteen was required to maintain in safe and
travelable condition its active secondary escapeways. In the event of a fire, smoke inhalation
would reasonably be expected to be fatal, were miners to access the 21 Tunnel to exit the mine
without benefit of self-rescuers. Accordingly, I find that the Secretary has proven the gravity
designation that the violation could result in a fatality, as charged by the citation.

38 FMSHRC Page 1495

J.

Citation No. 8695861

Inspector Edminister issued 104(a) Citation No. 8695861 on September 19, 2012,
alleging a violation of section 57.12023 that was “unlikely” to cause an injury that could
reasonably be expected to result in “lost workdays or restricted duty,” and was caused by
Original Sixteen’s “moderate” negligence.18 The “Condition or Practice” is described as follows:
The welding lead terminals on the Miller Bobcat 225G welder located behind the
lower shop was not provided with either a guard or insulating covers. The welder
is not in a regular travel way, and no other items were stored in the immediate
area. The welder is used as a back up as needed for welding repairs. The welder
was not in use at the time of the inspection. This exposes miners to serious shock
and burn related injuries if contacting the unprotected terminals in the event of an
accident.
Ex. P-11A. The citation was terminated after the lead terminals were guarded.
1.

Fact of Violation

Original Sixteen contends that this condition should have been cited, if at all, as a failure
to tag-out equipment, so that it would not have been forced to spend time and money repairing
equipment that it does not use, and that miners were protected from the terminals by the location
of the welder. Resp’t Br. at 19.
Edminister testified that section 57.12023 requires Original Sixteen to guard or insulate
welding lead terminals that are not otherwise protected from contact by being situated out of
reach of persons traveling or working around the equipment. Tr. 140-41. He explained that the
welding lead terminals are electrical connections between the stinger and the lug nuts on the
welder, that the terminals were not insulated or guarded, that the welder was not tagged out of
service, and that he could reach the terminals from his position in the travelway. Tr. 142-144;
Exs. P-11B, P-16 at 36. He opined that the welder had been used since the leads were attached to
the welder, and that it was designated as a back-up unit. Tr. 144-45; Ex. P-11B. Furthermore,
Edminister testified that contact with the terminals could be reasonably expected to result in
injuries including shocks and burns. Tr. 147. He also stated that in determining that the risk of
injury was unlikely, he relied on statements by Reid Miller or Michael Miller that the welder was
designated for back-up use only, and his observation that miners only infrequently entered the
storage area. Tr. 144-47.
Michael Miller testified credibly that the battery had been removed from the welder, and
that the welder was located in a heavy-duty, long-term storage area with very limited space. Tr.
560-61.
I find that the welder was in service as a back-up unit and, although the unguarded and
uninsulated terminals were within reach of passing miners, they posed no shock or burn hazard
18

30 C.F.R. § 57.12023 provides that “[e]lectrical connections and resistor grids that are
difficult or impractical to insulate shall be guarded, unless protection is provided by location.”

38 FMSHRC Page 1496

because the battery had been removed. However, replacement of the battery, no matter how
infrequently, subjected miners to the exposed terminals and, therefore, electrical shock and burn
injuries. While the citation could have been issued for failure to lock- and tag-out the equipment,
the Secretary has broad discretion in identifying the standard by which he charges a violation.
Moreover, Original Sixteen had the option of removing the welder from service rather than
repairing it. See E. Assoc. Coal Corp., 1 FMSHRC 1473-74 (Oct. 1979) (holding that cited
equipment may either be repaired or withdrawn from service). Accordingly, I find that the
Secretary has established a violation of section 57.12023.
2.

Negligence

Edminister testified that Original Sixteen had not been cited previously for failure to
guard or insulate the welder under section 57.12023, that there was no evidence that a guard had
ever been in place, and that the welder was being used infrequently for back-up. Tr. 147-48. I
credit Michael Miller’s testimony that he had a good-faith belief that he had complied with the
standard by removing the battery. However, given that the welder was in service for back-up use,
it posed a safety hazard. Therefore, I find that Original Sixteen was moderately negligent in
violating the standard.
K.

Citation No. 8695863

Inspector Edminister issued 104(a) Citation No. 8695863 on September 19, 2012,
alleging a violation of section 57.4131(c) that was “unlikely” to cause an injury that could
reasonably be expected to result in “lost workdays or restricted duty,” and was caused by
Original Sixteen’s “moderate” negligence.19 The “Condition or Practice” is described as follows:
The area around the Upper Bench mine opening used for ventilation is not being
kept clear of dry vegetation within 25 feet of the opening. The area within 25 ft of
the opening has tall dry vegetation ranging up to 4 ft tall. This area is accessed
annually for the required fan maintenance inspections. This condition exposes
miners working underground to smoke related injuries in the unlikely event of a
fire.
Ex. P-12A.
1.

Fact of Violation

In support of affirming the violation, the Secretary argues that there is no evidence that
the blockage of the Upper Bench opening was air- or smoke-tight. Sec’y Br. at 26-27, 30.
Original Sixteen counters that section 57.4131(c) applies only to openings that affect ventilation.
Resp’t Br. at 19-20.
Edminister testified that he observed dry vegetation within 25 feet of the Upper Bench
mine opening, and that an electrical box was located near the opening. Tr. 149; Exs. P-12B, P19

30 C.F.R. § 57.4131(c) provides that “[d]ry vegetation shall not be permitted within 25
feet of mine openings.”

38 FMSHRC Page 1497

12C, P-16 at 43, R-1, R-2, R-3. He opined that the standard does not require that the opening
affect ventilation. Tr. 199. Despite the location of the electrical box, he stated that he did not find
an ignition or heat source in the vicinity of the Upper Bench opening. Tr. 212.
Michael Miller testified that the Upper Bench area had one of seven mine openings listed
in Original Sixteen’s Compliance Book. Tr. 599; Exs. P-14C, P-14D. According to him, the
Upper Bench opening has been completely blocked off by a natural cave-in since 1978 or 1979,
and there was “no possibility of air to get from the outside through the cave-in.” Tr. 601. He
stated that in the 1970s the lessee of the Upper Bench had tried to get air into the opening by
installing a fan, but failed, because it was totally blocked. Tr. 602. He further stated that the
Upper Bench opening had never been used for ventilation, and that he had informed Edminister
of this fact. Tr. 564-65, 600. He also stated that he offered to perform a diagnostic test to
determine whether air was flowing into or out of the opening, but Edminister declined,
responding that the only relevant question was whether there was an opening. Tr. 564-65.
I fully credit Michael Miller’s testimony that there had been a cave-in which completely
sealed-off what once had been an opening into the mine. Aside from Edminister’s conclusory
testimony that the Upper Bench has an opening, the Secretary merely relies upon Original
Sixteen’s Compliance Book to support this allegation. However, as discussed more fully below,
the Compliance Book is demonstrably inaccurate. For lack of supporting evidence, I find that the
Secretary has not carried his burden of demonstrating that there was, in fact, a mine opening at
the Upper Bench requiring a 25 foot clearance, and proving a violation of section 57.4131(c).
Therefore, I vacate the citation.

38 FMSHRC Page 1498

L.

Citation No. 8613455

Inspector Gulati issued 104(a) Citation No. 8613455 on October 11, 2012, alleging a
violation of section 104(d)(1) of the Act that had “no likelihood” of causing an injury that could
reasonably be expected to result in “no lost workdays,” and was caused by Original Sixteen’s
“high” negligence.20 The “Condition or Practice” is described as follows:
The mine operator is continuing to operate the mine underground even though a
104(d)(1) order No. 8695849 for non compliance was issued was on September
18, 2012. The order required the mine operator or his agent to withdraw all
persons from all underground areas of the mine, except those persons required for
elimination of the conditions described in the order. The mine was engaged in
production and other unrelated activities in areas outside the area cited in the
order. The President of the company said that they have been mining a heading on
the 816 level and had blasted five times (each round about 4 feet). The condition
has not been designated “significant and substantial,” because the conduct
violated a provision of the Mine Act, rather than a mandatory safety or health
standard.
Ex. P-3A.
1.

Fact of Violation

According to the Secretary, because Original Sixteen was in a production mode and
required by section 57.11050 to have a secondary escapeway, Order No. 8695849, though
restricted to the 21 Tunnel, effectively withdrew miners from all underground areas. Sec’y Br. at
9, 13, 14. The Secretary also contends that withdrawal orders can only be lifted by inspection
confirming that underlying conditions have been abated. Sec’y Br. at 14.

20

Section 104(d)(1) of the Act, 30 U.S.C. § 814(d)(1), provides, in pertinent part, that:

If . . . an authorized representative of the Secretary finds that there has been a
violation of any mandatory health or safety standard, and if he also finds that . . .
such violation is of such nature as could significantly and substantially contribute
to the cause and effect of a coal or other mine safety or health hazard, and if he
finds such violation to be caused by an unwarrantable failure of such operator to
comply with such mandatory health or safety standards, he shall include such
finding in any citation . . . . If . . . an authorized representative of the Secretary
finds another violation of any mandatory health or safety standard and finds such
violation to be also caused by an unwarrantable failure of such operator to so
comply, he shall forthwith issue an order requiring the operator to cause all
persons in the area affected by such violation, except those persons referred to in
subsection (c) to be withdrawn from, and to be prohibited from entering, such
area until an authorized representative of the Secretary determines that such
violation has been abated.

38 FMSHRC Page 1499

Original Sixteen argues, conversely, that the mine was in an exploration mode, requiring
no secondary escapeway, and that it was not working while under a withdrawal order because
Randy Cardwell, a conference and litigation representative in MSHA’s Vacaville field office,
had advised Original Sixteen by phone that the withdrawal order was lifted. Resp’t Br. at 8-12.
Gulati testified that section 104(d)(1) of the Act required Original Sixteen to withdraw all
miners from all underground areas of the mine, except for those required to abate the conditions
identified in the order. Tr. 332-33, 339. He stated that Michael Miller had told him during the
pre-inspection conference that they had been mining at the 816 heading, that they had blasted
one round the day before, and four rounds the week before inspection. Tr. 329-30; Ex. P-17 at 3,
6. He testified that each blast advanced the face of the tunnel four feet and, in his opinion, there
was no possibility that the blasting was related to abatement of any outstanding withdrawal
order. Tr. 330-33. Gulati stated that Michael Miller told him that he had called MSHA’s
Vacaville field office, and been advised that the withdrawal order had been lifted. Tr. 349; Ex.
P-17 at 6-7. Gulati also testified that there was no written indication of Miller’s contention, and
that MSHA’s policy is to lift withdrawal orders in writing, rather than over the telephone. Tr.
355, 358. Inspector David Blankenship testified that he was also present for the pre-inspection
conference, and that he heard Miller state that they had been blasting during the preceding week.
Tr. 363-64.
Edminister opined that while Order No. 8695849, on its face, withdrew miners from the
21 Tunnel only, it had the effect of withdrawing them from all underground areas of Sixteen to
One because the mine was in a production mode, requiring a secondary escapeway. Tr. 89-90.
Aguirre testified that the last time he had engaged in blasting was approximately 2010,
that he imagined that there was blasting in 2012 but he did not know by whom, that he did not
know whether any blasting had been performed to advance the face, and that he did not
remember being told that the mine was under a withdrawal order. Tr. 455, 461, 463. Sauer
testified that sometime in October 2012, Michael Miller directed him to drill and blast in the 161 shaft in order to explore for gold. Tr. 489. He also stated that he did not recall being put on
notice that the mine was under withdrawal orders or what the miners were required to do in light
of them. Tr. 528-29. Michael Miller testified that he received a phone call from CLR Cardwell
stating that “Order 8613455 was lifted.” Tr. 550.
At the time of Gulati’s inspection, the mine’s only two secondary escapeways, the 600
and 1000 level travelway and the 21 Tunnel, had been taken out of service. The 600 and 1000
level escapeway was taken out of service to terminate Citation No. 8612841; the 21 Tunnel was,
apparently, under two withdrawal orders: Order No. 8695849 withdrew miners from the 21
Tunnel only; Order No. 8695846 withdrew miners from all underground areas of the mine based
on a determination that Original Sixteen was operating in a production mode without a
mandatory secondary escapeway in service. During the pre-inspection conference, Gulati was
advised that mining had been taking place in the 816 heading. Interestingly, following the
Secretary’s theory that Original Sixteen was producing rather than exploring, it is curious that
Gulati did not cite the operator for failure to have a secondary escapeway in service under
section 57.11050. Even more puzzling is Gulati’s failure to cite Original Sixteen for working in
the face of withdrawal Order No. 8695846, the order affecting the entire underground mine.

38 FMSHRC Page 1500

Here, the Secretary is advancing an expansive construction of 21 Tunnel-specific Order No.
8695849 to cover a scenario where work was being performed elsewhere underground.
Evidently, however, there was activity going on behind the scenes at MSHA respecting Order
No. 8695846, which provides, at least, one plausible explanation for Gulati’s election not to cite
that order.
Michael Miller contends that Cardwell had advised him that a withdrawal order had been
lifted. Gulati’s testimony, intended to cast doubt on this contention, was that MSHA lifts
withdrawal orders in writing, rather than telephonically. Less than two weeks after Gulati’s
inspection, however, MSHA modified withdrawal Order No. 8695846 to a 104(a) citation. When
considering that action, in conjunction with Gulati’s election to cite Original Sixteen for
violating the withdrawal order that was restricted to an area other than where the miners were
actually working, Miller’s contention rings true. Miller’s obvious misidentification of the order
number, as 8613455, in no way diminishes the credibility of his testimony. The evidence as a
whole makes it likely that MSHA had already decided to lift withdrawal Order No. 8695846 at
the time of Gulati’s inspection on October 11, that Gulati was aware of this fact, and that the
paperwork, completed on October 22, was a mere formality. Therefore, having found that no
mining was taking place in the 21 Tunnel, as prohibited by cited withdrawal Order No. 8695849,
I find that the Secretary has not established that Original Sixteen was operating in the face of that
withdrawal order in violation of section 104(d)(1) of the Act.
M.

Citation No. 8613452

Inspector Gulati issued 104(a) Citation No. 8613452 on October 10, 2012, alleging a
violation of section 57.14100(b) that was “unlikely” to cause an injury that could reasonably be
expected to result in “permanently disabling” injuries, and was caused by Original Sixteen’s
“moderate” negligence.21 The “Condition or Practice” is described as follows:
It is mandatory 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. This was not done for the 2 ton electric hoist (located in the 800 station),
in that the safety latch was missing from the hook. The purpose of the latch is that
it retains slings or chains under slack conditions. This defect affected safety, in
that, an inadvertent detachment of slack sling or a load from the hook could result
in serious injuries to the miners in the vicinity. According to President and miner,
the hoist had not been used for about 7 years. This was neither taken out of
service, nor tagged to prohibit further use and was connected to power supply.
The miner said that he did not notice it, because the hoist was not in operation.

21

30 C.F.R. § 57.14100(b) provides that “[d]efects on any equipment, machinery, and
tools that affect safety shall be corrected in a timely manner to prevent the creation of a hazard to
persons.”

38 FMSHRC Page 1501

Standard 57.14100b was cited 1 time in two years at mine 0401299 (1 to the
operator, 0 to a contractor).
Ex. P-13A. The citation was terminated on October 15 after a safety clip was installed.
Ex. P-13C.
1.

Fact of Violation

Original Sixteen argues that its window of opportunity to correct the defect in a “timely
manner” had not elapsed at the time of inspection, and that it should have been cited, if at all, for
a failure to lock- and tag-out the hoist, because compliance with section 57.14100(b) required it
to undergo costly repairs to abate the citation. Resp’t Br. at 20. It further argues that the hoist
was tied behind a wooden barrier until the inspector entered the area, and that the barrier to entry
into the abandoned workings extended into the “hoisting area.” Resp’t Br. at 20.
Gulati testified that the standard requires Original Sixteen to repair equipment defects or
withdraw defective equipment from service through lock- and tag-out procedures. Tr. 320-21.
Gulati stated that in a workstation adjacent to an inclined shaft that had been barricaded for
several years, he observed a hook connected to a two-ton hoist, which was plugged into a power
supply. Tr. 320-23, 343; Ex. P-13D. He stated that he did not observe evidence that the hoist was
barricaded or tagged out of service, or that it had been recently operated, but he observed that the
hook lacked a safety clasp, i.e., a latch bridging the hook’s opening. Tr. 321-23. The absence of
the clasp, he explained, rendered the hook defective, because a rope or sling gone slack during
lifting would be at risk of inadvertent slippage from the hook. Tr. 321. If a two-ton load were to
detach from the hook, he testified, such weight would be reasonably expected to cause serious
musculoskeletal crushing injury to a nearby miner’s feet. Tr. 324-25. Such injury would be
unlikely to occur, he concluded, because Michael Miller had represented to him, and Gulati
agreed based on the condition of the hoist’s chain, that the hoist had not been used for a long
period of time. Tr. 323-24.
Michael Miller testified that he did not challenge Gulati’s observations, and agreed that
the hook lacked a safety clasp. Tr. 578-80. However, he opined, Original Sixteen should have
been cited for failing to lock- and tag-out the hoist, if at all, since section 57.14100(b) allows for
repair of defects before equipment is put back in service. Tr. 578-80. Miller stated that the safety
clasp had been missing for “a while,” and contended that there was no electric power in the hoist
area, and that the hoist was off to the side of the travelway. Tr. 577, 579-80.
The record establishes that the missing safety clasp was a defect affecting safety, that the
hoist was not barricaded or tagged out of service, and that the absence of the safety clasp posed a
risk of inadvertent detachment of a heavy load, creating a crushing hazard to nearby miners.
Regarding whether Original Sixteen failed to correct the safety defect in a timely manner, the
evidence supports a finding that the incline shaft had not been used for several years, and that the
hoist had been used to perform work related to the shaft. Therefore, I find that the safety defect
had existed, at least, for several years before the 2012 inspection. As stated previously, the
Secretary cited Original Sixteen within its discretion, and nothing prevented the operator from
abating the violation by removing the hoist from service, rather than repairing it. Accordingly, I

38 FMSHRC Page 1502

find that the safety defect was not corrected in a timely manner, and that the Secretary has
established a violation of section 57.14100(b).
2.

Negligence

Gulati opined that Original Sixteen’s negligence was moderate because the hoist was in
an open and obvious location, although not in an active heading. Tr. 325, 346. Original Sixteen
offered no countervailing evidence regarding negligence. In light of the evidence that the
violation had existed for several years and was open and obvious, I conclude that Original
Sixteen was moderately negligent in violating the standard.
N.

Citation No. 8695892

Inspector Edminister issued 104(a) Citation No. 8695892 on October 18, 2012, alleging a
violation of section 57.8520(b)(8) that had “no likelihood” of causing an injury that could
reasonably be expected to result in “no lost workdays,” and was caused by Original Sixteen’s
“moderate” negligence.22 The “Condition or Practice” is described as follows:
The provided plan of the mine ventilation system did not include the location of
known openings adjacent to the mine. Revisions of the system shall be noted and
updated at least annually. The Ventilation Plan/Mine Map and revisions thereto
shall be submitted to the District Manager for review and comments.
Ex. P-14A. The citation was terminated on November 2 based upon submission of a revised
Ventilation Plan showing changes to the mine’s ventilation network. Ex. P-14B.
1.

Fact of Violation

The Secretary argues that the list of mine openings in the Compliance Book did not
satisfy the standard, and that there is no evidence that the blockage in the Upper Bench opening
was air- or smoke-tight. Sec’y Br. at 30. Original Sixteen contends that the standard only
requires openings affecting ventilation to be depicted on the mine map and, therefore, only the
primary escapeway and the 21 Tunnel were needed in the Ventilation Plan. Resp’t Br. at 21.
Edminister testified that the standard requires that mine openings be identified on the
mine map, or depicted through a schematic or series of schematics that are correlated to the map.
Tr. 196, 200. He asserted that Michael Miller told him that there were seven openings to the
mine that provided ventilation, each of which were listed as mine openings in a hand-written
addendum to Original Sixteen’s Compliance Book and that, depending on barometric pressure,
the air flow through those openings changes. Tr. 152, 198-99; Exs. P-14C, P-14D, P-14E, P-14F,
22

30 C.F.R. § 57.8520(b)(8) provides that “[a] plan of the mine ventilation system shall
be set out by the operator in written form . . . . The plan shall, where applicable, contain the
following: . . . (b) The current mine map or schematic or series of mine maps or schematics of an
appropriate scale, not greater than five hundred feet to the inch, showing: (8) Locations of known
underground mine openings adjacent to the mine.”

38 FMSHRC Page 1503

P-16 at 67. He explained that even if an opening does not affect ventilation, it is required to be
depicted on the map so that mine openings are easily identifiable in the event of an emergency.
Tr. 199. Edminister also contended that only the primary portal and the 21 Tunnel secondary
escapeway were depicted on the mine map, and that he cited Original Sixteen for a paperwork
violation only, because those locations were not depicted on the map as mine openings. Tr. 15657; Exs. P-14H, P-14I. He also testified that, in hindsight, the gravity of the violation was more
accurately “unlikely” to cause an injury that could reasonably be expected to be “fatal,” because
inadequately documented mine openings would not be inspected for evidence of collapse, and
pose some likelihood of exposing miners working underground to asphyxiation. Tr. 157-58.
Michael Miller testified, in essence, that rather than cluttering the mine map with all
seven openings, Original Sixteen diagrammed the openings, which satisfied section
57.8520(b)(8). Tr. 583, 589-90. He also explained that those seven openings had been used for
ventilation at various times up until 2000, when the primary escapeway and the 21 Tunnel
secondary escapeway, exclusively, became Sixteen to One’s ventilation system. Tr. 588-89.
Miller did acknowledge, however, that the openings listed in the Compliance Book were not
accurate, and identified one of them as the Upper Bench opening at issue in Citation No.
8695863; he also conceded that the schematics were not drawn to scale. Tr. 600-03.
By Original Sixteen’s own account, the mine openings listed in the Compliance Book
were inaccurate and the schematics were not to scale; at least one opening, at the Upper Bench,
was completely sealed and, thus, no longer an “opening.” In accordance with the plain language
of the standard, I find that neither the mine map nor the Compliance Book satisfied the
requirements of the standard. Despite these inaccuracies, I find no reason to escalate the level of
gravity charged by the citation beyond a paperwork violation because Original Sixteen’s
Compliance Book, at the very least, included, and put MSHA on notice of, all operative mine
openings. Accordingly, the Secretary has established a violation of section 57.8520(b)(8).
2.

Negligence

Edminister opined that Original Sixteen’s negligence was moderate because the
deficiencies in the mine map had not been cited previously by MSHA. Tr. 159. Michael Miller
testified credibly that Original Sixteen did not knowingly violate this standard or omit the
openings from the mine map in order to avoid inspection requirements. Tr. 582. Notwithstanding
Original Sixteen’s intent, I find that it was moderately negligent in violating the standard because
it knew or should have known the requirements for a compliant ventilation plan, that the mine
map entries were incomplete, and that the schematics in the Compliance Book were inaccurate
and not to scale.
IV.

PENALTIES

While the Secretary has proposed civil penalties totaling $7,843.00, the Judge must
independently determine the appropriate assessment by proper consideration of the six penalty
criteria set forth in section 110(i) of the Act, 30 U.S.C. § 820(i). See Sellersburg Co.,
5
FMSHRC 287, 291-92 (Mar. 1983), aff’d 736 F.2d 1147 (7th Cir. 1984).

38 FMSHRC Page 1504

Applying the penalty criteria, and based upon a review of MSHA’s online records, I find
that Original Sixteen is a very small operator, only employing a skeletal crew of three miners in
addition to the owner/operator, with an overall history of violations that is not an aggravating
factor in assessing appropriate penalties. I also find that Original Sixteen generally demonstrated
good faith in achieving rapid compliance after notice of the violations. Original Sixteen asserts
that it is “broke.” Resp’t Br. at 10. The Commission has held that the mine operator has the
burden of proving that the proposed penalty will affect its ability to continue in business.
Sellersburg, 5 FMSHRC at 294 (citing Buffalo Mining Co., 2 IMBA 226, 247-48 (Sept. 1973)).
As has been noted in an earlier Original Sixteen decision, the operator’s failure to submit an
audited financial report to substantiate its contention provides an insufficient basis for an
inability-to-pay defense. 36 FMSHRC at 2251. Without proof of Original Sixteen’s financial
status, I find that the proposed penalties will not affect Original Sixteen’s ability to continue in
business.
The remaining criteria involve consideration of the gravity of the violations, and Original
Sixteen’s negligence in committing them. These factors have been discussed fully, respecting
each violation. Therefore, considering my findings as to the six penalty criteria, the penalties are
set forth below.
A.

Citation No. 8612839

It has been established that this violation of section 57.3200 was unlikely to cause an
injury that could reasonably be expected to be fatal, that Original Sixteen was moderately
negligent, and that it was timely abated. Therefore, I find that a penalty of $100.00, as proposed
by the Secretary, is appropriate.
B.

Citation No. 8612841

It has been established that this violation of section 57.11051 was unlikely to cause an
injury that could reasonably be expected to be fatal, that Original Sixteen was moderately
negligent, and that it was timely abated. Therefore, I find that a penalty of $100.00, as proposed
by the Secretary, is appropriate.
C.

Citation No. 8695844

It has been established that this S&S violation of section 57.11051 was reasonably likely
to cause an injury that could reasonably be expected to be fatal, that it was caused by Original
Sixteen’s high negligence and unwarrantable failure to comply with the standard, and that it was
timely abated. Therefore, I find that a penalty of $2,000.00, as proposed by the Secretary as the
statutory minimum, is appropriate.
D.

Order No. 8695848

It has been established that this S&S violation of section 57.18025 was reasonably likely
to cause an injury that could reasonably be expected to be fatal, that it was caused by Original
Sixteen’s high negligence and unwarrantable failure to comply with the standard, and that it was

38 FMSHRC Page 1505

timely abated. Therefore, I find that a penalty of $2,000.00, as proposed by the Secretary as the
statutory minimum, is appropriate.
E.

Order No. 8695849

It has been established that this S&S violation of section 57.3360 was reasonably likely
to cause an injury that could reasonably be expected to be fatal, that it was caused by Original
Sixteen’s high negligence and unwarrantable failure to comply with the standard, and that it was
timely abated. Therefore, I find that a penalty of $2,000.00, as proposed by the Secretary as the
statutory minimum, is appropriate.
F.

Citation No. 8695846

It has been established that this S&S violation of section 57.11051 was reasonably likely
to cause an injury that could reasonably be expected to be fatal, that it was caused by Original
Sixteen’s high negligence, and that it was timely abated. Based on these factors, and considering
the operator’s small size, I find that a penalty of $500.00 is appropriate.
G.

Citation No. 8695857

It has been established that this violation of section 57.20011 was unlikely to cause an
injury that could reasonably be expected to be fatal, that it was caused by Original Sixteen’s
moderate negligence, and that it was timely abated. Therefore, I find that a penalty of $100.00, as
proposed by the Secretary, is appropriate.
H.

Citation No. 8695859

It has been established that this S&S violation of section 57.3200 was reasonably likely
to cause an injury that could reasonably be expected to result in lost workdays or restricted duty,
that it was caused by Original Sixteen’s moderate negligence, and that it was timely abated.
Therefore, I find that a penalty of $100.00, as proposed by the Secretary, is appropriate.
I.

Citation No. 8695860

It has been established that this violation of section 57.4560(c) was unlikely to cause an
injury that could reasonably be expected to be fatal, that it was caused by Original Sixteen’s low
negligence, and that it was timely abated. Based on these factors, and considering the operator’s
small size, I find that a penalty of $100.00 is appropriate.
J.

Citation No. 8695861

It has been established that this violation of section 57.12023 was unlikely to cause an
injury that could reasonably be expected to result in lost workdays or restricted duty, that it was
caused by Original Sixteen’s moderate negligence, and that it was timely abated. Therefore, I
find that a penalty of $100.00, as proposed by the Secretary, is appropriate.

38 FMSHRC Page 1506

K.

Citation No. 8695863

The Secretary has failed to establish a violation of section 57.4131(c). Therefore, I
VACATE this citation.
L.

Citation No. 8613455

The Secretary has failed to establish a violation of section 104(d)(1) of the Act.
Therefore, I VACATE this citation.
M.

Citation No. 8613452

It has been established that this violation of section 57.14100(b) was unlikely to cause an
injury that could reasonably be expected to result in permanently disabling injuries, that it was
caused by Original Sixteen’s moderate negligence, and that it was timely abated. Based on these
factors, and considering the operator’s small size, I find that a penalty of $100.00 is appropriate.
N.

Citation No. 8695892

It has been established that this violation of section 57.8520(b)(8) had no likelihood of
causing an injury that could reasonably be expected to result in no lost workdays, that it was
caused by Original Sixteen’s moderate negligence, and that it was timely abated. Therefore, I
find that a penalty of $100.00, as proposed by the Secretary, is appropriate.
V.

APPROVAL OF SETTLEMENT

The parties have filed an Unopposed Motion to Approve Partial Settlement respecting 15
of the 29 citations/orders involved in these dockets. A reduction in penalty from $2,298.00 to
$1,199.00 is proposed.23 The citations and orders, initial assessments, and proposed
settlement amounts are as follows:
Initial
Proposed
Docket No.
Citation/Order No. Assessment
Settlement
WEST 2013-323-M

8613451
8695841
8695850
8695851
8695852
8695853
8695854
8695855
8695856

23

$100.00
$100.00
$100.00
$243.00
$243.00
$100.00
$100.00
$243.00
$100.00

$60.00
$0.00
$60.00
$200.00
$200.00
$100.00
$0.00
$0.00
$100.00

Corrections made to the Motion for the Initial Assessment and Proposed Settlement
amounts for Citation No. 8695856 have adjusted the subtotals for Docket No. WEST 2013-323M, and the grand totals for all three dockets. See Penalty Petition.

38 FMSHRC Page 1507

WEST 2013-365-M

WEST 2013-486-M

8695858
8695862
SUBTOTAL:
8695896
8695897
8695898
SUBTOTAL:

$243.00
$112.00
$1,684.00
$207.00
$100.00
$100.00
$407.00

$100.00
$112.00
$932.00
$207.00
$0.00
$60.00
$267.00

8695895
SUBTOTAL:
TOTAL:

$207.00
$207.00
$2,298.00

$0.00
$0.00
$1,199.00

I have considered the representations and documentation submitted in these matters under
section 110(k) of the Act, and I conclude that the proffered settlement is appropriate under
section 110(i) of the Act.
ORDER
WHEREFORE, it is ORDERED that Citation Nos. 8613455, 8695841, 8695854,
8695855, 8695897, 8695895 and 8695863 are VACATED.
It is further ORDERED that Citation Nos. 8612839, 8612841, 8613452, 8695844,
8695846, 8695853, 8695856, 8695857, 8695859, 8695860, 8695861, 8695862 and 8695892; and
Order Nos. 8695848 and 8695849 are AFFIRMED, as issued.
It is further ORDERED that the Secretary MODIFY the following citations as follows:
the degree of negligence in Citation No. 8695850 to “none” and Citation Nos. 8695851 and
8695852 to “low;” the level of gravity in Citation Nos. 8613451 and 8695858 to remove the
“significant and substantial” designation, and Citation No. 8695898 to “lost workdays or
restricted duty;” and Citation No. 8695896 to incorporate the “Condition or Practice” language
of Citation No. 8695897; and that these citation are AFFIRMED, as modified.
It is further ORDERED that Original Sixteen to One Mine, Incorporated, PAY a civil
penalty of $8,499.00 within thirty (30) days of the date of this Decision.24 ACCORDINGLY,
these cases are DISMISSED.

/s/ Jacqueline R. Bulluck
Jacqueline R. Bulluck
Administrative Law Judge

24

Payment should be sent to: Mine Safety and Health Administration, U.S. Department
of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. Please include Docket
number and A.C. number.

38 FMSHRC Page 1508

Distribution:
Patricia Drummond, Esq., U.S. Department of Labor, Office of the Solicitor, 90 Seventh Street,
Suite 3-700, San Francisco, CA 94103
Michael Miller, President, Original Sixteen to One Mine, Inc., P.O. Box 909, 527 Miners St.,
Alleghany, CA 95910
/tcp

38 FMSHRC Page 1509

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004
TELEPHONE: 202-434-9933 / FAX: 202-434-9949

June 16, 2016
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. KENT 2015-528
A.C. No. 15-19475-381445

v.
KENTUCKY FUEL CORPORATION,
Respondent.

Mine: Beech Creek Surface Mine
DECISION

Appearances:

Dominique C. Gutierrez, Esq., U.S. Department of Labor, Nashville,
Tennessee, for Petitioner
James F. Bowman, Midway, West Virginia, for Respondent

Before:

Judge Moran

Introduction
This matter involves a single section 104(d)(1) order, Order No. 8296433, (hereinafter
“Order 433”), issued on December 16, 2014, for an alleged violation of 30 C.F.R. § 77.1606(c).
The standard, titled “Loading and haulage equipment; inspection and maintenance,” provides in
the cited subsection (c) that “[e]quipment defects affecting safety shall be corrected before the
equipment is used.”1 For the reasons that follow, the Court affirms Order 433 and each of its
associated findings, including that the violated standard was significant and substantial (“S&S”)
and constituted an unwarrantable failure. The Court further determines that the proposed
specially assessed civil penalty of $21,900.00 represents an appropriate penalty upon application
of the statutory criteria set forth at 30 U.S.C. §820(i).

1

The predicate for correcting defects, namely finding them, is expressed in the same
standard, at subsection (a), which requires that “[m]obile loading and haulage equipment shall be
inspected by a competent person before such equipment is placed in operation. Equipment
defects affecting safety shall be recorded and reported to the mine operator.” 30 C.F.R. §
77.1606(a).

38 FMSHRC Page 1510

Findings of Fact
Order 433, issued on December 16, 2014, asserts:
The John Deere 200C Excavator (SNFF200CX507060) in operation at this mine
had defects affecting safety (Excessive oil leaks, Back-up Alarm) recorded in the
pre-operational [“pre-op”]2 exam record book on 12-14-2014. No corrective
action was taken to correct these conditions prior to the operator placing the
equipment in service on this day. The pre-operational exams are turned in to the
operator and filed on a daily basis. Failure to correct defects affecting safety prior
to placing equipment into operation constitutes more than ordinary negligence and
would reasonably likely contribute to a serious accident. Standard 77.1606(c) was
cited 7 times in two years at mine 1519475 (7 to the operator, 0 to a contractor.
This violation is unwarrantable.3
The events which led up to the issuance of Order 433 are important to understand as they
involve three other violations involving the same excavator. Each of those three violations was
issued on the same day as Order 433, and each was paid and each represents a final order.
MSHA Inspector Douglas Rutherford, the inspector who issued the alleged violations in this
case, testified in this proceeding. Inspector Rutherford is an experienced and knowledgeable
inspector, with ten years’ experience in the private mining sector. Tr. 28-30. He was at the Beech
Creek Mine on December 16, 2014 to perform an E01, (i.e. regular), inspection. Tr. 32.
Testifying as to the matters which led up to the issuance of Order 433, the inspector first
identified Ex. P4 as the citation he issued on December 16, 2014, Citation No. 8296430,
(hereinafter “Citation 430”), for a non-functioning automatic backup alarm on an excavator, a
John Deere 200C. Tr. 36. Moments later, Inspector Rutherford issued Citation No. 8296431,
(hereinafter “Citation 431”), on the same equipment, this time for an insulator wire that was not
properly bushed. The wire ran from the cab’s roof. Tr. 36. Finally, again only minutes later, a
third citation was issued on the same piece of equipment, Citation No. 82964342 (hereinafter
“Citation 432”), “for accumulations of combustible material – oil, oil-soaked rags, leaves – that
were present on the machine.” Tr. 37; see also Exs. P6 A, B. As noted, all three citations
involved the same piece of equipment, the John Deere excavator, and all three citations became
final orders prior to the commencement of this proceeding. Tr. 37; Exs. P10, P11, P12, P13.
The inspector then testified about the order at issue in this proceeding, Order 433, which
was issued the same day, on December 16, 2014. Ex. P7. Order 433, issued for the same John
Deere excavator, alleged that “the two hazards [cited in Citation 430 and Citation 432 for a nonfunctioning backup alarm and accumulations of combustible material] were not corrected prior to
2

The pre-operational exam was more frequently referred to by the parties as the “pre-op”

exam.
3

The inspector recommended Order 433 for special assessment and the recommendation
was adopted by MSHA. The Secretary then proposed a specially assessed civil penalty of
$21,900.00.

38 FMSHRC Page 1511

putting the machine in service on December 14th, 2014.” Tr. 39. Initially, Order 433 was issued
as a citation for a violation of 30 C.F.R. §77.1606(a), but the inspector subsequently viewed the
pre-op exam records for the equipment, which led him to conclude that the mine operator knew
of the hazards on the excavator.4 Tr. 40. Thus, he concluded that the operator put the machine in
use, though aware of the defects. Id.
The inspector confirmed that, as to the same excavator, he later learned that the pre-op
exam records that the operator provided to him applied to December 14th, 2014. Those records
documented the hazards cited in Citations 430, 431, and 432, which were issued around noon.
He concluded that the operator was aware of the hazards, as his initials were at the bottom of
those pre-ops, noting the hazards. Tr. 41. Those exhibits and the associated testimony support the
Court’s finding of such operator awareness as to the backup alarm and excessive oil or hydraulic
leaks.
Each of the four Pre-shift Safety Check List exhibits, Exs. P7 A, B, C, and D, which were
admitted into the record, will now be discussed. Ex. P7 A is from the operator’s pre-op book
(“Equipment Operator’s Pre-Shift Safety Check List”) and it is the carbon (yellow) copy of the
pre-op check that was performed by Ricky Justice on December 13, 2014 on the John Deere 200
excavator in issue. The box for “Back Alarm,” has an “X” in it, signifying that “Repairs
Required.” It lists the equipment machine engine’s hours as “75791.”5 Ex. P7 B is the second
photo the inspector took of the pre-ops, and it shows the top (white) copy for Ex. P7 A. Thus,
Exs. P7 A and P7 B involve the same pre-op: the white top copy and the yellow carbon copy for
December 13, 2014 for the same equipment performed by Justice and initialed by superintendent
Perry Ryder. As they are copies, the recorded machine hours of 75,791 are the same for Exs. P7
A and P7 B. The difference is that, for Ex. P7 B, superintendent Ryder’s initials are on the white
top copy and, oddly, the white copy had, admittedly, been wadded up.

4

As the inspector further explained:

The pre-op examination record that the operator provided me with actually went
back to December 14th of 2014. So it documented the hazards that I wrote at
noon, you know, [at] 12[:]13 [p.m.], 12[:]14, [and] 12[:]15. So the operator was
aware, due to the fact that he had initialed at the bottom of those pre-ops, the fact
that the equipment operator had noted those hazards existing. So it wasn’t until I
was provided with those records that I knew that the operator actually knew that
that had occurred.
Tr. 41.
5

As the inspector explained, the equipment hours figure represents approximately the
number of hours “that the engine has actually ran [sic].” Tr. 123. Those numbers indicate that the
equipment ran about 10 hours between December 13th and 14th, 2014.

38 FMSHRC Page 1512

The third photo, Ex. P7 C, is a pre-op white copy made on December 14th for the same
John Deere 200 excavator. This copy, as with the pre-op for the December 13th, also lists an “X”
for the “Back Alarm,” meaning “Repairs Required.” Only the initials “BH,” appear on Ex. P7 C,
referring to foreman Bernie Harper. Tr. 127. It also reflects the machine’s engine hours, this time
recorded as 75,890.1.
Last, is Ex. P7 D. It is a photograph of another top, (i.e. white copy), pre-op for the same
equipment, bearing the same date as Ex. P7 C, December 14th, 2014. As with Ex. P7 B, Ex. P7 D
is another perplexingly “crumpled up” pre-shift safety pre-op. Ex. P7 D is signed by Ricky
Justice and initialed by superintendent Ryder. Tr. 44-45.
The following is also noted regarding the first box for the pre-shift safety check list items.
For Ex. P7 A, the top box on the form, which is designated for excessive oil or hydraulic leaks, is
blank. Blanks are not allowed. One is to either leave a check mark, indicating the item is okay; a
zero to indicate that repairs have been made, or an X to mark that repairs are required. The box
for excessive oil or hydraulic leaks is also blank in Exs. P7 B and P7 C, but in P7 D, applying to
the same date, December 14, 2014, an X is marked, indicating repairs required.
Accordingly, two of the photos deal with December 13th, and two deal with December
14th, yet there are other differences. Ex. P7 A, the yellow copy, and Ex. P7 B, the white copy,
plainly represent the same pre-shift safety check for the John Deere excavator on December
13th. However, Ex. P7 C lists the backup alarm box as repair required, and the box for excessive
oil or hydraulic leaks left blank, while Ex. P7 D lists the box for excessive oil or hydraulic leaks
as “repairs required,” but identifies the backup alarm as okay. Both are white top copies and
therefore they are clearly different pre-shift safety checks for the day shift for that equipment. A
comparison of the check marks on Exs. P7 C and P7 D obviously shows that, unlike Exs. P7 A
and P7 B, they are not copies of the same safety check for December 14th. Further, Ex. P7 C has
only Bernie Harper’s initials on it, whereas Ex. P7 D, as noted, is signed by Ricky Justice and
initialed by superintendent Ryder. What Exs. P7 A through D share is that, except for Ex. P7 D,
the equipment’s backup alarm box was marked as “Repairs Required.” In addition, Exs. P7 A,
P7 B, and P7 C leave the box for excessive oil or hydraulic leaks blank, but Ex. P7 D, dated
December 16, 2014, lists “Repairs Required” for that topic.
As stated, Order 433, citing 77.1606(c), deals with correcting hazardous conditions prior
to placing equipment in service. In sum, setting the stage for the alleged 77.1606(c) violation,
there was Citation 430, dealing with the inoperative backup alarm, Citation 431 pertaining to the
un-bushed insulated wire passing through the cab roof, and Citation 432, involving the
accumulation of combustible materials. Tr. 49. With those predicate violations, there is then
Order 433 – the charge at issue here – that the operator placed the vehicle back into service,
knowing of those predicate violative conditions and failing to correct them.
For the backup alarm citation, Citation 430, the inspector stated that he issued that
violation upon observing the excavator’s alarm not working. Tr. 57. This was not immediately
obvious, as there was clearly an element of deception attempted about the alarm’s operability.
When the equipment operator was first directed to back up the equipment, an alarm sounded.
However, the inspector then discerned that the alarm was triggered by a manual toggle switch,

38 FMSHRC Page 1513

not by an automatic backup feature. Thus, the inspector’s take on the manual switch’s presence
did not place the operator in a good light, as he expressed that:
the toggle switch where the [equipment operator] made it appear that the alarm
was working as he traveled to [the inspector’s] location[.] [However] when [the
inspector] asked [the equipment operator] to push the lever, that hand was [then]
being used to push the lever; [and] therefore, he couldn't reach over and flip that
toggle alarm. That toggle alarm is actually illegal, and it's only there to make it
appear that the machine was motion-activated.
Tr. 64.
The inspector noted this issue to the operator and the response was “that the equipment
was leased and that the manual toggle alarm was present on the machine when it was delivered to
the mine.”6 Tr. 58 (emphasis added). In contrast, the motion-activated backup alarm was not
working. Tr. 58. The inspector reiterated that the mine superintendent, Perry Ryder, stated to him
that the equipment was leased, and the manual toggle alarm was present on the machine when it
was delivered to the mine. That is, the superintendent was initially contending to the inspector
that the equipment had been leased and that the toggle alarm had been added to it prior to the
machine’s delivery to the mine. Tr. 50, 65, 69.
For Order 433, again with the standard at issue here requiring that safety defects be
corrected before the equipment is used, the inspector listed the violation as reasonably likely, lost
work days or restricted duty, and S&S. For the accumulation of oil, Citation 432, he marked the
gravity as reasonably likely, lost work days or restricted duty and S&S. The latter concern was
that, in the event of a fire, a miner could receive burns. Ex. P6 A shows the accumulations and
the inspector pointed out oil and dust and oil-soaked leaves and materials. Ex. P6 B reflects the
rags which were in the battery compartment. Tr. 52. Ex. P6 C shows the battery compartment
with the dark areas showing oil accumulations too. Tr. 53. This was hydraulic oil, which the
inspector stated has a flash point of approximately 400 degrees Fahrenheit. The insulating wire
coming through the cab was identified as an ignition source for that oil. Tr. 53.
The inspector stated that he issued the 104(d) order because of “the extent of the cited
conditions and the evidence that was provided . . . that the operator had initialed off on two
separate pre-op examination records, that those existing hazards were marked on those records.”
Tr. 66. The inspector was first provided with “the actual record book itself with the carbon copy
provided. That was dated for December the 13th, 2014.” Tr. 66-67.
The mine superintendent told the inspector that the pre-op procedure involved the
equipment operator performing the pre-op checklist and then tearing off the white copy and
bringing that to the supervisor at the mine office at the start of the shift. The operator would then
determine what hazards to correct. Tr. 67.

6

Whether the manual toggle switch was present when delivered to the mine, or installed
later at the mine, it is hard to appreciate the value of such a non-automatic device.

38 FMSHRC Page 1514

The inspector stated that Order 433 was not duplicative of the previously-issued citations
because it was not issued for the same standard on the same day for the same piece of equipment.
Tr. 74. He explained the difference: his earlier issued citations were because of the obvious
nature of the conditions he observed, namely the added manual toggle switch and the inadequate
pre-op for safety hazards before putting the equipment in service. However, the inspector again
acknowledged that at 4:16 p.m. that day the operator did provide a record, showing that those
hazards had been listed.7 Tr. 74. While thereby escaping a violation of section 77.1606(a) by
showing that an inspection occurred, albeit an incomplete inspection since no entry was made for
the oil leaks box in Exs. P7 A, B, or C, those three exhibits disclosed the defective backup alarm.
By using the equipment in the face of the inoperative backup alarm, the operator’s own pre-shift
records disclosed that defect affecting safety and the operator’s use of that equipment before it
was corrected was established, per Citation 430.
In terms of the oil accumulations, considering the amount the inspector observed and that
accumulations were observed on leaves, and further considering that, as it was December, such
leaves had not fallen recently, the inspector modestly estimated that the condition had existed for
“multiple shifts.” Tr. 76. This was based on “the amount of oil in accumulation and the ability
for the float dust to actually soak up in the oil on the machine, all stated that, you know, they had
not cleaned that machine off prior to my inspection.” Tr. 77. This translated into his opinion that
the condition had existed for four or five days. Because the operator provided no mitigating
circumstances, he deemed the negligence to be high for Order 433. The inspector also concluded
that the operator knew of the condition, as it disclosed to him by the operator that the equipment
was in that condition when it was brought to the mine.8 Tr. 78.
Though no 110(c) violation charges were ever filed, the inspector did file the matter with
MSHA as a possible knowing and willful violation. His recommendation was based on the
wadded up sheets and “[t]he conditions themselves being as obvious as they were and the sheets
being wadded up and no mitigating circumstances, you know, to be given, I would consider that

7

In issuing Order 433, the inspector listed that if an equipment fire were to occur, a
miner (with one person affected) would be reasonably likely to receive a burn resulting in lost
work days or restricted duty. Tr. 74-75. The involved standard, 77.1606(c), had been cited seven
times in the last two years. Tr. 75.
8

The inspector rejected the possibility that the condition had been repaired and that it
then reoccurred because “if that was the case, it would have been documented by the equipment
operator as repaired, which is a circle, on the pre-op records. . . . [and t]he extent of the
accumulation, it had not been removed from the time that the machine had been dropped off.”
Tr. 78.

38 FMSHRC Page 1515

– you know, I consider that constituting more than ordinary negligence,” and also because the
operator made no effort to correct the problems. 9 Tr. 80.
Respondent’s cross-examination of the inspector began with Citation 431, in which the
inspector asserted that there were bare wires exposed at the top of the excavator’s cab. As noted,
the deficiency was a failure to provide a rubber bushing. The wire was insulated except for the
location where it entered the machine. This did not create an electric shock hazard. Rather, the
hazard was an ignition source. Tr. 91. In terms of the accumulations, the inspector recalled that
there was oil in the bottom of the battery compartment, and he maintained that in Ex. P6 B,
though the rags had been moved to the front of the excavator for disposal, the cable wire itself
was still touching the oily rags. Tr. 94. Regarding the location of the wire, it could not be simply
described as on the exterior of the door. More accurately, “it was the exterior of the door above
the compartment but it was inside the door in the compartment.” Tr. 94-95 (emphasis added).
Accordingly, “[i]t extended from the cab through that compartment over to the battery.” Tr. 95.

9

Asked to explain why he marked the gravity and negligence as more severe in Order
433 than he had for the earlier issued citations, the inspector stated:
[t]he underlying citations were issued at moderate negligence because the mine
operator does train his miners to perform proper pre-operational exams prior to
placing the machine in service. The reason I cited the order as high is because
there were no mitigating circumstances after the operator was provided [with the]
record from the equipment operator that those hazards existed, [ ] they weren’t
corrected.
Tr. 81-82. As noted, the matter was specially assessed at $21,900.00, per Ex. P15, versus the
$4,600.00 figure that a regular assessment would have yielded under Part 100. Also, Ex. P14, the
underlying “d” citation, was admitted into the record, as it had become a final order. Tr. 85.

38 FMSHRC Page 1516

Speaking to Citation 432, the inspector made it clear that he had not contended that he
observed oil leaks, but rather that his citation was for accumulations of combustible material. Tr.
96. 10
The inspector stated that he issued Order 433 based on what he saw in the pre-op records.
Tr. 107. Those records were not provided when he was at the machine but only later that day, at
4:16 p.m. Tr. 107.
The inspector marked the backup alarm citation, Citation 430, as unlikely “because there
was no visible foot traffic around the machine that day.” Tr. 111. The negligence was marked as
moderate because miners are trained by the operator to look for those defects prior to operating
such machinery. Id. Ex. P4 A, is a photo of the manual toggle switch. Tr. 112. The Court would
note that the toggle switch is not a subtle or miniscule addition to the excavator. The inspector

10

The Court did acknowledge that, in Order 433, the inspector referred to “[e]xcessive oil
leaks.” Tr. 106. Respondent made much of the description as an “oil leak.” The problem is that it
was not a legitimate or pertinent issue. The inspector did not dispute that oil leaks had been
corrected prior to his issuance of the citation for the accumulations, stating that the “oil leaks
would have been corrected or I would have physically seen oil leaks.” Tr. 104. The inspector
also agreed that for Order 433, the accumulations violation was abated in two minutes. Tr. 102.
When he went back to the excavator at 18:02 or 18:04, (i.e. at 6:02 and 6:04 p.m.) he did not
observe any oil leaks at that time. Asked to consider that if oil leaks had been previously written
up two days earlier, and then to postulate that one subsequently sees the machine after that and
that no leaks are then present, if the leaks could be considered to have been repaired, the
inspector agreed with that hypothetical. Tr. 103. The inspector was asked, in light of that
hypothetical, why he included excessive “oil leaks” in Order 433. His response was that “[t]hat is
what the operator recorded on his pre-operational exam.” Tr. 103. He agreed that there was no
evidence of any leaks after the pre-op exam for the 14th, as his citation was issued for
“accumulations of oil [which] were only there because of the preexisting oil leaks.” Tr. 104. He
discounted the notion that the oil could’ve been from a spill, because it was over the entire
equipment. Tr. 104. Again, the inspector did not dispute that the oil leaks were corrected at some
point prior to his issuing the order on the 16th. Tr. 104. The inspector expressed that the photos
in Exs. P6 A-D, are supporting documentation for Citation 432. They relate to Citation 432, he
explained, as contributing to the issuance of that order. As Respondent continued to refer to the
problem as “oil leaks,” though that was never the inspector’s contention, the Court finally
pointed this out: “Mr. Bowman, you’ve hit this like three times now. . . . [h]e said there was no
oil leak . . . . [h]is focus was accumulation of combustible materials . . . .” Tr. 106. The inspector
stated that he wrote excessive oil leaks instead of accumulation of oil-soaked material because
that is the condition miners are trained to look for, not accumulations of combustible materials,
and therefore he was documenting the defects that the miner was recording for the operator to
address, using the term employed in the pre-shift check list. Id.

38 FMSHRC Page 1517

did not inquire as to how the backup alarm was repaired, but he did require that the miner
demonstrate to him that it had been repaired. Tr. 112.
Understandably, the inspector did consider the wadded up pre-ops as reflecting high
negligence, taking note that both of the wadded up pre-ops were the only ones initialed by the
foreman. Tr. 114-15. As he stated: “I have no way of knowing why they were wadded up, but
both of the wadded-up pre-ops were initialed off of by the superintendent. That was the proof
that he knew of those conditions existing prior to my order.” Tr. 115.
Respondent later presented a claim to justify wadding up the pre-ops. Respondent
suggested to the inspector that the respondent will contend that “when he goes to the machine,
they leave the . . . yellow copy on the machine, they take the white copy and they wad it up so
they can toss it down to him so it doesn’t blow back under the machine.” Tr. 116. The inspector
was not persuaded by the contention, because, as it was explained to him, “the operator stated
that the original, which would be the white copy you’re referring to, is turned in to the foreman
at the mine office.” Id. Noting that he found no wadded up yellow copies, the inspector also
rejected the notion that the yellow copy is the one that is kept, as the yellow copy is “the one
that’s retained normally at the piece of equipment, but at this piece of equipment this day, there
were no records of any kind [on the equipment]. That’s why we traveled back to the mine office,
because the operator referred to me that they were located at the mine office.” Id.
As to the claim that the violations in Citation 430 (citing section 77.410, for the manual
motion switch) and Order 433 (citing section 77.1606(c)), for a defect affecting safety), were
duplicative, the inspector noted that they cited different standards. Tr. 117. Despite attempts to
muddle the issue by the Respondent, the inspector made it clear that he did not cite the same
condition in Citation 430 and Order 433. In Order 433 he was citing section 77.1606(c) for
putting the machine in service prior to correcting a safety defect. Tr. 129. The Court agrees there
is no duplication.
The key consideration in this matter is that the defective conditions had been noted in the
December 13th and 14th pre-ops, yet the operator placed the machine in operation prior to
correcting those conditions. Tr. 118.
Trying to paint a different picture, Respondent’s representative asked the inspector about
Ex. P7 A , the yellow copy of the pre-op check in which the backup alarm was marked with an
“X.” Tr. 119. That pre-op check was made by Ricky Justice. Accordingly, the inspector noted
that the pre-op marked the alarm as defective. Tr. 120. When that occurs, the equipment operator
is obligated to inform his immediate supervisor of the issue and, following that, the equipment is
to be repaired or taken out of service. Id.
The Court, with witness Inspector Rutherford agreeing, noted that Exs. P7 A and P7 B
are not the same. The foreman’s initials are at the bottom of Ex. P7 B, the crumpled up copy,
whereas those initials are not present on Ex. P7 A. Tr. 121. Further, while Respondent made a
claim that the photo of one sheet, Ex. P7 A, was incomplete, critically, the line for the foreman’s
signature is visible in all four photos of the pre-shift check list. Thus, that empty claim is
inconsequential and the respondent did not attempt to introduce, as it could have, its own copy of

38 FMSHRC Page 1518

that exhibit. The inspector stated that Ex. P7 A reflects the full sheet and Court finds that to be
the fact. That is to say, there are no lines or room for additional information below the line for
“Mine Foreman.” Tr. 124. Per the testimony, the line for the initials or signature for the mine
foreman would only be on the white copy. Id.
The Court has noted that the record reflects two white copy pre-shift safety check lists for
December 14th. Exs. P7 C, D. There would be two pre-ops performed if the equipment were
used on two shifts. Tr. 126. This was the starting point for Respondent’s farfetched theory that
during the day shift somebody did a pre-op and found something wrong and that it was then
corrected. This claim rests on the idea that foreman Harper did a pre-op on December 14th, and
then employee Ricky Justice did another pre-op that same day. Tr. 127. The Ricky Justice-signed
pre-shift check was one of the two crumbled up sheets. Ex. P7 D. That pre-shift check has a
check beside the back alarm category, indicating that the alarm was okay. Tr. 128. Thus,
Respondent contended that those two pre-ops support its claim that after Harper noted the
condition it was repaired and that Justice’s failure to note a problem shows it was repaired by the
time of his inspection. Tr. 128. The inspector’s answer to this is that the mine superintendent,
Perry Ryder, admitted to him that the machine was in the cited toggle-switch-installed condition
when it was dropped off on December 13th. Tr. 128. Further, the two sheets both list the safety
check list as applying to the day shift for the same day.
Perry Ryder, mine superintendent, was called by the Respondent. He stated that on
December 16, 2014, the day the citations were issued, he was at the mine. Tr. 133-134. He stated
that the job was shut down, in idle status, on the day the inspector arrived. Present were foreman
Harper, Justice, the machine operator, and Greg Wyatt, a mechanic. The equipment in issue had
arrived at the mine site around December 11th. Tr. 135-136. Ryder stated that on that day he
arrived at the mine site and looked at the excavator with foreman Harper. On that day, he found
no problem with that equipment and proceeded to tram it to the top of the hill, a four to five hour
process because the equipment moves so slowly. Tr. 136-137. Ryder stated that the excavator’s
backup alarm was “definitely working” that day. Tr. 137. He acknowledged that the backup
alarm is automatic; it is to alarm automatically whenever the foot pedal is used. Tr. 137-38.
However, Ryder also conceded that there was a point in time when the alarm was not
working. The fix, he stated, was simple: a mechanic only had to clean the switch, as it was only
occasionally not making contact. Tr. 139. As to the other switch on a mounted bracket, Ryder
asserted at the hearing that the manual toggle switch was not on the equipment when he first got
the excavator.11 Tr. 140-141. Referring to that other switch, Ryder stated: “there’s a – a mounted
bracket there with a switch on it. That is the one that – that the inspector said the backup alarm
was hooked to, but, now, that switch was not on there when I got the excavator.” Tr. 140. Ryder
asked Justice if he installed the additional, (i.e. manual), toggle switch on the machine and
Justice told him he did not. Justice did not know who installed the switch. Very oddly, given the
small number of personnel at the operation, while asserting at the hearing that the switch had
been installed after the excavator arrived at the mine, no one knew who installed the switch. This
claim, in the Court’s estimation, is hard to accept as true and it is not accepted as credible. Ryder
11

Ryder confirmed that, per Ex. P4 A, the two red wires which connect to the toggle back
up switch, is the manually operated backup switch. Tr. 142.

38 FMSHRC Page 1519

reaffirmed his version of the events, affirming that “between the time that [he] took the excavator
up the hill and the time that the inspector saw this condition, this switch had been added to it.”
Tr. 141-42. Again, the Court would comment that this story does not make sense and further it
doesn’t explain why anyone would add a manual backup switch to the equipment, especially if
the automatic switch was really working.
Ryder stated that he didn’t challenge the 104(a) citation but took issue with the 104(d)
order, stating:
I didn’t argue with the 104, because evidently when I got to the machine, when I
told him that the backup alarm did work, it did work, because I’d had a problem
with the operator telling me one time that it didn’t work, and then when I went to
the machine, it was working. I had no problem with the 104 on that. But when he
come back and abated the one – the second citation as a (d) order, I thought
personally that was ridiculous, because we was working on the machine, doing
our best to get it right to get it fixed, because if something don’t work, it’s hard to
find out what it is unless you can work on it when it ain’t working. But when it is
working, you don’t know where the problem’s at.
Tr. 145.
In this regard, Ryder noted that the negligence regarding the backup alarm, Ex. P4, was
marked as moderate but that for Ex. P7, it was marked as high. Tr. 145-46. Regarding the preops, for Ex. P7 A, performed on the 13th, Ryder agreed that there is an X marked for the backup
alarm and he admitted that meant the alarm was not working. Tr. 147-48. Ryder stated that he
took possession of that pre-op exam form. Tr. 148. On that day, he asserted that, upon noting the
non-working backup alarm notation, he inquired about it with Mr. Justice, asking him to move
the equipment forward and back, and that the alarm worked when he did that. Therefore, he
agreed that Justice “went ahead and operated the machine.” Tr. 150.
A more fantastic claim accompanied that story, as Ryder attempted to explain why the
pre-op form was crumpled up. Ryder stated that he picks up the pre-ops. The procedure for
transferring those pre-ops forms from the operator who performed the pre-op to him is unusual,
to say the least.
Asked how the machine operator transfers his pre-op report from his machine down to
him, Ryder asserted:
[w]ell, it all depends on the location that he’s in. If he’s working in a ditch where
there’s mud and there’s water and he’s a-digging a ditch, a lot of times they’ll just
fold it up in their hand and swing that machine around, and I’m standing there,

38 FMSHRC Page 1520

and they’ll pitch it on the ground to me, and I get it. But I always straighten them
back out.
Tr. 150-51. Thus, he asserted that the pre-op is delivered to him as a crumpled up ball of paper.
This method, he contended, prevents the pre-op report from landing in a mudhole. Tr. 151.
Again, Ryder reasserted that the backup alarm was “absolutely” working. Tr. 151.
As for Ex. P7 C, Ryder stated that Harper made that pre-op, finding that the alarm was
not working. Tr. 152. Ex. P7 D reflects another pre-op exam on the same day and also for the
day shift made by Ricky Justice. It was stated that this second pre-op was done because Justice
was a new operator of the equipment that day and each new operator must perform his own preshift. Justice found oil leaks, but recorded nothing about any backup alarm problem. Tr. 153.
This led Ryder to conclude that, while the alarm was not working on the 13th, it was working on
the 14th. Further, Ryder stated that no backup alarm issues were reported to him on the 15th or
16th. Tr. 154. As to the “oil leak” issue, Ryder maintained that there were no such leaks on the
equipment. Rather, there were only “oil spots” from the O-ring that had blown. Tr. 154.
However, this claim is also doubtful as he admitted that the O-ring is located in an entirely
different area of the equipment than the area depicted in photograph in Ex. P6 A, and further
Ryder agreed that any oil depicted in Ex. P6 A would not be due to a blown O-ring. Tr. 163.
On cross-exam, Ryder agreed that the excavator was available for use on the 16th as it was not
tagged out. As to his procedure, he was asked if, per his deposition testimony, his practice is to
write “corrected” when equipment has been repaired, at the hearing he stated, “[n]ot always.” Tr.
158. The Court inquired about the repair of the backup alarm. Ryder confirmed that a mechanic
came out from Wayne Equipment to fix the alarm, but he couldn’t give the name of the
individual, nor the date that the work was done. Tr. 160. Nor did he know if there was a bill for
that work, as the mechanic worked full-time for Bevins Branch, which is part of the same
company as Kentucky Fuel. Tr. 161.
Discussion
One must not lose sight of the fact that each of the predicate citations, identified in this
proceeding as Citations 430, 431 and 432, were all conceded as violations. That left the one
matter in this litigation – whether 30 C.F.R. §77.1606(c) was violated in Order 433. The Court
concludes that the preponderance of the credible evidence clearly establishes that standard
77.1606(c) was violated and that Order 433 was both an unwarrantable failure and an S&S
violation, though, technically, to sustain the order, only the unwarrantable failure finding must be
explored, as the underlying section 104(d)(1) citation was not contested and had become a final
order. The evidence shows that the backup alarm was not working on December 13th and 14th,
and that excessive oil or hydraulic leaks were also present, at least on December 14th. The
bushing issue, in Citation 431, found by the inspector on December 16th, and later conceded to be
a violation and a final order, also presented a risk of fire.
The credible evidence establishes that the backup alarm and oil accumulation defects
were recorded and the operator continued to use the excavator in contravention of section
77.1606(c). The Respondent’s claims in defense are too tall to be believed. Whether one
considers – either the story that the excavator came with the toggle switch, or the alternative

38 FMSHRC Page 1521

story that it did not, but instead that some unknown person at the mine later installed the switch,
for purposes unknown; or the story that the operator employed the highly unusual method of
delivering pre-shift reports by wadding them up into a ball, though a more plausible method of
delivery was first presented to the inspector; or the story that the backup alarm was not working
on December 14th, per Ex. P7 C, but must have been fixed by someone that same day, as the
other pre-shift box for that category, per Ex. P7 D, was checked as okay – all of these stories are
too much to be deemed credible, collectively or individually. Very simply, the evidence
establishes that the equipment, though defective, continued to be used on December 16, 2014, in
violation of 30 C.F.R. § 77.1606(c).
Significant and substantial determination
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 Div.,
Nat’l Gypsum, 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1 (Jan.
1984), the Commission explained:
In order to establish that a violation of a mandatory safety standard is [S&S]
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.
Id. at 3-4; see also Austin Powder Inc. v. Sec’y of Labor, 861 F.2d 99, 103-04 (5th Cir. 1988),
aff’g 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria). With respect to the third
element of Mathies, an S&S finding requires a determination that the violation contributes
significantly and substantially to the cause and effect of a hazard. U.S. Steel Mining Co., Inc., 6
FMSHRC 1866, 1868 (Aug. 1984). 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 Co., Inc., 1 FMSHRC 1125, 1130 (Aug. 1985). 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). In the final
analysis, the essence of an S&S violation is whether it is reasonably likely that the hazard
contributed to by the violation will result in an event in which there are serious or fatal injuries.
Bellefonte, 20 FMSHRC at 1254-55.

38 FMSHRC Page 1522

For the reasons discussed above, the Court finds that the cited standard, section
77.1606(c), was violated. The Court agrees with the Secretary’s identification of the several
discrete safety hazards as
[t]he accumulations of oil and other combustible materials, rags and leaves soaked
in oil, combined with a bare wire at one location not secured by a bushing and
touching the metal frame of the cab of the excavator created a safety hazard of an
ignition. Exhibits P-6 and P-5. The motion-detector back-up alarm being
inoperative while in reverse created another hazard of a collision. Exhibit P-4.
Sec’y Br. at 12.
The Court further agrees that the violation presented a reasonable likelihood of injury.
Though there was no foot traffic on that day, it is undeniable that foot traffic would occur during
continued normal mining operations. Further, the excavator could strike one of the other pieces
of equipment at the site. A manually operated toggle switch contravenes the essential purpose of
backup alarms – they are to operate automatically, as the standard, 30 C.F.R. §77.410(a)(1),
provides that mobile equipment with an unobstructed rear view shall be equipped with a warning
device that gives an audible alarm when the equipment is put in reverse. And, though the backup
alarm issue was sufficient in its own right, there was the improperly bushed wire and the
accumulations of combustible materials, each independently presenting an S&S violation. Nor
can those findings be collaterally attacked now, as the backup alarm, the bushing deficiency, and
the accumulations of combustible material are all final orders, with their special findings
included. The failure to correct those defects listed in the pre-shift check list, and those not listed
or left blank, each constituted equipment defects affecting safety and they were to be corrected
before the equipment is used. Testimony also supports the Court’s conclusion that any injury
which might occur would be reasonably serious. The cited standard, requiring that equipment
defects affecting safety shall be corrected before the equipment is used, is inextricably tied to the
hazardous conditions found on the excavator by the inspector and cited in the predicate citations,
each of which were affirmed and became final orders of the Commission.
Unwarrantable failure determination
The Commission has spoken definitively on the subject of unwarrantable failure. In ICG
Hazard, LLC, 36 FMSHRC 2635 (Oct. 2014) (“ICG Hazard”), it modified a judge’s finding of
unwarrantable failure to a section 104(a) citation, holding that such a finding must be based on
an examination of specific criteria. Noting that it has “defined ‘unwarrantable failure’ as
‘aggravated conduct constituting more than ordinary negligence,’” Manalapan Mining Co., 35
FMSHRC 289, 293 (Feb. 2013) (citing Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec.
1987)),” it reviewed that the criteria for determining whether conduct is “aggravated,” includes
(1) the extent of the violative condition, (2) the length of time that the violative
condition existed, (3) whether the violation posed a high degree of danger, (4)
whether the violation was obvious, (5) the operator’s knowledge of the existence
of the violation, (6) the operator’s efforts in abating the violative condition, and
(7) whether the operator had been placed on notice that greater efforts were

38 FMSHRC Page 1523

necessary for compliance. See IO Coal Co., 31 FMSHRC 1346, 1351-57 (Dec.
2009); Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on
other grounds, 195 F.3d 42 (D.C. Cir. 1999).
Id. at * 2637. Though the Commission acknowledged that “not all factors may be relevant to
every case, all relevant factors must be examined.” Id.
Similarly, in Mach Mining, LLC, 34 FMSHRC 1769 (Aug. 2012) (“Mach Mining”), the
Commission earlier noted that
. . . the ‘unwarrantable failure’ terminology is taken from section 104(d) of the
Act, 30 U.S.C. § 814(d), and refers to more serious conduct by an operator in
connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec.
1987), the Commission determined that unwarrantable failure is aggravated
conduct constituting more than ordinary negligence, and we characterized it in
such terms as “reckless disregard,” “intentional misconduct,” “indifference,” or
the “serious lack of reasonable care.” Id. at 2003-04. The Commission has further
recognized that whether conduct is “aggravated” in the context of unwarrantable
failure is determined by considering the facts and circumstances of each case to
determine if any aggravating or mitigating circumstances exist. Factors relevant to
that consideration include the length of time that the violation has existed, the
extent of the violative condition, whether the operator has been placed on notice
that greater efforts were necessary for compliance, the operator’s efforts in
abating the violative condition, whether the violation was obvious or posed a high
degree of danger, and the operator’s knowledge of the existence of the violation.
See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000) (“Consol”);
Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on other
grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30,
34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994);
Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992). **6 The Commission
has repeatedly made clear that it is necessary for a judge to consider all relevant
factors in determining whether an unwarrantable failure to comply with a standard
has occurred. Coal River Mining, LLC, 32 FMSHRC 82, 89 (Feb. 2010); Windsor
Coal Co., 21 FMSHRC 997, 1001 (Sept. 1999); San Juan Coal Co., 29 FMSHRC
125, 129-31 (Mar. 2007) (remanding unwarrantable determination for further
analysis and findings when judge failed to analyze all factors). While an
administrative law judge may determine, in his or her discretion, that some factors
are not relevant, or may determine that some factors are much less important than
other factors under the circumstances, all of the factors must be taken into
consideration and at least noted by the judge. IO Coal Co., 31 FMSHRC 1346,
1351 (Dec. 2009).
Id. at 1775.

38 FMSHRC Page 1524

Here, upon weighing the factors relevant to a finding of an unwarrantable failure, the
Court concludes that the operator’s conduct in using the excavator without correcting the
recorded defects amounted to aggravated conduct constituting more than ordinary negligence.
Specifically, the very nature of the operator’s conduct – that is, the decision to place the
excavator into service with explicit knowledge of existing hazardous defects – based on
previously-issued citations and pre-op hazard reports – is demonstrative of the obviousness of
the conditions, and its knowledge of them. It is also noteworthy that there was more than one
defect that was allowed to exist on the excavator and that these various defects presented discrete
hazards, thus increasing the degree of danger from the Respondent’s conduct. Additionally, the
evidence reflects that the subject excavator had been periodically operated from at least the time
the December 13th pre-op examinations identified hazards, until the time Order 433 was issued
three days later. In view of these aggravating factors, the Court finds that the violation was an
unwarrantable failure. When one also considers the toggle switch installation, and the varying
stories about its origination, the attempt to mislead the inspector about the backup alarm’s
functioning, the wadded up pre-shift check lists, those all add up to indifference or a serious lack
of reasonable care.
Penalty Determination
The Mine Act sets forth a bifurcated penalty scheme under which the “Secretary proposes
penalties before a hearing based on information then available to him and, if the proposed
penalty is contested, the Commission affords the opportunity for a hearing and assesses [the]
penalty.” Hidden Splendor Res., Inc., 36 FMSHRC 3099, 3101 (Dec. 2014) (quoting Sellersburg
Stone Co., 5 FMSHRC 287, 291 (Mar. 1983), aff’d, 736 F.2d 1147, 1151-52 (7th Cir. 1984)).
Under this bifurcated scheme, “[t]he Secretary’s regulations at 30 C.F.R. Part 100 apply only to
the Secretary’s penalty proposals, while the Commission exercises independent ‘authority to
assess all civil penalties provided [under the Act]’ by applying the six criteria set forth in section
110(i) [of the Mine Act].” Id. (quoting 30 U.S.C. § 820(i)). The six section 110(i) factors are:
the operator’s history of previous violations, the appropriateness of such penalty to the size of the
business of the operator charged, whether the operator was negligent, the effect on the operator’s
ability to continue in business, the gravity of the violation, and the demonstrated good faith of
the person charged in attempting to achieve rapid compliance after notification of a violation.
30 U.S.C. § 820(i). Original Sixteen to One Mine, Inc., 38 FMSHRC __, slip op. at 6 (May 3,
2016) (ALJ).

38 FMSHRC Page 1525

Findings on the Statutory Penalty Criteria
History of previous violations12
Kentucky Fuel Corporation’s history of violations is reflected in Ex. P2. With the mine
history assessed at 10 points, that translates to a medium history, as does the 9 points given for
its repeat violation history. Apart from the point structure, the Court finds that the Respondent’s
violation history may be fairly described as medium.
Mine Size
Under the Part 100 point system, the mine was awarded 9 points, which characterizes it
to be in the medium range and the controlling entity category, at 8 points, was determined to be
in the high medium range. Apart from the point structure, the Court finds that the Respondent’s
mine size may be fairly described, at the least, as medium.
Ability to continue in business
There was no claim that the proposed special assessment amount would impair the
mine’s ability to continue in business.
Good Faith
This was a non-factor under the Part 100 calculation. The operator did tag out the
equipment but this occurred in the context of order being issued. The Court also finds that the
good faith factor does not impact the penalty determination.
Negligence
As set forth above, the Court agrees that, in light of the pre-shift safety check list, the
negligence was properly characterized as high. The Court has found that the violation was
unwarrantable.
Gravity
The Court, having found that the violation was significant and substantial, agrees that the
injury was reasonably likely to occur, that, at a minimum, lost workdays or restricted duty is the
injury that could be reasonably expected, with one person affected.

12

The mine size, its history of violations, and its good faith, were all calculated the same
under the regular and special assessment. That is, under the special assessment for those
categories, there was no increase in the point calculations over the points awarded under the
regular assessment.

38 FMSHRC Page 1526

Based on the application of the statutory criteria, as set forth at 30 U.S.C. §820(i), the
Court imposes a civil penalty of $21,900.00 for the violation of 30 C.F.R. §77.1606(c).
ORDER
For the reasons set forth above, Order No. 8296433 is AFFIRMED. Respondent is
ORDERED TO PAY the civil penalty of $21,900.00 for that violation. Upon PAYMENT of
the full civil penalty hereby imposed, the captioned proceeding is DISMISSED.

/s/ William B. Moran
William B. Moran
Administrative Law Judge

Distribution (Certified Mail)
Dominique C. Gutierrez, Esq., U.S. Department of Labor, Office of the Solicitor, 211 7th Avenue
North, Suite 420, Nashville, TN 37219
James F. Bowman, P.O. Box 99, Midway, WV 25878

38 FMSHRC Page 1527

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004
TELEPHONE: 202-434-9933 / FAX: 202-434-9949

June 24, 2016

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 2015-819
A.C. No. 26-02512-386028

v.
NEWMONT USA LIMITED,
Respondent.

Mine: Leeville

DECISION DENYING MOTION
FOR APPROVAL OF SETTLEMENT
Before: Judge Moran
This Court, tired of the Secretary’s continuing and habitual practice of providing empty
explanations for its settlements, has no option but to deny the present settlement motion and to
publish for public consumption the basis for the denial. As explained on numerous occasions,
the Court has an obligation, pursuant to Section 110(k) of the Mine Act, 30 U.S.C. § 820(k), to
approve settlements. This is not a ministerial task, though the Secretary views it as such,
because the statutory language does not support such a claim and the Court must presume that
Congress does not include empty provisions in legislation of any sort, much less in matters
impacting the safety and health of miners. On this issue, while the Commission has a legislative
mandate to follow, the Secretary possesses only pretentiousness.
For each settlement, the Secretary offers the same empty chatter, advising:
In reaching this settlement, the Secretary has evaluated the value of the
compromise, the likelihood of obtaining a still better settlement, the prospects of
coming out better, or worse, after a full trial, and the resources that would need
to be expended in the attempt. The Secretary has determined that the public interest

38 FMSHRC Page 1528

and the effective enforcement and deterrent purposes of the Mine Act are best
served by settling the citations as indicated above.
See, as a representative sample, Motion for Settlement, at 2 (Apr. 1, 2016) (“Motion”). With that
offering, the Secretary then offers the same rote justification that
the Secretary believes that the pleadings in this case and the above summary give the
Commission an adequate basis for exercising its authority to review and approve the
Secretary’s settlement under Section 110(k) of the Mine Act, 30 U.S.C. §820(k).
Id.
It is plain that were the Commission to accept the same mantra from the Secretary, the
effect would be to endorse the Secretary’s view that Congress’ express language of the
Commission’s role in settlements per Section 110(k) was an empty gesture.
The Secretary then routinely moves on in its settlement motions to its secondary stance
that, in view of litigation over the meaning and effect of Section 110(k), per The American Coal
Co., 36 FMSHRC 1489 (May 2014) (ALJ) (appeal to the Commission pending), to offer what it
purports to constitute as “information in support of the penalties agreed to by the parties.” Id. at
3.
In this case, one in which the Secretary seeks a fifty percent (50%) reduction from the
proposed penalty under 30 C.F.R. Part 100, the supporting information consists of 101 words, of
which 60 provide nothing useful at all, to wit:
The representative for the Secretary has reviewed the factual circumstances
surrounding Citation No. 8869188 and is persuaded that there were mitigating
circumstances that warrant a reduction in the gravity of the violation. … The
Secretary is willing to stipulate that the likelihood of injury is less than
‘reasonably likely’, and in the interest of settlement, a reduction in gravity is
warranted.
Id. The remaining 41 words are completely insufficient. In its entirety, the following is offered
up:
The respondent contends the small amount of material was along the rib on a
windrow.1 Respondent further contends no material had fallen in the middle of
the drift where persons would travel and the wire ground support was still in
place.
Id. (emphasis added).
1

A “windrow” is defined as a long low ridge of road-making material scraped to the side
of a road; a bank, ridge or heap. MERRIAM-WEBSTER DICTIONARY, http://www.merriamwebster.com/dictionary/windrow (last visited June 24, 2016). In short, it is a fancy term for a
pile of material.

38 FMSHRC Page 1529

The reader will take note that the Secretary says absolutely nothing about the accuracy of
the Respondent’s contentions. Rather, the contentions are merely laid out, in a vacuum, free of
endorsement or comment from the Secretary. All that the Secretary adds is that he is “willing to
stipulate that the likelihood of injury is less than ‘reasonably likely’, and in the interest of
settlement, a reduction in gravity is warranted.” Id. (emphasis added). But, neither the
Commission, nor the public, nor any miner, is told why the Secretary is willing to so stipulate
that the likelihood of injury is less than reasonably likely. The truth is that the Secretary’s
grudgingly offered alternative is every bit as empty as his default position that he is not obligated
to provide any solid reasoning for his settlements. This is inconsistent both with Congressional
intent and with the protection of miners. It also does a disservice to the dedicated MSHA mine
inspectors in their efforts to provide such protection.2
The issuing inspector’s section 104(a) citation presents a different picture, which is
completely unaddressed by the Secretary. The inspector’s written citation provides that the
ground support was not being maintained, for a 12 foot length which had a 18 foot height, in that
wire was missing, bolts damaged, and shotcrete missing. Speaking to the likelihood of the
hazard occurring, the inspector stated that there was loose material, which was scaled down
easily, and that it was 13 inches by 9 inches by 3 inches and smaller. The inspector assessed the
hazard presented by the cited condition as reasonably expected to present a permanently
disabling injury in the event of the loose material falling and striking a miner. The Respondent’s
contention that “the wire ground support was still in place,” is factually at odds with the
inspector’s statement that the wire was “missing.” Where the Secretary stands on that factual
conflict is anybody’s guess. Nor does the Secretary shed any light on the Respondent’s claim
that there was a small amount of material along the rib on a windrow, presumably from the
scaling that was then performed, and that no material had fallen in the middle of the drift where
persons would travel. But scaling is a somewhat controlled process and therefore may not be
indicative of what would have occurred if the material had simply fallen in an unplanned event.
Accordingly, the Secretary is directed to either provide a legitimate factual basis to
support the 50% reduction it seeks, or to prepare for a hearing.
So Ordered.

/s/ William B. Moran
William B. Moran
Administrative Law Judge
2

When the Court denies insufficiently justified settlement reductions, it routinely asks
the Secretary to advise whether, in the course of reaching a settlement, it has consulted with the
issuing inspector. After all, the issuing inspector is the administration’s eyewitness to the
violative condition. The Secretary has never responded to this reasonable informational inquiry
from the Court. Such a declaration, which does not require the particulars of the inquiry, is a
way of ensuring that a settlement is factually reasonable from the Secretary’s point of view and
therefore does not rely only on unverified assertions from a respondent.

38 FMSHRC Page 1530

Distribution:
D. Scott Horn, Conference and Litigation Representative, U.S. Department of Labor, MSHA,
991 Nut Tree Road, Vacaville, CA 95687
Hiliary N. Wilson, Esq., Newmont USA Limited, 1655 Mountain City Hwy, Elko, NV 89801

38 FMSHRC Page 1531

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004

June 28, 2016
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. SE 2009-870-M
A.C. No. 01-02738-194100

v.
WEST ALABAMA SAND & GRAVEL,
INC.,
Respondent.

Mine: West Alabama Sand & Gravel

DECISION ON REMAND
Before:
I.

Judge Feldman

Procedural History

This single citation civil penalty proceeding, arising under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act”), involves Citation No. 6511548
issued to West Alabama Sand and Gravel, Inc., (“West Alabama”) by the Department of Labor’s
Mine Safety and Health Administration (“MSHA”). Citation No. 6511548 alleges that a truck
driver climbed on top of his truck without fall protection on West Alabama’s mine property, in
violation of 30 C.F.R. § 56.15005, which provides that “[s]afety belts and lines shall be worn
when persons work where there is danger of falling. . . .” (emphasis added). Specifically,
Citation No. 6511548 alleges:
A customer truck driver [Johnny Koger, who was employed by Denbar
Transportation,] was observed climbing on top of the loaded trailer. [Koger] was
not wearing a safety belt and lanyard or any other type of restraining device to
prevent a fall to the ground below. [Koger] was on his knees pulling on tarp
within inches of the side of the trailer. [Koger] was exposed to a fall of ten feet to
ground level. Clay Junkin (Vice President) engaged in aggravated conduct
constituting more than ordinary negligence by his statement of knowing this was a
hazard, and allowing this failure to comply with a mandatory standard.

38 FMSHRC Page 1532

As there was no dispute of material facts, the initial disposition affirmed, through
summary decision, the violation and its significant and substantial (S&S) designation, but ruled
that it did not result from an unwarrantable failure1 to comply with the standard in question.
Consequently, the initial decision reduced the penalty from the proposed assessment of
$15,971.00 to $760.00. 34 FMSHRC 1651 (July 2012) (ALJ). The Secretary appealed the
deletion of the unwarrantable failure designation, which was based on a reduction in the degree
of negligence attributable to West Alabama’s conduct, from “high” to “moderate,” and the
resultant reduction in proposed civil penalty.
The Commission now has vacated the initial decision with respect to the deletion of the
unwarrantable failure, the reduction in negligence, and the reduction of the proposed penalty,
directing my further consideration of these issues consistent with its remand decision.
37
FMSHRC 1884, 1891 (Sept. 2015).
Following a series of conference calls, on December 15, 2015, West Alabama stipulated
that the subject section 56.15005 violation was attributable to an unwarrantable failure.
Specifically:
1. West Alabama stipulates to such facts as are necessary and sufficient to permit
the Court to make a designation of unwarrantable failure under 30 U.S.C. §
814(d)(1).
2. West Alabama stipulates to such facts as are necessary and sufficient to permit
the Court to make a designation of “high” negligence level.
West Alabama’s Stipulation of Material Facts, at 1 (Dec. 15, 2015).
Given West Alabama’s stipulation to the Secretary’s unwarrantable failure designation,
the issue remains the appropriate penalty to be imposed for Citation No. 6511548. The statutory
penalty range for a violation attributable to an unwarrantable failure under section 104(d)(1) of
the Mine Act is between $2,000.00 and $70,000.00. 30 U.S.C. § 820(a)(1), (a)(3)(A).
In considering the appropriate civil penalty, the parties were ordered to address the
applicability of the section 110(i) statutory criteria, outlined below. 38 FMSHRC 383 (Feb.
2016) (ALJ). In addition to addressing the section 110(i) penalty criteria, the Secretary noted:
. . . that Respondent continues to consistently violate safety standards and
essentially stopped paying assessed penalties in approximately January 2010,
according to the Mine Data Retrieval System [“MDRS”]. Respondent’s history,

1

The Commission has determined that the essence of unwarrantable failure is aggravated
conduct constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997
(Dec. 1987).

38 FMSHRC Page 1533

present refusal to pay assessed penalties, along with the admitted gravity and high
negligence of this violation, support the Secretary’s assessed penalty.
Sec’y Resp., at 12 (Mar. 9, 2016). Consequently, on May 9, 2016, the parties were further
ordered to address whether delinquency in paying civil penalties is a relevant consideration in
determining the appropriate penalty to be assessed. 38 FMSHRC __, slip op. (May 9, 2016)
(ALJ). A discussion of the applicability of the section 110(i) criteria and delinquency follows.
II.

Application of Section 110(i) Criteria

The Secretary proposes a $15,971.00 civil penalty. The Commission outlined the
parameters of its responsibility for assessing civil penalties in Douglas R. Rushford Trucking, 22
FMSHRC 598 (May 2000). The Commission stated:
The principles governing the Commission’s authority to assess civil penalties de
novo for violations of the Mine Act are well established. Section 110(i) of the
Mine Act delegates to the Commission “authority to assess all civil penalties
provided in [the] Act.” 30 U.S.C. § 820(i). The Act delegates the duty of
proposing penalties to the Secretary. 30 U.S.C. §§ 815(a) and 820(a). Thus, when
an operator notifies the Secretary that it intends to challenge a penalty, the
Secretary petitions the Commission to assess the penalty. 29 C.F.R. §§
2700.28 and 2700.44. The Act requires that, “[i]n assessing civil monetary
penalties, the Commission [ALJ] shall consider” six statutory penalty criteria:
[1] the operator’s history of previous violations, [2] the appropriateness of
such penalty to the size of the business of the operator charged, [3]
whether the operator was negligent, [4] the effect of the operator’s ability
to continue in business, [5] the gravity of the violations, and [6] the
demonstrated good faith of the person charged in attempting to achieve
rapid compliance after notification of a violation.
22 FMSHRC at 600 (citing 30 U.S.C. § 820(i)). The Commission has noted that the de novo
consideration of the appropriate civil penalty to be assessed does not require “that equal weight
must be assigned to each of the penalty assessment criteria.” Thunder Basin Coal Co., 19
FMSHRC 1495, 1503 (Sept. 1997).
In keeping with this statutory requirement, the Commission has held that “findings of fact
on the statutory penalty criteria must be made” by its judges. Sellersburg Stone Co., 5 FMSHRC
287, 292 (Mar. 1983). Once findings on the statutory criteria have been made, a judge’s penalty
assessment for a particular violation is an exercise of discretion, which is bounded by proper
consideration for the statutory criteria and the deterrent purposes of the Mine Act. Id. at
294; Cantera Green, 22 FMSHRC 616, 620 (May 2000). In exercising my discretion, each
penalty criterion shall be evaluated with regard to whether it is a mitigating, neutral, or
aggravating factor.

38 FMSHRC Page 1534

1. History of Violations
The Commission has addressed the appropriate considerations for evaluating the effect of
the history of violations criterion in section 110(i) of the Mine Act:
The Commission has recognized that “the language of section 110(i) does not
limit the scope of history of previous violations to similar cases.” Secretary of
Labor on behalf of Johnson v. Jim Walter Resources, Inc., 18 FMSHRC 552, 557
(Apr. 1996). The Commission has explained that “section 110(i) requires the
judge to consider the operator’s general history of previous violations as a
separate component when assessing a civil penalty. Past violations of all safety
and health standards are considered for this component.” Peabody Coal Co., 14
FMSHRC 1258, 1264 (Aug. 1992) (emphasis added); see also Glover, 19
FMSHRC at 1539 (remanding to the judge with instructions to consider the
operator’s general history of violations, not only its prior section 105(c)
violations).
Cantera Green, 22 FMSHRC at 623.
The Secretary asserts, and the MDRS reflects, that 17 citations were issued to West
Alabama in the two-year period preceding the July 1, 2009, issuance of Citation No. 6511548.
Of these 17 citations, 14 were designated as non-S&S in nature, and none of the subject 17
violations were attributable to an unwarrantable failure. While the general violation history
should be considered, it is noteworthy that, of these 17 citations, none cited section 56.15005—
the mandatory standard at issue in this matter. As only three of the 17 relevant cited violations
evidence gravity of a reasonably serious nature, West Alabama’s history of violations is a
mitigating factor.
2. Appropriateness of Penalty to Size of Business
The evidence of record reflects that West Alabama has approximately eight employees.
The Secretary does not dispute that West Alabama has a small workforce. However, the
Secretary disputes that a small workforce precludes imposition of a relatively high penalty,
arguing that such limitation “goes directly against the deterrent purposes of the Act.” Sec’y
Resp., at 12. I conclude that the size of West Alabama’s business operations, with respect to
the Secretary’s $15,971.00 proposed penalty, is a neutral factor.
3. Negligence
The Secretary’s unwarrantable failure designation fundamentally is based on a “gotcha”
question from the MSHA inspector. Clay Junkin, Vice President of West Alabama, was asked by
the inspector if he knew that truck drivers had to tie down when climbing on their trucks to
secure loads. This confronted Junkin with the unenviable choice of admitting liability or
admitting ignorance. Citation No. 6511548 informs that Junkin responded that he knew that haul
truck drivers were required to tie down when covering their loads with tarp.

38 FMSHRC Page 1535

Attempting to rehabilitate himself in this proceeding, Junkin now maintains that he was
not aware that he was responsible for the contractor’s violative conduct. The Commission’s
remand noted that I erred in the initial decision when I opined that Junkin’s purported lack of
awareness of his responsibility for contractor conduct was based on a “reasonable and apparent
good faith belief” that was a mitigating factor that reduced West Alabama’s degree of
negligence. 37 FMSHRC at 1886.
Of course, it is a “knew or should have known” standard that imposes the responsibly on
mine operators to fulfill their obligations under the Mine Act. Thus, it is true that a mine
operator’s professed ignorance of its responsibility for the unsafe conduct of its contractors is
irrelevant. As the Secretary has acknowledged, absent aggravating circumstances, a mine
operator’s accountability for the violative conduct of its contractor commonly is based on strict
liability. Sec’y Resp., at 17. That is why such “gotcha” questions are inappropriate.
Although the initial decision unsuccessfully attempted to pay lip service to West
Alabama’s claim that it did know that it was responsible for its contractor’s conduct, the intended
emphasis in the initial decision with respect to notice, which admittedly was not made clear, was
that West Alabama had not been previously cited for a violation of section 56.15005. I view this
as somewhat mitigating in nature.
More significantly, it is noteworthy that the cited violation is predicated on the
spontaneous action of a contract haul truck driver. The Secretary does not contend that Junkin
was aware of the violation in that Junkin was not present, did not observe, and did not otherwise
supervise or encourage, Johnny Koger, the subject truck driver, as he covered his load with a
tarp. In this regard, it is significant that the negligence of an hourly employee ordinarily is not
imputed to a mine operator unless there is evidence of inadequate supervision and control.
Reading Anthracite Co., 32 FMSHRC 399, 411 (April 2010); Southern Ohio Coal Co.,
4
FMSHRC 1458, 1464 (Aug. 1982). While the Secretary has the discretion to cite a mine
operator, its contractor, or both, it is unfortunate that MSHA did not cite Denbar Transportation,
Koger’s employer, which is better suited to encourage the tie down compliance of its drivers. See
Sec’y Resp., at 17-18.
West Alabama has stipulated to “high” negligence. While the negligence remains high, in
sum, for the purposes of assessing a civil penalty, I conclude that West Alabama’s derivative
liability for the acts of its contractor, in the absence of a history of similar violations, is a
mitigating factor with respect to its degree of negligence.
4. Ability to Continue in Business
It has neither been contended nor shown that the Secretary’s proposed penalty will affect
West Alabama’s ability to continue in business. As such, I conclude that this criterion is a
neutral factor.

38 FMSHRC Page 1536

5. Gravity
The gravity penalty criterion requires an evaluation of the seriousness of the violation.
Consolidation Coal Co., 18 FMSHRC 1541, 1549 (Sept. 1996); Sellersburg Stone Co.,
5
FMSHRC 287, 294-95 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984). In evaluating the
seriousness of a violation, the Commission has focused on “the effect of the hazard if it occurs.”
Consolidation Coal Co., 18 FMSHRC at 1550. Citation No. 6511548 was designated as S&S
and affecting one person. As noted in the initial decision:
West Alabama does not deny that it is reasonably likely that the continued
practice of working on an uneven surface elevated ten feet above the ground will
result in an accident involving a fall that is reasonably likely to result in serious
injury. Consequently, the cited violation is properly designated as S&S.
34 FMSHRC at 1654. Accordingly, the violation is serious in gravity. I view this criterion as
neutral with regard to the appropriate penalty to be assessed.2
6. Good Faith Abatement
West Alabama’s abatement is troubling. Instead of installing signage requiring all
contract haul drivers to tie down when installing tarp, West Alabama posted a sign prohibiting
truck drivers from installing tarp on mine property by advising drivers “not to climb on
vehicles.” West Alabama Resp., at 6. (Mar. 24, 2016). In other words, if a haul truck operator
was inclined to expose himself to the danger of falling, he must do so off mine property.
Although approved by MSHA, this is questionable good faith abatement, at best. Consequently, I
view West Alabama’s abatement efforts as an aggravating factor.
On balance, applying the traditional section 110(i) analysis would provide for a
meaningful reduction of the $15,971.00 penalty proposed by the Secretary.

2

The mandatory standard in section 56.15005 requires “[s]afety belts and lines shall be
worn when persons work where there is danger of falling. . . .” (emphasis added). Section
56.15005 must, of necessity, be broad because the myriad circumstances requiring safety lines
cannot be foreseen. However, the securing of loads on haul trucks is an everyday occurrence. I
am concerned that the Secretary appears to take the position that the failure to tie down when
installing tarp on a haulage truck is a per se violation of section 56.15005. In view of the
Secretary’s per se approach, it is difficult to assess the degree of hazard posed by the facts
surrounding the violation at issue in Citation No. 6511548, wherein the truck operator was
observed installing the tarp “on his knees.” To avoid arbitrary enforcement, the Secretary should
consider initiating a rulemaking to promulgate a mandatory standard to require truck operators
to tie down when securing their load. By way of example, the mandatory standard at 30 C.F.R. §
56.12016 requires that all electrically powered equipment must be de-energized before
mechanical work is performed on such equipment. It is noteworthy that section 56.12016 does
not require de-energizing electrical equipment only when there is a danger of electric shock or
other injury.

38 FMSHRC Page 1537

III.

Delinquency

As previously noted, the Secretary has alluded to West Alabama’s civil penalty payment
delinquency as a relevant consideration in determining the appropriate penalty to be assessed for
Citation No. 6511548. See Sec’y Resp., at 12. Specifically, the MDRS reflects that of the
$27,890.00 in civil penalties assessed for the 59 citations and orders issued to West Alabama
during the period June 2010 to November 2015, West Alabama has paid $200.00 in satisfaction
of two citations. The MDRS further reflects that West Alabama is delinquent in its payment of
the $27,690.00 total civil penalty for the remaining 57 citations and orders. Thus, with the
exception of two citations, West Alabama has been delinquent in its payment of assessed civil
penalties for approximately six years.
With respect to delinquency as it relates to the imposition of civil penalties,
in the
past, the Commission has narrowly construed the civil penalty criteria in section 110(i). In Sec’y
o/b/o Johnson v. Jim Walter Res., Inc., 18 FMSHRC 841 (June 1996), the Commission stated:
“An operator’s delinquency in payment of penalties is not one of the criteria set forth in section
110(i) of the Mine Act for consideration in the assessment of penalties.” Id. at 850.
However, in Black Beauty Coal Co., 34 FMSHRC 1856 (Aug. 2012), the Commission
departed from its narrow interpretation of section 110(i) by emphasizing the role of deterrence as
a proper consideration in assessing civil penalties. In this regard, the Commission noted:
Clearly Congress viewed civil penalties as a mechanism to promote operator
compliance with health and safety mandates, and it explicitly called for
consideration of the protection of the “public interest” - which includes such
compliance - before a [penalty is assessed]. Consequently, it is eminently
appropriate for a Judge to acknowledge the need for deterrence in [considering the
appropriate civil penalty], with the understanding that the [ultimate civil penalty],
consistent with fundamental principles underlying the penalty provisions of the
Mine Act, discourage operators from violating health and safety regulations and
laws in the future.
Id. at 1866. In sum, the Commission stated:
Simply put, we refuse to require our Judges to apply blinders . . . and to ignore the
central and most obvious purpose of civil penalties - to ensure operator
compliance with safety measures - when deciding whether such penalties are
appropriate. Deterrence is a principle basic to and underlying the entire statutory
scheme of imposing civil penalties.
Id. at 1869.
On May 9, 2016, the parties were ordered to address whether delinquency is a relevant
consideration in determining the appropriate penalty to be assessed. 38 FMSHRC __, slip op.
(May 9, 2016) (ALJ). West Alabama responded on May 31, 2016, asserting that “while the Court
may consider the matter of Respondent’s delinquent payment history,” Black Beauty does not

38 FMSHRC Page 1538

compel the Court to do so. West Alabama Resp. to Order to Show Cause, at 1 (May 31, 2016).
West Alabama further argues that its delinquent payment history does not adversely affect
deterrence because “there is no history of relevant violations with respect to drivers climbing on
their trucks and failing to tie down, and accordingly no history of delinquent payment for such
violations.” Id. at 2.
The Secretary responded on June 14, 2016, asserting that West Alabama’s numerous
unpaid civil penalties “have done nothing to deter safety infractions at Respondent’s mine or to
compel Respondent to honor its obligations under the Mine Act.” Sec’y Resp. to Order to Show
Cause, at 2 (June 14, 2016). Consequently the Secretary avers that West Alabama’s “six-year
delinquent payment history should be given great weight in assessing the penalty in this matter.”
Id.
The ultimate goal of the Mine Act is to promote a general culture of safety by deterring
violations of the Mine Act and the Secretary’s mandatory safety regulations. In this regard, the
Commission in Black Beauty stated:
The legislative history of the Mine Act makes exceedingly clear that Congress
intended civil penalties assessed pursuant to the Mine Act to induce compliance
with health and safety laws and regulations. Put another way, Congress
undoubtedly recognized that such penalties should be used to deter operators from
violating such mandates.
The Senate Report, for example, acknowledged that civil penalties are “an
enforcement tool,” and recognized that the “settlement of penalties often serves a
valid enforcement purpose.” Legis. Hist. at 632-33. It emphasized that:
[T]he purpose of a civil penalty is to induce those officials responsible for
the operation of a mine to comply with the Act and its standards….
…To be effective and to induce compliance, civil penalties, once
proposed, must be assessed and collected with reasonable promptness and
efficiency.
… [T]he Committee strongly feels that since the penalty system is not for
the purpose of raising revenues for the Government, [but] is indeed for the
purpose of encouraging operator compliance with the Act’s
requirements….
Black Beauty, 34 FMSHRC at 1865-66 (quoting S. Rep. No. 95-181, at 44 (1977), reprinted in
Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine
Safety and Health Act of 1977, at 629-33 (1978)). Although Black Beauty concerns the propriety
of considering deterrence in the context of approving settlements of civil penalties, it is clear that
deterrence is also an appropriate consideration in determining civil penalties in contested cases.
See id.

38 FMSHRC Page 1539

West Alabama acknowledges the deterrent effect that the payment of civil penalties has
in promoting compliance with the Mine Act and the Secretary’s regulations. See West Alabama
Resp. to Order to Show Cause, at 2. Yet West Alabama did not provide any explanation for its
six-year history of delinquency. There was no claim of oversight or regret. Rather, in an
unabashed reliance on a distinction without a difference, West Alabama asserts that, despite its
extensive history of delinquency, deterrence has not been compromised simply because it has not
previously been cited for, and thus has not previously failed to pay a civil penalty for, a violation
of the safety belt requirement in section 56.15005. Id.
Succinctly put, the Mine Act’s legislative history makes clear that the purpose of a civil
penalty is to induce compliance. Id. at 1867. Suffice it to say that West Alabama’s six-year nonpayment history cannot be ignored, as it frustrates this purpose and may expose miners to
hazardous working conditions. I decline to elevate form—by the purposeless assessment of civil
penalties—over substance—by encouraging that civil penalties be paid.
In the final analysis, West Alabama’s delinquency must be considered as a significant
aggravating circumstance that warrants a meaningful increase in the civil penalty assessed for
Citation No. 6511548. I am cognizant that increasing the civil penalty in view of West
Alabama’s pattern of delinquency raises an obvious question: How will raising the civil penalty
foster compliance in view of West Alabama’s apparent disinclination to pay? Encouraging
compliance is a two-step process. As noted, compliance is achieved through the payment of civil
penalties. Thus, step one involves motivating delinquent mine operators to pay civil penalties by
increasing future assessed penalties that, if not paid, become a debt owed to the federal
government, collectable through an action brought by the Department of Justice. In step two, by
encouraging the payment of civil penalties, the Mine Act’s goal of deterrence and future
compliance hopefully will be achieved.
As previously noted, de novo consideration of the appropriate civil penalty to be assessed
does not require “that equal weight must be assigned to each of the penalty assessment criteria.”
Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997). Consequently, consistent with
the Commission’s holding in Black Beauty that the deterrent goal of assessing civil penalties
under the Mine Act is a proper consideration, West Alabama’s long-standing pattern of
delinquency warrants increasing the proposed penalty sought by the Secretary. Accordingly, a
civil penalty of $22,450.00 shall be assessed against West Alabama.

38 FMSHRC Page 1540

ORDER
In view of the above, IT IS ORDERED that West Alabama Sand & Gravel, Inc. pay,
within 40 days of the date of this Decision, a total civil penalty of $22,450.00 in satisfaction of
the single violation at issue. Upon timely receipt of this amount, Docket No. SE 2009-870 IS
DISMISSED.

/s/ Jerold Feldman
Jerold Feldman
Administrative Law Judge
Distribution: (Regular and Certified Mail)
Sophia E. Haynes, Esq., U.S. Department of Labor, Office of the Solicitor, 61 Forsyth Street
SW, Room 7T10, Atlanta, GA 30303
Clatus Junkin, Esq., P.O. Box 688, 202 3rd Street NE, Fayette, AL 35555
Charles E. Harrison, Esq., Pearson Harrison & Pate, LLC, P.O. Box 3119, Tuscaloosa, AL 35403
/acp

38 FMSHRC Page 1541

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9958 / FAX: 202-434-9949

June 30, 2016
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 2014-0255
A.C. No. 21-00282-343682

v.

Docket No. WEST 2014-0202-RM
A.C. No. 21-00282-8740887

CONVEYOR BELT SERVICES, INC.,
Respondent.

Mine: Minntac Mine

AMENDED DECISION AND ORDER
Appearances:

Laura Ilardi Pearson, Esq., U.S. Department of Labor, Office of the
Solicitor, Denver, CO, for Petitioner;
Justin Winter, Esq., Law Office of Adele Abrams, PC, Beltsville, MD, for
Respondent.

Before:

Judge L. Zane Gill

This proceeding arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) (“Mine Act” or “Act”), involves one section 104(d)(1) citation, issued by the
Department of Labor’s Mine Safety and Health Administration (“MSHA”) to Conveyor Belt
Services, Inc. (“CBS”) at the U.S. Steel Company’s Minntac Mine (“the Mine”). The parties
presented testimony on December 9, 2014, in Duluth, Minnesota.
The contested issues at trial for Citation No. 8740887 (“the Citation”) included whether
CBS violated 30 C.F.R. § 56.11027, whether CBS had fair notice of the Secretary’s
interpretation of the standard, whether the violation warranted enhanced enforcement, and
whether the penalty was properly assessed.
For the reasons set forth below, I find CBS violated 30 C.F.R. § 56.11027 and had fair
notice that the conveyor belt bed and temporary structure were working platforms under the
standard. I also find CBS’s violation was properly classified substantial and significant (“S&S”),
and an unwarrantable failure. Finally, I find the violation involved high negligence and was
reasonably likely to result in lost workdays or restricted duty. I assess a penalty in the amount of
$2,000.00.

38 FMSHRC Page 1542

Stipulations
The joint stipulations were read into the record at the hearing: (Tr. 92:20-94:16)
1. At all times relevant to this proceeding Conveyor Belt Service, Inc., which is known
as CBS, Contractor ID# G10, was engaged in mining operations and subject to the
jurisdiction of Federal Mine Safety and Health Act of 1977.
2. At the time the citation that is that the subject of this case was issued, Conveyor Belt
Service was engaged in mining operations at the Minntac Mine. Mine. Mine ID# 2100282.
3. MSHA has jurisdiction over CBS’s operations at the Mine because CBS was an
operator as defined in Section 3(b) of the Act, 30 U.S.C., Section 803, and the
products of the Mine entered the stream of commerce or the operations or products
thereof affected commerce within the meaning and scope of Section 4 of the Act. 30
U.S.C. Section 803.
4. The Administrative Law Judge has subject matter and personal jurisdiction over these
proceedings pursuant to Section 105 of the Act.
5. CBS’s operations affect interstate commerce.
6. On or about December 11, 2013, MSHA inspected the Mine.
7. MSHA Inspector Thaddeus Sichmeller was acting in his official capacity as an
authorized representative of the Secretary when he inspected the Mine and issued the
subject citation.
8. CBS abated the alleged violation in good faith.
9. The proposed penalties in this matter will not affect CBS's ability to remain in
business.
10. Stipulation as to the authenticity of exhibits. The certified copy of the MSHA
Assessed Violations History, Exhibit GX1, reflects the history of the Mine for the 15
months prior to the date of the Citation and may be admitted into evidence without
objection by CBS.
11. The parties stipulated to the authenticity but not the truthfulness or relevance of the
content of the following exhibits:
a) Citation 8740887.
b) Citation documentation related to 8740887.
c) Photographs associated with citation 8740887.

38 FMSHRC Page 1543

d) Citation 8664341.
e) Complete inspection report for event number 6631817.
f) Deposition transcript of Thaddeus Sichmeller.
g) MSHA Program Policy Letter P12-IV-01.
Background
On December 11, 2013, MSHA Inspector Thaddeuys Sichmeller1 (“Inspector
Sichmeller”) issued the Citation to CBS, alleging a violation of 30 C.F.R. § 56.11027, pursuant
to § 104(d)(1) of the Mine Act. The regulation requires that “[s]caffolds and working platforms
shall be of substantial construction and provided with handrails and maintained in good
condition.” 30 C.F.R. § 56.11027. Section 56.11027 is a mandatory safety standard. The citation
alleges:
Two employees were observed conducting belt work on the 003-01
conveyor in the basement area of Step 1 and 2 Fines Crusher. The two
employees were working from a makeshift work platform making a belt
splice. The two employees were not protected from a fall from the work
area. The top of the work area to the concrete floor below measured 51
inches on the south side and 55 inches on the north side due to the sloped
concrete floor. The company has had similar violations in the past. The
company has engaged in aggravated conduct by allowing the work to
conduct in this area with out [sic] the proper protection of from [sic] a fall
from the work platform. This violation is an unwarrantable failure to
comply with a mandatory standard.
(Ex. GX 1)
U.S. Steel contracted with CBS, a company specializing in conveyor belt maintenance, to
perform work at the Mine.2 (Tr. 8:1-2; 9:2-4) On the date of the alleged violation, six CBS
employees, supervised by CBS foreman Kelly Theil3 (“Theil”), were performing conveyor belt

1

Inspector Sichmeller has worked for MSHA since February 24, 2003. (Tr. 13:19-20)
Prior to starting at MSHA, he worked at a molybdenum mine in Idaho for about eight-and-a-half
years. (Tr. 14:4-24) As a miner, Sichmeller repaired between ten and fifteen conveyor belts. (Tr.
16:4-10) As an MSHA inspector, Sichmeller is responsible for conducting sixty to eighty mine
inspections a year. (Tr. 16:22-17:1) Sichmeller also acts as an MSHA accident investigator.
(16:11-17)
2

The Mine is a multi-level, surface iron-ore mine. (Tr. 22:1-6; 17:24-18:2)

3

Theil works for CBS as a “belt technician.” (Tr. 65:23-25) At the time of litigation,
Theil had worked for CBS for 29 years. (Tr. 66:7-9)

38 FMSHRC Page 1544

maintenance on multiple levels of the Mine. (Tr. 67:2-10) The two employees cited4 were
replacing a fifty-four-inch wide conveyor belt in the “basement” area of the Mine.5 (Tr. 72:2273:4)
To replace the conveyor belt, the employees had to splice the ends of the new belt
together. (Tr. 9:25-10:15) This process involved punching holes in the ends of the belt, putting
clips in the holes to attach the belt, and sealing the belt. Id. Because the belt was one-inch thick
and very stiff, attaching the ends required flattening the belt. (Tr. 74:10-14; 75:19-25) To flatten
the belt, the employees placed it on a temporary structure fashioned from a stepladder, two steel
toolboxes, and a piece of plywood. (Tr. 76:10-15) This temporary structure rested on the
conveyor belt bed, which measured forty-one inches from the ground. (Tr. 76:21) The temporary
platform measured fifty-one inches from the ground on its south side and fifty-five inches on its
north side.6 (Tr. 23:19-23; see also Ex. G6)
Once the employees laid the conveyor belt ends on the temporary structure, they stood on
the conveyor belt (which was placed on the conveyor belt bed) to attach the middle portion of the
belt. (Tr. 10:25-11:4) When Inspector Sichmeller observed the alleged violation, one of the
employees was standing on the conveyor belt and the other was kneeling on the belt. (23:423:10) However, Inspector Sichmeller’s testimony does not make clear whether the employees
were on the portion of the conveyor belt resting directly on the conveyor belt bed or the portion
resting on the temporary structure. (Tr. 23:3-17; 38:7; 39:13) Both the conveyor belt bed and
temporary structure lacked handrails, and the employees were not wearing fall protection. (Tr.
24:13-16) Inspector Sichmeller testified that a fall from the conveyor belt bed or temporary
structure could cause sprain-strains, broken bones or, even, fatalities. (Tr. 25:4-15; 27:2-9) The
employees were on the conveyor belt for an estimated forty-five minutes to an hour. (Tr. 75:2425; 81:17-19)
Theil testified he was on an upper level of the Mine when Inspector Sichmeller saw the
employees on the conveyor belt. (Tr. 78:1-6) However, Inspector Sichmeller testified that Theil
was present in the “basement” area when he observed the violative condition. (Tr. 35:11-14)
About a year-and-a-half before issuing the Citation, Inspector Sichmeller issued Citation
No. 86604341 (“citation 341”) to CBS for a similar violation at another U.S. Steel mine. (Tr.
29:8-30:6) Citation 341 alleged that Theil, who was supervising the job, and two CBS

4

The employees had two and eight years of experience working on conveyor belts,
respectively. (Tr. 73:7-9) The employee with two years of experience had changed about ten
belts at the time the Citation was issued, while the employee with eight years of experience had
changed over 100 belts. (Tr. 73:10-18)
5

The “basement” is the second lowest level of the Minntac Mine. (Tr. 22:11-16) The
lowest level of the Mine is called the “subbasement.” Id.
6

The height difference was due to the sloped design of the floor in the “basement” area.
(Tr. 23:18-23)

38 FMSHRC Page 1545

employees, violated 30 C.F.R. § 56.150057 by standing on an elevated conveyor belt and cable
tray without fall protection. (Tr. 30:7-12) The conveyor belt involved in citation 341 was fiftytwo inches high and fifteen inches wide. (Ex. G9) The cable tray was about thirty-eight inches
high. (Tr. 32:18-24) When Inspector Sichmeller issued citation 341, he spoke to Theil about fall
hazards and the need for fall protection or hand railings when working on elevated surfaces. (Tr.
33:4-11)
Inspector Sichmeller classified the violation as S&S, high negligence and an
unwarrantable failure, in part, because he had previously cited CBS. (Tr. 8:18-22; 61:10-13)
Additionally, he considered the presence of tools, mud, and water on the belt when he issued the
Citation an aggravating factor. (Tr. 60:3-10)
Prior to beginning the job at Minntac Mine, Theil reviewed U.S. Steel’s safety policies,
which included an Occupational Health and Safety Administration (“OSHA”) rule requiring fall
protection at heights of six-feet or more. (Tr. 19:5-11; 20:1-6) In June, 2012, MSHA issued
Program Plan Letter P12-IV-01 (“PPL”) on fall protection. (Ex. R5) The PPL included OSHA’s
six-foot rule for inspectors to consider when issuing citations for violations of MSHA standards
56.15005 and 57.15005. (Tr. 20:7-20) Inspector Sichmeller testified that MSHA inspectors view
the PPL as a “guideline.” Id.
CBS also held a safety meeting with U.S. Steel before commencing work on the job. (Tr.
68:15-17) During this meeting, the companies discussed the safety equipment needed for every
segment of the job and determined that fall protection was not required for work in the
“basement” area. (Tr. 68:18-69:16; 70:22-25) However, the companies did not discuss the
possibility of the employees constructing a temporary structure of the kind they ultimately made.
(Tr. 85:24-86:7) Theil testified the decision to make the temporary structure was “spur-of-the
moment,” and that he did not witness the employees erect the structure. (Tr. 85:15-86:7)
However, he testified he had seen platforms of this kind used to flatten belts in the past. (Tr.
86:8-21)
When Inspector Sichmeller issued the citation, the employees came to the ground. (Tr.
36:21-25) Subsequently, the employees used handrails, surrounding the conveyor belt, to
complete the belt splice. (Tr. 81:7-11)
Brief Summary of the Parties’ Arguments
Secretary of Labor
The Secretary argues the Citation was properly issued because CBS violated § 56.11027
by failing to equip a working platform with handrails. (Tr. 8:18-19) The Secretary argues the

7

The standard reads: “[s]afety belts and lines shall be worn when persons work where
there is danger of falling; a second person shall tend the lifeline when bins, tanks, or other
dangerous areas are entered.” 30 C.F.R. § 56.15005.

38 FMSHRC Page 1546

temporary structure was a working platform.8 (Sec. Br. 12) He defines a working platform as “a
place from which miners may perform work on areas they otherwise could not reach,” regardless
of height. (Sec. Br. 12) The Secretary contends the violation warranted enhanced enforcement
because Inspector Sichmeller’s testimony supported findings of S&S and an unwarrantable
failure. Id. at 13-17. The Secretary argues the penalty was properly assessed based on CBS’s
high negligence and the likelihood that the injury would result in lost workdays or restricted
duty. (Ex. GX 2)
Conveyor Belt Service, Inc.
CBS argues the Citation should be vacated because the Secretary failed to prove the
company violated § 56.11027. (Resp. Br. 2) CBS contends the Secretary erred in interpreting the
regulation to require handrails on working platforms of any height. Id. at. 7. Alternatively, CBS
argues the citation should be vacated because the company did not have fair notice that the
standard mandated the use of handrails on surfaces less than six feet high. Id. at 2. CBS also
challenges the Secretary’s finding that the violation warranted enhanced enforcement. Id. CBS
argues the violation was not S&S because there were many factors that made a fall unlikely to
occur. Id. at 13. Additionally, CBS argues the violation was not an unwarrantable failure because
their actions did not meet the six requirements of an unwarrantable failure. Id. at 16-17. Finally,
CBS argues the violation should be reclassified as low or no negligence because Theil was not
aware of the violation and there were mitigating factors. Id. at 14-15.
Violation
Under the Mine Act, mine operators are strictly liable for violations, provided the
conditions violating the regulation existed. Asarco v. Comm’n, 868 F.2d 1195, 1197 (10th Cir.
1989). If such conditions existed, the Secretary is not required to demonstrate that the violation
creates a safety hazard. Allied Prods, Inc. v. Comm’n, 666 F.2d 890, 892 (5th Cir. 1982).
The Conveyor Belt was a Work Platform Under § 56.11027
CBS argues the Secretary failed to prove they violated § 56.11027 because the temporary
structure was not a working platform. (Tr. 9:21-24)9 The Secretary argues the standard mandates
the use of handrails on all working platforms, which he defines as places “from which miners
may perform work on areas they otherwise could not reach.” (Sec. Br. 12; Tr. 52:14-17) CBS
believes this interpretation is erroneous because it would lead to the absurd result of requiring
handrails on all elevated surfaces, even those that are only two or three inches off the ground.

8

The Secretary argues the temporary structure was a working platform, but he does not
contend the conveyor belt bed was also a working platform. (Sec. Br. 12) However, the conveyor
belt bed is a working platform under the Secretary’s definition of the term.
9

CBS argues the temporary structure was not a working platform but, like the Secretary,
makes no mention of the conveyor belt bed. (Tr. 9:21-24) Presumably, CBS intended to argue
neither surface was a working platform, since they argue fall protection was wholly unnecessary
in the “basement” area. (Tr. 72:8-15)

38 FMSHRC Page 1547

(Resp. Br. 7) Additionally, CBS argues this interpretation contradicts MSHA’s PPL on the
minimum height at which fall protection is necessary. Id.
“The language of a regulation or statute is the starting point for its interpretation.” Dyer v.
United States, 832 F.2d 1062, 1066 (9th Cir. 1987) (citing Consumer Product Safety Comm'n v.
GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)). The Commission has found, when the language
of a regulation is clear, “the ordinary meaning of words must prevail where that meaning does
not thwart the purpose of the statute or lead to an absurd result.” Emery Mining Corp., 9
FMSHRC 1997, 2001 (December 1987) (citing In re Trans Alaska Pipeline Rate Case, 436 U.S.
631, 643 (1978)). “In the absence of a statutory or regulatory definition of a term, or a technical
usage, we look at the ordinary meaning of the terms used in the regulation.” Bluestone Coal
Corp., 19 FMSHRC 1025, 1029 (June 1997). Whether a regulation is ambiguous is determined
by “referring to the language itself, the specific context in which that language is used, and the
broader context as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).
When a mandatory standard of the Mine Act is ambiguous, “the courts and the
Commission defer to the Secretary’s reasonable interpretation of the regulation.” Twentymile
Coal Co., 36 FMSHRC 2009, 2012 (Aug. 2014). An interpretation is reasonable if it is “logically
consistent with the language of the regulation[s] and . . . serves a permissible regulatory
function.” General Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995) (quoting Rollins Envtl.
Serv., Inc., 937 F.2d 649, 652 (D.C. Cir. 1991)). Deference to an agency interpretation can be
due even if the interpretation is articulated in a legal brief. See Christopher v. SmithKline
Beecham Corp., 132 S.Ct. 2156, 2166 (2012).
The term working platform is not defined in the Mine Act or any MSHA regulations.
Also, there is no technical definition of the term as it relates to the facts surrounding the
Citation.10 However, MSHA regulations define a working place as “any place in or about a mine
where work is being performed.” 30 C.F.R. § 56.2. Merriam Webster’s Online Dictionary
defines platform as “a flat surface that is raised higher than the floor or ground and that people
stand on when performing or speaking” or, “a usually raised structure that has a flat surface
where people or machines do work.” Merriam Webster's Online Dictionary,
http://www.merriam-webster.com/dictionary (last accessed Jun. 10, 2016). Taken together, the
definitions of working place and platform indicate that a working platform is a flat, elevated
surface where work is performed.
This plain meaning comports with the purpose of the regulation—to “prevent a fall”—as
to fall, one must generally be on a surface above ground level. See Granite Rock Co., 32
FMSHRC 1792, 1794 (Nov. 2010) (ALJ Weisberger). Therefore, I find the standard
unambiguous. Additionally, I find that the plain meaning of § 56.11027 does not thwart the
purpose of the statute or lead to an absurd result because it protects against falls that could
10

The American Geological Institute defines a work platform as “a board or small
platform placed at a suitable height in the drill tripod or derrick so that a worker standing on it
can handle the drill rod stands.” Am. Geological Institute, Dictionary of Mining, Mineral, and
Related Terms 631 (2d ed. 1997) (“DMMRT”). However, neither drill tripods nor derricks were
involved in the issuance of the Citation.

38 FMSHRC Page 1548

potentially injure miners. Judges have also interpreted working platform in a way consistent with
the term’s ordinary meaning. See Voss Sand Works, Inc., 34 FMSHRC 906, 913 (Apr. 2012)
(ALJ Miller) (holding a boat was a working platform because it was “an elevated, horizontal, flat
surface”); Lakeview Rock Products, 19 FMSHRC 321, 359 (Feb. 1997) (ALJ Koutras) (holding
that an overturned 55-gallon drum elevated 34.8 inches off the ground was a work platform).
Therefore, I find the plain meaning of the regulation should govern here.
As I find the regulation unambiguous, there is no need to defer to the Secretary’s
interpretation of the standard.11 I find the conveyor belt bed and the temporary structure served
as working platforms because they were elevated, flat surfaces the employees stood on to
perform a belt splice. Because the conveyor belt bed and temporary structure were working
platforms and lacked handrails, I find CBS violated § 56.11027. Even if it were possible to claim
some ambiguity remains in the regulation, I find the deference accorded to reasonable
interpretations by the Secretary outweighs CBS’s argument that handrails were not required on
the conveyor belt bed and temporary structure.
The Operator Had Fair Notice of § 56.11027
CBS argues it did not have notice handrails were required on a surface less than six feet
above the ground. (Resp. Br. 12) This argument is based on MSHA’s issuance of a PPL, which
says inspectors may use the OSHA six-foot rule in interpreting 30 C.F.R. §§ 56.15005 and
57.15005. (Resp. Br. 8; see also Ex. 5R)
Under the due process clause, an agency may not enforce a new interpretation of a
regulation without advance notice of the conduct prohibited or required by the standard. Gates &
Fox Co. v. Occupational Safety and Health Review Comm’n, 790 F.2d 154, 156 (D.C. Cir. 1986).
The notice requirement is generally satisfied when a party receives actual notice of MSHA’s
interpretation of a regulation prior to enforcement of the standard against the party. LaFarge
North America, 35 FMSHRC 3497, 3500 (Dec. 2013). In the absence of sufficient evidence of
actual notice, the Commission applies the “reasonably prudent person” test. See id. In Alabama
By-Products Corp., 4 FMSHRC 2128, 2129 (Dec. 1982), the Commission articulated the
reasonably prudent person test as follows: “whether a reasonably prudent person familiar with
the factual circumstances surrounding the allegedly hazardous condition, including any facts
peculiar to the mining industry, would recognize a hazard warranting corrective action within the
purview of the applicable regulation.”
However, actual notice or notice via the “reasonably prudent person” test is not required
when a regulation is clear, as an unambiguous standard itself provides fair notice to operators of
its requirements. See Jim Walter Resources, Inc., 28 FMSHRC 983, 988 n.6 (Dec. 2006) (citing
Bluestone Coal Corp., 19 FMSHRC 1025, 1031 (June 1997)). Because the meaning of “working
platform” under § 56.11027 is clear, I find CBS had fair notice the conveyor belt bed and
temporary structure were working platforms, and, therefore, required handrails. Even if it could
be argued the standard is ambiguous, I find citation 341 provided CBS with actual notice or, at a
11

At this point, I will not address the validity of the Secretary’s interpretation of §
56.11027 or the exact elevation at which a working place becomes a working platform.

38 FMSHRC Page 1549

minimum, fair notice under the “reasonably prudent person” test that handrails were required on
the conveyor belt.
Enhanced Enforcement
To invoke the enhanced enforcement provisions for mandatory safety standards set out in
§ 140(d), the Secretary must prove the violation satisfies the S&S and unwarrantable failure
standards. See Lodestar Energy, Inc., 25 FMSHRC 343, 345 (Jul. 2003).
Significant and Substantial
The Secretary designated the citation S&S. (Ex. G2). S&S determinations are made based
on the specific facts of the case. See Cumberland Coal Res., LP, 33 FMSHRC 2357, 2369 (Oct.
2011); National Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). A finding of S&S requires that
the Secretary prove:
(1) underlying violation of a mandatory safety standard; (2) a discrete
safety standard—that is, a measure of danger to safety—contributed to by
the violation; (3) reasonable likelihood that the hazard contributed to will
result in an injury; and (4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature.
Mathies Coal Co., 6 FMSHRC 1, 3 (Jan. 1984). The violation satisfies the first element of the
test because § 56.11027 is a mandatory safety standard. (Ex. GX 2)
“The second element of Mathies requires the Secretary to demonstrate that the violation
contributed to a safety hazard.” Oak Grove Res., LLC, 37 FMSHRC 2687, 2696 (Dec. 2015).
The Commission has said to be a “hazard,” a violation must contribute to a specific danger. See
Mathies, 6 FMSHRC at 3-4. A violation is not S&S if it is non-dangerous. See U.S. Steel Mining
Co., Inc., 6 FMSHRC 1834, 1836 (Aug. 1984) (citing Gypsum, 3 FMSHRC at 827. However,
even if a hazard is unlikely to occur, a violation can be deemed S&S. See Musser Eng’g, Inc., 32
FMSHRC 1257, 1280 (Oct. 2010). Whether a violation is S&S is determined in the context of
continued mining operations and “cannot ignore the dynamics of the mining environment or
process.” U.S. Steel, 6 FMSHRC at 1574. I find the Secretary demonstrated the violation
contributed to a safety hazard, satisfying the second element of the test, because the lack of
handrails contributed to the risk of falling off the conveyor belt from either side. (Tr. 20:25-21:3)
The Commission has held element three does not require the Secretary to show it is more
probable than not that an injury will result from violation. See U.S. Steel Mining Co., 18
FMSHRC 862, 865 (June 1986). The hazard, rather than the specific violation, must be
“reasonably likely to result in an injury” for the violation to be deemed S&S. Peabody Midwest
Mining, LLC v. FMSHRC, 762 F.3d 611, 616 (7th Cir. 2014). An inspector’s judgment is an
important factor in determining whether there is “a reasonable likelihood that the hazard
contributed to will result in an injury.” Harlan Cumberland Coal Co., 20 FMSHRC 1275, 127879 (1998) (holding an inspector’s belief that hanging drawrock posed a reasonable likelihood of
injury to miners was persuasive). In Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135-36 (7th

38 FMSHRC Page 1550

Cir. 1995), the Seventh Circuit held no evidence beyond the testimony of an experienced mine
inspector is necessary to support a finding of S&S.
Inspector Sichmeller testified an injury was reasonably likely because the employees
were exposed to a fall hazard without fall protection, and there were tools and mud on the belt.
(Tr. 26:12-22) Earlier that year, Inspector Sichmeller witnessed a fatal fall from a work platform
of less than six feet. (Tr. 25:12-26:9) Theil testified the employees only would have been on the
conveyor belt for about forty-five minutes and that CBS employees have used temporary
structures to complete belt splices in the past. (Tr. 75:19-75:25) Additionally, Theil testified fall
protection was not necessary because the employees were standing on a flat, wide area. (79:1980:2) However, Inspector Sichmeller estimated the employees were on the conveyor belt for
closer to an hour. (Tr. 36:2-9) Also, Theil’s testimony that he has seen similar structures used in
the past indicates he was aware the employees might stand on the belt because it would be
difficult to reach an elevated temporary structure from the ground. Although the employees were
only on the belt for forty-five minutes to an hour, and the conveyor belt was wide and flat, the
tools and water on the belt made an injury reasonably likely. I credit Inspector Sichmeller’s
judgement that the violation was reasonably likely to result in an injury.
The remaining factor in the S&S designation, the fourth element of the Mathies test, is
concerned with the likely gravity of an accident. To be of a “reasonably serious nature” an injury
does not need to “result in hospitalization, surgery, or a long period of recuperation.” S&S
Dredging Co., 35 FMSHRC 1979, 1981-82 (July 2013). Injuries such as “muscle strains,
sprained ligaments, and fractured bones are injuries of a reasonably serious nature,” and have
been deemed “reasonably serious.” Id. Additionally, the Secretary is not required to show a
similar type of injury has actually occurred. See Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec.
2005) I find the violation meets the fourth element of the test because a fall from the conveyor
belt bed or temporary structure is reasonably likely to result in sprain strains, broken bones and
fatalities. (Tr. 25:10-15) As stated earlier, Inspector Sichmeller observed an injury of this kind
when a miner died as a result of a fall from a similar height. (Tr. 25:12-26:9) All of these injuries
are considered reasonably serious under the test. Since all the Mathies elements are proven, I
find the violation was S&S.
Unwarrantable Failure
The Secretary argues the violation satisfies the unwarrantable failure criteria because
aggravating factors were present. (Sec. Br. 17) CBS argues the facts with which the Secretary
supports a finding of unwarrantable failure are not aggravating factors. (Resp. Br. 16)
An unwarrantable failure is characterized by conduct such as “reckless disregard,”
“intentional misconduct,” indifference,” or a “serious lack of reasonable care.” Rochester &
Pittsburgh Coal Co., 13 FMSHRC 189, 194 (1991). The Commission has defined an
unwarrantable failure as “aggravated conduct constituting more than ordinary negligence.”
Emery, 9 FMSHRC at 2001.
Whether conduct is ‘aggravated’ in the context of unwarrantable failure is
determined by looking at all the facts and circumstances of each case to see if any
aggravating factors exist, such as the length of time that the violation has existed,

38 FMSHRC Page 1551

the extent of the violative condition, whether the operator has been placed on
notice that greater efforts are necessary for compliance, the operator's efforts in
abating the violative condition, whether the violation is obvious or poses a high
degree of danger, and the operator's knowledge of the existence of the violation.
Lopke Quarries, Inc., 23 FMSHRC 705, 711 (2011). “While each factor does not need to
be present in order to find unwarrantable failure, all six factors must be considered.”
Alden Resources, LLC, 37 FMSHRC 753, 767 (April 2015) (ALJ Andrews).
The Secretary argues the violation was long because any exposure to a fall hazard is “too
long.” (Sec. Br. 17) Although it is uncertain how long the employees were on the conveyor belt,
the court must take even imperfect evidence in the record into account when evaluating whether
a violation was an unwarrantable failure. Coal River Mining, LLC, 32 FMSHRC 82, 93 (Feb.
2010). Even if violation occurs for a relatively short period, it can be deemed of long duration for
unwarrantable failure purposes if there is a high degree of danger. See Engineering &
Constructors, 24 FMSHRC 669, 679-80 (Jul. 2002) (finding a four to five foot gap in a hand rail,
70 feet above the ground, was a violation of long duration even though it only existed for two
days); Midwest Material Company, 19 FMSHRC 30, 34-36 (Jan. 1997) (holding a violation was
an unwarrantable failure, even though it only occurred for a few minutes, because it posed a high
degree of danger, involved a foreman, and may have continued, but for occurrence of accident).
Although the violation here only lasted for forty-five minutes to an hour, it posed a high degree
of danger and a fall, resulting in a serious injury, was possible within the short period of time the
employees were on the conveyor belt.
The Secretary also argues any exposure to a fall hazard is “too extensive.” The extent of
a violation “has traditionally been determined by examining the extent of the affected area as it
existed at the time the citation was issued.” Dawes Rigging & Crane Rental, 36 FMSHRC 3075,
3079 (Dec. 2014). “In some situations . . . extensiveness depends on the number of persons
affected by the violation.” Id. at 3079-80. CBS’s violation only affected a small area of one
conveyor belt and two employees; therefore, I find the violation was not extensive.
The Secretary argues CBS was on notice that handrails were necessary on the conveyor
belt for compliance with § 56.11027. (Sec. Br. 15-16) “The Commission has stated that repeated
similar violations are relevant to an unwarrantable failure determination to the extent that they
serve to put an operator on notice that greater efforts are necessary for compliance with a
standard.” Brody Mining, LLC, 37 FMSHRC 1687, 1698 (Aug. 2015). As discussed earlier, CBS
was cited for a similar violation a year-and-a-half earlier. Although a single citation does not rise
to the level of “repeated” violations, the same foreman supervised both jobs and was expressly
put on notice that fall protection was necessary when performing work on elevated conveyor
belts. (Tr. 31:16-25) For this reason, I find CBS was on notice that greater efforts were necessary
for compliance with the standard.
The Secretary argues the violation was obvious. (Sec. Br. 17) A condition is obvious
when it could be observed by a supervisor or inspector. See E. Associated Coal Corp., 32
FMSHRC 1189, 1200 (Oct. 2010). The violation at issue meets this definition because Inspector

38 FMSHRC Page 1552

Sichmeller saw the employees standing on the conveyor belt as soon as he walked into the
“basement” area.
Finally, CBS claims Inspector Theil did not know the employees planned to stand on the
belt to complete the splice. (Resp. Br. 14) They argue the employees’ violation cannot be
imputed to the company because the employees acted unilaterally in standing on the belt. Id.
However, there is contradictory testimony regarding Theil’s location when the employees were
on the conveyor belt, meaning it is possible Theil witnessed the employees use the belt as a work
platform. Theil testified he had seen employees use a temporary structure, like the one built by
the employees, to flatten out conveyor belts in the past. (Tr. 76:2-4) This testimony, along with
Theil’s admission that, before receiving citation 341, CBS had done similar conveyor belt
changes fifty times without fall protection, indicates Theil should have known the employees
might stand on the belt to complete the splice. (Tr. 72:4-7) Therefore, I find Theil knew, or had
reason to know, of the violation.
Because CBS’s actions meet the majority of requirements for an unwarrantable failure, I
find the violation was an unwarrantable failure. Additionally, as the violation was S&S and an
unwarrantable failure, I find enhanced enforcement was warranted.
Penalty
The Secretary proposed a $2,000 penalty for CBS’s violation.12 (Ex. G2) CBS argues this
penalty is too high because the violation was low or no negligence. (Resp. Br. 14-15)
The Mine Act sets forth the following criteria for the Commission to weigh in assessing
civil penalties:
(1) the operator’s history of previous violations; (2) the appropriateness of such
penalty to the size of the business of the operator charged; (3) whether the
operator was negligent; (4) the effect on the operator’s ability to continue in
business; (5) the gravity of the violation; and (6) the demonstrated good faith in
abatement of the violative condition.
30 U.S.C. § 820(i). The Secretary uses the same criteria in determining proposed penalties. See
Sellersburg Stone Co., 736 F.2d 1147, 1151 (7th Cir, 1984). While Commission judges may
weigh some of the six penalty assessment criteria more heavily than others, they must address
each of the criterion in his or her decision. See Musser Eng’g, Inc., 32 FMSHRC 1257, 1289
(Oct. 2010); Sellersburg Stone Co., 5 FMSHRC 287, 293 (Mar. 1983).
Commission judges may set civil penalties, provided the penalty serves as an effective
deterrent against future violations. See Cantera Greene, 22 FMSHRC 616, 620 (May 2000).
Commission judges are not bound to the Secretary’s proposed penalty assessments. See
Sellersburg, 736 F.2d at 1151. However, if the Commission’s assigned penalty differs
12

The proposed penalty is the minimum amount for 104(d)(1) citation, which the
Commission may not lessen if the violation is deemed S&S and an unwarrantable failure. 30
U.S.C. 820(a)(3)(A); Hidden Splendor Res., Inc., 36 FMSHRC 3099, 3103 (Dec. 2014).

38 FMSHRC Page 1553

substantially from the penalty proposed by the Secretary, the Commission must provide an
explanation justifying the change. Sellersburg, 5 FMSHRC at 293. It is appropriate for a judge to
raise the penalty significantly based on his or her findings of extreme gravity and unwarrantable
failure. Spartan Mining, 2008 W.L. 4287784, at *23 (FMSHRC Aug. 28, 2008). Judges are free
to give greater weight to the negligence and gravity of a violation when assessing penalties. See
Lopke, 23 FMSHRC at 713.
Negligence
Inspector Sichmeller cited the violation as high negligence because he issued CBS and
Theil a citation for a similar violation a year-and-a-half earlier. (Tr. 34:21-35:4) Inspector
Sichmeller argues this prior citation indicates the operator knew of the fall protection
requirement. Id. CBS argues the violation should be reclassified as low or no negligence because
Theil did not know, or have reason to know, of the violation and there were mitigating
circumstances. (Resp. Br. 15)
The Mine Act is a strict liability statute, so negligence plays no role in citation issuance.
30 U.S.C. § 814(1). Inspectors must issue citations for violations of mandatory safety standards,
regardless of operator negligence. Musser, 32 FMSHRC at 1272. However, negligence is
considered in assessing civil penalties. Asarco, Inc., 8 FMSHRC 1632, 1636 (Nov. 1986), aff’d,
868 F.2d 1195 (10th Cir. 1989). In determining negligence for penalty purposes, “the conduct of
a rank-and-file miner is not imputable to the operator.” Whayne Supply, 19 FMSHRC 447, 451
(Mar. 1997) (quoting Fort Scott Fertilizer, 17 FMSHRC 1112, 1116 (July 1995). However,
factors used to determine negligence include the “foreseeability of the miner’s conduct, the risks
involved and the operator’s supervising, training, and disciplining of its employees to prevent
violations of the standard in issue.” A.H. Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983).
Negligence is “conduct, either by commission or omission, which falls below a standard
of care established under the Mine Act to protect miners against the risks of harm.” 30 C.F.R. §
100.3(d). A violation is not negligent “when the operator exercised diligence and could not have
known of the violative condition or practice.” Id. A violation is low negligence “when an
operator knew or should have known of a Mine Act violation, but there are considerable
mitigating circumstances.” Id. A violation is moderately negligent when “an operator knew or
should have known of a Mine Act violation, but there are mitigating circumstances.” Id. Finally,
a violation is high negligence “when an operator knew or should have known of Mine Act
violation, and there are no mitigating circumstances.” Id.
Mitigating factors are also weighed in this analysis. A mitigating factor is something an
operator does affirmatively, with knowledge of the potential hazard being mitigated, that tends to
reduce the likelihood of an injury to a miner. This includes actions taken by the operator to
prevent or correct hazardous conditions.
As discussed in terms of the unwarrantable failure analysis, CBS argues Theil did not
know, or have reason to know, of the violation. I find this argument unpersuasive. CBS also
argues the citation should be reclassified as low or no negligence because there were mitigating
circumstances. (Resp. Br.15) Firstly, CBS argues MSHA’s issuance of the PPL, which indicated
inspectors may use the OSHA six-foot rule as guidance, was a mitigating factor. Id. However,

38 FMSHRC Page 1554

the PPL addressed citations issued under § 56.15005, not § 56.11027. (Ex. R5-001) More
importantly, the PPL “leaves room for site specific evaluation.” Boart Longyear Co., 35
FMSHRC 3680, 3687 (Dec. 2013) (ALJ Barbour). Inspector Sichmeller testified the PPL was a
“guideline for inspectors to use,” but that they were not bound to follow the OSHA six-foot rule.
(Tr. 44:12-45:19) Thus, Inspector Sichmeller was not bound to the interpretation put forth by
MSHA in the PPL, and it was not a mitigating factor.
Secondly, CBS argues its meeting with U.S. Steel prior to the start of the job was a
mitigating factor. (Tr. 12:9-13) However, the employees deviated from the plan discussed at the
meeting when they used the conveyor belt as a working platform. (Tr. 85:1-86:7) Theil testified
building the temporary structure and standing on the conveyor belt was a “spur-of-the-moment
decision,” and that the employees had to “improvise.” Id. There is also no proof CBS told U.S.
Steel that work on the basement conveyor belt would be performed from any surface other than
the floor. For these reasons, I find the meeting was not a mitigating factor. Additionally, I believe
allowing employees to change work plans without supervisor approval is a dangerous business
practice.
I find CBS knew, or should have known, handrails were required when the employees
were on the conveyor belt bed and temporary structure. Since there were no mitigating
circumstances, I find the violation was properly cited as high negligence.
Gravity
Inspector Sichmeller testified a fall from the conveyor belt could reasonably be expected
to result in lost workdays or restricted duty. (Tr. 25:6-9) In assessing civil penalties, the
Commission also considers the “gravity of the violation.” 30 C.F.R. § 820(i). Gravity is usually
viewed in terms of “the seriousness of the violation.” Consolidation Coal Co., 18 FMSHRC
1541, 1549 (Sept. 1996) (citing Sellersburg, 5 FMSHRC at 294-95). Specifically, the standard
refers to “the effect of the hazard if it occurs.” 18 FMSHRC at 1550. The gravity analysis
focuses on factors such as the likelihood of an injury, the severity of an injury, and the number of
miners potentially injured.
Inspector Sichmeller’s gravity designation was based on his belief that a fall from 55inches could result in a sprain-strain, broken bones, and, even, a fatality. (Tr. 25:10-15) Inspector
Sichmeller found such injuries were likely to result from a fall based on his experience as an
MSHA inspector and accident investigator. (Tr. 25:17-26:6) The citation alleges two people
would be affected, which is reasonable given that two employees were working on the
“basement” conveyor belt. (Ex. GX 2) Based on these assertions, I find an injury was reasonably
likely and would have been serious, possibly resulting in lost work days or restricted duty.
Other Considerations
In addition to negligence and gravity, the Commission must consider the operator’s
history of previous violations, the appropriateness of the penalty to the size of the business of the
operator charged, the effect on the operator’s ability to continue in business, and the
demonstrated good faith abatement of the violative condition when assessing penalties. 30

38 FMSHRC Page 1555

U.S.C. § 820(i). The parties agreed to the stipulations that the penalty will not affect CBS’s
ability to stay in business and that CBS abated the violation in good faith. (Tr. 93:22-35)
As discussed earlier, Inspector Sichmeller cited CBS and Theil for a violating another fall
protection standard a year-and-a-half before the incident at the Minntac Mine. (Ex. G9) This
shows CBS had a previous history of violations. Finally, while there is no information about
CBS’s size in the record, there is no evidence to support a finding that the penalty was
inappropriate in proportion to the size of the business.
I find CBS was highly negligent in failing to require the use of handrails on the conveyor
belt. Additionally, I find this violation was reasonably likely to result in lost work days and
restricted duty. I do not believe there are any additional considerations supporting a lessened
penalty. Moreover, because I find the violation was S&S and an unwarrantable failure, $2,000 is
the lowest possible penalty for the citation. 30 U.S.C. 820(a)(3)(A); Hidden Splendor Res., Inc.,
36 FMSHRC at 3103. For the foregoing reasons, I find the penalty was properly assessed at
$2,000.
WHEREFORE, it is ORDERED that Conveyor Belt Services, Inc. pay a penalty of
$2,000.00 within thirty (30) days of the filing of this decision.

/s/ L. Zane Gill
L. Zane Gill
Administrative Law Judge
Distribution:
Laura Ilardi Pearson, Esq., Trial Attorney, U.S. Department of Labor, Office of the Solicitor,
1244 Speer Boulevard, Suite 216, Denver, CO 80204
Justin Winter, Law Office of Adele Abrams, PC, 4740 Corridor Place, Suite D, Beltsville, MD
20705

38 FMSHRC Page 1556

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
721 19TH ST. SUITE 443
DENVER, CO 80202-2500
TELEPHONE: 303-844-5266 / FAX: 303-844-5268

June 1, 2016
SECRETARY OF LABOR, MSHA,
on behalf of JENNIFER MORREALE,
Complainant,

DISCRIMINATION PROCEEDING
Docket No. WEST 2014-793-DM
MSHA Case No.: WE MD 14-13

v.
VERIS GOLD USA, INC.,
JERRITT CANYON GOLD, LLC,
WHITEBOX MANAGEMENT, &
ERIC SPROTT,
Respondents.

Mine: Jerritt Canyon Mill
Mine ID: 26-01621

AMENDED ORDER OF DISMISSAL1
Before: Judge Simonton
This case is before me upon a discrimination complaint filed pursuant to section
105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2), by the
Secretary of Labor on behalf of Ms. Jennifer Morreale (Complainant) against Veris Gold USA,
Inc. (Respondent).
On May 20, 2016, this court issued an Order Conditionally Approving Joint Withdrawal
Motion stating that this matter would be dismissed with prejudice after confirmation of full
satisfaction of the parties’ private settlement agreement. May 20, 2016 Order. On May 23,
2016, Complainant and counsel for the Respondent both represented that the terms of the
settlement agreement had been completed and satisfied.
Accordingly, this matter is DISMISSED with prejudice.

/s/ David P. Simonton
David P. Simonton
Administrative Law Judge

1

The Order was amended because the first sentence incorrectly stated that this was a
105(c)(3) complaint, when it was in fact a 105(c)(2) complaint.

38 FMSHRC Page 1557

Distribution: (U.S. First Class Mail)
Brad Mantel, U.S. Department of Labor, Office of the Solicitor, Division of Mine Safety and
Health, 201 12th Street South, Suite 401, Arlington, VA 22202
Niamh E. Doherty, Office of the Solicitor, U.S Department of Labor, 350 S. Figueroa Street,
Suite 370, Los Angeles, CA 90071
Jennifer Morreale, 686 Westcott Drive, Spring Creek, NV 89815
Annette Jarvis, Dorsey & Whitney LLP, Counsel for Jerritt Canyon Gold, 136 South Main
Street, Suite 1000, Salt Lake City, UT 84101
Mark R. Kaster, Dorsey & Whitney LLP, Counsel for Jerritt Canyon Gold, 50 South Sixth Street,
Suite 1500, Minneapolis, MN 55402
Shaun Heinrichs, Veris Gold, 688 West Hastings Street, Suite 900, Vancouver, BC V6B 1P1,
Canada
Cathy L. Reece, Counsel for Whitebox Management, LLC, 2394 East Camelback Rd., Ste. 600,
Phoenix, AZ 85016
Tevia Jeffries, Dentons Canada LLP, Counsel for Bankruptcy Monitor, 250 Howe Street, 20th
Floor, Vancouver, BC V6C 3R8, Canada

38 FMSHRC Page 1558

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9933 / FAX: 202-434-9949

June 2, 2016
DANIEL B. LOWE,
Complainant,
v.
VERIS GOLD USA, INC.,

DISCRIMINATION PROCEEDING
Docket No. WEST 2014-614-DM
WE-MD 14-04
Mine: Jerritt Canyon Mill
Mine ID: 26-01621

and
JERRITT CANYON GOLD, LLC,
Respondents.
ORDER ON RESPONDENT’S MOTION FOR INTERLOCUTORY REVIEW
Before:

Judge Moran

Dorsey & Whitney LLP, on behalf of Jerritt Canyon Gold, LLC, (“JCG”) has filed a
motion seeking interlocutory review, per 29 C.F.R. § 2700.76. JCG’s Motion requests that the
Court “certify that [its] ruling to add JCG as a respondent in this matter, involves a controlling
question of law and that immediate review will advance the final disposition of the proceeding.”
JCG Mot. for Cert. of Interlocutory Rev., at 1 (Apr. 13, 2016) (“Mot.”) (emphasis added).1

1

In pertinent part, the provision addressing interlocutory review by a judge provides:
(a) Procedure. Interlocutory review by the Commission shall not be a matter
of right but of the sound discretion of the Commission. . . . (1) Review cannot
be granted unless: (i) The judge has certified, upon his own motion or the
motion of a party, that his interlocutory ruling involves a controlling question
of law and that in his opinion immediate review will materially advance the
final disposition of the proceeding; or (ii) The Judge has denied a party’s
motion for certification of the interlocutory ruling to the Commission, and the
party files with the Commission a petition for interlocutory review within 30
days of the Judge's denial of such motion for certification. . . .

29 C.F.R. § 2700.76 (emphasis added). Given this Court’s denial of the motion, the provisions
in Commission Rules 76(a)(1)(ii) and (a)(2) come into effect. JCG’s counsel is fully aware of
these provisions.

38 FMSHRC Page 1559

For the reasons that follow, the Court, by not having determined that immediate review
will materially advance the final disposition of the proceeding, DENIES the motion.
JCG’s Motion essentially repeats the arguments it has advanced many times before, most
recently in the parallel ongoing discrimination proceeding, Varady v. Veris Gold USA, Inc. and
Jerritt Canyon Gold, LLC (“Varady”). In its most recent ruling in the Varady matter, the Court
denied JCG’s request to certify that an interlocutory ruling in that matter involved a controlling
question of law and that immediate review of the Court’s opinion would materially advance the
final disposition of the proceeding. 38 FMSHRC __, slip op., WEST 2014-307 DM (Apr. 26,
2016) (ALJ). That order in Varady is hereby incorporated by reference.2
JCG’s Motion contends that there is no jurisdiction to add JCG as a party. It then revisits
all of the arguments previously made to, and rejected by, this Court in support of its claim of lack
of jurisdiction, which will not be repeated here.3, 4
JCG’s Motion incorrectly describes the “Issue” as whether allowing the Complainant to
amend his discrimination complaint “to add JCG as an additional respondent in the case [is] in
contravention of the Canadian and U.S. Bankruptcy Courts’ automatic stay, prior adjudication,
discharge and free and clear sale of the Veris Gold assets to JCG under Section 363(f) of the
Bankruptcy Code.” Mot. at 7. The issue, however, is whether the asserted jurisdictional bar
involves a controlling question of law and whether, in the Court’s opinion, immediate review of
that issue will materially advance the final disposition of the proceeding.5
Among the many arguments advanced by JCG, all rejected by this Court in its previous
rulings, are: that any actions taken in violation of the bankruptcy court’s automatic stay are void
ab initio; that only the bankruptcy courts can modify the automatic stay; and, because of that, all
MSHA proceedings are stayed. Id. at 10. JCG then continues with citations to the Canadian and
U.S. Bankruptcy Courts’ holding that JCG acquired the assets of Veris Gold free and clear of any
2

In issuing this Order, the Court read and considered Complainant Lowe’s Opposition to
Respondents’ Motion for certification of interlocutory review, Respondents Reply in support of
its motion, and Complainant’s Reply in further opposition. The Court would add that the reply
filed on behalf of Whitebox Entities seems to be an initially unpersuasive exercise in parsing the
various relationships among the various respondents, which only demonstrates the importance of
discovery so that their true nature can be understood.
3

In fact, and as a matter of practicality, the motion essentially repeats, verbatim, large
portions from previous submissions to this Court.
4

The Court’s March 4, 2016, Order on Complainant’s Motion to Amend addresses JCG’s
contentions. See 38 FMSHRC __, slip op., WEST 2014-614-DM (Mar. 4, 2016) (ALJ).
5

JCG also requests that “in the interest of judicial economy and fairness to the parties,
[the] proceedings in th[is] docket . . . be stayed pending a final determination on the issue of
jurisdiction.” Mot. at 2, 8. This request is DENIED. The proceedings are stayed, but only until
the Commission rules on the motion for interlocutory review.

38 FMSHRC Page 1560

interest, claim, or liability. Id. at 10-12. These claims rest upon the asserted legitimacy of the
section 363(f) proceeding under the Bankruptcy Code. In its prior ruling, the Court has addressed
this issue as well.
The Essential Problem with JCG’s Motion
It is not the job of a Federal Mine Safety and Health Review Commission administrative
law judge to do the laundry for another court. The Court acknowledges that, should the
Commission decline to adopt JCG’s contentions, it is possible that another court may determine
that JCG’s purchase of certain Veris Gold assets was free and clear of all liens, claims, and
interests, that section 363 of the Bankruptcy Code provides a total corporate welfare cover to that
and other potentially related entities, and that there was no need to employ the due process
hearing procedure found in section 1141 of that Code. It may also be that some other court, but
not this Court, may determine that Veris Gold, JCG, and the bankruptcy monitor fully informed
such bankruptcy courts about the nature of Lowe’s and Varady’s Mine Act claims, and that due
process was fully satisfied, that Mine Act discrimination proceedings are indistinguishable from
those debts owed to traditional business creditors, and that the hearing which was ostensibly held
regarding Lowe’s (and Varady’s) claims, demonstrates a record that evinces fairness.6
However, that is not this Court’s role in deciding discrimination matters under the Mine
Safety and Health Act. This Court upheld Mr. Lowe’s discrimination complaint after a hearing.
That hearing afforded Veris Gold a full opportunity to challenge Lowe’s claim. Indeed, Veris
Gold hired an attorney to do just that, and that attorney conducted discovery and vigorously
defended Veris Gold in that action until, only a few days before the Lowe hearing was to
commence, that attorney announced that he had been instructed to withdraw his representation.
The attorney also acknowledged on the record at the start of Lowe’s discrimination proceeding,
that Veris Gold fully understood the consequences of that withdrawal.7
6

No record of any hearing transcript before a Bankruptcy Court addressing Lowe’s or
Varady’s claims has been provided to the Court by JCG’s Counsel.
7

As the Court noted in its October 15, 2015 decision:

At the outset of the hearing, Attorney David Stanton, privately retained legal
counsel for Veris Gold, appeared. The Court noted that Attorney Stanton filed a
motion for his withdrawal as the Respondent’s representative. Tr. 6. The Court
had previously received word of Attorney Stanton’s motion to withdraw at the
conclusion of the prior week, one day after another section 105(c)(3) hearing
against Veris, Matthew Varady v. Veris Gold USA, Inc., WEST 2014-307-DM,
had concluded. This Court presided in the Varady discrimination case. That case
involved the pro se discrimination claim brought Matthew Varady against Veris
Gold, and a decision finding for Mr. Varady was issued on September 2, 2015.
Attorney Stanton represented Veris in the Varady discrimination matter for the
entirety of the hearing. As noted, infra, the Varady hearing did not go well,
(continued…)

38 FMSHRC Page 1561

With liability for discrimination having been established by this Court, apart from
whatever may come to pass regarding Veris Gold’s employment of bankruptcy protection, the
next step under the Mine Act is to determine if successorship applies to any or all of those
entities that now run the Jerritt Canyon Mill, which, it is noted, continued to hum along
essentially without interruption throughout the whole bankruptcy process.8 Because the Court is
7

(…continued)
evidentiary-wise, from Respondent’s perspective, and it was obvious that
Attorney Stanton correctly gauged the adverse evidentiary consequences of the
proceeding, owing to the poor credibility of Respondent’s various witnesses.
Therefore, it was not a surprise to the Court that the attorney moved to withdraw
from representation. As the Varady and Lowe matters are closely linked, it
followed that withdrawal would be sought in the Lowe matter as well. Due to the
indefinite nature of Attorney Stanton’s initial email request to withdraw his
representation of Veris, it was not clear whether the attorney’s request was
confined to the Lowe and Varady matters or whether the attorney was
withdrawing completely from all representation of Veris. Attorney Stanton was
equivocal about his continuing role, in that he indicated that it would continue
until the bankruptcy monitor in Canada acts. Tr. 6. At the time of and prior to the
hearing’s start, Veris had been involved in a bankruptcy proceeding. Attorney
Stanton confirmed that mining would continue at the Veris site and it was his
understanding that Veris would continue as a legal corporate entity and he
represented that the Veris entity would ‘remain in existence for some period of
time while the monitor addresses some … lingering issues,’ although he did not
know exactly what those issues were. Tr. 8. Emphasizing that the mine would be
a continuing operation, albeit under a successor, ‘White Box’ or the debtor in
possession, Attorney Stanton hoped that his legal representation would continue
with the new ownership. Tr. 9. Thus, it is fair to state that the mining operation
and attorneys representing it would continue to move along nicely, while
apparently simultaneously attempting to evade responsibility, through bankruptcy
legal mechanisms, for acts of discrimination under the Mine Act.
Lowe v. Veris Gold USA, Inc., 37 FMSHRC 2337, 2238-39 (Oct. 2015) (ALJ).
8

In a recent, related, development, the Court notes that in Sec’y o/b/o Morreale v. Veris
Gold USA, Inc., Jerritt Canyon Gold, LLC, Whitebox Management, and Eric Sprott, 38
FMSHRC __, slip op., WEST 2014-793 DM (May 25, 2016) (ALJ) (“Morreale ”), yet another
discrimination proceeding initially against Veris Gold, the parties reached a private settlement
and the judge in that case dismissed the proceeding upon the parties’ representation that “the
terms of the [private] settlement agreement had been completed and satisfied.” Id. at 1. This
Court is aware of the putative distinction in Morreale that the discrimination proceeding was
brought by the Secretary. Substantively, the Court sees no difference, and it would note that
Congress, in enacting the Mine Act’s discrimination provisions, did not characterize section
105(c)(3) claims as inferior. The Court believes that, it is in the interests of all for the parties to
explore settlement in the Lowe and Varady matters.

38 FMSHRC Page 1562

duty bound to attend to the relevant discrimination issues before it, the Respondent must be
entitled to conduct legitimate discovery in order for the Court to determine if the Commission’s
adopted successorship principles should apply to JCG, and/or Whitebox, and/or Eric Sprott.9
9

As pertinent in this matter as it was in the Court’s April 26, 2016, Order addressing
JCG’s motion for interlocutory review in the Varady matter, it should be
. . . noted that fellow Administrative Law Judge David Simonton recently issued a
briefing order relevant to these issues. After noting that there is legal ambiguity
concerning the ‘correct interaction of bankruptcy law and the Commission’s
successorship doctrine,’ Judge Simonton concluded that ‘the most prudent course
of action is to first resolve the factual question of JCG’s successorship status
before proceeding to potential bankruptcy protection issues,’ and, in line with
view, that stated ‘further discovery into the facts of JCG’s acquisition and
operation of the Jerritt Canyon Mill mine is necessary to determine if JCG, Eric
Sprott and Whitebox Asset Management are liable as successors in interest for the
conduct of Veris.’ Briefing Order at 2, Sec’y of Labor on behalf of Morreale v.
Veris Gold U.S.A. Inc., WEST 2014-793 (FMSHRC Apr. 21, 2016). Helpfully,
Judge Simonton directed the respondents to respond to the following nonexclusive, preliminary questions regarding successorship:
1) Did JCG management learn of the finalized settlement
agreement between the Secretary, Ms. Morreale, and Veris prior to
JCG’s purchase of the Jerritt Canyon Mill mine?
2) Did JCG management learn of any pending 105(c)
discrimination claim against Veris Gold USA prior to JCG’s
purchase of Veris?
3) What percentage of Veris Gold USA did Eric Sprott and his
subsidiary holdings, own and/or control prior to JCG’s acquisition
of the Jerritt Canyon Mill mine?
4) What percentage of JCG does Eric Sprott and his subsidiary
holdings own and/or control?
5) What percentage of Veris employees employed at the Jerritt
Canyon Mill mine did JCG rehire following their assumption of
mining operations in June 2015?
6) What percentage of Veris supervisory agents at the Jerritt
Canyon Mill mine were retained by JCG? In addition to senior
management personnel, the Commission generally considers
supervisors with production and safety responsibilities agents of
(continued…)

38 FMSHRC Page 1563

Once such discovery is completed, the Court will be in an informed position to rule upon those
successorship issues. Should the Complainant prevail against some or all of those other entities,
the final step for the Court would be to make a ruling on the appropriate damages.
Accordingly, for the reasons expressed in this Order on JCG’s Motion for Certification of
Interlocutory Review, JCG’s Motion is DENIED.

/s/ William B. Moran
William B. Moran
Administrative Law Judge

9

(…continued)
the operator. Nelson Quarries, Inc., 31 FMSHRC 318, 328-31
(Mar. 2009) (affirming ALJ holding that onsite foremen who
conducted safety examinations and assigned tasks were agents of
the operator).
7) Has JCG substantially altered production methods at the Jerritt
Canyon Mill mine?”

38 FMSHRC __, slip op. at 4 n.3, WEST 2014-307 DM (Apr. 26, 2016) (ALJ).

38 FMSHRC Page 1564

Distribution:
Mark Kaster, Dorsey & Whitney, LLP, 1500 South 6th Street, Minneapolis, MN 55402
Annette Jarvis, Dorsey & Whitney, LLP, 136 South Main Street, Suite 1000, Salt Lake City, UT
84101
Daniel B. Lowe, P.O. Box 2608, Elko, NV 89801
Cathy L. Reece, Fennemore Craig, P.C., 2394 East Camelback Rd., Suite 600, Phoenix, AZ
85016
Brad J. Mantel, Esq., U.S. Department of Labor, Office of the Solicitor, 201 12th Street South,
Suite 401, Arlington, VA 22202-5450
Shaun Heinrichs, Veris Gold, 688 West Hastings Street, Suite 900, Vancouver, BC V6B 1P1,
Canada
Tevia Jeffries, Dentons Canada LLP, Counsel for Bankruptcy Monitor, 250 Howe Street, 20th
Floor, Vancouver, BC V6C 3R8, Canada

38 FMSHRC Page 1565

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
721 19TH STREET, SUITE 443
DENVER, CO 80202-2536
303-844-3577/FAX 303-844-5268

June 2, 2016
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of JACOB HAMILTON,
Complainant

DISCRIMINATION PROCEEDING
Docket No. WEST 2016-326-DM
MSHA No. WE MD 2016-04
Fire Creek Mine

v.
Mine ID 26-02691 A4880
AMERICAN MINING AND
TUNNELING, LLC
Respondent
ORDER CONCERNING PROPOSED TESTIMONY OF STEVEN ROGERS
The hearing in this discrimination case is set to commence on June 22, 2016. In my
notice of hearing, I required the parties to exchange witness and exhibit lists by no later than
June 8, 2016. Under Commission Procedural Rule 56(e), discovery should have been completed
by June 2, 2016. 29 C.F.R. § 2700.56(e). By email on May 31, Joseph Lake, counsel for
Complainant, asked that the discovery deadline be extended until June 10 because certain
individuals could not be scheduled for deposition until the week of June 6. Donna V. Pryor,
counsel for Respondent, does not oppose this extension of the discovery period.
Late in the day on May 31, Mr. Lake also disclosed via email that he intends to call an
expert witness at the hearing and that his written report would be produced later this week. Ms.
Pryor, via email, opposed the request because it is only about twenty-two days until the hearing,
discovery is coming to a close, and she needs this time to prepare her case. She contends that the
Complainant should have disclosed the identity of this potential witness in response to discovery
much earlier so that she could have scheduled his deposition in May. This delay does not give
her much time to schedule a deposition and determine whether Respondent needs to call an
expert witness.
I scheduled a conference call for June 1. During the call, Jessica Flores, counsel for
Complainant, advised me that the expert she wants to call is Steven Rogers, a safety and health
specialist with MSHA in the Vacaville, California, office. He would be called as a rebuttal
witness in response to expected testimony from Respondent’s witnesses that certain actions taken
by Jacob Hamilton, the complainant in this case, were unsafe and that he was discharged for
those unsafe actions. Rogers was not present at the mine during the disputed events and, as I
understand it, he would testify generally about the safety of Hamilton’s actions when he
discovered drill holes underground that had not been shot during the most recent round of
blasting.
Ms. Flores stated during the conference call that she first learned of this defense during
depositions of Respondent’s witnesses taken in mid-May. She also stated that she had planned

38 FMSHRC Page 1566

on using a different MSHA safety specialist as a rebuttal witness but he became unavailable
because of a death in the family. Counsel stated that the process of finding a second safety
specialist to testify contributed to the delay.
Ms. Pryor objected to Complainant’s request during the call primarily because of the
delay in notifying her that an expert would be called. She had requested the names of potential
witnesses during discovery. She stated that she will not be able to depose Mr. Rogers next week
because of scheduling issues but that she could depose him on June 14 in Denver, if I grant the
Complainant’s request. Counsel did not indicate whether she will now be seeking to call an
expert on Respondent’s behalf.
It is ORDERED that Complainant shall be permitted to call Steven Rogers as a rebuttal
witness at the hearing on June 22-23, 2016. Although the disclosure of this witness is later than
is optimal, given the sequence of events, the delay was not unreasonable. The hearing is three
weeks away, which gives the parties time to prepare for hearing.1 At the hearing, Complainant
will be required to qualify Rogers as an expert in his field before he will be allowed to testify.
Although Commission judges are not bound by the Federal Rules of Evidence, I will use them as
a guide. Fed. R. Evid. 702 et seq. Complainant SHALL serve Rogers’ written report on counsel
for Respondent via email by no later than 5:00 p.m. Mountain Time on Friday, June 3, 2016.
Counsel for Complainant SHALL make Steven Rogers available for deposition on June 14,
2016, in Denver, Colorado, or on another date agreed to by the parties.

/s/ Richard W. Manning
Richard W. Manning
Administrative Law Judge
Distribution (Via email and USPS):
Jessica M. Flores, Esq., and Joseph Lake, Esq., Office of the Solicitor, U.S. Department of
Labor, 90 7th Street, Suite 3-700, San Francisco, CA 94103-6704
Donna V. Pryor, Esq., Jackson Lewis, 950 17th Street, Suite 2600, Denver, CO 80202-2828
RWM
1

I also note that in Mark Gray v. North Fork Coal Corp., 35 FMSHRC 2349 (August
2013), the Commission reversed a judge’s order excluding the testimony of late-identified
expert witnesses and remanded the case back to the judge. The identities of the two proposed
expert witnesses were not disclosed to the respondent until about 15 days before the hearing.
Although that case raised issues not present in this case, the Commission held that “the
exclusion of critical evidence is an ‘extreme’ sanction, not normally to be imposed absent a
showing of willful deception or ‘flagrant disregard’ of a court order by the proponent of the
evidence.” 35 FMSHRC at 2360 (citations omitted).

38 FMSHRC Page 1567

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9958 / FAX: 202-434-9949

June 9, 2016
UNITED STATES STEEL
CORPORATION – MINNESOTA ORE
OPERATIONS,
Contestant,

CONTEST PROCEEDING:
Docket No. LAKE 2016-193-RM
Citation No. 8896708; 02/01/2016
Mine: Minntac Mine

v.

Mine ID: 21-00282

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

ORDER ON
CROSS MOTIONS FOR SUMMARY JUDGEMENT
Before:

Judge Barbour

This case is before the court upon a notice of contest filed by United States Steel
Corporation – Minnesota Ore Operations (“the company”) challenging the validity of a citation
(No. 8896708) issued at its Minntac Mine, a surface iron ore operation located in St. Louis
County, Minnesota. The citation is dated February 1, 2016, and it charges the company with a
violation of 30 C.F.R. § 56.12028, a mandatory safety standard for the nation’s surface metal and
nonmetal mines. The standard requires:
Continuity and resistance of grounding systems
shall be tested immediately after installation,
repair and modification; and annually thereafter.
A record of the resistance measured during the
most recent tests shall be made available on a
request by the Secretary or [his inspector].

38 FMSHRC Page 1568

The citation states in part:
When requested, the . . . operator was unable
to produce current documentation that the
annual continuity and resistance test of [its]
portable electric welders had been conducted.
The continuity/ground resistance test ensures
The portable welders are properly grounded.
This condition exposes the miners using the
portable welders to burns, shock and/or
electrocution.
Notice of Contest, Exh. A.1
Shortly after receiving the citation the company contested its validity asserting the issue
of whether section 56.12028 is applicable to the equipment in question (the portable welders,
including their power cables) previously was decided against the Secretary and that the citation
should be vacated on res judicata grounds.2 Notice of Contest (February 26, 2016).
The prior decision to which the company refers is USX Corporation –Minnesota Ore
Operations, 21 FMSHRC 346 (March 1999) (ALJ), a case that arose at the Minntac Mine and
that involved the same company as the subject case, albeit under the name of its holding
company (USX Corporation). In the decision, now retired Commission Administrative Law
Judge, T. Todd Hodgdon held that section 56.12028 does not apply to grounding conductors in
trailing cables, power cords and cords supplying power to tools and portable or mobile
equipment. Although the Secretary of Labor’s Mine Safety and Health Administration issued a
policy statement interpreting the standard as applicable to such cables and cords, Judge
Hodgdon, for several reasons, held that the policy statement constituted a substantive change in
section 56.12028 and that notice and comment rulemaking, which the Secretary did not institute,
was required before the change could be implemented. 21 FMSHRC at 355. The decision was
not appealed by the Secretary.
Despite the lack of an appeal, the USX case is not the end of the story regarding the
courts and section 56.12028 because in a subsequent proceeding in which an operator contested
the application of the standard to the cables and cords of its electrical equipment and power
tools, a case decided on cross motions for summary decision, Commission Administrative Law
Judge Alan Paez reached a different conclusion. Tilden Mining Company, LC, 33 FMSHRC 876
(April 2011). Unlike Judge Hodgdon, Judge Paez found the Secretary’s interpretation that the
1

The citation also contains findings that the cited condition was unlikely to cause a fatal
injury and was the result of the company’s low negligence. Notice of Contest, Exh. A.
2

Although Citation No. 8896708 refers to a failure to document resistance testing of
portable welders, it is clear that the citation was issued for a failure to test the power cables or
cords supplying power to the welders. The court reaches this conclusion because the parties
essentially agree that the issue before the court is the applicability of section 56.12028 to cords
supplying power to the welders. See, Secretary’s Response 13; Company’s Reply Br. 3

38 FMSHRC Page 1569

standard applied to such cables and cords to be both reasonable and entitled to deference. 33
FMSHRC at 880-881. Judge Paez concluded that rulemaking was not required (33 FMSHRC at
880-883), and he therefore affirmed the contested citations and granted the Secretary’s cross
motion for summary decision. 33 FMSHRC at 885. The matter was appealed to the
Commission, which affirmed Judge Paez in all respects. 36 FMSHRC 1965 (Aug. 2014). The
Commission’s decision then was appealed to the United States Court of Appeals for the District
of Columbia Circuit, which has yet to rule. D.C. Cir. 14-1170 (2014).
In the case before the court, U.S. Steel asserts the primacy of the USX decision and seeks
to foreclose re-litigation of an issue it contends was tried and decided as to U.S. Steel and its
mine in a final judgment on the merits, a judgement that involved the same parties as the subject
case. The company argues that the “issue of the applicability of the standard is a matter of res
judicata between the parties and that the issuance of the [c]itation is improper and illegal.”
Company’s Mot. For Sum. Dec. 2.
The doctrine of res judicata encompasses limits on both the claims and the issues that
may be raised in subsequent proceedings, and the company essentially contends that both forms
of preclusion apply in this case. Id.3-7. The Secretary asserts they do not, and the parties argue
at length about it. See Company’s Mot. for Sum. Dec.; Company’s Mem. of Law In Support of
Mot. for Sum. Dec.; Company’s Reply Br.; Sec.’s Response to [Co.’s] Mot.for Sum. Dec. and
Sec.’s Cross Mot. for Sum. Dec. While the court appreciates the parties’ efforts, it concludes
that a more fundamental concept compels the court to short circuit the issue of preclusion and
succinctly rule in the Secretary’s favor.
RULING
Summary judgement on behalf of the company is inappropriate because the court is
compelled to follow the Commission, which has spoken on the issue. Unless and until the D.C.
Circuit reverses the Commission’s holding, the court must conform to the Commission’s
decision. As the Secretary notes, “[Tilden] is binding precedent.”3 Resp. to [Co.]’s Mot. For
Sum. Dec. 8. Were the court to rule in favor of the company and follow Judge Hodgdon, the
court would allow the preclusions argued for by the company to trump res judicata, and the
result would be to grant U.S. Steel a variance from a requirement that governs all other of the
nation’s metal and nonmetal mine operators.4 See. Sec.’s Resp 11 (“To . . . allow [the company]
to abide by the 1999 decision rather than current law would accord [the company] different
treatment from that given to other miner operators. Id.] Section 101(c) of the Mine Act, 30
3

Moreover, and again as the Secretary points out, Tilden represents a change in
controlling legal principles and therefore cautions against the application of res judicata. “[A]
subsequent modification in controlling legal principles . . . may make [a] prior determination
obsolete for future purposes.” Sec.’s Resp. to Contestant’s Mot. For Sum. Dec. 11 (citing
Commissioner v. Sunnen, 333 U.S. 591, 598-599 (1948).
4

The company and the court clearly hold opposite views as to whether the
Commission’s decision in Tilden is controlling. As stated, the Secretary and the court believe a
Commission decision must be followed until it is reversed or otherwise nullified and that carving
out exceptions based on a prior contrary decision is not allowed. The company finds this belief
to be “without merit.” Company’s Reply Br.3 n. 3.

38 FMSHRC Page 1570

U.S.C. §, 811(c), provides a way to obtain a variance, but the Act does not allow an operator to
end run a principal that assures even handed uniformity in the application of the law.
For these reasons the court holds that the cited standard applies to the cited equipment.
Therefore, the company’s motion for summary judgement IS DENIED. While it is clear from
the record that the company did not annually test the grounding systems for its electric welders
and hence did not (and indeed, could not) produce documentation that the annual tests were
conducted, the company asserts this proceeding should continue so there can be “a full record
surrounding the issuance of the [c]itation.” Company’s Rep. Br. 10. In arguing for further
proceedings, the company is not taking a new position. In its notice of contest the company
raised reasons other than res judicata as to why the contested citation is invalid. Notice of
Contest 2 at 3 (a) – 3(c). The company is entitled to prove these reasons. Accordingly, the
Secretary’s cross motion also IS DENIED. This proceeding IS STAYED pending a ruling by
the United States Court of Appeals for the District of Columbia Circuit in Tilden and/or the
assessment of a proposed civil penalty for the violation alleged in Citation No. 8896708 followed
by the subsequent filing of a civil penalty petition by the Secretary.

/s/ David F. Barbour
David F. Barbour
Administrative Law Judge

38 FMSHRC Page 1571

Distribution: (1st Class U.S. Mail)
Barbara M. Villalobos, Esq., U.S. Department of Labor, Office of the Solicitor, 230 S. Dearborn
St., 8th Flr., Chicago, IL 60604
R. Henry Moore, Esq.; Arthur M. Wolfson, Esq.; Patrick W. Dennison, Esq.; Jessica M. Jurasko,
Esq., Jackson Kelly, PLLC, Three Gateway Center, 401 Liberty Ave, Suite 1500, Pittsburgh, PA
15222
/db

38 FMSHRC Page 1572

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004

June 14, 2016
CIVIL PENALTY PROCEEDINGS

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

Docket No. WEVA 2015-74
A.C. No. 46-01968-361667
Docket No. WEVA 2015-425
A.C. No. 46-01968-371547

v.

Docket No. WEVA 2015-473
A.C. No. 46-01968-373553
Docket No. WEVA 2015-509
A.C. No. 46-01968-374332

CONSOLIDATION COAL COMPANY,
Respondent.

Docket No. WEVA 2015-632
A.C. No. 46-01968-377533
Mine: Blacksville No. 2

SEVERANCE ORDER
AND
PREHEARING ORDER
Before:

Judge Feldman

The captioned matters are before me upon petitions for assessment of civil penalties filed
by the Secretary of Labor (“Secretary”), pursuant to section 105(d) of the Federal Mine Safety
and Health Act of 1977 (“the Mine Act”), 30 U.S.C. § 815(d). The focus of these proceedings is
Order No. 8059209 in Docket No. WEVA 2015-632, issued on July 30, 2014, which has been
designated as a repeated flagrant violation under section 110(b)(2) of the Mine Act.1 Order No.
8059209 alleges extensive accumulations of loose coal and coal fines, many of which were in
1

Section 110(b)(2) provides:

Violations under this section that are deemed to be flagrant may be assessed a
civil penalty of not more than $220,000. For purposes of the preceding sentence,
the term “flagrant” with respect to a violation means a reckless or repeated failure
to make reasonable efforts to eliminate a known violation of a mandatory health
or safety standard that substantially and proximately caused, or reasonably could
have been expected to cause, death or serious bodily injury.
30 U.S.C. § 820(b)(2) (emphasis added).

38 FMSHRC Page 1573

contact with turning rollers, in violation of the mandatory standard in 30 C.F.R. § 75.400. The
Secretary proposes a $121,300.00 enhanced civil penalty for Order No. 8059209. Specifically,
Order No. 8059209 provides:
Accumulations of combustible material is allowed to accumulate over previously
rock dusted surfaces on the 5-West company #1 belt conveyor in the following
locations: 1) Accumulations of loose coal, and coal fines is allowed to exist from
6 block to 34 block. The accumulations measured 16 feet wide, 1/8 inch thick,
and approximately 3400 feet long. These accumulations are located on the mine
floor, roof, ribs, and belt structure. The accumulations are dry in spots, and very
dry on belt structure. The accumulations are dark brown in color. 2)
Accumulations are present 10 1/2 block and in contact with both bottom rollers.
These accumulations of coal fines/belt fines measured 3 feet wide, 2 foot long,
and 16 inches deep. 3) Also, accumulations of dry coal fines/belt fines are present
at 12 1/4 block and in contact with both bottom rollers. These accumulations
measured 3 feet long, 3 feet wide, and 24 inches deep. 4) Accumulations of loose
coal, and coal fines is present at 12 1/2 block, and are in contact with on bottom
roller that is turning in accumulations. These accumulations measured 3 feet long,
3 1/2 fee wide, and 20 inches high. 5) Also, accumulations of coal fines, and loose
coal is in contact with bottom roller at 17 1/2 block. These accumulations
measured 1 foot wide, 2 feet long, and 20 inches deep. 6) Also, accumulations of
coal fines/belt fines is present at 21 3/4 block and contacting both bottom rollers.
These accumulations measured 2 feet wide, 2 feet long, and 22 inches high. 7)
Also, accumulations just inby 23 block are in contact with inside part of both
bottom rollers, allowing rollers to turn in accumulations. These accumulations are
coal fines, and belt fines. These accumulations measured 3 feet long, 1 foot wide,
and 10 inches deep. 8) Also, accumulations of coal fines/belt fines is in contact
with both bottom rollers at 23 1/2 block. The accumulations measured 2 feet
wide, 2 foot long, and 12 inches deep. 9) Also, accumulations of coal fines/belt
fines is present at 24 block and in contact with both bottom rollers. These
accumulations measured 3 feet long, 1 foot wide, and 10 inches wide. These
accumulations were dry and black in color. 10) Also, accumulations of dry coal
fines/belt fines are in contact with 2 consecutive bottom rollers at 25 1/2 block.
The accumulations measured 3 feet wide, 1 1/2 wide, and 10 inches deep in both
locations. 11) Also, accumulations of coal fines/belt fines is allowed to exist on
mine floor, and in contact with bottom roller. Accumulations measured 1 1/2 feet
wide, 1 foot long, and 18 inches deep at 19 3/4 block. This mine is on a 5-day 103
(I) spot inspection for liberating over 1 million cubic feet of methane in a 24 hour
period. Citation #8059210, and Citation #8059211 are issued in conjunction with
this order for damaged rollers, and belt rubbing metal components in the same
areas as the cited accumulations. This creates a confluence of factors. Miners
work and travel in these areas each shift in performance of their duties. There is
evidence that these accumulations have existed for an extended period of time,
due to amount of accumulations present, and foot prints in the walkway through
accumulations. A certified mine examiner travels this belt conveyor 3 times a day,
and should have been aware that these conditions were present.
Accumulations/roller spillage was visible to the most casual observer.

38 FMSHRC Page 1574

Examinations are the first line of defense for the health and safety of the miners.
These conditions were obvious and extensive and should have been reported and
corrected. History has shown that frictional heat sources such as belt rubbing
structure causes mine fires. If normal mining operations were to continue and
these conditions were left unabated it is reasonably likely that friction sources
present will ignite accumulations, and/or contribute to a fire and/or explosion
occurring nearby. The operator removed the belt from service to correct ignition
sources. Numerous 75.400 citations have been issued at this mine in the past. This
is the third 75.400 order issued on belt conveyors at this mine in the past 6
months. The operator has engaged in aggravated conduct constituting more than
ordinary negligence. The belt was in operation at the time of issuance. A mine fire
occurred at this mine on 3-12-12. This violation is an unwarrantable failure to
comply with a mandatory health and safety standard.
Also at issue in this proceeding is Order No. 8059212 in Docket No. WEVA 2015-509,
which alleges a failure to conduct an adequate examination with respect to the cited violative
accumulation condition in Order No. 8059209. The Secretary seeks a civil penalty of $40,300.00
for Order No. 8059212.
The Secretary has identified three predicate 104(d) orders contained in Docket Nos.
WEVA 2015-74, WEVA 2015-425, and WEVA 2015-473, in support of his repeated flagrant
designation in Order No. 8059209. The Secretary does not assert that the alleged predicate
violations in Docket Nos. WEVA 2015-74, WEVA 2015-425, and WEVA 2015-473, are
themselves flagrant in nature. The Respondent objects to the Secretary’s consideration of these
predicates as arbitrary and immaterial.
Given the Secretary’s asserted relevance of the alleged predicates, the five captioned
dockets were consolidated and stayed on May 12, 2016, pending the final disposition of Oak
Grove Res., LLC, 38 FMSHRC __, slip op. (May 3, 2016) (ALJ) (“Oak Grove”), which
addressed the evidentiary requirements for a repeated flagrant designation with respect to an
alleged violation of section 75.400.2 Oak Grove held that a violative condition that does not
otherwise meet the statutory definition of flagrant cannot be elevated to flagrant status simply
based on a history of violations. Id. at 4. Thus, Oak Grove stands for the proposition that,
although a history of violations may be a relevant consideration with respect to the appropriate
civil penalty, individual alleged predicate violations are not dispositive of the question of
whether a cited condition is properly designated as flagrant. As petitions for discretionary review
were not filed in Oak Grove, the May 3, 2016, decision in Oak Grove constitutes a final ALJ
decision.

2

The May 12, 2016, stay of the captioned dockets will remain in effect pending the
parties’ responses to this Order.

38 FMSHRC Page 1575

In view of the finality of the ALJ holding in Oak Grove that individual alleged predicates,
alone, are not a prerequisite for a repeated flagrant designation, Docket Nos. WEVA 2015-74,
WEVA 2015-425, and WEVA 2015-473, which contain violations alleged to be predicates
supporting the flagrant designation in Order No. 8059209, shall be severed from WEVA 2015509 and WEVA 2015-632. Severance will permit the focus to be on the principle issue in this
matter: whether the cited accumulation condition in Order No. 8059209 is properly designated as
flagrant.
Section 75.400 is the most frequently cited mandatory standard in underground coal
mines. For example, section 75.400 violations constituted eleven percent of all citations issued at
underground coal mines in 2015. MSHA, Most Frequently Cited Standards,
http://arlweb.msha.gov/stats/top20viols/top20viols.asp (last visited June 10, 2016). As such, Oak
Grove further stands for the proposition that the vast majority of routine section 75.400 coal dust
accumulations violations that do not involve proximity to existing ignition sources cannot be
properly designated as flagrant. However, Oak Grove also noted:
There may be exceptional cases where the depth of prohibited coal dust
accumulations and their contact with multiple turning rollers causes demonstrable
suspension of coal dust that could be construed as reasonably expected to be the
proximate cause of propagation and resultant serious bodily injury or death, thus
satisfying the statutory definition of flagrant.
38 FMSHRC __, slip op. at 7 n.4.
Specifically, Oak Grove noted the following criteria necessary for a repeated flagrant
designation:
1. A repeated flagrant violation is a flagrant violation that is demonstrated by
either:
a. A repeated failure to eliminate the violation properly designated as
flagrant, or
b. A relevant history of violations that also meet the requirements for
a flagrant violation with respect to knowledge, causation and
gravity, as enumerated below.3
2. A flagrant violation must be a known violation that is conspicuously
dangerous, in that it cannot reasonably escape notice.

3

This criterion that predicate violations must also meet the requirements for a flagrant
violation was included at the suggestion of the Secretary. See Oak Grove Order, 36 FMSHRC
1777, 1789 n.13 (June 2014) (ALJ). However, under certain circumstances, I believe a history of
relevant violations can provide a basis for a “repeated” designation for a violation otherwise
properly designated as flagrant, regardless of whether the previous violations satisfy the statutory
definition of flagrant.

38 FMSHRC Page 1576

3. A flagrant violation must be the substantial and proximate cause of death
or serious bodily injury that has occurred or can reasonably be expected to
occur.
a. A substantial and proximate cause is a dominant cause without
which death or serious bodily injury would not occur.
b. A serious bodily injury is a grave injury that results in significant
debilitating and/or permanent impairment.
c. Such injury is reasonably expected to occur if there is a significant
probability of its occurrence.
Id. at 5.
ORDER
In view of the above, IT IS ORDERED that Docket Nos. WEVA 2015-74, WEVA
2015-425, and WEVA 2015-473 ARE SEVERED from WEVA 2015-509 and WEVA 2015632.
Furthermore, assuming the accumulations conditions cited in Order No. 8059209
accurately reflect the conditions as they existed when Order No. 8059209 was issued on July 30,
2014, IT IS FURTHER ORDERED that the Secretary should address in writing, on or before
July 15, 2016, whether the cited accumulation violation is properly designated as flagrant, in that
it satisfies the criteria in (2) and (3) above.
With respect to the Secretary’s alleged repeated designation, MSHA’s database reflects
that in the two years preceding the July 30, 2014, issuance of Order No. 8059209, the
Respondent received 147 citations and orders for violations of section 75.400 at its Blacksville
No. 2 mine. Of these 147 violations, five were attributed to an unwarrantable failure, and 64
were designated as significant and substantial. (Three of these five 104(d) violations are pending
in the captioned proceedings.) Consequently, IT IS FURTHER ORDERED that the Secretary
should address whether the Respondent’s history of previous section 75.400 violations provides
an adequate basis for designating Order No. 8059209 as a repeated flagrant violation.
See
footnote 3, supra.
IT IS FURTHER ORDERED that the Respondent file a written response to the
Secretary’s submission on or before August 5, 2016.

/s/ Jerold Feldman
Jerold Feldman
Administrative Law Judge

38 FMSHRC Page 1577

Distribution:
Susan T. Kinniry, Esq., U.S. Department of Labor, Office of the Solicitor, 170 S. Independence
Mall West, Suite 700 East, Philadelphia, PA 19106-3306
Jordana L. Greenwald, Esq., U.S. Department of Labor, Office of the Solicitor, 170 South
Independence Mall West, The Curtis Center, Suite 630E, Philadelphia, PA 19106-3306
Jason W. Hardin, Esq., Melanie S. Grayson, Esq., Fabian Vancott, 215 South State Street, Suite
1200, Salt Lake City, UT 84111-2323
/acp

38 FMSHRC Page 1578

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
721 19TH ST., SUITE 443
DENVER, CO 80202-2500
OFFICE: (303) 844-5266/FAX: (303) 844-5268

June 24, 2016
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 2013-636-M
A.C. No. 02-01049-315370

v.
BHP COPPER, INC.,
Respondent.

Mine: Pinto Valley Operations

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 2013-587-M
A.C. No. 02-01049-315369

v.
TETRA TECH CONSTRUCTION SERVICES,
Respondent.

Mine: Pinto Valley Operations

ORDER DENYING MOTION FOR RECONSIDERATION
ORDER DENYING MOTION TO CERTIFY
Before:

Judge Miller

These cases are before me upon a petition for assessment of a civil penalty filed by the
Secretary of Labor pursuant to Section 105(d) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 815(d) (“the Act”). The cases involve a fatal accident that occurred at the
Pinto Valley Mine on September 22, 2012. In response to the accident, Respondent BHP
Copper, Inc. (“BHP”) conducted an internal investigation into the accident, in which Respondent
Tetra Tech Construction Services (“Tetra Tech”) also participated pursuant to a common interest
agreement. On March 21, 2016, the Secretary filed a motion to compel production of the mine’s
fatal accident report and related documents. I granted in part and denied in part the Secretary’s
motion to compel in an order dated April 25, 2016. On April 29, 2016, BHP filed a motion
requesting that I stay the order and reconsider it, or, in the alternative, certify the order for
interlocutory review by the Federal Mine Safety and Health Review Commission. Tetra Tech
joined in the motion. I stayed the order in an email to the parties on May 2, 2016, pending further
review. The Secretary filed a response in opposition to BHP’s motion, and BHP filed a reply.

38 FMSHRC Page 1579

I.

BRIEF SUMMARY OF THE PARTIES’ ARGUMENTS

BHP argues that reconsideration is appropriate because the order is contrary to law. The
order requires BHP to provide any documents containing factual information, with any
deliberation, attorney opinion, comment, legal strategy, or mental impression redacted. Order at
7. BHP argues that this conclusion erroneously applies the Supreme Court’s holding in Upjohn
Co. v. United States, 449 U.S. 383 (1981), and is contrary to Ninth Circuit precedent in Admiral
Ins. Co. v. U.S. Dist. Court for Dist. of Ariz., 881 F.2d 1486, 1493-95 (9th Cir. 1989). It further
argues that it is uncertain how to comply with the order to the extent that it is required to separate
facts from opinions. Finally, BHP further argues that my conclusion that the materials sought
were prepared in the ordinary course of business and thus not protected by the work product
privilege is contrary to law. It argues that this conclusion ascribes a single purpose to the
documents, which is inappropriate under Ninth Circuit precedent.
The Secretary argues that reconsideration is not warranted because there has been no
change in controlling law, the order did not contain a clear error of law, and the order will not
result in any injustice. The Secretary argues that the order correctly applies the holding in
Upjohn that “a party cannot conceal a fact merely by revealing it to his lawyer.” 449 U.S. at
396. The Secretary also argues that the conclusion that the materials in question were not
protected by work product privilege was correct.
II.

LEGAL STANDARD

The Commission has held that reconsideration of a final order is appropriate if the
Commission has “overlooked or misapprehended significant facts or legal arguments.” Island
Creek Coal Co., 23 FMSHRC 138, 139 (Feb. 2001). Similarly, reconsideration of a final
judgment in federal court is appropriate only if the court is “presented with newly discovered
evidence, committed clear error, or if there is an intervening change in the controlling law.”
McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (emphasis omitted) (interpreting
Fed. R. Civ. P. 59(e) regarding alteration of a judgment).
Regarding intermediate orders, Federal Rule of Civil Procedure 54(b) provides that
any order or other decision, however designated, that adjudicates
fewer than all the claims or the rights and liabilities of fewer than
all the parties does not end the action as to any of the claims or
parties and may be revised at any time before the entry of a
judgment adjudicating all the claims and all the parties’ rights and
liabilities.
Accordingly, a showing of clear error or a change in law may not be necessary for modification
of an interlocutory order. See Agapito Assocs., Inc., 30 FMSHRC 1187, 1188-89 (Dec. 2008)
(ALJ) (deciding that an Island Creek showing was not necessary for reconsideration of an order
denying a motion to stay).

38 FMSHRC Page 1580

III.

DISCUSSION

A. Work Product Privilege
BHP asks that I reconsider my conclusion that the materials addressed in the motion to
compel, an accident investigation report and related documents, were not protected by the work
product privilege. BHP asserts that its investigation of the accident that killed Jon Vanoss was
conducted in preparation for litigation. However, BHP also had a regulatory obligation to
investigate the accident. The Secretary’s regulations require that “Each operator at a mine shall
investigate each accident and each occupational injury at the mine. Each operator of a mine shall
develop a report of each accident.” 30 C.F.R. § 50.11(b). In addition, BHP had an internal
policy requiring an investigation after any accident at the mine. The issue in this case is whether
the work product doctrine limits discovery of materials that were prepared in anticipation of
litigation but also pursuant to a regulatory requirement or internal business policy.
The Supreme Court has recognized that in order to effectively prepare a case, a lawyer
must be able to “assemble information, sift what he considers to be the relevant from the
irrelevant facts, prepare his legal theories and plan his strategy without undue and needless
interference.” Hickman v. Taylor, 329 U.S. 495, 511, 67 S. Ct. 385, 393 (1947). Accordingly,
the Federal Rules of Civil Procedure limit discovery of “documents and tangible things that are
prepared in anticipation of litigation or for trial by or for another party or its representative”
unless the party seeking to discover the materials demonstrates a substantial need. Fed. R. Civ.
P. 26(b)(3); see also United States v. Nobles, 422 U.S. 225, 237-38, 95 S. Ct. 2160, 2170 (1975)
(“The Court therefore recognized a qualified privilege for certain materials prepared by an
attorney ‘acting for his client in anticipation of litigation.’”)
Materials that are prepared in anticipation of litigation as well as for another purpose are
often referred to as having a “dual purpose.” Courts that have addressed the issue of work
product protection of these materials have adopted the “because of” test. See, e.g., United States
v. Richey, 632 F.3d 559, 568 (9th Cir. 2011); United States v. Adlman, 134 F.3d 1194, 1203 (2d
Cir. 1998); Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Murray Sheet Metal Co., 967 F.2d
980, 984 (4th Cir. 1992). Under this test, materials should be considered “prepared ‘in
anticipation of litigation,’ and thus within the scope of [Rule 26(b)(3)], if in light of the nature of
the document and the factual situation in the particular case, the document can fairly be said to
have been prepared or obtained because of the prospect of litigation.” Adlman, 134 F.3d at 1202
(internal quotations omitted) (citing 8 Charles Alan Wright et al., Federal Practice & Procedure
§ 2024 (1994)). In Adlman, the Second Circuit explained further that:
Where a document is created because of the prospect of litigation,
analyzing the likely outcome of that litigation, it does not lose
protection under this formulation merely because it is created in
order to assist with a business decision. Conversely, it should be
emphasized that the “because of” formulation … withholds
protection from documents that are prepared in the ordinary course

38 FMSHRC Page 1581

of business or that would have been created in essentially similar
form irrespective of the litigation.
Id.; see also Richey, 632 F.3d at 568 (holding that an appraisal report required by the IRS for a
tax deduction was not covered by the work product doctrine because the report would have been
prepared even in the absence of litigation).
The Ninth Circuit addressed a situation similar to the one at hand in Torf, which involved
a “dual purpose” investigation conducted in part because of regulatory requirements. In re
Grand Jury Subpoena (Mark Torf/Torf Envtl. Mgmt.), 357 F.3d 900 (9th Cir. 2004). An agent of
the company’s attorney had conducted an investigation into hazardous substances at the
company’s plant in response to a request from the EPA as well as in preparation for litigation
with the government. Id. at 904. A grand jury later sought to subpoena documents produced as
part of the investigation. Id. The Ninth Circuit held that the documents were protected by the
work product doctrine because the litigation purpose of the documents “so permeates any nonlitigation purpose that the two purposes cannot be discretely separated from the factual nexus as
a whole.” Id. at 910. In reaching its conclusion, the court emphasized that the company had
hired an attorney “only after learning that the federal government was investigating it for
criminal wrongdoing” and that it was not “assigning an attorney a task that could just as well
have been performed by a non-lawyer.” Id. at 909.
In this case, the company had a clear regulatory obligation to conduct an investigation of
the accident and produce a report. The company also had a policy requiring an investigation of
any accident, and detailed procedures for how to conduct the investigation. Thus, I find that
BHP’s accident report “would have been created in essentially similar form irrespective of the
litigation.” See Adlman, 134 F.3d at 1202. I also find that this case is distinguishable from Torf.
While in that case the company hired an attorney only after learning that the government was
investigating it, here the company contacted its attorney soon after learning of the accident.
Further, I find that unlike in Torf, the investigation here was “a task that could just as well have
been performed by a non-lawyer.” See Torf, 357 F.3d at 909. The deposition testimony
submitted by the Secretary indicates that investigations were at times conducted without the
supervision of an attorney. Sec’y Ex. 7 at 129. The only exception to this is notes by the
attorney or his agents regarding legal strategy, which could not have been produced by a nonattorney and would not have been produced but for anticipated litigation. See Upjohn Co. v.
United States, 449 U.S. 383, 400 (Jan. 1981) (“Rule 26 accords special protection to work
product revealing the attorney’s mental processes.”) Accordingly, I find that, with the exception
of those notes, the materials relating to the investigation were not protected by the work product
doctrine.
B. Attorney-Client Privilege
In my initial order, I concluded that parts of the investigation report and related materials
were protected by the attorney-client privilege, but that factual matter contained in the
documents was not privileged. BHP asks that I also reconsider this conclusion.

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Materials for which BHP claims attorney-client privilege include the incident report
summarizing findings of the investigation; drafts of the report; slide presentations, memoranda,
and flow charts summarizing the report; memoranda to and from counsel regarding the
investigation; notes taken by counsel regarding the accident; emails to and from counsel relating
to logistics, procedures, and legal strategy for carrying out the investigation; and emails to and
from counsel discussing the findings of the investigation.
The attorney-client privilege is intended to “encourage full and frank communication
between attorneys and their clients.” Upjohn v. United States, 449 U.S. 383, 389 (1981). The
privilege “rests on the need for the advocate and counselor to know all that relates to the client’s
reasons for seeking representation” to enable the lawyer to effectively advise and advocate for
the client. Trammel v. United States, 445 U.S. 40, 51 (1980).
To successfully assert attorney-client privilege, the party claiming the privilege must
demonstrate that
(1) the asserted holder of the privilege is or sought to become a
client; (2) the person to whom the communication was made (a) is
a member of the bar of a court, or his subordinate and (b) in
connection with this communication is acting as a lawyer; (3) the
communication relates to a fact of which the attorney was
informed (a) by his client (b) without the presence of strangers (c)
for the purpose of securing primarily either (i) an opinion on law or
(ii) legal services or (iii) assistance in some legal proceeding, and
not (d) for the purpose of committing a crime or tort; and (4) the
privilege has been (a) claimed and (b) not waived by the client.
Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998).
The Secretary argues that BHP has not proven part 3(c) of the test with regard to most of
the documents requested because the accident investigation was not conducted for the purpose of
obtaining legal advice, but rather to determine the cause of the accident and identify measures to
prevent a recurrence.
In Upjohn, the Supreme Court ruled that attorney-client privilege extended to
communications made during an internal investigation conducted to ensure compliance with the
law. 449 U.S. at 392. The Court noted that “In light of the vast and complicated array of
regulatory legislation confronting the modern corporation, corporations, unlike most individuals,
‘constantly go to lawyers to find out how to obey the law.’” Id. As in the area of work product
privilege, communications made to an attorney can often have more than one purpose. To
resolve the issue of whether such communications are covered by the attorney-client privilege,
courts apply the “primary purpose test.” In re Kellogg Brown & Root, Inc., 756 F.3d 754, 760
(D.C. Cir. 2014). The D.C. Circuit has described the test as asking “whether obtaining or
providing legal advice was one of the significant purposes of the attorney-client
communication.” Id. (emphasis added); cf. United States v. Richey, 632 F.3d 559, 567 (9th Cir.
2011) (finding that privilege did not apply because communications were “not made for the
purpose of providing legal advice, but, instead, for the purpose of determining the value” of

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property). In Kellogg, the court concluded that communications made as part of an internal
investigation were privileged because one of the significant purposes of the investigation was to
obtain or provide legal advice, even though the investigation was also conducted as part of a
compliance program required by federal regulations. Id.
I find that, while the investigation at issue was conducted in part for business reasons, it
was also done for the purpose of obtaining legal advice. The investigation was led by counsel,
and the attorney claims that he provided legal advice as a part of that investigation.
However, it is not clear from the record that all of the documents withheld were
communications by a client to counsel. In Upjohn, the Court made clear that the attorney-client
privilege extended only to “the responses to the questionnaires” the attorney had sent to
employees “and any notes reflecting responses to interview questions.” 449 U.S. at 397. In this
case, many of the documents at issue were written by the attorney and his investigation team
rather than by clients. See, e.g., Privilege Log ¶¶ 1, 9-16. These documents are protected only
insofar as they reflect statements by employees or managers given directly to counsel or his
agents seeking legal advice and documents that include that legal advice. Conclusions or
impressions of the attorney, including attorneys’ notes, are protected by the work product
privilege as discussed above. Any emails from clients to counsel regarding the investigation are
protected if the statements relate to the procurement of legal advice, but emails that simply
include an attorney as one of many recipients are not protected. The work of an attorney in
giving advice and legal conclusions and impressions is protected by privilege, but the facts of the
case are not, and may not be shielded by privilege.
IV.

INTERLOCUTORY REVIEW

BHP asks that if I deny its motion for reconsideration, I certify the April 25 Order for
interlocutory review by the Commission. Commission Rule 76 provides that the judge should
certify a ruling for interlocutory review if the ruling involves a controlling question of law and
immediate review will materially advance the final disposition of the proceeding. 29 C.F.R. §
2700.76(a)(1).
I find that a controlling question of law is involved: whether materials relating to a
mine’s internal investigation of an accident are protected by the attorney-client privilege or work
product doctrine. However, the resolution of this question will not materially advance the final
disposition of this proceeding. BHP states that an Arizona state court has ruled in related civil
litigation that BHP’s investigation materials are protected from discovery under state law.
Nevertheless, the issue is not dispositive as to the entire case. The parties have already engaged
in extensive discovery for a case that involves only two citations. The case is set to be heard
nearly four years after the subject accident occurred. Appellate review of this issue would
merely delay the proceeding further.
V.

ORDER

For the reasons above, Respondent’s Motion for Reconsideration is hereby DENIED.
Respondent’s Motion for Certification for Interlocutory Review is also DENIED. Consistent

38 FMSHRC Page 1584

with the April 25 Order, BHP and Tetra Tech are ORDERED to provide all requested
documents to the Secretary except for documents that include the impressions, thoughts and
conclusions of Respondent’s attorneys. Reports, slide presentations, drawings, photographs,
memoranda, fact statements and other materials summarizing the findings of the investigation
must be provided. Statements by employees and management to counsel seeking advice or
advice from the attorney, contained in the documents may be redacted. Discussions of legal
strategy by counsel may also be redacted.

/s/ Margaret A. Miller
Margaret A. Miller
Administrative Law Judge
Distribution: (U.S. First Class Certified Mail)
Norman E. Garcia, U.S. Department of Labor, 90 7th Street, Room 3-700, San Francisco, CA
94103
Demian Camacho, U.S. Department of Labor, 350 South Figueroa Street, Suite 370, Los
Angeles, CA 90071
Michael C. Ford, Snell & Wilmer, LLP, One Arizona Center, 400 East Van Buren Street, Suite
1900, Phoenix, AZ 86004
Peter S. Gould, Squire Patton Boggs (US), LLP, 1801 California Street, Suite 4900, Denver, CO
80202

38 FMSHRC Page 1585