September 2013
TABLE OF CONTENTS
COMMISSION DECISIONS
09-19-2013

MACH MINING, LLC

LAKE 2009-324-R

Page 2937

COMMISSION ORDERS
09-27-2013

HANSON AGGREGATES NEW YORK,
LLC

YORK 2012-105-M

Page 2947

09-27-2013

SOUTHERN FILTER MEDIA, LLC

CENT 2012-292-M

Page 2950

09-27-2013

RANCH ROCK PRODUCTS, INC.

WEST 2011-814-M

Page 2953

ADMINISTRATIVE LAW JUDGE DECISIONS
09-03-2013

BOWIE RESOURCES, LLC

WEST 2012-351

Page 2957

09-04-2013

WARRIOR COAL, LLC

KENT 2011-1259-R

Page 2968

09-05-2013

VERIS GOLD USA, INC.,
(FORMERLY QUEENSTAKE
RESOURCES U.S.A.)

WEST 2012-1124-RM

Page 2977

09-05-2013

ROCK N ROLL COAL COMPANY,
INC.

WEVA 2011-1418

Page 2993

09-12-2013

ORICA NELSON QUARRY SERVICES

KENT 2009-1178-M

Page 3004

09-16-2013

CLAS COAL COMPANY, INC.

KENT 2013-167

Page 3017

09-16-2013

CONSOLIDATED REBAR, INC.

WEST 2012-922-M

Page 3026

09-17-2013

MICHAEL E. TRENT V. CEMEX
CONSTRUCTION MATERIALS
ATLANTIC, LLC

SE 2013-213-DM

Page 3034

09-18-2013

OAK GROVE RESOURCES, LLC

SE 2010-349-R

Page 3039

09-20-2013

THE AMERICAN COAL COMPANY

LAKE 2011-701

Page 3077

09-23-2013

EMERALD COAL RESOURCES, LP

PENN 2011-346

Page 3124

i

09-23-2013

AGAPITO ASSOCIATES, INC

WEST 2008-1451-R

Page 3166

09-24-2013

BIG RIDGE, INC.

LAKE 2008-608

Page 3168

09-24-2013

SUNBELT RENTALS, INC., LVR, INC.,
and ROANOKE CEMENT CO., LLC.

VA 2013-291-M

Page 3208

09-26-2013

NORTH COUNTY SAND & GRAVEL,
INC.

WEST 2010-365-M

Page 3217

ADMINISTRATIVE LAW JUDGE ORDERS

09-06-2013

NEW NGC INCORPORATED

CENT 2013-538-M

Page 3225

09-16-2013

SEC. OF LABOR O/B/O HAROLD W.
PYEATT V. LINDSEY
CONTRACTORS, INC. AND ITS
SUCCESSORS

CENT 2012-219-DM

Page 3229

09-23-2013

LEWIS JOHNSON, agent of ELMORE
SAND & GRAVEL, INC.

SE 2013-68-M

Page 3232

09-25-2013

CONSOLIDATION COAL COMPANY

WEVA 2011-2185

Page 3236

09-27-2013

FRED ESTRADA V. FREEPORT
McMoRan TYRONE, INC. and/or
RUNYAN CONSTRUCTION

CENT 2013-311-DM

Page 3244

ii

Review was granted in the following cases during the month of September 2013:
Secretary of Labor, MSHA v. Rex Coal Company, Inc., Docket Nos. KENT 2010-956 et al. (Judge
Andrews, August 1, 2013)
Secretary of Labor, MSHA v. Newtown Energy, Inc., Docket No. WEVA 2011-283. (Judge Gill,
August 7, 2013)
Secretary of Labor, MSHA, v. Hibbing Taconite Company, Docket Nos. LAKE 2013-231-RM, et al
and LAKE 2013-348-M. (Judge Miller, August 14, 2013)
Secretary of Labor, MSHA v. Emerald Coal Resources, LP, Docket No. PENN 2011-168. (Judge
Harner, August 16, 2013)
Secretary of Labor, MSHA, on behalf of Reuben Shemwell v. Armstrong Coal Company, Inc., and
Armstrong Fabricators, Inc., Docket No. KENT 2013-362-D. (Judge Feldman, August 19, 2013)
Secretary of Labor, MSHA v. Cumberland Coal Resources, LP, Docket No. PENN 2012-278.
(Judge Steele, August 20, 2013)
Review was denied in the following cases during the month of September 2013:
Secretary of Labor, MSHA v. Excel Mining, LLC, Docket No. KENT 2010-160. (Judge Biro,
August 15, 2013)
Secretary of Labor, MSHA v. Rock N Roll Coal Company., Docket No. WEVA 2011-1418. (Judge
Bulluck, September 5, 2013)

iii

COMMISSION DECISIONS

35 FMSHRC Page 2936

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

September 19, 2013
MACH MINING, LLC
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

:
:
:
:
:
:
:

Docket No. LAKE 2009-324-R

Before: Jordan, Chairman; Young, Cohen, and Nakamura, Commissioners1
DECISION
BY THE COMMISSION:
In this contest proceeding arising under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (2006) (“Mine Act” or “Act”), the Secretary of Labor issued a citation to
Mach Mining, LLC, alleging a failure to record hazardous conditions during weekly
examinations in violation of 30 C.F.R. § 75.364(h). An Administrative Law Judge found that
Mach had committed a significant and substantial violation of the regulation, but that it was not
due to an unwarrantable failure to comply. 32 FMSHRC 1375, 1385 (Sept. 2010) (ALJ).
The Secretary subsequently filed a petition for discretionary review challenging the
Judge’s unwarrantable failure finding, which the Commission granted. For the reasons stated
herein, we reverse the Judge’s decision and conclude that Mach’s violation of the requirement to
record the hazardous conditions was a result of its unwarrantable failure.

1

Commissioner William I. Althen assumed office after this case had been considered at
a Commission meeting. A new Commissioner possesses legal authority to participate in pending
cases, but such participation is discretionary. Mid-Continent Res., Inc., 16 FMSHRC 1218 (June
1994). In the interest of efficient decision making, Commissioner Althen has elected not to
participate in this matter.

35 FMSHRC Page 2937

I.
Facts and Proceedings Below
Mach Mining operates the Mach #1 Mine, an underground coal mine near Johnston City,
Illinois. 32 FMSHRC at 1376-77; PDR at 2. On February 12, 2009, MSHA Inspector Bobby
Jones conducted a regular quarterly inspection of the Mine. 32 FMSHRC at 1376-77; Stip. 9.
During the inspection, Jones examined the primary escapeway at Headgate No. 4 (“HG #4”).
32 FMSHRC at 1378. At the mouth of the HG #4 primary escapeway was an 11-foot tall
regulator containing a 4'4" wide x 6' tall opening that controls the velocity of air coursing
through the escapeway. Stips. 17-19, 21, 23. The opening must be traversed by miners when
using the escapeway. Stip. 23. A lifeline within the escapeway runs from the fan at the surface
of the mine to the loading point. 32 FMSHRC at 1384; Stip. 13. While in the escapeway, Jones
discovered numerous hazardous conditions dispersed over 100 to 120 feet of the travelway.
32 FMSHRC at 1382; Stip. 11. The conditions included a pallet of crib ties, a take-up track, a
pile of gob, concrete blocks on both sides of the regulator, and water on the ground. 32
FMSHRC at 1377; Stips. 11, 29, 31, 32, 40. The pallet of crib ties, take-up track, pile of gob,
and the concrete blocks had been present in the escapeway since January 6, 2009, when the
regulator was created. Stip. 42. Jones inspected the weekly examination logs and discovered
that there was no record of the hazardous conditions. Tr. 13-17.
Mach began its weekly examinations of the primary escapeway at HG #4 five weeks
prior to the issuance of the subject citation. Stip. 35. Company Mine Examiner Dave Adams
was assigned the task of conducting the weekly examinations for hazardous conditions at HG # 4
from January 8 through February 12, 2009. During this period, Adams failed to note any
hazardous conditions in his examination records. Stips. 36, 43, 44. The most recent weekly
examination performed by Adams prior to Jones’ inspection occurred on or about February 9,
2009, three days before Jones’ inspection. Stip. 41.
As a result of Inspector Jones’ observations at HG #4, he issued two citations. The first,
Citation No. 8414211, alleged a significant and substantial (“S&S”)2 violation of 30 C.F.R.
§ 75.380(d)(1), which requires that escapeways be “[m]aintained in a safe condition to always
assure passage of anyone.” The second, Citation No. 8414214, the subject of this case, alleged
an S&S violation of 30 C.F.R. § 75.364(h), which requires that hazardous conditions be recorded

2

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.”

35 FMSHRC Page 2938

during weekly examinations.3 32 FMSHRC at 1378. Jones also designated this violation as an
unwarrantable failure to comply.4 Id. The “Condition and Practice” section of the citation
states:
When inspected the weekly examination records did not show the hazards
noted in Citation No. 8414211. These conditions had existed since the
HG#4 unit went into production and the area had been examined for five
consecutive weekly examinations. The extensiveness of these hazardous
conditions were obvious to the most casual observer. A crew was sent to
start clearing the hazards immediately.
G. Ex. 3. Mach had not been previously cited for the existence of materials in the escapeway.
32 FMSHRC at 1382-83.
The Judge held separate hearings and issued separate decisions on the two citations. On
February 24, 2010, he issued a decision affirming Citation No. 8414211 and its S&S designation.
Mach Mining, LLC, 32 FMSHRC 213 (Feb. 2010) (ALJ).5 Mach did not appeal this decision.
On September 27, 2010, the Judge issued his decision on Citation No. 8414214 and
affirmed the section 75.364(h) violation. 32 FMSHRC at 1380. He found that there was a
violation “due to the combination of the pallet crib ties, take-up track, pile of gob, loosely strewn
concrete blocks on either side of the regulator, and the presence of water, which would hinder
and delay the emergency evacuation of miners, especially any who were injured.” Id. (emphasis
in original). In addition, the Judge noted that, despite the presence of the items in the escapeway
3

30 C.F.R. § 75.364(h) provides, in pertinent part, that:
Recordkeeping. At the completion of any shift during which a
portion of a weekly examination is conducted, a record of the
results of each weekly examination, including a record of
hazardous conditions found during each examination and their
locations, the corrective action taken, and the results and location
of air and methane measurements, shall be made.

4

The unwarrantable failure terminology is also 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.” If an MSHA inspector finds that a violation is S&S and due to the operator's
unwarrantable failure, the citation is to be issued pursuant to section 104(d)(1), which can lead to
more stringent enforcement measures.
5

The Judge had previously issued another decision in these matters on July 15, 2009, for
the purpose of addressing whether the cited area was a “working section.” Mach Mining, LLC,
31 FMSHRC 947 (July 2009) (ALJ).

35 FMSHRC Page 2939

for five weeks, Adams had failed to note any of the conditions in his weekly reports. Id. The
Judge also affirmed MSHA’s S&S designation. Id. at 1381. He determined that a reasonably
serious injury was reasonably likely to occur because the combination of accumulated items in
the escapeway created a stumbling and tripping hazard and would impede a prompt evacuation
in an emergency, especially in the presence of smoke and low visibility. Id.
The Judge determined that Mach’s negligence did not rise to the level of unwarrantable
failure. Id. at 1385. He did, however, identify a number of factors that weighed in favor of an
unwarrantable failure finding. He found that the accumulated materials extending 100 to 120
feet in the escapeway were extensive. Id. at 1382. He also found that the cited materials were
obvious. Id. at 1385. He determined that the violation posed a high degree of danger. Id. at
1383. Also, he found that the conditions had existed and not been reported for five weeks. Id. at
1382.
Nonetheless, the Judge found it persuasive that Mach had not previously been cited for
an obstructed escapeway and had not otherwise been notified by MSHA that greater compliance
efforts were necessary. Id. at 1382-83. He then concluded that because Mach lacked prior
notice of the need for greater compliance, its abatement efforts prior to the issuance of the
citation should be viewed in the context of its “good faith belief that the accumulated items were
not hazardous.” Id. at 1383-84. Additionally, although the Judge noted that the existence of the
cited materials was obvious, he found Adam’s testimony – that he in “good faith” believed that
the cited materials were not hazardous conditions that he was required to report in a weekly
examination – to be credible and “objectively reasonable” under the circumstances. Id. at 138485. The Judge ultimately concluded that “considering the lack of notice from MSHA, [] the
level of [Mach’s] negligence is mitigated regarding what it reasonably should have known
concerning the existence of a hazard.” Id. at 1385.
II.
Disposition
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); see also Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 136 (7th
Cir. 1995) (approving Commission’s unwarrantable failure test). It is conduct that is “not
justifiable” or “inexcusable.” Utah Power & Light Co., 12 FMSHRC 965, 971 (May 1990),
citing Emery Mining, 9 FMSHRC at 2001.
Whether conduct is “aggravated” in the context of unwarrantable failure is determined by
considering all of the facts and circumstances of each case to see if any aggravating factors exist,
including (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

35 FMSHRC Page 2940

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. See Manalapan Mining
Co., 35 FMSHRC 289, 293 (Feb. 2013); 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). While some factors may be irrelevant to a particular factual scenario,
Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000), all of the relevant facts and
circumstances of each case must be examined to determine if an operator’s conduct is
aggravated, or whether mitigating circumstances exist. Id.; Manalapan Mining, 35 FMSHRC at
293; IO Coal, 31 FMSHRC at 1351.
When passing the Mine Act, Congress stated that “the unwarranted failure order
recognizes that the law should not tolerate miners continuing to work in the face of hazards
resulting from conditions violative of the Act which the operator knew of or should have known
of and had not corrected.” S. Rep. No. 95-181, at 31 (1977), reprinted in Senate Subcomm. on
Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and Health Act of
1977, at 619 (1978) (emphasis added). It is well settled that an operator’s knowledge may be
established, and a finding of unwarrantable failure supported, where an operator reasonably
should have known of a violative condition. IO Coal, 31 FMSHRC at 1356-57; Emery Mining,
9 FMSHRC at 2002-04; Drummond Co., 13 FMSHRC 1362, 1367-68 (Sept. 1991), quoting
Eastern Assoc. Coal Corp., 13 FMSHRC 178, 187 (Feb. 1991). An operator’s good faith belief
or disagreement regarding whether a cited condition constituted a hazard is “inextricably
intertwined with the issues of the operator’s knowledge of the existence of the violation and the
obviousness of the violation.” IO Coal, 31 FMSHRC at 1357.
In the instant case, the Judge determined that Mach, in “good faith,” believed that the
cited materials in the escapeway “did not constitute a hazardous condition that had to be
reported.” 32 FMSHRC at 1385. As support, the Judge noted Adams’ belief, based on his
experience, that no hazard existed because of the presence of a lifeline that was accessible to
miners, and a clear walkway or path from the opening in the regulator to the stairs to the first
overcast. Id. at 1384. He also noted Adams’ testimony that “[t]here was nothing present in the
area that wasn’t present throughout the mine,” and found “significant” his testimony that “prior
to February 12, no one from MSHA had told him that the accumulated items in the escapeway
constituted hazardous conditions.” Id. at 1384. The Judge further stated that “I observed his
demeanor, and find his testimony credible in all these regards.” Id. at 1384-85.
We find no evidence in the record that compels us to overturn the Judge’s credibility
determination with regard to Adams’ testimony. See Farmer v. Island Creek Coal Co.,
14 FMSHRC 1537, 1541 (Sept. 1992).6 However, the analysis does not end here. As the Judge
correctly explained (32 FMSHRC at 1385), if he finds that there was a “good faith” belief by the
operator, he must next determine whether that belief was objectively reasonable under the
6

We note that the Secretary does not challenge the Judge’s finding of Mach’s good faith
belief. PDR at 9.

35 FMSHRC Page 2941

circumstances. IO Coal, 31 FMSHRC at 1357; Kellys Creek Res., 19 FMSHRC 457, 463
(Mar. 1997) (citing Cyprus Plateau Mining Corp., 16 FMSHRC 1610, 1615-16 (Aug. 1994)).
In light of the extensiveness and obvious nature of the hazardous conditions and the
protective purpose of the relevant standard, we conclude that the Judge erred in finding that
Mach’s “good faith” belief was objectively reasonable. The Judge found that Adams’ belief was
objectively reasonable because Mach had not been notified by MSHA that the materials in the
escapeway posed a problem. 32 FMSHRC at 1385. Consequently, he concluded that the level
of Mach’s negligence regarding what it reasonably should have known concerning the existence
of the hazardous conditions was mitigated. He thus held that the Secretary had “not established
that the level of Respondent’s negligence relating to the violation at bar reached the level of
aggravated conduct.” Id.
Instead of relying solely on the lack of prior notice, the Judge was required to decide
whether a reasonably prudent person familiar with the protective purpose of the standard would
have ascertained that extensive debris scattered throughout a primary escapeway constituted a
hazardous condition requiring reporting in the weekly examination log. See American Coal Co.,
29 FMSHRC 941, 953 (Dec. 2007). We hold that a reasonably prudent mine examiner should
have recognized the extensive and obvious hazardous conditions which were present here.
Even without being informed by an MSHA inspector, a reasonably prudent mine
examiner should know that a combination of a pallet of crib ties, concrete blocks, a gob pile,
take-up track, and water over 120 feet of the escapeway floor would significantly impede any
miner attempting to quickly escape and thus frustrate the purpose of section 75.364(h). Indeed,
Inspector Jones stated in the citation that the “extensiveness of these hazardous conditions [was]
obvious to the most casual observer.”7 Gov. Ex. 3. The cluttered escapeway Inspector Jones
described and diagramed allows for only one conclusion: that the primary escapeway contained
numerous and extensive hazards that Mach was required to record in the weekly examination
log, and immediately correct. See Gov. Ex. 2.
The purpose of requiring that escapeways always be clear and available is self-evident.
Miners must be able to quickly exit the mine in the event of an emergency. See American Coal,
29 FMSHRC at 954. In American Coal, the Commission explained the importance of keeping
escapeways clear of impediments:
An operator thus violates section 75.380(b)(1)'s requirement to
“provide” escapeways from a working section when its miners are
substantially hindered or impeded from accessing designated
7

The danger was also recognized by the Judge, who affirmed the Secretary’s S&S
designation, concluding that a reasonably serious injury was reasonably likely to occur because
the combination of accumulated items in the escapeway created a stumbling and tripping hazard
and would impede a prompt evacuation in an emergency, especially in the presence of smoke
and low visibility. 32 FMSHRC at 1381.

35 FMSHRC Page 2942

escapeways, as in such an instance the escapeways are not being
supplied for the use of the miners. There is no disputing that
escapeways are needed for miners to quickly exit an underground
mine and that impediments to a designated escapeway may prevent
miners from being able to do so. The legislative history of the
escapeway standard states that the purpose of requiring
escapeways is “to allow persons to escape quickly to the surface in
the event of an emergency.”
Id. at 948.
Contrary to the Judge’s reasoning (32 FMSHRC at 1384-85), Mach’s failure to provide a
clear and unobstructed escapeway is not excused by the presence of a required lifeline. It was
completely unreasonable for Adams to imply that the lifeline would help miners navigate a
dangerous, cluttered obstacle course. To the contrary, the lifeline’s purpose is to help miners
find the mine’s exit in conditions of low visibility and panic. See Fed. Reg. 71430, 71431 (Dec.
8, 2006); 30 C.F.R. § 75.380(d)(1). It is equally unreasonable to believe that because the
primary escapeway was no more cluttered than the rest of the mine, no hazard existed. Section
75.380(d) requires that the primary escapeway be free of obstructions “to always assure safe
passage.”
30 C.F.R. § 75.380(d)(1) (emphasis added).” The operator’s arguments do little
more than demonstrate Mach’s serious lack of reasonable care and its clear lack of appreciation
for the dangers posed by obstructed escapeways.
Accordingly, Mach’s “good faith” belief that it was not required to note in its weekly
examination and promptly correct the hazards presented by the various materials dispersed
throughout the primary escapeway was not objectively reasonable under the circumstances. As a
result, the lack of prior notice from MSHA did not constitute a mitigating factor with regard to
Mach’s negligence.

35 FMSHRC Page 2943

III.
Conclusion
Mach exhibited a serious lack of reasonable care in its failure to record and correct these
conditions in the escapeway as required by the Act. The record evidence permits no other
conclusion. We therefore reverse the Judge’s decision and affirm the Secretary’s designation of
Mach’s violation of 30 C.F.R. § 75.364(h) as an unwarrantable failure to comply with the
standard.8 See American Mine Servs., Inc., 15 FMSHRC 1830, 1834 (Sept. 1993) (remand not
necessary when record supports no other conclusion).

/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

8

We note that the penalty proceeding, Docket No. LAKE 2009-426, was assigned to a
different judge.

35 FMSHRC Page 2944

Distribution
Christopher D. Pence, Esq.
Hardy Pence, PLLC
500 Lee Street, Suite 701
P.O. Box 2548
Charleston, WV 25301
cpence@hardypence.com
Edward Waldman, Esq.
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
waldman.edward@dol.gov

Melanie Garris
Office of Civil Penalty Compliance
MSHA
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209
Administrative Law Judge Avram Weisberger (retired)
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1331 Pennsylvania Avenue, N.W., Suite 520N
Washington, D.C. 20004

35 FMSHRC Page 2945

COMMISSION ORDERS

35 FMSHRC Page 2946

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

September 27, 2013
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

:
:
:
:
v.
:
:
HANSON AGGREGATES NEW YORK, LLC :

Docket No. YORK 2012-105-M
A.C. No. 30-00040-279765

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. (2006) (“Mine Act”). On March 15, 2013, the Commission received from Hanson
Aggregates New York, LLC (“Hanson”) a motion seeking to reopen a penalty assessment
proceeding and relieve it from the default order entered against it.
On August 23, 2012, Chief Administrative Law Judge Robert J. Lesnick issued an Order
to Show Cause which by its terms became a Default Order if the operator did not file an answer
within 30 days. This Order to Show Cause was issued in response to Hanson’s failure to answer
the Secretary of Labor’s March 21, 2012 Petition for Assessment of Civil Penalty. The
Commission did not receive Hanson’s answer within 30 days, so the default order became
effective on September 24, 2012.
Hanson asserts that it contacted the Conference Litigation Representative (“CLR”) on
April 25, 2012, but has not received a response. Hanson further states that it received a
delinquency notice dated February 1, 2013, and contacted MSHA soon thereafter. The Secretary
does not oppose the request to reopen and notes that the CLR received Hanson’s answer to the
penalty petition, but it does not appear that a copy was sent to the Commission.
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
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

1

35 FMSHRC Page 2947

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, for example, a party could be entitled
to relief from a final order of the Commission on the basis of mistake, inadvertence, or excusable
neglect. See 29 C.F.R. § 2700.1(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 permitted. See Coal Prep. Servs., Inc.,
17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Hanson’s request and the Secretary’s response, in the interest of justice,
we hereby reopen the proceeding and vacate the Default Order. Accordingly, 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

35 FMSHRC Page 2948

Distribution:
David P. Kurtz
Hanson Aggregates New York, LLC
P.O. Box 513
Jamesville, NY 13078
David.Kurtz@hanson.com
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, N. W., Suite 520N
Washington, D.C. 20004-1710

35 FMSHRC Page 2949

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

September 27, 2013
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
SOUTHERN FILTER MEDIA, LLC

:
:
:
:
:
:
:

Docket No. CENT 2012-292-M
A.C. No. 16-00802-276652

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. (2006) (“Mine Act”). On February 19, 2013, the Commission received from
Southern Filter Media, LLC (“Southern Filter”) a motion seeking to reopen a penalty assessment
proceeding and relieve it from the default order entered against it.
On August 3, 2012, Chief Administrative Law Judge Robert J. Lesnick issued an Order
to Show Cause which by its terms became a Default Order if the operator did not file an answer
within 30 days. This Order to Show Cause was issued in response to Southern Filter’s failure to
answer the Secretary of Labor’s January 26, 2012 Petition for Assessment of Civil Penalty. The
Commission did not receive Southern Filter’s answer within 30 days, so the default order
became effective on September 4, 2012.
Southern Filter asserts that it did not receive the Show Cause Order. The record indicates
that the Show Cause Order was delivered on August 6, 2012. Southern Filter further states that
it received a delinquency notice dated January 31, 2013, and contacted MSHA and the
Commission soon thereafter. The Secretary does not oppose the request to reopen, but notes that
all documents were mailed to the operator’s address of record.
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
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

35 FMSHRC Page 2950

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, for example, a party could be entitled
to relief from a final order of the Commission on the basis of mistake, inadvertence, or excusable
neglect. See 29 C.F.R. § 2700.1(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 permitted. See Coal Prep. Servs., Inc.,
17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Southern Filter’s request and the Secretary’s response, in the interest of
justice, we hereby reopen the proceeding and vacate the Default Order. Accordingly, 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

35 FMSHRC Page 2951

Distribution:
Samuel J. Barton
Southern Filter Media, LLC
37826 Greenwell Springs Rd.
Greenwell Springs, LA 70739
jbarton@soufilter.com
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, N. W., Suite 520N
Washington, D.C. 20004-1710

35 FMSHRC Page 2952

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

September 27, 2013
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
RANCH ROCK PRODUCTS, INC.

:
:
:
:
:
:
:

Docket No. WEST 2011-814-M
A.C. No. 04-05776-249393

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. (2006) (“Mine Act”). On January 25, 2013, the Commission received from Ranch
Rock Products, Inc., (“Ranch Rock”) a motion seeking to reopen a penalty assessment
proceeding and relieve it from the default order entered against it.
On May 3, 2012, Chief Administrative Law Judge Robert J. Lesnick issued an Order to
Show Cause which by its terms became a Default Order if the operator did not file an answer
within 30 days. This Order to Show Cause was issued in response to Ranch Rock’s failure to
answer the Secretary of Labor’s October 5, 2011 Petition for Assessment of Civil Penalty. The
Commission did not receive Robinson’s answer within 30 days, so the default order became
effective on June 4, 2012.
Ranch Rock asserts that it did not receive the penalty petition and that a former employee
misfiled the Show Cause Order. Ranch Rock further states that it received MSHA’s delinquency
notice, dated November 13, 2012. The Secretary does not oppose the request to reopen, but
notes that the penalty petition was received by Ranch Rock and signed for on October 11, 2011.
MSHA referred this case to the Department of Treasury for collection on January 10, 2013.
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
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

35 FMSHRC Page 2953

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, for example, a party could be entitled
to relief from a final order of the Commission on the basis of mistake, inadvertence, or excusable
neglect. See 29 C.F.R. § 2700.1(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 permitted. See Coal Prep. Servs., Inc.,
17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Ranch Rock’s request and the Secretary’s response, in the interest of
justice, we hereby reopen the proceeding and vacate the Default Order. Accordingly, 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

35 FMSHRC Page 2954

Distribution:
Nick Tonkinson
Ranch Rocks Products Inc.
P.O. Box 1556
Corana, CA 92878
njtonkinson@ranchrockcorp.com
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, N. W., Suite 520N
Washington, D.C. 20004-1710

35 FMSHRC Page 2955

ADMINISTRATIVE LAW JUDGE DECISIONS

35 FMSHRC Page 2956

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
th

721 19 STREET, SUITE 443
DENVER, CO 80202-2536
303-844-5267/FAX 303-844-5268

September 3, 2013
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.
BOWIE RESOURCES, LLC,
Respondent

:
:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 2012-351
A.C. No. 05-04591-274457
Docket No. WEST 2012-827
A.C. No. 05-04591-285698-01
Bowie No. 2 Mine

DECISION
Appearances:

Jeffrey M. Leake, Esq., Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado, for Petitioner;
Patrick W. Dennison, Esq., Jackson Kelly, PLLC, Pittsburgh,
Pennsylvania, for Respondent.

Before:

Judge Manning

These cases are before me upon petitions for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”),
against Bowie Resources, LLC, pursuant to sections 105 and 110 of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Act” or “Mine Act”). The parties
introduced testimony and documentary evidence at a hearing held in Glenwood Springs,
Colorado. The Secretary presented closing arguments and Bowie filed a brief on Citation No.
8141233.
Bowie operates the Bowie No. 2 Mine in Delta County, Colorado. One section 104(a)
citation and one section 104(d)(2) order were adjudicated at the hearing and Bowie also agreed
to pay the Secretary’s proposed penalty of $100.00 for Citation No. 8473704 in WEST 2012351. The Secretary proposed a total penalty of $53,912.00 for the citation and order that were
adjudicated.
I. DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW
A. Citation No. 8141233; WEST 2012-351
On October 13, 2011, MSHA Inspector Jack William Eberling issued Citation No.
8141233 under Section 104(a) of the Mine Act, alleging a violation of Section 75.403 of the
Secretary’s safety standards. The citation states that dark, dry coal dust and fines were upon the
mine floor of a haul road within two entries of the faces being mined. Mobile equipment using
electric 480V trailing cables traveled upon this haul road and the cables were dragged over the
mine floor. A rib/floor rock dust sample was taken. The condition existed for about 2.5 hours

35 FMSHRC Page 2957

from the beginning of the shift. Belt air measuring 18,900 cfm ventilated the area and the air
flowed into the section where seven miners were working. (Ex. G-7).
Inspector Eberling determined that an injury or illness was reasonably likely to occur and
that such an injury or illness could reasonably be expected to result in lost workdays or restricted
duty. Further, he determined that the violation was significant and substantial (“S&S”), the
operator’s negligence was moderate, and that seven persons would be affected. Section 75.403
of the Secretary’s safety standards requires that where rock dust is required to be applied the
incombustible content of the combined coal dust, rock dust, and other dust shall be not less than
80 percent. 30 C.F.R. § 75.403. The Secretary proposed a penalty of $1,412.00 for this citation.
I find that the Secretary established a violation of section 75.403 because the ventilation
plan does not expressly exempt Bowie from the safety standard’s requirement to adequately rock
dust the area in question. Section 75.403 requires a certain level of noncombustible content in all
dust where rock dust is required to be applied and section 75.402 details where that requirement
is in effect. In essence, rock dusting under section 75.403 is required unless one of five
exceptions applies:
1.
2.
3.
4.
5.

The dust in the area is too wet to propagate an explosion,
The dust in the area is too high in incombustible content to propagate an explosion,
The area is within 40 feet of a working face,
The area is inaccessible or unsafe to enter,
The Secretary or his authorized representative has permitted an exception.

30 C.F.R. § 75.402. I find that none of these exceptions apply here.
First, Inspector Eberling tested the dust for wetness and determined that the dust was not
too wet to obviate the necessity to rock dust. (Tr. 250-52). The area in question was at a slightly
higher elevation than its surroundings, so it did not retain water for long. Kenneth Smith, a
safety technician for Bowie, testified that there was no visible dust in the air and the mine floor
was moist, compact, and wet. (Tr. 304). I credit the testimony of the inspector that the floor was
not too wet to eliminate the need for rock dusting.
Second, the inspector observed that the floor was dark, which indicated that the
concentration of non-combustible material was not at the requisite 80% as per the safety
standard. (Tr. 245-46). The inspector took a sample of the material and subsequent laboratory
testing later determined that the sample consisted of 44.3% non-combustible material. (Tr. 24749; Ex. G-10). Bowie did not argue that the sample itself was faulty, but did argue that dust
sampling must be taken from representative areas of the mine floor, rather than from areas where
discrete coal accumulations exist. (Resp. Br. 13, citing Consolidation Coal Co., 22 FMSHRC
455, 465-66 (Mar. 2000) and McElroy Coal Co., 15 FMSHRC 17, 21 (Jan. 1993)). Bowie
argues that because coal haulage roadways are places where coal spillage naturally occurs,
samples must be taken from areas of the mine floor without spillage. (Resp. Br. 13). However,
Bowie introduced no evidence to suggest that the sample taken by Inspector Eberling was not a
representative sample of the dust upon the floor. I find that the sampling comported with the
requirements of the safety standard.

35 FMSHRC Page 2958

Third, there is no argument or evidence that the area was within 40 feet of a working
face. Fourth, there is no evidence that the area was inaccessible or unsafe to enter.
Bowie’s principle argument relates to the fifth exception. Bowie’s position is that
language in its ventilation plan permitted an exception to the requirements of the safety standard.
Specifically, it refers to page 12 of the mine’s ventilation plan where it provides that “[r]oadways
used in transportation of coal in the working section shall be kept wet and/or compacted.” (Ex.
R-3). Bowie maintains that this provision was designed to control respirable dust and the
potential for ignitions; as long as the floor of a roadway is wet or compacted, Bowie complies
with the requirements in section 75.403 under the ventilation plan. I disagree, as discussed
below.
Bowie argues that the ventilation plan provision is in place to both control the amount of
respirable dust in the air and to prevent ignitions. (Resp. Br. 3). I agree that keeping the floor
wet and/or compacted may reduce the potential for ignition, but complying with the ventilation
plan provision does not excuse Bowie from rock dusting. Nothing in the ventilation plan
discusses the rock dusting requirement or any exception thereto. Nothing in the ventilation plan
suggests that the subject provision was meant to supersede the requirements of sections 75.402
and 403.
Lastly, Bowie unsuccessfully contends that rock dusting the cited area will cause slick
conditions if the rock dust is wet and will create respirable dust and visibility issues if the rock
dust is dry. (Resp. Br. 11-12; Tr. 304-06, 322, 329). Smith testified that dusting the floor would
create problems such as respirable dust in the air and slick and slimy conditions. (Tr. 305-06).
Kyle Ledger, a face foreman for Bowie, agreed that the road should not be dusted, as dry dust
could create a visual hazard and wet dust would make the floor hazardous for travel. (Tr. 322,
329). I must look to the language of the approved ventilation plan in place at the time of
issuance, which does not exempt Bowie from the rock dusting requirement. Bowie can seek to
change the language in the plan to address these problems.
Inspector Eberling designated the citation as S&S.1 He determined that injury or illness
was reasonably likely to occur because the material on the ground was dry coal fines. (Tr. 2501

An S&S violation is a violation “of such nature as could significantly and substantially
contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d)
(2006). 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 order to establish the S&S nature of a 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 will be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984);
accord Buck Creek Coal Co., Inc., 52 F.3d 133, 135 (7th Cir. 1995); Austin Power Co., Inc., 861
F. 2d 99, 103 (5th Cir. 1988) (approving Mathies criteria).

35 FMSHRC Page 2959

52). In addition, the direction of airflow would carry any fire in the cited area toward the face
where miners worked. (Tr. 254). The equipment in use in the area requires a 480-volt trailing
cable, which due to the rough terrain found in underground mines is typically subject to
mechanical damage and resulting failures and faults of the cable. (Tr. 255-59). Such a failure or
fault would create a temperature well above the ignition point of coal. (Tr. 259). If a damaged
trailing cable ignited the coal fines, the inspector determined that lost workdays or restricted duty
could reasonably be expected to result from a fire. (Tr. 267-68). Such injuries could result from
smoke, which could cause lung or brain injuries. (Tr. 268-70).
I find that the condition described in Citation No. 8141233 was not reasonably likely to
contribute to an injury. Inspector Eberling testified that the failure of a shuttle car cable could be
an ignition source. (Tr. 256-57). The fact that a violative condition could result in an injury is
not sufficient for an S&S finding. Wolf Run Mining Co., 32 FMSHRC 1669, 1677-78 (Dec.
2010) (citing Peabody Coal Co., 17 FMSHRC 26, 29 (Jan. 1995)). The only possible ignition
source was a damaged trailing cable of a shuttle car. There was no evidence that any of the
cables were damaged or would likely become damaged to the extent necessary to start a fire
before such cable was replaced or repaired. There was no indication that a cable was hot and
there was no evidence of methane in the atmosphere. The Secretary did not fulfill his burden to
show that the citation was S&S. The gravity of the violation was only moderately serious.
I also find that Bowie’s negligence was low. Although Bowie’s interpretation of the
mine’s ventilation plan was incorrect, the interpretation was made in good faith. Bowie
genuinely believed that it was not required to meet the combustibility standard for roadways used
in the transportation of coal so long as the road dust was compacted or wet. No roadway at this
mine was ever cited for a violation of the combustibility. I find that Bowie did not take this
position solely as a litigation strategy.
Based upon the above, the citation is MODIFIED to non-S&S and to low negligence. A
penalty of $1,000.00 is appropriate for this violation.
B. Order No. 8141442; WEST 2012-827
On August 18, 2011, MSHA Inspector Brad Allen issued Order No. 8141442 under
Section 104(d)(2) of the Mine Act, alleging a violation of Section 75.400 of the Secretary’s
safety standards. (Ex. G-2). The order states that the inspector found combustible material in
several places upon a large front-end loader, called a “hauler” by the parties, and that these
accumulations created a fire hazard. Specifically, loose coal, coal fines, bug dust,2 and other
combustible materials including oil mixed with loose coal/dust were permitted to accumulate
upon a hauler that was in use in an active mining section.

2

“Bug dust” refers to coal-based material that is slightly larger than coal fines.

35 FMSHRC Page 2960

The order lists four locations where the inspector discovered combustible material. First,
the inspector found accumulations up to 1 and 1 ½ inches deep that were saturated with oil in the
belly pan under the engine that was about 4 feet wide by 7 feet long. Engine oil was pooled
upon the coal mix in the belly pan. There was also an empty 32 ounce plastic drinking bottle on
the operator’s side of the engine compartment. Second, the inspector found similar
accumulations in the belly pan of the transmission compartment. Third, the inspector found a
thin coating of float coal dust and oil upon the bottom side of the engine compartment covers and
upon the engine valve cover. Finally, he found a hydraulic oil and coal dust mixture in the cab
of the hauler in the compartment for the joy stick and park brake actuation valve.
In the order, the inspector stated that these accumulations “provided substantial fuel to
propagate a mine fire or explosion should one occur and such propagation would be reasonably
likely to result in death or serious injury.” (Ex. G-2). He further stated that the hauler was used
during the shift and the engine was “hot to touch.” Id.
Inspector Allen determined that an injury was reasonably likely to occur and that such an
injury could reasonably be expected to be fatal. Further, he determined that the violation was
S&S, that the operator’s negligence was high, that seven persons would be affected, and that the
violation constituted an unwarrantable failure to comply with a mandatory safety standard.
Section 75.400 of the Secretary’s regulations requires that “[c]oal dust, including float coal dust
deposited on rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned
up and not be permitted to accumulate in active workings, or on diesel-powered and electric
equipment therein.” 30 C.F.R. § 75.400. The Secretary proposed a penalty of $52,500.00 for
this order under his special assessment regulation. 30 C.F.R. § 100.5.
1. Violation of Section 75.400
I find that the evidence establishes that Bowie violated section 75.400. I credit the
testimony of the inspector that engine oil and coal fines were in the belly pan, some hydraulic
fluid or other material was in the operator’s compartment, and combustible material was upon
the bottom of the engine compartment cover. Bowie argues that all of these accumulations
existed because the operator drove the hauler through a deep mud hole about 20 minutes before
MSHA inspected it. It contends that muck from the mine floor splashed onto the hauler and
washed into the belly pan. This muck contained the wet material, including coal, coal dust, and
bug dust, that Inspector Allen observed. Upon reviewing the evidence, I agree that much of the
material upon the hauler came from the mud hole, but I find that some of the material had been
present before the start of the shift. The Secretary established a violation.

35 FMSHRC Page 2961

I reach this conclusion based upon my review of the evidence presented by the parties at
the hearing.3 Nate Gaston, a downshift employee of Bowie, testified that he was the operator of
the hauler the day of the inspection and performed the preoperational check upon the cited
equipment. (Tr. 120). The hauler is a large, powerful, front-end loader that is principally used
during longwall moves to transport the longwall shields and other equipment. Following his
examination, Gaston determined that the hauler was safe to operate and he washed it before
traveling to the area where he intended to operate it. He wrote the following upon the
preoperational checklist in the comments section: “Washed and serviced, oil under motor,
washed out, checking to see where it’s coming from.” (Tr. 118-20; Ex. R-7). Gaston testified
that after he washed the engine compartment including the belly pan, the hauler was clean. (Tr.
121, 123). During this time he could not find the source of the oil. Using the dipstick, Gaston
measured the oil level twice over a period of time to see if the engine was losing oil, but the oil
level remained the same. (Tr. 121-22). He intended to watch the oil level as the shift progressed
and he contacted a mechanic to try to find the source of the oil during the shift. (Tr. 134-35).
Gaston said that there was only a little oil in the belly pan and it did not create a hazard. (Tr.
121, 136-37).
Gaston further testified that after he washed the hauler, he traveled through a muddy,
dirty water hole that was about 2 feet deep. (Tr. 117, 123). He went through this water hole to
get a tub to move power cables and again when he returned to the work area. After Gaston
operated the hauler for about 20 minutes, Inspector Allen inspected it. Gaston believes that the
material the inspector saw in the belly pan and elsewhere upon the hauler was muck from the
mud hole. (Tr. 125, 137).
Keith Trujillo, Gaston’s supervisor, testified that the water hole was in entry No. 2 at
crosscut No. 32 and it was a constant problem because it was a low spot where water and muck
accumulated. (Tr. 146, 159). Bowie installed a pump to try to control it. He described it as
soupy and dirty. (Tr, 147). Trujillo also testified that the hauler is typically washed at the start
of every shift because it gets dirty; spraying the engine compartment with a hose flushes out any
accumulations through holes at the bottom of the belly pan. (Tr. 148, 152, 161). He testified
that Bowie requires equipment operators to wash equipment because accumulations can create a
fire hazard. (Tr. 153-54). He stated that the presence of oil in the belly pan does not necessarily
mean that engine oil is leaking because a miner can easily spill oil while servicing the hauler.
(Tr. 157). After Bowie moved the cited hauler to the surface, it was determined that a seal was
leaking a small amount of oil. (Tr. 164).
3

The evidence presented by Bowie with respect to this order differed significantly from
the evidence presented by the Secretary. As a consequence, I was required to make a number of
credibility determinations when analyzing the evidence with respect to this order. Credibility
determinations involve not only weighing the trustworthiness of a witness, but also determining
whether a particular witness has the knowledge necessary to give weight to his testimony. The
witness may be competent to testify about the conditions at a mine, but he may not have a
complete understanding of factors such as the sequence of events that transpired, the hazard
presented by a cited condition, and the length of time that the condition existed. Thus, a
witness’s experience in the mining industry, his experience evaluating mine safety issues, and his
knowledge of the mine at issue can be crucial to evaluate credibility.

35 FMSHRC Page 2962

Ray Turner, a safety technician for Bowie, believed that the material upon the machine
came from the water holes. (Tr. 186-87). He said that these water holes had coal fines and
chunks of coal suspended in the water. (Tr. 186-87, 204). The hauler needed to return to the
surface to see if any engine oil or hydraulic leaks could be found. Turner did not believe that the
conditions found by Inspector Allen created a fire hazard because the hauler was permissible and
did not provide an ignition source. (Tr. 195-96).
I credit Gaston’s testimony that he washed the hauler, but I find that some combustible
material remained. The plastic water bottle had not been removed and it was unlikely that muck
had splashed as high as the bottom of the engine compartment covers, for example. I find that
the Secretary established a violation by a preponderance of the evidence. See, e.g., RAG
Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Dec. 2010) (“[t]he burden of showing
something by a preponderance of the evidence . . . simply requires the trier of fact to believe that
the existence of a fact is more probable than its nonexistence.”) (internal citations and quotations
omitted).
2. Significant and Substantial and Gravity
I find that the Secretary did not establish that the violation was S&S. The Secretary
established the fact of violation and that accumulations create a discrete safety hazard. Both
parties agree that accumulations on equipment in underground coal mines can create a serious
hazard. The Secretary did not, however, establish that the conditions were reasonably likely to
contribute to a fire or other injury causing event. I reach this conclusion for a number of reasons.
First, Bowie’s employees were aware of the presence of some oil in the belly pan. Nate Gaston
saw the oil as he cleaned the belly pan with a hose, noted it in his preoperational check list,
washed it out with a hose, and tried to find the source of the oil. The parties dispute the amount
of oil that was present. I find that the oil leak was small and there was less oil present than the
inspector believed; the amount was closer to that asserted by Gaston and Bowie’s other
witnesses. Second, Gaston removed out most of the coal-related accumulations before he
operated the hauler; most of the material cited by the inspector was deposited upon the hauler
when Gaston drove through mud holes about 20 minutes earlier. Finally, no likely ignition
source existed because, as a permissible piece of equipment, the hauler would not become hot
enough to ignite the wet accumulations. As summarized below, I find that Bowie’s witnesses
were in a better position to have this information than the inspector because these witnesses
observed, disassembled, and repaired the hauler after the order was issued, as discussed below.
Joshua Bailey, a maintenance worker, was called to see if he could find an oil leak after
Inspector Allen issued the order. He testified that the hauler appeared to be in good condition
and that he did not find any leaks. (Tr. 172-73). He was surprised that the hauler was cited by
MSHA because he saw Gaston washing the hauler, including the engine compartment, at the
beginning of the shift. (Tr. 171). He did not find any hydraulic fluid leaking. (Tr. 174). He also
noted that the mine floor in the area had many holes and water puddles. (Tr. 173). Bailey
believed that the accumulation in the operator’s cab resulted from driving the hauler through
muddy, water-filled holes and that the material in the belly pan also came from the mud holes.
(Tr. 174-75).

35 FMSHRC Page 2963

Jake Wadley, a shop mechanic, performed weekly permissibility checks upon
underground equipment. He testified that the cited hauler was washed frequently because it was
used in dirty areas of the mine. (Tr. 212). As a consequence, when mechanics in the shop
performed weekly permissibility checks, they frequently noted that the hauler required washing
due to accumulations. (Tr. 211-12; Ex. R-6). He looked at the subject hauler after Inspector
Allen issued the order to look for oil leaks. (Tr. 214). During his examination, he noted that the
hauler was very wet and muddy. Id. He removed the belly pan and found rocks, coal, and mud
within the belly pan. (Tr. 215). He then used a mirror to look under the hauler to try to find an
oil leak. Wadley determined that any leak probably originated at the front main seal. Id. The
condition was not obvious and could not be detected without using a mirror. (Tr. 216). He
asked that the hauler be moved to the surface shop. Once it was in the surface shop, he
determined that there was an “occasional drip” of oil from the seal and from the super charger
mounted upon the left side of the motor. (Tr. 218). Because the hauler was certified as a
permissible piece of equipment, the operating temperature was around 185 to 200 degrees and it
could not exceed about 400 degrees Fahrenheit. (Tr. 219-20). The hauler was equipped with an
automatic fire suppression system which would shut it down if the temperature exceeded 210
degrees. (Tr. 221).
I credit the testimony of Bowie’s witnesses as summarized above. Gaston washed the
hauler before he operated it, he monitored the oil level, and he called a mechanic to come to
examine it. Most of the other material upon the hauler was muck that splashed upon it and into
the belly pan when it traveled through the mud hole at crosscut 32. Holes in the bottom of the
belly pan would allow the “soupy” mixture to get inside. The material in the belly pan was wet.
I find that operating the hauler in that condition did not create a serious hazard as long as the
equipment operator took steps to discover the source of the oil in the belly pan.
Inspector Allen erroneously believed that the hauler was not maintained as a permissible
piece of equipment and that the engine and super charger could get extremely hot. (Tr. 23-24).
Bowie established that his assumptions were not correct. Bowie maintained the hauler in
permissible condition and the engine’s operating temperature was about 200 degrees Fahrenheit.
It is unlikely that the engine or the super charger attached to the engine would have gotten hot
enough to ignite the oil or the coal accumulations. No other ignition sources were identified by
the inspector. Assuming continued mining operations, a mechanic would have arrived, detected
the leak, and washed and repaired the hauler or taken it out of service. The hauler automatic fire
suppression system of the hauler also reduced the likelihood of an injury as a result of a fire.
I considered Inspector Allen’s testimony in reaching this conclusion. He determined that
the risk of injury resulting from the violation was reasonably likely because the equipment was
in use, there were substantial accumulations, the engine was hot to touch, and the mine was
gassy. (Tr. 34-35). Additionally, the equipment had a super charger, which is a source of
extreme heat. (Tr. 37). The inspector also determined that fatal injuries could reasonably be
expected to result from an ignition of the combustible materials. (Tr. 38-40, 43). I find that,
although a fire was possible, it was not likely considering continued mining operations. The
violation was moderately serious.

35 FMSHRC Page 2964

3. Negligence and Unwarrantable Failure
I find that the Secretary did not establish that the violation was the result of Bowie’s high
negligence or its unwarrantable failure to comply with the safety standard. Whether conduct is
the result of an operator’s unwarrantable failure is determined by considering all the facts and
circumstances of a case. Some factors may be irrelevant in a particular case. Consolidation Coal
Co., 22 FMSHRC at 353. All the relevant facts and circumstances must be examined to
determine if an operator’s conduct is aggravated, or whether mitigating circumstances exist. Id.;
IO Coal Co, 31 FMSHRC 1346, 1351 (Dec. 2009).4
The Secretary argues, based upon the testimony of Inspector Allen, that Bowie’s high
negligence and unwarrantable failure caused the violation. Inspector Allen testified that the
condition of the machine was obvious, open, and extensive; the hauler operator showed the
preoperational checklist to a supervisor. (Tr. 43). Therefore, a supervisor was aware that a
machine with an oil leak was operating in that section. Id. In addition, Inspector Allen testified
that the mine was cited 39 times for violations of section 75.400 in the two-year period leading
up to the issuance of this order and that, about a month before, he gave notice to Bowie that it
needed to take greater efforts to comply with the safety standard. (Tr. 44-45). For the reasons
set forth below, I find that the evidence does not support an unwarrantable failure finding.
As to the extent of the violative condition, although there were accumulations in several
places upon the vehicle, most of the accumulations found in the belly came from the mud holes
below, rather than from a deficiency in the hauler itself or the failure of Gaston to clean it at the
start of the shift. Much of the other material, including material in the transmission
compartment, likely came from the large mud hole. Upon investigation, it is clear that the motor
oil accumulations came from leaks in the vehicle, but I find that these accumulations were not as
extensive as the inspector believed.
The length of time that the violative condition existed is unclear; the Secretary did not
present evidence upon this issue. Accumulations existed at the beginning of Gaston’s shift, but
he used a hose to clean them. Most of the accumulations upon the hauler at the time of the
inspection had been present for 20 to 30 minutes.
4

Unwarrantable failure is defined by such conduct as “reckless disregard,” “intentional
misconduct,” “indifference” or a “serious lack of reasonable care.” Emery Mining Corp., 9
FMSHRC at 2003; see also Buck Creek Coal, Inc. v. FMSHRC, 52 F. 3d 133, 136 (7th Cir.
1995). Whether conduct is “aggravated” in the context of an unwarrantable failure analysis 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, 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. See e.g. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). 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.
Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992).

35 FMSHRC Page 2965

As to the obviousness of the condition, the accumulations were obvious to Gaston when
he was told to operate the hauler. I credit the testimony of Gaston that he used a hose to clean
the hauler for a considerable amount of time. (Tr. 119). The hauler contained muddy material
and accumulations at the time of Inspector Allen’s inspection and, although they were obvious,
the source of the accumulations was disputed at the hearing. As stated above, I find that most of
the accumulations were wet muck from the bottom. It was only after Bowie removed the belly
pan that it discovered the oil leak. The Secretary did not establish that the leak should have been
obvious to the operator during the preoperational check.
The inspector testified that he put the operator on notice that greater efforts were
necessary for compliance with section 75.400 approximately one month before the instant
inspection and that the operator was cited under the safety standard about 39 times during the
previous two years. The fact that 39 citations were issued to Bowie over the previous two years
is not particularly significant. While the fact that Inspector Allen put Bowie on notice is
significant, I find that Nate Gaston took his responsibility to remove accumulations from the
hauler seriously. He washed the hauler, monitored the oil level, and contacted a mechanic to
identify the problem. I find that Gaston’s actions and the actions of other Bowie employees
indicate that Bowie took its responsibilities under section 75.400 seriously.
I have considered Inspector Allen’s testimony that Bowie’s compliance with section
75.400 had fallen off since his previous inspection of the No. 2 Mine. I note that section 75.400
covers a wide variety of hazards and I conclude that Nate Gaston was taking affirmative steps to
keep equipment clean and free of accumulations. I credit the testimony of Trujillo that Gaston
diligently serviced his equipment. (Tr. 148). I also recognize, as does Bowie, that it is extremely
important to keep equipment free of accumulations, including oil, to prevent the hazards
associated with fire and smoke.
For the reasons set forth above, Order No. 8141442 is MODIFIED to a section 104(a)
citation with moderate negligence. The S&S determination is removed. The gravity was
serious. A penalty of $15,000.00 is appropriate.
II. APPROPRIATE CIVIL PENALTIES

Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an
appropriate civil penalty. Bowie’s history of previous violations is set forth in Exhibit G-1.
During the period between 8/18/2010 and 8/17/2011, Bowie had a history of 250 paid violations
at the mine of which 55 were S&S violations. For the period 7/13/2010 through 10/12/2011 the
numbers were 211 and 34. At all pertinent times, Bowie was a large operator. The violations
were abated in good faith. There was no proof that the penalties assessed in this decision will
have an adverse effect on Bowie’s ability to continue in business. The gravity and negligence
findings are set forth above.

35 FMSHRC Page 2966

III. ORDER

Based upon the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
following civil penalties:
30 C.F.R. §

Citation/Order No.

Penalty

WEST 2012-351
8141233
8473704

75.403
75.1909(j)(2)

$1,000.00
100.00

75.400

15,000.00

WEST 2012-827
8141442
TOTAL PENALTY

$16,100.00

For the reasons set forth above, the citation and order are MODIFIED as set forth above.
Bowie Resources, LLC, is ORDERED TO PAY the Secretary of Labor the sum of $16,100.00
within 40 days of the date of this decision.5

/s/ Richard W. Manning
Richard W. Manning
Administrative Law Judge

Distribution:
Gregory Tronson, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
800, Denver, CO 80202 (Certified Mail)
Patrick W. Dennison, Esq., Jackson Kelly, 3 Gateway Center, Suite 1340, 401 Liberty Ave.,
Pittsburgh, PA 15222 (Certified Mail)
RWM

5

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

35 FMSHRC Page 2967

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
875 GREENTREE ROAD
7 PARKWAY CENTER, SUITE 290
PITTSBURGH, PA 15220
TELEPHONE: (412) 920-7240
FAX: (412) 928-8689

September 4, 2013

WARRIOR COAL, LLC,
Contestant,
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Respondent.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTATION, (MSHA),
Petitioner,
v.
WARRIOR COAL, LLC,
Respondent.

:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:

CONTEST PROCEEDINGS
Docket No. KENT 2011-1259-R
Citation No. 8503376; 07/14/2011
Docket No. KENT 2011-1260-R
Order No. 8503378; 07/14/2011
Mine ID: 15-17216
Mine: Cardinal Mine
CIVIL PENALTY PROCEEDING
Docket No. KENT 2012-705
A.C. No. 15-17216-280358-01

Mine: Cardinal Mine

ORDER GRANTING THE SECRETARY’S MOTION FOR SUMMARY
DECISION AND DENYING RESPONDENT’S MOTION
FOR SUMMARY DECISION
Appearances:

Jennifer Booth Thomas, Esq., Office of the Solicitor, U.S. Department of
Labor, 618 Church Street, Suite 230, Nashville, Tennessee for the
Secretary of Labor
Melanie J. Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True,
PLLC, 3151 Beaumont Centre Circle, Suite 375, Lexington, Kentucky for
Respondent

Before:

Judge Steele

35 FMSHRC Page 2968

This case is before me upon the Notice of Contest filed by Warrior Coal, LLC,
(“Warrior”) and the subsequent Petition for Assessment of Civil Penalties by the Secretary of
Labor (the “Secretary”), pursuant to Section 105 of the Federal Mine Safety and Health Act of
1977 (the “Act” or “Mine Act”), 30 U.S.C. § 815. The parties agreed to submit this matter for
resolution on motions for summary decision. They filed briefs, exhibits and reply briefs.
STIPULATIONS
In its Motion for Summary Decision, Warrior Stipulates to the following facts:
1.

Warrior is subject to the Federal Mine Safety and Health Review Act of 1977 (the
“Act”).

2.

Warrior operates the Cardinal Mine (the “Mine”), and its products enter into and
affect interstate commerce within the meaning of the Act.

3.

Warrior is subject to the jurisdiction of the Federal Mine Safety and Health
Review Commission, and the Administrative Law Judge has the authority to hear
this case and issue a decision.

4.

The civil penalty assessed in this case will not affect the ability of Warrior to
remain in business.

ISSUES
At issue is whether Warrior had the obligation to provide the Secretary with the names,
addresses, telephone numbers, positions and shifts worked of all of its employees in conjunction
with an investigation under 110(c) of the Act. Further at issue is whether a withdrawal order
under Section 104(b) is valid when no areas of the mine or miners are affected.
CONTENTIONS OF THE PARTIES
The Secretary argues that his request for information was reasonable and within the scope
of his investigative authority provided by the Act. He states that while miners may refuse to give
the requested information to MSHA, operators have no such rights. Further, he contends that
MSHA’s policy manuals are not officially promulgated and, therefore, are not binding on the
Commission or the Secretary in his enforcement actions. Finally, he argues that the issuance of a
withdrawal order under 30 U.S.C. § 814(b) was proper under the Commission’s decision in BHP
Copper, Inc., 21 FMSHRC 728 (July 1999).
Warrior argues that the information requested by MSHA is not required to be kept by the
operator. Further, it contends that its employees have privacy rights that are guaranteed by the
Act and MSHA’s own rules regarding special investigations. It states that this was an attempt to
avoid MSHA’s rule that miners can decline to provide any personal information to MSHA.

35 FMSHRC Page 2969

Finally, it argues that a withdrawal order under 30 U.S.C. § 814(b) cannot be issued when no
area or persons are affected.
LAW AND LEGAL AUTHORITY
Section 103(a) of the Act states, in pertinent part:
(a) Authorized representatives of the Secretary or the Secretary of Health,
Education, and Welfare shall make frequent inspections and investigations in coal
or other mines each year for the purpose of (1) obtaining, utilizing, and
disseminating information relating to health and safety conditions, the causes of
accidents, and the causes of diseases and physical impairments originating in such
mines, (2) gathering information with respect to mandatory health or safety
standards, (3) determining whether an imminent danger exists, and (4)
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).
Section 103(h) of the Act provides,
In addition to such records as are specifically required by this Act, every operator
of a coal or other mine shall establish and maintain such records, make such
reports, and provide such information, as the Secretary or the Secretary of Health,
Education, and Welfare may reasonably require from time to time to enable him
to perform his functions under this Act.
30 U.S.C. § 813(h).
Section 104(b) of the Act states:
If, upon any follow-up inspection of a coal or other mine, an authorized
representative of 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 of such mine or his agent to immediately cause all
persons, 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.
30 U.S.C. § 814(b).

35 FMSHRC Page 2970

Section 110(c) of the Act provides:
Whenever a corporate operator violates a mandatory health or safety standard or
knowingly violates or fails or refuses to comply with any order issued under this
Act or any order incorporated in a final decision issued under this Act, except an
order incorporated in a decision issued under subsection (a) or section 105(c), 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 a person under
subsections (a) and (d).
30 U.S.C. § 820(c).
FACTS
On May 10, 2011, the Secretary issued 104(d)(1) Citation No. 8498874 and 104(d)(1)
Order No. 8498875 to Warrior due to hazardous roof conditions and an inadequate preshift
examination, respectively.1 See Secretary’s Motion for Summary Decision, p. 2-3. Based on the
issuance of this citation and order, the Secretary commenced a special investigation under
Section 110(c) of the Act. Id. at p. 3. The special investigators believed that the conditions
subject to the citation and order may have existed for three production shifts, and they stressed
the importance of interviewing all employees who may have had knowledge of the conditions
during these shifts. Id. at p. 4. Special Investigator Michael Newcom (“Newcom”) also stated
that the addresses and phone numbers of these employees were necessary so that the employees
could speak freely with investigators outside of the mine setting. Id. at p. 4. By letter dated June
21, 2011, District Manager Jim Langley (“Langley”) notified Warrior representative Tommy
Kessinger that MSHA was requesting the names, addresses, positions, shifts worked and
telephone numbers for all of Warrior’s employees at the Cardinal Mine. Id. at p. 5;
Respondent’s Motion for Summary Decision, p. 3; Government Exhibit G; Respondent Exhibit
1.2 The letter asserted authority for the request under Section 103(a) of the Act.
By letter dated June 28, 2011, Warrior, through its in-house counsel, Gary McCollum,
Esq., requested details regarding the purpose of the investigation and the need for the personal
information requested. GX-H; RX-2. At that time, Warrior raised concerns that according to
MSHA’s Special Investigation Procedures Handbook, the information requested could be
provided by the miners on a voluntary basis. Id. It also requested additional information to
verify that statements were taken without duress, and no promises or commitments were made
1

These alleged violations are docketed at Docket No. KENT 2012-706 and are still at
issue. The undersigned makes no judgment as to their validity at this time; rather, they are noted
simply for context.
2

Hereinafter, Government exhibits will be referred to as “GX” followed by a letter, and
Respondent’s exhibits will be referred to as “RX” followed by a number.

35 FMSHRC Page 2971

by the special investigators. Id. Langley responded to Warrior by letter on June 29, 2011,
stating that MSHA was investigating a Section 110(c) case and advised Warrior to cooperate and
comply with the request by July 8, 20113 or face legal action under Section 108 of the Act. GXI; RX-3. Langley also provided Warrior with a copy of the Commission decision in BHP
Copper, Inc., 21 FMSHRC 758 (July 1999). Id. By letter dated July 1, 2011, Warrior notified
Langley of its intent to comply, but again requested information concerning what MSHA was
investigating and why it needed the personal information of every employee. GX-J; RX-4. This
letter again raised the concern of the miners’ privacy rights, and their ability to refuse to provide
the information. Id. By letter dated July 6, 2011, MSHA provided the subject of the
investigation to Warrior and also requested copies of the notes taken by Safety Director Bruce
Morris (“Morris”) relating to the conditions subject to the investigation. GX-K; RX-5.
On July 12, 2011, Warrior sent a letter to Langley stating that Morris had provided
MSHA with a list of individuals working on the day shift for the No. 2 Unit at the time that the
citation and order were issued. GX-L; RX-6. The letter further informed Langley that Morris
and three other employees had agreed to participate in interviews with Newcom. Id. Warrior
stressed that it was not refusing to comply with MSHA’s demands for information; however, it
was requesting a “narrower, and more focused, demand from MSHA.” Id. It argued that
MSHA’s demand was so broad that it covered personal confidential information for employees
that were not even miners. Id. Finally, it stated that the request for Morris’s notes was overly
broad in that, as worded, it would request Attorney McCollum’s personal legal files, which it
asserts implicated attorney-client privilege and/or work product protections. Id.
In response, on July 14, 2011 at 9:58 a.m., MSHA issued 104(a) Citation No. 8503376 to
Warrior for a violation of Section 103(a) of the Act. The “Condition or Practice” section states:
The operator failed to produce/provide requested information to MSHA special
investigators during the performance of the investigation duties under section 110
of the Act. By letter dated June 30, 2011, MSHA requested documents necessary
to carry out its investigation under section 110 of the Act of certain citations
issued by the Secretary’s authorized representative. These documents have not
yet been provided.
GX-M; RX-7. Newcom designated this Citation as having no likelihood of injury or illness and
not significant and substantial. Id. He stated that no miners would be affected and no lost
workdays could reasonably be expected for the alleged violation. Id. However, he designated
Warrior’s negligence as reckless disregard. Id. A penalty of $555.00 was assessed for this
violation.

3

The letter actually states that the information must be provided by July 8, 2009. This is
an obvious typographical error.

35 FMSHRC Page 2972

Approximately one hour later, at 10:59 a.m., Newcom issued 104(b) Order No. 8503378
to Warrior for failure to abate. GX-N; RX-8. The “Condition or Practice” section of this Order
states:
The operator provided the Safety Manager’s notes from the 5/10/2011 preproduction meeting, however the operator refused to provide the additional
information requested in MSHA’s letter dated June 30, 2011. The reasonable
time for abatement has expired and there was no justification for any additional
time to allow the operator to comply with the requirements of the citation.
Id. In the “Area or Equipment” section, Newcom wrote, “No area affected.” Id.
Warrior filed its Notice of Contest with the Commission for Citation No. 8503376 and
Order No. 8503378 on July 15, 2011. The case was assigned to the undersigned on November
27, 2012. See Order of Assignment and Pre-Hearing Order. These proceedings were initially set
for hearing on April 24, 2013 in Madisonville, Kentucky; however, the parties agreed that cross
motions for summary judgment were appropriate, as no material facts are in dispute. See Notice
of Hearing and Order to File Prehearing Report.
CONCLUSIONS
Commission Rule 67(b) sets forth the circumstances under which a motion for summary
decision may be granted:
A motion for summary decision shall be granted only if the entire record,
including the pleadings, depositions, answers to interrogatories, admissions, and
affidavits, shows:
(1) That there is no genuine issue as to any material fact; and
(2) That the moving party is entitled to summary decision as a matter of
law.
29 C.F.R. § 2700.67(b). The parties have agreed that there are no genuine issues of material fact,
and the issue can be properly decided on the record before me. Based on the parties’ motions,
replies and evidence submitted, Respondent’s Motion for Summary Decision is DENIED and
the Secretary’s Motion for Summary Decision is GRANTED.
Section 103(h) of the Act allows MSHA to make reasonable requests for information
from operators, even when this information is not specifically required to be obtained by the Act
or its regulations. 30 U.S.C. § 813(h). This was addressed by the Commission in Big Ridge,
Inc., 34 FMSHRC 1003 (May 2012), affm’d 715 F.3d 631 (6th Cir. 2013). The Commission
found that the language of Section 103(h) is expansive rather than restrictive. Id. at 1013. It
specifically stated that “Congress gave clear instructions that ‘information’ that is not
specifically required to be maintained by the Act shall, nonetheless, be provided to the Secretary
to enable her to perform her functions, as long as the request is reasonable.” Id. at 1012-1013. It

35 FMSHRC Page 2973

notes that Congress explicitly rejected previous forms of this section, which had limited the
Secretary’s access to records specifically prescribed by regulation. Id. at 1013.
Further, although employees have privacy rights pursuant to the Act, operators cannot
refuse to provide information to MSHA when it has a legitimate government purpose for
obtaining the information. In passing Section 110(c) of the Act, Congress stated that in order to
induce greater compliance with the Act, it intended to hold individual officers responsible for the
operation, control and/or supervision of the mine liable for violations. See Sec’y of Labor v. Bill
Simola, employed by United Taconite, LLC, 34 FMSHRC 539, 546-547 (Mar. 2012)(Citing S.
Rep. No. 91-411, at 39, reprinted in Coal Act Leg. Hist. at 165, reprinted in Senate Subcomm.
on Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and Health Act
of 1977, at 628-29 (1978)). Conversely, the Commission noted that protections from liability
afforded by corporate shield would reduce incentive to comply with the Act’s regulations. Id. at
547 (Citing Richardson v. Sec’y of Labor, 689 F.2d 632, 633-634 (6th Cir. 1982), cert. denied,
461 U.S. 928 (1983).
Based on the foregoing, the undersigned finds that the Secretary’s information request
made pursuant to the particular circumstances of the 110(c) investigation related to this case was
reasonable and for a legitimate government purpose. As contemplated by Congress, Section
110(c) of the Act encourages operators and their agents to ensure that mining operations are
conducted safely and within the regulations. This in turn can help prevent the tragedies
experienced in mines such as Upper Big Branch and Sago. It is also important to note that
whether Warrior was required to keep the information sought by MSHA or not, it cannot
realistically contend that it does not keep up-to-date contact information for the employees of a
mine of this size. In 2011, Warrior’s Cardinal Mine logged more than one million operator hours
worked.4 As with any employment setting, it can be imagined that miners take vacation, get sick
and call off for any number of reasons. Warrior must have some way of contacting alternate
employees to come in for a shift.
The special investigators believed that the conditions leading to the initial unwarrantable
failure citation and order had existed for three production shifts. Thus, the Secretary had two
options – he could request Warrior to give him the contact information for each individual
specifically working on each shift of these shifts, or he could request the contact information for
all of Warrior’s employees. In deciding on the latter, the Secretary placed the burden of
interviewing nearly 400 miners on himself, realizing that many would have no knowledge of the
conditions at issue. Simply supplying the contact information for its employees placed almost no
burden on Warrior. Any miners unwilling or uncomfortable discussing mine conditions with
MSHA could simply refuse, as is their right.
Although it does not change the outcome, the Secretary’s reliance on BHP Copper, 21
FMSHRC 758 (July 1999) seems a little misplaced. While the Commission states that it is not
persuaded by the operator’s argument that Section 103(h) only requires information that is
required by regulation, the Commission also goes to great lengths to stress that an accident
investigation involving a fatality was ongoing. Id. at 764-765, 768. In the instant case, no
4

See MSHA’s Mine Data Retrieval System, http://www.msha.gov/.

35 FMSHRC Page 2974

accident, and certainly no fatality, occurred. While investigations into operator compliance are
worthy causes and can prevent future accidents, they cannot be given equal weight with
investigations into injuries or fatalities to miners. The Commission’s decision in Big Ridge more
accurately relates to the given question.
The Secretary also argues that MSHA’s policy manuals are not officially promulgated
rules binding on the Commission and the Secretary in his enforcement actions. The undersigned
agrees. The Commission has previously indicated that manuals are not officially promulgated
and do not prescribe rules of law binding on the Commission. King Knob Coal Company, Inc., 3
FMSHRC 1417, 1420 (June 1981)(citing Old Ben Coal Company, 2 FMSHRC 2806, 2809 (Oct.
1980)). In his decision in Tilden Mining Company, ALJ Paez stated that, “the express language
of a statute or regulation ‘unquestionably controls’ over material like a manual.” Id., 33
FMSHRC 876, 882 (Apr. 2011)(ALJ)(citing D.H. Blattner & Sons, 18 FMSHRC 1580, 1586
(Sept. 1996)). The Commission also cautioned, however, that this does not mean that a manual
can never be afforded legal significance. King Knob Coal, 2 FMSHRC at 2809. Cases may arise
where documents reflect a genuine interpretation or statement of policy whose soundness
commends deference. Id. That is not the case here, however.
The statements in the Special Investigator’s Handbook states that employees may provide
information to MSHA on a voluntary basis. As previously stated, the undersigned does not
disagree with that statement. However, the Secretary is requesting the contact information from
Respondent, not the miners. Section 103(h) specifically states that records in addition to
information required by the Act may be reasonably required by the Secretary from time to time
to perform his functions under the Act. Even if the Secretary’s policy manual stated that he
could not request the information, the Act would clearly overrule. Further, the Secretary is not
skirting its own policy. If miners choose not to provide any information when contacted, it is
clearly their right to do so.
I further find that a 104(b) order can be validly issued where no areas or persons are
affected. The Commission has upheld at least one such order in the past. See Thunder Basin
Coal Company, 16 FMSHRC 671 (Apr. 1994); also see generally Kentland-Elkhorn Coal
Corporation, 1 FMSHRC 1833, 1834(Nov. 1979)(order did not require the withdrawal of miners
from mining operations for failure to pay walk-around employee). Although not precedential in
nature, the undersigned finds the conclusions made by Judge Barbour in Hopkins County Coal,
LLC, 34 FMSHRC 789 (Apr. 2012)(ALJ) to be persuasive. In his decision, the ALJ states the
operator incorrectly treated the determination of the extent of the area affected by the violation as
an additional requirement to issuing an order under Section 104(b) of the Act. Id. at 804. He
makes no attempt to determine the exact meaning for the phrase, “[the representative] shall
determine the extent of the area affected by the violation and shall promptly issue an order
requiring the operator of such mine … to immediately cause all persons … to be withdrawn from
… such area until [the] … representative … determines that such violation has been abated.” Id.
at 805. However, the ALJ finds the Secretary’s interpretation that if no area is affected, no
miners need be withdrawn to be reasonable. Id. As such, the Secretary may issue a “no persons
affected” 104(b) order. Id.

35 FMSHRC Page 2975

Here, the Secretary issued Order No. 8503378 for the failure to abate Citation No.
8503376, which was issued for the failure to provide information requested pursuant to a Section
110(c) investigation. The undersigned finds that the Secretary correctly acknowledged that the
failure to provide the documents created no inherent hazard for miners and, thus, felt no need to
have them withdrawn from the working area. This creates balance in inducing operators to abate
violations, while acknowledging that miners are not necessarily endangered by every infraction.
Such commonsense measures are too often overlooked in the legal arena.
ORDER
It is ORDERED that the Secretary’s Motion for Summary Decision is GRANTED. It is
further ORDERED that Warrior PROVIDE THE REQUESTED INFORMATION to MSHA
within 30 days of the date of this Decision. Finally, it ORDERED that Citation No. 8503376
and Order No. 8503378 are AFFIRMED as written and Warrior shall PAY the Secretary of
Labor the sum of $555.00 within 30 days of the date of this Decision.1

/s/ William S. Steele
William S. Steele
Administrative Law Judge
Distribution:
Jennifer Booth Thomas, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church
Street, Suite 230, Nashville, TN 37215-2862
Melanie J. Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont
Centre Circle, Suite 375, Lexington, KY 40503

1

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

35 FMSHRC Page 2976

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19th STREET, SUITE 443
DENVER, CO 80202-2500
303-844-5267/FAX 303-844-5268

September 5, 2013
VERIS GOLD USA, INC.,
:
(FORMERLY QUEENSTAKE RESOURCES :
U.S.A.),
:
Contestant,
:
:
:
v.
:
:
:
SECRETARY OF LABOR,
:
MINE SAFETY AND HEALTH
:
ADMINISTRATION, (MSHA),
:
Respondent.
:
:
SECRETARY OF LABOR,
:
MINE SAFETY AND HEALTH
:
ADMINISTRATION, (MSHA),
:
Petitioner,
:
:
v.
:
:
VERIS GOLD USA, INC.,
:
(FORMERLY QUEENSTAKE RESOURCES :
U.S.A.),
:
Respondent.
:

CONTEST PROCEEDINGS
Docket No. WEST 2012-1124-RM
Citation No. 8692812; 06/05/2012
Docket No. WEST 2012-1126-RM
Order No. 8692814; 06/06/2012
Docket No. WEST 2012-1127-RM
Citation No. 8692815; 06/06/2012
Jerritt Canyon Mill
Mine ID: 26-01621
CIVIL PENALTY PROCEEDINGS
Docket No. WEST 2013-26-M
A.C. No. 26-01621-300934
Docket No. WEST 2013-357-M
A.C. No. 26-01621-306880-01

Jerritt Canyon Mill

DECISION
Appearances:

Joseph Lake and Leon Pasker, Office of the Solicitor, U.S. Dept. of Labor,
San Francisco, California for the Secretary;
Brian Hendrix and Avi Meyerstein, Jackson Lewis, Denver, Colorado for
the Respondent.

Before:

Judge Miller

These cases are before me on Notices of Contest filed by Veris Gold U.S.A., Inc.,
formerly known as Queenstake Resources U.S.A., Inc. (“Veris”), and Petitions for Assessment of
Civil Penalty filed by the Secretary of Labor, acting through the Mine Safety and Health
Administration against Veris, pursuant to sections 105 and 110 of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § § 815 and 820). Veris operates the Jerritt Canyon Mill near
Elko, Nevada. (Tr. 9). The dockets involve two citations and one order issued by MSHA in

35 FMSHRC Page 2977

response to incidents that occurred at the mine on June 5th and 6th, 2012.1 The parties presented
testimony and documentary evidence at a hearing held in Reno, Nevada on July 25, 2013.
I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
a.

Background

The parties agree that the Mine Safety and Health Administration has jurisdiction over
the mine. (Tr. 9). The mine is engaged in the mining and processing of gold ore. Veris is a large
operator and the penalties proposed will not hinder its ability to continue in business. (Tr. 9-11).
On June 4, 2012, the MSHA Elko, Nevada field office received a complaint about unsafe
equipment and unmaintained pumps, pipes and hoses at the Jerritt Canyon Mill. Sec’y Ex. 10.
As a result, Inspector John Stull traveled to the mine on June 5, 2012 to begin a complaint
inspection. After checking in at the mine, Stull went to the office of the safety supervisor, Dan
Lowe, and provided a copy of the complaint. Lowe immediately became angry, called the
complaint “bullshit” and subsequently, engaged in activity that interfered with the inspection.
Lowe was loud, argumentative and repeatedly cursed and yelled at Stull, while escalating his
behavior to the point of intimidation and harassment. As a result, I find that the mine impeded
the investigation and violated Section 103(a) of the act, failed to abate the citation issued for that
violation, and, finally, after being warned several times, worked in the face of the order issued
for failing to abate the original citation.
The findings of fact detailed below, are based on the record as a whole and my careful
observation of the witnesses during their testimony. In evaluating the credibility of the witnesses
I paid very close attention to their demeanor and voice intonations. In resolving any conflicts in
testimony, I have taken into consideration the interests of the witnesses, corroboration, or lack
thereof, and consistencies or inconsistencies in each witness’s testimony and between the
testimonies of witnesses. Any failure to provide detail on each witness’s testimony is not to 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) (administrative law judge is not required to discuss all evidence and failure to cite
specific evidence does not mean it was not considered).
At hearing, the Secretary called Inspector Stull, his supervisor, Gary Hebel, and former
Veris employee, and now MSHA mine inspector, Jeffrey Bain. I found each of the Secretary’s
witnesses to be credible and thorough in their description of the events. The mine operator
called Dan Lowe, the mine’s safety manger, who is accused of impeding the inspection, and his
subordinate, Mark Butterfield. While Butterfield’s testimony was generally credible, I do not
find Lowe to be a credible witness and, instead, rely on the facts as presented by Inspector Stull.
While the parties agree to some of the relevant facts involved in this case, there are a number of

1

At hearing, the Secretary elected to vacate Citation No. 8692571, which is part of
Docket No. WEST 2013-357. (Tr. 12-13).

35 FMSHRC Page 2978

differences in their accounts of the incidents and, where necessary, I address those differences
below.
b.

Summary of Events

On June 4, 2012 the MSHA Elko, Nevada field office received a complaint that alleged
two safety hazards at the Jerritt Canyon Mill, one of which involved unsafe equipment, and the
other of which involved maintenance of pumps, pipes and hoses. Stull, who had nearly four
years of experience as a mine inspector at the time, was assigned to conduct the complaint
investigation. (Tr. 29). Stull traveled to the mine on June 5, 2012 and checked in at the guard
shack. While in the guard shack, Stull observed an injured miner waiting to be transported to
town. (Tr. 34). The miner had a cut on his leg after being hit while shoveling. (Tr. 34). Given
the injury, Stull was on high alert that there were possible safety problems at the mine. (Tr. 3435).
Stull next met with Dan Lowe, the mine’s safety director. (Tr. 35). Although Stull had
inspected the mine and mill in the past, this was his first encounter with Lowe. (Tr. 35). Stull
handed Lowe a redacted copy of the complaint. (Tr. 35); Sec’y Ex. 9. After receiving the
written complaint, Lowe became upset, and responded that the complaint was “bullshit” and that
the allegations were vague. (Tr. 35-36). Lowe immediately called the MSHA district manager,
Wyatt Andrews, to discuss the vagueness of the complaint. (Tr. 36). Lowe was under the
impression that Andrews instructed Stull not to inspect the complaint item concerning pumps,
pipes and hoses, but Stull denies that Andrews directed him to do so. (Tr. 85, 86).
Following his meeting with Lowe, Stull requested a list of equipment at the mine, and
Butterfield, an employee who worked for Lowe in the safety department, went to find the list,
while Lowe and Stull headed to the equipment shop to begin the inspection. (Tr. 87). Stull
began the inspection by approaching a forklift similar to the one listed in the complaint, but
found it had a flat tire and was out of service. (Tr. 37-38). The inspector and Lowe walked the
“no go” line while Stull checked off, but did not formally inspect, the equipment that was not
ready for use. (Tr. 41).
Stull then moved on to look at the equipment, specifically a guzzler truck, on the “ready”
line. (Tr. 38). While inspecting the guzzler truck Stull observed that the cab was littered with
bottles, a grease gun, trash and other debris. (Tr. 39). When Stull mentioned the condition of the
cab, Lowe became very upset, said that Stull’s concern was “bullshit,” raised his voice and began
to argue with Stull. (Tr. 40). Lowe told Stull that the mine could not be cited under the
housekeeping standard and took out his regulation book to show the housekeeping regulation to
the inspector. (Tr. 91). Lowe also pointed out that the key in the ignition had a “do not operate”
tab on it. Stull continued with what he was doing and did not respond, while Lowe became
increasingly loud and continued to swear. Lowe threatened to videotape Stull with the recording
device on his phone. (Tr. 40). Lowe insists that he was merely pointing out errors to the
inspector and his swearing was not directed at the inspector, but rather MSHA in general. Stull,
on the other hand, testified that he had never seen such hostility. (Tr. 40-41). Stull next
approached a crane that had been operated for training purposes the day before. (Tr. 42). Stull
asked to see the pre-op cards for the crane, but the mine refused to provide them. (Tr. 42-43).

35 FMSHRC Page 2979

Lowe told Stull that he didn’t have authority to ask for the pre-op sheets and that they would not
be provided. (Tr. 42-43). However, at hearing, Lowe insisted that he did check to see who had
operated the crane on the prior day and inquired about the pre-op forms. Stull does not recall
Lowe providing any explanation, just loudly refusing each request. (Tr. 104-105). Lowe told
Stull to inspect the crane as it was. Stull recalls that Lowe was loud and accusatory while
cursing during the discussion about the crane. At this point, Stull informed Lowe that he was
impeding the investigation. (Tr. 43-44).
Butterfield testified generally that both men were raising their voices through the
inspection, but only Lowe was cursing and pointing fingers. (Tr. 187, 191, 200). Butterfield
recalls that Stull did not use the word “impeding,” but does remember Stull using the word
“intimidate.” (Tr. 212, 227, 228, 235).
Stull then moved on to the lube truck, which he observed pulling into the line. (Tr. 44).
Stull approached the truck and asked the operator for the pre-op documents. The operator
provided the documents as requested. (Tr. 44). The pre-op documents showed that the operator
had noted that two studs were missing on one of the tires. Sec’y Ex. 14-2. Stull asked why the
studs had not been repaired and was told that the mine had ordered the parts. (Tr. 45). However,
the document that was eventually given to Stull, Sec’y Ex. 15, indicates that the parts were not
ordered until the following day, June 6, 2012. Since Stull could not tell if the broken studs were
a hazard, he asked to have the wheel removed for further investigation, but Lowe refused to do
so. (Tr. 46-47).
Butterfield explained that at this point in the inspection the inspector was becoming
agitated and unhappy as the two men continued their verbal back and forth. Lowe recalls that the
truck operator, who was a mechanic, explained that the condition of the wheel was not a hazard,
and that he changed the lug nuts himself to assure they were positioned safely. Stull did not
recall any explanation from the driver of the truck. (Tr. 110).
Stull testified that, at that point during the inspection, Lowe had a fit and rattled off a
number of expletives, including “[f]uck, this is bullshit . . . I want you fucking off my
property[,]” became very aggressive, pointed his finger at Stull, and, pulled out his phone to
make a call. (Tr. 47-48, 119, 121). Stull had never experienced this kind of treatment or conduct
during an inspection. (Tr. 48). He explained that Lowe spoke loudly with his face just a foot or
two away from Stull’s face, and pointed his finger at Stull. (Tr. 48). Stull asked Lowe to be
professional, but Lowe came within inches of Stull’s face and, while pointing at Stull, said “I
don’t give a fuck. . . . I don’t give a shit what you want” and told Butterfield to “[c]all the
sheriff” and have Stull removed. (Tr. 48).
Stull explained that, during this interaction, he was between the equipment and the four
mine representatives (i.e., Lowe, Butterfield, Lee and the truck driver) and felt “scared” and
“unsafe.” (Tr. 48-49). Butterfield agreed that Lowe was cursing, but explained that the cursing
was not directed at Stull. Instead, Butterfield claimed that Lowe was criticizing MSHA.
However, Lowe was pointing his finger at Stull while cursing, and saying MSHA “didn’t know
shit.” Lowe again told Stull that the inspection was “bullshit,” and MSHA was not following the

35 FMSHRC Page 2980

Mine Act. Given Lowe’s behavior, and the fact that Stull was cornered by Lowe and Butterfield,
Stull felt threatened. (Tr. 49).
Butterfield explained that Lowe often uses bad language and hand movements, but while
Butterfield heard Lowe swearing, he did not hear the inspector swear. (Tr. 200, 224). Nor did
Butterfield see a physical altercation, but agreed that there was a verbal one unlike any he had
seen while working at the mine. (Tr. 200). After placing the call to the sheriff and requesting a
civil standby, Butterfield returned to Lowe and Stull to say that the sheriff had been summoned.
(Tr. 185-227).
Stull stated that he was being intimidated and he was done and was going to leave the
property. (Tr. 51-52, 126). In fact, Lowe had told Stull to leave, but Lowe insists that he invited
the inspector to continue the inspection several times. Lowe asked the inspector at least three
times if he was done with his inspection and then told the inspector that, if was done, he had no
right to remain on the property. Stull made an attempt to diffuse the situation by walking away
and going to his car in the hope that it would allow Lowe to cool off, however, Lowe and
Butterfield followed his every step. (Tr. 52, 54).
Stull, even while inside his car, continued to feel intimated, and so removed his car from
inside the gate and parked outside to call his supervisor, Hebel. (Tr. 52, 54, 128-129). Stull
explained to Hebel that Lowe was impeding the inspection, and described the verbal abuse,
cursing, and yelling to Hebel. (Tr. 55). Hebel testified that Stull was nervous, distraught, and
not himself. (Tr. 249). Hebel informed Stull that he was on his way.
Stull waited in his car until the sheriff arrived. (Tr. 56). Lowe and Butterfield came out
of the gate to greet the sheriff. Stull told the sheriff why he was there, and Lowe countered that
Stull had no authority to be there given that he had finished his inspection, that the mine property
runs along the road and down to the highway, and said that Stull must leave. (Tr. 56). Stull
agreed to move down to the highway, and did so while he waited for Hebel. (Tr. 56). While
waiting, Stull wrote up and issued Citation No. 8692812 for impeding the investigation. (Tr.
57); Sec’y Ex. 1. He set the termination time for 2:00 that day.
When Hebel arrived, he spoke to the sheriff, who then escorted Hebel and Stull back to
the guard shack where they met with Lowe. (Tr. 57-58, 250-251). Stull gave Lowe a copy of
the citation and Lowe responded that it was “all a bunch of lies.” (Tr. 58). Lowe told Hebel that
it was Stull who was flipping out and that he thought Stull had a problem. (Tr. 58). Stull
explained the situation to everyone present and informed them that he was issuing a citation for
impeding and that he wished to continue the inspection without Lowe. (Tr. 59). Hebel recalled
Lowe saying “just issue the fucking thing.” (Tr. 252). At that time, Lowe agreed he would not
go on the inspection and, subsequently, Stull left with Butterfield to continue the inspection. (Tr.
61-62, 251).
While Stull and Butterfield continued the inspection, Lowe and Hebel went to Lowe’s
office where Hebel attempted to speak with Lowe about professional behavior and
communication. (Tr. 61-62, 251). Lowe responded that he could do what he wanted and that it
was his mine. (Tr. 252). Hebel testified that he had spoken to Lowe in the past about his

35 FMSHRC Page 2981

behavior, and explained that, on this occasion, he found Lowe’s loud, cursing statements to have
constituted intimidation.
Both Hebel and Stull agree that they made it clear to Lowe that he was not wanted and, in
fact, could not participate in the remainder of the inspection. (Tr. 251). Hebel and Stull both
explained to Lowe that the citation for a violation of Section 103(a) would stay in effect until the
complaint inspection was complete. (Tr. 62). Lowe told them that that was fine, and he would
not go with Stull. However, at hearing, Lowe testified that he did not understand that the citation
meant that he could not accompany Stull for the entirety of the complaint inspection, and,
instead, he thought the violation was terminated when Stull returned to continue his inspection
that afternoon. I credit the testimonies of Stull and Hebel in this regard as in others. Stull was
clear with Lowe that he did not terminate the citation. Stull intended to leave the citation in
place as he had no intention of terminating the citation if it meant that Lowe would continue to
follow him and engage in aggressive behavior, including the incessant swearing, yelling and
intimidation.
Stull continued the inspection with Butterfield for several hours, and then, along with
Hebel, returned to the office in Elko. (Tr. 62-63). While in the office, Stull called a truck dealer
to discuss the missing studs on the lube truck. (Tr. 64). The technician he spoke to
recommended a torque test to determine if the wheel was secure and not a hazard. (Tr. 64).
Jeff Bain, currently an MSHA inspector, was employed in Veris’ mine safety department
during Stull’s June 2012 inspection. (Tr. 158). Bain testified that, while working in the mine’s
safety department, he was responsible for accompanying inspectors during inspections. (Tr.
160). Bain testified regarding his recollection of the events on June 5th, about his time working
at the mine, and his history with Lowe. I found Bain to be a very calm, honest and straight
forward witness, and I credit his testimony.
Bain explained that, at the time of the inspection, he reported directly to Lowe, who had
been hired as the mine’s safety manager. (Tr. 160-161). Lowe, as part of his job, conducted
training regarding how the safety department personnel should accompany mine inspectors. (Tr.
161). Lowe’s methods were a big change from how the mine had operated in the past as Lowe
instructed the safety department to be more adversarial, and, wanted them to get the inspector on
and off the property as fast as possible. (Tr. 161). Bain explained that Lowe trained them to
engage the inspector at every point, contest what the inspector said, and bring up issues with the
inspectors in the strongest terms in an attempt to have the citation vacated. (Tr. 161). According
to Bain, they were instructed to be argumentative, but not to the point that they made the
inspector mad. (Tr. 162).
On June 5th, Bain observed Lowe and Stull engaged in a heated discussion near the guard
shack. (Tr. 162-163). Although Lowe disputes the fact, Bain testified that he was asked by
Lowe to observe what was going on. (Tr. 163). Bain observed Lowe speaking in a loud voice,
and arguing over a hazard complaint and inspection. (Tr. 163). Lowe was berating MSHA, the
training of inspectors, and how MSHA applied training to inspections. (Tr. 163). Bain, while
standing eight to ten feet away, heard the inspector tell Lowe that he was being impeded and
intimidated. (Tr. 163-164). Bain heard Lowe using expletives, but didn’t recall Stull using any.

35 FMSHRC Page 2982

(Tr. 164). He heard Lowe ask Stull if he was done, and Stull said yes, but that he was going to
call his supervisor and possibly issue an impeding violation. (Tr. 164). It was obvious to Bain
that Stull was shaken and that Stull wanted to disengage from the conversation with Lowe. (Tr.
165).
At some point, Bain learned from Butterfield that Lowe had asked Butterfield to call the
sheriff because there was a trespasser on the site. (Tr. 165). Bain was shocked and found the
action unusual. (Tr. 166). When the sheriff arrived, Bain moved on, but later questioned Lowe
about the incident. (Tr. 167). Lowe explained that he wanted to show MSHA who was boss,
that he didn’t want to let the inspector push the company around, and that this was his way of
training the inspector. (Tr. 168). Lowe explained to Bain that he was training one field office
and one inspector at a time, and teaching them how to look at hazards and apply standards. (Tr.
168). Lowe also told Bain that if he directed his criticism at MSHA as a whole, and as long as
he did not personally direct his abuse at an inspector, he could skirt an impeding citation. (Tr.
168-169). According to Bain, Lowe said he was justified in calling the sheriff because the
inspector said he was done and, as a result, no longer had a right to be on the property. (Tr. 169).
While Lowe testified that he called the sheriff to diffuse the situation and because there was
something wrong with the inspector, I find Bain’s explanation to be more in keeping with the
other testimony and, accordingly, I credit Bain’s recollection of the events.
On June 6, 2012, Stull returned to the mine alone to continue the complaint inspection
with the expectation that he could do so without interference from Lowe. (Tr. 64-65). Stull met
Butterfield, who accompanied him back to the lube truck, where Brian Lee joined the two of
them and they began the inspection. (Tr. 64-65). Stull asked Lee if he could check the torque on
the tire with the missing studs so that Stull could determine if the condition created a hazard.
(Tr. 65-66). Lee agreed and went to find the proper tools. (Tr. 66). However, before the torque
test could be initiated, Lowe approached the party. (Tr. 66). Stull didn’t want any confrontation
with Lowe and, in an effort to avoid Lowe, attempted to continue to conduct the test. (Tr. 6667). Lowe asked Stull what he was doing and, when told about the torque test, Lowe said
“[b]ullshit . . .[, y]ou are not going to do anything.” (Tr. 67). Lowe was speaking loudly, as
Stull tried to explain the purpose of the test. (Tr. 67). Lowe said that the mine didn’t have to do
it and was not going to do it. (Tr. 67). Stull then explained to Lowe that he was not supposed to
be in the inspection party, as there was still a citation in place that had not been terminated which
prohibited Lowe from impeding the inspection. (Tr. 67).
Lowe testified that he was not aware that the citation had not been terminated or that the
expectation was that he could not join the inspection party. However, I credit the testimonies of
Stull and Hebel that they told him that the citation was not going to be terminated until the
inspection was complete and that Lowe could not accompany the inspector during that time. I
note that Lowe made much of the fact that he is well versed on MSHA regulations, yet he missed
the fact that the citation had not been terminated. Also, I note that, in his testimony, Lowe
pointed out that he was given until the end of the first day to terminate the citation. If he was
aware of the time given, he certainly should have been aware that it was not terminated.
After telling Lowe that he could not travel with the inspection party, Stull explained that,
if Lowe did not leave, he would have to issue a failure to abate order. (Tr. 67). Lowe told Stull

35 FMSHRC Page 2983

to go ahead and issue the order because he was not going to leave the inspection party. (Tr. 68).
Stull gave Lowe another opportunity to leave and explained to Lowe that he could avoid the
order by leaving and allowing other members of the safety department to complete the
inspection.
Stull then called Hebel at the field office and explained that Lowe was trying to join the
inspection and that Stull was alone, and nervous. (Tr. 68). Hebel confirmed that Stull sounded
nervous about dealing with Lowe once again. Stull discussed with Hebel issuing a 104(b) order
and explained that there was no diffusing the situation with Lowe. As a result, Hebel agreed that
Stull should go ahead and issue the 104(b) order. While Stull was on the phone, Hebel could
hear Lowe’s loud voice in the background and specifically remembered hearing him say
“fucking issue it.” (Tr. 253).
Following the phone call to Hebel, Stull asked to speak to the mine manager. (Tr. 68).
Lowe replied that he was in charge of the mine when Stull was conducting his inspection. (Tr.
68). Stull subsequently learned that Mike Armuth was the acting mine manager that day and
asked to speak to him. (Tr. 70). Lowe spoke to Armuth alone first, then Armuth came out to
speak with Stull. (Tr. 322). Stull explained that there was an impeding citation in place from the
previous day, that it had not been terminated, and that Lowe was very much aware of its
existence. Stull also explained that he had given Lowe an opportunity to avoid a failure to abate
order and he was giving Armuth that same opportunity. Stull explained that he was going to
issue the 104(b) order if he was not allowed to continue without interference from Lowe. (Tr.
71). Stull gave the mine five minutes to abate the condition. (Tr. 71-72). Stull testified that the
short time frame was reasonable since Lowe only had to leave the inspection party for the mine
to comply. (Tr. 72). Lowe belligerently refused and Armuth agreed with Lowe. Stull then went
out to his car and wrote the 104(b) order, Sec’y Ex. 2, and approximately 40 minutes later
provided a copy to Lowe. (Tr. 72).
When Stull returned to hand the order to the mine, he spoke with Bain, who agreed to ask
Lowe if the mine was going to comply. (Tr. 76). Bain returned and said they would not comply
and called Butterfield to pick up the 104(b) order and take it to Lowe. (Tr. 75, 76). Butterfield
agreed to have Lowe look at it and, again, Lowe said they were not going to comply. (Tr. 75-76)
Stull explained to those present that his next step was going to be issuing another violation for
working in the face of the 104(b) order. Even so, Lowe loudly and arrogantly refused to allow
Stull to continue his inspection unimpeded.
Stull advised the mine that he would give them time to talk and consider that they were
working in the face of the order and he would call back at 3:00 p.m. to see if they had made any
decisions. Stull left the mine around noon. Hebel and Stull called the mine at 3:00 p.m. and
spoke with Lowe. Lowe advised Hebel and Stull that he wouldn’t comply and MSHA should
just go ahead and issue the next citation. Stull wrote up Citation No. 8692815 for working in the
face of a 104(b) order, and sent the order by email. Hebel recalls that the conversation with
Lowe was short. Lowe was asked to comply and not interfere in the inspection, but Lowe
responded “fuck no” and hung up. (Tr. 255).

35 FMSHRC Page 2984

At hearing, Lowe insisted that he explained to Stull that his job was to accompany the
inspector and that MSHA could not keep him from doing his job as a representative of the mine.
However, Stull explained a number of times that Lowe must stay away during the inspection in
order to comply with the order and terminate the original citation.
Stull, in an attempt to complete the complaint inspection, returned to the mine a day or
two later. (Tr. 79). However, this time, Stull did not go alone. He was accompanied by Hebel
and the district manager, Kevin Hirsch. (Tr. 79). Bain accompanied the MSHA inspection party
initially, but then left and another member of the safety department accompanied them. (Tr. 80).
Lowe did not join the inspection at first, but did show up at some point later. (Tr. 80). Again
Lowe was argumentative, but with the presence of the MSHA supervisors, he was not attacking
Stull or MSHA to the degree he had the prior two days, nor was he intimidating and harassing
like he was on previous days. (Tr. 80). Stull did not feel he was harassed or intimidated by
Lowe on that day and, therefore, he terminated the citation. (Tr. 80).
c.

Citation No. 8692812

On June 5, 2012, Inspector Jack Stull issued Citation No. 8692812 to Veris for a violation
of section 103(a) of the Mine Act. Section 103(a) of the Act states, in pertinent part, as follows:
Authorized representatives of the Secretary . . . shall make frequent
inspections and investigations in coal or other mines. . . . In
carrying out the requirements of this subsection, no advance notice
of an inspection shall be provided. . . . [and the authorized
representatives] shall have a right of entry to, upon, or through any
. . . mine.
30 U.S.C § 813(a). The citation described the alleged actions as follows:
On 06/05/2012, Danny Lowe, Safety Manager, refused to allow
Jack Stull, an authorized representative of the secretary, entry into
the Jarrett (sic) Canyon Mill for the purpose of conducting an
inspection of the mine pursuant to Section 103(a) of the Act. Mr.
Lowe harassed, intimidated and verbally assaulted Mr. Stull. Mr.
Lowe instructed Mark Butterfield, Safety Coordinator, to call the
sheriff. Once the sheriff arrived, Mr. Lowe denied Jack Stull entry
to the mine and asked Mr. Stull to leave the mine property. This
condition has not been designated as “significant and substantial”
because the conduct violated a provision of the Mine Act rather
than a mandatory safety or health standard.
The inspector determined that an injury was not likely, that the violation would not result in any
lost workdays, that no persons were affected, and that the negligence was high.
Stull issued Citation No. 8692812 after enduring the yelling, cursing, intimidation and
aggressive behavior of the mine’s safety manager, Dan Lowe. While both parties may have
raised their voices, it was Lowe who constantly cursed, yelled, pointed his finger, demeaned and

35 FMSHRC Page 2985

criticized MSHA and the inspector, and, in the final act of intimidation, called the sheriff to have
the inspector removed. The mine’s witnesses acknowledged that this behavior took place, and
seem to believe that such conduct is excused because they find it acceptable. I disagree. I find
that Lowe’s behavior was far worse than that described in the cases cited below, that the conduct
rose to the level of harassment and intimidation and, in doing so, impeded the investigation and
violated Section 103(a) of the Act.
The Commission has noted that the Secretary has broad authority to conduct inspections
and investigations under section 103(a) of the Act. Section 103(a) authorizes inspections and
investigations to determine “‘whether there is compliance with the mandatory health or safety
standards or with any citation, order, or decision issued under the subchapter or other
requirement of this chapter.’” Big Ridge, Inc. et al., 34 FMSHRC 1003, 1012 (May 24, 2012)
(citing 30 U.S.C § 813(a)). In United States Steel Corp., 6 FMSHRC 1423 (June 1984), the
Commission held that a violation of Section 103(a) existed where an operator failed to provide
an inspector transportation to the site of an accident, which in turn prevented him from
inspecting the scene. In addition, the Commission concluded that the company's insistence on
the presence of a company attorney at an interview during the investigation of the accident,
without specifying when the attorney would be present, then failing to produce the attorney, “had
the effect of unreasonably delaying the . . . investigation” and that this delay “impeded” the
investigation in violation of Section 103(a). Id. at 1433.
At least two Commission judges have found violations of Section 103(a) in
circumstances somewhat similar to the case at hand. In Sanger Rock & Sand, 11 FMSHRC 403
(Mar. 1989) (ALJ), the judge found a violation of Section 103(a) when the operator was
uncooperative during the inspection, delayed furnishing records that the inspector requested, and
twice called the inspector a “liar.” In Jeppesen Gravel, 30 FMSHRC 324 (Apr. 30, 2008) (ALJ),
the judge affirmed violations of Section 103(a) of the Act when the operator refused to allow an
authorized representative to inspect the mine, harassed and tried to intimidate the inspector while
he was trying to conduct a compliance follow-up inspection, and screamed and made provoking
comments toward the inspector.
The mine asserts that Lowe is naturally loud and accustomed to cursing, and argues that
he was merely questioning the inspector and providing information that related to the citations. I
find this argument to be without merit and, instead, find that his behavior was purposefully
aimed at intimidating and harassing the inspector. Additionally, I do not find Lowe to be a
credible witness. I base this finding on my observation of his testimony, including the tone of
his voice, his body language, and his derogatory remarks. While Lowe and Butterfield attempted
to dismiss the derogatory statements made during the inspection by insisting that they were
directed at MSHA, and not the inspector, I find that they were purposefully made with the intent
of intimidating and harassing the inspector. Moreover, while Lowe insists that he had the sheriff
called as a way to diffuse the situation, he told Bain that he did so to show Stull “who was boss”
and that “he wasn’t going to let [Stull] push the company around and he was going to train the
inspectors[.]” (Tr. 168). Lowe trained the safety department to question MSHA inspectors but
when practicing his own policy, particularly when alone with the inspector, he did so in an
overly aggressive and antagonizing manner. At hearing, Lowe continued his behavior and
directed derogatory statements at Stull. Challenging an inspector and seeking clarification is

35 FMSHRC Page 2986

acceptable, but should not include yelling, cursing, calling names, and other intimidating
behavior.
Lowe intentionally engaged in an intimidating manner and, as a result, the negligence for
this citation goes beyond “high.” I note that Lowe engaged in his worst behavior when he was
either alone with the inspector, or with the inspector and Butterfield, his subordinate, present.
Lowe was much better behaved when Stull returned with Hebel, and again when Stull completed
his inspection with Hebel and the district manager present.
Based upon my assessment of credibility and testimony as a whole, I find that the mine
violated Section 103(a) as alleged. I also find this to be a very serious violation. Stull was at the
mine on a complaint inspection and, whether Lowe agrees that there was a legitimate complaint
or not, there is a basis to believe that a miner had some concern about his safety. Impeding the
inspection essentially had the effect of preventing Stull from looking into the allegations in a
timely manner and helping to correct a hazard that may have been serious. I find that Lowe’s
behavior was aggravated and therefore assess a penalty of $10,000.00 for this violation.
d.

Order No. 8692814

On June 6, 2012, Inspector Stull returned to the mine and issued Section 104(b),
Withdrawal Order No. 8692814. Section 104(b) provides, in part, as follows:
If . . . [an inspector] 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 . . . promptly
issue . . . [a withdrawal] order[.]
30 U.S.C. § 814(b). The order states as follows:
Danny Lowe, Safety Manager, continued to deny Jack Stull, an
authorized representative of the Secretary, the right of entry into
the Jarrett (sic) Canyon Mill for the purpose of conducting an
inspection of the mine in accordance with the requirements of
Section 103(a) of the Act. Mr. Lowe failed to take action to abate
citation # 8692812. The mine is hereby given 05 minutes to
comply with this order.
After issuing the 104(a) violation for impeding the inspection on June 5th, Stull returned
on June 6th and was again harassed by Lowe. The mine had done nothing to abate the original
citation and, given Lowe’s behavior and the nature of the violation, it was not reasonable for
Stull to extend the time to abate.
The mine argues that the underlying citation had been terminated on the previous day
when Stull returned and continued his inspection with Butterfield. However, when Stull began

35 FMSHRC Page 2987

the next day he had not issued a termination, nor had he extended the time for abatement. When
Stull observed Lowe arrive and he immediately became argumentative, he determined that Lowe
continued to impede his investigation. On the first day, Lowe agreed to withdraw from the
inspection party and, for a short period of time, let Stull continue his inspection while Butterfield
represented the mine. When Stull returned on the 6th and resumed his inspection, Lowe initially
did not go along, but shortly thereafter joined the inspection party. Lowe asserts that Stull told
him to leave immediately, but I credit Stull’s recollection that Lowe began the intimidating
behavior immediately upon his arrival, before Stull could even ask him to leave. Prior to issuing
the 104(b) order, Stull informed Lowe at least twice that he should not be present and should
allow the inspection to continue with another representative. I find that Stull was reasonable and
gave the mine every opportunity to abate the violation prior to issuing the order. Again, Lowe
was able to stall the inspector in his investigation into the complaint of unsafe conditions at the
mine.
The mine also argues that Lowe cannot be kept from the inspection given that his job is
to accompany the inspection party. I find this argument to be without merit. I recognize that the
mine has a right to have a representative accompany the inspector, and the mine can chose who
to appoint as that representative. However, when the appointed representative continues to
harass the inspector and impede the investigation, it is reasonable for the inspector to seek an
alternative representative. The mine had several other safety department representatives
available and, in fact, Butterfield accompanied the inspector through most of his inspection
without incident. Bain also was appointed to travel with Stull on one of the inspection days, as
well as other managers and representatives from various departments. In keeping Lowe from
participating, MSHA was not infringing on any right the mine had to allow a representative to
accompany the inspector.
Section 103(f) of the Mine Act states in pertinent part that “[s]ubject to regulations issued
by the Secretary, a representative of the operator . . . shall be given an opportunity to accompany
the Secretary or his authorized representative during the physical inspection of any coal or other
mine made pursuant to the provisions of subsection (a)[.]” 30 U.S.C. § 813(f). The
Commission recently addressed the rights of a representative appointed by the mine to
accompany an inspector and concluded that the walkaround rights under section 103(f) are “for
the purpose of aiding such inspection.” 30 U.S.C. § 813(f); SCP Investments, LLC, 31 FMSHRC
821 (Aug. 2009). The Commission has acknowledged that the inspector does have some
discretion in limiting walkaround rights. Secretary of Labor on behalf of Wayne v.
Consolidation Coal Co., 11 FMSHRC 483, 489 (Apr. 1989). In SCP Investments, LLC, 31
FMSHRC 821, 831 (Aug. 2009) the Commission acknowledged that the legislative history of
section 103(f) confirms that failure to allow a certain representative to accompany an inspector
does not in any way take away from the resulting inspection. “Rather, what section 103(f)
clearly does with regard to operators vis-a-vis MSHA and its inspectors is grant a qualified
right[.]” Id. at 833.
Clearly there is no intent in the statute or the regulation to give a mine operator an
unfettered right to accompany an inspector and harass, intimidate and impede that inspector. To
the contrary, Section 103(f) is meant to allow a mine representative to accompany an inspector
for the purpose of aiding in the inspection, not impeding it. I find that Lowe does not have an

35 FMSHRC Page 2988

unrestricted right to accompany the inspector and that Stull’s request to have Lowe kept from
accompanying him was reasonable under the circumstances found here, and particularly in light
of the fact that other representatives of the mine were available to, and in fact did, accompany
the inspector.
In order to establish the validity of a Section 104(b) order, the Secretary has the burden of
proving by a preponderance of the evidence the existence of the initial underlying citation,
including a reasonable time for abatement; the expiration of the abatement time; the failure to
abate the cited violative conditions; and that the abatement time should not be extended.
Clinchfield Coal Co. v. UMWA, 11 FMSHRC 2120, 2135 (Nov. 1989) (Commissioner Lastowka
concurring).
In Calvin Black Enterprises, 7 FMSHRC 1151 (Aug. 1985), the Commission upheld a
103(a) violation and 104(b) withdrawal order after inspectors were denied entry to a mine
because the mine’s owner had issued instructions that no one was permitted on mine property
without his written permission. The mine told the inspectors they were trespassing, and, as a
result, the inspectors issued a citation for a 103(a) violation. Twenty minutes later, the inspectors
again requested and were denied permission to inspect, prompting the inspectors to issue a
104(b) withdrawal order. The mine continued operations following issuance of the withdrawal
order and was subsequently cited for working in the face of an order. Also, in Hopkins Cnty.
Coal, LLC, 34 FMSHRC 789 (Apr. 2012) (ALJ), a Commission judge upheld a violation of
103(a) where the mine operator refused to produce the records requested by the MSHA
inspector. The court also upheld a 104(b) withdrawal order because the mine operator refused to
produce the requested documents after the citation was issued.
I conclude that evidence supports the inspector’s determination that the time set for
abatement was reasonable and should not have been extended. I have already found that there
was a violation and I find that the 104(b) order was properly issued. The inspector did not abuse
his discretion in determining the time set for abatement. He listed 2:00 pm as the termination
time, but decided that, given Lowe’s behavior and refusal to stay out of the inspection, it could
not be abated at that time, and should remain in place until the complaint inspection was
complete. When Stull, accompanied by Butterfield, attempted to continue his inspection the first
day, he did not want a repeat of the harassing behavior exhibited by Lowe. Therefore, he asked
Lowe to stay away until the inspection was complete. Still, Lowe arrived the next day after the
inspection began, and exhibited the same belligerent and aggressive behavior. Not only had he
been warned the previous day that the citation had not been terminated, he was warned the
following morning when he appeared. Stull saw no reason to amend or change the citation and
wanted to continue unimpeded. In order for Stull to terminate the citation, there must be some
action to abate the violation. Here, Lowe continued to impede the inspection, and, as a result, the
original citation was not sufficiently abated and would not be terminated until Stull was free to
complete his inspection without the constant interference and harassment from Lowe.
Stull credibly testified that, while he gave the mine ample notice of the abatement
requirements, his primary concern was completing the complaint inspection and he could not do
so while Lowe continued the aggressive behavior. I find that Stull had a clear understanding of
the law. He gave the company an original termination date, and when he determined that Lowe

35 FMSHRC Page 2989

had not complied and was continuing to harass him, he gave the mine operator additional
chances to abate the violation. Stull gave due consideration to the safety of the miners in setting
a time and in finally issuing an order for a failure to abate.
Even if Lowe had reason to believe that MSHA could not order him to stay away from an
inspection, he was required to first abate the citation, and then bring up the issue in the proper
course. He did not do so and, instead, intentionally continued to ignore the instructions of the
inspector. I find that the 104(b) order was validly issued. I have considered the failure to abate
in assessing the penalty for the citation discussed above.
e.

Citation No. 8692815

On June 6, 2012 Stull observed that the mine operator continued to work in the face of
the 104(b) withdrawal order, discussed supra. As a result, he issued Citation No. 8692815 for a
violation of Section 104(b) of the Mine Act. The violative conduct was described as follows:
The mine operator is continuing to operate even though a 104(b)
order #8692814 for non-compliance was issued by MSHA on June
6, 2012. This order required the operator to comply with the
standards under 103a of the Mine Act. This condition has not been
designated as “significant and substantial” because the conduct
violated a provision of the Mine Act rather than a mandatory safety
or health standard.
The condition or practice was later modified for the below stated reason:
This action is taken to modify the condition or practice to include
the following verbiage; Safety manager Danny Lowe indirectly
denied entry by continuing to harass the MSHA inspector, even
after a reasonable time was given to abate the order.
The inspector determined that an injury was not likely, that the violation would not result in any
lost workdays, that 1 person was affected, and that the negligence was high.
Inspector Stull issued this citation for working in the face of the 104(b) order discussed
above, only after he had spoken to both Lowe and to the acting mine manager. Stull explained to
both individuals that Lowe’s behavior was intimidating and interfered with the inspection, and
that Lowe must not accompany the inspector during the course of this inspection. Stull’s
expectation was reasonable and he relayed his expectations to Lowe on a number of occasions,
as well as to the mine manager and other persons at the mine. Lowe, on the other hand,
continued to be demeaning and rude and told Hebel and Stull that “fuck no” he would not
comply. (Tr. 255). Lowe would not discuss the matter or seek a way to resolve it, but continued
with his aggressive and threatening behavior. At that point, Stull had no choice but to issue the
citation.

35 FMSHRC Page 2990

The mine argues that, because the failure to abate order should not have been issued,
neither should this citation. The mine also argues that MSHA had no authority to keep Lowe
from being part of the investigation and, in fact, they allowed him to join part way through the
next inspection day. First, I have already found that the 104(b) failure to abate order was
properly issued. Second, I do not agree that MSHA overstepped its authority. It is clear that
MSHA was trying to get the complaint inspection complete without further delay, and that Lowe
was the sole force standing in the way. In order to complete the investigation, the impediment
must be removed. Other members of the safety department can, and often do, accompany the
inspectors, and they were available on the dates Stull was at the mine. Lowe was allowed to
rejoin the inspection before the failure to abate order was terminated only because Stull was not
alone and Lowe, while aggressive, was better behaved in the presence of others, including the
district manager. There is no question that the citation was valid, that it had not been abated, and
that the mine continued to refuse to comply, thereby working in the face of an order.
In Hopkins Cnty. Coal, LLC, 34 FMSHRC 789 (Apr. 2012) (ALJ), the Commission judge
concluded that a mine inspector properly issued a citation which alleged the mine continued to
operate in the face of a withdrawal order and continued to violate section 103(a) by refusing to
produce the requested records. Like the inspector in Hopkins, Stull gave the mine a number of
opportunities to avoid the citation for working in the face of the order, but the mine refused. I
find that the order is valid as issued. I also find this to be a serious violation. Stull was not able
to complete a complaint inspection due to Lowe’s actions and, therefore, was not able to follow
up on a miner’s safety concern. Lowe’s aggressive behavior and his failure to comply with the
failure to abate order were intentional. Considering the history of the mine, its size, its failure to
abate the violation, along with the gravity and negligence of the violation, I assess a $15,000.00
penalty.
f.

Citation No. 8692571
The Secretary has elected to vacate Citation No. 8692571. (Tr. 12-13).
II. 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 Act delegates the duty of proposing penalties 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 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 on the operator’s ability to continue in business, (5) the

35 FMSHRC Page 2991

gravity of the violation, and (6) the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after
notification of a violation.
30 U.S.C. § 820(i). The history of assessed violations was admitted into evidence and shows a
reasonable history for this mine. The mine is a large operator. The operator has stipulated that
the penalties as proposed will not affect its ability to continue in business. The gravity and
negligence are discussed above. Veris, as discussed in detail supra, failed to demonstrate good
faith in abating the original 104(a) citation, as well as the subsequently issued 104(b) order.
Based upon the six penalty criteria, and particularly the level of negligence demonstrated by the
mine, an increased penalty is reasonable. The penalty amounts are as follows:
Citation No. 8692812
Order No. 8692814
Citation No. 8692815
Citation No. 8692571
TOTAL

$10,000.00
Non-Assessable
$15,000.00
VACATED
$25,000.00
III. ORDER

Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C.§ 820(i), I assess the
penalties listed above for a total penalty of $25,000.00. Veris Gold U.S.A., Inc., formerly known
as Queenstake Resources U.S.A., Inc. is hereby ORDERED to pay the Secretary of Labor the
sum of $25,000.00 within 30 days of the date of this decision.

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

Distribution:
Joseph Lake and Leon Pasker, Office of the Solicitor, U.S. Department of Labor, 90 Seventh
Street, Suite 3-700, San Francisco, CA 94103-1516
Brian Hendrix and Avi Meyerstein, Jackson Lewis LLP, 10701 Parkridge Blvd., Suite 300,
Reston, VA 20191

35 FMSHRC Page 2992

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9987 / FAX: 202-434-9949

September 5, 2013
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
ROCK N ROLL COAL COMPANY,
INC.,
Respondent

:
:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDING
Docket No. WEVA 2011-1418
A.C. No. 46-08646-249741

Mine: No. 3

DECISION
Appearances: Eve Epstein, Esq., U.S. Department of Labor, Office of the Solicitor, Arlington,
Virginia, for Petitioner;
James F. Bowman, Midway, West Virginia, for Respondent.
Before:

Judge Bulluck

This case is before me upon a Petition for Assessment of Civil Penalty filed by the
Secretary of Labor (“Secretary”) on behalf of his Mine Safety and Health Administration
(“MSHA”), against Rock N Roll Coal Company, (“Rock N Roll”), pursuant to section 105(d) of
the Federal Mine Safety and Health Act of 1977 (“Act”), 30 U.S.C. § 815.1 The Secretary
proposed a civil penalty in the amount of $8,000.00 for one alleged violation of his mandatory
safety standards.2
1

Hilda L. Solis, the Secretary of Labor when this hearing was conducted, resigned office
on January 22, 2013. Thomas E. Perez is the current Secretary of Labor.
2

Prior to convening the hearing, the parties reached an agreement to settle twelve of the
thirteen contested citations and, subsequently, the Secretary filed a Motion For Decision and
Order Approving Partial Settlement.
Although the Secretary’s Petition proposed a penalty of $5,080.00 for Citation No. 8119766, in
light of his post-hearing position that Rock N Roll’s negligence was high rather than moderate,
(continued...)

35 FMSHRC Page 2993

A hearing was held in South Charleston, West Virginia. The following issues are before
me: (1) whether Rock N Roll violated 30 C.F.R. § 75.1504; (2) whether the violation was
significant and substantial; and (3) whether Rock N Roll was moderately negligent in violating
the standard. The parties’ Post-hearing Briefs are of record.
For the reasons set forth below, I AFFIRM the citation, as modified, and assess a penalty
against Rock N Roll.
I. Stipulations
The parties stipulated as follows:
1. Respondent, Rock N Roll Coal Company, is an “operator” as defined in Section 3(d)
of the Federal Mine Safety and Health Act of 1977, as amended, 30 U.S.C. § 802(d), at its mine,
Mine No. 3.
2. Mine No. 3 is a mine as that term is defined in Section 3(h) of the Mine Act, 30
U.S.C. § 802(h).
3. At all material times involved in this case, the products of Mine No. 3 entered
commerce, or the operations or products thereof affected commerce, within the meaning and
scope of Section 4 of the Mine Act, 30 U.S.C. § 803.
4. Respondent’s operations at Mine No. 3 are subject to the jurisdiction of the Mine Act,
30 U.S.C. § 803.
5. Respondent is subject to mandatory safety and health regulations established by the
Mine Safety and Health Administration, 30 U.S.C. § 811, et seq.
6. This proceeding is subject to the jurisdiction of the Federal Mine Safety and Health
Review Commission and its designated Administrative Law Judges pursuant to §§ 105 and 113
of the Mine Act, 30 U.S.C. §§ 815 and 823. By operation of Commission Rule 5(a), all
jurisdictional facts are to be deemed admitted unless specifically denied in responsive pleadings.

2

(...continued)
he is seeking an elevated penalty. Sec’y Br. at 22. See Performance Coal Co., 2013 WL
4140438 (Aug. 2013) (remanding the case to the ALJ to consider the Secretary’s post-hearing
request for an elevated penalty).

35 FMSHRC Page 2994

7. Respondent’s Emergency Response Plan, which was submitted on October 9, 2009
and approved on October 27, 2009, was in effect at the time of the issuance of Citation Number
8119766.
8. Respondent’s Mine No. 3 liberates a relatively small amount of methane.
9. Danny Justice has been continuously employed as the mine foreman at the No. 3 mine
since April 24, 2000. Mr. Justice supervised the emergency evacuation drills during his
employment at the mine.
10. The No. 3 mine conducted approximately 60 evacuation drills since it began
operation on July 29, 1997.
11. Respondent conducted mandatory evacuation drills each quarter.
12. Respondent alternated the use of the primary and secondary escapeways each
quarter.
13. Facilities assisting rapid evacuations, such as lifelines, primary and alternate
escapeway maintenance, communications, SCSR caches and refuse alternatives, were not cited
for any violations at the time of issuance of the citation.
14. Twelve miners were working underground at the No. 3 mine at the time of issuance
of the citation.
15. The proposed penalty would not have any effect on the Respondent’s ability to
continue its business.
16. The R-17 Assessed Violation History Report is authentic.
17. Citation Number 8119766 was properly issued and served by an Authorized
Representative.
18. Citation Number 8119766 may be admitted into evidence for the purpose of
establishing its issuance, not for the purpose of establishing the accuracy of any statements
asserted therein.
19. MSHA’s proposed assessment data sheet accurately sets forth the number of
assessed penalty violations charged to Respondent for the period stated, and the number of
inspection days per month for the period stated.

35 FMSHRC Page 2995

20. The documents entitled United States Department of Labor MSHA Laboratories,
Mount Hope, West Virginia Analysis of Air Samples dated September 5, 2008 through January
7, 2011 are authentic.
Sec’y Pre-hearing Report at 1-4; Tr. 7-10.
II. Factual Background
Rock N Roll operates Mine No. 3, an underground coal mine located in McDowell
County, West Virginia. Pursuant to Section II of the Mine Improvement and Emergency
Response Act of 2006 (“MINER Act”), 30 U.S.C. § 876, Rock N Roll submitted its Emergency
Response Plan (“ERP” or “Plan”) to MSHA on October 9, 2009, and it was approved by MSHA
on October 27, 2009. Stip. 7. Rock N Roll’s ERP contains procedures for four distinct
emergency evacuation scenarios: fire, explosion, water inundation and gas inundation, in
compliance with 30 C.F.R. § 75.1502. Ex. P-3.
On January 27, 2011, Tracy Calloway, an MSHA inspector for two and a half years,
conducted a regular inspection of Mine No. 3. Tr. 28-29. Prior to employment at MSHA,
Calloway had been a certified electrician in the mining industry for six years. Tr. 54. In
preparation for inspection, Calloway reviewed Rock N Roll’s Plan and its record of emergency
evacuation drills. Tr. 29. The Record of Fire Drills (“Record”), indicated that quarterly
emergency evacuation drills had been conducted on May 7, August 6, and November 8, 2010.
Ex. P-4.3
The Record of May 7 states that participants “called outside put fire out travel
escapeway,” indicating that a fire emergency had been simulated. Ex. P-4. The Record of
August 6 states “cut into old works water,” which led Calloway to conclude that water
inundation had been simulated. Ex. P-4; Tr. 39. The Record of November 8 states “cut in to
[sic] old work no water,” from which Calloway concluded that Rock N Roll had, again,
simulated water inundation. Ex. P-4; Tr. 39. Calloway determined that Rock N Roll was not in
compliance with section 75.1504, requiring that operators initiate emergency evacuation drills
using a different scenario each quarter. Calloway had also observed that the operator had failed
to specify which escapeways were traveled during the May 7, August 6, and November 8
evacuation drills, also a violation of section 75.1504, requiring that this information be recorded.
Ex. P-4; Tr. 33. Therefore, Calloway cited Rock N Roll for its failure to alternate emergency
evacuation drill scenarios in compliance with its ERP, and make a complete record of each drill.

3

Mine No. 3 records all emergency evacuation drills on a form entitled “Record of Fire
Drills,” irrespective of the scenario simulated. Ex. P-5 at 14.

35 FMSHRC Page 2996

III. Findings of Fact and Conclusions of Law
Calloway issued Citation Number 8119766 pursuant to section 104(a) of the Act,
alleging a “significant and substantial” violation of 30 C.F.R. § 75.1504(a) that was “reasonably
likely” to cause a “fatal” injury and was a result of Rock N Roll’s “moderate” negligence.4 The
“Condition or Practice” is described as follows:
The operator has simulated the same emergency scenario (water
inundation) during the past two quarterly emergency evacuation
drills. Also, the escapeway being traveled during the drill is not
being specified in the record book.
Ex. P-2. The citation was terminated after Rock N Roll conducted an emergency evacuation drill
in the primary escapeway simulating a fire, and recorded the drill.5
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)).

4

The citation was amended by the Secretary to allege a violation of the broader standard,
section 75.1504. See Order Grant. Mot. to Modify Citation of July 27, 2012. At hearing, the
Secretary specifically alleged that Rock N Roll had violated sections 75.1504(b)(3) and
75.1504(d)(1).
30 C.F.R. § 75.1504(b)(3) requires that “[e]ach quarterly evacuation training and drill shall
include the following: [a] realistic escapeway drill that is initiated and conducted with a different
approved scenario each quarter . . . .” 30 C.F.R. § 75.1504(d)(1) requires that “[a]t the
completion of each training or drill required in this section, the operator shall certify by
signature and date . . . . [t]he names of the miners participating in the training or drill. . . . [and]
the content of the training or drill component completed, including the escapeway traveled and
scenario used . . . .”
5

Calloway instructed Rock N Roll to abate the violation by starting the rotation anew
with a fire drill, then executing the other three emergency scenarios in consecutive quarterly
drills. Tr. 53.

35 FMSHRC Page 2997

Rock N Roll concedes that it violated section 75.1504(d)(1) by failing to record the
escapeways traveled during the quarterly emergency evacuation drills, but contests the allegation
that it violated section 75.1504(b)(3) by failing to alternate the scenarios. Tr. 18-20; Resp’t Br. at
5-6.6
The Secretary takes the position that Rock N Roll conducted two consecutive water
inundation emergency evacuation drills on August 6 and November 8, 2010. Sec’y Br. at 7-8.
He asserts that section 75.1504(b)(3) requires the operator to alternate its quarterly drills so as to
simulate, in a calendar year, the four scenarios specified in its Plan. Sec’y Br. at 9. Arguing a
contrary position, Rock N Roll contends that the Record, “cut in to [sic] old work no water,”
would be interpreted by any reasonable person, familiar with the mining industry, as indicating
that a gas inundation scenario had been used in the November 8 drill. Resp’t Br. at 7-8.
Inspector Calloway was the sole witness who testified at the hearing. He stated that he
had concluded that the August 6 and November 8 emergency evacuation drills had simulated
water innundations based on the similarity of the records. Tr. 34-35, 81-82.
Danny Justice, the mine foreman responsible for conducting evacuation drills at Mine No.
3, was deposed on January 11, 2012. He admitted that he had “used water cutting into old works
two times in a row.” Ex. P-5 at 5, 9. He also acknowledged that, while he had used water
inundation and fire scenarios for “years and years,” he had never conducted an emergency
evacuation drill with a gas inundation or explosion scenario. Ex. P-5 at 8-10.
Justice’s deposition testimony corroborates Calloway’s assessment that the drill scenarios
were the same. He establishes the violation several times by emphatically discounting ever
having simulated gas inundation or an explosion to initiate an emergency evacuation drill. In
advancing its position that the November 8 drill involved gas inundation, except for its
representative’s bare assertion, Rock N Roll presented no witnesses or documentary evidence to
support its argument, electing to let “the record [speak] for itself.” Tr. 15-17, 82-83, 89; Resp’t
Am. Pre-hearing State. at 1-2. The record in its entirety overwhelmingly supports a conclusion

6

The Secretary also suggests that Rock N Roll failed to specify the miners participating
in the drills. Sec’y Br. at 5-6; Tr. 32-33. The citation, however, does not make this allegation
and, in any case, it need not be addressed, inasmuch as the violation has been established based
on failure to specify the escapeways.

35 FMSHRC Page 2998

that Rock N Roll used water inundation scenarios in two consecutive emergency evacuation
drills, in contravention of the standard and its ERP requiring use of four different scenarios in a
calendar year.7 Therefore, I find that Rock N Roll violated section 75.1504(b)(3).
2. Significant and Substantial
To prove that a violation is “significant and substantial” (“S&S”) under National Gypsum,
3 FMSHRC 822 (Apr. 1981), the Secretary must establish the four criteria set forth by the
Commission in Mathies Coal Company, 6 FMSHRC 1 (Jan. 1984). The Secretary bears the
burden of proving: 1) the underlying violation of a mandatory safety standard; 2) a discrete safety
hazard - - that is, a measure of danger to safety - - contributed to by the violation; 3) a reasonable
likelihood that the hazard contributed to will result in an injury; and 4) a reasonable likelihood that
the injury in question will be of a reasonably serious nature. Mathies, 6 FMSHRC 1, 3-4; 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’g 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). 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, 2011-12 (Dec. 1987). The
Secretary must prove that there is a reasonable likelihood that the hazard contributed to by the
violation will cause an injury, not a reasonable likelihood that the violation itself will cause injury.
Musser Eng’g, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010). When the alleged violation is of an
emergency safety standard, as is the case here, a state of emergency must be presumed.
Cumberland Coal Res., LP v. FMSHRC, 717 F.3d 1020, 1026-27 (D.C. Cir. 2013), aff’g 33
FMSHRC 2357 (Oct. 2011). Therefore, it is not the likelihood of an emergency occurring that
should be evaluated, but rather the likelihood of injury upon occurrence of an emergency. Id.
The fact of violation has been established, and miners were unprepared to respond
appropriately in the event of gas inundation or explosion emergencies. The focus of the S&S
analysis, 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.
The Secretary contends that, because the miners lacked training in effective life-saving
responses to gas innundation and explosion, they were simply unprepared to react properly and,
therefore, subjected to the possibility of dying. Sec’y Br. at 15.
Rock N Roll argues that miners were adequately trained to evacuate the mine in the event
of an emergency because it regularly conducted drills, and the evacuation routes and procedures
specified in its ERP are exactly the same for all four scenarios. Resp’t Br. at 10. Therefore, it
7

Section 75.1504(b)(3)(i) requires that all four scenarios be used in a calendar year.
Emergency Mine Evacuation, 71 Fed. Reg. 71430-01, 71440 (Dec. 8, 2006).

35 FMSHRC Page 2999

contends that this alleged violation was not likely to result in injury. Resp’t Br. at 11-12. In
support of its position, Rock N Roll cites Jim Walter Resources, Inc., 28 FMSHRC 579, 595-97
(Aug. 2006), in which the Commission upheld an ALJ’s finding that the operator’s failure to
conduct required fire drills was not reasonably likely to lead to unprepared miners in the event of a
fire, because they had been adequately trained otherwise. In the instant case, however, miners at
Mine No. 3 were never trained to respond to gas innundation or explosion emergencies and, as will
be discussed, the record reflects that Rock N Roll’s fire emergency training left much to be
desired.
Calloway concluded that this violation was likely to result in serious injury because lack of
emergency training has been a significant factor in many mine fatalities. Tr. 51. He gave
extensive credible testimony regarding the potential effect of each emergency on the mine, and the
different reactions required for each situation. Tr. 41-44. In his opinion, in the event of gas
inundation or explosion, miners would likely die as a result of not being task-trained to respond to
those emergencies. Tr. 52. Justice, on the other hand, testified that in the event of an emergency,
his only concern was evacuating the mine, and that preparing miners to respond to gas inundation
and explosion was unnecessary because Mine No. 3 liberates no methane. Ex. P-5 at 9; see Stip. 8.
Justice’s obvious disagreement with the scenario-specific focus of Rock N Roll’s ERP, however,
does not justify his disregard of its requirements.
Miners lacking life-saving task-training, specifically tailored to address gas innundation
and explosion, would likely panic and become confused or disoriented; these conditions are likely
to impede efficient evacuation, if necessary, and result in serious burn and respiratory injuries, or
even death. Therefore, I find that Rock N Roll’s violation of section 75.1504 is S&S.
IV. Negligence
Calloway testified that he found Rock N Roll to be moderately negligent because, although
the operator should have been adhering to the requirements of section 75.1504(b)(3) and its ERP
to alternate four drill scenarios, it was, at least, regularly conducting quarterly drills. Tr. 52. The
Secretary, however, argues that Rock N Roll’s negligence was “high” rather than “moderate,”
because Justice acknowledged that he was aware of the requirements of section 75.1504, but made
a conscious decision to disregard them. Sec’y Br. at 20-21.
Justice acknowledged knowing that he was required to alternate between all four
emergency scenarios in conducting quarterly evacuation drills and that he could have done so, but
“just didn’t do it.” Ex. P-5 at 9. He also revealed that at the time of his deposition, nearly a year
after Citation No. 8119766 had been issued, he had yet to simulate gas inundation and explosion,
believing them to be a “waste of [his] time.” Ex. P-5 at 9-10.
Rock N Roll’s ERP requiring fire, explosion, gas inundation, and water inundation
emergency drills has been in place since October 27, 2009. For more than a year prior to being
cited, however, Justice had been aware that alternating the four scenarios was required, but clearly

35 FMSHRC Page 3000

chose to disregard the Plan. Furthermore, for another year after Rock N Roll was cited for failing
to satisfy the scenario rotation requirement, by Justice’s own admission, he deliberately continued
to simulate two scenarios only. Ex. P-5 at 9.
I find that Justice’s prolonged non-compliance with section 75.1504 was willful and,
because he was the foreman responsible for task-training miners in emergency-specific life-saving
techniques, his negligence was high and imputable to Rock N Roll. To make matters worse, as
was alluded to earlier, there is credible evidence that the fire emergency drills were lacking in
quality and effectiveness, and that miners interviewed by Calloway were unable to specify their
duties in response to that emergency. Tr. 53, 121.
V. Penalty
While the Secretary has proposed a civil penalty of $8,000.00, 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, 20 U.S.C. § 820(j). See Sellersburg Co., 5 FMSHRC
287, 291-92 (Mar. 1983), aff’d 763 F. 2d 1147 (7th Cir. 1984).
Applying the penalty criteria, I find that Rock N Roll is a medium-size operator, whose
violation history is not an aggravating factor in assessing a penalty. Ex. P-1, P-7; Sec’y Br. at 22.
The parties stipulated that the proposed civil penalty will not affect Rock N Roll’s ability to
continue in business. Stip. 15. I find that Rock N Roll demonstrated good faith in abating the
violation.
The remaining criteria involve consideration of the gravity of the violation and Rock N
Roll’s negligence in committing it. It has been established that this serious violation was
reasonably likely to result in fatal injuries to twelve miners, and that Rock N Roll was highly
negligent in committing it. Indeed, the operator’s conduct was deliberate in failing to prepare its
miners for emergencies that rank amongst the leading causes of death for underground coal miners
and, respecting preparation for fire emergencies, it short-changed its workforce in the training that
it did provide. Therefore, applying the civil penalty criteria, I find that a penalty of $10,000.00 is
appropriate.

35 FMSHRC Page 3001

VI. Approval of Settlement
The Secretary has filed a Motion for Decision and Order Approving Partial Settlement as
to twelve of the thirteen citations. A reduction in penalty from $8,420.00 to $4,735.00 is
proposed. The citations, initial assessments, and the proposed settlement amounts are as follows:

Citation No.

Initial
Assessment

Proposed
Settlement

8119757
8119758
8119762
8119763
8119764
8119765
8119767
8119771
8119772
8119773
8119781
8119782
TOTAL:

$
$
$
$
$
$
$
$
$
$
$
$
$

$
$
$
$
$
$
$
$
$
$
$
$
$

745.00
1,944.00
117.00
117.00
117.00
117.00
1,304.00
392.00
117.00
392.00
2,473.00
585.00
8,420.00

300.00
900.00
117.00
117.00
117.00
117.00
100.00
300.00
117.00
300.00
1,850.00
400.00
4,735.00

I have considered the representations and documentation submitted in the case, and I
conclude that the proffered settlement is appropriate under the criteria set forth in section 110(i) of
the Act.

35 FMSHRC Page 3002

ORDER
WHEREFORE, it is ORDERED that the Secretary MODIFY Citation Number 8119766
to increase the degree of negligence to “high;” Citation No. 8119757 to reduce the level of gravity
to “unlikely” and “non-significant and substantial,” and the degree of negligence to “low;”
Citation No. 8119758 to reduce the level of gravity to “lost workdays or restricted duty” and “1
person affected;” Citation Nos. 8119762, 8119763, 8119764 and 8119765 to reduce the level of
gravity to “permanently disabling;” Citation No. 8119767 to reduce the level of gravity to
“unlikely,” “lost workdays or restricted duty” and “non-significant and substantial,” and the degree
of negligence to “low;” Citation No. 8119771 to remove the “significant and substantial”
designation; Citation No. 8119773 to reduce the degree of negligence to “low;” Citation No.
8119781 to reduce the level of gravity to “unlikely,” “permanently disabling” and “non-significant
and substantial;” Citation No. 8119782 to reduce the level of gravity to “unlikely” and remove the
“significant and substantial” designation; and that Rock N Roll PAY a civil penalty of $14,735.00
within 30 days of the date of this Decision.8

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

Distribution:
Eve Epstein, Esq., U.S. Dept. of Labor, Office of the Solicitor, 1100 Wilson Blvd, 22nd Floor
West, Arlington, VA 22209
James F. Bowman, P.O. Box 99, Midway, WV 25878

JRB/mjc

8

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.

35 FMSHRC Page 3003

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
Office of the Administrative Law Judges
1331 Pennsylvania Ave., N.W., Suite 520N
Washington, D.C. 20004-1710
Telephone: (202) 434-9980
Fax: (202) 434-9949

September 12, 2013
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.
ORICA NELSON QUARRY SERVICES,
Respondent.

:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDING
Docket No. KENT 2009-1178-M
A.C. No. 15-00034-185745-4QM

Mine: Greenville Quarries

DECISION
Appearances:

Willow E. Fort, Esq., U.S. Department of Labor, on behalf of the
Secretary
Douglas Maggard, Sustainability Director, on behalf of North American
Orica USA

Before: Judge David F. Barbour
This case is before me upon a petition for assessment of a civil penalty filed by the
Secretary of Labor1 (“Secretary”) on behalf of the Mine Safety and Health Administration
(“MSHA”) pursuant to Section 105(d), 30 U.S.C. § 815(d), of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act”). The Secretary seeks a
penalty of $2,282.00 for the alleged violation of 30 C.F.R. § 56.6306(c) contained in
Citation No. 6508896, which was issued to Orica Nelson Quarry Services (“Orica”), a contractor
at the Greenville Quarries mine, pursuant to Section 104(a) of the Mine Act. The Greenville
Quarries mine is a surface limestone mine located in Greenville, Kentucky operated by
Roadbuilders & Parkway Construction, LLC (“Roadbuilders”).

1

Hilda L. Solis resigned as Secretary of Labor on January 22, 2013. Thomas E. Perez
was sworn in as Secretary of Labor on July 23, 2013.

35 FMSHRC Page 3004

PROCEDURAL BACKGROUND
After the Secretary filed her penalty petition, Orica answered and contested the validity
of the charges contained in the citation. The case was subsequently assigned to me by Chief
Administrative Law Judge Robert J. Lesnick. It was consolidated with Docket No. KENT 20091142, the Secretary’s case against Roadbuilders, and the consolidated cases were set for hearing.
The part of the consolidated matter involving Roadbuilders settled prior to hearing, and on
April 05, 2012, I issued a decision approving the settlement. Roadbuilders and Parkway
Construction LLC, Decision Approving Settlement (April 05, 2012). The case against Orica was
heard in Chattanooga, Tennessee and is the subject of this decision.
At the close of the hearing, I granted the parties’ request for leave to file briefs. Tr. 237.
In her brief the Secretary requested that the number of persons affected by the alleged violation
of Section 56.6306(c) be increased from “one” to “four”, that the degree of negligence be
increased from “moderate” to “high” and that a civil penalty of $11,307.00 be assessed. Sec. Br.
17-18.
THE MINE AND BLASTING PROCEDURES
At Greenville Quarries limestone rock is mined through blasting. The mine has a canyonlike configuration with two side walls and a single highwall on one end. Tr. 61-62. The highwall
is 34 feet high and 165 wide. Gov. Ex. 1, Tr. 62. There is a 15 foot wide rock berm on both the
left side and right side of the pit adjacent to each of the side walls. Tr. 61. The berms extend the
length of the two side walls and end near or at the base of the highwall, narrowing the pit floor to
approximately 135 feet. Tr. 61-62, See Gov. Ex. 3. A blasting area and production bench are
located on top of the highwall. Tr. 61. Limestone is dislodged from the highwall for processing
through blasting. Blasting fractures the limestone and propels it out the front of the highwall onto
the pit floor below where it is gathered by front end loaders, dumped into haulage trucks, and
taken out of the pit for processing. Tr. 28-30. Roadbuilders employs contractors at the mine to
prepare the mine site and to conduct blasting. Orica is a blasting contractor at the mine. Tr. 27.
As a blasting contractor, Orica provides the blasting materials and lays out the shots.2 Tr. 28-29.
In preparation for blasting, a separate drill hole contractor drills boreholes into the bench using a
drill steel. 3 Tr. 45, 64. The drill hole contractor attempts to make the drill holes as vertical as

2

A shot occurs when the explosives are blown. Tr. 43.

3

A drill steel is an iron bar or tube approximately 10-12 feet in length with a bit on the
end used for drilling vertical boreholes. Tr. 64-65.
Bench is “a name applied to ledges of all types of rock that are shaped like steps or
terraces.” U.S. Department of the Interior, Bureau of Mines, A Dictionary of Mining, Mineral
(continued...)

35 FMSHRC Page 3005

possible, but even with the use of assistive devices, drill bits frequently “wander”, resulting in
boreholes that are not completely vertical. Tr. 64, 103, 111.
Once the drill hole contractor drills the boreholes, the blasting contractor, in this case
Orica, loads the holes with explosives.4 Tr. 44-45. A detonator, also known as a cap or blasting
cap, and a cast booster are placed at the bottom of each hole.5 Tr. 45-46. A lead line is connected
to the cap and extended out of the hole. Tr. 49. Orica fills the boreholes with ANFO, a blasting
agent, and emulsion.6 Tr. 117. The holes are then covered with stemming.7 Tr. 46. All the lead
lines are tied together and surface caps, also known as surface delays, are placed on the surface.
Tr. 46-47. Orica then “runs [the lines] far out.” Tr. 47. Finally, Orica initiates the shot, causing
an explosion that fractures the rock, blows it loose from the highwall and propels it forward out
onto the pit floor below. Tr. 30, 47. Front end loaders operating in the pit clear the dislodged
material away from the base of the highwall, which improves the effectiveness of subsequent
shots. Tr. 112. The loaders then load the dislodged material into haul trucks.
STIPULATIONS
The parties stipulated to MSHA’s jurisdiction to conduct the April 7, 2009 inspection of
the Greenville Quarries mine. Tr. 18-19. The parties also agreed that the definition of the term
“blast site” provided in 30 C.F.R. § 56.2 defines the parameters of the blast site. Id.

3

(...continued)
and Related Terms 96 (Paul W. Thrush ed., 1968).
4

A borehole is “a hole [made] with a drill . . . or other tools . . . for blasting purposes.”
U.S. Department of the Interior, Bureau of Mines, A Dictionary of Mining, Mineral and Related
Terms 125 (Paul W. Thrush ed., 1968).
5

The detonator initiates the explosion and the cast booster contains explosive material
which provides the explosive force that propagates the explosion. Tr. 45, 48.
6

Emulsion is an explosive blasting agent which has a consistency similar to mayonnaise.
Tr. 46, 164. The bench at the Greenville Quarries mine is wet. Tr. 46. Without emulsion, which
displaces any water present in the boreholes, the blasting agents used at the mine would not
work. Tr. 46, 164. ANFO is an explosive blasting agent. Tr. 164.
7

Stemming is crushed stone base or another material that is placed in a borehole to direct
the force of the blast horizontally toward the face of the highwall. Tr. 46, 48.

35 FMSHRC Page 3006

THE TESTIMONY
On April 07, 2009, Mine Safety and Health Administration ("MSHA") Inspector Thomas
G. Galbreath conducted a regular inspection at the Greenville Quarries mine, accompanied by
Jerry Dozer, the mine superintendent at the time of the inspection.8 Tr. 37. Galbreath and Dozer
drove to the pit. Tr. 37. Galbreath stated that he exited the truck and when he looked up he
observed haulage activity on the production bench on top of the highwall, and he observed
miners loading boreholes with explosives on the bench at the top the highwall. Tr. 37. He
testified that he observed a 990 loader scooping up shot rock from against the face of the
highwall beneath the portion of the highwall that had been loaded with explosives and putting
the shot rock onto a haul truck. Tr. 38-40.
In late March or early April 2009, prior to the loading9 of the explosives on the highwall,
the drilling contractor had drilled four rows, each with 11 boreholes, in an 11 foot by 11 foot
pattern on top of the bench on the highwall. Tr. 147, Gov. Ex. 6, pg. 2, Orica Ex. 3. In total, the
contractor drilled 44 boreholes, each four inches in diameter and each 34 feet deep vertically,
extending from the top to the bottom of the highwall. Tr. 147, 176, Gov. Ex. 6, pg. 2. Galbreath
stated one of the blasters told him that 16 boreholes located closest to the left10 side of the bench
(the first four boreholes in each row all four rows back), were loaded, but the lines were not yet
connected. Tr. 73-75, Tr. 97. At the hearing, Galbreath circled the 16 loaded boreholes on the
left side of the highwall on Respondent’s Exhibit 3 (“Resp. Ex. 3"), a diagram of the highwall
depicting the location of the boreholes on top of the highwall and the haul truck and loader in the
pit. Tr. 97. The other 28 boreholes were not loaded. Galbreath estimated the first row of
boreholes was located six feet from the edge of the highwall. Tr. 64.

8

Galbreath works in MSHA’s Lexington, Kentucky Field Office and has been employed
by MSHA for approximately 11 years, during which he inspected blasting activities at mine
sites. Tr. 21-22. He has received classroom training on blasting from MSHA as well as extensive
training from Bill Handshoe, an MSHA blasting expert. Tr. 22. Prior to becoming an inspector,
Galbreath was a safety director at an underground coal mine for six years where he was
responsible for overseeing blasting operations and providing training. Tr. 24. Galbreath also
worked at the mine loading boreholes with explosives, charging the holes then initiating the
blasts. Tr. 25.
9

“Loading means placing explosive material either in a blasthole or against the material
to be blasted.” 30 C.F.R. § 56.2.
“Explosive material means explosives, blasting agents and detonators.” Id.
10

Unless otherwise stated, all directions are given in relation to a person facing the
highwall while standing on the floor of the quarry pit.

35 FMSHRC Page 3007

From the pit floor, Galbreath observed a loader mucking11 in the quarry pit against the
bottom of the vertical face of the highwall. Tr. 38. Galbreath testified that he saw the loader
scoop up shot rock, directly in front of the loaded boreholes and load the shot rock onto a
waiting haul truck. Tr. 38-39. This mucking and loading activity had been in progress since the
start of the shift that morning. Citation No. 6508896.
Galbreath testified that the loader was mucking within 50 feet of a loaded borehole, in
violation of Section 56.6306(c), which, as outlined below, prohibits all activities except blasting
and hauling within a 50 foot radius of loaded boreholes. Tr. 64. Galbreath believed the standard
was violated because the loader was digging against the base of the highwall which was six feet
or less from the first row of eleven boreholes, of which four on the left side were loaded. Tr. 65,
see Tr. 174, see Resp. Ex. 3. Galbreath believed that “bit wander” could have altered the
location of the first row of boreholes, moving them closer than six feet from the face of the
highwall. Tr. 65. Each borehole was 34 feet deep, extending from the production bench on top
of the highwall to the bottom of the highwall. Tr. 64. Galbreath was concerned that the loader
mucking against the highwall might dig into a loaded hole and trigger a premature detonation.
Tr. 66. Accordingly, at 8:32 a.m., Galbreath issued Citation No. 6508896 to Orica for a
violation of Section 56.6306(c). Citation No. 6508896, Gov. Ex. 1. Galbreath thought that a
premature detonation was reasonably likely to cause fatal injury to the loader operator. Gov. Ex.
1, Tr. 66. He believed the miners on top of the highwall would also be directly or indirectly
affected. Tr. 66. Galbreath found the violation to be a significant and substantial contribution to
a mine safety or health hazard (“S&S”). Tr. 67, Gov. Ex. 1. Galbreath concluded the alleged
violation reflected Orica’s moderate negligence based, in part, on miner Thurman Grundy’s
statement to him that the miners doing the blasting could see the miners in the pit, but were
unaware of their exact location. Tr. 68-69. The citation states the violation was terminated when
the mucking and haulage activities were moved away from the front of the bench. Gov. Ex. 6,
pg. 2.
Thurman Grundy was called as a witness by the company. Grundy is currently retired,
but prior to hs retirement he had 21 years of experience working with Orica and 19 years of
blasting experience. Tr. 146-147. Grundy stated that he was loading the boreholes on the left
side of the highwall when Inspector Galbreath arrived at the mine. Tr. 149. Sixteen boreholes
on the left side, four holes across and four rows back, were loaded. Tr. 174, Resp. Ex. 3. The
other boreholes were not loaded. Tr. 174. The boreholes also were not yet tied together. Tr. 162.
Grundy contended that the first row of loaded boreholes was approximately ten feet, not six
feet, away from the edge of the highwall. Tr. 176. Grundy denied that the loader was within 50
feet of the loaded boreholes. Tr. 155. He estimated there was a distance of at least 55 feet
between the loader and the loaded boreholes. Tr. 169. Grundy testified that he measured the
distance at the time, but did not write the measurement down. Id. Grundy also testified that
because the pit area in front of the loaded side of the highwall was “clean” when he inspected it

11

Galbreath defined mucking as the act of scooping up blasted rock and any other
material on the ground with a loader and loading it into a haul truck. Tr. 42.

35 FMSHRC Page 3008

the previous morning, a loader would not have been mucking at the face in front of the loaded
boreholes. Tr. 168. Grundy was aware the loader was mucking at the base of the highwall. Tr.
159. Grundy and the loader operator always wave to each other in the morning to alert the
other to his presence. Tr. 168. He testified that the loader was a safe distance from the loaded
boreholes because it stayed near the unloaded portion of the highwall. Tr. 159.
William (“Bill”) Handshoe is an experienced blaster licensed in Kentucky, Tennessee,
West Virginia and Virginia who works in MSHA’s Knoxville Field Office. Tr. 107-108. He has
experience in quarries and coal mines and in loading highwalls. Tr. 109. The Secretary called
Handshoe as a witness. Handshoe testified that, in his experience, a drill bit can wander and
thus alter the location of a borehole by one to two feet. Tr. 135. As a result, the loaded
boreholes could actually be located as close as four or five feet from the face of the highwall.
Handshoe stated that the blaster is in charge of the blast site and directs the workforce doing the
blasting and the mucking in the pit. Tr. 119. Handshoe believed that the hazard posed by the
alleged violation was that the loader could dig into the highwall and trigger a premature
detonation, causing fly rock to come out of the highwall and hit anyone in the blast site. Tr. 119.
Handshoe testified that though there are many variables to take into consideration, such as
cracks and fragmentation of the highwall from the previous blasts, it was “more reasonably
likely than not” that a loader mucking in front of the highwall would dig into a loaded borehole.
Tr. 113. Given the large size of the loader used in the pit that day, Handshoe though that it
would be easy for its teeth to “grab into the [cast] booster” while it was scooping up rock and
cause an explosion. Tr. 114. Handshoe also speculated that emulsion could leak out of a
borehole from between pieces of loosened rock and the teeth of the loader could “get into it,”
causing an explosion. Tr. 117. Handshoe was not present at the mine on the day of the
inspection, but he did not believe the detonation of one borehole was likely to trigger the
detonation of the other loaded holes because, based on his examination of a picture of the
loaded boreholes, Exhibit GX-3, pg. 2, the lead lines had not yet been attached to the surface
caps and connected together. Tr. 130, Tr. 133.
Jerry Dozer testified on behalf of the company. Dozer stated that he accompanied
Galbreath into the pit area, though he was not present during the entire inspection. Tr. 193-194.
Dozer is currently retired, but he had approximately 33 years of experience with Orica prior to
retiring and for three of those years he worked for the company at the Greenville Quarry mine.
Tr. 181. He stated that the first row of boreholes, the row closest to the edge of the highwall,
was roughly eight to ten feet from the edge. Tr. 183. He observed the loader mucking against
the right side of the highwall then loading shot rock onto a truck. Tr. 193. He testified that no
mucking occurred on the left side where the boreholes were being loaded because the left side
had been mucked out the day before. Tr. 186.
Michael Music was a witness for Orica. Music is retired, but occasionally consults
for the mining industry. Tr. 206. He has approximately four years of blasting experience and
has worked for MSHA as an inspector, as a field office manager, and as chairman and a
member of MSHA’s Highly Explosive Standards Committee. Tr. 207-208,Tr. 225. Music
testified that blasting at the site would have caused significant cratering on the highwall,

35 FMSHRC Page 3009

making the face “cracked and weak.” Tr. 220. Music speculated that the distance from the edge
of the highwall to the four boreholes closest to the edge of the highwall was greater than six
feet. Tr. 221. Music was not present during the inspection and did not observe the condition of
the highwall. Tr. 224.
THE VIOLATION
CITATION NO.
6508896

DATE
04/07/2009

30 C.F.R. §
56.6306(c)

The citation states:
The blasting contractor did not assure that the blast site area was secure before
loading explosives. A Cat 990 front end loader was mucking in the quarry pit
below the bench w[h]ere explosives were being loaded into [boreholes]. The
loader was digging against the face of the highwall and loading trucks against the
highwall being loaded. The highwall was approximately 34 feet in height and the
[boreholes] were approximately 34 feet deep. The holes were already charged
with emulsion and a cast booster/cap. The [boreholes] were approximately six
feet from the edge at the top of the bench. A hazard of the loader digging into a
charged hole or a premature detonation existed. This hazard would cause a fatal
injury to a miner. This process had existed since the start of the shift this
morning. Two blasters were working on top of the bench loading the blast holes.
Citation No. 6508896.
Section 56.6306(c) provides:
Once loading begins, the only activities permitted within the blast site shall be
those activities directly related to the blasting operation and the activities of
surveying, stemming, sampling of geology, and reopening of holes, provided that
reasonable care is exercised. Haulage activity is permitted near the base of a
highwall being loaded or awaiting firing, provided no other haulage access
exists.
30 C.F.R. § 56.6306(c).
Section 56.2 defines a blast site as follows:
Blast site means the area where explosive material is handled during loading,
including the perimeter formed by the loaded blastholes and 50 feet (15.2
meters) in all directions from loaded holes. A minimum distance of 30 feet (9.1
meters) may replace the 50-foot (15.2-meter) requirement if the perimeter of

35 FMSHRC Page 3010

loaded holes is demarcated with a barrier. The 50-foot (15.2-meter) and
alternative 30-foot (9.1-meter) requirement also apply in all directions
along the full depth of the hole.
30 C.F.R. § 56.2.
For the reasons that follow, I find that the Secretary has established a violation of
Section 56.6306(c). Inspector Galbreath credibly testified that he observed a loader loading a
haul truck directly beneath loaded boreholes, well within the blast site. Galbreath’s testimony is
consistent with his findings in the citation and is corroborated by his contemporaneous
inspector’s notes, which state that he observed a loader loading a haul truck “against the
highwall being loaded” (Citation No. 6508896 (emphasis added)) directly in front of loaded
boreholes. Gx. 6, pg. 2.
Prior to issuing the citation, Galbreath went up to the top of the highwall and observed
the location of the loaded boreholes and the proximity of the loader to those boreholes. See
Tr. 63. Though Galbreath did not provide measurements or estimates of the distance between
the haul truck and the loaded portion of the highwall, he has substantial experience with
blasting, and based on his statement in the citation that the loader was loading the haul truck
against the loaded highwall, I credit his finding that prohibited loading activities were taking
place within the blast site. In my view, the record clearly supports finding that the loader and
the haul truck were in close proximity to the loaded portion of the highwall, well within a 50
foot radius, while this loading activity was taking place and thus, were within the blast site.
Grundy and Dozer contend that the haul truck was located on the right side of the pit, away
from the loaded holes. However, Grundy and Dozer’s testimony regarding the location of the
haul truck lacked specificity and unlike Galbreath’s testimony, was not corroborated by
contemporaneous notes.
I further find that although the standard specifically allows haulage activity near the
base of the highwall being loaded, provided no other haulage access exists, the loader’s
activities do not fall within the definition of haulage. Galbreath and Handshoe persuasively
defined hauling as the transportation of material away from the blast site. Tr. 60, Tr. 115-116.
They agreed that haulage does not include loading. Id. Similarly, the Dictionary of Mines,
Mineral and Related Terms defines haulage as, “[t]he drawing or conveying . . . of men,
supplies, ore and waste both underground and on the surface.” U.S. Department of the Interior,
Bureau of Mines, Dictionary of Mines, Mineral and Related Terms 530 (Paul W. Thrush ed.,
1968)(emphasis added). Here, the activity that triggered the violation was the loading of the
haul truck.

35 FMSHRC Page 3011

NEGLIGENCE
Inspector Galbreath determined the violation was the result of Orica’s moderate
negligence. In her brief, the Secretary requested that the level of negligence be increased to
high. Sec. Br. 18. I find that such an increase is warranted. The Mine Act holds operators and
contractors to a high duty of care. The blasting contractor has a duty to ensure the safety of
miners within the blast site. Galbreath credibly testified that Grundy was aware miners were
working in the pit while it was preparing the shot, but was unaware of their exact location.
Grundy testified that the loader was a safe distance from the loaded boreholes and would not
have been mucking in the pit below the loaded portion of the highwall because that area was
“clean.” I find Galbreath’s testimony, which is corroborated by his contemporaneous notes, to
be the more persuasive. Gov. Ex. 2. Orica knew that there were miners working in the pit
beneath the highwall while it loaded explosives and should have remained aware of the
activities of those miners as it continued to load explosives. The miners in the pit were likely to
be seriously injured or killed if a premature detonation occurred. Accordingly, I find that
Orica’s negligence was high.
GRAVITY
Galbreath believed that the hazard to which the violation contributed was a premature
detonation triggered by the loader digging into a loaded borehole. Inspector Galbreath
determined that if a premature detonation occurred it could result in serious or fatal injuries, and
I agree. To gauge the gravity of a violation I must assess the effect of the hazard if it occurs,
Consolidation Coal Co.,18 FMSHRC 1541, 1550 (Sept. 1996). In this instance, if a premature
detonation occurred, the loader operator, the haul truck driver and the miners doing the loading
on top of the highwall could be hit by flying rock and would have sustained broken bones,
internal injuries or they could have been killed. The violation was clearly serious.
S&S
A violation is properly designated as S&S if the violation is a significant and substantial
contribution to the cause and effect of the hazard. 30 U.S.C. § 814(d). To establish the S&S
nature of a 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 will be of a reasonably serious nature.”
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); accord Buck Creek Coal Co., Inc., 52 F. 3d.
133, 135 (7th Cir. 1995); Austin Powder Co., Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir
1988)(approving Mathies criteria). It is the third element of the S&S criteria that is the source of
most controversies regarding S&S findings. The element is established only if the Secretary
proves “a reasonable likelihood the hazard contributed to will result in an event in which there
is an injury.” U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129(Aug. 1985). An S&S
determination must be based on the particular facts surrounding the violation and must be made

35 FMSHRC Page 3012

in the context of continued normal mining operations. Texasgulf, Inc., 10 FMSHRC 498, 500
(Apr. 1988)(quoting U.S. Steel Mining Co.,Inc., 6 FMSHRC 1573, 1574 (July 1984)). It is the
contribution of a violation to the cause and effect of a hazard that must be significant and
substantial. U.S. Steel Mining Co., 6 FMSHRC 1573, 1575 (Juy 1984).
I have found that Orica violated Section 56.6306(c) when the loader loaded a haul truck
within the blast site and that if the hazard identified by the Secretary, a premature detonation
triggered by the loader digging into a loaded borehole or explosive material, were to occur it
would result in serious or fatal injuries. However, I also find that the Secretary did not prove
that the hazard was reasonably likely to occur and thus, failed to establish the third Mathies
criterion. Galbreath testified that he observed the loader mucking directly in front of the loaded
boreholes and was concerned that the loader would dig into a loaded borehole.Tr. 66. However,
this testimony is not supported by his inspector’s notes, which state, “[L]oading activity was
taking place in front of the loaded bench . . . The loader was digging on the opposite side of the
bench.” 12 Gov. Ex. 2 (emphasis added). The Secretary’s other witness, Handshoe, did not
personally witness the violation and the Secretary did not clarify this inconsistency. Nor did
Galbreath mark the photos he took when he issued the citation to indicate the relative location
of the loader to the loaded boreholes. The Secretary has failed to establish whether the loader
was mucking in front of the loaded holes. Indeed, the inspector’s notes indicate that the loader
was mucking on the unloaded side of the bench, which is consistent with the testimony of
Grundy and Dozer. Orica contends that not only was the loader not mucking underneath the
loaded boreholes when Inspector Galbreath observed the loader, it also would not have later
begun mucking under the loaded holes. Both Grundy and Dozer credibly testified that the left
side of the pit at the base of the highwall had previously been mucked out and was “clean”.
Neither Galbreath’s notes nor his testimony nor Handshoe’s testimony persuade me that
it was reasonably likely that the loader, which was mucking at the face by the unloaded side of
the bench, would dig into a loaded borehole, even with allowances made for bit wander of one
to two feet.13 The record fails to show that the loader was operating close enough for that to
happen. Though Handshoe testified that it was “more reasonably likely than not” that the teeth
of the loader could dig into emulsion that had leaked out from between fractured rock and cause
a premature detonation, he also admitted that such an outcome was dependent on a variety of
factors, which were identified, but not developed through his testimony or that of the
Secretary’s other witness, Handshoe, and Handshoe had no personal knowledge of the facts nor

12

I assume that one haul truck at a time was being loaded with mucked material. Though
the citation and Galbreath’s notes refer to two trucks, Dozer confirmed that Orica was rotating
two trucks to remove the mucked material (Tr. 193) and both the Secretary and the Respondent’s
witnesses only made reference to one truck.
13

Music testified that prior blasting could have made the face of the highwall “cracked
and weak,” but, as stated above, he did not personally observe the condition of the highwall and
his speculative statements do not persuade me to change my determination.

35 FMSHRC Page 3013

did he observe the condition of the highwall. Moreover, the record does not support finding that
the emulsion, if it leaked, would reach the area where the loader was operating.
I am mindful that a significant and substantial determination must be made based on the
particular facts surrounding the violation. As noted above, the violation was triggered when the
loader loaded the haul truck directly in front of the loaded boreholes. However, it was the
loader’s mucking activities, not the loading of the truck, which Inspector Galbreath testified
was the potential trigger for the identified hazard - a premature detonation. Galbreath testified
that the loader was mucking in front of the loaded boreholes, but this testimony is contradicted
by his inspector’s notes, which state that the loader was mucking at the face on the unloaded
side of the highwall, and by the testimony of Grundy and Dozer. I find the Secretary did not
establish that a premature detonation was reasonably likely and failed to establish that Orica’s
violation of the standard was a significant and substantial contribution to a mine safety or health
hazard.
NUMBER OF PERSONS AFFECTED
The Secretary requested in her brief that the number of persons affected be increased
from “one” to “four.” Sec. Br. 18. Handshoe argued that had a premature detonation occurred,
four people, the blaster and the helper on top of the highwall and the loader operator and the
truck operator in the pit, would all be affected. Tr. 119-120. Handshoe testified that the blaster
and helper on top of the highwall would be affected because once the blast is initiated, even
when stemming is used, fly rock still comes out the top of the borehole. Tr. 120-121. I credit
this testimony and I find that four persons were affected by the violation.
HISTORY OF PREVIOUS VIOLATIONS
In the two year period prior to the inspection at issue, Orica paid civil penalties for 23
violations, 5 of which were violations of Section 56.6306. Gov. Ex. 7. This is a moderately
large history of previous violations. See 30 C.F.R. § 100.3(c)(1).
SIZE AND ABILITY TO CONTINUE IN BUSINESS
According to Exhibit A, which is attached to the Secretary’s penalty petition, Orica
worked 237,646 annual hours, making it a large contractor. In the absence of evidence to the
contrary, I find that the assessed penalty will not affect the Respondent’s ability to continue in
business. See Sellersburg Stone Co., 5 FMSHRC 287, 294 (Mar. 1983)(finding the mine
operator has the burden of showing that the penalty will have a detrimental effect on its ability
to continue in business).

35 FMSHRC Page 3014

GOOD FAITH ABATEMENT
Orica promptly and effectively abated the violation by moving the haul truck and the
loader. The penalty proposed by the Secretary reflects a reduction for good faith abatement.
CITATION NO.
6508896

30 C.F.R. §
56.6306(c)

PROPOSED PENALTY
$2,282.00

ASSESSMENT
$2,000.00

In her brief the Secretary argued that an increase in the proposed penalty to $11,307.00
is appropriate based on her proposed findings regarding Orica’s negligence and the number of
persons affected and is in accordance with the penalty criteria set forth in 30 C.F.R. § 100.3.14
Commission judges determine civil penalties de novo. I have considered the civil penalty
criteria and conclude that, in light of the circumstances, particularly my finding of high
negligence, my finding that four persons were affected by the violation and my determination
that the Secretary failed to establish the identified hazard was reasonably likely to come to
fruition, a civil penalty of $2,000.00 is more appropriate.
It is ORDERED that Citation No. 6508896 be MODIFIED to delete the inspector’s
significant and substantial finding, to reduce the likelihood of injury to “unlikely,” to increase
the number of persons affected to “four,” and to increase the degree of negligence to “high.”
It is further ORDERED that the Respondent pay a penalty of $2,000.00 within 30 days
of the date of this decision.15 Upon receipt of payment, this case is DISMISSED.

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

14

The Secretary did not file a motion to amend the penalty petition. Instead, she raised
this argument for the first time in her brief, a dubious practice, as the court previously noted in
Performance Coal Company, 35 FMSHRC ___, slip op. at 2, n.3, No. WEVA 2008-1825
(August 16, 2013).
15

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.

35 FMSHRC Page 3015

Distribution:
Willow E. Fort, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219
Douglas Maggard, Director, US SH&E, Orica USA, Inc., 2873 Highway 252,
Laurens, SC 29360
/ca

35 FMSHRC Page 3016

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 Pennsylvania Avenue, NW, Suite 520N
WASHINGTON, DC 20004
TELEPHONE: 202-434-9953 / FAX: 202-434-9949

September 16, 2013
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.
CLAS COAL COMPANY, INC.,
Respondent.

:
:
:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDING:
Docket No. KENT 2013-167
A.C. No. 15-19325-302646
Mine: Mine No. 7

DECISION
Appearances:

Mary Sue Taylor, Esq., U.S. Department of Labor, Nashville, TN on
behalf of the Secretary
James K. McElroy, CLR, Department of Labor, MSHA, Pikeville, KY,
on behalf of the Secretary
Roy Parker, Safety Manager, on behalf of Clas Coal Company, Inc.

Before: Judge David F. Barbour
This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor (“Secretary”) on behalf of his Mine Safety and Health Administration (“MSHA”),
against Clas Coal Company, Inc. (“Clas” or “the Company). The case is brought pursuant to
sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, as amended, 30
U.S.C. §§815, 820, (the “Mine Act”). The Secretary petitions for the imposition of penalties
that total $1,512 for two alleged violations of the nation’s mandatory safety and health
standards for underground bituminous coal mines. The violations are alleged in citations issued
pursuant to section 104(a) of the Mine Act, 30 U.S.C. §814(a), at Clas’s Mine No. 7, an
underground bituminous coal mine located in Pike County, Kentucky.
One citation alleges a violation of 30 C.F.R. §75.1722(a), which requires that, “Gears;
sprockets; chains, . . . pulleys . . . and similar exposed moving machine parts which may be
contacted by persons, and which may cause injury to person shall be guarded.” The Secretary

35 FMSHRC Page 3017

asserts that on August 23, 2012, Gary Ray, an MSHA inspector who was conducting an
inspection of the mine, found that the rotating shaft of a head drive was not guarded. The shaft
of the drive projected one half inch beyond its bearings. The Secretary proposes the company
be assessed a civil penalty of $100 for the alleged violation.
The other citation alleges a violation of 30 C.F.R. §75. 380(d)(1), which requires that,
“Each escapeway . . . be [m]aintained in a safe condition to always assure passage of anyone,
including disabled persons.” The Secretary asserts that on August 23, Inspector Ray found that
the mine’s alternate escapeway was not so maintained in that water mixed with mud was
allowed to pool in three areas. The mix ranged from 7 inches to 12 inches deep, and the pools
were from 15 feet to 30 feet long. The Secretary argues that the condition endangered 12
miners who worked on the section, that the condition was reasonably likely to cause a
permanently disabling injury, that the condition was a significant and substantial contribution to
a mine safety hazard (“S&S”) and that the company was moderately negligent in allowing the
condition to exist. The Secretary proposes the Company be assessed a civil penalty of $1,412
for the alleged violation.
The Company answers that the shaft on the head drive was located in such a way there
was no reason a miner would reach into the area of the drive and be caught or snagged by the
shaft. It further points out that even if an errant miner for some reason reached into the area, the
surface of the shaft was smooth and unlikely to catch the miner or to snag his or her clothing.
According to the Company, the shaft did not protrude as much as indicated by the inspector and
information displayed on MSHA’s website stated that a similar shaft was “Okay.” The
company asks that the citation be vacated.
With regard to the allegedly unsafe alternate escapeway, the Company contends that
Inspector Ray’s gravity and S&S findings are excessive. It asserted that the water and muck in
the alternate escapeway was not so deep as to overtop the boots of miners nor of a depth to enter
the compartments of vehicles traveling the escapeway. The Company states that it was in the
process of installing a dewatering system when the citation was issued. The pooled water and
muck had to settle a couple of days before it could be pumped.
The company also maintains that in the unlikely event the alternative escapway had to
be used, only five miners at most were likely to travel through the mix on foot. The rest would
ride out of the mine on battery powered equipment. In the company’s view, the citation should
be modified by lowering Inspector Ray’s gravity finding and by deleting his S&S finding.
After the company’s answer was received the case was assigned to me, and I ordered the
parties to engage in pre-hearing settlement discussions. When the parties reported they were at
an impasse, I noticed the case for hearing. At the same time, I encouraged the parties to
continue their efforts to find a way to resolve their differences, reminding them that a mutually
agreeable settlement is in almost all instances preferable to an outcome dictated by trial. I also
asked the parties if the matter could not be settled, whether they were agreeable to a remotely
conducted hearing, one that would save all involved considerable expense. However, the

35 FMSHRC Page 3018

parties advised me they preferred an on-site hearing in view of the fact that exhibits might need
to be identified and marked by the witnesses.
The hearing was called to order on August 13, 2013, in Pikeville, Kentucky. Prior to
going on the record, I again discussed with the parties whether further settlement discussions
might yet produce an agreement. When they advised me that they would not, the hearing
commenced.
Before calling his first witnesses, Counsel for the Secretary read the following
stipulations into the record:
1. Clas . . . extracts and sells coal in interstate commerce, and
is subject to the jurisdiction of the Federal Mine Safety and
Health Review Commission and its Administrative Law
Judges.
2. Clas . . . owns and operates Mine No. 7 located in
Fedscreek, Pike County, Kentucky.
3. [Mine ]No. 7 . . . reported a production of
53,590 tons of coal in the first two quarters of 2013.
The average number of underground coal mine[rs] at
this mine is 35.
4. Clas . . . took over management of this mine on
July 10, 2012.
5. Clas . . . received on[e] violation at this mine
prior to the violations issued on August [23,] 2012.
6. The proposed assessments will not affect the ability
of Clas . . . to continue in business.
7. The violations cited were abated within the
time frame given by the [i]nspector.
8. Citation No. 8276490 was issued on
Thursday, August [23] for a violation of . . . [section]
75.380(d)(1), and served on an agent of Clas.
Tr. 16-17.
Counsel for the Secretary also stated that the Secretary agreed to vacate Citation No.
8276491, the citation in which a violation of section 75.1722(a) was alleged. The Secretary

35 FMSHRC Page 3019

concurred with the Company that the cited head drive “appeared to be the same as [one that was
stated to be ‘Okay’] on MSHA’s website.” Tr. 18.
The parties then presented their respective cases, and at the close of the testimony, I
entered the following bench decision:
First, . . . it is clear that there are honestly held opinions on
both sides of the issues . . . and I appreciate that fact.
None of the witnesses . . . not Inspector Ray, not
[MSHA] Supervisor [Brian] Dotson, not [Clas’s
safety manager, Roy] Parker[,] dissembled or stated things
other than what they truly [believe].
*

*

*

[B]ased on the testimony . . . [of] the witnesses, and the
documentary evidence, I rule as follow[s:]
First, . . . the Company violate[d] [s]ection
75.380(d)(1) . . . . The standard requires each escapeway, . . .
includ[ing] alternate escapeways, to be maintained to assure [the]
passage of anyone, including disable persons.
Clearly, an escapeway in which the passage of any miner
is hindered[,] is not a safe escapeway.
[Tr. 134]
I accept the testimony of Inspector Ray regarding the
condition of the cited alternate escapeway . . . . He was
there. He traveled . . . the escapeway. He measured
the depth of the liquid material[,] . . . a slurry-like mix of
water and solids[.] . . . [T]he mix existed in three pools[,]
15 feet to 30 feet long and 12 inches to 7 inches deep. I
accept [the inspector’s] descriptions [as accurate].
I further accept his testimony that the slurry-like mix
obscured what it covered, and it was entirely reasonable
for Inspector Ray to infer the mix covered rocks. He
felt the vehicle on which he was traveling bump over
the rocks. He saw rocks in the parts of the [escapeway]
that were not covered with the mix. His belief that the
mix covered similar rocks was logical, and I credit it.

35 FMSHRC Page 3020

I also credit his belief that the slurry[-like] mix and the
rocks covered by it [would have] hindered the passage of
miners . . . use[ing] the . . . escapeway. While it may not
have . . . [hindered them] if [they rode] through the
escapeway and out of the mine on [the] rubber[-]
[Tr. 135.]
tired[,] battery powered vehicles that were available[, a]s . . .
Inspector Ray’s and Supervisor Dotson’s testimony
made clear, miners might well not have [the] luxury [of
using the vehicles] and [they] might be required, because
of debris in the entries and/or heavy smoke, to travel out
[of the mine] on foot.
In such a situation, the slurry-like mix would slow them,
and there is no [gainsaying] the fact that the hidden rocks
could cause them to stumble and fall, subjecting them to
injuries such as sprained ankles, or worse. Moreover,
even if they were not injured, the additional delay caused
by the slurry mix could lead to smoke inhalation, or . . .
in the worst case scenario [if they were delayed long
enough,] to death.
[Thus,] the record clearly establishes the violation. It also
establishes that the violation was . . . [S&S.] My finding
in this regard tracks the case law, as it must. As
[Commission Administrative Law Judge Richard]
Manning pointed out in a case . . . [similar] to this, a
judge must determine whether there [is] a reasonable
likelihood that the hazard
[Tr. 136.]
contributed to by the violation could . . . [result] in
an injury in an emergency situation in which the escapeway
[must] . . . be used. Judge Manning’s decision is . . .
Twentymile Coal Co., 29 [FMSHRC 806, 811 (Sept. 2007).]

35 FMSHRC Page 3021

When viewed . . . this way, the issue is whether the uneven
footing hidden under the slurry mix made it reasonably likely
an exiting miner . . . [would trip] . . . fall and [be]
injured [during an emergency exit.] I . . . conclude the answer
is, yes.
I [am] particularly impressed by the testimony of . . .
Inspector Ray and Supervisor Dotson, that [had an injured
miner needed evacuation on a stretcher or had evacuating
miners needed to be tethered together to follow each other
out of the mine,] at least one of those carrying [the]
stretcher[,] . . . or [at least one of those] tethered together
would have been likely to slip, stumble and fall. This is . . .
common sense, because they would not be able to see
where they had to step [a]nd their . . . overwhelming
concern . . . would [be] to hurriedly exit. A sprained or a
twisted ankle seems [to be the] most likely . . . result.
I will add that I do not think . . .
[Tr. 137.]
Inspector Ray’s belief that a miner might drown is . . .
likely . . . given the fact that the slurry mix was not
deep, and any miner who fell from a stretcher, or who fell
while being tethered, would have been . . . quickly helped
by those around him or her. [However, this does not
detract from the fact that] . . . the delay of miners escaping
the mine in an emergency situation [and the uneven footing
they would encounter] was reasonably likely to cause an
injury.
That stated, while I find that this was [both an S&S] and a
serious violation, it was not as serious as Inspector Ray
believed. [Although] all 12 of [the section’s] miners . . .
were put in danger by the violation, I find [that those] . . .
most likely to . . . [be] injured were those carrying a stretcher
with an injured miner. In other words, I find that five miners
were most immediately affected. Tethered miners also . . .
[were affected, but they would] . . . be . . . likely to
quickly help one another if one of their [fellow miners]
slipped or [tripped.]

35 FMSHRC Page 3022

I also agree with Inspector Ray’s assessment that the
Company was moderately negligent. As Mr. Parker
[testified], he had been
[Tr. 138.]
in the area prior to the violation being cited, and he knew
that the mine and the [escapeway were] wet. The
Company [should have] had the equipment on hand to
remove the water [and mud], [s]omething it clearly
recognized, since Mr. Parker [stated that] . . . the
Company was in the process of installing the equipment.
Still, the company gets credit for [identifying] what was
needed, and for moving forward with its installation. In
addition, I find it telling that the [Secretary] agrees . . . [MSHA
inspectors] traveled through the area prior
to August [23,] and when the condition existed, . . . but
[that they] did not cite . . . a violation.
I [therefore] find that the Company’s negligence was on
the low side of moderate. I [also] think it important to
recognize that Clas . . . is not a recalcitrant operator.
Mr. Parker’s testimony that the Company tries very hard. . . to
comply with all of the [Secretary’s] regulations . . . is
born out by [S]tipulation [5], to wit that in the month
and almost two weeks it . . . controlled the mine, and in
three weeks it
[Tr. 139.]
had been actively mining, the Company . . . received but
one [citation].
*

*

*

[T]he record [also] affirms [the conclusion] that
[S]tipulation [7] is accurate. The Company did, indeed,
work diligently to abate the violation[.]
Therefore, [and for the reasons stated above,] I conclude
that the violation existed, and that the relevant case
requires that I affirm the [inspector’s S&S] finding[,and]
I . . . note here that this case is very similar to

35 FMSHRC Page 3023

[Commission Administrative Law] Judge [Margaret]
Miller’s case, Independence Coal Company, [Inc.],
[32 FMHRC 654 (June, 2010),] . . . in which she found
the hazards caused by water that . . . collected in an . . .
escapeway were reasonably likely to contribute to an
injury in the event of an emergency evacuation . . . .
[Tr. 140.]
I [further] find that although 12 miners . . . could
have been affected, the most likely number was five[,]
that the Company’s negligence was on the
low side of moderate, and [that] the Company’s
overall attitude toward compliance[,] as
exhibited by Mr. Parker’s testimony and by the single
[citation] issued at the mine between the time the
Company took control of the mine and the [subject]
violation[,] warrant a lower penalty than that proposed.
Were I to assess the [Secretary’s] proposed [penalty] of
$1,412, it would be more than twice what the Company
has previously paid for an [S&S] violation, I therefore
assess a . . . penalty of $912[,] . . . which is . . . more
than a third of what the Company has . . . [paid]
for a violation of [section 75.380], and indeed [a third]
more than the Company has . . . ever paid for any
violation.
[Tr. 141.]1

1

Editorial changes correcting syntax, grammar, spelling, and typographical errors have
been made in reproducing the bench decision.

35 FMSHRC Page 3024

ORDER
Within 30 days of the date of this decision, Clas IS ORDERED to pay a penalty of $912
for the violation of section 75. 380(d)(1) set forth in Citation No. 8276490.2 Within the same 30
day, if he has not already done so, the Secretary IS ORDERED to vacate Citation No.
8276491. Upon payment of the penalty and vacation of the citation, this proceeding IS
DISMISSED.

/s/ David F. Barbour
David F. Barbour
Administrative Law Judge
Distribution (Certified Mail):
Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219-2456
James K. McElroy, CLR, Department of Labor, MSHA, 100 Fae Ramsey Lane, Pikeville,
Kentucky 41501
Roy Parker, Safety Manager, Clas Coal Company, Inc., P.O. Box 643, Elkhorn, KY

41522

/db

2

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

35 FMSHRC Page 3025

FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION
th
721 19 Street, Suite 443
Denver, CO 80202-2500
303-844-5267/ FAX 303-844-5268

September 16, 2013
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner,

:
:
:
:
:
:
:
:
:
:
:
:

v.

CONSOLIDATED REBAR, INC.,
Respondent.

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 2012-922-M
A.C. No. 04-02542-287276-01 S314
Docket No. WEST 2012-923-M
A.C. No. 04-02542-287276-02 S314
Docket No. WEST 2012-1026-M
A.C. No. 04-02542-290124-01 S314
Mt Pass Mine and Mill

DECISION
Appearances: Bryan Kaufman, Esq., Office of the Solicitor, U.S. Department of Labor, Denver,
Colorado, for Petitioner;
David W. Donnell, Esq., Robert D. Peterson Law Corporation, Rocklin,
California, for Respondent.
Before:

Judge Manning

These cases are before me upon petitions for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”),
against Consolidated Rebar, Inc., pursuant to sections 105 and 110 of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Act” or “Mine Act”). The parties
introduced testimony and documentary evidence at a hearing held in Henderson, Nevada, and
submitted post-hearing briefs.
A total of two section 104(a) citations and a citation and order issued under section
104(d) were adjudicated at the hearing. The Secretary proposed a total penalty of $5,696 for
these matters.
I. DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW
A. Citation Nos. 8689027 and 8689028
On March 23, 2012, Inspector Eric P. Wiedeman issued Citation No. 8689027 under
section 104(a) of the Mine Act, alleging a violation of section 56.14100(b) of the Secretary’s
safety standards. (Ex. G-4). The citation stated that a rental forklift had a broken horn that

35 FMSHRC Page 3026

required touching a wire to ground to operate. It also had exposed broken glass upon a fuel
gauge. Respondent operated the cited forklift with these conditions. Id. Inspector Wiedeman
determined that an injury was reasonably likely to occur and that such an injury could reasonably
be expected to be fatal. Further, he determined that the violation was Significant and Substantial
(“S&S”), the operator’s negligence was high, and that one person would be affected. Section
56.14100(b) of the Secretary’s regulations requires “[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.” 30 C.F.R. § 56.14100(b). The Secretary proposed a penalty of $1,304.00 for this
citation.
On March 23, 2012, shortly after issuing Citation No. 8689027, Inspector Wiedeman
issued Citation No. 8689028 under section 104(a) of the Mine Act concerning the same
underlying conditions as Citation No. 8689025, alleging a violation of section 56.14100(d) of the
Secretary’s safety standards, which requires, in part, “[d]efects on self-propelled mobile
equipment affecting safety, which are not corrected immediately, shall be reported to and
recorded by the mine operator.” 30 C.F.R. § 56.14100(d). The citation states that “the
equipment operator failed to note on the pre-operational exam that the defects existed and put the
unit in operation.” (Ex. G-5). Inspector Wiedeman determined that an injury was reasonably
likely to occur and that such an injury could reasonably be expected to be fatal. Further, he
determined that the violation was S&S, the operator’s negligence was moderate, and that one
person would be affected. The Secretary proposed a penalty of $392.00 for this citation.
Discussion and Analysis
Respondent’s argument that the cited defects did not affect safety fails. Respondent
argues that Guy Kaawaloa, the foreman, and Brensin Kamanu,1 the forklift operator, testified that
Respondent’s horn use complied with Mine requirements. Kamanu also testified that when the
forklift transported loads, he used a spotter or a leading vehicle. (Tr. 201-02). The forklift had
operational service brakes and a flashing light. (Tr. 187). Kamanu positioned the boom attached
to the forklift in a manner that did not obstruct his view while driving. (Tr. 190-91). Kamanu
placed cardboard over the broken gauge to keep dirt out of it. (Tr. 197). He always wore gloves
while working at the Mine. (Tr. 194). Respondent’s efforts to avoid injury may make an injury
less likely, but they also show that these defects do affect safety. Complying with safety
measures is necessary because operating heavy equipment is dangerous if safety precautions are
not followed. See Buck Creek Coal, Inc., 52 F.3d 133, 136 (7th Cir. 1995). Although the above
practices make the cited vehicle safer, the absence of a safety precaution, such as an easily
accessible horn to use during an emergency, adversely affects safety.
I find that the conditions described in Citation No. 8689027 presented a violation of
section 56.14100(b). The defective horn and the gauge affect safety. I credit Inspector
Wiedeman’ s testimony that the horn of the forklift is a signaling device that alerts people of the
1

Kaawaloa and Kamanu were employees of Harris Rebar at the time the inspector issued
the citations. It appears that Harris Rebar acquired Consolidated Rebar, retained the services
Kaawaloa and Kamanu, and continued to use Consolidated Rebar’s Mine ID number. The
parties were aware of this relationship and did not raise any issues about it. (Tr. 150).

35 FMSHRC Page 3027

forklift’s presence, especially during an emergency. (Tr. 25). Attempting to maintain control of
the vehicle while trying to touch a wire to a grounding nut could result in the equipment
overrunning a person. (Tr. 25-26). Flashing lights or a spotter may reduce this hazard, but it still
exists. Inspector Wiedeman also stated that the broken glass on the gauge presented a hazard of
causing lacerations to the hands and fingers of miners. (Tr. 27). The piece of cardboard covering
the gauge was not secured to prevent its movement. (Tr. 28-29). These two defects made
crushing and lacerating of miners more likely and the defects existed for days. The cited defects
affected safety and were not corrected in a timely manner, which establishes a violation of
section 56.14100(b).
I find that Citation No. 8689027 was S&S2 because it was reasonably likely that the cited
violation would contribute to a serious injury. The defective horn contributed to the hazard of a
miner being fatally crushed in a collision between the cited vehicle and a pedestrian or another
vehicle. I credit the undisputed testimony of the inspector that the Mt. Pass Mine, owned by
Molycorp, had thousands of contractor employees on site at any given time. (Tr. 15). The areas
where contractors worked, including the cited area, were “saturated” with people. (Tr. 16, 27).
There were many pieces of equipment in the cited area. (Tr. 27). At the time of the inspection,
the mine was on a hillside of different grades with numerous work levels. (Tr. 16). The vehicle
moved between areas of the mine. (Tr. 32-33). The defective horn was reasonably likely to
contribute to an injury because the cited vehicle traveled upon various grades in crowded areas.
In the event the operator lost control of the forklift, the inability to warn equipment or
pedestrians in its path was likely to cause an injury. The defective horn of the forklift,
furthermore, could lead to an injury if the cited vehicle never lost control and was operated with
the utmost care because it lacked the ability to warn operators of other pieces of equipment,
which may be out of control or carelessly driven, of its presence.
I find that Citation No. 8689028 is a violation of section 56.14100(d) because the
violations cited in Citation No. 8689027 were not recorded in a timely manner. Operators are
responsible for the violations of safety standards by foremen. Southern Ohio Coal Co., 4
FMSHRC 1459, 1463-64 (Aug. 1982). The defects were never recorded despite Kamanu’ s
testimony that the foreman knew that they had existed for days. (Tr. 198). Respondent argues
that it did not violate section 56.14100(d) because the operator of the forklift verbally reported
2

An S&S violation is a violation “of such nature as could significantly and substantially
contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d)
(2006). 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 order to establish the S&S nature of a 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 will be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984);
accord Buck Creek Coal Co., Inc., 52 F.3d 133, 135 (7th Cir. 1995); Austin Power Co., Inc., 861
F. 2d 99, 103 (5th Cir. 1988) (approving Mathies criteria).

35 FMSHRC Page 3028

the defects to foreman Kaawaloa.3 Respondent’s argument fails, however, because Respondent
deliberately did not record the defects that were reported to it. The argument that the foreman
knew of the conditions but neither abated nor recorded them does not undermine the violation;
rather, it suggests that a foreman was highly negligent and failed to record conditions because he
knew that the conditions required service but did not stop production to address those conditions.
Citation No. 8689028 is S&S. The underlying conditions alone created hazards that were
reasonably likely to seriously injure miners. The deliberate failure to record or abate violations,
however, is more dangerous than the underlying conditions because in addition to perpetuating
the underlying conditions, it can lead to the creation of additional and more dangerous
conditions. Recording safety defects lessens the likelihood that other hazardous conditions will
arise. The unwillingness of Kaawaloa to record or address hazardous conditions was reasonably
likely to result in an injury of a reasonably serious nature and would likely contribute to the
creation of additional hazardous conditions. Citation No. 8689028 was a violation of section
56.14100(d) that was reasonably likely to contribute to a forklift crushing and killing a miner.
I find that both Citation Nos. 8689027 and 8689028 were the result of Respondent’s high
negligence because its agent, foreman Kaawaloa, admittedly knew of the violations but did not
abate them and affirmatively avoided recording defects. (Tr. 175). Foremen are the agents of the
operator and their negligent actions can be imputed to the operator. Nelson Quarries, Inc., 31
FMSHRC 318, 329 (2009). The failure to address known conditions due to a desire to continue
production is highly dangerous to miners. Not recording conditions is also dangerous, as it
allows those conditions to exist and multiply without abating the hazards. Both conditions
existed for several days and multiple shifts. Both conditions posed serious safety risks.
A penalty of $1,200.00 is appropriate for Citation No. 8689027 and a penalty of $1,200.00
is appropriate for Citation No. 8689028.
B. Citation No. 8689025 and Order No. 8689026
On March 23, 2012, Inspector Wiedeman issued Citation No. 8689025 under section
104(d)(1) of the Mine Act, alleging a violation of section 56.14101(a)(2) of the Secretary’s safety
standards. The citation states, in part, that the parking brake on a Ford F-450 service truck failed
to function when tested. The truck traveled upon multiple grades and in areas with heavy foot
traffic. Kaawaloa knew for at least a week that the parking brake was defective. (Ex. G-1).
Inspector Wiedeman determined that an injury was reasonably likely to occur and that such an
injury could reasonably be expected to be fatal. Further, he determined that the violation was
S&S, the operator’s negligence was high, that one person would be affected, and that the
violation was the result of Respondent’s unwarrantable failure to comply with a mandatory
safety standard. Section 56.14101(a)(2) of the Secretary’s regulations requires, in part, “[i]f
equipped on self-propelled mobile equipment, parking brakes shall be capable of holding the
equipment with its typical load on the maximum grade it travels.” 30 C.F.R. § 56.14101(a)(2).
3

Verbal notice is not sufficient because section 56.14100(d) requires that “[d]efects
…shall be reported to and recorded by the mine operator.” 30 C.F.R. § 56.14100(d) (emphasis
added).

35 FMSHRC Page 3029

The Secretary proposed a penalty of $2,000.00 for this citation.
On March 23, 2012, shortly after issuing Citation No. 8689025, Inspector Wiedeman
issued Order No. 8689026 under section 104(d)(1) of the Mine Act concerning the same
underlying conditions as Citation No. 8689025, alleging a violation of sections 56.14100(d) and
56.14100(a) of the Secretary’s safety standards, in the alternative. The order states, in part, “The
foreman knew the parking brake was not functioning properly and did not record it on the
exam.” (Ex. G-2). Inspector Wiedeman determined that an injury was reasonably likely to occur
and that such an injury could reasonably be expected to be fatal. Further, he determined that the
violation was S&S, the operator’s negligence was high, that one person would be affected, and
that the violation was the result of Respondent’s unwarrantable failure to comply with a
mandatory safety standard. Section 56.14100(a) of the Secretary’s regulations requires, in part
“[s]elf-propelled mobile equipment to be used during a shift shall be inspected by the equipment
operator before being placed in operation on that shift.” 30 C.F.R. § 56.14100(a). Subsection (d)
is set forth above. The Secretary proposed a penalty of $2,000.00 for this order.
Discussion and Analysis
The parking brake cited in Citation No. 8689025 violated section 56.14101(a)(2) because
it was not capable of holding the cited vehicle on the steepest grade it traveled. Although they
disagree about the circumstances of the brake test, Inspector Wiedeman and Kaawaloa agree that
the parking brake was unable to stop the motion of the cited vehicle. (Tr. 43, 171). I credit both
Inspector Wiedeman’s and Kaawaloa’s testimony that the parking brake was defective and I
credit the inspector’s testimony that the brake defect prevented the brake from holding the
vehicle on the steepest grade it traveled.
I find that Citation No. 8689025 was S&S. Respondent argues that the defective parking
brake did not pose a hazard; I disagree. I credit the inspector’s testimony that defective parking
brakes can cause fatalities; MSHA’s “Rules to Live By” fatality prevention list includes section
56.14100 because brake problems are a leading cause of fatalities in mines.
The cited brake defect was reasonably likely to contribute to an injury. Respondent
argues that a defective parking brake is unlikely to cause injury because a vehicle would not
“pop-out of gear,” but defective parking brakes are a leading cause of fatalities in mines
according to the “Rules to Live By.” The cited vehicle, furthermore, traveled upon various
grades. (Tr. 181). The vehicle was likely to stop upon one of those grades. Inspector Wiedeman
testified, and Respondent did not dispute, that the Mine was “saturated” with people, which
increases the likelihood of an injury being suffered in the event of a mishap. (Tr. 16, 27, 49-50).
Respondent’s argument that the safe operation of the vehicle by Kaawaloa meant that the
defective parking brake had no likelihood of contributing to an injury fails. Chocking of tires
and turning wheels into berms should be used in addition to a parking brake. Kaawaloa,
furthermore, admitted that he failed to follow safety regulations by not fixing the brake, which
makes it uncertain that he would adhere to other safety practices. (Tr. 167). The busy area
where the vehicle operated made it reasonably likely that Citation No. 8689025 would contribute
to fatally crushing a miner.

35 FMSHRC Page 3030

I find that Order No. 8689026 was a violation of section 56.14100(d). As stated above,
defective parking brakes affect safety. Kaawaloa and the inspector both testified that Kaawaloa
examined the truck and knew of the condition of the brake, but did not record the defect. (Tr. 4243, 166-167). Kenneth Windham, Respondent’s safety coordinator, also admitted that the
defective parking brake of the cited truck was not documented. (Tr. 145). Respondent argues
that Kaawaloa’s knowledge of the defect undermines the violation, but making a record of
defects found during preoperational examinations is required, even if a foreman is aware of a
particular defect.4
I find that Order No. 8689026 was S&S. Respondent misinterpreted the nature of a
section 56.14100(d) S&S violation. Respondent essentially argues that because the foreman was
aware of the defective parking brake, failing to inspect the vehicle and record defects did not
make the parking brake more likely to injure a miner. A violation of section 56.14100(d),
however, relates to performing proper examinations upon equipment. The parking brake defect
underlies Order No. 8689026 and provides both proof of a failure to record a defect as well as a
specific example of the hazards likely to exist due to failing to properly examine vehicles. The
violation and its S&S designation, however, are based upon the failure to record hazardous
defects found during an examination. Not recording defects increases the likelihood that
dangerous conditions will not be found or repaired, which is why the examination records are
required. Failing to create records of hazardous defects is dangerous. Citation No. 8689026 is
likely to cause a serious injury for the same reasons as Citation No. 8689025, but under
continued normal mining operations Order No. 8689026 is also likely to contribute to an injury
because the failure to record defects can lead to numerous and multiple hazards remaining
unrepaired or unaddressed, as discussed with respect to Citation No. 8689028, above.

4

Respondent’s argument that it did not violate section 56.14100(d) because it is
“irrelevant” whether Kaawaloa recorded the defective brake because he knew that the condition
existed and that it did not affect safety is inaccurate. As stated above, a defective parking brake
does affect safety. The deliberate failure to record defects also affects safety regardless of the
underlying condition because a failure to record any defect can lead to the creation of other
hazardous conditions exposing miners to danger for a longer period of time.

35 FMSHRC Page 3031

I find that both Citation No. 8689025 and Order No.8689026 were the result of
Respondent’s high negligence and unwarrantable failure.5 Respondent’s argument that an
unwarrantable failure designation requires a high degree of danger is inaccurate. Although a
high degree of danger posed by a cited condition is an important factor when considering an
unwarrantable failure designation, it is not a requirement. It is one of several factors that must
be considered in light of the facts of the case. See e.g. Consolidation Coal Co., 22 FMSHRC
340, 353 (Mar. 2000). I find, furthermore, that the cited conditions did pose a high degree of
danger because the failure to record the defective parking brake could contribute to a fatal injury.
Respondent’s foreman admitted that he knew of the defective parking brake and admitted that he
did not record the defect. Both were obvious, Respondent made no effort to abate them, and the
defective brake existed for at least several days. There are no mitigating circumstances. High
negligence and unwarrantable failure designations were designed for situations where an
operator is aware of conditions that pose safety hazards, but chooses to ignore those conditions
for the sake of production, which Respondent's agent admitted was the situation presented here.
The agent demonstrated aggravated conduct because his actions were intentional and reckless.
A penalty of $2,000.00 is appropriate for Citation No. 8689025 and a penalty of $2,000.00
is appropriate for Order No. 8689026.
II. APPROPRIATE CIVIL PENALTIES
Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an
appropriate civil penalty. Respondent has no history of previous violations as set forth in
Exhibit G-17. At all pertinent times, Respondent was a small operator. The violations were
abated in good faith. There was no proof that the penalties assessed in this decision will have an
adverse effect on Respondent’s ability to continue in business. The gravity and negligence
findings are set forth above.

5

Unwarrantable failure is defined by such conduct as “reckless disregard,” “intentional
misconduct,” “indifference” or a “serious lack of reasonable care.” Emery Mining Corp., 9
FMSHRC at 2003; see also Buck Creek Coal, Inc. v. FMSHRC, 52 F. 3d 133, 136 (7th Cir.
1995). Whether conduct is “aggravated” in the context of an unwarrantable failure analysis 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, 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. See e.g. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). 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.
Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992).

35 FMSHRC Page 3032

III. ORDER
For the reasons set forth above, Citation Nos. 8689025 and 8689027 and Order No.
8689026 are AFFIRMED. Citation No. 8689028 is MODIFIED to increase the negligence
from Moderate to High. Consolidated Rebar, Inc., is ORDERED TO PAY the Secretary of
Labor the sum of $6,400.00 within 30 days of the date of this decision.6

/s/ Richard W. Manning
Richard W. Manning
Administrative Law Judge
Distribution:
Bryan Kaufman, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
800, Denver, CO 80202 (Certified Mail)
David W. Donnell, Esq., Robert D. Peterson Law Corporation, 3300 Sunset Boulevard, Suite
110, Rocklin, CA 95677 (Certified Mail)

6

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

35 FMSHRC Page 3033

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
7 PARKWAY CENTER
875 GREENTREE ROAD, SUITE 290
PITTSBURGH, PA 15220
TELEPHONE: (412) 920-2682
FAX: (412) 928-8689

September 17, 2013

MICHAEL E. TRENT,
Complainant,
v.
CEMEX CONSTRUCTION
MATERIALS ATLANTIC, LLC,
Respondent

:
:
:
:
:
:
:
:
:

DISCRIMINATION PROCEEDING
Docket No. SE 2013-213-DM
Case No. SE-MD 13-05

Mine: Knoxville Cement Plant
Mine ID: 40-00840

ORDER GRANTING THE RESPONDENT’S
MOTION FOR SUMMARY DECISION
Appearances:

Michael E. Trent, 2111 Rosewood Road, Knoxville, TN 37924,
Complainant
Michelle C. Whitter, Esq., Jackson Kelly PLLC, 1099 18th St., Suite 2150,
Denver, CO 80202, for Respondent
K. Brad Oakley, Jackson Kelly, PLLC, 175 E. Main St., Suite 500, P.O.
Box 2150, Lexington, KY 40507, for Respondent.

Before:

Judge Andrews

This case is before me upon a discrimination complaint filed by Michael E. Trent
(“Complainant”) pursuant to Section 105(c) of the Federal Mine Safety and Health Act of 1977
(the “Act” or “Mine Act”), 30 U.S.C. § 815(c). Trent is a pro se Complainant. Respondent has
filed a Motion for Summary Decision. Trent has not filed an opposition, and has not responded
to numerous attempts by this court to contact him. For the reasons that follow, the Motion for
Summary Decision is Granted.
Procedural Background
Trent filed a discrimination complaint with the Mine Safety and Health Administration
(MSHA) on November 30, 2012, after he was terminated on August 28, 2012 from his position
in Utility-Production with Respondent. On January 3, 2013, MSHA sent Trent a letter
determining that the facts disclosed during the investigation did not constitute a violation of
Section 105(c). Trent filed an appeal of MSHA’s determination on February 4, 2013, which
became the instant action. The case was repeatedly delayed, at Trent’s request, in order to
provide him time to secure counsel. Trent ceased responding to repeated communications from

35 FMSHRC Page 3034

this Court, and it is presumed that he did not secure counsel. On July 11, 2013, Respondent filed
the instant Motion for Summary Decision. Repeated attempts by this Court to reach Trent by
certified mail, e-mail, and phone went unheeded. However, a signature card signed by Trent
indicates that he received the communications from this court, including a copy of the Motion
and a letter providing an August 1, 2013 deadline to respond in some fashion.
EXHIBITS
Attached to Respondent’s Motion for Summary Decision were a number of exhibits, described
herein:1
Exhibit A is Trent’s Discrimination Complaint, November 30, 2012.
Exhibit B is Trent’s Discrimination Report attached to the Discrimination Complaint. It includes
a handwritten statement of the alleged incident, as well as a 7-page typed statement.
Exhibit C is the January 3, 2013 determination letter from MSHA to Trent.
Exhibit D is the February 4, 2013 appeal by Trent.
Exhibit E is Respondent’s First Set of Discovery Requests.
Exhibit F is Trent’s response to discovery requests.
ISSUES
At issue is whether Trent has alleged a claim of protected activities under Section 105(c)
of the Act.
CONTENTIONS OF THE PARTIES
The Respondent argues that Trent failed to allege a prima facie case of discrimination
under the Mine Act because he failed to describe a protected activity. The Complainant alleges
that he was terminated for improperly performing a task for which he was not task trained.2 RXD. Specifically, Trent alleges that he was fired for violating company policy in regards to the
lock out tag out procedures of the FK pump. Id. He appears to make an argument of pretext and
disparate treatment in alleging that other employees who have similarly violated that policy were
not terminated. Id.

1

All exhibits were submitted by Respondent and will be cited as RX- followed by a

letter.
2

The Complainant did not provide any filings in this matter, so his previous
discrimination filings will serve as his contentions.

35 FMSHRC Page 3035

LAW AND LEGAL AUTHORITY
Commission Rule § 2700.67 permits a party to file a Motion for Summary Decision at
any time after the commencement of a proceeding, provided that it is not within 25 days before
the date chosen for hearing. Such a motion will be granted if there is no genuine issue of
material fact and if the moving party is entitled to summary decision as a matter of law. 29
C.F.R. § 2700.67. As the Commission observed in Hanson Aggregates New York, Inc., 29
FMSHRC 4, (Jan. 2007), (“Hanson”) it “has long recognized that [] ‘[s]ummary decision is an
extraordinary procedure,”’ and [it] has analogized it to Rule 56 of the Federal Rules of Civil
Procedure, under which “the Supreme Court has indicated that summary judgment is authorized
only ‘upon proper showings of the lack of a genuine, triable issue of material fact.”’ Energy West
Mining Co., 16 FMSHRC 1414, 1419 (July 1994) (quoting Missouri Gravel Co., 3 FMSHRC
2470, 2471 (Nov. 1981); Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)).Hanson at *9.
Further, the Commission looks “at the record on summary judgment in the light most favorable
to … the party opposing the motion,” and that “the inferences to be drawn from the underlying
facts contained in [the] materials [supporting the motion] must be viewed in the light most
favorable to the party opposing the motion.” Poller v. Columbia Broadcasting Sys., Inc., 368
U.S. 464, 473 (1962); United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Mindful of the
procedural rule and the Commission's words, the Court concludes that there is no genuine issue
of material fact and that Highland is entitled to summary decision as a matter of law.
Section 105(c) of the Mine Act protects miners from discharge, discrimination, or other
interference of the miner’s exercise of a statutory right. Such statutory rights include, but are not
limited to, filing or making a complaint relating to the Act, making a complaint of an alleged
danger or safety or health violation in a coal or other mine, or institution any proceeding under
the Act against an operator. 30 U.S.C. 815(c)(1).
FACTS
The relevant facts of this case are not in dispute. Trent worked as a production worker for
Cemex. RX-A. He was terminated on August 28, 2012 for violating the company’s Lockout/Tag-out policy. Id. Trent alleges that he was not task trained on the FK pump, but that he did
not object, complain, or refuse to do the task. RX-B. D. Another employee who violated the
policy, Scott Stratton, was not terminated. RX-B.
ANALYSIS
The Mine Act protects miners and applicants for employment from discrimination
motivated by the miner’s protected activity. See Tanglewood Energy, Inc., 19 FMSHRC 833
(May 1997). The Commission has held that a complainant in a discrimination proceeding has
the burden of establishing a prima facie case of discrimination. Sec. of Labor obo David Pasula
v. Consolidation Coal Co., 2 FMSHRC 2786, 2799-2800 (Oct. 1980). In order to establish such
a prima facie case, the complainant must present evidence “sufficient to support a conclusion
that the individual engaged in protected activity and that the adverse action complained of was
motivated in any part by that activity.” Sec. of Labor obo Donald E. Zecco v. Consolidation Coal
Co., 21 FMSHRC 985, 989, (Sept. 1999). Though the prima facie case requirement is minimal,

35 FMSHRC Page 3036

the complainant must present some facts upon which the trier of fact can find retaliation. The
Commission has stated:
To make out a prima facie case of discrimination, the complainant need only “present[]
evidence sufficient to support a conclusion that the individual engaged in protected
activity and that the adverse action complained of was motivated in any part by that
activity.” See Driessen, 20 FMSHRC at 328 (emphasis added). This burden of proof is
lower than the ultimate burden of persuasion, which the complainant must sustain as to
the overall question of whether section 105(c)(1) has been violated. See EEOC v. Avery
Dennison Corp., 104 F.3d 858, 861 (6th Cir. 1997) (holding that “[t]here must be a lower
burden of proof to sustain a prima facie case than to win a judgment on the ultimate issue
of discrimination”); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981) (holding that “the burden imposed on a plaintiff at the prima facie stage is not
onerous”); McGuinness v. Lincoln Hall, 263 F.3d 49, 53 (2d Cir. 2001) (stating that the
burden of establishing a prima facie case of discrimination is “minimal”) (citing St.
Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993); Young v. Warner-Jenkinson
Co., Inc., 152 F.3d 1018, 1022 (8th Cir. 1998) (“‘The prima facie burden is not so
onerous as, nor should it be conflated with, the ultimate issue’ of discriminatory
action.”).6 To establish a prima facie case, it is sufficient that the alleged discriminatee
present evidence from which the trier of fact could infer retaliation. See Young, 152 F.3d
at 1022 (concluding that plaintiff “produced evidence sufficient to raise an inference of
discrimination”); see also Long v. Eastfield College, 88 F.3d 300, 304-05 n.4 (5th Cir.
1996) (stating that at prima facie stage, plaintiff need not prove that protected activity
was sole factor motivating employer's challenged decision; “[t]he ultimate determination
… is whether the conduct protected … was a ‘but for’ cause of the adverse employment
decision”).
Jayson Turner v. National Cement Co. of California, 33 FMSHRC 1059, 1065 (May 2011). In
the instant case, Trent has failed to meet even that minimal burden.
The Mine Act seeks to protect miners to refuse work that he believes would expose him
to an identifiable danger. Mountain Top Trucking Co., Inc., 1997 WL 34994, *23 (ALJ) (Jan.
1997). In the instant case, Trent could have refused to perform the task that he was not trained to
perform, or he could have complained. Had he engaged in either of these choices, his actions
would be protected. However, Trent performed the task, and when he did so in violation of a
company policy he was terminated. “Any claim of protected activity that is not grounded on an
alleged violation of a health or safety standard or which does not result from some hazardous
condition or practice existing in the mine environment for which the operator is responsible falls
without the penumbra of the statute. Sec. of Labor obo Danny H. Bryant v. Clinchfield Coal Co.,
4 FMSHRC 1379, 1421 (July 1982)(ALJ). According to the undisputed facts, there was no
protected activity.
Trent appears to argue that other miners who similarly violated the policy were not
terminated. Had Trent engaged in protected activity, this fact could be evidence of disparate
treatment or pretext. However, in the instant case, it does not violate Section 105(c) of the Act.

35 FMSHRC Page 3037

Because Trent has not alleged a protected activity, he has not met his burden of
presenting a prima facie case of discrimination. Wherefore, the Respondent’s Motion for
Summary Decision is GRANTED.
ORDER
It is ORDERED that the Respondent’s Motion for Summary Decision is GRANTED.

/s/ Kenneth R. Andrews
Kenneth R. Andrews
Administrative Law Judge

Distribution:
Michael E. Trent, 2111 Rosewood Road, Knoxville, TN 37924, Complainant
Michelle C. Whitter, Esq., Jackson Kelly PLLC, 1099 18th St., Suite 2150, Denver, CO 80202,
for Respondent
K. Brad Oakley, Jackson Kelly, PLLC, 175 E. Main St., Suite 500, P.O. Box 2150, Lexington,
KY 40507, for Respondent.
/mzm

35 FMSHRC Page 3038

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

September 18, 2013
OAK GROVE RESOURCES, LLC,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner
v.
OAK GROVE RESOURCES, LLC,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner

:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:

MIKE SUMPTER, employed by,
OAK GROVE RESOURCES, LLC,
Respondent

:
:
:
:
:
:
:
:
:
:

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

:
:
:
:

v.

CONTEST PROCEEDINGS
Docket No. SE 2010-349-R
Order No. 6698829; 01/06/2010
Docket No. SE 2010-353-R
Order No. 6698828; 01/06/2010
Mine: Oak Grove Mine
Mine ID 01-00851
CIVIL PENALTY PROCEEDING
Docket No. SE 2010-828
A.C. No. 01-00851-220638

Mine: Oak Grove
CIVIL PENALTY PROCEEDING
Docket No. SE 2012-306
A.C. No. 01-00851-281172-A

Mine: Oak Grove

CIVIL PENALTY PROCEEDING
Docket No. SE 2012-308
A.C. No. 01-00851-281172-A

35 FMSHRC Page 3039

v.
REX HARTZELL, employed by,
OAK GROVE RESOURCES, LLC,
Respondent

:
:
:
:
:
:

Mine: Oak Grove

DECISION
Appearances: Thomas Grooms, U.S. Department of Labor, Nashville, Tennessee, on behalf of
the Secretary of Labor;
R. Henry Moore, Jackson Kelly, PLLC, Pittsburgh, Pennsylvania, on behalf of
Oak Grove Resources, LLC, Mike Sumpter and Rex Hartzell
Before:

Judge Zielinski

These cases are before me upon Notices of Contest and Petitions for Assessment of
Penalty filed by the Secretary of Labor pursuant to sections 105(d) and 110(c) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815(d) and 820(c). The petition in SE 2010828 alleges that Oak Grove Resources, LLC, is liable for four violations of the Secretary’s Safety
Standards for Underground Coal Mines, and proposes the imposition of civil penalties in the
amount of $182,000.00. The petition in SE 2012-306 alleges that Mike Sumpter, an agent of Oak
Grove, is personally liable for two violations of the standards, and proposes the imposition of
civil penalties in the amount of $14,300.00. The petition in SE 2012-308 alleges that Rex
Hartzell, an agent of Oak Grove, is personally liable for two violations of the standards, and
proposes the imposition of civil penalties in the amount of $14,100.00. A hearing was held in
Birmingham, Alabama, and the parties filed post-hearing briefs.
In mid-December 2009 and early January 2010, due to a combination of circumstances,
excessive water accumulated in a bleeder system used by Oak Grove to ventilate the gob of an
active longwall panel and a number of worked-out panels. The water, and a roof fall on the
headgate side of the active panel, prevented required examinations of the bleeder entries. On
January 6, 2010, an MSHA inspector issued four withdrawal orders based on conditions in the
bleeder. Oak Grove promptly filed Notices of Contest of three of the orders pursuant to
section 105 of the Act. An expedited hearing was held on its contest of Order No. 6698830,
which curtailed mining on its 11-East longwall panel. The hearing was held in Birmingham,
Alabama on January 26-28, 2010, and a bench decision was issued at the close of the hearing
sustaining the order in all respects.1 A written decision was issued on February 12, 2010,

1

Pursuant to the parties’ stipulation, the record compiled in the 2010 proceeding has
been made a part of the record in this proceeding. Stip. 8. The record consists of the transcript
of the 2010 hearing, the transcript of the 2013 hearing and the exhibits introduced at the 2010
(continued...)

35 FMSHRC Page 3040

dismissing Oak Grove’s contest. Oak Grove Resources, LLC, 32 FMSHRC 169 (Feb. 2010)
(ALJ). Oak Grove’s petition for review was granted by the Commission, which affirmed the
decision. Oak Grove Resources, LLC, 33 FMSHRC 2657 (Nov. 2011). That decision has
become final, and the validity of Order No. 6698830 as to Oak Grove has been established.
Remaining for decision are Oak Grove’s contests of civil penalties assessed for the three
remaining orders, the amount of the civil penalty to be imposed on Oak Grove for the violation
charged in Order No. 6698830, and Sumpter’s and Hartzell’s contests of the assessments and
petitions filed against them. For the reasons that follow, I find that Oak Grove committed two of
the three remaining violations, and impose civil penalties in the total amount of $61,000.00
against the operator. I find that Mike Sumpter and Rex Hartzell are each liable under section
110(c) for one violation and impose civil penalties in amounts of $3,500.00 and $2,500.00 against
them respectively.
Findings of Fact - Conclusions of Law
Oak Grove Resources operates the Oak Grove Mine, an underground coal mine, in
Jefferson County, Alabama. A substantial amount of its coal production is obtained through
operation of longwall mining equipment, and it has mined a number of longwall panels in the East
section of the mine, served by the Main East Bleeder system. In December of 2009, Oak Grove
experienced problems with excessive water in the bleeder entries. Efforts to control the water and
maintain the travelability of the bleeder entries were proving inadequate. In mid-December, parts
of the bleeder became inaccessible, which prevented examination and monitoring of the system
required by the Secretary’s regulations and Oak Grove’s approved ventilation plan. Efforts to
address the water problems were further frustrated by MSHA’s issuance of orders preventing
further work pending resolution of impermissible atmospheric conditions behind seals in another
area of the mine. MSHA conducted an inspection of the bleeder system on January 6, 2010,
during which the four withdrawal orders at issue in these proceedings were issued.
The panel being mined when the challenged enforcement actions were taken was
designated “11 East LW38" which, at the time, was the north-most of a series of panels mined in
that section. The panel ran in an east-west direction. Mining commenced at the east end on
March 2, 2009, and had proceeded west approximately 6,000 feet by December 15, 2009. The
mined-out area of the 11-East panel, the “gob,” was ventilated by the Main East Bleeder system,
the primary component of which was the No. 6 fan, located off the northeast corner of the panel.
That centrifugal exhaust fan also provided ventilation for fourteen or more other mined-out
longwall panels through lengthy bleeder entries that ran from the end of the track entry, to the
east and then north behind (east of) the old panels. The bleeder system is depicted in a number of
exhibits, notably, Government Exhibit No. 35. The bleeder entry was accessed from the track
entry. There was a low roof in the first part of the bleeder system, and it had to be traversed

1

(...continued)
hearing, as supplemented for the 2013 hearing. Transcript citations to the 2013 hearing
transcript.

35 FMSHRC Page 3041

largely by “duckwalking.” It took the better part of a shift to travel the bleeder entry from the end
of the track to Measuring Point Location (“MPL”) No. 781, a bleeder examination point near the
southeast corner of the 11-East panel. Prior to January 6, 2010, persons traveling in the bleeder
entry had no ability to communicate with the surface or miners in other locations of the mine.
The Oak Grove mine liberated in excess of one million cubic feet of methane in a 24-hour
period, and was subject to spot inspections by MSHA pursuant to section 103(i) of the Act.
30 USC § 813(i). Mined-out areas, like the 11-East gob, continue to generate methane, and must
be ventilated “so that methane-air mixtures and other gases, dusts, and fumes from throughout the
worked-out areas are continuously diluted and routed into a return air course or to the surface of
the mine.” 30 C.F.R. § 75.334(a)(1). The ventilation system for mined-out areas must be
examined in its entirety at least every seven days. 30 C.F.R. § 75.364(a). Part of the weekly
examination must include:
At least one entry of each set of bleeder entries used as part of a bleeder system
under § 75.334 shall be traveled in its entirety. Measurements of methane and
oxygen concentrations and air quantities and a test to determine if air is moving in
the proper direction shall be made at the measurement point locations specified in
the mine ventilation plan to determine the effectiveness of the bleeder system.
30 C.F.R. § 75.364(a)(2)(iii).
If the bleeder system used does not continuously dilute and move methane-air
mixtures and other gases, dusts, and fumes away from worked-out areas into a
return air course or to the surface of the mine, or it cannot be determined by
examinations under § 75.364 that the bleeder system is working effectively, the
worked-out area shall be sealed.
30 C.F.R. § 75.334(d).
Oak Grove had positioned pumps in the bleeder entries to control water accumulations. It
began to experience problems with the pumps around mid-December, 2009. By the end of the
month, the problems had grown, and there were significant accumulations of water in low spots of
the bleeder entries that prevented access to MPLs that were required to be examined to evaluate
the effectiveness of the bleeder system.2 On December 30, 2009, an MSHA inspector issued a
citation to Oak Grove for failing to make bleeder examinations required by section
75.364(a)(2)(iii). On January 1, Oak Grove initiated efforts to drill bore holes down to the
bleeder entries near the rear of the 11-East panel to provide electrical power for more powerful
pumps, communication lines, and additional compressed air capacity.

2

Oak Grove’s efforts to repair and replace pumps were stymied by several orders issued
by MSHA barring miners from going underground in those areas. The orders related to
dangerous atmospheres behind seals located several miles from the 11-East panel.

35 FMSHRC Page 3042

On January 4 Oak Grove began to operate the longwall in the 11 East panel, despite the
continued inability to reach MPLs and evaluate the effectiveness of the bleeder system, as
required by section 75.364(a)(2)(iii). Oak Grove ostensibly believed that an alternative method of
evaluating the effectiveness of the bleeder system had shown that it was operating effectively.
On January 5, 2010, Edward Boylen, an MSHA inspector, commenced a regular
inspection of the Oak Grove mine. He met with mine officials, reviewed records, and became
aware that there had been roof falls in the bleeder entries on the headgate side of the 11-East
panel and water accumulations in the lengthy tailgate side of the bleeder system. He decided to
travel to the longwall and conduct a spot methane inspection, but did not complete it. When he
exited the mine, he examined charts of pressure measurements at the No. 6 exhaust fan, and found
that the pressure differential had increased by more than 50% since December 15, 2009,
indicating that there were significant restrictions in the bleeder system’s air flow. That same day,
members of the United Mine Workers of America, the union representing miners at Oak Grove,
met with MSHA officials and expressed concerns about the safety of miners who were involved
in efforts to pump water from the bleeder system.3
MSHA was very concerned about information reported by the Union members about
conditions in the bleeder entries. MSHA phoned Oak Grove on January 5 and informed it that the
longwall should not be in production. Oak Grove called back to discuss the issue, and questioned
MSHA’s authority to impose such a condition in the absence of any official enforcement action.
Joseph O’Donnell, Jr., assistant district manager for MSHA’s District 11, then advised Oak Grove
to “forget” the earlier call, and stated that MSHA would see them in the morning. Oak Grove
operated the longwall on the evening shift on January 5 and the owl shift on January 6.
On the morning of January 6, 2010, Boylen and Jacky Shubert, an MSHA field office
supervisor, arrived at the mine to conduct an inspection of the bleeder system. They met with
Oak Grove officials, examined records of weekly bleeder examinations and noted that a complete
examination had last been accomplished on December 14, 2009. Ex. G-9. The records reflected
that the mine had been idle on December 21 due to an order related to the seal problem. The
records of examinations on December 29 and January 4 reflected that two MPLs on the headgate
side of the 11-East panel could not be examined because the entries were impassible due to a roof
fall, and that no measurements had been taken at nine other MPLs established in Oak Grove’s
approved ventilation plan. Oak Grove managers readily acknowledged that required
measurements had not been taken at 11 MPLs since December 14.
Shubert and Boylen traveled to the South end of the Main East Bleeder system, and began
to walk up the bleeder entry. They encountered two areas where roof material had spalled from
around roof bolts, leaving the plates up to six inches away from contact with the roof. At 10:15
a.m., Boylen issued Order No. 6698828, charging Oak Grove with a roof control violation. As

3

Oak Grove officials also met with MSHA on January 5, on a variety of topics. The
meeting was not related to the UMWA’s meeting, and Oak Grove officials were unaware of the
other meeting.

35 FMSHRC Page 3043

the inspection proceeded, accumulations of water were found in five locations that were
determined to present unsafe travel conditions. One accumulation, at MPL 476, was waist-tochest-deep for a distance as far as a cap light would shine. Boylen and Shubert decided not to
proceed further. That afternoon, Boylen issued Order No. 6698829, for unsafe travel conditions
posed by the water accumulations; Order No. 6698830, for failing to seal the worked-out areas
and operating the longwall, when required examinations to evaluate the effectiveness of the
bleeder system had not been conducted; and Order No. 6698831for failing to conduct proper
preshift examinations of the areas where miners were traveling and working in the bleeder
system. The orders were issued pursuant to section 104(d)(2) of the Act, and charged that the
violations were the result of Oak Grove’s unwarrantable failures to comply with the standards.4
Docket No. SE 2010-828 - Violations charged against Oak Grove
Order No. 6698828
Order No. 6698828 was issued by Boylen5 at 10:15 a.m. on January 6, 2010, pursuant to
section 104(d)(2) of the Mine Act. It alleges a violation of 30 C.F.R. § 75.202(a) which states,
“[t]he roof, face and ribs of areas where persons work or travel shall be supported or otherwise
controlled to protect persons from hazards related to falls of the roof, face or ribs and coal or rock

4

Section 104(d)(2) of the Act provides:
(2) If a withdrawal order with respect to any area in a coal or other

mine has been issued pursuant to paragraph (1), a withdrawal order
shall promptly be issued by an authorized representative of the
Secretary who finds upon any subsequent inspection the existence
in such mine of violations similar to those that resulted in the
issuance of the withdrawal order under paragraph (1) until such
time as an inspection of such mine discloses no similar violations.
Following an inspection of such mine which discloses no similar
violations, the provisions of paragraph (1) shall again be applicable
to that mine.
The underlying section 104(d)(1) withdrawal order had been issued on October 21, 2003, and
Oak Grove had not experienced a “clean” inspection since that date. Consequently, it remained
on the section 104(d)(2) “chain.” Ex. G-5, G-6.
5

Boylen had considerable mining experience involving design, set-up and operation of
longwall mining systems. However, he had limited experience as an MSHA inspector, having
received his authorized representative card approximately two months prior to the inspection.
Tr. 58.

35 FMSHRC Page 3044

bursts.” The violation was described in the “Condition and Practice” section of the citation as
follows:6
The roof, face and ribs of the areas where persons work or travel shall be
supported or otherwise controlled to protect persons from hazards related to falls
of the roof, face or ribs and coal or rock bursts. Areas located in the Main East
Bleeders were observed to not have been safely supported for travel by miners in
the following locations: (1) In the 4 East panel area in the No. 4 entry, along the
barrier pillar, an area of 30 feet has 7 bolts that have no contact with the roof since
the roof material has spalled from around the plates and is unsupported; (2) Two
blocks inby the above, also in the Main East Bleeders, the center of the entry is
unsupported because 12 bolts have no support around the roof plates. The roof is
unsupported for a distance of approximately 40 feet. In these two areas, there are
deteriorated roof plates. Certified Examiners have examined this area each shift
and miners have traveled this way for at least 10 shifts. The mine operator has
engaged in aggravated conduct constituting more than ordinary negligence by
allowing employees to travel in this area. This violation is an unwarrantable
failure to comply with a mandatory standard.
Ex. G-39.
Boylen determined that the violation was highly likely to cause a permanently disabling
injury, that it was significant and substantial, that two persons were affected, and that the
operator’s negligence was high, and rose to the level of unwarrantable failure. A civil penalty in
the amount of $38,500.00 was specially assessed for the violation.
The Violation
During the inspection of the Main East bleeder system, Boylen and Shubert were
accompanied by Larry Pasquale, an Oak Grove safety representative, Kenny Nichols, an Oak
Grove foreman, and Randy King, a miners’ representative with the United Mine Workers of
America. They rode on a track-mounted vehicle to the track terminus, and traveled on foot from
that point. The first 1,500 feet of the bleeder had a relatively low roof, which required crawling,
or duck walking; very strenuous travel.
After entering the bleeder and proceeding through the low section, they encountered a
crew of third-shift miners on their way out, who had stopped to rest before traveling through the
low area. They related that another MSHA inspector had been in the bleeder a few days earlier,
and had instructed that the route of travel through the bleeder system should be marked. Tr. 37.
In response to that instruction, reflective tape had been hung from roof bolts, marking the travel

6

Grammar and spelling errors have been corrected in quotations from documents
prepared in the field, and post-issuance modifications have been included where appropriate.

35 FMSHRC Page 3045

route. Boylen inquired why the miners appeared to be wet, and one responded that “you’d be wet
too if you had to walk through water up to your neck.” Tr. 39. Nichols, verified that miners had
to travel through deep water to reach the newly installed bore hole where work was being done to
connect electric, air and communication lines.
After proceeding a considerable distance, to an area behind an old panel designated
“3 East LW22", Boylen observed seven roof bolts that he believed were not effectively
supporting the roof. Ex. G-35. The plates on the bolts were not in contact with the mine roof,
because 4 to 6 inches of material had spalled away from the roof, exposing the shafts of the bolts.7
Tr. 43-45. Oak Grove’s roof control plan required that four bolts be installed across the 20-foot
wide entry, in rows spaced 5 feet apart. The subject bolts were near the center of the entry, in
different rows, and the condition extended for 30 feet. Boylen estimated that 30% of the area was
not properly supported. Tr. 45. Material had also spalled from the ribs, and was lying on the
mine floor, 2 to 3 feet out from the ribs. Approximately two breaks further inby, Boylen
encountered a similar condition. There were 12 similarly defective bolts near the center of the
entry in an area that extended for 40 feet. He noticed marks on the floor where something had
been dragged through, and was told that a 13 horsepower pump had been brought in to address
the water problems. Tr. 48. It had been dragged down the center of the entry because of the
debris near the ribs. Boylen marked the areas on a map of the mine. Tr. 33; Ex. 35.
The material that had spalled from the ribs made walking next to the ribs difficult.
Because of the reflective tape, and the rib spalling, Boylen believed that the route most miners
would have taken through the entry would have placed them under the subject bolts. Tr. 46.
Boylen did not make any detailed notes or sketches of the layout of the bolts he was concerned
with. However, he conceded that miners could pass through the areas without traveling under the
subject bolts. Tr. 61. He and the rest of the inspection party traveled through both areas, and
passed through again on their way out of the bleeder. Tr. 60, 67.
Based on the overall conditions he observed, Boylen believed that the roof in the areas
where the subject bolts were located was not supported or otherwise controlled to protect miners
from falls of the roof.
Oak Grove contends that the fact that the bolt plates were not in contact with the roof did
not render the support inadequate. The area had been mined many years earlier, most likely in the
1990s, and, over time, roof material had spalled from around the bolts. Other roof control issues
had prompted the installation of cribs and timbers in some areas of the bleeder entries, but not at
the specific locations cited. There was no freshly fallen roof material on the floor of the mine,
and the roof and bolts had most likely been in that condition for a considerable period of time.
Boylen knew that the area had been mined 10 to 15 years earlier, and recorded in his field notes
that the conditions had existed for “a long period of time - months.” Ex. G-3 at 12. The bleeder

7

The term “spall,” in this context, means “[t]o break off in layers parallel to the
surface.” American Geological Institute, A Dictionary of Mining, Mineral and Related Terms
168 (2d ed. 1996) at 524.

35 FMSHRC Page 3046

was inspected by MSHA every quarter, and the conditions would have existed during recent
MSHA inspections. The crew that Boylen encountered in the bleeder had informed him that
another MSHA inspector, identified as Tim Foster, had been in the bleeder only a few days
earlier. Tr. 37. Pasquale and Rex Hartzell confirmed Foster’s travel through the bleeder on or
about December 28, 2009. Tr. 170, 182, 231. Foster had instructed Oak Grove to mark the travel
route through the bleeder with reflective tape, but had not issued a citation for the roof conditions.
Pasquale, who may have installed some of the original roof bolts, explained that the
condition develops over time as flakes of coal fall or spall away from the roof after it is exposed
to the atmosphere, and that the roof had been in that condition “for a good while.” Tr. 159. In
response to a question about the nature of the material of the mine roof, he replied that it was
basically “little flakes of coal. No big lumps had fallen out, no pots or kettle bottoms . . . .
Nothing like that.” Tr. 183. He had walked the bleeder with MSHA inspectors on quarterly
inspections, and stated that the roof was in the same condition as when he went through on an
MSHA inspection at the end of October or early November. Tr. 170, 182. There was no “fresh”
material that had fallen from the roof; and the material on the mine floor had been “walked on”
during weekly examinations. Tr. 182.
Under normal conditions, the bleeder is traveled only once per week, by an examiner, who
should be looking for hazardous conditions and should be able to identify conditions such as
those that Boylen described as obvious. However, from mid-to-late December, and especially in
early January after the seal problem was resolved, crews of rank-and-file miners were working
deep in the bleeder installing pumps and making the connections of the electric, air and
communication lines run down through the bore hole to increase Oak Grove’s capacity to deal
with water. Travel into the work site was arduous, and took several hours one-way. Miners
traveling to the workplace, and especially those traveling out after having worked a shift, would
have been exhausted and unlikely to have been paying close attention to surrounding conditions
like the roof and ribs.
In Canon Coal, Co., 9 FMSHRC 667, 668 (April 1987) (cited in Harlan Cumberland Coal
Co., 20 FMSHRC 1275, 1277 (Dec. 1998)), the Commission held that:
Questions of liability for alleged violations of this broad aspect of this standard
[the precursor to the present section 75.202(a)] are to be resolved by reference to
whether a reasonably prudent person, familiar with the mining industry and the
protective purpose of the standard, would have recognized that hazardous
condition that the standard seeks to prevent. Specifically, the adequacy of
particular roof support or other control must be measured against the test of
whether the support or control is what a reasonably prudent person, familiar with
the mining industry and protective purpose of the standard, would have provided
in order to meet the protection intended by the standard. We emphasize that the
reasonably prudent person test contemplates an objective – not subjective –
analysis of all the surrounding circumstances, factors, and considerations bearing
on the inquiry in issue. (citations omitted)

35 FMSHRC Page 3047

In an enforcement proceeding under the Act, the Secretary has the burden of proving all
elements of an alleged violation by a preponderance of the evidence. In re: Contests of
Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995), aff’d, Sec’y
of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096 (D.C. Cir. 1998); ASARCO Mining Co.,
15 FMSHRC 1303, 1307 (July 1993); Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152
(Nov. 1989); Jim Walter Resources, Inc., 9 FMSHRC 903, 907 (May 1987). Oak Grove contends
that the Secretary has not carried his burden of proving that the conditions violated the standard.
The bolts in question were 4 to 8 foot fully grouted bolts. Fully grouted bolts form a beam
of support for the main mine roof, when the resin, or glue, around the shaft of the bolts hardens.
Unlike tension bolts, the plate is not forced up against the roof.8 It provides support only for the
“skin” of the roof that it is in contact with, a very small percentage of the exposed roof area. The
glued-in shaft of the bolt provides the primary roof support.9 Boylen generally agreed. Tr. 68-69.
He obviously was concerned more with skin control of the roof, because his determination that
likely injuries would consist of fractures, contusions and sprains, does not appear to have been
premised upon a fall of the main mine roof.10 Tr. 54; Ex. G-3 at 13.
The critical question is whether the condition of the skin, or immediate mine roof was
such that additional roof control measures were necessary to protect persons from hazards related
to falls of roof material. Pasquale credibly described material that might fall from the mine roof
as little flakes of coal. There were no lumps, pots, kettle bottoms, or other larger pieces that
might cause injury. Boylen did not offer a markedly different description of the roof conditions.
While he believed that the roof was failing, that opinion was a generalized evaluation of the
overall condition of the roof, as he observed it from the time he entered the bleeder. Tr. 50-51.
He did not note the presence of broken or cracked material, or any other defects in the subject
area that posed a hazard. His sole focus appears to have been on the fact that the plates were no
longer in contact with the roof. Tr. 43; Ex. G-3 at 9-10. At least two MSHA inspectors had been
through the bleeder within the past two months, when virtually the same conditions would have
existed, and neither identified them as a hazard. It is likely that the conditions, or substantially
similar conditions, had existed for years, and that several MSHA inspectors had observed them

8

Tension bolts are anchored at their point of deepest penetration, and torque is applied
forcing the plate against the mine roof. The upward pressure of the plate supplies the main roof
support. Where a plate on a tension bolt is no longer in contact with the roof, virtually no roof
support is provided and the bolt is nothing more than a steel rod hanging down in the drilled
hole. See American Coal Co., 35 FMSHRC ___ (June 13, 2013) (ALJ) (slip opinion at 9).
9

Pasquale related that the roof bolt manufacturer had advised him that after the resin
had hardened around the bolt it really didn’t matter whether the plate was there or not, a
proposition that some MSHA inspectors had found humorous. Tr. 161-62, 184.
10

Boylen did not know the length of the bolts that had been installed. Tr. 70. He did
not opine that the spalling of 4 to 6 inches of material rendered the bolts inadequate from a
length standpoint.

35 FMSHRC Page 3048

without taking action. Nor had the conditions been reported as hazardous by certified persons
conducting weekly examinations of the bleeder system.
I find that the Secretary has not met her burden of proving that a reasonably prudent
person, familiar with the mining industry and protective purpose of the standard, would have
provided additional support to the mine roof in the areas cited in order to meet the protection
intended by the standard.11 Accordingly, I find that the standard was not violated.
Order No. 6698829
Order No. 6698829 was issued by Boylen at 1:47 p.m. on January 6, 2010, pursuant to
section 104(d)(2) of the Mine Act. It alleges a violation of 30 C.F.R. § 75.370(a)(1), which
requires that mine operators develop and follow a ventilation plan approved by the MSHA district
manager. The violation was described in the “Condition and Practice” section of the citation as
follows:
The mine operator did not follow the Ventilation Plan submitted by the mine
operator and approved by the MSHA District Manager on January 14, 2009. Page
1, Item D(3) of the ventilation plan states, “Bleeder Entries will be maintained and
water will be pumped to maintain free air flow and safe travel.” Water causing
unsafe travel was observed in the following locations: (1) In the Main East Bleeder
Entry, between 4 East and 5 East, old longwall panels in the No. 4 entry, there
existed water for a distance of approximately 400 feet in length and 28 inches
deep. The water was mucky and black in color with tripping hazards laying in the
water that could not be seen. (2) Water was also allowed to accumulate inby 2
blocks of MPL 423 between the 5th and 6th East Old Panels. The water was 100
feet in length and 24 inches deep. The water was mucky and black in color with
tripping hazards laying in the water that could not be seen. (3) Water was allowed
to accumulate 3 blocks inby MPL 423, in the No. 4 entry of the Main East
Bleeders. The water was 50 feet in length and 24 inches deep. The water was
mucky and black in color with tripping hazards laying in the water which could not
be seen. (4) The water was also found 4 blocks inby the MPL 423, in the No. 4
entry. The water was 100 feet in length and 26 inches deep. The water was mucky
and black in color with tripping hazards that could not be seen. (5) Water was also
allowed to accumulate at MPL 476 in the Main East Bleeders, in the No. 4 entry.
The water was waist to chest deep for a distance as far as a cap light would shine.
The water was black in color and mucky. Certified Mine Examiners have
examined this travel way each shift and miners have traveled this way for at least
10 shifts. The mine operator has engaged in aggravated conduct constituting more

11

A similar issue was presented in Big Ridge, Inc., 34 FMSHRC 2668, 2682-85 (Oct.
2012) (ALJ). There, I found that the immediate mine roof in an area where material had spalled
away from between roof bolt plates was broken and cracked, and was not adequately supported
or controlled, in violation of the standard.

35 FMSHRC Page 3049

than ordinary negligence by allowing employees to travel in this area. This
violation is an unwarrantable failure to comply with a mandatory standard.
Ex. G-1.
Boylen determined that the violation was highly likely to cause a permanently disabling
injury, that it was significant and substantial, that two persons were affected, and that the
operator’s negligence was high. He also determined that the operator’s negligence rose to the
level of unwarrantable failure. A civil penalty in the amount of $38,500.00 was specially
assessed for the violation.
The Violation
Oak Grove’s approved ventilation plan provided, in pertinent part, that “[w]ater will be
pumped [from bleeder entries] to maintain free airflow and safe travel.” Ex. G-7. Boylen
encountered significant accumulations of water in the bleeder at five locations, including inby
MPL 476, where it was chest-deep.12 He described the water in all locations as black and mucky,
and there were stumbling hazards such as rocks, cement blocks, and pieces of wood and line
curtain. Tr. 77-78, 96. Nichols told him that he had traveled through the water, and had fallen
and lost his false teeth. Tr. 91.
Oak Grove did not present any evidence disputing Boylen’s description of the water
accumulations. In defense of the violation, it advances a novel argument that the plan provision
does not require that safe passage be maintained at all times, but, rather, it “expresses a purpose
or movement towards a goal, not necessarily achievement of the goal.”13 Resp. Br. at 28. The
argument is rejected. I find no ambiguity in the plan language. It requires that water be pumped
to maintain safe travel at all times. The word “maintained” is included in numerous standards,
and has been consistently interpreted as imposing an ongoing obligation, e.g., that warning
devices on mobile equipment be “capable of performing on an uninterrupted basis and at all
times.” Nally & Hamilton Enterprises, Inc., 33 FMSHRC 1759, 1763 (Aug. 2011) (emphasis in
original).

12

The depth of the water, as reflected in the order, exceeded MSHA’s informal
guideline that tolerated water as long as it did not exceed the height of typical boots, i.e., just
below knee level. Tr. 112.
13

It is unfortunate that this argument was not advanced in open court, where it would
have had to pass the proverbial “straight face” test.

35 FMSHRC Page 3050

The water accumulated in the bleeder entries presented a hazard to safe travel because of
its murkiness and concealed stumbling hazards. The standard was violated.14
Significant & Substantial
The Commission reviewed and reaffirmed the familiar Mathies15 framework for
determining whether a violation is S&S in Cumberland Coal Res., 33 FMSHRC 2357, 2363-65
(Oct. 2011):
The S&S terminology is taken from section 104(d) of the Mine Act, 30
U.S.C. § 814(d), and refers to more serious violations. A violation is S&S if,
based on the particular facts surrounding the violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature. See Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822,
825 (Apr. 1981). In Mathies, 6 FMSHRC 1, 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. 1999); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th
Cir. 1988) (approving Mathies criteria). An evaluation of the reasonable
likelihood of injury should be made assuming continued normal mining operations.
See U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985). The Commission
has emphasized that it is the contribution of a violation to the cause and effect of a
hazard that must be significant and substantial. U.S. Steel Mining Co., 6 FMSHRC
1834, 1836 (Aug. 1984).
....
....

14

Water had also accumulated in other areas of the bleeder, rendering them impassible.
Ex. C-9. While safe travel through such areas was not maintained, the impassible areas did not
present hazards to miners traveling the bleeder. Boylen’s focus was on flooded areas that were
passable, and were being traveled by miners.
15
Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984).

35 FMSHRC Page 3051

The Commission recently discussed the third element of the Mathies test in
Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1280-81 (Oct.
2010) (“PBS”) (affirming an S&S violation for using an inaccurate mine map).
The Commission held that the “test under the third element is whether there is a
reasonable likelihood that the hazard contributed to by the violation, i.e., [in that
case] the danger of breakthrough and resulting inundation, will cause injury.” Id.
at 1281. Importantly, we clarified that the “Secretary need not prove a reasonable
likelihood that the violation itself will cause injury.” Id. The Commission
concluded that the Secretary had presented sufficient evidence that miners who
broke through into a flooded adjacent mine would face numerous dangers of
injury. Id. The Commission also emphasized the well-established precedent that
“the absence of an injury-producing event when a cited practice has occurred does
not preclude a determination of S&S.” Id. (citing Elk Run Coal Co., 27 FMSHRC
899, 906 (Dec. 2005); and Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853,
857 (June 1996)).
A violation of a safety standard has been established. It contributed to a hazard,
that a miner attempting to travel through the bleeder entry would trip or slip and fall and
suffer an injury. Whether the violation was S&S turns on whether an injury was
reasonably likely to result from the hazard contributed to and whether it would have been
reasonably serious.
Oak Grove also advances novel arguments on the S&S issue. It contends that,
since the provision is in the ventilation plan, it “must necessarily be directed to ventilation
hazards and a S&S finding should not be based on stumbling hazards.” Resp. Br. at 3233. It also contends that the exposure of the crews of miners who were working to correct
the excessive water conditions should not be considered in evaluating the issue, and that
the fact that no injuries were suffered by miners or the examiners who traveled through
the water contradicts the inspector’s theoretical assessment. Like its argument on
liability, these contentions are easily disposed of.
The plan requirement that water must be pumped from bleeder entries to maintain
safe travel, obviously, is not restricted to hazards posed by ventilation. The plan
references section 75.364's requirement that weekly examinations be made of all worked
out areas, including the requirement in subsection (a) that at least one entry in a set of
bleeder entries be traveled in it entirety. The ability to travel bleeder entries free of all
hazardous conditions is an essential element of the plan.
Mine examiners were required to travel the bleeder every week. Those who
performed the examinations while the excessive water was present were exposed to the
hazard contributed to by the violation. Crews of miners working to install pumps and
connect electrical, air and communication lines that had been inserted into the mine
through the bore hole were also subjected to the hazard contributed to. The argument that

35 FMSHRC Page 3052

their exposure should not be considered in evaluating whether the violation was S&S is
not supported by any citation to authority and is nonsensical.16
It is well-settled that the fact that the hazard contributed to did not result in an
injury does not preclude a finding of S&S. Elk Run Coal Co., Inc., 27 FMSHRC 899, 906
(Dec. 2005).
A significant number of miners traveled through the hazardous water
accumulations in the bleeder entries for a period of approximately one-to-two weeks.
Travel to the work places was long and arduous, and they worked long shifts. I find that
the hazard contributed to was reasonably likely to result in a reasonably serious injury,
and was S&S. Boylen posited that miners could suffer broken bones or sprains and that
injuries could be exacerbated by the length of time required to exit the bleeder and receive
medical attention. I find that such an injury would most likely have resulted in lost work
days or restricted duty, and that one person would have been affected.
Unwarrantable Failure
In Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001), the Commission
reiterated the law applicable to determining whether a violation is the result of an
unwarrantable failure:
The unwarrantable failure terminology is taken from section 104(d) of the Act, 30
U.S.C. § 814(d), and refers to more serious conduct by an operator in connection
with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the
Commission determined that unwarrantable failure is aggravated conduct
constituting more than ordinary negligence. Id. at 2001. Unwarrantable failure is
characterized by such conduct as "reckless disregard," "intentional misconduct,"
"indifference," or a "serious lack of reasonable care." Id. at 2003-04; Rochester &
Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991) (“R&P”); see also Buck
Creek [Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995)] (approving
Commission's unwarrantable failure test).
Whether conduct is “aggravated” in the context of an unwarrantable failure
analysis 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, 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

16

Under section 104(c) of the Act, persons whose presence is required to eliminate a
condition described in an order are not prohibited from entering the area subject to the order.
That provision does not suggest that their exposure to hazards should not be considered in the
S&S analysis.

35 FMSHRC Page 3053

degree of danger, and the operator’s knowledge of the existence of the violation.
See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000); Cyprus Emerald
Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds, 195 F.3d
42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997);
Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co.,
14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy Mines, Inc., 14 FMSHRC
1232, 1243-44 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June
1988). All of the relevant facts and circumstances of each case must be examined
to determine if an actor’s conduct is aggravated, or whether mitigating
circumstances exist. Consol, 22 FMSHRC at 353. Because supervisors are held to
a high standard of care, another important factor supporting an unwarrantable
failure determination is the involvement of a supervisor in the violation. REB
Enters., Inc., 20 FMSHRC 203, 225 (Mar. 1998).
The Secretary asserts that the violation was the result of Oak Grove’s unwarrantable
failure because it knew, through Sumpter, its acting superintendent, and Hartzell, its general mine
foreman, that the ventilation plan’s requirement that water be pumped from the bleeder entries to
maintain safe travel was being violated and, yet, they continued to mine coal. Sec’y. Br. at 8-9.
Oak Grove contends that the excessive water in the bleeder system was present because of factors
beyond its control, and that withdrawal orders issued because of problems with seals prevented it
from addressing pump malfunctions. It contends that it acted promptly to address the issue after
the seal orders were lifted, and that it had made substantial efforts to eliminate the water before
Boylen issued the order.
The violative condition, excessive water in the bleeder entries that constituted a hazard to
travel, was obvious, extensive, and well known to Oak Grove’s managers, including Sumpter and
Hartzell. Notations of excessive water that prevented examination of MPLs had been made in the
bleeder examination books on December 29, 2009 and January 4, 2010. Ex. G-9. Agents of Oak
Grove examined the bleeders on those days, and examiners conducting preshift or supplement
examinations for crews working to install additional pumps had traveled through the areas for at
least 10 previous shifts.
On the other hand, the violation did not pose a high degree of danger to miners and Oak
Grove had made substantial efforts to abate the violation prior to Boylen’s order. As noted above,
the instant violation was S&S, however, it was reasonably likely to result in a lost work days or
restricted duty injury to one miner, not more serious injuries to multiple miners.
Prior to January 6, Oak Grove had made significant efforts to abate the violative
condition. When the withdrawal orders issued for the seals were terminated, in late December, it
began to increase its capacity to pump water from the bleeders.17 Additional pumps and air lines

17

It is unclear exactly when such orders were in effect. Pasquale testified that there had
been stoppages due to potentially explosive atmospheres behind the seals beginning in
(continued...)

35 FMSHRC Page 3054

were dragged through the lengthy and difficult bleeder entries. Tr. 200-02, 229-30. On
December 31, Oak Grove’s managers met and formulated a plan to increase pumping capacity.
Tr. 202. They determined to drill two boreholes into the mine, the first one was for the
installation of electrical power for new, more powerful, pumps, additional compressed air lines
for air pumps, and a phone line for communication. Efforts to establish the boreholes commenced
immediately. Survey and site work for the first hole was performed on January 1. Drilling
started on January 2 and was completed on January 3. Casing was installed in the hole on
January 4; and conduit was installed for the phone line and electrical cable on January 5. Ex. C-7.
Miners that were inby the deeper water when Boylen was inspecting the bleeder on January 6
were connecting the electrical power and phone lines. Large pumps had been dragged in through
the bleeders, as Boylen learned during his inspection. Tr. 48-49. The pumps were activated later
that day, but not until after the order had been entered. Ex. C-7. Sumpter felt that they were
doing “everything possible” to deal with the water. Tr. 217.
Conclusion
The Secretary’s unwarrantable argument is largely premised on the fact that Oak Grove
mined coal on January 4, 5 and 6. Operation of the longwall was highly significant with respect
to Order No. 6698830, which was based on Oak Grove’s inability to determine whether the
bleeder system was working effectively due to its failure to conduct weekly examinations. The
subject order, Order No. 6698829, was issued because “[w]ater causing unsafe travel was
observed” at several locations in the bleeder entries. Ex. G-1. Whether Oak Grove was mining
coal had little or no significance to the travel hazards presented by water in the bleeder entries.
Water accumulated in the bleeder entries because of factors largely beyond Oak Grove’s
control. While Oak Grove was well aware that it presented hazards to miners traveling through it,
it did not present a high degree of danger to miners. Significantly, Oak Grove had added capacity
to its air pumps and, more than a week before the order was issued, embarked upon a major
upgrade of its pumping capacity, drilling bore holes and installing more powerful pumps.
Moreover, the vast majority of travel through the areas was by miners engaged in remedial
actions.
I find that the violation was not the result of Oak Grove’s unwarrantable failure, but, that
its negligence was moderate.
Order No. 6698830
Order No. 6698830 was issued by Boylen at 2:00 p.m. on January 6, 2010, pursuant to
section 104(d)(2) of the Mine Act. It alleged a violation of 30 C.F.R. § 75.334(d), which requires

17

(...continued)
November of 2009. Tr. 174-75. The bleeder examination book reflected that no examination
occurred on December 21, and bore the notation “mine idle due to 52A seal problem.” Ex. G-9.
Examinations were conducted, at least partially, on December 29 and January 4.

35 FMSHRC Page 3055

that a worked-out area be sealed if its bleeder system does not continuously dilute and move
methane-air mixtures and other noxious gases out of the mine, or if it cannot be determined from
the required weekly examinations that the bleeder system is working effectively.
As previously noted, Oak Grove’s contest of this order was rejected after a hearing, and
the order was sustained in all respects. That decision was affirmed by the Commission. As to
Oak Grove, the only remaining issue is the amount of the civil penalty to be imposed. The
individual respondents, Mike Sumpter and Rex Hartzell, were not parties to those proceedings.
Their liability for this violation, under section 110(c) of the Act, is discussed infra.
Order No. 6698831
Order No. 6698831 was issued by Boylen at 2:15 p.m. on January 6, 2010, pursuant to
section 104(d)(2) of the Mine Act. It alleges a violation of 30 C.F.R. § 75.360(a)(1), which
requires that “a certified person designated by the operator must make a preshift examination
within 3 hours preceding the beginning of any 8-hour interval during which any person is
scheduled to work or travel underground.” The violation was described in the “Condition and
Practice” section of the citation as follows:
An adequate pre-shift examination was not conducted in the Main East Bleeder
entries by mine examiners. As many as 10 miners per shift were allowed to enter
the bleeder entries before the preshift was conducted and the area pronounced safe
to work and travel. This condition existed for at least 10 shifts. The mine operator
has failed to post, correct, or record numerous hazardous conditions found by
MSHA during inspections of the underground Main East Bleeder entries on this
date. Three 104(d)(2) orders have been issued for obvious and extensive
violations. All orders were issued in areas where required examinations by
certified examiners were conducted.
[The substantive allegations of Order Nos. 6698828, 6698829 and 6698830 were
repeated].
Citation No. 6698645 was written on 12/30/20[09] due to the bleeder not being
made in its entirety.
The mine operator has engaged in aggravated conduct by failing to post, correct, or
record hazardous conditions during inspections of the Main East Bleeder entries,
constituting more than ordinary negligence by allowing people to travel through
hazardous conditions. This violation is an unwarrantable failure to comply with a
mandatory standard.
Ex. G-40.
Boylen determined that the violation was highly likely to cause a permanently disabling
injury, that it was significant and substantial, that ten people were affected, and that the operator’s
negligence was high. He also determined that the operator’s negligence rose to the level of
unwarrantable failure. A civil penalty in the amount of $52,500.00 was specially assessed for the
violation.

35 FMSHRC Page 3056

The Violation
Section 75.360 requires that preshift examinations be conducted within 3 hours preceding
the beginning of any 8-hour interval during which any person is scheduled to work or travel
underground. A record of the examination, including any hazardous conditions found, must be
made before any other persons enter an underground area of the mine. The operator must
establish 8-hour intervals of time subject to the required preshift examinations.
Miners were scheduled to work underground as soon as the latest seal order was lifted,
addressing the water issues in the bleeders, repairing and installing pumps and making
connections to the electrical, air and communication lines inserted through the borehole. Preshift
examinations, at least in the traditional sense, were not being completed prior to miners going
underground. As previously noted, travel to the work area alone consumed several hours, and
until the communication line was connected, most likely on January 6, there was no way to call
out the results of a preshift examination. Tr. 147. An examiner would have had to travel back out
of the bleeder entries to make the report. Travel to the area of the borehole and back out would
have consumed the majority of a shift.
Boylen knew that miners who were not certified examiners were working on the water
problem, and he questioned how preshift examinations could be conducted under the
circumstances. He was advised that Oak Grove was not attempting to conduct preshift
examinations. Rather, as Pasquale and Sumpter explained, because of the logistics, they were
conducting something similar to a supplemental examination.18 Tr. 164, 219. A certified
examiner would proceed ahead of the work crew, examining the area as he went. When Boylen
examined the preshift record books, he found that the examinations were being recorded as if
regular preshift examinations had been conducted. Tr. 136. Moreover, none of the conditions
that he believed were obvious hazards had been recorded. Tr. 139-40. Hartzell, who had signedoff on the preshift examination reports, testified that Oak Grove was conducting supplemental and
preshift examinations and that “people with papers were in and out of the area throughout the 24hour period.” Tr. 242.
The working conditions, and the extensive and difficult travel involved, made conducting
preshift examinations extremely difficult. MSHA determined that supplemental examinations,
which are more typically intended to address situations where unscheduled work becomes
necessary, were not permitted for the scheduled work that was being performed. Tr. 148. Boylen
posited that a proper preshift examination might be accomplished by using multiple examiners,
each examining a portion of the area. Tr. 148-49. After the order was issued, Oak Grove had an

18

Section 75.361 provides that a supplemental examination shall be made within 3
hours before anyone enters an area in which a preshift examination has not been made. Oak
Grove’s “supplemental examinations” do not appear to have been conducted properly, because
miners following the examiner entered the underground area before the entire area had been
examined.

35 FMSHRC Page 3057

examiner go in with the crew through the preshifted area, work for one hour, and then “examine
his way out,” thereby conducting the preshift examination for the next shift. Tr. 224-25.
Miners were scheduled to work and travel in the bleeder system for over a week prior to
January 6, 2010. Oak Grove did not conduct and record preshift examinations within 3 hours of
their entering the underground area.19 Nor were the hazardous conditions observed by Boylen
identified and corrected prior to miners traveling through the areas. The standard was violated.
Significant and Substantial
The standard was violated in two respects, preshift examinations were not completed in a
timely manner, and hazards that should have been observed were not recorded and corrected.
Each aspect of the violation must be analyzed to determine whether it was S&S.
The “timing” aspect of the violation was clearly a secondary consideration, judging from
Boylen’s order. He described the absence of an “adequate” preshift examination, and went on to
discuss the failure to “post, correct, or record” hazardous conditions. Ex. G-40. His explanation
of the unwarrantable failure determination was couched entirely in terms of the failure to “post,
correct, or record” hazardous conditions. There is no dispute that examinations were being made
frequently. As Hartzell explained, examiners were going in and out of the area throughout the
day. Boylen was aware of the frequency of examinations being made. He noted in Order No.
6698828 that: [c]ertified examiners have examined this area each shift and miners have traveled
this travel way for at least 20 shifts.” Ex. G-39. He made the same observation in Order No.
6698829. Ex. G-1.
The Commission has recognized that the preshift examination requirements are “of
fundamental importance in assuring a safe working environment underground.” Buck Creek Coal
Co., 17 FMSHRC 8,15 (Jan. 1995). Failure to conduct a timely preshift examination can be
found to have been S&S when a supplemental examination has been made in lieu of a proper
preshift examination. See Jim Walter Resources, Inc., 28 FMSHRC 579, 601-04 (Aug. 2006).
Although miners may restrict their travel to examined portions of a partially examined work area,
there could be hazards in the unexamined portions of the area that could affect them. Nor does
the fact that an untimely examination was completed without any hazards having been discovered
necessarily preclude an S&S finding, because mine hazards can be transitory in nature. Id.

19

Oak Grove argues that miners were in the bleeders “round the clock,” and that the
Secretary failed to prove that examinations were not done “in an 8-hour interval,” as specified in
the standard. Resp. Br. at 36. However, the standard also provides that “the operator must
establish 8-hour intervals of time subject to the required preshift examinations.” 30 C.F.R.
§ 75.360(a)(1). The precise time periods worked by the miners is not apparent. Boylen
determined that there were crews of 5 miners, and that at any given point in time, two crews
might be in the bleeders, one entering and one exiting. Tr. 143. The miners were, no doubt,
working extended shifts because of the difficulty in accessing the working place. Preshift
examinations were required prior to the start of their shifts.

35 FMSHRC Page 3058

However, on the facts of this case, while the issue with the timeliness of the examinations
may have contributed to a discrete safety hazard of miners being exposed to hazardous
conditions, it was highly unlikely that a reasonably serious injury would have occurred. Unlike
the situation in Jim Walter, there was no active mining going on in the area. Consequently, there
was no risk of miners being exposed to hazards associated with active mining, many of which can
occur on short notice. The bleeder entries had been mined many years earlier and, aside from the
occasional need to install supplemental roof support, and deal with water accumulations, there is
no evidence of new hazards developing in the bleeders. Moreover, as Hartzell explained, there
were certified examiners traversing the areas of concern on a regular basis. Boylen had noted that
certified examiners had been examining the area each shift for at least 20 shifts. It is unclear how
closely the pattern of actual examinations by certified examiners traveling into and out of the
work area may have replicated the required preshift examinations.20
I find that the timing aspect of the violation may have contributed to a hazard of miners
being exposed to unknown hazardous conditions, but that it was unlikely that miners would have
been exposed to such conditions and it was unlikely that any such conditions would have resulted
in a reasonably serious injury.
The second aspect of the preshift examination violation is the failure to record and correct
hazardous conditions that should have been found during the examinations. Boylen believed that
examiners had failed to “post, correct, or record numerous hazardous conditions,” namely those
cited in Order Nos. 6698828, 6698829 and 6698830. Ex. G-40. Boylen believed that those
conditions rendered it highly likely that 10 persons (two crews of miners) would suffer
permanently disabling injuries.
However, Order No. 6698828, alleging failure to control the mine roof, was not sustained.
Order No. 6698829, alleging unsafe travel through water accumulations with unseen tripping
hazards, was sustained as an S&S violation that was reasonably likely to result in a lost work days
injury to one miner. Order No. 6698830, issued for failure to seal the worked out area, and
continuing to operate the longwall, when required bleeder examinations had not been conducted,
does not appear to have any relevance to the instant order, which was issued with respect to
preshift examinations of the travelway and work places of the miners working to resolve the
water problem in a portion of the bleeder.21

20

As noted above, Sumpter had explained that compliance was achieved by having an
examiner “examine his way out” of the work area.
21

Miners working to make connections at the borehole were able to reach that area,
albeit after wading through chest-deep water. That travel route, obviously, did not include
portions of the bleeder that were impassible. The failure to conduct a traditional preshift
examination of the travel route and work place would not have contributed to any hazards
associated with a failure to conduct a weekly examination of the inaccessible sections of the
bleeder.

35 FMSHRC Page 3059

The failure to conduct a proper preshift examination, identifying hazardous conditions and
posting them or correcting them prior to miners entering the area, can give rise to a measure of
danger to miners’ safety, i.e., that they would encounter hazardous conditions that were not
posted or corrected. Here, the hazardous condition that miners encountered because of the
posting or correcting failure was traveling through several areas of accumulated water in which
there were tripping hazards that could not be seen. Concealed tripping hazards were the subject
of Order No. 6698829, which was found to be an S&S violation, because the hazards it
contributed to were reasonably likely to result in a lost work days injury to one miner.
The failure to post and correct aspect of the violation contributed to the hazard of miners
continuing to be exposed to travel through water with concealed tripping hazards. Combined
with the possibility of exposure to newly developing hazards attributable to the timing aspect of
the violation, I find that the hazards contributed to by the preshift violation were reasonably likely
to result in a reasonably serious injury, a lost work days injury to one miner, and that the violation
was S&S.
Unwarrantable Failure
On the face of it, it could be considered obvious that a preshift examination should have
been conducted because work was scheduled in the bleeder system. On the other hand, there
were severe logistical considerations that presented considerable obstacles to performing such
examinations, notably the fact that an examiner could not travel into the bleeder, complete a
preshift examination and call it out within the required 3-hour window. The bleeder system had
been mined many years earlier, and was not as susceptible to the development of new hazards as
an active working section. Certified examiners were traveling through the scheduled work area
frequently over the several days that the practice of conducting supplemental examinations had
existed.
Oak Grove knew that it was not conducting proper preshift examinations. It had not done
so for several days and would have continued to do so while work deep in the bleeder system to
address the water accumulation problems was ongoing. It had not been placed on notice that
greater compliance efforts were necessary. The violation was not particularly extensive, and it
did not present a high degree of danger to miners. While Oak Grove had not attempted to abate
the violation by conducting preshift examinations, it had conducted what it referred to as
supplemental examinations, and had numerous certified examiners traveling through the work
area throughout the work day.
The failure to post and correct aspect of the violation is more troubling. Order No.
6698829 was terminated on January 15, with a notation that “cited areas of water have been
pumped down.” There is no mention of the removal of tripping hazards, which presumably
would have remained in the travelway, but would have been rendered visible by the removal of
the water. This suggests that tripping hazards were not numerous and tended to be outside the
normal route of travel used by the crews, which may have been guided by the reflective tape hung
in response to Foster’s instruction. As Boylen had noted in the other orders, certified examiners
had been examining the area for more than 20 shifts. The crews of miners working to correct the

35 FMSHRC Page 3060

water accumulations had also been traveling through the bleeders for at least 20 shifts. All
involved were, no doubt, well aware of the conditions of travel through the water accumulations,
and there is no evidence that any incidents resulting in injury occurred.
On consideration of the above, I find that Oak Grove did not exhibit conduct that rose to
the level of deliberate indifference or reckless disregard, and that the violation was not the result
of Oak Grove’s unwarrantable failure to comply with the standard. I find that Oak Grove’s
negligence with respect to the preshift examination violation was moderate.
Docket Nos. SE 2012-306 and SE 2012-308 - Violations charged against Sumpter and
Hartzell
The petitions in these cases were filed pursuant to section 110(c) of the Act against Mike
Sumpter and Rex Hartzell, in their individual capacities. In Docket No. SE 2012-306, the
Secretary alleges that Mike Sumpter, Oak Grove’s acting superintendent at the time, is personally
liable for the violations alleged in Order Nos. 6698829 and 6698830, for which civil penalties in
the amount of $7,000.00 and $7,300.00 were assessed respectively. In Docket No. SE 2012-308,
the Secretary alleges that Rex Hartzell, Oak Grove’s general mine foreman at the time, is
personally liable for the violations alleged in Order Nos. 6698829 and 6698830, for which civil
penalties in the amount of $6,900.00 and $7,200.00 were assessed respectively.
Section 110(c) of the Mine Act states: “Whenever 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, . . . 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 corporate 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, 36264 (D.C. Cir. 1997). To establish
section 110(c) liability, the Secretary must prove that an individual knew or had
reason to know of the violative condition, not that the individual knowingly
violated the law. Warren Steen Constr., Inc., 14 FMSHRC 1125, 1131 (July 1992)
(citing United States v. Int’l Minerals & Chem. Corp., 402 U.S. 558, 563 (1971)).
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.”
Kenny Richardson, 3 FMSHRC at 16. The Commission has explained that “‘[a]
person has reason to know when he has such information as would lead a person
exercising reasonable care to acquire knowledge of the fact in question or to infer
its existence.’” Id. (citation omitted). In addition, section 110(c) liability is

35 FMSHRC Page 3061

generally predicated on aggravated conduct constituting more than ordinary negligence.
BethEnergy Mines, Inc., 14 FMSHRC 1232, 1245 (Aug. 1992).
Ernest Matney, 34 FMSHRC 777, 783 (Apr. 2012).22
Order No. 6698829
Order No. 6698829 was sustained as an S&S violation as to Oak Grove. However, it was
not found to be the result of Oak Grove’s unwarrantable failure, rather its negligence was found
to be moderate, primarily because of extensive efforts to remedy the violative conditions prior to
issuance of the order.
Sumpter and Hartzell were well aware that there was flooding in the bleeder system, and
were actively engaged in efforts to address the problem. They had reviewed, and Hartzell had
signed, bleeder examination records that reported that portions of the bleeder system were flooded
and some were impassible on December 29 and January 4. Tr. 237, 239-40; Ex. G-9,
C-13. They had discussed the state of the bleeder with MSHA inspector Busby on December 30,
and advised him that he could not travel the bleeder without passing through water well over his
boot tops. Tr. 201, 231. Hartzell had informed MSHA inspector Foster, on December 28, that the
bleeder system was flooded out, and described the efforts that were being made to address the
issue. While they were aware that miners had to travel through significant accumulations of
water, and that travel in the bleeder system was arduous, there is no evidence that they had been
advised that such travel was hazardous. There is no indication that they had personally traveled
the bleeder system, or otherwise had been advised that there were tripping hazards that could not
be seen in the flooded areas.
The violation charged in Order No. 6698829 was not attributable to Oak Grove’s
unwarrantable failure to comply with the standard, even though detailed knowledge of the
conditions was attributable to Oak Grove through its agents – its bleeder and
preshift/supplemental examiners. Sumpter and Hartzell did not have such detailed knowledge of
the conditions. I find that neither Sumpter, nor Hartzell, exhibited aggravated conduct that would
subject them to personal liability for the violation.

22

Sumpter and Hartzell argue that they cannot be subjected to liability under section
110(c) because their employer, Oak Grove, is a limited liability company, not a corporation.
However, as acknowledged in their brief, the Commission has held that section 110(c) permits
imposition of liability upon agents of a limited liability company. Bill Simola, 34 FMSHRC 539
(March 2012). Respondents point out that further appeals in the Simola case were frustrated by
the Secretary’s dismissal of the petition when the case was remanded. The Commission’s
decision dictates that the defense must be rejected here. Respondents will be free to seek
whatever further review of the issue they deem appropriate.

35 FMSHRC Page 3062

Order No. 6698830
As noted previously, the validity of Order No. 6698830 as an S&S and unwarrantable
failure violation has been conclusively established as to Oak Grove. Sumpter and Hartzell were
not parties to that proceeding. The Secretary must establish all elements of their liability in this
proceeding.
Duplication
Initially, Sumpter and Hartzell argue that Order No. 6698830 is duplicative of Citation
No. 6698645, which was issued by MSHA inspector Busby seven days earlier, on December 30,
2009. The Commission held that Oak Grove waived the duplication argument in the underlying
contest proceeding, and that decision has become final. Sumpter and Hartzell contend that they
have not waived the argument. Resp. Br. at 42-42. Sumpter and Hartzell are not bound by the
decision in the contest case brought by Oak Grove. The Secretary had not yet sought to hold
them personally liable for any of the violations charged against Oak Grove, and they were not
parties to that proceeding. A violation of a safety standard by the mine operator is a necessary
predicate to personal liability of an operator’s agent under section 110(c). “The Secretary must
still fully prove his case in a section [110(c)] proceeding against the agent. The operator’s
violation is merely an element of proof in the Secretary’s case against the agent.” Kenny
Richardson, 3 FMSHRC 8, 10 (Jan. 1981).
Had Sumpter and Hartzell been parties to the contest proceeding, they would have been
entitled to present evidence and make arguments in an effort to rebut the Secretary’s case against
Oak Grove. If successful, that necessary predicate to their personal liability would have been
defeated. Asserting the duplication argument as to Oak Grove is, and would have been, a proper
element of their defense. Not having waived the argument, they are entitled to present it in this
proceeding. Here the stipulated inclusion of the record of the prior proceeding provides ample
evidence of Oak Grove’s violation of the standard, as charged in Order No. 6698830. The
duplication argument is the only additional defense to Oak Grove’s violation asserted by Sumpter
and Hartzell.
Citation No. 6698645 was issued by MSHA inspector Paul Busby on December 30, 2009.
It charged a violation of section 75.364(a)(2)(iii), which requires that:
(2) At least every 7 days, a certified person shall evaluate the effectiveness
of the bleeder systems required by § 75.334 as follows:
....
(iii) At least one entry of each set of bleeder entries used as part of a
bleeder system under § 75.334 shall be traveled in its entirety. Measurements of
methane and oxygen concentrations and air quantities and a test to determine if the
air is moving in the proper direction shall be made at the measurement point
locations specified in the mine ventilation plan to determine the effectiveness of
the bleeder system.

35 FMSHRC Page 3063

The violation was described in the Condition and Practice section of the citation as
follows:
The East bleeder was not made in its entirety by a certified person at least every 7
days to evaluate its effectiveness. The East bleeder was examined in its entirety on
12/22/2009.23 The area of the bleeder from 1st East to 10-East was examined on
12/29/2009. The area from 10-East to the No. 6 fan was recorded as being
impassable due to high water levels. The pumps used to maintain water levels in
the bleeder have failed, resulting in high water levels in the bleeder entries. Pumps
are currently being transported to the affected area to lower the water to safe,
passable levels.
Ex. C-1.
Oak Grove’s longwall panel was not producing coal at the time, and Busby’s citation was
issued pursuant to section 104(a) of the Act. He determined that the violation was unlikely to
result in a lost work days injury to 8 persons and that Oak Grove’s negligence was low. The
citation specified that the violation was to be abated by 7:00 a.m. on December 31, 2009.
Respondents argue that Order No. 6698830 is duplicative of Citation No. 6698645 for
several reasons. First, each “addressed the same condition and imposed the same duties on Oak
Grove.” Resp. Br. at 43. Second, the requirements of the standard cited in Citation No. 6698645,
section 75.364(a)(2)(iii), are subsumed in the requirements of section 75.334(d), the standard
cited in Order No. 6698830. Third, both the order and citation required the same action for
abatement. Respondents’ arguments are unavailing, and are based on misstatements of the law.
Whether enforcement actions are duplicative is not determined by examining whether the
enforcement actions impose different duties on the operator. Rather, it is the duties imposed by
the standards violated that must be identical before violations can be found duplicative. Spartan
Mining Co., Inc., 30 FMSHRC 699, 716 (Aug. 2008) (opinion of Commissioners Jordan and
Cohen);24 Cumberland Coal Resources, LP, 28 FMSHRC 545, 553 (Aug. 2006); Western FuelsUtah, Inc., 19 FMSHRC 994, 1003-05 (June 1997) (citing Cyprus Tonopah Mining Corp., 15

23

The bleeder was last examined in its entirety on December 14. There was no
examination on December 21 because, as noted in the examination book, the mine was “idle due
to 52A seal problem.” Ex. G-9, C-13. Oak Grove had written MSHA on December 21 stating
its understanding that examinations of the bleeder and other areas in the North workings were
permitted while the seal problem was being resolved. MSHA responded in writing on December
22 making clear that such examinations were not permitted. Ex. C-13, C-15.
24

The Commission in Spartan split 2-2 on the issue of duplication. Commissioners
Duffy and Young, disagreeing with Commissioners Jordan and Cohen, found that the violations
were duplicative. As a result, the ALJ’s determination that the violations at issue in the case
were not duplicative was allowed to stand.

35 FMSHRC Page 3064

FMSHRC 367, 378 (Mar. 1993); Southern Ohio Coal Co., 4 FMSHRC 1459, 1462-63 (Aug.
1982); and El Paso Rock Quarries, Inc., 3 FMSHRC 35, 40 (Jan. 1981)).
Pursuant to section 75.364(a)(2)(iii), Oak Grove had a legal duty to evaluate the
effectiveness of the bleeder system by, inter alia, traveling at least one entry of each set of
bleeder entries in its entirety and making certain measurements. Under section 75.334(d), Oak
Grove had a legal duty to seal the worked-out area if the bleeder system was not working
effectively or it could not be determined from the section 75.354 examinations and evaluations
that the bleeder system was working effectively. It is clear from the language of the standards
that they do not impose the same duties. Therefore, Order No. 6698830 is not duplicative of
Citation No. 6698645. Even if violations emanate from the same events, they are not duplicative
if the standards impose separate and distinct legal duties. See Spartan Mining, 30 FMSHRC at
719 (opinion of Commissioners Jordan and Cohen) (citing Cyprus Tonopah, 15 FMSHRC at
378).
Nor are the requirements of section 75.364(a)(2)(iii) subsumed in the requirements of
section 75.334(d). While they both deal with bleeder systems, they impose separate and distinct
requirements. One provision could be violated without violating the other, and vice versa.25
Section 75. 364(a)(2)(iii) requires that the effectiveness of the bleeder system be evaluated by
traveling the bleeder in its entirety every 7 days and taking measurements at points specified in
the mine’s ventilation plan. It can be violated, as here, if the bleeder is not traveled in its entirety
and the measurements are not taken. Those failures would not state a violation of section
75.334(d), which requires that a worked out area be sealed if the operator was unable to determine
whether the bleeder system was working effectively because of its inability to take the required
measurements. Conversely, section 75.334(d) could be violated if all required section 75.364
evaluations had been made, if those evaluations showed that the system was not working
effectively or were inconclusive, and the area was not sealed.
Lastly, Respondents argue that the citation and order were duplicative because the same
action was required for abatement, pumping the accumulated water from the bleeder system to
allow travel, citing the opinion of Commissioners Duffy and Young, in Spartan Mining,

25

In Western Fuels-Utah, the Commission held that a charge of violating a specific
standard was duplicative of a charge of violating a more general standard. However, the
Commission made clear that its decision was not based solely upon the premise that every
violation of the more specific standard would also be a violation of the more general one. Rather,
it looked to whether the operator had been cited for more than one specific act or omission. Had
there been evidence of additional deficiencies that violated the general regulation, such that that
allegation would not have been based upon the identical evidence used to support the violation
of the more specific standard, the charges would not have been found duplicative. 19 FMSHRC
at 1004 n.12.

35 FMSHRC Page 3065

30 FMSHRC at 728-30. However, as noted by Commissioners Jordan and Cohen, that is not an
accurate statement of the law. Spartan Mining, 30 FMSHRC at 717-18.26
Nor should the method of abatement chosen by an operator be determinative of whether
violations are duplicative. When MSHA issues a citation or order citing a violation, it specifies a
time within which the violation must be abated. However, it does not specify particular actions
that must be taken by the operator to abate the violation, and none were specified in the subject
citation or order.27 Rather, the steps to be taken for abatement are chosen by the operator. That a
particular circumstance may offer an opportunity for the operator to abate more than one violation
by taking a particular action, does not dictate that the violations were duplicative.28 Turning to
the requirements of the standards, Citation No. 6698645 could have been abated by pumping
water down, and addressing roof falls on the headgate, so that the required examinations could
have been made. However, it could also have been abated by securing MSHA’s approval of an
alternative method of evaluation, as provided in section 75.364(a)(2)(iv). Oak Grove expended
considerable effort after the orders had been entered attempting to secure approval of its
alternative “subtraction” method of evaluation, as detailed in the decision rejecting its contest of
Order No. 6698830. 32 FMSHRC at 174-76. Conversely, Order No. 6698830 could have been
abated by sealing the worked out area, or conducting a proper evaluation of the bleeder system
that demonstrated that it was working effectively.29

26

Moreover, Commissioner Duffy was forced to concede that the violations in Spartan
could have been abated by different actions. He concluded that, because one was not practical,
the method of abatement was the same, and that the violations were duplicative. 30 FMSHRC at
728-29.
27

It is apparently contrary to MSHA policy for an inspector to instruct an operator how
to abate a violative condition. See Valley Camp Coal Co., 7 FMSHRC 1197, 1252 (Aug. 1985)
(ALJ); Sunshine Mining Co., 1 FMSHRC 1535, 1542 (Oct. 1979) (ALJ).
28

A different result might follow if two violations could be abated only by identical
actions. That is not the case here.
29

Order No. 6698830 was terminated on February 9, 2010, after water was pumped
down allowing safe travel to the No. 6 fan, and the roof fall on the headgate side had been
cleaned and supported allowing safe travel. The bleeder was examined in its entirety on
February 8 and found to be working effectively, and the pressure differentials at the No. 6 fan
had “leveled off at 20," indicating that the restriction had been removed. Ex. G-2 (termination
sheet added post-hearing).

35 FMSHRC Page 3066

The respective standards cited in Citation No. 6698645 and Order No. 6698830 imposed
different legal duties on Oak Grove. The requirements of section 75.364(a)(2)(iii) are not
subsumed in section 75.334(d). The respective violations did not dictate that the same abatement
actions be taken. Order No. 6698830 was not duplicative of Citation No. 6698645.30
Personal Liability
As noted above, there is ample evidence in the record that Oak Grove committed an S&S
and unwarrantable failure violation of section 75.334(d), as charged in Order No. 6698830, and as
found in the decision in the contest proceeding. The duplication argument advanced by Sumpter
and Hartzell has been rejected. Consequently, the Secretary has established the necessary
predicate to their individual liability. The remaining questions are whether they knew or had
reason to know of the violative condition, and whether they exhibited aggravated conduct
constituting more than ordinary negligence.31
Sumpter and Hartzell readily admitted that they knew that the effectiveness of the bleeder
system had not been evaluated as required by section 75.364, and, consequently, that it could not
be determined from the non-existent required evaluations whether the system was working
effectively. They also knew that operating the longwall and failing to seal the worked-out area,
was a violation of section 75.334(d). Tr. 222-23, 238, 244. Their defense rests on arguments that
they did not engage in aggravated conduct.32 They advanced several justifications for their
actions; MSHA had not required sealing of the bleeder when evaluations were temporarily
prevented in the past; they believed that the bleeder system was working effectively based on
their alternative evaluation procedure and the fact that air changes had been made at the longwall
face; and, MSHA’s issuance of Citation No. 6698465 and failure to specifically order shutting

30

Respondents also argue that the logic of their abatement argument would “compel a
finding that Order No. 6698829 was also duplicative of the other two enforcement actions.”
Resp. Br. at 54 n. 14. The abatement prong of their duplication argument is rejected, as is its
extension as proposed in the footnote.
31

Sumpter and Hartzell are situated virtually identically as to the pertinent factors
determinative of liability under section 110(c). While they operated at different levels of Oak
Grove’s management structure, they both had full knowledge of all of the relevant facts and the
responsibility to assure the safety of Oak Grove’s miners. Respondents’ brief treats them as
being similarly situated, all arguments being advanced on behalf of both individuals without
distinctions as to their respective culpability. Resp. Br. at 62-70.
32

Sumpter and Hartzell suggest that, since other “essentially” similarly situated officials
of Oak Grove were not charged, there is an appearance of selective prosecution that violates the
equal protection clause of the U.S. Constitution. Resp. Br. at 64 n.17. The argument is not
developed, or accompanied by citation to authority. There is nothing in the record to suggest
that the decisions to charge the individual respondents constituted an abuse of the Secretary’s
prosecutorial discretion.

35 FMSHRC Page 3067

down of the longwall during phone conversations on January 5 led them to believe that that
action was not required. These explanations will be addressed in order.
MSHA’s prior actions bore little relationship to the conditions at issue. Hartzell testified
that there were several occasions in the past where measuring points in the bleeder system could
not be reached during weekly examinations, and that shutting down of the longwall had not been
required. Tr. 232-33. As he explained, when particular MPLs could not be reached, e.g., because
of high water, a pump would be installed to pump the water down, and the measurements would
then be made a “day or two later;” all of which would be recorded in the examination book. Id.
MSHA was aware of these incidents because it reviewed the examination books during its
quarterly inspections and, apparently, took no action with respect to them. Tr. 233. It is not
surprising that MSHA took no action when it noted that sometime in the past there had been
temporary delays of a day or two in completing weekly examinations, which may or may not have
been at least technical violations of sections 75.364 and 75.334, and which apparently showed
that the bleeder system was working effectively. Such instances do not justify the mining of coal
when substantial portions of the bleeder system could not be examined for an extended period of
time, here, three weeks, and there was evidence of serious restrictions in air flow through the
system.
Sumpter and Hartzell explained that air changes had been made to ventilation of the
longwall face, one of which was necessitated by anticipated increases in pressure as the panel was
mined-out. Tr. 244. Mining had begun in the panel on March 2, 2009, and had proceeded
approximately 6,000 feet by mid-December. Sumpter explained that ventilation begins to
“tighten up” when a panel has been mined 3,000 feet and that air changes are eventually required.
Tr. 203-04. On January 1, there was insufficient air flow across the face of the longwall, and a
change was made to the ventilation system. Tr. 203. On January 3, other ventilation changes
were made because Sumpter was concerned about maintaining pressure toward the gob. Tr. 20405. However, increases in the water gauge pressure differential at the main bleeder fan, fan No.
6, had shown that something serious was occurring in the bleeder system. The water gauge had
increased from 20 to more than 30 inches of water between December 15 and January 2. Ex. G19. Hartzell acknowledged that that indicated there was a “significant restriction” in the bleeder
system. Tr. 244. Notably, the air changes that Sumpter implemented on January 3 to assure there
was pressure on the gob had no positive effect on the No. 6 fan pressure differentials.33
Sumpter and Hartzell expressed confidence that the bleeder system was working
effectively. That contention, and the reasonableness of their beliefs are addressed below.
They also argue that “nothing in [the citation issued by Busby on December 30] would
indicate that Oak Grove was prohibited from operating the longwall.” Resp. Br. at 66. However,
the longwall was not operating on December 30 and, under Oak Grove’s business plan, it would

33

The pressure differentials returned to the 20-inch level in February, after the water
had been pumped down, and other actions had been taken, resulting in termination of Order No.
6698830 on February 9, 2010. Ex. G-2.

35 FMSHRC Page 3068

not have been operated until at least January 1, 2010, a fact that may well have been known to
Busby. Tr. 203. Busby specified that the violation be abated by 7:00 a.m. on December 31, less
than 16.5 hours after it had been issued, and before any potential resumption of mining.
Consequently, as of January 4 when mining began, Oak Grove had failed to timely abate the
citation and was subject to further enforcement action. While the citation may not have
specifically prohibited operation of the longwall, it was to have been abated within hours, before
mining would have begun. Operation of the longwall on January 4 was not sanctioned by, or
consistent with, the citation.34
MSHA’s retraction of its directive to shut down the longwall during the exchange of
phone calls on January 5, likewise offers no defense. First, Oak Grove had already been
operating the longwall on January 4 and 5 prior to the calls.35 There was no explicit approval by
MSHA to operate the longwall, and Oak Grove had raised a legitimate question about the
propriety of issuance of a verbal withdrawal order, over the phone, when MSHA was not on site
to observe and evaluate actual mining conditions. MSHA promptly issued the order shutting
down the longwall when the mine was inspected on January 6.
Where a mine operator acts “on a good-faith belief that its cited conduct was actually in
compliance with applicable law, and that belief was objectively reasonable under the
circumstances, the operator’s conduct will not be considered to be the result of unwarrantable
failure when it is later determined that the operator’s belief was in error.” Kellys Creek
Resources, Inc., 19 FMSHRC 457, 463 (Mar. 1997). Sumpter and Hartzell argue that the same
logic should apply in section 110(c) cases. Assuming that such a defense is available to an
individual charged under section 110(c) of the Act, Sumpter and Hartzell cannot avail themselves
of it. They both admitted that they knew that Oak Grove’s operations, for which they were
responsible, were in violation of Sections 75.364(a)(2)(iii) and 75.334(d). They have no
colorable argument that they believed, in good faith, that their conduct was in compliance with
applicable law, or that any such belief was objectively reasonable.
They also argue that an individual who reasonably believes that a particular practice is
safe should not be subject to liability under section 110(c), citing Rinker Materials, 30 FMSHRC
104, 119 (Jan. 2008) (ALJ). Accepting, for purposes of argument, that an agent who held an
objectively reasonable belief that a practice was safe should not be found to have engaged in
aggravated conduct and found liable under section 110(c) of the Act, neither Sumpter, nor
Hartzell can escape liability on that basis.

34

On January 14, with Order No. 6698830 in place, the abatement time for the citation
was extended to January 29, an action which has no relevance to events that occurred on January
4-6, 2010. Ex. C-1.
35

Oak Grove’s production report showed that the longwall had been operated on the
“owl shift” and evening shift on January 4, and the owl shift on January 5. Ex. G-10. Following
the calls, it was also operated on the evening shift on January 5 and the owl shift on January 6.

35 FMSHRC Page 3069

Sumpter and Hartzell both testified that they believed that the bleeder system was working
effectively when the longwall was operated on January 4, 5 and 6. I am not convinced that they
did not have some doubt about the effectiveness of the bleeder system.36 In any event, while they
may have believed that the bleeder system was working effectively and that operation of the
longwall was relatively safe, their beliefs were not objectively reasonable under the
circumstances.
First, they knew that Oak Grove clearly was in violation of sections 75.364(a)(2)(iii) and
75.334(d), two fundamental standards intended to assure that bleeder systems are operating
effectively. Second, the section 75.334(d) violation was of high gravity. As noted in the order
and the decision on the contest case, the mine liberated substantial amounts of methane and
operation of the longwall with an ineffective bleeder system, or a bleeder system whose
ineffectiveness could not be determined, posed a threat of serious injuries to the entire mining
crew. Third, pressure differential readings at the No. 6 fan showed that a significant restriction in
the flow through the bleeder system had developed between December 15 and January 2, and that
those readings were unaffected by the air changes made on January 1 and 3.37 Fourth, they
ostensibly relied on an unproven alternative evaluation method that should have been made a part
of the approved ventilation plan, but which was unilaterally implemented, without notice to
MSHA.38 As developed extensively after the issuance of the order, there were several reasons to
doubt that the subtraction method accurately demonstrated that there was sufficient air flow out
the tailgate entries of the panel at the back of the gob. If Sumpter and Hartzell were convinced
that the alternative evaluation method was viable, it should have been proposed to MSHA as a
revision to the ventilation plan before re-starting production. That was not done. Rather, the plan
was implemented unilaterally, an action that suggests that problems in attempting to demonstrate
its viability were anticipated.

36

Sumpter was rightfully concerned about maintaining positive pressure on the gob.
After the air changes of January 1 and 2 had been made, he instructed Hartzell that the air flows
critical to the “subtraction” alternative bleeder evaluation method be closely monitored. Tr. 20506.
37
Hartzell attempted to relate the increase in pressure differentials to normal increases
in pressure as a longwall panel is mined-out, increases that Sumpter explained prompted the air
changes of January 1. However, the two were obviously unrelated. The panel had been mined
for a period of 9.5 months, from March 2 to December 15. The increases in the pressure
differentials occurred after December 15, when no mining took place.
38

Section 75.364(a)(2)(iv) provides that an alternative method of evaluation may be
specified in the ventilation plan. Sanctioning of an alternative method of evaluation would also
likely have abated the violation charged in Busby’s December 30 citation. Section 75.370
specifies procedures for proposing revisions to a ventilation plan. There is no evidence that Oak
Grove attempted to follow those procedures before implementing its alternative evaluation
method.

35 FMSHRC Page 3070

In conclusion, I find that Sumpter and Hartzell knew, or should have known, that
operation of the longwall without examinations required by section 75.364(a)(2)(iii), and under
the unproven and unapproved alternative evaluation method, presented an unacceptable risk of
serious injuries to miners. To the extent that they entertained a belief that operation of the
longwall was safe, any such belief was unreasonable. They knowingly violated section
75.334(d), and engaged in aggravated conduct constituting more than ordinary negligence. I find
that they are personally liable for the violation cited in Order No. 6698830.
The Appropriate Civil Penalties
As the Commission reiterated in Mize Granite Quarries, Inc., 34 FMSHRC 1760, 1763-64
(Aug. 2012):
Section 110(i) of the Mine Act grants the Commission the authority to assess all civil
penalties provided under the Act. 30 U.S.C. § 820(i). It further directs that the
Commission, in determining penalty amounts, shall consider:
the operator's history of previous violations, the appropriateness of
such penalty to the size of the business of the operator charged,
whether the operator was negligent, the effect on the operator's
ability to continue in business, the gravity of the violation, and the
demonstrated good faith of the person charged in attempting to
achieve rapid compliance after notification of a violation.
30 U.S.C. § 820(i).
Under this clear statutory language, the Commission alone is responsible
for assessing final penalties. See Sellersburg Stone Co. v. FMSHRC, 736 F.2d at
1151-52 (“[N]either the ALJ nor the Commission is bound by the Secretary’s
proposed penalties . . . we find no basis upon which to conclude that [MSHA’s
Part 100 penalty regulations] also govern the Commission.”). While there is no
presumption of validity given to the Secretary’s proposed assessments, we have
repeatedly held that substantial deviations from the Secretary’s proposed
assessments must be adequately explained using the section 110(i) criteria.
E.g., Sellersburg Stone, 5 FMSHRC at 293; Hubb Corp., 22 FMSHRC 606, 612
(May 2000); Cantera Green, 22 FMSHRC at 620-21 (citations omitted). A judge
need not make exhaustive findings but must provide an adequate explanation of
how the findings contributed to his or her penalty assessments. Cantera Green, 22
FMSHRC at 622. In addition to considering the statutory criteria, the judge must
also set forth a discernible path that allows the Commission to perform its review
function. See, e.g., Martin Co. Coal Corp., 28 FMSHRC 247, 261 (May 2006).
Although all of the statutory penalty criteria must be considered, they need not be
assigned equal weight. Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997).
Generally speaking, the magnitude of the gravity of a violation and the degree of operator

35 FMSHRC Page 3071

negligence are important factors, especially for more serious violations for which substantial
penalties may be imposed. Musser Engineering, 32 FMSHRC at 1289 (judge justified in relying
on utmost gravity and gross negligence in imposing substantial penalty); Spartan Mining Co.,
30 FMSHRC 699, 725 (Aug. 2008) (appropriate for judge to raise a penalty significantly based
upon findings of extreme gravity and unwarrantable failure); Lopke Quarries, Inc., 23 FMSHRC
705, 713 (July 2001) (judge did not abuse discretion by weighing the factors of negligence and
gravity more heavily than the other four statutory criteria).
Findings on Penalty Criteria - Oak Grove
Good Faith - Operator Size - Ability to Continue in Business
The parties stipulated that imposition of the proposed penalties would not affect Oak
Grove’s ability to continue in business. Stip. 4. The parties did not stipulate to the size of Oak
Grove as an operator. However, forms reflecting calculations of penalty assessments were filed
with the petition and indicate that the Oak Grove Mine is a large operator, as is its controlling
entity, and I so find.
History of Violations
The Secretary requested leave to submit, post-hearing, an exhibit reflecting Oak Grove’s
history of violations, a report generated from MSHA’s database, typically referred to as an “R17.” However, the document was not filed. R-17 reports are of limited value, because they do
not provide a qualitative assessment of violation history, i.e., whether the number of violations is
high, moderate or low. See Cantera Green, 22 FMSHRC at 623-24.
Qualitative violations’ history information can be found on assessment forms filed with
the petition, which reflect that Oak Grove had 226 violations become final, and 866 inspection
days, in the pertinent time period. The Secretary’s Part 100 regulations for regular penalty
assessments take into account two aspects of an operator’s violation history, the “total number of
violations and the number of repeat violations of the same citable provision of a standard in a
preceding 15-month period.” 30 C.F.R. § 100.3(c). Only violations that have become final are
used in the calculations. For total violation history, points used in the penalty calculation are
assigned on the basis of the number of violations per inspection day, ranging from 0 points for 0
to 0.3 violations per day to 25 points for in excess of 2.1 violations per day. Under the
regulations, Oak Grove’s history of violations was low, and none of the alleged violations
qualified for enhancement because of repeat violations.
I find that Oak Grove’s overall history of violations, as relevant to these violations, was
low, and should be considered a mitigating factor in the penalty assessment process.
Gravity - Negligence
Findings on gravity and negligence are set forth in the discussion of each violation.

35 FMSHRC Page 3072

The Secretary’s Penalty Assessment Process – Special Assessments vs. Regular Assessments
The Secretary specially assessed penalties for all of the violations at issue. Oak Grove
contends that the total of the penalties assessed for the four violations, $182,000.00, is
substantially higher than the $47,906.00 in penalties that would have been assessed pursuant to
the Secretary’s regular assessment formula, and that the Secretary has not justified the imposition
of enhanced penalties for the subject violations. I discussed considerations involved in
determining appropriate penalties at some length in a recent decision. American Coal Company,
35 FMSHRC ___ (June 13, 2013) (slip op. at 48-51). That discussion will not be repeated here.
However, the methodology set forth in American Coal for determining the amount of the penalty
to be imposed for a violation will be followed here, and in future cases.
Method for Determining the Amount of Penalties for the Litigated Violations
The purpose of explaining significant deviations from proposed penalties, as Commission
judges are obligated to do, is to avoid the appearance of arbitrariness.39 Similarly situated
operators, determined to be liable for violations of similar gravity, negligence and other penalty
criteria, ideally should not be assessed significantly different penalties. Absent some guideline,
however, a judge has no quantitative reference point to aid in specifying a penalty within the
current statutory/regulatory range of $1.00 to $70,000.00. The Secretary’s regulations for
determination of a penalty amount by a regular assessment, 30 C.F.R. §100.3, take into
consideration all of the statutory factors that the Commission is obligated to consider under
section 110(i) of the Act. The product of that regular assessment formula provides a useful
reference point that would promote consistency in the imposition of penalties by Commission
judges.40
Accordingly, in determining penalties for the litigated violations, the penalty produced by
application of the Secretary’s regular assessment formula will be used as a reference point, and
adjusted depending on the particular findings with respect to the statutory penalty criteria. The
tables and charts in the regulations provide a limited number of categories for some factors. For
example, the table for operator’s negligence consists of five gradations, ranging from “No
negligence” to “Reckless disregard.” 30 C.F.R. §100.3(d). In reality, however, the degree of an
operator’s negligence will fall on a continuum, dictating that adjustments will generally be
required. Other unique circumstances may dictate lower or higher penalties. Violations
involving “extreme gravity” and/or “gross negligence,” or, as previously stated in section 105(a)
of the Secretary’s penalty regulations, “an extraordinarily high degree of negligence or gravity, or

39

Sellersburrg Stone Co., 5 FMSHRC 287, 293 (Mar. 1983), aff’d, 736 F.2d 1147 (7th
Cir. 1984).
40

See Magruder Limestone Co., Inc., 35 FMSHRC 1385, 1411 (May 2013) (ALJ)
(regular assessment regulations provide a helpful guide for assessing an appropriate penalty that
can be applied consistently).

35 FMSHRC Page 3073

other unique aggravating circumstances,” may dictate substantially higher penalty assessments.41
A party seeking a reduced or an enhanced penalty must assume the burden of producing evidence
sufficient to justify any requested adjustment. Where the Secretary urges a penalty higher than
that derived by reference to the regular assessment process, e.g., a higher penalty resulting from
the special assessment process, he will have the burden of establishing the appropriateness of the
higher penalty, based upon the statutory penalty criteria.
Docket No. SE 2010-828 - Respondent Oak Grove
Order No. 6698829 is affirmed as an S&S violation. However, it was not highly likely to
result in a permanently disabling injury to two miners. Rather it was reasonably likely to result in
a lost work days injury to one miner. More significantly, it was not attributable to Oak Grove’s
unwarrantable failure to comply with the safety standard. Oak Grove’s negligence was moderate.
A specially assessed civil penalty in the amount of $38,500.00 was proposed for this violation. If
calculated under the Secretary’s regular assessment formula, the result would have been a penalty
of approximately $5,000.00. The reduced levels of negligence and gravity would not justify an
enhanced penalty. Considering the factors itemized in section 110(i), I impose a penalty of
$3,000.00 for this violation.
Order No. 6698830 has been affirmed as an S&S violation and an unwarrantable failure to
comply with the safety standard. A specially assessed civil penalty in the amount of $52,500.00
was proposed for this violation. A penalty calculated under the Secretary’s regular assessment
formula would have resulted in a penalty of approximately $19,000.00. The high gravity of the
violation, which contributed to a risk of serious injury to the entire mining crew, justifies an
enhanced penalty. Considering the factors itemized in section 110(i), I impose a penalty of
$55,000.00 for this violation.42
Order No. 6698831 is affirmed as an S&S violation. However, it was not highly likely to
result in a permanently disabling injury to ten miners. Rather it was reasonably likely to result in
a lost work days injury to one miner. More significantly, it was not found to be the result of Oak
Grove’s unwarrantable failure. Oak Grove’s negligence was moderate. A specially assessed civil
penalty in the amount of $52,500.00 was proposed for this violation. If calculated under the
Secretary’s regular assessment formula, the result would have been a penalty of approximately
$5,000.00. The reduced levels of negligence and gravity would not justify an enhanced penalty.

41

The subject language was deleted in 2007. 30 C.F.R. Part 100 Final Rule, 72 Fed.
Reg. 13592 - 13,621 (March 22, 2007).
42

The Secretary’s brief states that a penalty of $70,000.00 was proposed for this
violation. Sec’y. Br. at 11. The actual specially assessed penalty is $52,500.00. The reference
to $70,000.00 appears to be an error. It is not accompanied by any discussion that would
indicate that the Secretary intended to urge imposition of a penalty higher than that actually
assessed. See Performance Coal Co., 35 FMSHRC ___ (Aug. 2, 2013). In any event, I find that
a penalty of $55,000.00 is appropriate.

35 FMSHRC Page 3074

Considering the factors itemized in section 110(i), I impose a penalty of $3,000.00 for this
violation.
Penalties against individual Respondents.
The imposition of penalties against individual Respondents found liable under section
110(c) of the Act was also addressed in Mize Granite Quarries, 34 FMSHRC at 1764.
The six statutory criteria also apply, with revisions appropriate to
individuals, to the assessment of section 110(c) penalties against individuals.
Sunny Ridge Mining Co., 19 FMSHRC 254, 272 (Feb. 1997). As the judge noted,
the relevant inquiries include whether the penalty will affect the individual’s
ability to meet his financial obligations and whether the penalty is appropriate in
light of the individual’s income and net worth. 33 FMSHRC at 916; Ambrosia
Coal and Constr. Co., 19 FMSHRC 819, 824 (May 1997).
The parties stipulated that Sumpter and Hartzell “have no previous history of assessment
under Section 110(c) of the Act and the imposition of the propos[ed] penalt[ies] will not affect
their financial viability.” Stip. 7. In light of the stipulation, and considering that the individuals
were not found liable for the violation alleged in Order No. 6698829, specific information as to
their income and net worth, analogous to the “size” criteria, is unnecessary. Findings as to their
negligence and the gravity of the violations were made above.
Docket No. SE 2012-306 - Respondent Mike Sumpter
Sumpter was found liable for the violation charged in Order No. 6698830, for which a
specially assessed civil penalty in the amount of $7,300.00 was proposed. While he and Hartzell
engaged in aggravated conduct sufficient to sustain personal liability, their negligence was not so
high as to suggest enhanced penalties. Considering the factors itemized in section 110(i), I
impose a penalty of $3,500.00 for his violation.
Docket No. SE 2012-308 - Respondent Rex Hartzell
Hartzell was found liable for the violation charged in Order No. 6698830, for which a
specially assessed civil penalty in the amount of $7,200.00 was proposed. Considering the factors
itemized in section 110(i), and considering that Hartzell was at a lower level of Oak Grove’s
management structure than Sumpter, I impose a penalty of $2,500.00 for his violation.
ORDER
Based on the foregoing, as to the remaining allegations against Oak Grove in Docket No.
SE 2010-828, it is ORDERED that Order No. 6698828 is VACATED; and Order Nos. 6698829
and 6698831 are modified, as stated in the discussion of those orders, to citations issued pursuant
to section 104(a) of the Act, and are AFFIRMED, as modified.

35 FMSHRC Page 3075

As to the petition filed against Mike Sumpter in Docket No. SE 2012-306, the allegation
that he is personally liable for the violation charged in Order No. 6698829 is DISMISSED. The
allegation that he is personally liable for the violation charged in Order No. 6698830 is
AFFIRMED.
As to the petition filed against Rex Hartzell in Docket No. SE 2012-308, the allegation
that he is personally liable for the violation charged in Order No. 6698829 is DISMISSED. The
allegation that he is personally liable for the violation charged in Order No. 6698830 is
AFFIRMED.
It is FURTHER ORDERED that Oak Grove pay civil penalties in the amount of
$61,000.00 within 45 days of this order; that Mike Sumpter pay a civil penalty in the amount of
$3,500.00 within 45 days of this order; and that Rex Hartzell pay a civil penalty in the amount of
$2,500.00 within 45 days of this order.6

/s/ Michael E. Zielinski
Michael E. Zielinski
Senior Administrative Law Judge
Distribution (Certified Mail):
Thomas Grooms, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church St., Suite
230, Nashville, TN 37219
R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, 401 Liberty Avenue, Suite
1500, Pittsburgh, PA 15222

6

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.

35 FMSHRC Page 3076

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
7 PARKWAY CENTER, SUITE 290
875 GREENTREE ROAD
PITTSBURGH, PA 15220
TELEPHONE: (412) 920-7240
FACSIMILE: (412) 928-8689

September 20, 2013
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

THE AMERICAN COAL COMPANY,
Respondent

:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 2011-701
A.C. No. 11-02752-253416-01
Docket No. LAKE 2011-881
A.C. No. 11-02752-259393-01
Docket No. LAKE 2011-962
A.C. No. 11-02752-262111-01
Docket No. LAKE 2012-58
A.C. No. 11-02752-268036-01
Mine: New Era Mine

DECISION AND ORDER
Appearances:

Courtney Prsybylski, Esq., & Ryan L. Pardue Esq., U.S Department of
Labor, Office of the Solicitor, Denver CO for the Secretary
Jason W. Hardin, Esq., & Mark Kittrell, Esq., Fabian and Clendenin, Salt
Lake City, UT for Respondent

Before:

Judge Lewis

STATEMENT OF THE CASE
These cases are before the undersigned ALJ on Petitions for Assessment of Civil Penalty
filed by the Secretary of Labor against Respondent, The American Coal Company
(“Respondent” or “American Coal”), pursuant to Sections 104(a) and 105(d) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. §815(d). A hearing was held in Evansville, Indiana
from May 21, 2013 to May 22, 2013. The parties subsequently submitted post-hearing briefs.
PROCEDURAL HISTORY
Between October, 2010 and March, 2011 MSHA inspectors Phillip Stanley, Bernard
Reynolds, Wendell Crick, Jared Preece, and Edward Law issued ten (10) citations to Respondent
for alleged safety violations at American Coal’s New Era Mine (“Mine”) located in Saline
County, Illinois. Prior to the commencement of the hearing the parties reached a partial
settlement regarding Citation Nos. 8427681, 8432066, and 8500423 in Docket No. LAKE 2011-

35 FMSHRC Page 3077

881 and Citation Nos. 8431001 and 8431003 in Docket No. LAKE 2012-58.1 The remaining
below citations issued by Inspectors Stanley and Law went to full hearing.
ISSUES
The issues to be determined are whether Respondent violated §75.1403 and §75.202(a) as
alleged in Citation Nos. 8432052 (LAKE 2011-962), 8428508 (LAKE 2011-701), 8432118
(LAKE 2012-58), 8432126 (LAKE 2012-58), and 8432129 (LAKE 2012-58) respectively; if so
whether any of the violations were significant and substantial in nature (“S&S”); and what would
be the appropriate final penalty for any violations.2
STIPULATIONS
The parties have entered into several stipulations, admitted as Parties Joint Exhibit 1.
Those stipulations include the following:
1. Respondent, at all times relevant to these proceedings, engaged in coal-mining activities
and operations at the Mine in Saline County, Illinois.
2. Prior to September 24, 2010, Respondent was the owner and operator of the Galatia
Mine, which encompassed multiple operations and mines (New Era, New Future and
Galatia North). On September 24, 2010, the New Future Mine began operating under
Mine ID No. 11-03232, and the New Era Mine continued operating under Mine ID No.
11-02752. Respondent remained the owner and operator of both mines.
3. Respondent’s mining operations affect interstate commerce within the meaning and scope
of Section 4 of the Act, 30 U.S.C. §803.
4. Respondent is subject to the jurisdiction of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. §§ et seq. (the “Mine Act”).
5. Respondent is an “operator” as defined in §3(d) of the Mine Act, 30 U.S.C. §803(d), at
the Mine where the contested citations in these proceedings were issued.
6. The Administrative Law Judge has jurisdiction over these proceedings pursuant to §105
of the Act.
7. The individuals whose signatures appear in Blocks 22 of the contested citations at issue
in these proceedings are authorized representatives of the Unites States of America’s
1

See also Transcript, Volume I, hereinafter referred to as “Tr. I,” at 5-6.

2

As discussed infra, the ALJ finds that Respondent’s challenges regarding the arbitrary
and excessive nature of MSHA/the Secretary’s original special assessments fail to raise
cognizable claims in that the Commission alone is responsible for assessing final penalties.

35 FMSHRC Page 3078

Secretary of Labor, assigned to MSHA, and were acting in their official capacities when
issuing the citations at issue in these proceedings.
8. The citations at issue in these proceedings were properly served upon Respondent as
required by the Mine Act.
9. The citations at issue in these proceedings may be admitted into evidence for the purpose
of establishing their issuance but not for the truthfulness or relevancy of any statements
asserted therein.
10. The operator demonstrated good faith in abating the violations.
Joint Exhibit 1 (see also Tr. I at 6).
SUMMARY OF THE TESTIMONY
1. Docket No. LAKE 2011-701
a. Citation No. 8428508
i. Phillip Stanley
At the Hearing Phillip Stanley (“Stanley”) appeared and testified on behalf of the
Secretary. (Tr. I, 10).
Stanley had been working for MSHA for the past 3 ½ years. (Tr. I, 11). Prior to such he
had worked for a little over three years in the coal industry and 16-17 years in potash.3 (Tr. I,
12).
Stanley had worked for Respondent at Galatia for 1 ½ years, operating a continuous
miner machine, a roof bolter, cars, and anything else to do with underground production work.
(Tr. I, 13).
Referring to Secretary’s Exhibit 1 (S-1), Stanley indicated that the citation at issue
involved a violation of a mandatory standard, §75.202(a). (Tr. I, 15). The violation occurred in
the area of New Era Mine located near Entry One of the Northeast headgate. (S-1, Tr. I, 16).
Stanley was conducting a quarterly EO1 inspection. (Tr. I, 18). Stanley informed an employee
of Respondent, Mark Dennis, that he wished to inspect this area. (Tr. I, 18-19).
Upon his arrival, Stanley witnessed several roof bolts whose bearing plates were not in
contact with the mine roof. (Tr. I, 21-22). Stanley had made a drawing in his notes depicting six
3

Potash is primarily used as fertilizer. Unlike a coal mine, a potash mine is not gassy.
But it is set up basically the same way with continuous miners, bolters, cars, feeders, belts, and
the same room-and-pillar type mining that is in coal. (Tr. I, 12).

35 FMSHRC Page 3079

(6) roof bolts hanging from the mine roof where the bearing plates no longer contacted the roof.
(Tr. I, 23-34; S-2, p. 3 of 7).
Stanley described fully grouted roof bolts as ones which have a glue inserted into the
bore hole. The roof bolt goes in with the glue and the epoxy. The glue or the resin sets up and
creates a solid beam as pressure is applied to the roof. (Tr. I, 24). The bearing plates are applied
directly to the mine roof to support whatever draw rock or immediate roof strata is present. The
glue binds all together and creates one solid beam. The bolts ensure that all stays intact. (Tr. I,
24).
The type of bolts used is a requirement of the mine’s roof control plan. (Tr. I, 25). The
roof was not solid where the bearing plates of the six bolts had pulled away. (Tr. I, 26). The
damaged bolts gave no roof support. (Tr. I, 27). At least a portion of the draw-rock between the
bearing plate and the limestone roof had turned loose and hit the mine floor, thereby leaving
nothing between the bearing plates and the remaining draw rock. (Tr. I, 27). The (unsafe)
condition had apparently existed for a “considerable period of time” in that there was rock dust
on the mine roof in the cited area. (Tr. I, 27). Further, the draw-rock which had already fallen to
the floor had a mixture of rock dust and float coal dust, as well as old and new foot traffic across
the gob “or what they call gob or what I would call the draw rock that fell from the mine roof.”
(Tr. I, 27-28).
Although uncertain of how long the rock dust had existed in the area, Stanley noted that it
had been there long enough to become gray instead of white. (Tr. I, 28). In his experience, rock
dust in return air courses will go grey in a matter of two-to-three weeks. (Tr. I, 28-29). The rock
dust had “certainly” been there for more than one shift. (Tr. I, 29). The foot traffic, because of
dis-colorization from the surrounding area, appeared recent in origin. (Tr. I, 29-30). It had
appeared that miners had actually walked on the gob that had fallen from the mine roof. (T. I,
30).
Given that the gob (either gray or black shale) was directly beneath the cited area and was
the same make-up as the immediate roof, and given that the roof bolts were suspended as they
were, it was apparent that the material had come from the roof. (Tr. I, 31).
The (unsafe) condition was immediately obvious because the roof bolts were suspended
far enough below the immediate roof that “it looked like a piece of modern art.” (Tr. I, 31). The
amount of gob, which had fallen from the mine roof, was anywhere between six (6) to twelve
(12) inches of immediate roof that was now laying on the mine floor beneath the cited condition
and for the entire expanse of the cited area. (Tr. I, 31).
The hazard posed to those traveling beneath the damaged bolts was that of falling roof
material – “fractured shale.” (Tr. I, 32). Given the size and vastness of the area, Stanley’s fear
was that miners “would get a piece of rock on them that was bigger than they were and ride them
to the ground and create some permanently disabling injury, if not a fatality.” (Tr. I, 33).

35 FMSHRC Page 3080

Stanley was accompanied by Respondent’s employee, Mark Dennis, during his
inspection. Dennis reportedly commented, “I can’t believe I’ve never seen this.”4
Examiners would pass through the affected area at least once per shift. (Tr. I, 34).
Permanently disabling crush injuries due to falling roof material would be likely to occur. (Tr. I,
34).
Stanley was familiar with a case that had taken place either at New Era Mine or at New
Future Mine in which a miner went under unsupported roof and a rock fell, pinning him to the
ground for six (6) hours. As a result of his injuries this miner was put on permanent disability.
(Tr. I, 35).
Stanley’s designation of the type of injury likely to occur with a roof fall was determined
on a “case-by-case basis” but included the size and type of material existent. (Tr. I, 35). In
Respondent’s case, the rocks were big enough to ride someone to the ground and pin him. (Tr. I,
35-36).
Stanley determined that high negligence was involved in this cited violation because of
the examiners’ traffic directly adjacent to the cited area, both old and new tracks, and the
examiner’s duty, which was basically to record hazards and have such recognized before a miner
sustains injury. (Tr. I, 36). Given that the condition was so obvious, Stanley found no mitigating
circumstances for failure to report such. (Tr. I, 36).
Stanley had not written an unwarrantable failure because he had not seen a date, time,
and initial report in plain sight of the hazard and because of his lack of experience. (Tr. I, 3637). If he observed the same condition now, he would have issued a §104(d). (Tr. I, 36-37). In
order to terminate the action, the mine operator decided to barricade the travel way. (Tr. I., 37).
Stanley served Respondent’s safety person, Mike Smith, with a copy of the citation in the
mine safety office on the surface. (Tr. I, 36-37). Smith had not accompanied Stanley during his
inspection. Stanley met with Smith, Dennis, and a Mr. Webb regarding the citation. (Tr. 38-39).
Webb had contended that examiners did not travel through the area cited within Citation
No. 8428508. However, out of Webb’s presence, Smith admitted that examiners did in fact
travel through the cited area. (Tr. I, 40; see also S-2, p. 7).
On cross-examination, Stanley stated that he had started with MSHA around December,
2008. (Tr. I, 41). Prior to his October 22, 2010 inspection he had not previously inspected the
4th East headgate area. (Tr. I, 43). The area in question was an outby, worked out area. (Tr. I,

4

During cross-examination, Stanley agreed that Dennis’ alleged statement was not in fact
in reference to the Citation 8428508 unsafe roof condition at issue but was in reference to a
different “slider cut” violative condition. (see also Sec. 2 , pp 2-3 (inspector’s notes, pp. 6-8; Tr.
I, 58-60)).

35 FMSHRC Page 3081

45). The area had been sealed off.5 There was one seal in each of the old entries, the headgate
and tail gate being separated by 1,000 feet. (Tr. I, 45). The seals had sampling pipes for
checking ingassing and outgassing of methane and oxygen content. (Tr. I, 47). At the time the
citation was issued, Respondent was required to examine the seals every on-shift. (Tr. I, 48).
Although he did not use an anemometer, Stanley agreed that there was airflow in the affected
areas. (Tr. I., 49). Stanley did not know when the last rock dusting in the affected area had
taken place. (Tr. I, 51). He was also uncertain as to whether the affected area could be accessed
with a pod duster. (Tr. I, 52).
There were props and cribs a little further inby the number One (1) Entry which would
have provided access for a pod duster. (Tr. I, 53). Stanley agreed that the only people who
would be in the area were examiners and potential rock dusters. He was, however, uncertain as
to the rock duster’s schedule. (Tr. I, 53). Although not a travel way, the area was, in Stanley’s
opinion, part of the examiner’s route. (Tr. I, 54).
Referring to a diagram contained in his notes, Stanley testified that he had come to a man
door and immediately observed a violation of Respondent’s Roof Control Plan as cited in No.
8428507. (Tr. I, 57; S-2, p. 5 of inspector’s notes).
Stanley confirmed that his notes reference to Dennis’ comment – “I can’t believe I never
seen this” – was regarding a “slider cut” citation and not the No. 8428508 instant violation. (Tr.
I, 59-60; S-2, p. 3).
Referring to his diagram of the cited area (S-2, p. 3), Stanley indicated that the area
where the damaged bolts were located was approximately 14 feet wide. (Tr. I, 65). He traveled
under the supported roof “bagged by screen wire. Adjacent to the cited area.” (Tr. I, 66).
Stanley was not concerned with a major rock fall. The well worn foot path across the gob was
also immediately adjacent to the cited area. (Tr. I., 67). Stanley agreed that the six (6) roof bolts
drawn in his diagram were not lined up side-by-side. (Tr. I, 69-70). He had failed to record
depth/distance; but agreed that the six (6) bolts were spread out some distance lengthwise inby
on Entry One. (Tr. I, 70).
Stanley agreed that fully grouted resin bolts were not like the typical older roof bolts that
were dependent upon the bearing plates; the glue put into the mine roof with the fully grouted
resin bolts moved through the cracks and laminations between the material of the roof and
helped seal it together. (Tr. I, 71). However, Stanley disagreed with Respondent’s counsel’s
suggestion that, even if the bearing plates are damaged and/or not in contact with the roof, the
shaft and glue will still provide some support to the overall bear of the main roof. (Tr. I, 71).
In the strata of the mine roof the primary beam would have been limestone and directly
beneath that would have been the shale, much of which had fallen out and was still present. (Tr.
I, 72).

5

Seals are basically large walls or blocks that seal old worked out areas. (Tr. I, 46).

35 FMSHRC Page 3082

Stanley could not recall whether Smith had brought him down in a golf cart. Dennis did
not accompany him on the inspection of the seals and air course. (Tr. I, 74). Being referred to
his notes at S-2, p. 6 (p. 17 of 22), Stanley did recollect that he had met Smith prior to returning
to the surface. (Tr. I, 75).
Stanley denied being told by Dennis that Dennis was an air course examiner and did not
usually inspect the seals themselves. (Tr. I, 76). He further conceded that he was uncertain as to
what individual at subject mine had the responsibility for examining seals. (Tr. I, 76).
Stanley further agreed that R-42 contained the type of Respondent’s examiner’s reports
which he would have reviewed in determining whether there had been an inadequate on-shift
exam. (Tr. I, 77-80). Stanley also agreed that for an examiner to have actually observed the
condition that he had seen and to have to report such, the examiner would need to have traveled
the same route as Stanley. (Tr. I, 80). However, he did not know whether the on-shift and preshift examiners had used a different route from the one he had used during his inspection. (Tr. I,
81). He conceded, however, that after the affected area was barricaded off, examiners would
have had to use a different route. (Tr. I, 81).
Stanley found high negligence for the following reasons: the condition was “blatantly
obvious”; there was evidence of foot traffic; and the examiner had taken him on the route in
question. (Tr. I, 82). Stanley conceded that he had not spoken with mine operator employees to
ascertain the route of travel utilized by examiners. (Tr. I, 83). Stanley also conceded that Webb
had denied that Respondent’s examiners used the route traveled by Stanley. Further, Webb had
asserted that Stanley could not determine the age of the foot prints. (Tr. 1, 88). Stanley had not
required the sealing of the roof or rib in the affected area. (Tr. I, 90).
Stanley agreed his field notes did not describe any fractures or crack in the roof. (Tr. I,
93).
As to his recommendation for special assessment, Stanley had taken into account the
examiner’s route of travel, the obvious and extensive nature of the condition, and the fractured
roof and ribs in the cited area. (Tr. I, 96). While he did not wish to issue a flagrant violation or
unwarrantable failure violation, Stanley saw the special assessment as an “additional tool” that
inspectors had to help companies be complaint and protect the health and safety of miners. (Tr.
I, 96). Stanley did not know whether there was any publicly available guidance prior to October
22, 2010 that would alert operators when special assessments would be appropriate. (Tr. I, 97).
Referring to the special assessment forms at R-4 and R-5, Stanley could not explain, inter
alia, how the actual special assessment amounts were arrived at. (Tr. I, 98-102).
On re-direct examination, Stanley testified that the footprints he observed were
“immediately adjacent to the cited area on top of the gob that had fallen from the cited area. (Tr.
I, 105). Stanley further explained that the foot prints were not under either the “supported or
controlled area.” They were between the controlled area and the uncontrolled area and the
uncontrolled area immediately adjacent, meaning that the debris that had fallen from the roof
was on the mine floor. (Tr. I, 106). Because falling roof material does not necessarily fall

35 FMSHRC Page 3083

straight down, people who walked where the footprints were observed could be struck in that
route of travel. (Tr. I, 106). Because Dennis took him on the route by the affected area, it
appeared obvious to Stanley that this was the route used by examiners. (Tr. I, 106-107). There
were no barricades or flagging material to prevent people from walking directly under the
unsupported roof. (Tr. I, 107).
Cribs6 in the cited location suggested to Stanley that the mine operator had at one point
felt the roof was unstable and decided that the best way to support it was with cribbing material.
(Tr. I, 108).
In addition to the gob seen on the mine floor suggesting that additional roof might fall,
Stanley also observed screen wire that had fallen as well which was indicative of curtain shale
falling. (Tr. I, 108-109). Given further the fracturing of the indicated roof and rib sites, the
potential for a miner being covered up was reasonable. (Tr. I, 109). Based upon his visual
observations of the laminating effects between the immediate roof and upper roof -- a big portion
of draw rock had already fallen to the ground – Stanley opined that the instant fully grouted bolts
were unacceptable.
Stanley had informed Dennis that he wished to inspect the seals. Dennis, the examiner
temporarily assigned to the safety department, led him to such. (Tr. I, 113).
It was not possible for Stanley to ascertain how long the unreported (unsupported) roof
condition had existed but he could only assume that it had been for an extended amount of time
and that the mine operator had rock dusting in the interim. (Tr. I, 114).
Stanley had traveled with other inspectors on EO1 inspections a number of times. (Tr. I,
116).
On re-cross examination, Stanley conceded that he had not discussed the location of
footprints in his field notes as being located between the controlled and uncontrolled area. (Tr. I,
117). He did not observe any screen on the mine floor nor did he record in his notes any screen
hanging from the roof. (Tr. I, 118). Although he had testified regarding the position of a
massive roof fall at Entry One, Stanley had nonetheless walked through the area. (Tr. I, 119).
Stanley testified that the hazard he was concerned about at Entry No. 1 was a roof fall
and that involved the “immediate roof.” But as he encountered crib work inby that location and
knowing the history of the mine and roof falls, it had occurred to him that more than an
immediate roof fall could occur. (Tr. I, 121).

6

Cribs are standing supports to hold the roof; they are typically six by six timbers of
varying lengths stacked one on top of another in a crisscross fashion from the mine floor to the
mine roof. (Tr. I, 107).

35 FMSHRC Page 3084

ii. Mark Dennis
At the hearing Mark Dennis appeared and testified on behalf of Respondent. Dennis had
worked for American Coal for a little over seven (7) years. (Tr. I, 123). He had been a daily
examiner and a weekly examiner. (Tr. I, 123). Before America Coal, he had worked in mining
as a belt mechanic, outby supervisor, and equipment operator. (Tr. I, 124).
At the time the instant citation(s) were issued, Dennis had been working as a weekly
examiner, traveling worked-out areas, old air courses, and perimeters of long walls. (Tr. I, 125).
He did not examine seals, a job performed by daily examiners. Dennis was also not a pre-shift
examiner. (Tr. I, 125).
Dennis testified that he had not examined the seal(s) referred to in the left hand column of
Respondent’s pres-shift examination report, as he was in other areas, including the air course.
(Tr. I, 126-127; see also R-43, p. 4, Line 44).
Referring to a map of New Era Mine contained at R-37, Dennis stated that it depicted the
worked-out longwall panels on the east side. (Tr. I, 128). Dennis was familiar with these panels,
including the fourth East Gate. (Tr. I, 129). Dennis testified that Stanley had required that he be
taken to the area, later cited, just inside the north man door. (Tr. I, 129-130; R-37, p. 4).
Dennis testified that, during his regular weekly examination, he would normally start on
the outby side of the south man door. (Tr. I, 133; R-37, p. 4). During Stanley’s inspection,
however, Dennis went through the north man door in order to “save a few footsteps, instead of
going through the south door and then double walking.” (Tr. I, 136). He had probably not been
inside the north man door since the operator had mined out the area. (Tr. I, 136).
Dennis stated that it was his idea – not Inspector Stanley’s – to take the (north) man door.
He did not know what route the daily examiners utilized. (Tr. I, 136). When he went through
the man door, he observed seeing some rib rash but nothing out of the ordinary. (Tr. I, 136).
The rib rash had flaked off the wall and created a little mound against the rib. (Tr. I, 137). As he
walked further inby, he saw more of the same rib rash. (Tr. I, 137).
Dennis disagreed with the inspector’s findings in the citation that the area was frequently
traveled. (Tr. I, 137). While there was evidence of foot travel, Dennis saw no indication that it
was fresh travel. (Tr. I, 137). The rock dusting was grayish and dingy in appearance, not of a
white color indicative of fresh travel. (Tr. I, 137, 138).
Dennis observed footprints down the middle of the walkway or entry. (Tr. I, 138).
“There would be no reason to walk on top of the rib rash.” (Tr. I, 138). Because of lack of
water, the footprints could have been present for an indefinite period. (Tr. I, 139). Dennis only
vaguely recalled loose roof bolts which would have, in any case, been over the rib rash. (Tr. I,
139). Dennis affirmed that he was unaware of the route the daily examiners took and had never
traveled with the daily examiners. (Tr. I, 139).

35 FMSHRC Page 3085

Dennis had accompanied Stanley throughout his inspection, eventually ending at the third
East Headgate, having examined four (4) seal panels. (Tr. I, 140-141). The entire route would
have covered 45-50 crosscuts and would have been over 6,000 feet in length. (Tr. I, 141).
Dennis was not familiar with anybody working or traveling in the crosscut of Entry One in the
cited area on October 22, 2010. (Tr. I, 141).
On questioning by the Court, Dennis explained the entry in question was approximately
18 feet wide with the center being located at 9 feet and the first roof bolt being located 3 feet
from the rib. The footprints were a minimum of six feet from the roof bolts. (Tr. I, 141-142).
On cross examination, Dennis testified that his weekly examination reports would be
located in a different examination book that where the daily exam reports were found. (Tr. I,
142-143). The daily on-shift examiner travel a different route than the one used by Dennis. (Tr.
I, 144). Dennis agreed that it was not part of his typical route to go through the man door in
question. (Tr. I, 144).
Dennis testified that there would be no reason for anyone to walk on rib rash when they
could have “a good, smooth, flat, dry surface.” (Tr. I, 145). He did not observe any fallen
material in the walkway. (Tr. I, 145). “In general, the top looked fairly decent.” (Tr. I, 147).
On re-direct examination, Dennis stated that a walkway was smaller than an entry and
that, for the most part, people walked in the center of the walkway which would be, for the most
part, roughly 12 to 18 inches wide. (Tr. I, 147-148).
iii. Michael Dean Smith
At hearing Michael D. Smith (“Smith”) appeared and testified on behalf of Respondent.
Smith was currently employed as a mining resource engineer with the SI University, Carbondale,
Illinois. He had previously worked for approximately 8 years as a safety inspector for Dominion
Coal and for 23 ½ years for Consolidated Coal Co., (Tr. I, 153). Smith had worked at numerous
jobs in coal mining: roof bolter, miner, shuttle car, and diesel powered scoop operator, and
beltman. (Tr. I, 154).
On the day the instant citation was issued, Smith went to the fourth East Headgate area.
(Tr. I, 155). He met with inspector Stanley. Smith had some difficultly opening the man door.
Stanley pointed out the loose bolts in question in an area which used to be an old belt entry. (Tr.
I, 156-157). There were some old belts, an old piece of curtain, and some old sloughing off the
ribs present. There were also “a few footprints” going through the area. (Tr. I, 157). Smith was
asked if he agreed with the citation. He saw loose bolts “evident of the condition.” (Tr. I, 157).
Smith did not know where the footprints came from. (Tr. I, 157-158). At the same time, Smith
did not presently know what route the seal examiners traveled. (Tr. I, 158). After being
informed of the condition, Smith had the area flagged off. (Tr. I, 158).

35 FMSHRC Page 3086

After getting to the surface, Smith, Stanley, and Webb “conferenced this citation.” (Tr. I,
158). After investigation, Smith learned that examiners did not travel through the man door to
the left but passed through the right man door. (Tr. I, 159). Smith was unaware of such when he
met with Stanley. (Tr. I, 159).
Smith disagreed that he had reportedly stated to Stanley that he had known examiners
traveled through the area. (Tr. I, 160; see also R-22, p. 22). Smith agreed that the conditions
observed by Stanley did exist and (the roof) “needs support.” (Tr. I, 160). Smith assented that
he had advised Stanley that he did not know the actual path which examiners traveled to the
fourth East Gate Seals.7 (Tr. I, 161).
Smith specifically testified to the following:
I don’t know which way they traveled. I knew they made that sealed area in the
fourth east headgate, but now there was three man doors there, one of them was
flagged off straight ahead. So I knew they either had to go through the one on the
right or the one on the left. I believed that they went to the one on the right, but I
didn’t know about it until later on when I got to talk to the examiner.
(Tr. I, 161).
Smith recalled that there were footprints through the left door in the crosscut Entry One
but noted that footprints in a coal mine could be seen “all over the place.” (Tr. I, 161). He did
not know when they were (actually) made. (Tr. I, 161). The footprints went around the bolts –
to the left side rib and down the edge up toward the seal. (Tr. I, 162).
On cross examination, Smith confirmed that he was no longer with American Coal and
was not familiar with the area in question until after the citation was issued. (Tr. I, 162-163).
Only after investigation did he learn that the examiners took a route different from Stanley. (Tr.
I, 164). He had flagged off the cited area because he was not certain whether anybody was
working or traveling in the area. (Tr. I, 166).
Smith indicated he had no personal knowledge of the route taken by examiners. (Tr. I,
168).

7

In virtually every case that the undersigned has presided over there has been an
allegation by an inspector that one or more of Respondent’s employees gave an incriminating
statement. Invariably this reported admission or declaration against interest has been denied at
hearing.

35 FMSHRC Page 3087

iv. Robert Deere
At hearing Robert Deere appeared and testified on behalf of Respondent. Deere had
worked as an examiner for American Coal since 2004. (Tr. I, 169). He previously worked for
Inland Steel and Consolidated for 28 ½ years. Among numerous positions, he was a miner
operator, buggy operator, and examiner. He had approximately 17 years of examiner experience.
(Tr. I, 170).
Deere was familiar with the fourth East Headgate area. (Tr. I, 171). He had examined it
prior to the October 22, 2010 citation date. (Tr. I, 174; see also R-42, copy of pre-shift
examiners report containing Deere’s signature(s).) Deere indicated on a map of the area the
route he usually travelled during his examinations. (Tr. I, 176-177; R-37, p. 4).
Deere testified that he did not use the route taken by Stanley to examine the seals.
Access through the middle man door had been previously flagged off due to deterioration,
including rib rashing in the area. Examiners did not use the left man door (which was used by
Stanley to gain access) because this area was also not in good condition, had been gobbed, and
there was no reason for anyone to walk in the area. Rather, Deere normally travelled through the
right man door, this route going through a much better supported area. (Tr. I, 176-178).8
On cross examination Deere agreed that the south/left door used by Inspector Stanley had
not been flagged or dangered off. Although the number 2 (center) entry door had been barricade,
there was no barricade prior to October 22, 2010 from the south door. (Tr. I, 180).
Deere further testified that the subsequent barricading of the south door after citation
issuance did not alter his normal route for examinations. (Tr. I, 181).
2. Docket No. LAKE 2012-58
a. Citation No. 8432118
i. Edward W. Law
At hearing Edward W. Law appeared and testified on behalf of the Secretary. Law had
worked as a coal mine inspector for MSHA since September, 2005, being stationed at the Benton
field office since 2008. (Tr. I, 190). As a coal mine inspector, he inspects all air courses, belts,
equipment, surface areas, and records. (Tr. I, 190). Prior to working for MSHA, he worked for
American Coal for 21 years and Consolidated Coal for approximately 2 years. (Tr. I, 191). His
jobs with American Coal included labor equipment operator, supply man, and underground and
surface repairman. (Tr. I, 191).
Law’s Citation No. 8432118 involved a violation of a mandatory safety standard,
§75.202(a), which also was a violation of one of the “rules to live by.” (Tr. I, 192). Law found
inadequately supported ribs at the first East Headgate seal entrance. (S-12, p. 1). Law observed
8

See also R-37, p. 4, for route reportedly taken by Deere marked in green pen.

35 FMSHRC Page 3088

a cracked rib, broken and leaning, with a gap behind the rib up to three inches from the coal
pillar. (Tr. I, 193; see also S-13). Law testified that, when a rib had as much separation as he
observed, especially when it was undercut, it would be like removing a leg from underneath a
table. At any point it could roll out and fall on the ground. (Tr. I, 193-194).
Law opined that seal examiners would normally travel in the cited area, as well as
individuals required to maintain the seals. (Tr. I, 195). Given that the area had been scooped out
or undercut, law estimated that the condition had existed for a number of shifts. (Tr. I, 196, 200).
The cracked rib was not being supported. Law could tell where it had been worked on. (Tr. I,
198). The area was black where the rib had been pulled down. There was an indentation where
a piece of rib had been pulled out. (Tr. I, 198). The area was not flagged or dangered off in any
way. (Tr. I, 198).
Prior to February 28, 2011 Law had safety talks at the mine regarding roof/rib control but
not regarding the specific cited area. (Tr. I, 201-202).
Law found that an injury was reasonably likely to occur to a person either being directly
or indirectly struck by a collapsing rib. (Tr. I, 203). The rib was 7 feet high and would probably
fall in one solid piece into the travel way. (Tr. I, 204). The injuries sustained in a rib fall,
including broken bones, could reasonably be expected to result in lost workdays. (Tr. I, 204). If
an individual were walking directly next to the rib, there could be a fatal injury. (Tr. I, 204).
However, experienced miners who are aware of rib collapse danger, usually walk in the middle
of walkways so that the severity of the injury would be less. (Tr. I, 204).
Law found that one person, the examiner, coming in or coming out on the seal, would be
affected. (Tr. I, 205). Usually a rib fall only affects one person. (Tr. I, 206).
Law had modified the cited area in question from “1st east headgate” to “1st east tail
gate.” (Tr. I, 206-207; see also S-12, pp. 1 and 2). When Law handed the citation to Michael
Smith, Smith did not raise any mitigating circumstances. (Tr. I, 207).
Law had designated moderate negligence because some work had been performed in the
area but the operator “probably should have done more” including flagging it or pulling the rib
down or reporting it. (Tr. I, 207-208). Noting the unsafe condition to be “pretty obvious” Law
had chosen to give the examiner the benefit of the doubt as Law had not written “absolutely it
was obvious.” (Tr. I, 208-208).
In order to terminate the citation the operator had pulled the rib down. (Tr. I, 208; see
also S-12, p. 3). Law had recommended the citation for special assessment because the operator
had a “lot of issues with ribs” and roofs and had been cited a “pretty high” number of times for
202(a) violations. (Tr. I, 209).
On cross examination Law testified that he may have written some of his notes contained
at S-13 both below and above ground and may have also number some pages at different times.
(Tr. I, 211-214).

35 FMSHRC Page 3089

Law’s familiarity with the routes of examiners in the 5 right seal panels depicted in the
map at R-37 was based upon his experience as an MSHA inspector and not as a former
American Coal Employee. (Tr. I, 221). Law agreed that there were multiple entries that the first
East Longwall Tailgate that (seal) examiners could have taken. (Tr. I, 228). No matter which
way they would have chosen, they would have needed to go past the crosscut where the cited rib
was recorded. (Tr. I, 227-228). Law did not recall whether he had observed any footprints in the
rib area. (Tr. I, 231). Nor did he identify any individual near the loose rib during the date of
citation. (Tr. I, 232).
Law testified that it was possible that part of the rib had fallen down and had not been
pulled down by Respondent.9 (Tr. I, 232-233). The fact that the area around the missing portion
of the rib was black did not necessarily indicate that the causal event was recent in nature. (Tr. I,
233). Law agreed that his notes did not indicate any material on the floor in the rib area either
way. (Tr. I, 233). Law agreed that the first East Tailgate sealed area was an outlying area of the
mine, located a “good distance” from the active section. (Tr. I, 235, 236). Except for
examination, Law was not personally aware of any work being scheduled in the first East
Tailgate area. (Tr. I, 238). Respondent’s past history of violations involving ribs and roofs was
considered by Law in recommending a special assessment. (Tr. I, 239). In general, Law also
considered, in making a special assessment recommendation, whether there was a “rule to live
by” violation. (Tr. I, 243).
Specifically as to the within citation, law also considered “the severity of the rib size.”
(Tr. I, 244). Law agreed that although the violative conduct as to the within citation was not
highly negligent in nature, it did help justify a special assessment.10 (Tr. I, 246).
ii. Michael Smith
As to Citation No. 8432118 (R-11) Smith testified that at the time the citation was issued
he did not know the route examiners used to examine the seal areas. Subsequently, after
speaking with the examiners, Smith learned that they went in at the fourth East Tailgate area,
avoiding the first East Tailgate area cited by Inspector Law, by backtracking out. (Tr. I, 259261). Miners also did not regularly travel the area where the unsupported rib was located. They
also would travel up to the fourth East Tailgate and double back. (Tr. I, 261).
On cross examination Smith reiterated that miners did not go near the cited rib area
(which was near an airlock) but went in at the fork and doubled back. (Tr. I, 262, 263).

9

As discussed infra, the ALJ found Law’s testimony on this point somewhat
contradictory.
10
As discussed infra, the ALJ did not find the inspector’s explanation as to why he
recommended a special assessment as opposed to a regular assessment altogether enlightening.
(See also R-45).

35 FMSHRC Page 3090

Smith believed that §75.202(a) only applied to areas where persons “normally” worked
or traveled. (Tr. I, 263). He agreed that the air-locked area (where the cited rib was located) had
not been blocked off. (Tr. I, 264).
iii. Robert Deer
As to Citation No. 8432118 (R-11) Deere testified that he was familiar with the first East
Tailgate area. (Tr. I, 267). Referring to the map of the first East Longwall Tailgate at R-37, p. 8,
Deere further indicated that it depicted the area he usually examined, including seals. (Tr. I,
268).
Instead of trying to access the seals through the area where the discussed airlock was
located (which was “fairly low”), Deere would drive down the fourth tail gate seals where he
could drive off the road and park his golf cart with no danger of anyone hitting it. 11 (Tr. I, 269).
On cross examination, Deere testified that it was “just as easy” to “walk down and walk
right back out” instead of going in and out two different places. (Tr. I, 271). However, he
conceded that the airlock area (used by law) had not been blocked off. (Tr. Tr. I, 271).
b. Citation No. 8432126
i. Edward W. Law
At hearing Law testified that he had issued Citation No. 8432126 because he had
discovered four damaged roof bolts in the mine’s main north travel way in the crosscuts between
entries #5 and #6. (Tr. II, 281; S-14). The damaged bolts had created three different areas of
unsupported roof. Once a bearing plate is no longer against the roof as instantly, there is no
support as far as skin control.12 (Tr. II, 282).
Law had ended up at the cross-cut during his inspection in order to allow an outby
vehicle, which had right of way, to travel past him. (Tr. II, 283). “Just about everybody”
traveled the main north travel way throughout the day: miner, management, and safety people.
(Tr. II, 284). Law had drawn a diagram depicting the crosscut at issue. (Tr. II, 285; S-15, p. 4).
Law opined that the damaged bolt condition had been existent for several shifts prior to his
inspection because there were tracks through the area. (Tr. II, 286). After the four (4) bolts had
been damaged there was no evidence of supplemental support being added or re-bolting. (Tr. II,
288). Given the visible tracks on the mine floor and the need for vehicles to pull into the
crosscut to allow clearance, there was a hazard created of roof fall that could result in broken
bones. (Tr. II, 289). Law had graded the gravity as lost workdays due to falling roof rock
reasonably being expected to result in fractures causing lost workdays. (Tr. II, 289). Given the
11

See also Deere’s detailed description of route taken at Tr. I, 268-270 and R-37, p. 8 in
which Deere also asserts that no miner routinely traveled by the cited rib area.
12

A bearing plate secures the immediate roof, skin of the roof; it also anchors the bolt
tightly wherever the bolt is set with glue. (Tr. II, 282).

35 FMSHRC Page 3091

lack of skin control with only the bolt shaft remaining there was a reasonable likelihood of roof
fall. (Tr. II, 289).
When Law pulled into the crosscut, the condition was noticeable to him. (Tr. II, 290).
The area had not been flagged off. (Tr. II, 291). There would have been constant travel, up and
down, past the crosscut. (Tr. II, 291). Law had designated one person as likely to be affected
because in open top rides there would generally be only one person. (Tr. II, 292).
He had found moderate negligence because the affected area was off the travel way and
there were multiple crosscuts. (Tr. II, 292-293). The crosscut could have “easily been missed.”
(Tr. II, 292-293). The citation was terminated by having the bolts replaced and the area rebolted. (Tr. II, 294; S-13, p.2). Law had again recommended a special assessment because
§75.202(a) involved one of the ten “rules to live by” and because of Respondent’s past violation
history. (Tr. II, 294).
Israel Burtis, Respondent’s Safety Technician, had accompanied Law during his March 2,
2011 inspection. (Tr. II, 295).
On cross examination, Law testified that the four compromised bolts at issue had been hit
by some piece of mobile equipment: two had been sheered off and two had been damaged. (Tr.
II, 290-297). The damaged roof bolts were bent to the point where they were no longer in
contact with the roof. (Tr. II, 297). Law testified that at Respondent’s mine anybody, including
management, could have operated the machinery that had damaged the bolts. (Tr. II, 299-300).
Law specifically referenced his observation of scoop tracks (but not other machine tracks) in his
notes. (Tr. II, 301; R-14). He further did not observe any footprints. (Tr. II, 301).
Law agreed that, generally, mine examiners were not required to go into crosscuts. (Tr.
II, 303). On March 2, 2011 Law did not observe any material hanging from the roof or fallen
material on the floor. (Tr. II, 304). Law had not identified anyone at American Coal who had
observed the cited condition prior to Law’s citation issuance. (Tr. II, 304). Law did not know
the actual amount of limestone present above the immediate roof in the cited area. (Tr. II, 308).
A “good amount” of limestone offers the best support for a mine roof. (Tr. II, 308). If, however,
the limestone had been thinned out, there could have been a catastrophic failure and fatal injury.
(Tr. II, 308-309).
Stating that a “good amount” of limestone would be “even a foot,” Law agreed that the
goal was to anchor bolts in good limestone. (Tr. II, 309). Law did not record in his notes any
evidence of roof cracking, spalling or chandeliering in the cited area. (Tr. II, 312-313).

35 FMSHRC Page 3092

Law agreed that the bolts at issue were fully grouted resin bolts. (Tr. II, 313). He further
testified that if the head of a bolt had been sheered off or the bearing plate damage, because glue
is brittle, the bolt might not hold the roof skin layer.13 (Tr. II, 315-316).
Law agreed that there might be areas on each side of the crosscut where a golf cart could
pull in and remain under supported roof. (Tr. II, 319). Except for golf carts, other vehicles did
not have canopies, including the diesel ride, the scoop car and cab, the ram cars, and the
mantrips. (Tr. II, 319-320).
Law testified that any citation involving a violation of one of the ten required “rules to
live by” required filling out of a SAR (Special Assessment Review Form). (Tr. II, 320). Among
the factors considered in making a special assessment determination was Respondent’s prior
violation history. (Tr. II, 320-322; see also R-45).
Law testified that he was unfamiliar with the special assessment narrative form at R-19
and did not know how the special assessment column number had been arrived at.14 (Tr. II, 325326).
ii. Israel Burtis
At the hearing Israel Burtis appeared and testified on behalf of Respondent. Burtis
confirmed that Citation No. 8432126 (R-13) had been served on him by Inspector Law. (Tr. II,
331). Burtis and Law were riding in a golf cart when they arrived at the cited crosscut area. (Tr.
II, 334).
Burtis testified that he did not observe any adverse roof condition; he saw no T3
channel15 or screen wire which would have been indicative of roof failure. (Tr. II, 335). Burtis
saw nobody else in the area of the crosscut. (Tr. II, 336). Hourly employees operating
equipment would, however, be expected to go through the area. (Tr. II, 336).
On cross examination, Burtis testified that he traveled the main north travel way while
conducting audits. (Tr. II, 337). He confirmed that outby traffic had the right-of-way, requiring
inby traffic to pull into crosscuts in the affected area. (Tr. II, 337). During his audits, he did not
always pull into every crosscut. (Tr. II, 337). Although he did not see a T3 Channels or screen
mesh, Burtis did observe the sheered off and damaged roof bolts. (Tr. II, 338-339).
13

See Tr. II, 313-318, for full exchange between Respondent’s counsel and Inspector
Law regarding a full grouted resin bolt’s ability to support roof area if the bolt head is sheered
off or damaged. Despite counsel’s best efforts, Inspector Law would not concede that such
compromised bolts still afforded some support for roof skin.
14

Despite Law’s professed lack of knowledge regarding special assessment penalty
determinations, Respondent’s counsel argued that an inquiry into MSHA’s decision-making
process for special assessments was necessary. (See also Tr. II, 326-328).
15

T3 channels indicate low limestone. (Tr. II, 338).

35 FMSHRC Page 3093

iii. Gary Vancil, Jr.
At hearing Gary Vancil, Jr. (“Vancil”) testified on behalf of Respondent. Vancil worked
as a senior geologist for American Coal. (Tr. II, 340). His responsibilities included coal quality,
drilling, and most importantly, hazard mapping and roof control. (Tr. II, 340). He had attained
bachelor’s and master’s degrees in Geology from Southern Illinois, (Tr. II, 340). He had worked
in the limestone industry and had worked for 2 years with American Coal. (Tr. II, 341).
Vancil was familiar with the roof lithology at New Era Mine. (Tr. II, 341). Referring to
the roof control plan for subject mine, strata information, Vancil testified that the No. 6 seam
(the seam at issue) had a roof made up of sandstone, Anna shale, and Breaeton Limestone. (Tr.
II, 342; R-30, p. 4). The shale had a 4-6 inch thickness and the limestone a 5 foot, 6-inch
thickness. (Tr. II, 342; R-30, p. 4). Limestone would be strong, very competent it would not be
laminated or porous. (Tr. II, 343). Once coal is removed, the limestone, if 42 inches or more in
thickness, makes the best roof. (Tr. II, 343-344).
A limestone roof of such thickness would not be prone to chandeliering, scaling, or other
skin control issues. (Tr. II, 344). Vancil has observed how the limestone roof behaved at the
New Era Mine behind the longwall gob. On the 6th and 7th East panel, he could see behind the
shields the roof with no support and the face approximately 1,000 to 1,200 feet wide and the
limestone overhanging the shields for about 30 feet without breaking. (Tr. II, 345). Vancil was
not aware of any instance – based upon his personal experience, review of records, and/or talking
with individuals – in which there was a roof fall where the limestone was over 42 inches in
thickness. (Tr. II, 346-347). Records only recorded roof falls in area where the roof had gray
shale or limestone missing. (Tr. II, 347).
As opposed to limestone, Anna shale could be either “competent or incompetent,” “hit or
miss.” (Tr. II, 348).
Vancil testified that he had personal knowledge of the roof lithology in the cited area –
spad 15376 between Entries Five and Six. (Tr. II, 348). Referring to R-9, p. 2, a mine map
overlaid with his hazard map, Vancil indicated that roof bolters drew test holes to measure
limestone thickness. (Tr. II, 349). Vancil subsequently ran a camera up the roof into the test
hole(s) and recorded it, checking the roof lithology and trying to match it with the bolter’s tag.
(Tr. II, 349).
Vancil had personally inspected the cited area, including the immediate roof, and found
that it was limestone in the crosscut. (Tr. II, 350-351). In looking at the rib, Vancil could see
where there had been shale but it had been taken down during mining. (Tr. II, 351). However,
he saw no evidence of shale in the roof of the crosscut. (Tr. II, 351). One of the test boreholes
indicated over 6 feet of limestone in the crosscut. (Tr. II, 352). Vancil did not observe any
evidence of cracking, jointing, sandstone channels, or kettle bottoms in the roof. (Tr. II, 353).
Reviewing inspector Law’s drawing of the cited areas at R-14, p. 6, Vancil opined that it
was unlikely, based upon his experience and person knowledge of the area, that there would have

35 FMSHRC Page 3094

been skin control issues with the limestone roof in the area. (Tr. II, 353-354). Given the
limestone roof, Vancil opined that it was “highly unlikely” that the four damaged roof bolts
would have led to a larger roof fall. (Tr. II, 354).
On cross-examination, Vancil agreed that limestone could “quickly” vary at the mine,
“from crosscut to crosscut,” with varying degrees of lithology of the 6 seam. (Tr. II, 355).
Vancil was unsure as to whether he or a prior geologist had created the hazard map he
testified regarding. (Tr. II, 355). He had inspected the area in question after the citation had
been issued, approximately one week prior to the within May 22, 2013 hearing. (Tr. II, 356).
Vancil agreed that if there was shale or sandstone in the immediate area, even through there was
limestone present above, a bearing plate would serve as skin control. (Tr. II, 356). He further
agreed that once a fully grouted resin bolt’s glue of resin sets up, it becomes brittle, especially if
not mixed correctly. (Tr. II, 357).
c. Citation No. 8432129
i. Edward W. Law
As to Citation No. 8432129 (S-16), Law testified that he issued such on March 3, 2011
based upon Respondent’s violation of §75.202(a). (Tr. II, 360). Law had found the roof at
crosscut 8, between entries #5 and #4, to be inadequately supported. An area along the inby rib
had three (3) roof bolts that were too far from the coal pillar, exposing an area of 5.5 to 6 feet
wide by 20 feet in length. Also there were roof bolts (2) too far from the coal pillar exposing an
area 5.5 to 6 feet wide by 15 feet in length. (Tr. II, 361; S-16).
Law believed that Respondent’s roof control plan would have allowed only a four foot
distance off the rib. (Tr. II, 362). The #8 crosscut would be another area in which vehicles
would pull in to allow outby traffic. (Tr. II, 362). The area in question would be similar to the
previously testified to areas (Citation No. 843216). The crosscut itself was originally bolted in
compliance but the coal ribs or coal pillars had deteriorated to the point that a wide area was
created between the last row of bolts and the solid existing coal pillar. (Tr. II, 364). Coal pillar
deterioration could be caused by weight, weather, equipment, and/or moisture. (Tr. II, 364).
The coal pillar area had not been flagged off or dangered off. (Tr. II, 364). Once in the
crosscut, the unsafe condition was “pretty easily” seen. (Tr. II, 364).
Based upon his experience, Law opined that areas, such as that cited, did not go from
compliance to a 1 ½ to 2 foot distance in a short period. (Tr. II, 365). It would take several
shifts, depending if equipment was rubbing, causing it to rash out, or fairly quickly where cable
was hung around the corner. (Tr. II, 365). Under “normal terms,” weight and weather, the
condition would have taken “a while” to happen. (Tr. II, 365).
The hazard created was that of roof fall and/or rib roll out. The minimum 4 foot (bolting)
distance was so that there would not be unsupported areas in which coal might fall out,
individuals beings truck by roof, rock, and coal ribs being crushed out. (Tr. II, 367). Such
injuries would result in lost work days. (Tr. II, 367; S-17, p. 5). Because the rides were open-

35 FMSHRC Page 3095

sided, falling material could strike the operator or occupant of a vehicle, causing lost work days.
(Tr. II, 368).
Law had designated the conduct as constituting moderate negligence because it might not
have been observed unless one pulled into the area. (Tr. II, 368). Although he did not see
anybody in the area, Law indicated that examiners and management would travel through the
area and might pull into the crosscut. (Tr. II, 368-369). Law had recommended a special
assessment for essentially the same reasons, number of previous citations/violations, that existed
for the other citations testified to. (Tr. II, 370).
On cross examination, Law agreed that there were “lots of crosscuts” in the main north
area. (Tr. II, 371). He further agreed that the cited area was not an active section. (Tr. II, 372).
As with other citations Law had not issued any exam-related citations. (Tr. II, 372).
Law stated that the areas had become noncompliant because of rashing out and getting
wider when the bolts were originally installed. (Tr. II, 373). The areas were along both sides of
the crosscut. (Tr. II, 373). Law did not note any mobile equipment tracks or foot prints being in
the crosscut. (Tr. II, 373). Law agreed that the older an area is, the more the area will start to
widen and the more rib rash can occur. (Tr. II, 375). Law did not identify any actual cracking or
spalling in the roof. (Tr. II, 379). The fact that bolting was 6 feet from the rib caused the roof to
be compromised. (Tr. II, 379).
Law agreed that his notes and citation did not mention anything about the roof other than
the unsupported area. (Tr. II, 379). There was only mention that the 6 foot distance (from rib to
bolting) caused the roof to be compromised. (Tr. II, 380). Law’s rationale for special
assessment was essentially the same as previously testified to. (Tr. II, 381).
On re-direct examination Law indicated that he was travelling with mine manager,
Marvin Webb, at the time of the citation. (Tr. II, 382).
ii. Gary Vancil, Jr.
As to Citation No. 8432129, Vancil testified that he was personally acquainted with the
cited area. (Tr. II, 384). The immediate roof in the crosscut was limestone in the middle and
shale on the outside edges; limestone was in the middle of the entry and above the shale. (Tr. II,
384). There was approximately 67 inches of limestone between Entries Four and Five. (Tr. II,
384). Based upon the bolter tag and review of the hazard map, Vancil opined the limestone in
crosscut #8 was good. (Tr. II, 385-386; see also R-39, p. 3).
Given the rib rashing described in the citation, Vancil opined that the potential for a roof
fall in the immediate roof in crosscut 8 was unlikely. (Tr. II, 386). The limestone was
competent all throughout the area in question. (Tr. II, 386). Vancil did not observe shale in the
area where the rib rash was present. In the area where he saw roof support – cable bolts and
timber – he did not see any shale in the immediate roof. (Tr. II, 387-388). The limestone had
rolled down and was on top of the coal. (Tr. II, 388-389). Based upon his experience, the

35 FMSHRC Page 3096

unsupported 5.5 to 6 foot area that had rib rashing would not be at risk for a roof fall due to the
absence of water and the amount of limestone present. (Tr. II, 390-391).
On cross examination, Vancil indicated that he had inspected the area one week prior to
hearing. He did not know if the cable bolts had been installed in response to the citation. (Tr. II,
391).
3. Docket No. LAKE 2011-962
a. Citation No. 8432052
i. Edward W. Law
In reference to Citation No. 8432052 (S-9), Inspector Law testified that Respondent had
violated a mandatory safety standard, §75.1403. The safeguard involved was written so that
transportation type accidents could be avoided. (Tr. II, 395).
The original safeguard, Citation No. 3033358 was issued on January 13, 1988 when Law
was still working at (Kerr-McKee) Galatia Mine. (Tr. II, 393; S-10). A miner operator was
standing on the back side of a curtain when a ram car operator came through the curtain, striking
the miner and causing leg injuries. (Tr. II, 394; S-10). The safeguard provided that all
equipment be parked at least 25 feet away from curtains or that the curtain be marked to warn
miners that equipment was parked behind the curtains. (Tr. II, 394; S-10).
Law had observed a transformer, in violation of the safeguard, located directly behind a
curtain between entries 3 and 4 with no marking on the opposite side warning miners of its
presence. (Tr. II, 394-395). The transformer was up against the curtain in the area of the 9th
headgate. (Tr. II, 395). The transformer was approximately 12 feet by 18 feet in size and was
“very heavy.” (Tr. II, 396). Law estimated that it had been at the cited located for several shifts.
(Tr. II, 396). Miners in vehicles and doing set-up work would be in the area, including scoopers
and ram car operators. (Tr. II, 397). Though he had not issued a previous citation for an
improperly located/marked transformer, he had issued similar citations in the past for violating
the safeguard. (Tr. II, 398).
The hazard created by the safety violation would be: some vehicle ramming in the
transformer and the vehicle operator being injured; or some miner on foot behind the transformer
being struck by the transformer after it was rammed. (Tr. II, 400). It was likely that somebody
would be injured because a miner-pedestrian would have no protection from the collision. If
another vehicle was cutting behind the transformer, the miner-pedestrian could be caught
between 2 pieces of equipment. (Tr. II, 401). Although law had designated the gravity as lost
workdays, he indicated the injury could be worse. (Tr. II, 401).
In the case of a mobile equipment operator, he would suffer impact injuries – though such
injuries would likely be less serious than those suffered by a miner on foot. (Tr. II, 402). Law
observed that equipment operators did not wear seat belts. (Tr. II, 402). Law found that one

35 FMSHRC Page 3097

individual would likely be affected, although, given the right circumstances, two people could be
injured. (Tr. II, 403).
Law had found only moderate negligence because it was difficult to ascertain who would
have actually known the transformer’s location. (Tr. II, 404). Light could be seen through the
curtain; a shadow of an object might also be discerned. (Tr. II, 404). In order to have proper
markings, hang flags or pogo sticks indicating, “stop, power center” should have been erected.
(Tr. II, 405). Also, something should have been hung in the crosscut, alerting the operator before
he got to the curtains. (Tr. II, 405). The citation had been terminated after the curtain was
marked to warn miners. (Tr. II, 406). Law held a close-out conference after issuing the citation.
(Tr. II, 406).
On cross examination, Law stated that the curtains at the time of the within citation were
pull-though curtains, made of plastic or nylon base. (Tr. II, 408). At the time of the original
safeguard incident the curtains were opaque. (Tr. II, 408). Miners cars and ram cars, as involved
in the earlier incident, moved along frequently. (Tr. II, 409-410). Law agreed that individuals
on a working crew would know during their shift the locations of the transformer. (Tr. II, 412).
He further agreed that, as a general practice, miners would be dropped off in the area of the
transformer. (Tr. II, 412). Law estimated that he had cited the instant safeguard less than 5
times in the past. (Tr. II, 416). Law indicated that the 55 past citations noted in the instant
citation concerned a multitude of safeguards associated with §75.1403 and not just No.
3033358.16 (Tr. II, 417; S-9).
Though not mentioned any specific activities in his field notes, Law asserted that he
observed vehicles and individuals, in addition to bolters, in the cited area. (Tr. II, 419-420).
Law remembered a string of lights above the transformer, although he did not know the specific
number of light bulbs. (Tr. II, 432).
In recommending the within citation for a special assessment, Law considered the
number of previous §75.1403 violations, that the violation involved on of the ten “rules to live
by,” and that it was S&S. (Tr. II, 433).
ii. Israel Burtis
At the hearing Burtis testified that he had accompanied Inspector Law when the within
citation was issued. (Tr. II, 436; R-6). Burtis testified that the curtain involved was a clear runthrough curtain. The power station (transformer) was on the back side and lit up. (Tr. II, 436).
Burtis asserted that one could see through the curtain and what was behind the curtain. (Tr. II,
437). The power center was where everyone came for communications and maps. (Tr. II, 437).
Everybody gathered at the power center at the start of the shift to get their game plan together for
the day. (Tr. II, 437).

16

See also R-36 for various other safeguards cited in connection with §75.1403 and
Respondent’s cross-examination regarding such at Tr. II, 417-418.

35 FMSHRC Page 3098

Burtis further testified that he could tell where the power center was because of the lights
which illuminated the entry and shone through the curtain. (Tr. II, 437-438). In addition to the
transformer, Burtis observed a roof bolter and possibly broken down battery scoop in the area.
(Tr. II, 438).
iii. Edward W. Law
On rebuttal, Law stated that he recollected that the cited curtain was a line curtain that
was opaque. While one could see light through it, one could not tell what type of equipment was
behind it. One could only see shadows of things. (Tr. II, 439).
On cross examination, Law disagreed that clear curtains were commonly used behind a
transformer at Galatia Mine. (Tr. II, 440).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Citation No. 8432052 (LAKE 2011-962)
a. The Secretary Has Carried His Burden Of Proof By A Preponderance Of The
Evidence That §75.1403 (Safeguard No. 3033358) Was Violated.
On January 4, 2011, Inspector Edward Law issued the within citation which, under
Section 8, Condition or Practice, reads as follows:
The 12,470 VAC Unit transformer company #90, located on the 9th West
Headgate, 008-MMU, between #3 and #4 at the survey station 19,546 North is
parked against a curtain and the opposite side of the curtain is not marked with to
warn miners of the equipment parked on the other side.
Standard 75.1403 was cited 55 times in two years at mine 1102752 (55 to the
operator, 0 to a contractor).
(S-9).
§75.1403, Other Safeguards, provides as follows:
Other safeguards adequate, in the judgment of an authorized representative of the
Secretary, to minimize hazards with respect to transportation of men and materials
shall be provided.
30 C.F.R. §75.1403.
Safeguard No. 3033358, in pertinent part, requires that “all equipment be parked at least
25 feet away from curtains or that the curtain be marked to warn miners that equipment is parked
behind the curtains.” (S-10).

35 FMSHRC Page 3099

At hearing, Inspector Law testified he observed a transformer located directly against a
curtain in the area of the northwest headgate with no markings on its opposite side to warn
members of its presence. (Tr. II, 394-395). A very heavy piece of equipment, the transformer
was approximate 12 feet wide and 18 feet long. (Tr. II, 394-395). The curtain in question was
opaque. Light and shadows could be perceived behind it but not objects. (Tr. 404-405).
In issuing the instant citation, Law referenced the accident described in Citation No.
3033358 (safeguard) (S-10). An individual, while working on a continuous miner, located
approximately six feet behind an (unmarked) curtain, was struck by a ram car coming through
the curtain. (Tr. II, 394). The safeguard required that “all equipment” be parked at least 25 feet
from curtains or that the curtains be marked to warn miners that equipment was parked behind a
curtain. (S-10).
At hearing, Respondent offered no evidence contradicting Law’s testimony regarding
the location of the transformer vis a vis the curtain. Nor did Respondent present any evidence
establishing that the curtain itself was marked. Further, Respondent offered no evidence that the
area on the opposite side of the curtain was in any way flagged or posted.17
Given such the ALJ finds that the Secretary clearly carried his burden of proving by a
preponderance of the evidence that Respondent had violated §75.1403 and associated safeguard.
In reaching this finding the ALJ specifically rejects Respondent’s argument that the
within citation should be vacated because a properly narrow construction of the safeguard would
require that “equipment” mean only mobile equipment. (Respondent’s Post-Hearing Brief, p.
58). As the Secretary correctly argues, the inspector, who issued the safeguard notice, did not
restrict in any way the type of equipment to be covered. (Secretary’s Post-Hearing Brief, p. 14).
The ALJ agrees with the Secretary’s position that the language of the notice recognizes that it is
“the presence of equipment behind a curtain, and not the means of transportation for that
equipment that contributes to the hazard.” (Id.). Likewise, the ALJ accepts the Secretary’s
argument and cited case law that “parked” does not change the meaning of the word
“equipment” but rather refers to the temporary nature of the equipment in a particular location.
(Id.).
The first element of Mathies – the underlying violation of a mandatory safety hazard –
has been clearly established.

17

At hearing Law testified that hang flags or pogo sticks should have been erected
warning the miners of the transformer’s location. (Tr. II, 405). He further suggested something
be hung out in the crosscut as advance warning because the transformer at issued was up against
the curtain. (Tr. II, 405).

35 FMSHRC Page 3100

In Wolf Run Mining, 32 FMSHRC 1228, 1233 (2010) the Commission concluded that a
violation of safeguard notice issued by a MSHA inspector constitutes a violation of Section
314(b)18 of the Mine Act and is therefore a violation of a mandatory safety standard.
The clear purpose of the safeguard is to protect miners from possible injury because the
presence of equipment behind an unmarked curtain might not be known or perceived. The
unreasonably narrow construction suggested by Respondent would inexorably lead to all sorts of
hairsplitting defenses19 by miner operators that would defeat this purpose.
In its brief Respondent also argued that the within citation should be vacated because a
strand of lights illuminated the transformer area and constituted a de facto marking of the curtain
as to bring attention and notice of the transformer’s location. (Respondent’s Post-Hearing Brief
at p. 60; see inter alia, Tr. II, 432, 436-437, 439).
This Court also holds that the clear wording of the safeguard requires that curtains be
marked and not merely that an area be illuminated.
The problem with Respondent’s light equals marking and notice rationale is that in the
case sub judice, despite the presence of lighting, Inspector Law could not see what was actually
behind the curtain at issue or the object’s depth. (Tr. II, 439). The purpose of the safeguard is to
alert miners of the actual presence of equipment at a close distance behind the curtain. Lighting
which merely allows miners to possible discern shadow-shapes at some unknown depth behind a
curtain does not sufficiently satisfy the safeguard’s purpose.
Likewise, Respondent’s argument and evidence that the location of the transformer was
well-known to those working on the section is equally unpersuasive as to the essential issue of
violation.20 (see, inter alia, Respondent’s Post-Hearing Brief at p. 59).

18

“(b) Other safeguards adequate, in the judgment of an authorized representative of the
Secretary, to minimize hazards with respect to transportation of men and materials shall be
provided.”
19

The ALJ foresees similar case scenarios as existed here. Equipment might have
missing or damaged wheels or rollers or skids; equipment might lack power or a power source;
equipment might be tagged out; equipment might have defective parts rendering it inoperable.
Mine operators, accepting Respondent’s narrow construction, could arguable claim that such
equipment was not technically mobile and, therefore, fell outside the scope of the safeguard.
20

The ALJ, however, accepts that the factors of lighting and known location may be
considered in determining the level of negligence and in assessing gravity.

35 FMSHRC Page 3101

Respondent seems to suggest that he should be found not to have violated §75.1403
because most miners were aware of the within transformer’s location.21 However, the purpose of
the safeguard is to reasonably alert all individuals, include those unfamiliar with the affected
mine area, that a piece of equipment is located behind a curtain.
The ALJ therefore finds that Citation No. 8432052 was properly issued by Inspector law
for a violation of §75.1403 (Safeguard No. 3033358) and should not be vacated.
b. Considering The Record In Toto And Applying Applicable Case Law, The
Violation Was Significant And Substantial In Nature.
Well-settled Commission precedent sets forth the standard used to determine if a
violation is S&S. A violation is S&S “if, based upon 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., National Gypsum Co., 3 FMSHRC 822,
825 (April 1981). The Commission later clarified this standard, explaining:
In order to establish that a violation of a mandatory safety standard is significant
and substantial under National Gypsum, the Secretary of Labor must prove: (1)
the underlying violation of a mandatory safety standard; (2) a discrete safety
hazard – that is, a measure of danger to safety – contributed to by the violation;
(3) a reasonable likelihood that the hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury in question will be of a reasonably
serious nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984).
As discussed supra, the first element of Mathies has been proved by the Secretary.
As to the second prong of Mathies – a discrete safety hazard, that is a measure of danger
to safety, contributed to by the violation – the record again establishes satisfaction of such.
At hearing Inspector Law testified in detail regarding the discrete safety hazards
contributed to by the safety standard/safeguard violation. An individual walking behind the
transformer might be struck by the transformer being moved by a vehicle ramming into it
through the unmarked curtain. (Tr. II, 400). A vehicle operator ramming into the transformer
might also sustain injuries, including lacerations. (Id.). There was further potential of both
injuries happening at the same time involving a miner on foot on the other side of the curtain
and/or someone in a vehicle on the opposite side. (Id.).

21

Taken to its logical conclusion, such a defense would allow operators to justify their
failure to post warnings because of alleged “common knowledge” regarding the existence of
safety hazards – a slipper slope for miners’ safety.

35 FMSHRC Page 3102

Law also testified that if an individual was “cutting behind” the transformer and a big
piece of equipment came through and the miner did not know it was coming, he could be caught
between the two pieces of equipment.22 (Tr. II, 401).
The third element of the Mathies test – a reasonable likelihood that the hazard contributed
to will result in an injury – is also supported by the record and applicable case law.
The Commission recently discussed the third element of the Mathies test in Musser
Engineering, Inc., and PBS Coal Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010) (“PBS”)
(affirming an S&S violation for using an inaccurate mine map). The Commission held that the
“test under the third element is whether there is a reasonable likelihood that the hazard
contributed to by the violation , i.e., [in that case] the danger of breakthrough and resulting
inundation, will cause injury.” Id. at 1281. Importantly, we clarified that the “Secretary need
not prove a reasonable likelihood that the violation itself will cause injury.” Id. The
Commission concluded that the Secretary had presented sufficient evidence that miners who
broke through into a flooded adjacent mine would face numerous dangers of injury. Id. The
Commission also emphasized the well-established precedent that “the absence of an injuryproducing event when a cited practice has occurred does not preclude a determination of S&S.”
Id. (citing Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005); and Blue Bayou Sand &
Gravel, Inc., 18 FMSHRC 853, 857 (June 1996).
At hearing Inspector Law described the hazard posed to a mobile equipment operator of
colliding with a hidden transformer as being reasonably likely to result in an injury to the
operator “banging around inside” (a cab) and “being jostled.”23 (Tr. II, 401, 402). The hazard
posed to miner on foot being struck by equipment whose operator was unaware of his presence
behind an unmarked curtain would also reasonably be likely to result in an injury. (see also
Secretary’s Post-Hearing Brief at p. 16 re Mathies third element that the Court adopts without
recitation herein).
Under Mathies the fourth and final element that the Secretary must establish is that there
is a “reasonable likelihood that the injury in question will be of a reasonably serious nature.”
Mathies Coal Co., 6 FMSHRC at 3-4; U.S. Steel, 6 FMSHRC at 1574.
With respect to the fourth Mathies element, as outline supra, Law testified that injuries
resulting from the cited violation would be lost workdays or restricted duty. (Tr. II, 401-402; S9). Law further observed that a person pinned between mobile equipment and being knocked
22

Though he assessed the gravity as lost workdays or restricted duty, Law noted the
injury in such a scenario could be much worse. (Tr. II, 402). The potential for catastrophic
injury or death due to pinning between machines or machines and standing objects is beyond
dispute. The ALJ notes a recent July 18, 2013 MSHA fatal-gram regarding the tragic death of an
Illinois miner. While taking lunch behind a line curtain, he was truck by a battery powered coal
hauler and fatally pinned between the coal hauler and coal rib.
23

At hearing Law further noted that equipment operators in mines generally do not wear
seat belts.

35 FMSHRC Page 3103

under the rub rail would sustain even worse injuries. (Tr. II, 402). A mobile equipment operator
traveling through the curtain and colliding with the transformer would likely sustain injuries
including lacerations. (Tr. II, 400).
Given Musser’s holding that the Secretary need not prove the violation itself will cause
injury, Commission law that the absence of an injury producing event does not preclude a
determination of S&S,24 and Inspector Law’s judgment that the within violation was “S&S,” the
undersigned finds the Secretary has also carried its burden of proving S&S.25
c. Respondent’s Conduct Was Reasonably Designated As Being “Moderate” In
Nature.
In the citation at issue, Inspector Low found that the operator’s conduct was moderately
negligent in character.
30 C.F.R. §100.3(d) provides the following:
(d) Negligence. 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.
In 30 C.F.R. §103(d), Table X, the category of moderate negligence is described thusly:
“The operator knew or should have known of the violative condition or practice, but there are
some mitigating circumstances.”
At hearing, Law testified that he had designated only a moderate level of negligence
because “it was difficult to tell who would have known if (the condition) was there.” (Tr. II,
404). “There was no supervisor directly in the area and no mine manager in the area that I could
say was aware of it.” (Tr. II, 404). However, Law opined that, “someone should have seen it on
one of their passing through exams…” (Tr. II, 404).
A reasonably prudent person, familiar with the mining industry and protective purpose of
the standard, would be constrained to agree with Law’s assessment that someone should have
seen the unsafe condition posed by a transformer being juxtaposed to an unmarked curtain. The
24

See Elkhorn Coal Co., 27 FMSHRC 899, 906 (Dec. 2005).

25

The Commission has held that the judgment of an MSHA inspector is an “important
element” in determining whether a violation is S&S.

35 FMSHRC Page 3104

miner operator’s conduct did fall below the high standard of care imposed by the mine not to
protect miners against the risks of harm associated with machinery that is hidden or obstructed
from view by a curtain.
The ALJ finds no reason to modify any of the negligence or gravity findings reached by
Inspector Law as to this citation and adopts all of the Secretary’s Post-Hearing Brief rationales in
support of such.
d. Penalty
The ALJ shall discuss the issue of penalty imposition in greater depth with succeeding
citations. The Court has broad discretion to assess penalties de novo. See Spartan Mining Co.,
2008 WL 4287784 at 22 (2008).
As noted supra, while not accepting Respondent’s arguments that illumination of the area
and/or miner’s general awareness of the transformer’s location dictated vacating the citation, the
ALJ does view those factors as constitute mitigating circumstances. The ALJ gave only partial
credence to the testimony of Respondent’s witness regarding the visibility of the power center
through the curtain, but does not accept that the illumination of the curtain gave possible partial
warning regarding the hazard. Likewise, the ALJ accepts that most miners in the area were
aware of the transformer’s location despite the lack of curtain marking.26 In the circumstances
the ALJ finds it reasonable to reduce the proposed $4,800.00 penalty to $3,800.00. The citation
is otherwise affirmed as issued.
2. Citation No. 8428508 (LAKE 2011-701)
a. The Secretary Has Carried His Burden Of Proof By A Preponderance Of The
Evidence That §75.202(a) Was Violated.
On October 22, 2010, Inspector Phillip Stanley issued Citation No. 8428508 to
Respondent, alleging violation of 30 C.F.R. §75.202(a). The following unsafe condition or
practice was cited:
The roof or rib where persons normally work or travel was not supported to
protect persons from the hazards associated with the fall of the roof and rib. An
area of unsupported roof exists at survey station 314.09 north in entry #1 of the 4th
East Headgate. From the inby corner going across entry #1 to the solid bock, 6
roof bolts are hanging from the roof, from 6 inches up to more than 2 feet, and are
not supporting the roof. The distance from the corner to the first effective roof
bolt is 14 ft. The width of the unsupported roof as you go inby is 6 ft. This area
is frequently travelled and an insufficient examination is also being cited.
(Citation No. 8428509)

26

See Secretary’s Post Hearing Brief questioning Burtis’ testimony at p. 12, FN 12.

35 FMSHRC Page 3105

Standard 75.202(a) was cited 109 times in two years at mine 11-02752 (109 to the
operator, 0 to a contractor).
(S-1).
Standard 75.202(a) provides as follows:
(a) The roof, face and ribs of areas where persons work or travel shall be
supported or otherwise controlled to protect persons from hazards related to
falls of the roof, face or ribs and coal or rock bursts.
In finding that the above standard was in fact violated the ALJ has been guided by
controlling jurisprudence which holds that mine operators are strictly liable for violations of
health and safety standards regardless of the chance of injury. See e.g. Asarco v. Comm’n, 868
F.2d 1195, 1197 (10th Cir. 1989). “[W]hen a violation of a mandatory safety standard occurs in a
mine, the operator is automatically assessed a civil penalty.” Id. at 1197. If conditions existed
that violated the regulations, citations are proper. Allied Prods., Inc. v. Comm’n, 666 F.2d 890,
892-93 (5th Cir. 1982)(footnote omitted). The Secretary is not required to prove that violation
creates a safety hazard or that a violation is significant and substantial. Asarco, 30 FMSHRC
254, 256 (2008). A non-significant and substantial violation should be found and a penalty
assessed even if the chance of injury is not very great. Id.
At hearing Inspector Stanley27 testified that he had observed six (6) roof bolts in the
northeast headgate area that were not supporting the immediate mine roof. (Tr. I, 16-17, 22, 24).
The bracing plates were not in contact with the roof and shale pieces had fallen away from
between the roof and the plates. (Tr. I, 21, 26). Stanley concluded that the bolts – one of which
appeared to be bent -- were no longer serving any purpose in controlling the immediate roof.
(Tr. I, 25-27).
Stanley further opined that the unsafe condition had existed for a “considerable period of
time” given the gray color of the rock dust in the area. (Tr. I, 27). The draw rock, which had
drawn to the floor, had a mixture of rock dust and float coal dust, as well as old and new foot
traffic across the gob. (Tr. I, 27-28). Based upon his mining experience, Stanley opined that the
area had been rock dusted two to three weeks prior. (Tr. I, 28-29). The rock dust had “certainly”
been there for more than one shift. (Tr. I, 29). The foot traffic due to discoloration appeared
more recent in origin. (Tr. I, 29-30).
Stanley testified that this area was examined regularly – at least once per shift. (Tr. I,
32).

27

Stanley had less experience as an inspector and less experience in coal mining than
Law. (see also summary of testimony supra regarding such). As discussed infra the ALJ
accorded somewhat less weight to certain of Stanley’s determinations because of such.

35 FMSHRC Page 3106

As a result of his observations Stanley issued the within citation for violations of
§75.202(a).
In its Post-Hearing Brief, Respondent properly states that it is the Secretary’s burden,
under the Mine Act, to prove each alleged violation by a preponderance of the evidence. (See
Respondent’s Post-Hearing Brief at p. 13); see also Commission and Circuit case law holding
such as Keystone Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995), aff’d 151 F.3d 1096
(D.C. Cir. 1988). However, this burden is not an onerous “beyond a reasonable doubt burden”
but a standard that only requires the Secretary to prove something is “more likely than not.”
Keystone Mining Corp., 17 FMSHRC at 1838.
In its brief, Respondent essentially argues that there was insufficient evidence presented
to establish that the condition existed in “areas where persons work or travel.” (See Respondent’
Post-Hearing Brief at p. 14 and 30 C.F.R. §75.202(a)). The ALJ grants that the cited area was in
an outby section of Respondent’s mine near seals and distant from active work areas.28
However, the statutory language of §75.202(a) does not demand that the Secretary prove the
affected area is “frequently” traveled or “actively” worked – only that it be shown that persons
work or travel in the area.
In the final analysis, the undersigned gave credence to Stanley’s observations and
opinions that foot prints had recently been made by an individual or individuals – whether
examiners, rock dusters, or pumpers – in the area where the damaged bolts and unsupported roof
was located. (see also summary of testimony supra for Stanley’s more detailed testimony as
wells as Secretary’s Post Hearing Brief arguments which the undersigned found persuasive
regarding such at pp. 17-22).
The ALJ has also considered the reported admission of Respondent’s safety officer,
Michael Smith, that examiners did, in fact, travel through the cited area. This admission, which
Stanley also documented in his field notes, was corroborative of Stanley’s testimony and opinion
regarding signs of recent foot travel in the cited area.29 (See also Tr. I, 40; S-2, p. 7).

28

As discussed infra the ALJ did find such factors to constitute mitigating circumstances
as to inter alia the level of negligence designated.
29

Although Smith denied making such a statement, (Tr. I, 160) the ALJ, as trier of fact,
has a duty to resolve conflicts in testimony without finding that a witness committed perjury.
The ALJ found Stanley to be an honest historian and declines to accept Smith’s suggestion that
Stanley had made up the admission and fabricated notes “to bolster” his citation. (see also Tr. I,
160). Later, in his testimony Smith states, “I don’t recall making that statement.” (Tr. I, 167).
However, he did not produce his own notes which he had taken of the conversation. (Tr. I, 168).
When confronted with conflicting testimony and mindful of a preponderance of the evidence
standard, the ALJ finds that it is “more likely than not” that Stanley’s recollection of events,
supported by contemporaneous notes, was more credible than Smith’s bald recollections.

35 FMSHRC Page 3107

b. Considering The Record In Toto and Applying Applicable Case Law, The
Violation Was Significant And Substantial In Nature.
Applying the Mathies test to the within citation, the undersigned finds that the violation
of §75.202(a) was significant and substantial in nature.
As discussed supra, there is sufficient evidence to establish that the cited roof area was
not supported or otherwise controlled to protected persons from hazard related to roof falls. A
discrete safety hazard – falling roof material – was contributed to by the violation. (See inter alia
Tr. I, 32 where Stanley testified regarding “fractured shale.”)
There was a reasonable likelihood that the hazard contributed to by the violation would
result in an injury.30 Stanley credibly described the unsafe roof condition with 6 to 12 inches of
rock having already fallen in the area of foot travel. (Tr. I, 26, 31-32).
The ALJ further finds that the hazard of falling roof material would create a reasonable
likelihood that the injury in question would be of a reasonably serious nature so that Mathies
fourth element is also satisfied.
c. Gravity
The ALJ recognizes that a roof fall can spread into adjacent areas (see also Secretary’s
Post Hearing Brief at p. 22 and Tr. I, 105). However, the ALJ finds that the injury which could
reasonably be expected to result from the within standard would be more reasonably designated
as lost workdays or restricted duty. The ALJ finds that rather than being pinned by falling roof
material a miner would most likely be struck by falling shale.
d. Negligence
The ALJ further finds that Respondent’s conduct in this matter was at a moderate level of
negligence rather than at a high level as designated by Inspector Stanley. Although, as discussed
supra, the inactive character of the cited area does not preclude a finding of violation, the ALJ
does accept, in part, Respondent’s arguments that this factor lessened the degree of negligence
on the part of the mine operator. (see also Respondent’s Post-Hearing Brief at pp. 22-24). As
discussed infra, the ALJ also agrees in part with Respondent’s argument that the adjacent nature
of the cited conditions constituted somewhat less of a hazard. (Respondent’s Post-Hearing Brief
at p. 21).
The ALJ observes that the factual issues of who had actually been present in the cited
area and who know or should have known of the cited conditions were hotly contested both at
hearing and in the parties’ briefs. The ALJ ultimately finds that the Secretary carried his burden
of proof that some person or persons did enter the cited area and was exposed to the hazard of
roof fall and should have at least constructively known of the violative condition. However, the
30

The ALJ again recognizes the Secretary, under Musser, above cited, need not prove a
reasonably likelihood that the violation itself will cause injury.

35 FMSHRC Page 3108

ALJ recognizes that Respondent raised legitimate questions regarding these issues which compel
the ALJ to find a lesser degree of negligence than found by Inspector Stanley.
e. Penalty
Before addressing the actual penalty to be imposed as to this particular citation, which
was specially assessed, the undersigned will address the contentions of the parties regarding
special assessments in general
i. Contentions of the Secretary
Mine operators are subject to civil penalties for violations under the Mine Act. The
purpose of the penalties is to provide a strong incentive for compliance. The penalty amount
should be sufficient to encourage the operator to comply with safety regulations rather than to
pay penalties and continue in noncompliance. (see Secretary’s Post-Hearing Brief at p. 8 and
cited statutory and case law legislative history).
The Court has broad discretion to assess penalties de novo. In assessing civil monetary
penalties the Commission shall consider the factors set forth at §110(i) of the Mine Act, 30
U.S.C. §820(i). In addition the violation’s negligence level and possible S&S character should
be taken into account. (Secretary’s Post-Hearing Brief at pp. 8-9).
Respondent should have been aware of the possibility of special assessments. Continued
violations of standards were repeatedly cited; the violations were the focus of increased
educational and enforcement efforts which would lead to greater enforcement scrutiny. Given
the time span during which the citations/dockets were issued, Respondent needed to implement a
program that would lessen the frequency of violations. (Secretary’s Post-Hearing Brief at 34-p.
35).
The purpose of the penalties is to compel compliance with health and safety laws and
regulations to deter operators from violating such mandates. ALJs should consider the deterrent
effect of penalties in addition to 110(i)’s six statutory factors. (Secretary’s Post-Hearing Brief at
p. 35).
Special Assessment Review (“SAR”) forms are irrelevant in the context of de novo
proceedings and, accordingly, the SAR form is not relevant for any purpose. (Secretary’s PostHearing Brief at p. 36) (emphasis added).
ii. Contentions of Respondent
Special assessments proposed by the Secretary prevent the Commission and its ALJs
from assessing civil penalties without the appearance arbitrariness. (Respondent’s Post-Hearing
Brief, at pp. 1-6).
The Secretary’s change to the special assessment program in 2007 rendered the
regulation vague, ambiguous, and undeserving of deference. (Respondent’s Post-Hearing Brief,
at pp. 6-10).

35 FMSHRC Page 3109

The Secretary failed to meet his burden of proving, “particularly serious and egregious
violations” or “other aggravating circumstances” justifying enhanced penalties. (Respondent’s
Post-Hearing Brief, pp. 10-19).
In its brief Respondent cites the recent decision of ALJ Zielinski in American Coal Co.,
LAKE 2011-183 et al, slip op., at 51 (June 13, 2013) (ALJ Zielinski); (see also Respondent’s
Post-Hearing Brief at p. 12). However, although ALJ Zielinski recognized American Coal’s
concerns about the practical implications of the Secretary’s determinations to specially assess
violations were well founded,31 he ultimately concluded that whether the Secretary proposed a
regularly or specially assessed penalty was not relevant to the Commission’s determination of a
penalty amount. (American Coal Co., at p. 51).
This Court is of the same opinion.32
Regardless of the special assessment arrived at by the Secretary and the methodology,
however flawed, used – this Court is guided in its final determinations by the polestar of 30
U.S.C. §820(i) penalty considerations:
In assessing civil monetary penalties, the Commission shall consider the
operator's history of previous violations, the appropriateness of such penalty to
the size of the business of the operator charged, whether the operator was
negligent, the effect on the operator's ability to continue in business, the gravity of
the violation, and the demonstrated good faith of the person charged in attempting
to achieve rapid compliance after notification of a violation.
The ALJ has been further guided by Commission case law instructing how §110(i)
criteria should be evaluated. Inter alia, the undersigned notes: the Commission’s holding in
Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997) that all of the statutory criteria
must be considered, but not necessarily assigned equal weight; and the Commission’s holding
Musser Engineering, 32 FMSHRC at 1289 that, generally speaking, the magnitude of the gravity
of the violation and the degree of operator negligence are important factors, especially for more
serious violations for which substantial penalties may be imposed.
31

The undersigned also notes that ALJ Zielinski also found Respondent’s arbitrariness
and due process arguments were unavailing in light of the Supreme Court holding in Fox
Television Station, Inc., 132 S.Ct. 2307, 317 (2012)
32

At hearing this Court allowed the admission of the Secretary’s “SAR” form over the
objection of the Secretary. Pending briefing by the parties this Court reserved his ruling as to the
evidentiary purpose that the form could used for. After considering the arguments of both parties
and mindful of the split opinions as to the discoverability of the forms, this Court concludes that
the forms are admissible for the limited evidentiary purpose of corroborating the inspector(s)
testimony that they had, in fact, recommended special assessments which were subsequently
approved by MSHA superiors. While such evidence is perhaps technically relevant, this ALJ has
not accorded the forms any probative weight in determining the penalty amounts in this case.

35 FMSHRC Page 3110

With reference to the operator’s history of previous violations, the ALJ agrees with the
Secretary’s argument that the imposition of significant penalties33 is consistent with case law
holding repeated violations and notice of heightened scrutiny warrant increased penalties. (see
also Secretary’s Post-Hearing Brief at pp. 10-11 and cited case law).
iii. Penalty Assessed
A recent decision, Sec. v. Performance Coal Co., (Docket No. WEVA 2008-1825
(8/2/2013) reaffirmed that neither the ALJ nor the Commission is bound by the Secretary’
proposed penalties. (see also 29 C.F.R. §2700.30(b)). However, the Commission in
Performance Coal, also held that, although there is no presumption of validity given to the
Secretary’s proposed assessments, substantial deviation from the Secretary’s proposed
assessments must be adequately explained using §110(i) criteria. (Id. at p. 2). (see also Cantina
Green, 22 FMSHRC 616, 620-621 (May 2000)).
The ALJ finds that a substantial deviation from the Secretary’s proposed assessment is
warranted herein. As discussed supra, Respondent’s conduct was not, in this Court’s opinion,
highly negligent but only moderately negligent. Further, the gravity designation as to the injury
to be expected is more properly described as lost workdays or restricted duty.34
Affirming the citation as issued with a modification of negligence from moderate and
gravity of expected injury from permanently disabling to lost workdays or restricted duty, the
ALJ finds the Secretary’s proposed penalty should reduced from $40,308.00 to $20,000.00.

33

In Sec. v. Black Beauty (Docket Nos. LAKE 2008-327 et al (August 2012), the
Commission, citing its seminal decision in Sellersburg Stone, 5 FMSRHC at 295, considered
whether an ALJ is permitted to take into account the deterrent purpose of the penalty provisions
of the Mine Act when reviewing a settlement proposed. The Commission held that a Judge’s
decision in accessing a penalty is bound by proper consideration of the statutory criteria and the
deterrent purpose underlying the Act’s penalty assessment scheme.
34

The ALJ , as discussed infra, also finds that the adjacent nature of the cited conditions
presented less of a hazard to miners. (See Respondent’s Post-Hearing Brief at p. 41).

35 FMSHRC Page 3111

3. Citation No. 8432118 (LAKE 2012-58)
a. The Secretary Has Carried His Burden Of Proof By A Preponderance Of The
Evidence That §75.202(a) Was Violated.
On February 28, 2011, Inspector Edward W. Law issued Citation No. 8342118 to
Respondent, alleging violation of 30 C.F.R. §75.202(a). The following unsafe condition or
practice was cited:
The outby ribs at the 1st East Headgate seal entrance are not being
adequately supported or controlled where miners normally work or travel to
protect miners from the hazards related to falls of the roof and ribs. The
hazardous rib is cracked, broke up and leaning with a gap behind the rib of 1 to 3
inches from rib to coal pillar. The rib is undercut at the base approximately 6 to 8
inches. The rib is approximately 5 to 8 feet long, 7 feet high and 3 to 10 inches
thick. The area was flagged out by management after a citation was issued to
prevent travel in the area.
Standard 75.202(a) was cited 97 times in two years at mine 1102752 (97 to the
operator, 0 to a contractor).
(S-13).
In finding that the above standard was in fact violated the ALJ incorporates the pertinent
legal standards and case law with respect to §75.202(a) referenced in the discussion of Citation
No. 8428508, supra.
At hearing Inspector Law testified that he had observed inadequately supported ribs in
the 1 East tailgate.35 Specifically, he observed a cracked rib, broken, leaning, with a gap behind
it up to three inches from the coal pillar. (Tr. I, 193, S-13). The rib was approximately seven feet
high and tapered to the base where it was undercut.36 (Tr. I, 192-193). Law concluded that the
cracked, undercut rib was no longer supporting the coal pillar – “It’s like taking…a leg up from
underneath the table.” (Tr. I, 194).
st

Given the area that was undercut, Law estimated that the condition had existed for a
number of shifts. (Tr. I, 196, 200). Further, he testified that he could see where the area had
been worked on, where parts of the rib had been pulled down. (Tr. I, 198). The area was not
flagged or dangered off in any way. (Tr. I, 198).

35

Initially, Law had cited the 1st East headgate, but he later modified the citation to more
accurately reflect his observations. (Tr. I, 206-207; see also S-12, pp. 1 and 2).
36

Law explained that the bottom in this area was fireclay, which can deteriorate
underneath of a rib and cause a coal pillar to become unsupported. (Tr. I, 193). This is what he
referred to as becoming “undercut.” (Tr. I, 193).

35 FMSHRC Page 3112

As a result of his observations Law issued the within citation for violations of §75.202(a).
In its brief, Respondent argues that the instant citation is not valid because there was
insufficient evidence presented to establish that the condition existed in “areas where persons
work or travel.” (See Respondent’ Post-Hearing Brief at p. 30 and 30 C.F.R. §75.202(a)).
To support this argument, Respondent pointed to the evidence that miners did not enter
this area. It noted that the fact that this was an outby area of the mine was not contested. (Tr. I,
235) (see also Respondent’s Post-Hearing Brief at 30).
Specifically, Respondent argued that examiners did not enter this area. It referred to
Deere’s testimony wherein he stated he conducted his examinations without traveling past the
cited rib. (Tr. I, 267-270) (see also Respondent’s Post-Hearing Brief at 33). According to
Respondent, Deere’s observation was bolstered by Inspector Law’s testimony that there were
several exits and entrances in the instant section of the mine, meaning that an examiner might
travel through the area without passing the cited rib. (Respondent’s Post-Hearing Brief at 3033).
Respondent argued that other miners did not work in the area either. For example, Law
did not observe any dusters or other miners in the area at the time of the inspection. (Tr. I, 237)
(see also Respondent’s Post-Hearing Brief at 33). Law also conceded that the pulled down rib
might have fallen on its own, meaning that it was possible that miners were not “working on” the
rib in the cited area. (Tr. I, 232-234) (see also Respondent’s Post-Hearing Brief at 34).
In light of these arguments and the evidence which supports them, Respondent urges that
the instant citation be vacated.
As with Citation No. 8428508, the ALJ recognizes that the cited area was an outby
section, near the seals, and distant from active work areas.
However, as noted supra, §75.202(a) only requires that it be shown that persons work or
travel in the area. This issue hinges on whether examiners (including seal examiners) or rock
dusters performed their duties near the cited rib. The undersigned credits the opinion of Law that
that seal examiners would normally travel in the cited area, as would individuals who were
required to maintain the seals. (Tr. I, 195). Law further opined that that it is common for
examiners to “loop through” entries when examining seals. (Tr. I, 143, 164, 179) (see also
Secretary’s Post-Hearing Brief at 26). This would mean that examiners would travel through the
cited area.
Respondent’s proffered evidence that examiners did not travel in this area was based
largely on Deere’s testimony that he did not travel in this location. However, this is the
testimony of only one examiner out of a total of five. (Tr. I, 269-271) (See also Secretary’s
Post-Hearing Brief at 26). There is no evidence to suggest that other miners avoided this area
during examinations. Further, the cited area was not dangered off or otherwise marked. (Tr. I,
199). Even if Deere knew to avoid this area and could avail himself of reasonable alternative
routes, there is no reason to believe that other miners knew they were to avoid the cited rib area.

35 FMSHRC Page 3113

In light of Law’s testimony that examinations were conducted in this area and the lack of
compelling evidence showing that examiners knew to avoid the cited rib, it is reasonably likely
that an examiner would travel or work near the cited area. Therefore, the ALJ finds that the
Secretary has shown, by a preponderance of the evidence, that miners traveled or worked in the
area cited for an unsafe rib. As a result, the violation is established.
b. Considering The Record In Toto And Applying Applicable Case Law, The
Violation Was Significant And Substantial In Nature.
Applying the Mathies test to the within citation, the undersigned finds that the violation
of §75.202(a) was significant and substantial in nature.
With respect to the first prong of Mathies, as shown supra, there was a violation of
§75.202(a).
As discussed supra, there is sufficient evidence to establish that the cited roof area was
not supported or otherwise controlled to protect persons from hazard related to roof falls.
Specifically, one rib was undercut and failed to provide support. A discrete safety hazard –
falling roof material – was contributed to by the violation. (See inter alia Tr. I, 203 wherein Law
testified regarding falling material).
There was a reasonable likelihood that the hazard contributed to by the violation would
result in an injury. Law credibly testified that material falling from the roof could cause broken
bones and that a collapse of the rib could cause a crushing injury. (Tr. I, 204-205).
Finally, the ALJ further finds that the hazard of falling roof material would create a
reasonable likelihood that the injury in question would be of a reasonably serious nature so that
Mathies fourth element is also satisfied.
c. Gravity
The ALJ finds that Law’s testimony regarding the gravity of the violation was credible.
The cited condition was reasonably likely to result in broken bones or other injuries that would
cause lost workdays or restricted duty. (See Tr. I, 205). While Law also testified that the rib
itself could collapse and cause a crushing injury, the ALJ finds that this would be less likely.
d. Negligence
The ALJ further finds that Respondent exhibited low negligence rather than the moderate
negligence designated by Inspector Law. As with the discussion of Citation No. 8428508, supra,
the inactive character of the cited area does not preclude a finding of violation but can lessen the
degree of negligence. As discussed supra, the ALJ also agrees in part with Respondent’s
argument that the adjacent nature of the cited conditions constituted somewhat less of a hazard.
(Respondent’s Post-Hearing Brief at p. 36-37). Further, the Secretary conceded that Respondent
may have missed the condition. (See Secretary’s Post-Hearing Brief at 27). Also, Inspector

35 FMSHRC Page 3114

Law conceded that it was possible that no one had worked on the rib; it had collapsed on its own
rather than been pulled down by an inspector. (Tr. I, 232-234) (see also Respondent’s PostHearing Brief at 34). This means that Respondent may not have been aware of the cited
condition.
Therefore, there were considerable mitigating factors with respect to Respondent’s
knowledge of the cited condition. In light of these circumstances, the ALJ finds that a lesser
designation of negligence than that cited by Law is appropriate.
e. Penalty
For the same reasons provided with respect to Citation No. 8428508, supra, the ALJ finds
that, in light of Respondent’s previous violations history and the requirements of pertinent case
law, significant penalties are appropriate.
However, as with Citation No. 8428508, a deviation from the Secretary’s proposed
penalty is warranted. Under Sec. v. Performance Coal Co., that deviation must be explained. As
discussed supra, Respondent’s conduct was not, in this Court’s opinion, the result of moderate
negligence but only low negligence.
Affirming the citation as issued with a modification of negligence from moderate to low
the ALJ finds the Secretary’s proposed penalty should reduced from $9,100.00 to $7,200.00.
4. Citation No. 8432126 (LAKE 2012-58)
a. The Secretary Has Carried His Burden Of Proof By A Preponderance Of The
Evidence That §75.202(a) Was Violated.
On March 2, 2011, Inspector Law issued Citation No. 8342126 to Respondent, alleging
violation of 30 C.F.R. §75.202(a). The following unsafe condition or practice was cited:
The roof at cross cut #127, survey station #15736, between entries #5 and #6 of
the Main North is not being adequately supported or controlled where miners
normally work or travel to protect miners from the hazards related to falls of the
roof and rib. There is 4 damaged roof bolts in this cross cut creating 3
inadequately supported areas. In one area there is 1 sheared off roof bolt
exposing an area approximately (8 by 8 feet), the second area has 1 damaged roof
bolt, approximately (8 by 8 feet) and the third area has 2 shared off roof bolts side
by side approximately (8 by 12 feet). The area was flagged off by management to
prevent travel after the citation was issued.
Standard 75.202(a) was cited 98 times in two years at mine 1102752 (98 to the
operator, 0 to a contractor).
(S-14).

35 FMSHRC Page 3115

In finding that the above standard was in fact violated the ALJ incorporates the pertinent
legal standards and case law with respect to §75.202(a) referenced in the discussion of Citation
No. 8428508, supra.
At hearing Law testified that he issued the instant citation because he had discovered four
damaged roof bolts in the mine’s main north travel way in the crosscuts between entries #5 and
#6. (Tr. II, 281; S-14). Law opined that the damaged bolts had created three different areas of
unsupported roof. (Tr. II, 281). He further testified that several bearing plates had been sheered
off, eliminating the skin control. (Tr. II, 282, 285-286, 290). No supplemental support or skin
control was added. (Tr. II, 288-289). This created a roof fall hazard. (Tr. II, 290).
According to Law “just about everybody,” travelled through the main north travel way
daily. (Tr. II, 284). He further opined that the damaged bolt condition had been existent for
several shifts prior to his inspection because there were tracks through the area. (Tr. II, 286).
As a result of his observations Law issued the within citation for violations of §75.202(a).
In response to Law’s testimony, Respondent presented evidence to show that, despite the
damaged roof bolts, the roof was adequately supported. Specifically, it argued that while noncompliance with a roof control plan is to be considered when determining if a roof is adequate
supported, such non-compliance is not dispositive of whether a violation of §75.202(a) has
occurred. (See Respondent’s Post-Hearing Brief at 42 citing Canon Coal Co., 9 FMSHRC 667,
668 (April 1987) (citations omitted)). In short, Respondent argues that the cited condition might
not meet the requirements of the roof control plan, but nonetheless did not render to roof
unsupported.
To support this argument, Respondent pointed to evidence that roof conditions in the
cited area were adequate. (See Respondent’s Post-Hearing Brief at 42-45). Specifically,
Respondent argued that the limestone roof was solid, that no adverse roof conditions were
noticed or possible, and that the fully grouted resin bolts provided adequate support even when
damaged. (Id.).
The ALJ specifically rejects Respondent’s arguments regarding the solidity of the roof
and the assertion that such would invalidate the instant citation.
In making this determination, the ALJ credits Inspector Law’s testimony that the cited
condition presented a roof fall hazard. (Tr. II, 290). Law opined that the cited area lacked
support even though he conceded that he could not determine the lithology of the roof or see any

35 FMSHRC Page 3116

adverse conditions.37 (Tr. II, 289, 290, 304, 311). With respect to adverse roof conditions,
nothing in the record suggests that a lack of such at the time of a citation necessarily implies that
a roof is adequately supported.
While Respondent’s witness Vancil testified that the roof was solid limestone, he did not
inspect the roof until two years after the citation. (Tr. II, 356). Vancil also conceded that there
had been shale in the area at one time. (Tr. II, 351). It is more likely than not that the dangerous
material observed by Law had fallen in the interim.
The preponderance of the evidence shows that, at the time of the citation, the roof was
inadequately supported. Therefore, a violation of §75.202(a) existed.
b. Considering The Record In Toto And Applying Applicable Case Law, The
Violation Was Significant And Substantial In Nature.
Applying the Mathies test to the within citation, the undersigned finds that the violation
of §75.202(a) was significant and substantial in nature.
With respect to the first prong of Mathies, as shown supra, there was a violation of
§75.202(a).
A discrete safety hazard – falling roof material – was contributed to by the violation. (Tr.
II, 290). As discussed supra, there is sufficient evidence to establish that the cited roof area was
not supported or otherwise controlled to protect persons from hazard related to roof falls.
Specifically, three separate areas were not properly supported. There was exposure to that
hazard as Law also opined that several workers in the mine traveled in unprotected equipment in
the area and would enter the crosscut to yield the right of way. (Tr. II, 284, 289, 319-320). As
noted supra, the alleged solidity of the limestone roof and lack of adverse roof conditions does
not eliminate this hazard.
There was a reasonable likelihood that the hazard contributed to by the violation would
result in an injury. Law credibly testified that material falling from the roof could cause broken
bones and that a collapse of the rib could cause a crushing injury. (Tr. I, 290).
Finally, the ALJ further finds that the hazard of falling roof material would create a
reasonable likelihood that the injury in question would be of a reasonably serious nature such
that Mathies fourth element is also satisfied.

37

Respondent also argued that Inspector Law conceded that the fully grouted resin bolts
would provide support for the roof even if damaged. As noted by the ALJ in the discussion of
Law’s testimony supra, the inspector was unwilling to admit that point. As a result, the
undersigned will not consider Law’s testimony as support for Respondent’s position. The
undersigned further credits Law’s testimony for the proposition that damaged bolts do not
provide skin control.

35 FMSHRC Page 3117

c. Gravity
The ALJ finds that Law’s testimony regarding the gravity of the violation was credible.
The cited condition was reasonably likely to result in broken bones or other injuries that would
cause lost workdays or restricted duty to one miner. (Tr. II, 290, 307) (see also Secretary’s PostHearing Brief at 30).
Respondent argued that such injuries were unlikely for several reasons. First, miners
would only occasionally enter the area and when doing so generally use equipment with
protection for the operator. (Respondent’s Post-Hearing Brief at 46-47). Those in vehicles
without protection for the operator could pull into areas that were adequately supported. (Id. at
47). Respondent also noted that examiners would not be exposed because they were not
supposed to examine this area, but instead were suppose to merely “glance” into the crosscut.
(Id.). Finally, it noted that Law did not observe any employees in the cited area. (Id.).
The ALJ rejects these arguments. The preponderance of the evidence supports a finding
that this area was a crosscut off of a main travel way and that miners would enter the cited
location when yielding the right-of-way in mobile equipment. (Tr. II, 284, 289). This condition
would be reasonably likely to create exposure to the hazard.
In addition, while some of the equipment provided protection for operators, several
pieces of equipment, including diesel rides, scoops, and ram cars were uncovered. (See
Respondent’s Post-Hearing Brief at 30, Tr. II, 319-320). This would mean miners in these
pieces of equipment would be exposed.
Finally, Respondent’s argument that operators could have avoided the unsupported area
is untenable in light of the other evidence it presented. Specifically, Respondent argued with
respect to negligence that no one knew or should have known about the cited condition. (see
Respondent’s Post-Hearing Brief at 48). If miners could not be expected to observe the cited
condition then there is no reason to believe they would be in a position to consciously avoid the
unsupported area. As a result, these miners would be exposed to the hazardous condition and
would be reasonably likely to suffer an injury.
d. Negligence
The ALJ further finds that Respondent’s exhibited low negligence rather than the
moderate negligence designated by Inspector Law.
As noted supra, Respondent argued that it was not aware of the cited condition. (see
Respondent’s Post-Hearing Brief at 48). The preponderance of the evidence supports this
assertion. Specifically, the evidence presented confirms that examiners were not required to
examine this area. (Tr. II, 303). Inspector Law conceded that the cited condition would be easy
to miss.38 (Tr. II, 293).
38

However, given the admitted duty to “glance” into the crosscut, Respondent should
have known of the cited condition.

35 FMSHRC Page 3118

Therefore, there were considerable mitigating factors with respect to Respondent’s
knowledge of the cited condition. In light of these circumstances, the ALJ recognizes that a
lesser designation of negligence than that cited by Law is appropriate.
e. Penalty
For the same reasons provided with respect to Citation No. 8428508, supra, the ALJ finds
that, in light of Respondent’s previous violations history and the requirements of pertinent case
law, significant penalties are appropriate.
However, as with Citation No. 8428508, a deviation from the Secretary’s proposed
penalty is warranted. Under Sec. v. Performance Coal Co., that deviation must be explained. As
discussed supra, Respondent’s conduct was not, in this Court’s opinion, the result of moderate
negligence but only low negligence.
Affirming the citation as issued with a modification of the negligence from moderate to
low the ALJ finds the Secretary’s proposed penalty should reduced from $7,700.00 to $6,100.00.
5. Citation No. 8432129 (LAKE 2012-58)
a. The Secretary Has Carried His Burden Of Proof By A Preponderance Of The
Evidence That §75.202(a) Was Violated.
On March 3, 2011, Inspector Law issued Citation No. 8342129 to Respondent, alleging
violation of 30 C.F.R. §75.202(a). The following unsafe condition or practice was cited:
The roof at cross cut #8, between entries #5 and #4 of the Main North is not being
adequately supported or controlled where miners normally work or travel to
protected miners from the hazards related to falls of the roof and rib. An area
along the inby rib has 3 roof bolts that are to far from the coal pillar exposing an
area 5 ½ to 6 feet wide by 20 feet in length along the outby rib has 3 roof bolts
that are to far from the coal pillar exposing an area 5 ½ feet to 6 feet wide by 15
feet in length. This is an area that is used to pull out of the way. The area ws
flagged off by management to prevent travel after the citation was issued.
Standard 75.202(a) was cited 99 times in two years at mine 1102752 (98 to the
operator, 0 to a contractor).
(S-16).
In finding that the above standard was in fact violated the ALJ incorporates the pertinent
legal standards and case law with respect to §75.202(a) referenced in the discussion of Citation
No. 8428508, supra.

35 FMSHRC Page 3119

At hearing Law testified that he issued the instant citation because roof bolts in the #8
cross cut between the #4 and #5 entries were inadequately supported. (Tr. II, 361). Specifically,
The roof bolts on the outby and inby rib were too far from the coal pillar creating two areas of
unsupported roof measuring 5 ½ to 6 feet by 20 feet and 5 ½ to 6 feet by 15 feet respectively.
(Tr. II, 361, 369). Law opined that these ribs had been properly bolted at one time but had
deteriorated. (Tr. II, 363-364).
As with Citation No. 8432126, this condition was cited along the main north travel way.
(Tr. II, 361). As noted supra, Law testified with respect to that citation that “just about
everybody,” travelled on that travel way. (Tr. II, 284).
With respect to the instant citation, Law testified that the condition had existed for
several shifts. (Tr. II, 365, 374).
Law opined that without the required support, rib rash creates an arcing effect at the top,
and the increased pressure can result in roof or rib falls. (Tr. II, 367-368).
As a result of his observations Law issued the within citation for violations of §75.202(a).
As it did with Citation No. 8432126 supra, Respondent argued that despite the spacing of
the roof bolts, the roof was adequately supported. Again, it argued that the cited condition might
not meet the requirements of the roof control plan, but nonetheless did not render the roof
unsupported. (See Respondent’s Post-Hearing Brief at 53)
Respondent presented several arguments to show that the roof conditions in the area were
adequate. It argued, inter alia, that the limestone roof was solid, that no adverse roof conditions
were noticed or possible, and that the fully grouted resin bolts provided adequate support even
when damaged. (See Respondent’s Post-Hearing Brief at 53-54)
The ALJ rejects Respondent’s arguments regarding the solidity of the roof and the
assertion that such would invalidate the instant citation.
In making this determination, the ALJ credits Inspector Law’s testimony that the cited
condition presented a roof fall hazard. (Tr. II, 367-368). Law opined that the cited area lacked
support even though he conceded that he could not see any adverse conditions.39 (Tr. II, 361,
380). As noted supra, nothing in the record suggests that a lack of adverse roof conditions at the
time of a citation necessarily implies that a roof is adequately supported. The undersigned finds
Law’s testimony regarding the pressures placed on the top by the widely spaced bolts to be
compelling even in light of the fact that he did not testify to adverse roof conditions. 40 (Tr. II,
367-368, 380) See also Secretary’s Post-Hearing Brief at 33). The inspector was clearly aware
39

Respondent’s arguments regarding resin bolts are rejected for the same reason as
discussed supra with respect to Citation No. 8342126.
40

It is possible that adverse roof conditions were, in fact present. However, Law did not
enter the unsupported area in order to avoid exposure to roof falls and therefore, was unable to
testify to such. (Tr. II, 373-374).
35 FMSHRC Page 3120

of the circumstances raised by Respondent and still testified that the roof was not supported and
some risk of exposure to roof hazards was present.
The preponderance of the evidence shows that, at the time of the citation, the roof was
inadequately supported. Therefore, a violation of §75.202(a) existed.
b. Considering The Record In Toto And Applying Applicable Case Law, The
Violation Was Significant And Substantial In Nature.
Applying the Mathies test to the within citation, the undersigned finds that the violation
of §75.202(a) was significant and substantial in nature.
With respect to the first prong of Mathies, as shown supra, there was a violation of
§75.202(a).
A discrete safety hazard – falling roof material – was contributed to by the violation. (Tr.
II, 367-368). As discussed supra, there is sufficient evidence to establish that the cited roof area
was not supported or otherwise controlled to protect persons from hazard related to roof falls.
Specifically, two large areas in the cited location were not properly supported. There was
exposure to that hazard as Law also opined that several workers in the mine traveled in
unprotected equipment in the area and would enter the crosscut to yield the right of way. (Tr. II,
284, 289, 319-320). As noted supra, the alleged solidity of the limestone roof and lack of
adverse roof conditions does not eliminate this hazard.
There was a reasonable likelihood that the hazard contributed to by the violation would
result in an injury. Law credibly testified that material falling from the roof could cause lost
workday or restricted duty injuries. (Tr. I, 365, 368).
Finally, the ALJ further finds that the hazard of falling roof material would create a
reasonable likelihood that the injury in question would be of a reasonably serious nature so that
Mathies fourth element is also satisfied.
c. Gravity
The ALJ finds that Law’s testimony regarding the gravity of the violation was credible.
The cited condition was reasonably likely to result in lost workday/restricted duty injuries to the
operator of a piece of equipment. (Tr. II, 268)
Respondent argued that such injuries were unlikely for several reasons. First, the area
was infrequently traveled as evidence by the fact that there was no evidence of travel in the area.
(Tr. II, 369, 375) (see also Respondent’s Post-Hearing Brief at 55). Further, Respondent argues
that the limestone was competent and would not collapse and therefore would not cause an
injury. (Respondent’s Post-Hearing Brief at 55).
The ALJ rejects these arguments. As discussed with respect to Citation No. 8432126
supra, this area was a crosscut off of a main travel way and that miners would enter the cited

35 FMSHRC Page 3121

location when yielding the right-of-way. (Tr. II, 284, 289). This condition would be reasonably
likely to create exposure to the hazard.
Further, as noted by the ALJ supra, the supposed solidity of the limestone top does not
eliminate the hazard posed by the cited condition. The preponderance of the evidence supports a
finding that, even in light of the composition of the roof, an injury was reasonably likely.
d. Negligence
The ALJ further finds that Respondent’s exhibited low negligence rather than the
moderate negligence designated by Inspector Law.
The preponderance of the evidence supports a finding that Respondent was not required
to examine this area. (Tr. II, 303). Law’s testimony supports a finding that the condition could
only be seen when in the crosscut and that it might not have been observed. (Tr. II, 364, 368).
Therefore, there were considerable mitigating factors with respect to Respondent’s
knowledge of the cited condition. In light of these circumstances, the ALJ recognizes that a
lesser designation of negligence than that cited by Law is appropriate.
e. Penalty
For the same reasons provided with respect to Citation No. 8428508, supra, the ALJ finds
that, in light of Respondent’s previous violations history and the requirements of pertinent case
law, significant penalties are appropriate.
However, as with Citation No. 8428508, a deviation from the Secretary’s proposed
penalty is warranted. Under Sec. v. Performance Coal Co., that deviation must be explained. As
discussed supra, Respondent’s conduct was not, in this court’s opinion, the result of moderate
negligence but only low negligence.
Affirming the citation as issued with a modification of negligence from moderate to low
the ALJ finds the Secretary’s proposed penalty should reduced from $7,700.00 to $6,100.00.

35 FMSHRC Page 3122

ORDER
It is hereby ORDERED that Citation Nos. 8432052 (LAKE 2011-962), 8428508 (LAKE
2011-701), 8432118 (LAKE 2012-58), 8432126 (LAKE 2012-58), and 8432129 (LAKE 201258) are AFFIRMED as modified herein.
Respondent is ORDERED to pay civil penalties in the total amount of $43,200.00 within
30 days of the date of this decision.41
/s/ John Kent Lewis
John Kent Lewis
Administrative Law Judge
Distribution: (Certified Mail)
Courtney Prsybylski, Esq., & Ryan L. Pardue, Esq., U.S Department of Labor, Office of the
Solicitor, 1999 Broadway, Suite 800, Denver CO 80202-5708
Jason W. Hardin, Esq., & Mark Kittrell, Esq., Fabian and Clendenin, 215 South State Street,
Suite 1200, Salt Lake City, UT 84111-2323

41

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

35 FMSHRC Page 3123

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
875 GREENTREE ROAD
7 PARKWAY CENTER, SUITE 290
PITTSBURGH, PA 15220
TELEPHONE: (412) 920-2682
FAX: (412) 928-8689

September 23, 2013

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

:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDING
Docket No. PENN 2011-346
A.C. No. 36-05466-253551
Docket No. PENN 2011-388
A.C. No. 36-05466-256778
Mine: Emerald Mine No. 1

DECISION
Appearances:

Jessica R. Brown, Esq., Office of the Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, for the Secretary of Labor.
Patrick W. Dennison, Esq. and R. Henry Moore, Esq., for Emerald Coal
Resources, LP

Before:

Judge Lewis

These cases arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (2000) (the “Act” or “Mine Act”). The Secretary of Labor has filed a Petition for
Assessment of Civil Penalty pursuant to Sections 104(a) and 105(d) of the Act, 30 U.S.C. §
815(d), in connection with Order Nos. 7082871, 7082872, 7073116, and 7073117 and Citation
No. 7082869. A hearing was held in Pittsburgh, Pennsylvania on December 5 and 6, 2012. The
parties subsequently submitted post-hearing briefs, and their positions and arguments have been
duly considered.
I. BACKGROUND AND SUMMARY OF EVIDENCE
The parties read the following joint stipulations into the record at hearing:

1

1.

Emerald Coal Resources, LP, operates the Emerald Mine No.1, where the
citations and orders in contest were issued.1

2.

Emerald Mine No. 1 is an underground coal mine in Greene County,
Pennsylvania.

3.

Emerald Mine No. 1 produced 4,901,640 tons of coal in 2010.

The citations and orders are referred to collectively as “the citations.” Tr. 11.

35 FMSHRC Page 3124

4.

Emerald produces coal using both the longwall method and the continuous
miner method.

5.

Emerald is an “operator” as defined in Section 3(d) of the Federal Mine
Safety and Health Act of 1977 as amended, 30 U.S.C. § 803(d), at the coal
mine at which the citations at issue in this proceeding were issued.

6.

Operations of Emerald at the coal mine where the citations were issued in
this proceeding are subject to the jurisdiction of the Act.

7.

This proceeding is subject to the jurisdiction of the Federal Mine Safety
and Health Review Commission and its designated Administrative Law
Judges pursuant to Sections 105 and 113 of the Act.

8.

The individuals whose signatures appear in Block 22 of the citations at
issue in this proceeding were acting in their official capacity and as
authorized representatives of the Secretary of Labor when the citations
were issued.

9.

True copies of the citations at issue in this proceeding were served on
Emerald as required by the Act.

10.

The R-17 assessed violation history report is an authentic copy reflecting
Emerald’s history of violations and may be admitted as a business record
of the Mine Safety and Health Administration.

11.

The imposition of the proposed civil penalty will not affect Emerald’s
ability to remain in business.

12.

Citation Nos. 7082869 and 7082870 and Orders Nos. 7082871 and
7082872 were issued on October 18, 2010, by MSHA Inspector David
Leverknight.

13.

Inspector Leverknight was accompanied by Company Representative
Adam Strimer.

14.

Citation No. 7082870 is a final order of the Commission.

15.

Order No. 7082871 was issued at 10:15 on October 18, 2010, and
terminated at 1:25 on October 19, 2010.

16.

Citation Nos. 7082869 and 7082870 and Order Nos. 7082871 and
7082872 were issued with respect to the C-2 longwall belt.

17.

The Emerald Mine Shift Production Report is an authentic copy reflecting
Emerald Mine No. 1’s coal production from October 15, 2010, through
October 18, 2010, and may be admitted as a business record of Emerald’s.

35 FMSHRC Page 3125

18.

Order Nos. 7073116 and 7073117 were issued on October 21, 2010, by
MSHA Inspector Allan Jack.2

19.

Inspector Jack was accompanied by Company Representative Adam
Strimer.

20.

Order No. 7073116 was issued at 9:30 on October 21, 2010, and
terminated at 22:30 on October 21, 2010.

21.

Order Nos. 7073116 and 7073117 were issued with respect to the Bmain’s left haulage.

22.

Emerald demonstrated good faith in the abatement of the citations.

23.

Order No. 8007973 is a Section 104(d)(2) order, which was issued on
August 6, 2010. This order was contested by Emerald and is scheduled
for hearing within the next 20 days.

24.

Order No. 8007974 is a Section 104(d)(2) order, which was issued on
August 9, 2010. This order was contested by Emerald and is also
scheduled for hearing within the next 30 days.3

Tr. 11-14.

2

The Transcript inexplicably omits number 18, proceeding from number 17 to 19. Tr. 13.
Therefore, stipulations 18-24 are enumerated in the transcript as 19-25.
3

104(d)(2) Order Nos. 8007973 and 8007974 were affirmed as written with only
modifications to the penalties by Judge Harner on August 16, 2013. PENN 2011-168

35 FMSHRC Page 3126

FINDINGS OF FACT4
Citation No. 7082869
Inspector David Leverknight issued Citation No. 7082869 after observing the bottom belt
at the C-2 longwall in contact with the belt structure.5 GX-1.
The Emerald Mine No. 1 is a large longwall mine, with continuous miner development
for the longwall three entry sections. Tr. 30. The C-2 longwall was only one of the longwall
sections producing at Emerald Mine. Tr. 195. It was estimated that the section would produce
4

The findings of fact are based on the record as a whole and my careful observation of
the witnesses during their testimony. In resolving any conflicts in the testimony, I have taken
into consideration the interests of the witnesses, or lack thereof, and consistencies, or
inconsistencies, in each witness’s testimony and between the testimonies of the witnesses. In
evaluating the testimony of each witness, I have also relied on his demeanor. Any failure to
provide detail as to each witness’s testimony is not to 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)(administrative law judge is not
required to discuss all evidence and failure to cite specific evidence does not mean it was not
considered).
5

David Leverknight is a Mine Emergency Unit (MEU) Specialist for MSHA at the
Pittsburgh Technology Center for Technical Support. Tr. 28. In this capacity, he is responsible
for purchasing and maintaining all equipment for the MEU, training team members, and
responding to all emergencies. Tr. 28. He has served in this position since July 2012. Tr. 28. As
part of his duties, Leverknight inspected the Emerald Mine No. 1. Tr. 30.
Prior to this position Leverknight was an underground coal mine inspector from January
2007 until July 2012. Tr. 28. He received his AR card in January or February of 2008. Tr. 28-29.
Before coming to MSHA, Leverknight spent five years working at the Enlow Fork Mine for
Consol Energy as an underground trackman, and another five years at that mine as a mine
examiner. Tr. 20. Prior to that, he worked for Line Mining Company in Jennerstown,
Pennsylvania for seven years and for Pierrepont Mining Company in Stoystown, Pennsylvania
for one year. Tr. 30. Leverknight has assistant mine foreman papers, machine runners papers,
and other related certifications. Tr. 30.
Leverknight has significant experience dealing mine emergencies during both his tenure
at MSHA and his work for operators. Tr. 29. He was on the rescue team that responded to two
Loveridge Mine fires in West Virginia, the VP 8 Mine fire in Virginia, the Buchanan Mine fire
in Virginia, the Mine 84 fire in Pennsylvania, the Quecreek water inundation in Pennsylvania,
the Sago Mine explosion in West Virginia, the Upper Big Branch Mine explosion in West
Virginia, the San Juan Mine fire in New Mexico, and the Pleasant Hill seal explosion in West
Virginia. Tr. 29. The Mine 84 and VP 8 fires were belt fires. Tr. 29. There were no recordable
injuries on these belt fires. Tr. 71-72.

35 FMSHRC Page 3127

approximately 7,000-9,000 tons of coal per day or shift.6 On October 18, 2010, the mine was
planning on mining all three shifts. Tr. 195. In October 2010, Emerald was on a five-day spot
inspection for liberating in excess of one million CFM of methane in a 24-hour period.7 Tr. 31.
Inspector Leverknight went to Emerald Mine on October 18, 2010 in order to perform
part of the E01 inspection for the quarter.8 Tr. 31. Generally, there would be two or three
inspectors at a mine as large as Emerald. Tr. 31. On that day, Leverknight intended to go into
the C-2 longwall section and walk the belts from the section up to the mains. Tr. 31. Prior to
going underground, he reviewed the preshift books for that belt for that section. Tr. 32.
Leverknight went underground with David Baer from the union and Adam Strimer from
the company.9 Tr. 32, 157-158, 166-168. Strimer was still a “redhead,” meaning that he was a
new miner with less than a year experience, and was not allowed to travel unaccompanied in the
mine.10 Tr. 32, 16-157. At the time of the inspection, Strimer had only been escorting inspectors
for three to five months. Tr. 156-157. Prior to this date, Strimer had not been present when
orders were issued. Tr. 156-157, 164. He only witnessed an inspector issue an order on October
18 and October 21, 2010. Tr. 164.

6

It was not clear from the testimony whether the figure was in reference to shift or daily
production.
7

A spot inspection occurs when a mine liberates excessive methane in a 24-hour period.
Tr. 30-31.
8

An E01 inspection is the mandatory quarterly inspection for all underground coal mines.

Tr. 31.
9

At the time of hearing, Adam Strimer was the Health, Safety and Environmental
Coordinator for Axens North America. Tr. 155. He received a master’s degree in Safety
Management in 2010 from West Virginia University. Tr. 156. In October 2010, Strimer was an
intern in the safety department of Emerald Mine. Tr. 156. As an intern, his duties included
traveling with the inspector, filing papers, and taking part in internal communication at the mine.
Tr. 156.
David Baer worked at the longwall at Emerald Mine. Tr. 166. He has worked for
Emerald since April, 2005, and has also worked as a motorman and outside as a repairman and
GI. Tr. 166. Prior to working at Emerald, Baer was a bottom man and outside tipple operator for
Maple Creek for four and a half years. Tr. 166. He had a total of 10-11 years of mining
experience and was a member of the United Mine Workers. Tr. 166.
In October 2010, Baer was escorting MSHA inspectors approximately two to three times
a week when he was on the daylight shift, which he was on every third week. Tr. 166-167.
10

The terms “redhead” and “red hat” appear to be used interchangeably by the witnesses.

35 FMSHRC Page 3128

They rode the mantrip all the way into the track up to the section, got out of the mantrip
and walked up to 32 crosscut, which is the last open crosscut where the longwall faces and the
belt ends. Tr. 32-33, 158-159, 168.
Leverknight began walking the belt at 32 crosscut, and first noticed something out of the
ordinary at 27 crosscut. Tr. 34. There he saw the belt rubbing on the belt structure on the stands
at the walkway side of the belt. Tr. 35-36. Leverknight had Strimer shut the belt off because
Section 75.1725(a) requires that a belt in unsafe condition be taken out of service immediately.
Tr. 36, 158-159. Once the belts were shut down, Leverknight felt the stands and testified that
they were hot. Tr. 36. He did not see any belt shavings. Tr. 77.
Baer confirmed at hearing that there was an indication that the belt was cutting into the
structure. Tr. 168-169. However, Baer did not see the belt cutting into the structure or belt
shavings. Tr. 169.
Strimer took notes on the inspection.11 Tr. 157-158; RX-8. He testified that his notes
were descriptions of Leverknight’s comments, but that he did not confirm that the conditions
were as Leverknight described them.12 Tr. 159-160. Therefore, he cannot remember if he
actually witnessed the belt rubbing the structure as his notes indicate or if he saw rollers
compacted with coal fines. Tr. 160; RX-8. He could not recall at hearing whether the conditions
of the belt line stuck out in his mind. Tr. 161. He also could not recall seeing any belt shavings
at the belt line. Tr. 162.
Leverknight continued walking the entire length of the belt, all the way to the main. Tr.
37. During that walk, he noticed several other locations where there was damage to the belt. Tr.
37. At 23 to 22 crosscut, on the tight side of the belt, Leverknight noticed the belt out of
alignment, rubbing along the stands. Tr. 37-38. At 3 crosscut, which is almost at the mouth of
the section by the takeup unit, the belt was cut into seven stands in a row. Tr. 38. The belt was
cut 2.5 inches deep into the steel stand, and Leverknight found the belt in the cut, meaning that it
had been running in the cut when he turned off the belt. Tr. 38.
The stands are made of three inch by three inch tubing, and the cut was almost the entire
way through.13 Tr. 38. The seven stands were each ten feet apart from each other. Tr. 39. He did
not see any belt shavings at 23 to 22 crosscut, but did see belt shavings at 3 crosscut. Tr. 77-78.
11

Strimer’s notes are labeled October 12, 2010, but Strimer testified at hearing that they
were actually for October 18, 2010. Tr. 158.
12

Baer testified that he took notes 99% of the time when he served as a union
representative, and that he probably took notes for the October 18, 2010 inspection. Tr. 171-172.
However, Baer was not able to locate his notes prior to the hearing. Tr. 172.
13

A structure that has been cut into does not need to be replaced because it is suspended
from chains. Tr. 83. The relevance was that it was evidence that the belt was rubbing in the
structure, thereby producing heat. Tr. 83-84.

35 FMSHRC Page 3129

Leverknight testified that he does not consider the presence or absence of shavings meaningful
because shavings can be cleaned prior to the inspection. Tr. 78.
Leverknight testified that it was impossible for a rubber belt to cut 2.5 inches into a steel
belt stand within a few shifts; it would take an extended period of time. Tr. 83. He concluded
that it would not have been possible for the belt to have cut entirely into the structure prior to his
inspection, because after the belt was shut off it was still resting 2.5 inches deep in the seven
stands. Tr. 84-85.
Gregory King conducted the preshift examination for the belt system between 9:00-11:30
p.m. on October 17, 2010.14 Tr. 101; RX-5, 34. He found float coal dust on the C-3 belt. Tr.
101; RX-5, 34. He found that the belt needed to be trained on the C-2 belt at the nine to 15
crosscut, and was either starting or very close to coming in contact with the structure at four
room to the takeup. Tr. 101-102; RX-5, 34. He found float dust from C-2 transfer to C-3
transfer and fines at the tight side of the C-2 transfer on the C-mains belt. Tr. 102; RX-5, 34.
When he finished the examination, he would have gone outside and recorded the findings, as
well as any corrective actions taken. Tr. 104-105. On October 17, 2010, King did not find any
hazards. Tr. 105.
King testified that when he finds a hazard on the C-2 longwall belt, he shuts the belt
down. Tr. 105. On October 12, 2010, King found one hazard on the C-2 belt and one hazard on
the C-3 belt. Tr. 105; RX-5. As a result, he shut down both belts and reported the hazards to the
computer room, and computer room personnel in turn reported it to the belt department. Tr. 105106. King testified that Emerald’s policy is that if the hazard cannot be fixed by the examiner,
14

Gregory King has worked for Alpha Resources at Emerald Mine for 11 years. Tr. 97.
During that time, he has held the following positions: pumper, motorman, general inside laborer,
and mine examiner. Tr. 97. Prior to working at Emerald, he worked for Dilworth Mine for 21
years and Robena Mine for three years. Tr. 97. King received his Pennsylvania assistant mine
foreman papers in 1994. Tr. 97-98. He is currently a fire boss and mine examiner at Emerald.
Tr. 98. His duties as examiner include performing preshift examinations, walking the belt lines,
tracking haulages, performing methane checks, examining roof and ribs, and examining the
condition of equipment and belt lines. Tr. 98. During these examinations, King looks for
violations and hazards. Tr. 98.
In October 2010, King had approximately one and a half years of experience performing
preshift examinations on the C-2 longwall belt. Tr. 99. Sometimes he would conduct the
examination of the entire C-2 belt, and sometimes he would split the belt. Tr. 100. When he
would split the belt, King and another mine examiner would usually start at the tailpiece. Tr. 100.
The other examiner would stay at the tailpiece, while King would go to the haulage, and they
would each begin the examination at a pre-determined time. Tr. 100. They would proceed to a
split point, which was at 15 crosscut on this section, enter the belt line and continue out. Tr. 100.
Though he could not recall any specifics, King testified that he likely would have begun
his preshift examination at around 9:00 or 9:30 p.m. Tr. 104.

35 FMSHRC Page 3130

then the belt should be shut down, reported, and fixed. Tr. 106. There were no repercussions for
shutting the belt down, but there were also no repercussions for not reporting hazards. Tr. 106,
108.
King testified that a longwall belt could get out of train due to a movable tailpiece or
moveable takeup unit not being straight or the front end not running the belt straight. Tr. 102.
He stated that it was possible for the longwall belt to get out of train every time it pushes or
advances. Tr. 102-103. In order to train the belt, one moves the rollers and steers the belt like a
car. Tr. 103.
Come-alongs were used on the C-2 belts to help straighten the structure, and there was a
structure that was out of line inby the takeup unit around 4 crosscut.15 Tr. 103. King testified
that if the come-along were detached it would not serve its purpose of keeping the structure
straight so that the belt would run true. Tr. 103.
David Simkovic was responsible for the C-2 longwall belt in October 2010.16 Tr. 121.
On October 12, 2010, Simkovic assigned one of his beltmen to the C-2 longwall because there
was float dust and fines. Tr. 122-123; RX-5, 1. Simkovic described the process of training the
belt as necessary after the fire boss reports the problem when the belt is rubbing into the structure
or running off to one side. Tr. 124. Reviewing the “Action Taken” section of the book,
Simkovic testified that he either trained the belt or was present while his repairmen or beltmen
trained the belt. Tr. 123-124; RX-5, 34. He then marked it as “Belt Trained” and “Men
Assigned.” Tr. 124; RX-5, 34. To remedy the problem of the belt rubbing the structure,
Simkovic repositioned the rollers and lined the belt so that it did not rub the structure or run off
the belt. Tr. 124.
Simkovic testified that prior to putting the come-along on the stands at 3 crosscut, the belt
had cut into the stands. Tr. 134. They tried to train the belt with rollers, but could not train it. Tr.
134-135. Therefore, they put a jack to push everything into place. Tr. 135. Belt structures do
not get replaced simply because they have been cut into, so they believed this solution to be
sufficient. Tr. 135.
Simkovic testified that he trained the belt at the 4 crosscut to the takeup at approximately
1:00 or 2:00 a.m. Tr. 125-126. He remembered seeing come-alongs that were placed in the 4
crosscut to the takeup in order to keep the belt in line because it was cutting into the structure.
15

Leverknight defined a “come-along” as a hand winch used to pull materials. Tr. 79.

16

David Simkovic has worked at Emerald Mine for 23.5 years, and was working as a belt
foreman in 2010. Tr. 120. He has 38 years of total mining experience, and has worked at
Western Electric, Nemacolin Mine, Vesta 5 Mine, Pickass Mine, Bobtail Mine, and Gateway
Mine. Tr. 120. He has assistant mine foreman and EMT certifications. Tr. 120-121. As a belt
foreman, Simkovic’s responsibilities include keeping the belts of the mine running, taking care
of violations or hazards in the book or that occur during the shifts, and making sure that the belts
perform in good working order. Tr. 121. Simkovic also assists the fire bosses if they encounter a
problem. Tr. 121. Simkovic finds out about conditions in the mine by reviewing the books. Tr.
122. He is usually responsible for approximately 10 beltmen and two repairmen. Tr. 123.

35 FMSHRC Page 3131

Tr. 126. If the come-along was detached then the belt would go back out of line and cut into the
structure. Tr. 126-127. Furthermore, the belt plow is put on the return belt in order to remove
excess debris from the belt so that it does not end up at the tailpiece of the belt. Tr. 127.
On the midnight shift of October 18, 2010, when he trained the belt, Simkovic continued
walking up to the C-2 belt. Tr. 127. He walked four to six blocks in order to ensure that he had
not moved the belt such that it was rubbing elsewhere. Tr. 127. Simkovic did not recall seeing
the belt rubbing anywhere else. Tr. 127.
Leverknight determined that the belt rubbing the structure and cutting into the stands was
unsafe because it caused frictional heat. Tr. 40. Emerald Mine uses a fire resistant belt, however,
the belt is not fireproof. Tr. 81. Leverknight found the violation in Citation No. 7082869 to be
Significant and Substantial (S&S) because the combination of frictional heat, accumulations of
coal, and bad rollers at the mine created a belt fire hazard. Tr. 40, 42-43; GX-1. If the belt
rubbed on the structure long enough, it would create shavings that could pile up and smolder,
leading to a fire. Tr. 43.
Leverknight assessed the negligence as high because, in his experience, a belt cannot cut
2.5 inches into steel in a short period of time. Tr. 41. This indicated that the conditions had
existed for an extended period. Tr. 41. Furthermore, the conditions at three crosscut were
obvious because the structure was hanging at eye level for anyone walking past. Tr. 41. The
conditions at 27 crosscut were obvious because they were on the side of the belt where miners
travel. Tr. 41. He determined that one person would be affected by the violation because he did
not see anyone working on the belt. Tr. 42. Therefore, Leverknight concluded that the only
person who would be affected would be the mine examiner. Tr. 42.
There were numerous safety systems on the belt line, which the Respondent argues would
have mitigated any danger. There were CO sensors on the belt, spaced approximately 1,000 feet
apart. Tr. 70. Leverknight tested the sensors and they were functioning. Tr. 71. He estimated
that the sensors were set to five or seven parts per million, however safety manager William
Schifko testified that the the alarm detects five parts per million and alerts when it detects 10
parts per million.17 Tr. 70-71, 206-207. CO sensors were used to detect when the belt gets hot
and releases carbon monoxide in order to catch the initial stages of combustion. Tr. 71. They
provide a warning that would be given to the section to prompt the evacuation of the section. Tr.
71. The C-2 belt also has a fire suppression deluge system in the drive areas, storage areas,
motors, and other areas. Tr. 207. There were also handheld detectors and extinguishers along the
belt. Tr. 207-208. However, in Leverknight’s experience, CO sensors will not sense when the
belt is burning. Tr. 91-92. He testified that he has placed a CO detector beside a pile of shavings
17

William Schifko worked at Emerald for 34.5 years, and in 2010 was working as
manager of safety managing compliance issues. Tr. 200-201. At Emerald, he has worked in
production, safety, and with the continuous miner and longwalls. Tr. 200-201. He is certified in
Pennsylvania as a mine foreman. Tr. 200. His responsibilities as safety manager include
ensuring that everyone knows the laws and regulations and investigating circumstances that lead
to citations and orders. Tr. 201.

35 FMSHRC Page 3132

that were smoldering with visible smoke, and the alarm was not triggered. Tr. 92. In addition to
the CO sensors, there is a barrel of fire protection, a fire hose, fire valves, and overhead water
sprays that are equipped to react to a rise in temperature. Tr. 72. However, the fire suppression
system is only at the belt drive and the belt takeup, and it does not cover the middle of the belt.
Tr. 92.
The condition could not be fixed until the other orders that Leverknight issued were
terminated, because they had to turn on the belt in order to train it. Tr. 43. In order to do so, they
had to clean the accumulations and rock dust, and change the rollers before training the belt. Tr.
43. In total, Emerald changed 46 rollers to terminate this citation. Tr. 93; GX-8, 2.
Schifko was not at the mine when Leverknight was conducting his inspection on October
18, 2010; however he did speak with Leverknight later in the day. Tr. 202. Leverknight told
Schifko that the come-along at the No. 4 crosscut was not performing properly, so Schifko
began investigating the matter. Tr. 202-203. Schifko interviewed Levo and Oros, the two mine
examiners who would have performed the preshift examination prior to the inspection. Tr. 203;
RX-4. Levo told Schifko that the belt was being pulled by come-alongs and that the belt was in
operation during their examination. Tr. 20. He said that the belt was bulk dusted from crosscuts
six to 10 and from 10 to 15. Tr. 205.
Order No. 7082871
Order No. 7082871 was issued for accumulations of combustible materials on the C-2
belt at 9 ½ crosscut to the tailpiece at 32 crosscut. Tr. 106-107; GX-3, 1. Leverknight observed
accumulations at the 25 to 23 crosscut while traveling along the longwall belt. Tr. 44-45. These
accumulations were under the rollers, contacting the rollers, and built up around the rollers. Tr.
45. The belts are approximately 8 to 10 inches off the floor in that area of the mine. Tr. 46.
Depending on the area, the accumulations were a combination of loose coal, fine coal,
and coal dust. Tr. 45-46. He testified that he used the word “dirt” in his report to mean “coal”
because it is a habit he picked up while working as a mine examiner. Tr. 45. The coal that was in
contact with the belt was primarily finer coal dust. Tr. 45-46. Leverknight did not specify in his
notes which areas were wet and which were dry. Tr. 75. However, he testified that wet material
can become combustible. Tr. 75-76.
Next, Leverknight observed accumulations at the 22 to 21 crosscut contacting two rollers
on the tight side of the belt.18 Tr. 46. He testified that it was a similar combination of loose coal,
fine coal, and coal dust. Tr. 46-47. At the 16 to 15 crosscut, Leverknight observed
accumulations under the rollers and in contact with the roller on the tight side of the belt. Tr. 47.
Because it was on the tight side of the belt, Leverknight had to look under the belt to see the
accumulation in contact with the roller. Tr. 47. Leverknight testified that the mine examiner

18

The longwall belt has a “walk side” where individuals travel and a “tight side” where
individuals do not travel. Tr. 37, 41.

35 FMSHRC Page 3133

should look under the belt in order to be sure that the belt is not in contact with anything when it
is running. Tr. 47.
Leverknight then observed similar conditions at the 14 to 13 crosscut, including
accumulations and coal in contact with rollers on the tight side of the belt. Tr. 47. He explained
that the cause of this condition is often that belt cleaners only clean the walk side and ignore the
tight side of the belt. Tr. 47-48. This allows accumulations to build on the tight side. Tr. 47-48.
Leverknight also observed coal accumulations under the rollers on the walk side at 12
crosscut. Tr. 48. These accumulations were similar to the others, with a mixture of loose coal,
lump coal, and fine coal dust. Tr. 48. All along the belt, Leverknight noticed a coating of float
coal dust on the rock dust. Tr. 48. He believed that these accumulations had existed for some
time because the amount of accumulations, the distance that the accumulations covered, and the
fact that the spillage was under the rollers indicated that it had not simply spilled off the sides.
Tr. 49.
Neither Strimer nor Baer recalled seeing rollers in coal. Tr. 160, 168-169. Strimer
testified that he did not get underneath the belt to look to see if the rollers were in contact with
accumulations. Tr. 160.
On the afternoon shift of October 17, 2010, Gregory King performed the preshift
examination on the C-2 belt from 9 ½ crosscut to 15 crosscut, and John Hoak examined the C-2
belt from 15 crosscut inby to the tail.19 Tr. 106-107, 116-117. Hoak was “pretty sure” that the
belt was running during the examination, but the mine was not producing coal. Tr. 117-118.
Hoak did not find any hazards or conditions. Tr. 117. King testified that he did not find any
accumulations of combustible materials or material in contact with rollers during his
examination. Tr. 107.
King did not train the belt on October 17, 2010, but he was familiar with how it would be
done. Tr. 109. One would work from outby in to train the belt between four and three crosscut.
Tr. 109. He testified that one could cause accumulations when training the belt if one performed
the task incorrectly, however it would be impossible to get accumulations ten crosscuts away. Tr.
108-109. Furthermore, when the belt moves, it can go out of train. Tr. 110. Every time there is a
longwall panel completed, which occurs every 90 minutes, the tailpiece moves. Tr. 110.
Therefore, the belt could go out of train every 90 minutes. Tr. 110. Additionally, King testified
that if the come-along holding the belt in train detached, it could result in the belt running out of
19

John Hoak works at Emerald Mine as a mine examiner. Tr. 113. He has worked at
Emerald for two years as a roof bolter, nine years as a miner operator, five years as a motorman,
one and a half years as a pumper, and 2.5 years as a mine examiner. Tr. 114. Prior to Emerald,
he worked at Shannopin Mine for 11 years and Banning Mine for three years. Tr. 114. He has
been a certified Pennsylvania mine examiner since September 1993, and has been conducting
examinations once a week since that time. Tr. 114-115. As an examiner, his responsibilities are
to inspect belt lines and haulages for dangers, hazards, violations or conditions, methane content,
and direction of air. Tr. 115.

35 FMSHRC Page 3134

train. Tr. 111. If this were to happen, it could result in coal being dumped off the side of the belt
in a quick time frame of 10-15 minutes. Tr. 111.
The longwall belt moves about 950 feet per minute, which makes it a very fast belt. Tr.
132. The other section belts move about 350 feet per minute. Tr. 132. Simkovic testified that
accumulations could occur on the C-2 longwall belt very quickly if the tailpiece was moving
from the belt running out of train. Tr. 133. Simkovic did not recall seeing any of the conditions
described in Order No. 7082871. Tr. 133; GX-3.
Reviewing Order No. 7082871, Mine Examiner James Levo testified that he was
responsible for the 9 ½ crosscut to the belt tailpiece, and that he did not recall seeing any
accumulations in those areas.20 Tr. 150; GX-3, 1. He testified that if he had seen accumulations
or the belt cutting into the structure, he would have listed these in his report. Tr. 150-151. Levo
further testified that if there were rollers that were broken or popped out, he would have recorded
them as a condition in the book. Tr. 152.
The hazards from coal accumulations include damaging rollers and causing the belt to
rub the accumulations and cause a fire. Tr. 51. A mine fire could result in injuries including
smoke inhalation and burns. Tr. 51. Additionally, if there was an explosion on a longwall face
with the float coal dust, that could propagate an explosion on the belt line. Tr. 51. Leverknight
did not detect any methane during the examination, making a methane ignition unlikely. Tr. 73.
The float dust was not in suspension, but Leverknight testified that float dust does not have to be
in suspension for it to constitute a hazard. Tr. 73-74.
Leverknight issued Order 7082871 as Signficant and Substantial because all the elements
were present to cause a mine fire. Tr. 52; GX-3. There were accumulations, bad rollers, belt
rubbing on the structure, and belt rubbing on the accumulations. Tr. 52. He assessed the
violation as high negligence and unwarrantable failure because he believed that the violation had
existed for some time, and the preshift examination was performed only a few hours earlier. Tr.
52-53. According to the Emerald Mine Shift Production Report, coal was produced on the C-2
longwall on the daytime and midnight shift of October 15, 2010, and on the midnight shift of
October 18, 2013. Tr. 53-54; GX-10-1. Therefore, a preshift examination was required prior to
the midnight shift on October 18. Tr. 55. Leverknight testified that the coal produced during the
midnight shift was not likely to have caused the accumulations he saw because the
accumulations were under the belt and around the rollers, ground fine, and had other qualities
20

James Levo has 30 years of mining experience, with 18 years at Emerald, and 12 years
at Clude Mine, Gateway Mine, and Target Mine. Tr. 142. In 2010, Levo worked as a mine
examiner at Emerald Mine. Tr. 142. He became certified as a mine examiner in 1984 and has
been conducting preshift examinations since 1986. Tr. 142-143. As a mine examiner at Emerald,
Levo examines belts and haulages and air courses for hazards and conditions. Tr. 143.
In 2010, Levo conducted preshift examinations on the C-2 longwall belt once a day for
five to six days per week. Tr. 144. By that time, he had been conducting these examinations for
approximately four to five years. Tr. 144. Levo typically conducted the examination of the outby
portion of the belt, the head area to 15 crosscut outby, and Bruce Oros would conduct the
examination inby. Tr. 144-146.

35 FMSHRC Page 3135

indicating they had been there for some time. Tr. 55. Leverknight described the accumulation
violation as obvious because of the extensive amount of materials on the belt and the distance
that they were spread out. Tr. 55-56. Additionally, Emerald Mine had a history of Section
75.400 violations. Tr. 55.
When Leverknight left the mine at 3:30 pm, this Order had not yet been terminated. Tr.
56-57. The operator originally told Leverknight that they would be finished cleaning up the
accumulations and rock dusting by the end of the day shift. Tr. 57. However, at some point the
mine superintendent told Leverknight that they would not be finished until later in the afternoon
shift. Tr. 57. Therefore Leverknight decided to go back to the Ruff Creek Field Office, which is
approximately 10 miles from the mine, and told the superintendent to call him when they were
an hour or two from being ready to run the longwall. Tr. 57-58.
Steven Simmons was employed as the belt moving foreman on October 18, 2010, but
since there were no belts being moved that day, he was helping with other tasks underground.21
Tr. 175-176. He became aware of the circumstances that led to the issuance of Citation No.
7082869 on October 18, 2010 at 10 a.m. Tr. 176. At that time, the computer room attendant
called Simmons and told him that there were issues that needed to be resolved. Tr. 176.
Simmons went to the drive location at 22 or 23 room and found the belt shoveler who was in
charge of cleaning the belt that day. Tr. 177. There were typically two shovelers to a longwall
belt line per shift. Tr. 177-178.
Leverknight discussed with Simmons his findings and what needed to be addressed. Tr.
178. Simmons gathered men to clean the area, and he testified that when he arrived there the
necessary shoveling was minimal. Tr. 178. Simmons arrived at the longwall belt when it was
already down and stated that there were no hot rollers. Tr. 179-180. Simmons testified that the
C-2 longwall belt was rock dusted and that the area was easily “whitened up” with rock dust. Tr.
179. He described the consistency of the material underneath the belt as “light, flakey, what they
call corn flakes,” that flake off the belt. Tr. 179. Simmons further described the materials as
slightly wet or moist. Tr. 179.
Simmons looked at the entire length of the belt and assigned men to clean the material in
the areas where Leverknight specified. Tr. 180. Simmons testified that those areas each required
less than a shovel full of material to be cleaned out. Tr. 180. Simmons stated that the material
was barely in contact with the rollers, and would have only required the moving of a threequarter inch diameter roof bolt under the belt to clear it. Tr. 180-181. Simmons had 13 men
working with him to clean up the accumulations and rock dust. Tr. 184, 186. When Simmons
21

Steven Simmons worked at Emerald Mine for eight years, with the first four as a belt
foreman and the last four as the belt moving foreman. Tr. 174. Simmons stated that the
difference between these positions is that the belt foreman performs any work related to the belt,
while the belt moving foreman is primarily in charge of advancing the belts in the working
sections. Tr. 175. Prior to working at Emerald, Simmons performed conveyor maintenance for
four years at Conveyor Services and four years at Stahora Company. Tr. 175. He had
approximately 16 years of experience with mining belts. Tr. 175.

35 FMSHRC Page 3136

ended his shift at 5 p.m. on October 18, 2010, the entire belt was shoveled and his men were in
the process of applying rock dust to the area. Tr. 182.
On October 18, 2010, shift foreman Keith Mills was at an annual retraining class.22 Tr.
188-189. After it was called out that citations and an order were written on the C-2 belt, Mills
and Joe Privolo went to investigate the situation. Tr. 189. They arrived at the belt at
approximately 11:30 and went to nine room. Tr. 189. Privolo went to the tight side, and Mills
went to the wide side, and they began walking the belt. Tr. 189-190. From nine room to 20
room, the area ranged from damp to wet, and the rock dust was a grayish color, indicating
moisture. Tr. 190. They continued to 13 to 14 room, where the rollers were marked as needing
to be cleaned, and got down on their hands and knees. Tr. 190. They scraped the material with a
fiber pin, and concluded that the material was mainly rock dust and wet. Tr. 190. They
continued to 15 room and similarly concluded that the material under the bottom roller was
mainly rock dust and damp. Tr. 190. They continued to 15 to 16 room and found that two rollers
were missing. Tr. 190. The belt was in contact with the mine floor, but the area was wet and
rock dusted. Tr. 190-191.
They then proceeded to 16 to 17 room and found fines and rock material in the bottom
roller. Tr. 191. At 17 to 18 room, they found that rollers were missing. Tr. 191. At 20 room,
they found three men cleaning the area. Tr. 191. The area at around 20 room was dryer and the
rock dust was white. Tr. 191. At 26 to 27 room there were missing rollers; at 27 to 28 room
there were four missing bottom rollers; and at 28 to 29 room there were seven missing bottom
rollers. Tr. 191. The belt from the tail to 17 room had been cleaned and placed on the belt. Tr.
192.
Mills testified that when he left the mine at 12:30 p.m. the majority of the cleaning was
complete, but Order No. 7082871 was not abated until 1:25 a.m. Tr. 192-193; GX-3, 3. The only
areas that still needed to be cleaned up after Mills left were from 17 room down to nine room. Tr.
193. Mills testified that the area between the tail to the 17 to 18 room was cleaned in
approximately one and a half hours. Tr. 193.
Leverknight received a call from the operator at approximately eight hours later, at 11:00
or 11:30 pm. Tr. 58. He returned to the mine and terminated Order No. 7082871 at 1:25 am. Tr.
58; GX-3-3.

22

Keith Mills worked at Emerald Mine for approximately five years. Tr. 186-187. In his
first year and a half, he was a section supervisor; he then worked as a shift foreman for three
years; and then as a section coordinator. Tr. 187. In 2010, he worked as a shift foreman, where
he was responsible for the safety, production, and cost for the entire shift. Tr. 188. Prior to
working at Emerald, Mills worked for 30 years at Wabash in Illinois, as safety committeeman,
section supervisor, assistant shift foreman, shift foreman and coordinator, and production
coordinator. Tr. 187. Mills has Pennsylvania mine foreman papers, Illinois mine examiner and
mine manager papers, and Indiana mine manager papers. Tr. 187-188.

35 FMSHRC Page 3137

Citation No. 7082870
Leverknight issued Citation No. 7082870 for the damaged rollers he observed along the
C-2 longwall belt.23 Tr. 59-60; GX-2. He first saw the damaged rollers at 22 to 21 crosscut. Tr.
60. He observed bad bottom rollers down in the coal on one side that were not turning and were
worn flat from the belt rubbing on the roller. Tr. 61. One of the rollers had not been turning, so it
was dropped down on one side. Tr. 61. However, the other side of the roller was still in contact
with the belt, resulting in a flat spot on the roller. Tr. 61.
Leverknight next observed a damaged bottom roller at the 17 to 16 crosscut. Tr. 61.
Similar to the previous situation, one side was hanging down on the coal, and the side in contact
with the belt resulted in a flat spot on the roller. Tr. 61.
Leverknight next observed a missing bottom roller at the 16 to 15 crosscut, which
allowed the belt to go slack and ride on coal fines under the belt. Tr. 61-62.
Leverknight next observed a damaged bottom roller at the 4 to 3 crosscut. Tr. 62. This
roller was dropped down into the coal on one side, while the other side made contact with the
belt, leading to a flat spot on the roller. Tr. 62. Leverknight observed a come-along in place that
was hooked to the structure to move it over. Tr. 79. It was being used in order to keep the belt
trained, however only one side was hooked up. Tr. 79.
Reviewing Citation No. 7082870, Levo testified that the bad rollers cited at four to 3
crosscut and 16 to 15 crosscut would have been in the area where he conducted a preshift
examination. Tr. 152; GX-2, 1. He testified that he did not remember seeing the bad rollers
cited. Tr. 152-153.

23

Leverknight provided the following extended definition of “bad” or “damaged” rollers:

Some of the rollers, they have bearings on both ends where they ride on the axle
shaft. The bearings go bad and fly apart, and the steel barrel of the roller actually just
rubs on the shaft itself.
Some of them, the steel barrel itself of the roller wears in half, and they just start
flopping on the shaft.
Some of them are actually damaged on one side. So they drop them down out of
the hanger so they’re not in contact with the belt. That’s the damaged rollers.
Flat spots wear in the barrels because the bearings go bad and it locks the roller up
so it won’t spin, and the belt just rides on top of it, flattens it from rubbing on it.
Tr. 60.

35 FMSHRC Page 3138

Leverknight issued Citation No. 7082870 as Significant and Substantial because of the
combination of damaged rollers and missing rollers that allowed the belt to ride on the coal
accumulations. Tr. 62. Leverknight did not observe any frictional heat when he saw the bad
rollers because the belt had been shut off from the moment he originally observed it rubbing on
the structure. Tr. 63.
The Respondent did not contest this citation. Tr. 62-63. It changed the rollers on the belt
during the process of cleaning accumulations and rock dusting. Tr. 63. It is Schifko’s
responsibility to decide which citations and orders to contest, and he decided not to contest
Citation No. 7082870. Tr. 206. Schifko testified that “if the rollers were bad or damaged, they
were what they were. I don’t frivolously contest issues.” Tr. 206.
Order No. 7082872
Leverknight issued Order No. 7082872 for an inadequate preshift examination of the
longwall belt. Tr. 63; GX-4. Such examinations are necessary in order to ensure that there are no
hazards or violations that would be detrimental to miners in the oncoming shift. Tr. 64. Preshift
examinations are required within three hours prior to the oncoming shift for any area in the mine
where there will be persons working or traveling. Tr. 64. When a mine examiner discovers a
hazard or violation in any area of the mine, he is required to record it in the book and make sure
that it is taken care of immediately. Tr. 64. Leverknight issued Order No. 7082872 after he
observed the conditions that he cited in Citation Nos. 7082869, 7082870, and Order No.
7082871. Tr. 64-65.
Leverknight issued Order No. 7082872 for inadequate preshift examinations as
Signficant and Substantial because the underlying conditions were assessed as Signficant and
Substantial. Tr. 65. He assessed the negligence as high and determined that it was an
unwarrantable failure because the examiners are agents of the operator and the conditions
appeared to predate the prior examination. Tr. 65-66. The preshift examinations for October 18,
2010 indicate that there were no violations or hazard reported. Tr. 66-67; GX-9-12, 13.
Leverknight testified that the accumulations should have been recorded as dangerous and
hazardous conditions because they were in contact with the rollers and the belt. Tr. 67. He also
believed that the belt rubbing along the structure and the bad rollers should have been recorded
as dangerous and hazardous conditions. Tr. 67.
Simkovic testified that if the belt in the C-2 longwall had been observed by a preshift
examiner as rubbing along the stand, it would be recorded as a violation. Tr. 136. If the belt
were rubbing against the stand or running through the structure where it had cut before,
Simkovic would not consider it a hazard. Tr. 136-137.
Leverknight determined that one person was likely to be affected by the failure to
conduct an adequate preshift examination because no one was assigned to work on that belt. Tr.
67-68. When he walked the belt, he did not see anyone along the entire length of the belt. Tr. 68.
Furthermore, the belt dumps out into the return, so it does not affect the section. Tr. 68.
Therefore, he assumed that the only person that would be on the belt would be the examiner. Tr.

35 FMSHRC Page 3139

68. However, Leverknight also testified that he did not take into account that there were two
examiners that split the belt. Tr. 68.
On the October 17, 2010 preshift examination, Mine Examiner James Levo indicated that
the belt needed to be trained at the 4 crosscut to the takeout. Tr. 147; RX-5, 34. On October 18,
2010, Levo did not find any hazards or conditions on the C-2 belt, and he did not recall seeing
that the belt needed to be trained. Tr. 145-147; RX-5, 34, 37. Levo recalled seeing a set of comealongs from the 4 crosscut to the takeout that were attached to the rib and the wide side of the
belt structure in order to keep the belt structure in place and not let it run out of train. Tr. 147148. He recalled that the belt structure ran out of train and rubbed the structure prior to October
18, 2010. Tr. 148. When this happens, the belt will usually leave belt shavings and sometimes
cut the structure. Tr. 148. Levo testified that if he did not witness the belt rubbing the structure,
causing friction or smoke, he would not note in his examination if there were grooves in the
structure. Tr. 148-149. He testified that such grooves were not meaningful. Tr. 148-149. Levo
testified that when he finishes his examinations of the belts, he fills out the book and then reports
his results to his shift foreman or the mine foreman. Tr. 149-150.
In October 2010, Bruce Oros and his co-examiner, Jim Levo, examined the C-2 longwall
belt every day.24 Tr. 287-288. On a typical inspection, they would come out of the C-3 area and
proceed into the C-2 area, with Levo walking the belt in from the C-3 head and Oros walking
toward the tail from 15 room. Tr. 288. Oros conducted the five to seven a.m. examination on
October 18, 2010. Tr. 289; RX-5, 36. He did not identify any hazards or conditions during his
preshift examination. Tr. 289; RX-5, 36. Oros preshifted the area at 15, 26, 21, 22, 23, and 25
tailpiece at 32 crosscut, and he testified that he did not recall seeing the conditions described in
Order 7082871. Tr. 290.
Oros described the longwall belt as volatile stating that “conditions can change at any
time. Belt runs dry, you get float dust. Belt walks, you get spillage.” Tr. 291. However, he
testified on cross-examination that if material were to spill off the belt, it would be pieces of
coal. Tr. 291. Dust would only be produced if the conditions were dry or if the belt was rubbing
the structure. Tr. 291-292. Oros testified that if the belt were rubbing the structure, he would
shut it down. Tr. 292.

24

Bruce Oros worked as a supervisor and acting shift foreman for Emerald Mine. Tr.
285. Prior to working at Emerald, Oros worked for 13 years at Nemacolin Mine fire bossing,
working on the river, at the prep plant, running a buggy shuttle, and bolting. Tr. 286. He has
mine examiner and assistant mine foreman papers. Tr. 286. In 2010, Oros was a mine examiner
for Emerald, where his duties included insuring that state and federal laws were followed, and
that there were no imminent dangers, hazards, and conditions in the mine. Tr. 286-287 Between
1992 and 1996, Oros was the chairman of the safety committee for two locals of the UMWA,
where he was responsible for ensuring the safety and health of mine workers. Tr. 286. He has
between 25 and 30 years of experience conducting mine examinations. Tr. 286-287.

35 FMSHRC Page 3140

Leverknight terminated the citation when he came back to the mine that night after the operator
gave all the preshift examiners a short retraining on conducting proper preshift examinations on
the belt. Tr. 68.
Order No. 7073116
Inspector Allan Jack issued Order No. 7073116 after observing damaged roof bolts and
straps, which he determined constituted a violation of 30 C.F.R. § 75.202(a) in that they provided
inadequate roof supports.25 Jack was at Emerald Mine No. 1 on October 21, 2010 in order to
conduct the normal E01 quarterly inspection. Tr. 222-223. Jack arrived at the mine at 7:05 a.m.,
let the company know that he was on the property, and checked the on-shift and preshift
examinations. Tr. 223. He testified that there was nothing of note in the preshift examination
records. Tr. 224.
Jack intended to inspect the B-left haulage and B-inlets, which are the B-main haulage.26
Tr. 224. At the time, Emerald was recovering a longwall at the B-main section, which involves
removing and disassembling the longwall and moving it to another section of the mine. Tr. 224.
He traveled underground with Adam Strimer, as the company representative, and Matt Shiflet, as
the miners’ representative. Tr. 225, 294-295.
They started the inspection at the bottom of the No. eight shaft and traveled on foot
towards B-4 section. Tr. 295. While traveling up the B-left haulage on foot, Jack observed roof
straps hanging from the mine roof, which prompted him to inspect the area more closely. Tr.
225. Jack described the purpose of the roof straps or channels as helping to support the roof by
holding up localized loose roof material. Tr. 229. Upon closer inspection, Jack found damaged
roof support, missing roof support, and loose hanging materials. Tr. 225. Jack issued Order No.
7073116 upon finding the condition of the B-left haulage, citing a violation of 30 C.F.R.
§75.202(a). Tr. 226-227; GX-5.
Haulages are the primary way to enter and exit the mine and also the primary escapeway
for the side of the mine Jack was traveling. Tr. 226. All the equipment for the longwall is
transported through the haulage. Tr. 265. Miners using the haulage as an escapeway would be
traveling on foot. Tr. 226. Some of the vehicles that the miners travel on have canopies, but
there are no certified falling object protections on them. Tr. 226.
Jack sketched a diagram in his notes of the mine roof in order to illustrate where the bolts
were damaged and missing, and where the mine roof straps were damaged. Tr. 227; GX-13, 3.
25

Inspector Allan Jack worked for MSHA for four years in he Ruff Creek Field Office.
Tr. 221. Prior to working for MSHA, he worked for Consol Energy at Enlow Fork Mine for
approximately 10.5 years as a miner bolter, center bolter, mining machine operator, and mine
examiner. Tr. 221-222. He has assistant mine foreman and Pennsylvania shot fires certifications.
Tr. 222.
26

Inspector Jack defined a “haulage” as the entry in the mine that the miners use to travel
in and out on something akin to a railroad system on personnel carriers, or mantrips. Tr. 225.

35 FMSHRC Page 3141

He reviewed his notes and illustrations at the hearing.27 Tr. 228. In total, Jack observed seven
rows of damaged roof support. Tr. 232. In the second row, Jack observed a mine channel roof
strap that was torn in two pieces and had a twisted bolt plate. Tr. 229. In the third row, he
observed a bolt that had the head sheared off of it and was damaged severely. Tr. 229.
Furthermore, there were bent and smashed bolts that were put in supplementally, as well as
several twisted and bent straps. Tr. 229. In the fourth row, Jack observed a channel that was
ripped two times, with the straps pointing aimlessly, as well as damaged bolts and twisted plates.
Tr. 229-230. In the fifth row, he observed a mine channel severely battered and smashed, as well
as some twisted plates. Tr. 231. In the sixth row, he observed a roof channel that was severely
damaged and torn in pieces, as well as bolt heads smashed and missing and twisted plates. Tr.
231. In the seventh row, he observed one damaged bolt head and one bolt head missing. Tr. 231232.
He described the roof in the area as having loose material hanging, with old and new
potted out coal, and rock showing. Tr. 232. There was also roof coal and rock lying on the mine
floor that had fallen. Tr. 232. Jack took pictures of the conditions that he described, and
interpreted the photos at hearing. Tr. 232-233, -233-245; GX-15; GX-29, 3. Jack did not observe
signs of sagging or slicks during his inspection on October 21, 2010. Tr. 261-262.
The plan called for a minimum of five-foot bolts. Tr. 262-263. The bolts used in this
section of the mine were combination bolts that were eight-foot long and resin assisted. Tr. 230,
262. The bolt comes in two four foot sections, with the top half being a rougher diamond shape
bolt that gets installed in the mine roof with resin. Tr. 230. There is then a coupler in the center
where the lower four foot half is inserted with dowel pins. Tr. 230. The bolt is spun for
approximately 30 seconds, which permits the resin to set in the mine roof in the top four foot
section and allows the bottom half to be torqued.28 Tr. 230. The dowel pin then breaks, causing
the two pieces of the roof to come together and form a beam in the mine roof. Tr. 230-231. Jack
testified that a bolt head is like a bearing surface holding all the bearing weight, and that a
damaged bolt affects its integrity. Tr. 230-231.
The roof bolts are permitted to be as far as five feet between rows and five feet from the
center bolt to the rib bolt. Tr. 263. Jack testified that the spacing between the bolts was less than
five feet, and there were more bolts than were necessary. Tr. 264-265.

27

In the diagram, a circle represented a bolt that was bent or damaged, a star represented
a solid bolt with no damage, a circle with an “X” through it represented bolts that were damaged
to the point of having the heads missing, a rectangle with a circle or an “X” within it represented
a bolt in a mine roof strap that was damaged with a twisted plate, a squiggly rectangle
represented a roof strap that was battered and smashed, and a rectangle represented a roof strap.
Tr. 228. GX-13, 3.
28

The B-main left haulage had combination bolts installed, which have a required torque
range of 200-300 foot pounds. Tr. 360-361. Each bolt is torqued upon installation. Tr. 361.

35 FMSHRC Page 3142

Inspector Jack testified that rock dust and rust were indications of whether the damage he
observed was old or new. Tr. 234. The area was rock dusted only a few times per year, therefore
the presence of flaking rock dust on damaged bolts indicate that the damage was old. Tr. 234.
The hanging strap that Jack described was approximately five feet from the mine floor.
Tr. 239. This was a low area of the mine, with the roof being only five feet 11 inches high. Tr.
239. The rest of the haulage was approximately six and a half feet high. Tr. 239-240. In the area
of the roof with newer damage, Jack estimated that the roof had been potted out in a six by 12
foot area. Tr. 240. He could not measure the area because there was unsupported top and
inspectors will not travel under unsupported top. Tr. 240.
Jack identified a switch near the haulage that is used to go into another sidetrack. Tr. 243244. Fire bosses and examiners would need to use the switch, and when doing so they would
write down the time, date, and their initials. Tr. 244. The mine examiner’s initials prior to Jack’s
inspection were “DT,” which Jack understood as a reference to Dave Thearle. Tr. 244. Thearle
indicated that he did the examination at 6:12 a.m., and Jack issued the citation at 9:30 a.m. Tr.
244-245.
While underground, Jack told the company representative, Adam Strimer that he was
issuing (d) orders on the condition and on the preshift examination. Tr. 245-246. When he
reached the surface, he talked with William Schifko about the issues. Tr. 246. After Schifko
viewed the conditions, he told Jack that he did not believe that the violation was an
unwarrantable failure. Tr. 246.
Jack issued the citation as Significant and Substantial because the top was inadequately
supported, there was material hanging, and it was a hazard to a miner traveling through the area.
Tr. 246-247. The Emerald Mine has experienced roof falls and there was a large roof fall outby
in the same haulage as the condition cited, which occurred prior to the citation. Tr. 247. If an
accident were to happen as a result of the hazard cited, it would be fatal because falling materials
from the mine roof can kill a miner. Tr. 247. Jack issued the citation as one person affected
because he felt that only one person would be entering the area at a time. Tr. 248. Jack estimated
that some of the damage had existed for hours and some for weeks. Tr. 248.
There were indications that a number of individuals traveled through the area, including
a mine examiner, motormen, a longwall coordinator and his crew, a fire boss pumper, and one
other foreman. Tr. 248. Other individuals that traveled through the area on October 21, 2010
include Pumper Fire Boss Jack Favro at 9:09 a.m., Fire Boss Don Hardey at 8:38 a.m. and 8:48
a.m., and Longwall Coordinator Robert Wolfe at 8:22 a.m. Tr. 252; GX-27. The motormen,
John Gech and Scott Price, told Jack that they did not damage the ceiling or mine roof. Tr. 248,
250. Gech told Jack that he was hauling shields, but that they did not hit the mine roof. Tr.
250-251. Shields are larger than the normal rolling stock of material in the mine, so they present
more of a likelihood for damage to the mine roof. Tr. 252.
The condition was fixed by bringing in a track miner bolter and bolting the area into
compliance with the mine’s roof control plan. Tr. 253. Jack was told that the mine added more
than 40 bolts. Tr. 253. Jack left the mine at approximately 3 p.m on October 21, 2010, and gave

35 FMSHRC Page 3143

his phone number so that they could contact him when they were close to fixing the problem. Tr.
253-254. Jack returned to the mine later in the evening and terminated Order No. 7073116 at
10:22 p.m. Tr. 253.
Jack assessed Order No. 7073116 as high negligence and unwarrantable failure because
the obviousness of the condition. Tr. 254. He testified that anyone could have seen the condition
and known that it was a violation. Tr. 254. Furthermore, mine management knew that the area
was a problem area because there was supplemental bolting used. Tr. 254. This gave Jack reason
to assume that the Respondent was aware that the condition existed or should have been aware
that it existed. Tr. 254-255. Emerald was cited 27 times in the two years prior to the hearing for
failing to have an adequately supported roof. Tr. 279-280.
Order No. 7073117
Jack also issued Order No. 7073117 for a violation of Section 75.360(b)(1) in conducting
the preshift examinations. Tr. 255; GX-6. Section 75.360(b)(1) requires a certified examiner to
examine an area not more than three hours prior to the start of an oncoming shift for hazards, air
quality, and other issues. Tr. 255-256. There were no violations, dangers, or hazardous
conditions observed or reported in the preshift examination report for the morning of October 21,
2010. Tr. 256; GX-16, 9. Jack testified that based on his experience as a mine examiner, he
would have recorded the conditions in the B-main left haulage as dangerous and hazardous
conditions in order to warn miners in the oncoming shift. Tr. 257. The preshift examiner, fire
boss, and any other management that came through the area should have reported the damaged
roof strap. Tr. 280.
Mine examiner David Thearle was first made aware of Order No. 7073117 the day after
the order was issued.29 Tr. 317. Thearle defined bad roof as roof where there are visible cracks,
sagging in places, hanging slate, or with coal that is cracking off from pressure. Tr. 313. Potting
and roof sloughage are not reportable until they are above the anchorage. Tr. 279. He testified
that the roof in the B-main was “good.” Tr. 313. Thearle testified that when he sees a bad bolt,
29

David Thearle had been employed at Emerald Mine since 1981, working as a fire boss
for the five years previous to the hearing. Tr. 309. Prior to Emerald, Thearle was a supervisor
and section foreman at Montour 4 from 1973-1978, and a general laborer at Marianna from
1978-1981. Tr. 309. He got his fire boss papers in 1976. Tr. 309. Thearle had a brief stint as an
inspector trainee with MSHA from June, 2006-August, 2007. Tr. 310. During that time, he went
to training in Beckley for roof control, ventilation, respirable dust, and surface training. Tr. 310.
As an examiner, Thearle examines the mine for hazards and dangers, inspects the belt
lines and haulagues, and examines the returns and bleeders weekly. Tr. 311. He examines the
roof and ribs for accumulations of coal, explosive dust, and gases in order to make sure that
conditions are safe for the oncoming shift. Tr. 311. He is responsible for reporting hazards and
dangers, but can also record certain violations in the fire boss book. Tr. 311.
In October 2010, Thearle was examining the B-main haulage. Tr. 312. He would travel
from the east corridor haulage up to B-7. Tr. 312, 315-316.

35 FMSHRC Page 3144

he marks it and reports it in the book for the oncoming shift. Tr. 314. Thearle has shut down the
belt and haulage as a consequence of conditions, and has not been criticized by management for
his actions. Tr. 315.
Thearle performed the preshift examination on October 21, 2010. GX-16, 9. He did not
mark down any hazards, and he testified that there were no hazards present that he did not mark.
Tr. 317; GX-16, 9. Thearle testified that he did not see any slips and that there was no strap
hanging that would have made an examiner duck to avoid it. Tr. 319-320.
Jack issued Order No. 7073117 solely on the basis of the conditions that he cited in Order
No. 7073116. Tr. 257. He assessed it as S&S because the extent of the condition, the
unsupported mine roof, and the loose rock hanging were not examined properly to warn miners
on the oncoming shift. Tr. 257-258. The violation was obvious because Jack could see the roof
straps hanging from a distance. Tr. 258-259. He testified that if one were operating a personnel
carrier at the time that he observed the conditions, one would have to duck and move out of the
way from the hanging straps. Tr. 259. Strimer testified that he did not believe that the strap
would have struck someone. Tr. 296-297. He disagreed with Jack’s assessment that it was a
center strap, and that someone would have to duck in order to avoid the strap. Tr. 297. The only
way that one could travel in the area without walking under unsupported roof was if one stayed
on the far walk side, which would be difficult in the narrow walkway. Tr. 258. Jack testified that
he expected injuries resulting from the roof conditions to be fatal, but he assessed it as only one
person affected because only one person would be underneath the exposed top at a time. Tr. 258.
Jack assessed the Order as high negligence and unwarrantable failure because he
concluded that it was an obvious condition that the mine examiner neglected to report. Tr. 259.
In order to terminate the Order, Jack had mine management review Section 75.360 with all
certified people at the mine. Tr. 259. He terminated Order No. 7073117 on October 28, 2010 at
10:44 a.m. Tr. 260. At hearing, Jack was informed that the mine examiners had been retrained
on Section 75.360 three days prior to his inspection, and he testified that this information would
indicate an even higher level of negligence. Tr. 260.
Strimer estimated that the damage to the strap was fresh, because of the shiny markings,
and guessed that it was caused by the longwall move. Tr. 297. Strimer testified that the roof
appeared as if something had rubbed against it, based on the lack of rock dust on it. Tr. 299.
Strimer did not recall anyone scaling loose material or seeing any loose material on the ground.
Tr. 299.
After Strimer, Jack, and Shiflet exited, Strimer, Schifko, Privolo, and John Hunchuck
went back down to the area. Tr. 299-300. Hunchuck was the mine foreman and Privolo was the
safety manager. Tr. 300. The group took measurements and mimicked the inspector’s
investigation. Tr. 300-301. Strimer testified that the company investigation occurred
approximately two hours after Jack’s and the conditions had not changed in that time. Tr. 301.
Strimer testified that the notes he took at the time reflected what Jack told him, and that he felt
Schifko’s diagram and findings were more accurate than Jack’s. Tr. 302-304.

35 FMSHRC Page 3145

William Schifko performed an investigation after Order Nos. 7073116 and 7073117 were
issued. Tr. 325. With him were Hunchuck, Privolo, and Strimer. Tr. 326. They went to the Bmains haulage just outby the B-4 track switch. Tr. 326. Schifko testified that when he arrived
underground, there was one strap that was hanging from the mine roof. Tr. 345-346. He testified
that he saw no evidence of sagging or cracking on the roof. Tr. 327-328.
He determined that the area had been damaged in the past and recently. Tr. 327, 347.
The more recent damage was likely caused by the longwall move, which involved moving 265275 shields, head drives, tail drives, stage loaders, and shears. Tr. 348. There were motormen
traveling back and forth through the cited area after the preshift examinations were completed.
Tr. 349. The motormen denied causing the damage, and denied hauling anything out of the mine
that would have caused the damage. Tr. 350-351. However, Schifko believed that they were not
being honest. Tr. 351, 362. The motormen were not disciplined. Tr. 362-363.
Schifko then evaluated the roof bolts for effectiveness and tightness, and sounded the
roof as he progressed in order to determine if there is “drummy, hollow roof, weak roof, broken
strata.” Tr. 328. He found none of these conditions. Tr. 328-329. Schifko testified that he hit
boltheads horizontally and vertically and they were “pinging,” indicating that they were solid. Tr.
336. Schifko did not observe any loose material, and saw little material on the ground. Tr. 351352.
Schifko testified that there was nothing in MSHA’s program policy manual or from the
manufacturer of the roof bolts concerning guidance for roof bolts. Tr. 336-337. Schifko did not
observe any areas that were potted out, and relayed that to Jack.30 Tr. 338.
Schifko identified several of the bolts as non-pattern bolts. Tr. 340. He testified that the
minimum length of bolt allowable under Emerald’s mine plan is five feet long, and the bolts that
were being used were either eight or twelve feet long. Tr. 343-345.
ANALYSIS
The Secretary has Carried His Burden of Proof by a Preponderance of the Evidence that the
Condition Described in Citation No. 7082869 Violated 30 C.F.R. § 75.1725(a).
Citation No. 7082869 was issued by Inspector Leverknight on October 18, 2010 at 9:45
a.m. for a violation of 30 C.F.R. § 75.1725(a). It states:
The C-2 Longwall belt, MMU-032 was not being maintained in safe operating condition.
The bottom belt was in contact with the belt structure on the walkway side at 27 crosscut.
The bottom belt was in contact with the belt structure from 23 to 22 crosscuts on the tight
side of the belt and the bottom belt was in contact with the belt structure at 3 crosscut.
There were 7 stands in a row with the belt cut through the structure approximately 2 ½
30

Schifko defined “potted out” as “when you have an inversion into the roof. You could
get that on initial mining. You could get that at a later date also where materials fall out.
Typically, it’s domed shape.” Tr. 338.

35 FMSHRC Page 3146

inches deep with the belt remaining in the cut. All of these areas were resulting in
frictional heat from the belt contacting the steel structure. The operator removed the belt
from service immediately.
The inspector assessed gravity as “Reasonably Likely,” “Lost Workdays or Restricted
Duty,” and “S&S.” He assessed the negligence as “High,” with 1 person affected. GX-1, 1. The
inspector terminated the citation on October 19, 2010 at 1:25 a.m. after the “belt was re-trained
and profiled to prevent the belt from contacting the structure.” GX-1, 2.
The Secretary contends that the conditions of the belt, which included its rubbing against
and cutting into the belt structure, significant coal accumulations under the belt, and damaged
rollers constituted violations of 30 C.F.R. § 75.1725(a). He argues that inspector Leverknight’s
testimony sufficiently established proof of the violations, and that the Respondent’s eight
witnesses provided testimony that was either consistent with Leverknight’s, not credible, or
irrelevant. He argues that the violation was S&S because (1) it violated § 75.1725(a), (2)
indicated that the machinery was operating in an unsafe condition, (3) resulted in the discrete
safety hazard of a mine fire, an occurrence which (4) presented a reasonable likelihood that
smoke inhalation and burns will result.31 The Secretary further argues that the violation resulted
from the Respondent’s high negligence because there was evidence that the belt had been
rubbing against the structure for an extended period of time, the condition was obvious, and it
was due to a recurring problem.
The Respondent contends that there was no evidence that Emerald failed to maintain the
longwall belt in safe condition, and therefore there was no violation of 30 C.F.R. § 75.1725(a).
Respondent argues that the belt did not cut into the stand at crosscut 27, there were no belt
shavings present, it was not generating heat sufficient for an ignition of the belt or coal, and the
Secretary failed to establish that the condition was unsafe. It argues that if a violation occurred,
it was not S&S because there was no “confluence of factors” present to make it reasonably likely
that a fire, ignition, or explosion would occur. The Respondent further argues that the Secretary
failed to establish high negligence because the cuts in the stand were pre-existing, the comealongs were used to correct the condition, and there were no belt shavings present.
Section 75.1725(a) requires that “mobile and stationary machinery and equipment shall
be maintained in safe operating condition and machinery or equipment in unsafe condition shall
be removed from service immediately.” The Commission has held that the standard for
determining whether machinery or equipment is in an unsafe operating condition is “whether a
reasonably prudent person familiar with the factual circumstances surrounding the allegedly
hazardous condition, including any facts peculiar to the mining industry, would recognize a
hazard warranting corrective action within the purview of the applicable regulation.” Alabama
By-Products Corp., 4 FMSHRC 2128, 2129-2130 (Dec. 1982). Section 75.1725(a) imposes two
duties upon an operator: “(1) to maintain machinery and equipment in safe operating condition,
31

The Secretary also provided an alternative argument based on the third element of the
Mathies test prior to the Commission’s clarification in Musser Engineering, Inc. and PBS Coals,
Inc., 32 FMSHRC 1257, 1281 (2010). In light of Musser Engineering, as well as Cumberland
Coal Resources, LP, 33 FMSHRC 2357, 2365 (2011), this alternative analysis is unnecessary.

35 FMSHRC Page 3147

and (2) to remove unsafe equipment from service. Derogation of either duty violates the
regulation. The Commission requires that the unsafe equipment be removed from service
immediately.” Id. (citations omitted).
The Commission has held that a belt rubbing or cutting into the belt structure, along with
combustible accumulations and possible ignition sources, constituted a hazard in violation of §
75.1725(a). Martinka Coal Co. v. MSHA, 15 FMSHRC 2452, 2456 (Dec. 1993); MSHA v. Jim
Walter Resources, 18 FMSHRC 804, 817 (May, 1996) (“[T]he belt was not in alignment and was
contacting some belt stands, ten rollers were missing, and at three locations one end of a roller
was lying on the floor. These condition can cause heat and friction which can lead to smoke or a
fire.”); MSHA v. Alabama By-Products, 4 FMSHRC 2128, 2130-2131 (Dec. 1982) (finding a
combination of frozen rollers and belt running out of train cutting into support structures a
violation of § 75.1725).
In the case sub judice, inspector Leverknight testified that he observed the belt rubbing
on the belt structure at 27 crosscut, and proceeded to have the belt shut down. Tr. 34-36, 158159. He felt the stands and testified that they were hot from the rubbing. Tr. 36. Leverknight
observed at 23 to 22 crosscut the belt out of alignment rubbing along the stands. Tr. 37-38. The
belt was cut into seven stands in a row at 3 crosscut. Tr. 37-38. The belt was cut 2.5 inches into
the 3-inch structure, and Leverknight determined that since the belt was in the cut, it had been
running in the cut when he had the belt shut down. Tr. 38. In addition there was float coal dust
and fines present. Tr. 101. Leverknight determined that the belt cutting into and rubbing the
structure had caused frictional heat and represented a fire hazard. Tr. 40.
Leverknight testified that he observed five areas of significant coal accumulations under
the belt. Tr. 44. These accumulations consisted of loose coal, fine coal, and coal dust. Tr. 46.
The accumulations were in contact with bottom rollers, and at some of the locations, Leverknight
found damaged belt rollers. Tr. 60-61. These accumulations were cited in Order No. 7082871,
and are discussed infra.
Respondent’s witnesses offered no evidence that contradicted Leverknight’s testimony.
King testified that the belt may have run out of train as a result of the come-alongs detaching. Tr.
103. Simkovic testified that prior to putting the come-alongs at the stands at 3 crosscut, the belt
had cut into the stands. Tr. 134. However, Leverknight testified that after the belt was shut off, it
was 2.5 inches in the structure, meaning that it was running fully within the cut. Tr. 38.
Therefore, even if Simkovic’s testimony is to be credited, it appears that the belt continued to cut
into the structure up until it was shut off.
Respondent makes much of the fact that Leverknight did not observe belt shavings at
crosscut 22 to 23, and only saw them at crosscut three. Tr. 77. However, Leverknight testified
that he does not consider the absence of belt shavings meaningful, because they can be cleaned
prior to the inspection. Tr. 78. The apparent absence of belt shavings in crosscut 22 to 23 does
not alter the inspector’s conclusion.
I credit Leverknight’s testimony over the testimony of the three examiners and the intern
Strimer. Tr. 117, 145, 147, 169-172. The examiners each denied seeing hazardous conditions

35 FMSHRC Page 3148

along the C-2 belt, however accumulations had to be cleaned and rollers replaced, which
indicates that there were violations present. Based upon the evidence presented at hearing, I find
that the described supra constituted a violation of 30 C.F.R. § 75.1725(a).
Considering The Record In Toto And Applying Applicable Case Law, The Violation Was
Significant And Substantial In Nature.
Inspector Leverknight determined that the violation in Citation No. 7082869 was S&S
due to the combination of frictional heat, accumulations of coal, and bad rollers. Tr. 40, 42-43.
He concluded that these circumstances created a hazard of a belt fire. Tr. 42-43.
S&S is described in section 104(d)(1) of the Act as a violation “of such nature as could
significantly and substantially contribute to the cause and effect of a coal or other mine safety or
health hazard.” 30 U.S.C. § 814(d)(1). 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).
As is well recognized, in order to establish the S&S nature of a 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 will be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan.
1984); accord Buck Creek Coal Co., Inc., 52 F. 3rd. 133, 135 (7th Cir. 1995); Austin Powder Co.,
Inc. v, Sec’y of Labor, 861 F. 2d 99, 103 (5th Cir. 1988) (approving Mathies criteria).
It is the third element of the S&S criteria that is the source of the most controversies. The
element is established only if the Secretary proves “a reasonable likelihood the hazard contributed
to will result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 7 FMSHRC
1125, 1129 (Aug. 1985). An S&S determination must be based on the particular facts
surrounding the violation and must be made in the context of continued normal mining
operations. Texasgulf, Inc., 10 FMSHRC 498, 500 (Apr. 1988) (quoting U.S. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574 (July 1984)). The Commission has provided additional guidance:
“We have emphasized that, in accordance with the language of section 104(d)(1), it is the
contribution of a violation to the cause and effect of a hazard that must be significant and
substantial.” U.S. Steel Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel
Mining Co., Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
Further, “The Secretary need not prove a reasonable likelihood that the violation itself will
cause injury.” and “the absence of an injury-producing event when a cited practice has occurred
does not preclude a determination of S&S” Cumberland Coal Resources, LP, 33 FMSHRC 2357,
2365 (Oct. 2011) (citing Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 128081 (Oct. 2010); Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005); and Blue Bayou Sand &
Gravel, Inc., 18 FMSHRC 853, 857 (June 1996)). The Commission and courts have observed
that the opinion of an experienced MSHA inspector that a violation is S&S is entitled to

35 FMSHRC Page 3149

substantial weight. Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998); Buck
Creek Coal, Inc., v. MSHA, 52 F.3d 133, 135-36 (7th Cir. 1995).
Having found, supra, that the conditions described in Citation No. 7082869 violated 30
C.F.R. § 75.1725(a), which is a mandatory safety standard, the first prong of the Mathies test is
satisfied. The second prong requires a determination of whether the violation contributed to a
discrete safety hazard. In the case sub judice, Emerald Mine was on a five-day spot inspection
for liberating in excess of one million CFM of methane in a 24-hour period. Tr. 31.
Furthermore, Leverknight testified that the belt cutting into and rubbing the structure caused
frictional heat. Tr. 40. These factors, combined with the accumulations and bad rollers present
could reasonably lead to an ignition or fire. Tr. 40, 42-43. See e.g. Big Ridge, Inc. v. MSHA,
2010 WL 361647, *3 (Aug. 26, 2010)(ALJ)(finding that a belt cutting into the structure exposed
miners to an identifiable and secrete safety hazard of a belt fire); see also MSHA v. Texasgulf,
Inc., 10 FMSHRC 498 (April 1988).
The third and fourth prongs of the Mathies test are also met. The Respondent misstates
the S&S analysis repeatedly in its post-hearing brief. In making the argument that a “confluence
of factors” test is appropriate it states the following: “The S&S designation is inappropriate
because ‘the confluence of factors’ for an injury-causing event were not present. The relevant
inquiry in this case is whether a ‘confluence of factors’ was present so that a fire causing serious
injury was reasonably likely based on the particular facts surrounding this violation.” Resp. Post
Hearing Brief, 21 (emphasis added). It repeats some version of this argument throughout the
brief. Id. at 26-27, 52. Respondent’s description of the S&S analysis is incorrect, as it conflates
the second and third element of the test.
The second and third elements of the S&S test are to be considered separately. In the
second element, the question is whether the violation at issue could contribute to a discrete safety
hazard. If the violation is found to contribute to a discrete safety hazard, then the analysis
proceeds to the third step, which is to be considered individually. In the third step, one must
assume that the hazard found in step two will be present, and the sole inquiry is whether the
hazard will reasonably likely lead to an injury. At this step, one no longer considers the
“confluence of factors” found in the individual violation.
The Commission has clarified this test in no uncertain terms. It stated that the third
element of the S&S test “is whether there is a reasonable likelihood that the hazard contributed to
by the violation…will cause injury.” Musser Engineering Inc. and PBS Coals, Inc., 32
FMSHRC 1257, 1281 (Oct. 2010); see also Cumberland Coal Resources LP, 33 FMSHRC 2357,
2365-2369 (Oct. 2011). The Commission emphasized that the Secretary need not “prove a
reasonable likelihood that the violation itself will cause injury…” Id. The Respondent here
makes the selfsame argument that the Respondent in Musser made unsuccessfully, that argues
that “there must be a reasonable likelihood that the violation will cause injury.” 32 FMSHRC at
1280-1281. In so doing, it “conflates ‘violation’ with ‘hazard.’” Id. The Commission answered
the Respondent in Musser succinctly, stating, “However, that is not the test…The Secretary need
not prove a reasonable likelihood that the violation itself will cause injury.” Id. Further, the
Commission reaffirmed the well-settled precedent that the absence of an injury producing event,
where a cited practice occurs, does not preclude an S&S determination. Id. (citing Elk Run Coal

35 FMSHRC Page 3150

Co., 27 FMSHRC 899, 906 (Dec. 2005) and Blue Bayou Sand and Gravel, Inc.,18 FMSHRC
853, 857 (June 1996)). In an 81-page post-hearing brief, with 20 pages devoted to S&S analyses,
there is no excuse for Respondent’s continual misreading of the S&S test.
In the case sub judice the hazard is a fire. Mine fires have long been recognized by the
Commission and Congress as reasonably likely to result in injury. See Black Diamond Coal
Mining, 7 FMSHRC 1117, 1120 (1985)(“We have previously noted Congress' recognition that
ignitions and explosions are major causes of death and injury to miners.”) Oxbow Mining, LLC,
2013 WL 1856627, *22 (April 11, 2013) (ALJ)(“Fires cause many serious injuries, including
burns and smoke inhalation.”); Buck Creek Coal, Inc. v. Federal Mine Safety and Health Admin.,
52 F.3d 133, 135 (7th Cir. 1995)(referring to the conclusion that a fire burning in an underground
coal mine would lead to a serious risk of smoke and gas inhalation to miners present as
“common sense.”) Inspector Leverknight testified that a mine fire could result in injuries
including smoke inhalation and burns. Tr. 51. Additionally, if there was an explosion on a
longwall face, it could propagate an explosion on the belt line. Tr. 51, 73-74. Under these
circumstances, I find that the third prong of the Mathies test has been satisfied.
The fourth prong of the Mathies test requires the Secretary to show that the injuries
expected to result from the hazard will be of a reasonably serious nature. As noted supra, a belt
fire would expose miners along the C-2 belt to smoke inhalation and burns. Tr. 51. The
Commission has repeatedly held that such injuries are serious in nature. See Oxbow Mining,
2013 WL 1856627, *22 (“Fires cause many serious injuries, including burns and
smoke inhalation.”); Consolidation Coal Co., 15 FMSHRC 855, 870 (May 7,
1993)(ALJ)(“Smoke inhalation and burns can severely injure miners.”) Considering all the
relevant evidence, I find that the Secretary met its burden in establishing that Citation No.
7082869 was S&S.
Respondent’s Conduct Was Reasonably Designated As Being “High” In Nature.
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 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.” Id. 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. Id. Low negligence exists when “[t]he operator knew or should have
known of the violative condition or practice, but there are considerable mitigating
circumstances.” Id. Moderate negligence is when “[t]he operator knew or should have known of
the violative condition or practice, but there are mitigating circumstances.” Id. High negligence
exists when “[t]he operator knew or should have known of the violative condition or practice,
and there are no mitigating circumstances.” Id. See also Brody Mining, LLC, 2011 WL 2745785
(2011)(ALJ). Finally, the operator is guilty of reckless disregard where it “displayed conduct
which exhibits the absence of the slightest degree of care.” 30 C.F.R. § 100.3(d).
In the case sub judice, Inspector Leverknight determined that the Respondent’s
negligence was high for allowing the belt to run in an unsafe condition. Tr. 40-41; GX-2.

35 FMSHRC Page 3151

Leverknight testified that in his experience a belt cannot cut 2.5 inches into steel in a short period
of time, which indicated that the condition had existed for an extended period. Tr. 41, 63.
Therefore, the conditions likely preexisted Leverknight’s inspection on October 18, 2010.
Furthermore, many of the conditions were obvious. The conditions at 3 crosscut were hanging at
eye level when one is walking, and the conditions at three and 27 crosscut were on the side of the
belt where miners travel. Tr. 41.
Respondent argues that the negligence should have been lower because mitigating
circumstances were present. Resp. Post-Hearing Brief, 41. It argues that the cuts in the structure
pre-existed the day of the inspection, the company was using come-alongs to correct the belt
condition, and there were no belt shavings present. These arguments repeat their previous
contentions against the validity of the citation, and do not present mitigating circumstances.
When the belt was shut down, it was completely within the cut in the structure, indicating that it
continued to cut and rub the structure. Tr. 38. The fact that the belt began cutting into the
structure well before Leverknight’s inspection does not mitigate the level of negligence; rather, it
raises it. Though the company did install come-alongs, the fact that the belt continued to need
retraining indicated that they were not working. I find no mitigating circumstances and affirm
the negligence as high.
The Secretary has Carried His Burden of Proof by a Preponderance of the Evidence that the
Condition Described in Order No. 7082871 Violated 30 C.F.R. § 75.400
104(d)(2) Order No. 7082871 was issued by Inspector Leverknight on October 18, 2010
at 10:15 a.m. for a violation of 30 C.F.R. § 75.400. It states:
Accumulations of damp to dry float coal dust, coal fines, and loose coal, black in color
were allowed to accumulate along the C-2 Longwall belt. The accumulations were under
the belt rollers from 9 ½ crosscut to the belt tailpiece at 32 crosscut. There were bottom
return rollers in contact with the accumulations at the following locations, 25 to 23, 22 to
21, 16 to 15, 14 to 13, and 12 crosscuts. There were a total of 8 return rollers in contact
and turning in the accumulations. Between 16 and 15 crosscuts there is a bottom return
roller missing allowing the belt to hang down and come in contact with the accumulations
making a flat spot where the belt is running in contact with the coal accumulations for the
entire width of the belt. The rest of the affected area has accumulations built up under the
rollers which is close to being in contact with the bottom return rollers for the entire
distance and width of the belt. There is also accumulations of coal fines and coal dust on
the ribs, roof, belt structure, and water lines for the entire distance.
The inspector assessed gravity as “Reasonably Likely,” “Lost Workdays or Restricted
Duty,” and “S&S.” He assessed the negligence as “High,” resulting from an unwarrantable
failure to comply with a mandatory safety regulation, and affected 1 person. GX-3, 1-2. The
inspector terminated the order on October 19, 2010 at 1:25 a.m. after the “accumulations were
cleaned up and rock dusted in the entire affected area.” GX-3, 3.
The Secretary contends that the five areas where coal accumulations came into contact
with bottom rollers, one area where the belt was running in coal accumulations for the entire

35 FMSHRC Page 3152

width of the belt, and the presence of coal dust coating the ribs, roof, belt structure, and water
lines along the length of the belt constituted violations of 30 C.F.R. § 75.400. The Secretary
argues that the fact that it took 14 miners at least 12 hours to clean the accumulations show that
they were extensive. The Secretary further argues that the violations were S&S because (1) it
violated § 75.400, (2) that accumulations of combustible materials create significant explosion
and propagation hazards, (3) resulted in the discrete safety hazard of a mine fire or propagation
of an explosion, an occurrence which (4) presented a reasonable likelihood that smoke inhalation
and burns will result. The Secretary argues that the violation resulted from the Respondent’s
high negligence and was an unwarrantable failure to comply with the regulation because the
accumulations were obvious, extensive, existed for a significant length of time, and posed a high
degree of danger.
The Respondent contends that the material cited was not a citable accumulation of coal,
and therefore did not constitute a violation of 30 C.F.R. § 75.400. It argues that a review of all
surrounding circumstances, factors, and considerations does not establish the existence of an
accumulation of combustible materials. Rather, the materials were primarily wet, noncombustible rock dust. Any combustible material present was the result of the spillage from the
belt running out of train after the most recent preshift examination of the C-2 longwall belt, but
before the inspection. The Respondent argues that the S&S designation was improper because
there was no “confluence of factors” present such that “a fire causing serious injury was
reasonably likely based on the particular facts surrounding this violation.” Furthermore, it
argues that a belt fire would be unlikely to lead to an injury, and that any injuries resulting from a
fire would not be serious in nature. The Respondent argues that even if a violation is found to
have existed, it did not result from an unwarrantable failure to comply with a mandatory
standard.
Section 75.400 requires that “[c]oal dust, including float coal dust deposited on rockdusted surfaces, loose coal, 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.” Leverknight testified that he first observed accumulations at the 25 to 23 crosscut that
were under the rollers, contacting the rollers, and built up around the rollers. Tr. 44-45. The
accumulations were a combination of loose coal, fine coal, and coal dust, with the coal in contact
with the rollers being the finest. Tr. 45-46. Some of the materials were wet, however he testified
that wet material can become combustible. Tr. 75-76, 190.
Leverknight also observed similar accumulations at 22 to 21 crosscut, which were
contacting two rollers on the tight side of the belt. Tr. 46. He observed accumulations at the 16
to 15 crosscut, under and in contact with the rollers. Tr. 47. He similarly observed
accumulations at the 14 to 13 crosscut and the 12 crosscut. Tr. 47, 48. Along the belt,
Leverknight observed a coating of float coal dust on the rock dust, indicating that the conditions
had existed for an extended period. Tr. 49.
Respondent’s witnesses, including Strimer, Baer, Hoak, and Levo testified that they did
not recall seeing rollers in the coal, however they did not testify that there were no accumulations
present. Tr. 107, 150, 160, 168-169. Furthermore, Strimer testified that he did not look
underneath the belt to see if the rollers were in contact with accumulations. Tr. 160. Each

35 FMSHRC Page 3153

asserted that the accumulations were the result of the belt being out of train and dumping coal on
the mine floor. Tr. 111, 117, 133, 150, 169, 178, 193-194, 290-291. However, Leverknight
testified that the accumulations were under the belt, around the rollers, ground fine, and had
other qualities that indicated that they could not have resulted from recent spillage. Tr. 49, 55.
Respondent argues that the accumulations had a mixture of moisture contents, and that
because some of the accumulations were damp or wet, they posed no danger. However,
Leverknight’s credible testimony revealed that much of the accumulations were dry. Tr. 49-50.
Furthermore, the Commission has held that “dampness in the coal did not render it incombustible
and…wet coal can dry out in a mine fire and ignite.” Utah Power & Light Co., 12 FMSHRC at
969; see also Clinchfied Coal Co., 21 FMSHRC 231, 241 (Feb. 1999)(ALJ)(finding that the belt
rubbing against the belt structure produced friction, which generates heat, and was a reasonably
likely ignition source.) It has also held that a “construction of [Section 75.400] that excludes
loose coal that is wet or allows accumulations of loose coal mixed with non-combustible
materials, defeats Congress’ intent to remove fuel sources from the mine and permits potentially
dangerous conditions to exist.” Black Diamond, 7 FMSHRC at 1121.32
Though Simmons minimized the extent of the accumulations, testifying that the
shoveling required was minimal, he assigned 14 men to shovel the accumulations on the beltline.
Tr. 178, 183-184, 188. I credit Leverknight’s testimony that it took Respondent approximately
12 hours to clean these accumulations, indicating that the accumulations were far more extensive
than Simmons described. Tr. 56-58. See Peabody Coal Co., 14 FMSHRC 1258, 1263
(1992)(extensiveness of condition inferred through significant abatement efforts). Based on all
the evidence presented, I credit Leverknight’s testimony and find that the accumulations
constituted a violation of 30 C.F.R. § 75.400.
Considering The Record In Toto And Applying Applicable Case Law, The Violation Was
Significant And Substantial In Nature.
Inspector Leverknight determined that the violation in Order No. 7082871 was S&S
because all the elements for a mine fire were present. Tr. 52. Having found, supra, that the
conditions described in the Order violated 30 C.F.R. 75.400, which is a mandatory safety
standard, the first prong of the Mathies test is satisfied. The second prong requires a
determination of whether the violation contributed to a discrete safety hazard. The Commission
has long recognized the dangers caused by combustible accumulations. Utah Power & Light Co.,
Mining Div., 12 FMSHRC 965, 970 (1990)(describing Congressional concern over loose coal
and explosion hazards); Consol Pennsylvania Coal Co. 32 FMSHRC 545, 560 (May
2010)(ALJ)(finding burns and smoke inhalation as injuries reasonably likely to occur from fire
or explosion). In the case sub judice, there were accumulations, bad rollers, belt rubbing on the
structure, and belt rubbing on the accumulations. Tr. 52. These conditions contributed to the
32

The Commission recently reaffirmed that accumulations may still be designated as
S&S despite being wet at the time of inspection. Consolidation Coal Co., 2013 WL 4648491, *3
(Aug. 2013). Likewise, the Commission “categorically” rejected the mine operator’s argument
that safety measures, including rock dusting, carbon monoxide monitors, and fire fighting
equipment reduced the degree of danger and rendered the violation non-S&S. Id. at *4.

35 FMSHRC Page 3154

discrete safety hazard of a mine fire or propagation of an explosion resulting from damaged
rollers rubbing the accumulations. Tr. 51. Therefore the second Mathies prong has been
satisfied.
The third and fourth prongs of the Mathies test are also met, as there was a reasonable
likelihood that the hazard contributed to—a mine fire or explosion—would result in injuries of a
reasonably serious nature. As discussed, supra, the Commission has long recognized that mine
fires are reasonably like to result in an injury. Such injuries could include smoke inhalation and
burns, which are of a reasonably serious nature. Tr. 51. Considering all the relevant evidence, I
find that the Secretary met its burden in establishing that Order No. 7082871 was S&S.
Respondent’s Conduct Was Reasonably Designated As Being “High” In Nature and an
Unwarrantable Failure to Comply with the Regulation.
Inspector Leverknight determined that Respondent’s negligence was high and that
Respondent’s violation of 30 C.F.R. § 75.400 resulting from an unwarrantable failure (“UWF”)
to comply with a mandatory safety regulation. The UWF terminology is taken from section
104(d)(1) of the Act, 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.” 30 U.S.C. § 814(d)(1).
The term “unwarrantable failure” is defined as aggravated conduct constituting more than
ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable
failure is characterized by such conduct as “reckless disregard,” “intentional misconduct,”
“indifference,” or the “serious lack of reasonable care.” Id. at 2004; Rochester & Pittsburgh Coal
Co., 13 FMSHRC 189,193-94 (Feb. 1991). Aggravating factors include the length of time that
the violation has existed, the extent of the violative condition, whether the operator has been
placed on notice that greater efforts were necessary for compliance, the operator’s efforts in
abating the violative condition, whether the violation was obvious or posed a high degree of
danger and the operator’s knowledge of the existence of the violation. See Consolidation Coal
Co., 22 FMSHRC 340, 353 (Mar. 2000); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb.
1994); Windsor Coal Co., 21 FMSHRC 997, 1000 (Sept. 1999); Consolidation Coal Co., 23
FMSHRC 588, 593 (June 2001). All of the relevant facts and circumstances of each case must be
examined to determine if an actor’s conduct is aggravated, or whether mitigating circumstances
exist. Consol, 22 FMSHRC at 353.
In the case sub judice, the cited coal accumulations were extensive, obvious, existed for a
significant length of time, and posed a high degree of danger. Leverknight observed extensive
accumulations at numerous crosscuts, which required 14 miners over 12 hours to clean. Tr. 4449, 56-58, 178, 183-184, 188. There was float coal dust covering the ribs, roof, belt structure,
and water lines for the entire length of the C-2 longwall belt. Tr. 48. In five of the areas, the
accumulations of coal, fines, and dust came into contact with the bottom belt rollers, which were
approximately eight to ten inches above the mine floor. Tr. 46-48.
The nature of the accumulations indicated that they had existed for a significant length of
time. Leverknight testified that the coal fines and float coal dust that were built up under the

35 FMSHRC Page 3155

rollers are created over time from the rollers chewing up the coal. Tr. 55. Additionally, they
were under the belt, indicating that the accumulations were not the result of recent spillage. Tr.
49, 55. These accumulations posed a high degree of danger to miners, as they could lead to a
mine fire or explosion. Tr. 51. Having found no mitigating circumstances, I find that the
conditions were the result of Respondent’s high negligence and unwarrantable failure.33
The Secretary has Carried His Burden of Proof by a Preponderance of the Evidence that the
Condition Described in Order No. 7082872 Violated 30 C.F.R. § 75.360(b)(10).
Inspector Leverknight issued Order No. 7082872 on October 18, 2010 at 10:30 a.m. for
an inadequate preshift examination of the longwall belt in violation of
30 C.F.R. § 75.360(b)(10)34. Tr. 63; GX-4. It states:
After reviewing records, it was determined that an adequate Preshift Examination on the
C-2 Longwall section belt MMU-032 was performed on 10/18/2010 on the 12 to 8 shift
for the oncoming 8 to 4 shift. The examination was conduction between 000 and 0700
and the hazardous conditions found in Citation Nos. 7082869, 7082870, and 7082871
were not found and/or recorded in the Preshift Exam book. The hazardous conditions are
being corrected and this Order will be terminated after the Preshift examiner who
conducted the examination is re-instructed on making a proper examination.
The inspector assessed gravity as “Reasonably Likely,” “Lost Workdays or Restricted
Duty,” and “S&S.” He assessed the negligence as “High,” resulting from an unwarrantable
failure to comply with a mandatory safety regulation, and affected 1 person. GX-4, 1. The
inspector terminated the order on October 19, 2010 at 12:15 a.m. after the “mine examiner was
re-instructed on making a proper preshift examination.” GX-4, 2.
Section 75.360(b)(10) requires in pertinent part that “[t]he person conducting the preshift
examination shall examine for hazardous conditions and violations [at]…[o]ther areas where
work or travel during the oncoming shift is scheduled prior to the beginning of the preshift
examination.” The Commission has recognized preshift examinations as being “of fundamental
importance in assuring a safe working environment underground.” Buck Creek Coal, 17
FMSHRC at 15; see also Jim Walter Resources, Inc., 28 FMSHRC 579, 598 (Aug. 2006).
Chairman Jordan and Commissioner Marks have referred to the preshift inspection requirement
as “the linchpin of Mine Act safety protections.” Manalapan Mining Co., Inc., 18 FMSHRC
1375, 1391 (August 1996) (Jordan and Marks, concurring and dissenting in part). MSHA
requires several layers of examinations, including on-shift, preshift, and weekly examinations, in
33

The Commission has recognized the close relationship between a finding of
unwarrantable failure and a finding of high negligence. San Juan Coal Co., 29 FMSHRC 125,
139 (Mar. 2007) (remanded because a finding of high negligence without a corresponding
finding of unwarrantable failure was “seemingly at odds.”).
34

The Order was first erroneously issued pursuant to 30 C.F.R. § 75.360(b)(2). On
November 10, 2010, the error was corrected, and the Order was changed to indicate a violation
of 30 C.F.R. § 75.360(b)(10). GX-4, 3. This correction was unopposed.

35 FMSHRC Page 3156

order to ensure miner safety. “These examinations are designed to create a multi-layer,
prophylactic approach to the identification and correction of hazardous or unsafe conditions in
the mine.” Coal River Mining, LLC, 34 FMSHRC 1087, 1095 (May 2012) (ALJ). Quoting the
preamble to the final rule, the D.C. Circuit recognized that:
Preshift examinations assess the overall safety conditions in the mine; assure that critical
areas are properly ventilated; assure that the mine is safe to be entered by miners on the
oncoming shift; identify hazards, whether violations or not, for the protection of miners;
and through this identification facilitate correction of hazardous conditions.
National Mining Association v. MSHA, 116 F.3d 520, 540 (D.C. Cir. 1997).
The Commission has clarified that the term “hazardous conditions” in 30 C.F.R. §
75.360(b) does not require that the condition be S&S or reasonably likely to result in injury;
rather, the term “hazard” denotes a measure of danger to safety or health. Enlow Fork Mining
Co., 1997 WL 14346, *7 (1997). “The Commission has approved the definition of “hazard” as “a
possible source of peril, danger, duress, or difficulty,” or “a condition that tends to create or
increase the possibility of loss.” Id.
The Secretary contends that the preshift examinations performed on the C-2 longwall belt
at 5:00 a.m. on October 18, 2010 were inadequate because the examiners failed to record or
correct the hazards described in Citation No. 7082869 (belt rubbing structure) Citation No.
7082870 (damaged rollers), and Order No. 7082871 (accumulations). The Secretary argues that
these conditions preexisted the preshift examination, and yet none of them were recorded. The
Secretary further argues that the violation was S&S because (1) it violated 30 C.F.R. §
75.360(b)(10), (2) that failure to conduct adequate preshift examinations contributed to the safety
hazards of mine fire and explosion, (3) that such hazard is reasonably likely to result in an injury,
and (4) that the injuries suffered, such as burns and smoke inhalation are reasonably serious in
nature. Furthermore, the Secretary argues that the violation resulted from the Respondent’s high
negligence and was an unwarrantable failure to comply with the regulation because the preshift
examiners failed to record or correct obvious and extensive conditions.
The Respondent contends that preshift examinations were conducted in accordance with
the requirements of 30 C.F.R. § 75.360. The Respondent argues that the Secretary has not
proven the predicate violations, and therefore cannot prove that there were inadequate preshift
examinations. Specifically, it argues that there is no evidence that the belt was out of train prior
to the preshift examination, that the accumulations were extensive or combustible, or that the
examiners observed damaged rollers. The Respondent argues that if a violation occurred, it was
not S&S because “it was not reasonably likely that a fire would occur or that such fire would
result in serious injury.” Resp. Post-Hearing Brief, 52. Furthermore, Respondent argues that
negligence was lower than assessed because it routinely noted hazards and conditions after
preshift examinations. Similarly, Respondent contends that the unwarrantable failure
designation was inappropriate because the evidence establishes that the required examinations
were conducted in an adequate fashion, and that any conditions existed for only a short time.

35 FMSHRC Page 3157

In the case sub judice, Inspector Leverknight observed several hazardous conditions for
which he issued citations and orders: the longwall belt rubbing against and cutting into the
structure at various locations; numerous damaged rollers; and extensive and obvious coal
accumulations, some of which had rollers or belts running in them. GX-1-2-3. As discussed,
supra, Citation No. 7082869 was validly issued for the C-2 longwall belt rubbing the belt
structure; Citation No. 7082870 was validly issued for numerous damaged rollers on the C-2
longwall belt; and Order No. 7082871 was validly issued for hazardous accumulations. Each of
these citations and orders was assessed as S&S, and all but one were assessed at high negligence.
As discussed previously, these conditions and hazards existed for an extended period of time that
preceded the previous preshift examination. Despite these obvious and extensive hazards, the
5:00 a.m. preshift examinations of the C-2 longwall belt noted “none” under both the
Dangerous/Hazardous Conditions section and the Violations section. GX-9, 12-13; TR. 66-67.
Therefore, I find that there was not an adequate preshift examination, in violation of
30 C.F.R. § 75.360.
Considering The Record In Toto And Applying Applicable Case Law, The Violation Was
Significant And Substantial In Nature.
Inspector Leverknight determined that the violation in Citation No. 7082872 was S&S.
Having found, supra, that the conditions described in the Citation violated 30 C.F.R.
75.360(b)(10), which is a mandatory safety standard, the first prong of the Mathies test is
satisfied. The second prong requires a determination of whether the violation contributed to a
discrete safety hazard, namely a mine fire or explosion. The third and fourth factors are similarly
discussed, supra, and similarly extend to the inadequate preshift examination.
Respondent’s Conduct Was Reasonably Designated As Being “High” In Nature and an
Unwarrantable Failure to Comply with the Regulation.
Inspector Leverknight evaluated Respondent’s negligence as high and the violation as an
unwarrantable failure to comply with the cited regulation. The evidence demonstrates that
Respondent engaged in aggravated conduct by failing to record obvious hazards which
threatened miners’ safety. Respondent’s examiners failed to record or correct the hazards of the
belt rubbing the belt structure, damaged rollers on the longwall belt, and extensive coal
accumulations, despite the fact that they were obvious and extensive.35 GX-9, 12-13; Tr. 66-67.
The Secretary has Carried His Burden of Proof by a Preponderance of the Evidence that the
Condition Described in Order No. 7073116 Violated 30 C.F.R. § 75.202(a):
Inspector Jack issued Order No. 7073116 on October 21, 2010 at 9:30 a.m. for inadequate
roof support in violations of 30 C.F.R. § 75.202(a). GX-5. It states:
An area of mine roof on the B-left haulage 5 feet outby the B-4 track switch measuring
approximately 12 feet in width and 25 feet in length was not supported to protect miners
35

The details of the obviousness and extensiveness of the violations are discussed supra
and will not be repeated here.

35 FMSHRC Page 3158

from hazards related to falls of the mine roof. 3 bolts had the heads of the bolts torn off
having no support to the bolt plate or strap. 3 bolts were dislodged from the mine roof
having no bearing surface with the mine roof. 8 bolts were damaged from being hit by
mining equipment or mining supplies being hauled in and out of the mine causing bolt
heads to be bent and smashed hurting the integrity of the roof bolt. This condition was
most obvious to any miner traveling the area because some of the straps that have been
torn in half were hanging down from the mine roof posing as another hazard to miners
travling in and out of the coal mine. The top in this area consisted of coal and rock which
was potted out in areas with some loose material hanging. This condition constitutes
more than ordinary negligence, and exposes miners to hazards from roof falls. This
violation is an unwarrantable failure to comply with a mandatory standard.
Standard 75.202(a) was cited 27 times in two years at mine 3605466 (27 to the operator,
0 to a contractor).
The inspector assessed gravity as “Reasonably Likely,” “Fatal,” and “S&S.” He assessed
the negligence as “High,” resulting from an unwarrantable failure to comply with a mandatory
safety regulation, and affected 1 person. GX-5, 1-2. The inspector terminated the order on
October 21, 2010 at 10:30 p.m. after the “area of unsupported roof was bolted.” GX-5, 3.
Section 75.202(a) provides that “[t]he roof, face and ribs of areas where persons work or
travel shall be supported or otherwise controlled to protect persons from hazards related to falls
of the roof, face or ribs and coal or rock bursts.” The comments accompanying the final rule
recognize the high death toll caused by inadequate roof support and the need for mandatory roof
controls. 53 FR 2354-01, 2354 (Jan. 27, 1988); see also United Mine Workers of America, Int’l.
Union v. Dole, 870 F.2d 662, 664 (D.C. Cir.1989) (recognizing that roof falls are among the
most serious hazards to miners).
Judge Manning has described Section 75.202(a) as having three requirements: (1) the
cited area must be an area where persons work or travel; (2) the area must be supported or
otherwise controlled, and (3) such support must be adequate to protect persons from falls or
bursts of rib. Oxbow Mining, LLC, 2013 WL 1856627, *13 (April 11, 2013)(ALJ). The
Secretary's roof-control standard in 30 C.F.R. § 75.202(a) is broadly worded. Consequently, the
Commission has held that “the adequacy of particular roof support or other control must be
measured against the test of whether the support or control is what a reasonably prudent person,
familiar with the mining industry and protective purpose of the standard, would have provided in
order to meet the protection intended by the standard.” Canon Coal Co., 9 FMSHRC 667, 668
(Apr. 1987).
The Secretary contends that the damaged roof bolts and straps constituted inadequate roof
support in violation of 30 C.F.R. § 75.202(a). The Secretary argues that the violation was S&S
because (1) it violated §75.202(a), (2) the violation contributed to the discrete safety hazard of a
roof fall, (3) there was a reasonable likelihood that a roof fall will cause injury, and (4) such
injury included miners being struck by falling rock leading to possible death. Furthermore, the
Secretary argues that the violation resulted from the Respondent’s high negligence and was an
unwarrantable failure to comply with the regulation because the inadequately supported roof was

35 FMSHRC Page 3159

obvious, extensive, posed a high degree of danger to miners, and existed for a substantial period
of time.
The Respondent contends that there was no violation of 30 C.F.R. § 75.202(a) because
the standard is “performance-based” and depends on the “reasonableness of the operator’s efforts
to control the roof, given the particular conditions it knew or should have known existed.” Resp.
Post-Hearing Brief, 57-58. Respondent argues that the Secretary failed to establish that the roof
was unsupported and that Emerald knew or should have known of the cited condition. The
Respondent argues that if a violation occurred, it was not S&S because it was unlikely that two
events—material falling from the roof and someone standing beneath it— would occur
simultaneously. Furthermore, the Respondent argues that the condition was not the result of high
negligence or unwarrantable failure.
Roof straps in a mine are used to help support the roof by holding up localized loose roof
materials. Tr. 229. I credit Inspector Jack’s testimony where he described his observations and
why the noted conditions violated the regulation. Jack observed roof straps hanging from the
mine roof, damaged roof support, missing roof support, and loose hanging materials while he
was traveling up the B-haulage in areas where miners work and travel. Tr. 225. The roof had
loose material hanging, with potted out coal and rock showing. Tr. 232. There were piles of roof
coal and rock that had falled lying on the mine floor. Tr. 232. In total, Jack observed seven rows
of damaged roof support. Tr. 232. In the second row, Jack observed a mine channel roof strap
that was torn in two pieces and had a twisted bolt plate. Tr. 229. In the third row, he observed a
bolt that had the head sheared off of it and was damaged severely, which affects the bolt’s
integrity. Tr. 229, 230-231. Furthermore, there were bent and smashed bolts that were put in
supplementally, as well as several twisted and bent straps. Tr. 229. In the fourth row, Jack
observed a channel that was ripped two times, with the straps pointing aimlessly, as well as
damaged bolts and twisted plates. Tr. 229-230. In the fifth row, he observed a mine channel
severely battered and smashed, as well as some twisted plates. Tr. 231. In the sixth row, he
observed a roof channel that was severely damaged and torn in pieces, as well as bolt heads
smashed and missing and twisted plates. Tr. 231. In the seventh row, he observed one damaged
bolt head and one bolt head missing. Tr. 231-232.
The bolt heads for the bolts used in this mine are necessary to form the beam properly,
because they functions as bearing surfaces that hold all the bearing weight for the bolts. Tr. 231.
Therefore, the bolts with damaged or missing bolt heads had compromised the integrity of the
bolts, and were not adequately supporting the mine roof. Tr. 230, 235.
Inspector Jack observed flaking rock dust on the damaged roof bolts. Tr. 234. Because
the area was only rock dusted several times per year, this indicated that the conditions were old.
However, none of these conditions were reported in the examination book, which Jack reviewed
prior to entering the mine. Tr. 223-224. The condition ultimately took over 12 hours to correct
by bringing in a track miner bolter and adding more than 40 additional roof bolts. Tr. 253.
Applying the reasonably prudent person test to the facts, I find that Inspector Jack correctly
concluded that the roof in the cited area was not adequately supported.

35 FMSHRC Page 3160

The witnesses presented by Respondent were not entirely credible. Strimer, who
accompanied Jack as an intern at the time of the inspection, testified that he disagreed with
Jack’s assessment of the roof. Tr. 298-300. However the notes he recorded at the time of the
inspection discuss the same conditions that Jack observed, with no mention of disagreement.
RX-17; Tr. 302-303. Furthermore, he offered no credible testimony as to why he did not mark
any possible disagreement in his notes. Tr. 302-303. Similarly, Schifko was not present when
the order was issued. Tr. 246. After Schifko viewed the conditions, he took issue only with the
unwarrantable failure designation. Tr. 246.
Considering The Record In Toto And Applying Applicable Case Law, The Violation Was
Significant And Substantial In Nature.
Inspector Jack determined that the violation in Order No. 7073116 was S&S because the
top was inadequately supported, there was material hanging, and it was a hazard to a miner
traveling through the area. Tr. 246-247. Having found, supra, that the conditions described in
the Order violated 30 C.F.R. § 75.202(a), which is a mandatory safety standard, the first prong of
the Mathies test is satisfied. The second prong requires a determination of whether the violation
contributed to a discrete safety hazard. The Emerald Mine had experienced previous roof falls,
making a roof fall an acute possibility. Tr. 247. There was a clear danger to miners traveling in
the area of rock or coal falling from the roof as a result of the damaged roof supports.
The third and fourth prongs of the Mathies test are also met, as there was a reasonable
likelihood that the hazard contributed to—a roof fall—would result in injuries of a reasonably
serious nature. The Commission has repeatedly stated that a roof fall is reasonably likely to
result in an injury. See Consolidation Coal Co., 6 FMSHRC 34 (Jan. 1984)(recognizing the
likelihood of injury from miners being exposed to a roof fall hazard). If an accident were to
happen as a result of the hazard cited, it would be fatal because falling materials from the mine
roof can kill a miner. Tr. 247. Considering all the relevant evidence, I find that the Secretary met
its burden in establishing that Order No. 7073116 was S&S.
Respondent’s Conduct Was Reasonably Designated As Being “High” In Nature and an
Unwarrantable Failure to Comply with the Regulation.
Inspector Jack evaluated the Respondent’s negligence as high and determined that the
violation was an unwarrantable failure to comply with a mandatory safety regulation. I affirm
both determinations. The inadequately supported roof was obvious, extensive, posed a high
degree of danger to miners, and existed for a substantial period of time. Respondent was on
notice that greater efforts were needed to prevent such violations from occurring, and multiple
supervisors and examiners passed through the cited area and failed to correct the hazard.
Inspector Jack cited seven consecutive rows of inadequate roof supports, indicating that
the hazards in the cited area were extensive. Tr. 232; GX-5. The extent of the condition is also
illustrated in the efforts needed to terminate the Order, which in this case required more than 40
roof bolts. Tr. 253. Rock dust was present, which indicated that the condition had existed for an
extended period of time. Tr. 234-238. Jack also testified that he made his observation of the
inadequate roof supports while simply walking down the haulage, indicating that the hazards

35 FMSHRC Page 3161

were obvious to anyone walking in the area. Tr. 239. Further, he testified and presented
photographs of a roof strap hanging over the haulage track, which should have been obvious to
any individual traveling in the area. Tr. 239; GX-15, 28. Numerous individuals, including mine
management traveled in the area after the damage occurred. Tr. 252; GX-27.
Mine management knew that the area posed a problem, because supplemental bolting had
been used to previously remedy the matter. Tr. 254, 323, 347. Further, the existence of a roof
fall in the same entry provided Emerald additional notice that the haulage roof needed special
attention for deteriorating roof conditions. Tr. 247. Emerald was also cited 27 times in the
previous two years for failing to have adequately supported roof, which should have placed
Respondent on notice that greater efforts were required to comply with the regulation. Tr. 279280. I find no mitigating factors that would reduce the level of negligence, and affirm the Order
as written.
The Secretary has Carried His Burden of Proof by a Preponderance of the Evidence that the
Condition Described in Order No. 7073117 Violated 30 C.F.R. § 75.360(b):
Inspector Jack issued Order No. 7073117 on October 21, 2010 at 9:30 a.m. for an
inadequate preshift examination in violation of 30 C.F.R. § 75.360(b). GX-6. The Order states:
The preshift examination conducted on October 21, 2010 for the 08:01 A.M. shift on the
B-mains left haulage was not adequate. The hazards observed and depicted in Order #
7073116 were not recorded in the preshift exam book located on the surface. This
exposes miners entering this area on the 08:01 A.M. shift to unknown hazards, which
constitutes more than ordinary negligence. This violation is an unwarrantable failure of
the operator to comply with a mandatory standard. This Order will not be terminated
until management reviews all the requirements of 30 C.F.R. § 75.360 with all certified
persons at this mine.
The inspector assessed gravity as “Reasonably Likely,” “Fatal,” and “S&S.” He assessed
the negligence as “High,” resulting from an unwarrantable failure to comply with a mandatory
safety regulation, and affected 1 person. GX-6, 1. The inspector terminated the order on October
28, 2010 at 10:44 a.m. after “mine management reviewed 75.360 with all certified people at this
mine.” GX-6, 2. For the reasons that follow, I affirm the Order as written.
Section 75.360(b)(1) requires in pertinent part that “[t]he person conducting the preshift
examination shall examine for hazardous conditions …[at] [r]oadways, travelways and track
haulageways where persons are scheduled, prior to the beginning of the preshift examination, to
work or travel during the oncoming shift.” As described supra, the Commission has recognized
that this regulation is “of fundamental importance in assuring a safe working environment
underground.” Buck Creek Coal Co., Inc., 17 FMSHRC 8, 15 (Jan. 1995).
In the case sub judice, much of damage to the roof support was at least a week old,
meaning that some pre-existed the inspection. Tr. 232, 234, 248, 347. During the time that Jack
conducted his inspection, at least five miners traveled the B-main haulage, including a mine
examiner, motormen, a longwall coordinator and his crew, a fire boss pumper, and one other

35 FMSHRC Page 3162

foreman. Tr. 248; GX-27. Examiner Thearle traveled the same route as Jack, and failed to record
or correct the hazards posed by the inadequately supported roof. Tr. 244, 256, GX-5). In spite of
the obvious and extensive damage to the roof and roof supports, there were no violations,
dangers, or hazardous conditions observed or reported in the preshift examination report for the
morning of October 21, 2010. Tr. 256; GX-16, 9. Based on the extensive and obvious hazards
and the lack of any record in the preshift book, I find that the Respondent violated Section
75.360(b)(1).
Considering The Record In Toto And Applying Applicable Case Law, The Violation Was
Significant And Substantial In Nature.
Inspector Jack determined that the violation in Order No. 7073117 was S&S because the
failure to record hazards contributed to the discrete safety hazard of roof falls. Having found,
supra, that the conditions described in the Order violated 30 C.F.R. § 75.360(b), which is a
mandatory safety standard, the first prong of the Mathies test is satisfied. The second prong
requires a determination of whether the violation contributed to a discrete safety hazard. The
inadequate preshift examinations contributed to the hazards described in Order No. 7073116,
thereby satisfying the second element. The third and fourth prongs of the Mathies test are also
met, as there was a reasonable likelihood that the hazard contributed to—a roof fall—would
result in injuries of a reasonably serious nature. Considering all the relevant evidence, I find that
the Secretary met its burden in establishing that Order No. 7073117 was S&S.
Respondent’s Conduct Was Reasonably Designated As Being “High” In Nature and an
Unwarrantable Failure to Comply with the Regulation.
Inspector Jack evaluated the Respondent’s negligence as high and determined that the
violation was an unwarrantable failure to comply with a mandatory safety regulation. I affirm
both determinations. Respondent’s failure to record the hazards present during the preshift
examination constituted high negligence and an unwarrantable failure to comply with the
regulation. As discussed supra, the hazards were obvious and extensive, and none of the
examiners or miners traveling the haulage recorded or corrected them. Tr. 252; GX-27. For the
same reasons that the underlying Order were an unwarrantable failure, the inadequate preshift
was an unwarrantable failure.
Penalty Assessed:
The principles governing the authority of Commission administrative law judges to
assess civil penalties de novo for violations of the Act are well-established. Section 110(i) of the
Act delegates to the Commission and its judges the 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), 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 Commission
[ALJ] shall consider the six statutory penalty criteria:

35 FMSHRC Page 3163

[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 violation, and [6] the demonstrated good faith of
the person charged in attempting to achieve rapid compliance after notification of
a violation.
30 U.S.C. § 820(i). Furthermore, the Commission has held that the judge should
consider the deterrent purposes of the Act. See Jim Walter Resources, Inc., 28 FMSHRC
579, 606 (Aug. 2006).
The Secretary proposed a penalty of $4,500.00 for Citation No. 7082869, $10,700.00
for Order No. 7082871, $9,100.00 for Order No. 7082872, $32,800.00 for Order No. 7073116
and $30,200.00 for Order No. 7073117. Applying these criteria, I affirm the penalties
proposed by the Secretary.
Respondent had 443 assessed violations during the 24 month period preceding the
issuance of the citation and orders in this case. GX-25. These included 33 for hazardous
accumulations prohibited under Section 75.400 and 27 for inadequate mine roof supports. Tr.
279; GX-25. Emerald Mine No. 1 is a large mine, having produced 4,901,640 tons of coal in
2010. Stip. 3. The Respondent exhibited high negligence and unwarrantable failure in the
citation and orders above. The conditions were obvious, extensive, and existed for an extended
period of time. Though Emerald demonstrated good faith in abating the violation, the weight of
the other factors weighs in favor of the penalties proposed by the Secretary.
ORDER
Citation No. 7082869, Order No. 7082871, Order No. 7082872, Order No. 7073116 and
Order No. 7073117 are AFFIRMED.
Respondent is ORDERED to pay civil penalties in the total amount of $87,300.00 within
30 days of the date of this decision.36
/s/ John Kent Lewis
John Kent Lewis
Administrative Law Judge

36

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

35 FMSHRC Page 3164

Distribution (Certified Mail):
Jessica R. Brown, Esq., Office of the Solicitor, U.S. Department of Labor, Suite 630 East, The
Curtis Center, 170 S. Independence Mall West, Philadelphia, PA 19106-3306
Patrick W. Dennison, Esq. & R. Henry Moore, Esq., Jackson Kelly, Three Gateway Center, Suite
1340, 401 Liberty Ave., Pittsburgh, PA 15222
/mzm

35 FMSHRC Page 3165

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19th STREET, SUITE 443
DENVER, CO 80202-2536
303-844-3577/FAX 303-844-5268

September 23, 2013
AGAPITO ASSOCIATES, INC.,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
AGAPITO ASSOCIATES, INC.,
Respondent

:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:

CONTEST PROCEEDING
Docket No. WEST 2008-1451-R
Citation No. 7697010; 07/24/2008

Crandall Canyon Mine
Mine ID No. 42-01715 CL3
CIVIL PENALTY PROCEEDING
Docket No. WEST 2008-1447
A.C. No. 42-01715-159799 CL3
Crandall Canyon Mine

DECISION APPROVING SETTLEMENT
Before:

Judge Manning

These proceedings are before me upon a notice of contest and a petition for assessment of
civil penalty filed by the Secretary of Labor, acting through the Mine Safety and Health
Administration (“MSHA”), against Agapito Associates, Inc., pursuant to sections 105 and 110 of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 et seq. (the “Mine
Act”). On September 18, 2013, the Secretary filed an unopposed Motion to Approve Settlement
and Order Payment.
These cases arose out of the mine collapse at the Crandall Canyon underground coal mine
in Emery County, Utah, in August 2007. The collapse led to the loss of the lives of six miners
who were working in the mine and the subsequent loss of the lives of three men working to
rescue the trapped miners. Several other individuals also sustained serious injuries. The mine
was operated by Genwal Resources, Inc. Following the accident, Genwal closed Crandall
Canyon Mine. The Secretary and Genwal settled the cases that were brought against Genwal for
violations related to the accident and, by order dated October 4, 2012, I approved that settlement.
The Secretary also issued Citation No. 7697010 to Agapito under section 104(d)(1) of the Mine
Act alleging a violation of 30 C.F.R. § 75.203(a), which is the subject of these proceedings.
Agapito is a geological engineering and consulting company that provided services to Genwal.

35 FMSHRC Page 3166

The cases were set for hearing before me and the parties conducted extensive discovery.
Expert witnesses were designated and were set to be deposed. The parties asked that a
settlement judge be appointed to see if they could settle the cases to avoid a lengthy trial. Judge
Margaret A. Miller met with the parties and was successful in facilitating a settlement of the
cases.
Throughout these proceedings, Agapito maintained that, although it made
recommendations with respect to roof control at the mine, the mine’s operator chose not to
follow its recommendations. Agapito contended that it had no control over the mining method or
final mining dimensions used by the operator. Agapito further contended that it used sound
engineering principles to develop models that it provided to the mine’s operator. The Secretary,
on the other hand, maintained that Agapito’s modeling served as the basis for the mine’s roof
control plan and its modeling failed to protect miners from the hazards of bursts.
In order to amicably resolve the issues in these cases, the parties propose the following
settlement terms:
1. Modify Agapito’s negligence from “Reckless Disregard” to “High.”
2. Remove the flagrant designation under section 110(b)(2) of the Mine Act.
3. Reduce the proposed penalty from $220,000.00 to $100,000.00 based upon the
reduction in Agapito’s negligence.
I have considered the representations and documentation submitted and I conclude that
the proposed settlement is appropriate under the criteria set forth in Section 110(i) of the Mine
Act. Accordingly, the Motion to Approve Settlement is GRANTED, the citation is MODIFIED
to reduce the level of negligence to “High,” the Secretary’s flagrant designation is REMOVED,
and Agapito Associates, Inc., is ORDERED TO PAY the Secretary of Labor the sum of
$100,000.00 within 40 days of the date of this Order.1
/s/ Richard W. Manning
Richard W. Manning
Administrative Law Judge
Distribution:
Timothy S. Williams, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway,
Suite 1600, Denver, Colorado 80202
Derek Baxter, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22nd
Floor West, Arlington, VA 22209-3939
Mark M. Savit, Esq., Jackson Lewis, 950 17th Street, Suite 2600, Denver, CO 80202
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.
1

35 FMSHRC Page 3167

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004
Telephone No.: (202) 434-9958 / Fax No.: (202) 434-9949

September 24, 2013
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
BIG RIDGE, INC.,
Respondent

:
:
:
:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDINGS
Docket No.: LAKE 2008-608
A.C. No.: 11-03054-158242-01
Docket No.: LAKE 2009-82
A.C. No.: 11-03054-166956-03
Docket No.: LAKE 2009-378A
A.C. No.: 11-03054-177990-03
Mine: Willow Lake Portal

DECISION AND ORDER
Appearances:

Tyler P. McLeod, Esq., and Beau Ellis, Esq., Office of the Solicitor, U.S.
Department of Labor, Denver, Colorado, for Petitioner
R. Henry Moore, Esq., Pittsburgh, Pennsylvania, for Respondent

Before:

Judge McCarthy
I. Statement of the Case

These cases are before me upon three Petitions for Assessment of Civil Penalties under
section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). The
cases allege 101 violations of mandatory health and safety standards, but prior to hearing, the
parties were able to settle all but three citations and one order issued to Respondent. The
remaining citations, Citation Nos. 6679907, 6683969, and 6667482, are for alleged violations of
30 C.F.R. § 75.400, and remaining Order No. 6668437 is for an alleged violation of 30 C.F.R. §
75.364(a)(1). All four alleged violations were designated as significant and substantial (S&S).
Citation Nos. 6679907 and 6683969 were designated as high negligence, and Citation No.
6667482 and Order No. 6668437 were designated as unwarrantable failures.
Respondent denies any violation in Citation No. 6679907. Respondent also denies the
unwarrantable failure designations for Citation No. 6667482 and Order No. 6668437. In
addition, Respondent denies the gravity and negligence findings, the S&S designations, and the
appropriateness of the proposed civil penalties for all four violations.

35 FMSHRC Page 3168

A hearing was held on August 2-3, 2011 in Henderson, Kentucky before former
Commission Administrative Law Judge Gary Melick. The parties introduced testimony and
documentary evidence, and witnesses were sequestered.
Subsequently, Judge Melick retired from the Commission. A notice was then sent out to
the parties that the case was re-assigned to the undersigned. The parties did not contest the reassignment.
For the reasons set forth in the decision below, I modify Citation Nos. 6679907 and
6667482 to reduce Respondent’s negligence from “high” to “moderate.” I further modify Order
No. 668437 to reduce the likelihood of injury or illness from “reasonably likely” to “unlikely,” to
delete the significant and substantial designation, and to increase Respondent’s negligence from
“high” to “reckless disregard.” Furthermore, I modify Citation No. 6667482 to change the type
of action from a section 104(d)(1) citation to a section 104(a) citation, thus removing the
unwarrantable failure designation. Based on said modifications and the failure of the Secretary
to provide evidence or testimony supporting the special assessments of Citation No. 6667482 and
Order No. 668437, I assess a total penalty of $67,378.00 for the four violations.
On the entire record,1 and after considering the post-hearing briefs, I make the following:
II. Stipulated Facts
The parties stipulated to the following facts.
1. These dockets involve an underground bituminous coal mine known as the Willow
Lake Portal Mine, which is owned and operated by Respondent, and located in Saline County,
Illinois.
2. These dockets involve 101 charging documents, including 94 104(a) Citations, one
104(d)(1) Citation, one 104(d)(1) Order, and five 104(d)(2) Orders. Two 104(a) Citations, one
104(d)(1) Citation, and one 104(d)(1) Order remain in contest to be decided at hearing. The
remaining Citations and Orders have been resolved, including all Citations in Docket LAKE
2008-676.
3. Respondent is an “operator” as defined in § 3(d) of the Federal Mine Safety and
Health Act of 1977, as amended, 30 U.S.C. § 803(d), at the coal mine at which the Citations and
Orders at issue in this proceeding were issued.

1

Since this case was re-assigned from Judge Melick after hearing, the scope of my
credibility determinations are limited to the record before me. For obvious reasons, I do not rely
on demeanor. In resolving conflicts in testimony, I have taken into consideration the interests of
the witnesses in this matter, the inherent probability of their testimony in light of other events,
corroboration or lack of corroboration for testimony given, and consistency or lack thereof
within the testimony of witnesses and between the testimony of witnesses.

35 FMSHRC Page 3169

4. Respondent’s operations affect interstate commerce.
5. Operations of Respondent at the coal mine at which the Citations and Orders were
issued in this proceeding are subject to the jurisdiction of the Mine Act.
6. This proceeding is subject to the jurisdiction of the Federal Mine Safety and Health
Review Commission and its designated Administrative Law Judges pursuant to Sections 105 and
113 of the Mine Act.
7. Respondent is a large operator.
8. Respondent demonstrated good faith in abating the cited conditions.
9. The certified copy of the MSHA Assessed Violations History reflects the history of
the mine for the twenty-four months prior to the date of the
Citations/Orders and may be admitted into evidence without objection by
Respondent.
10. The parties stipulate to the authenticity of those exhibits produced to one another
prior to hearing, but not to the relevance or truth of the matters asserted therein.
11. True copies of the Citations and Orders at issue in this proceeding were served on
Respondent as required by the Mine Act.
12. The individuals whose signature appears in Block 22 of the Orders at issue in this
proceeding were acting in their official capacities and as authorized representatives of the
Secretary of Labor when the Citations and Orders were issued.
13. The 104(d)(1) Order No. 6668437 giving rise to the subject 104(d)(2) Orders was
issued on November 29, 2007 and is still in contest in this proceeding.
14. The total proposed penalties for the Citations and Orders in this proceeding will not
affect Respondent’s ability to continue in business.
III. Background
Respondent operates the Willow Lake Portal Mine (WLPM), an underground, bituminous
coal mine, in Saline County, Illinois. Big Ridge, 33 FMSHRC 689 (Mar. 2011) (ALJ). The
mine is large and made up of several miles of belts and super units.2 It contains several hundred
pieces of equipment, and the air courses are at least eight miles long. Tr. 23-24. At least two
2

A super unit brings ventilation up the center of a working section, and the ventilation is
split in two directions. This allows two continuous miners to operate at the same time. A
continuous miner operates on both the right and left sides of the section, and both machines run
on separate splits of air. Tr. at 35-36.

35 FMSHRC Page 3170

inspectors are required to timely complete a quarterly inspection. Tr. 21-22. The mine is gassy
and liberates over two million cubic feet of methane in a twenty-four hour period. Therefore, it
is subject to a five-day spot inspection. Tr. at 24.
IV. Citation No. 6679907
A. Findings of Fact
1. Inspector Miller’s Testimony
On September 19, 2008, MSHA coal mine inspector, Steven Miller,3 conducted an E01
inspection of the tail roller area of the energized 1B belt conveyor belt for Unit 1. Mine
representative, Charles Hendricks, accompanied Miller during the inspection when Miller issued
Citation No. 6679907. Tr. at 74. The 104(a) citation alleged a violation of 30 C.F.R. § 75.400
because loose coal and float coal dust had accumulated under and along the tail roller area of the
belt and in front of the feeder. The Citation states:
Float coal dust, a distinct black in color, and loose coal were
allowed to accumulate under and along the Tail Roller area of the
energized 1B Conveyor Belt. Accumulations of loose coal and
float dust were also allowed to accumulate on both sides of and in
front of the Unit 1 Stamler Feeder in this location as well. The
accumulations measured approximately 6 inches to 48 inches deep,
12 feet to 17 feet wide, and 50 feet long. The bottom belt and
roller were observed in these accumulations.
P. Ex. 26.
The alleged violation occurred about halfway through the second shift, which ran from
3:00 to 11:00 in the evening. Miller described the “float coal dust” as a “distinct black in color.”
Id. Miller determined that the dark color indicated that an obvious and serious violation had
occurred because rock dust had not been recently applied to make the float dust inert. Tr. at 3233. On cross examination, Miller conceded that he had not measured the depth of the rock dust
on the roof and ribs and was unable to tell when rock dust was last applied to the area. Tr. 6465.
Miller observed four feet of coal accumulations at the feeder at the 1B conveyor belt tail.
P. Ex. 27 at 3. He opined that the accumulations were different from normal spillage. Tr. 34-35.
3

Miller has been employed by MSHA for over twenty years since beginning his career
with a mining engineering firm. His MSHA work has focused exclusively on underground coal
mines. Miller has worked in the ventilation and roof control departments and served as lead
accident investigator prior to accepting a position as field office supervisor. He has been
inspecting Willow Lake since the mine’s inception, and claims to have cumulatively inspected
the mine “thousands” of times. Tr. 20-22.

35 FMSHRC Page 3171

He acknowledged that some unavoidable spillage is common any time coal is transferred in a
mine. Id. He asserted, however, that “even the most inexperienced miner would have
recognized an accumulation here.” Tr. at 33-34. Miller stated that the foreman or miners should
have “stopped the belt, cleaned the tail roller, scooped the feeder and put it back in service.” Tr.
at 35.
Miller concluded that the frictional contact between the accumulations and the tail roller
was reasonably likely to cause a mine fire.4 Miller opined that in the event of a fire, smoke
would spread to the unit and contaminate the secondary escapeway and injure sixteen miners
working in the immediate area. Tr. at 37-38. Miller testified that “miners would have been
located in the face area,” and that “depending on how far they were advanced from the belt,”
they could have been two to five crosscuts away from the cited location. Tr. at 38. Miller also
testified that shuttle car or coal hauler operators were working in the face and would come to the
cited location, “transporting coal from the face to the feeder area to dump.” Tr. at 38. Miller
further testified that the section foreman normally walks through the area to conduct on-shift
inspections, and mechanics may walk across the area in order to do maintenance on equipment.
Tr. at 38-39.
Miller described how a fire in the cited location would reach the area where the miners
worked. He testified that:
[A]nytime you have a fire -- I mean, ventilation on this, I’m not
sure, I’d have to go back and look, but if the ventilation was
coming in and going out to a belt regulator or if it was coming up
the intake and coming to a belt and going out, I don’t recall exactly
there, but at best, all you’ve got is a plant check curtain inby that.
It’s flammable. It’s going to burn, so you’d have the ventilation
interrupting in the event you have a fire.
Tr. at 39.
At the time the citation was written, the mine had fire detection and suppression systems
in place. Miller noted, however, that the mine had a history of problems with false or inoperative
alarms in the CO monitors and heat sensors. Tr. at 40.
Miller concluded that the four feet of coal accumulations had been formulated over the
course of a few shifts, or that someone had dumped coal in the wrong place. Tr. at 47. Miller
determined that while some of the accumulation had been there “for some time,” some of the
coal had accumulated during the current shift. Id. Miller further determined that the operator
had failed to scoop near the feeder. Tr. at 52. Miller claimed that he had checked with
Hendricks for mitigating circumstances, but Hendricks provided none. Tr. at 47.
4

On cross, Miller conceded that the only coal accumulations that were subject to friction
from the belt were down in the tail roller. The accumulations at the feeder merely provided
additional fuel, in the event of a fire. Tr. at 69. Accordingly, I find that the only ignition source
was the accumulations that were grinding through the tail roller.

35 FMSHRC Page 3172

According to the Certified Violation History Report, the Willow Lake Portal was cited
over 200 times in the previous two years for accumulation violations. The nature and location of
the prior violations was not specified. P. Ex. 33.
Miller testified on cross-examination that he did not recall definitively which way the
ventilation flowed in the mine. He believed that the mine “had it in the ventilation plan [that the
air could either] . . . go in or go out,” but he was not positive. Tr. at 49. During the inspection,
Miller had taken multiple methane tests, but did not detect any abnormal readings at the site of
the accumulations. Id.
The ram cars carried about eight to ten tons of coal from the continuous miner to the
feeder. The beds of coal on the cars were stacked four feet high and about seventeen to twenty
feet long. Tr. at 49.
The continuous miners had water sprays to dampen the coal as it was mined. Tr. at 5253. Miller, however, did not check the continuous miners to see if the water sprays were
operating properly on the day of the citation. Id. He noted, however, that he would “question by
the dryness of the coal float dust in the air how much water was being applied to the coal.” Tr. at
53.
Miller designated the gravity of the violation as “reasonably likely” to result in “lost
workdays or restricted duty” to sixteen persons, and thus S&S. He designated negligence as
“high.” P. Ex. 26.
2. Testimony from Respondent’s Witnesses
On direct, Hendricks5 testified that he did not recall whether he observed the tail roller
grinding in coal on the day the citation was issued. Tr. at 76. Hendricks did recall that the coal
around the feeder amounted to “normal accumulations,” which inevitably occur during the
production cycle, and that the cited condition likely developed during the shift. Tr. at 77.
Hendricks further testified that since the coal was fresh off the continuous miner, which is
equipped with water sprays, the coal was “somewhat wet.” Tr. at 78. Hendricks further testified
that the rim of the feeder was padded to prevent loose coal from accumulating in the direction of
the tail roller, and that the position of the tail roller in relation to the feeder was such that spillage
from dumping would not accumulate at the tail roller. Tr. at 76, 85. Like Miller, Hendricks did
not detect any methane in the area around the feeder. Tr. at 79.
On cross examination, Hendricks testified that accumulations near the feeder could not
come into contact with the belt and the tail rollers because of the belt barriers and “the
configuration of the conveyor itself.” Tr. at 85. He testified that he did not see any float coal
dust in the air. Contrary to his inability to recall on direct, Hendrix testified on cross that he did
5

Hendricks has over thirty years of mining experience. At the time the citation was
issued, Hendricks was employed as the outby Supervisor at Willow Lake and was responsible for
all outby activities, including rock dusting, belt shoveling, and supply hauling. Tr. at 72.

35 FMSHRC Page 3173

not see any loose coal or float dust in the tail roller. Tr. at 85-86. Hendricks testified that, after
the citation was issued, he discussed his objections with Miller, who was primarily concerned
with the accumulation at the dump point, and that Miller did not mention any issue with the tail
roller turning in accumulations. Tr. at 86-87.
Hendricks also testified that there were production delays during the shift, but the only
cleaning-related delay was to address the feeder dump and tailpiece cited by Miller. Tr. at 83-84;
see also R. Ex. 1. Hendricks further testified that four feet of coal accumulations typically would
not be present immediately after routine cleaning, which normally occurred between three and
six times per shift. Tr. at 82, 91.
Roy Shavez, mine foreman with twelve years of experience in the mining industry,
testified that he was the face boss in charge of the cited area during the prior shift (morning
shift), which ended about 4:00 p.m.. Tr. at 93.6 Shavez testified that his crew scooped the
feeder, shoveled coal from the tailpiece, and rock dusted the area about thirty to forty minutes
before the end of their shift. Tr. at 94. Shavez noted that the production report did not normally
note when the scoop was utilized to clean the feeder. Tr. at 95.
According to Shavez, during the afternoon shift, one continuous miner ran on one side of
the section, while the miner on the other side experienced delays. Tr. at 96; R. Ex. 1. During the
production delays caused by the inoperative miner, more coal was loaded onto the feeder from
one side of the section than the other. Tr. at 96. Shavez speculated that unless caution was
exercised, the coal being dumped on the more productive side would push over to the other side
of the feeder because less coal was being dumped on the opposite side to push back. Tr. at 97.
Shavez also testified about the typical cleaning process that he used at the feeder. Shavez
acknowledged that foremen had autonomy to establish the method and frequency of cleaning
around the feeder because Respondent did not have a uniform cleaning policy. Tr. at 98. Shavez
testified that a miner would examine the area periodically throughout the shift and clean up any
spillage. Tr. 99-100. Foreman Shavez would check behind the miner who was responsible for
shoveling the feeder area to make sure that the area was clean. Id.
Chad Barras, Peabody Midwest Safety Director, testified that a fire was not reasonably
likely to start at the cited area, and even if a fire were to start, it would not be reasonably likely to
result in an injury. Tr. at 112.7 Barras testified that the only fatalities known to have resulted
from a belt fire since 1980 were the result of the tragedy at the Aracoma Mine in 2006. Tr. at
6

Shavez was not the foreman on Unit 1 at the time of the citation, and he was not present
during Miller’s inspection. Tr. at 99, 102. Tommy Brown, the foreman in charge of the area,
had passed away prior to the hearing. Tr. at 77.
As Peabody Midwest’s Safety Director, Barras was in charge of reviewing the safety
processes of all Peabody affiliated mines in the region, including Willow Lake Portal. Tr. at
103-04. Although very familiar with the operations at the mine, Barras did not accompany
Miller and Hendricks during the inspection, and thus has no first-hand knowledge of the alleged
hazardous conditions. Tr. at 115.
7

35 FMSHRC Page 3174

107. In support of his assertions, Barras cited the Bentley report, which states that between 1980
and 2005, there were sixty-three reportable fires in belt entries and no fatalities or lost-time
injuries. Tr. at 108-09; R. Ex. 3.8 Barras further testified that the fatalities at Aracoma were
attributable to legion safety failures, including disabled fire suppression, non-functioning carbon
monoxide alarms, and a significant delay in warning underground miners once the fire was
detected on the surface. Tr. at 106-07.
Barras testified that there has not been a single reportable belt fire at Willow Lake Portal,
and only one non-reportable fire in a belt entry. Tr. 117-18, 119. According to Barras, the close
proximity of the tail roller to carbon monoxide monitors and miners meant that if the coal
accumulations started to burn, the smoke would be detected quickly by monitors or by olfactory
perception of miners working nearby. Tr. at 110-11. Barras further testified that once a fire was
so detected, it would be addressed by the mine’s fire brigades. Id.
B. Disposition
1. Violation of 30 C.F.R. § 75.400
a. Relevant Legal Principles
30 C.F.R. § 75.400 provides:
Coal dust, including float coal dust deposited on rock-dusted
surfaces, loose coal, 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.
Section 75.400 prohibits accumulations, not mere spillages. See Old Ben Coal Co. (Old
Ben II), 2 FMSHRC 2806, 2808 (Oct. 1980). The Commission stated in Old Ben that “we accept
that some spillage of combustible materials may be inevitable in mining operations. No bright
line differentiates the two terms. Whether a spillage constitutes an accumulation under [30
C.F.R § 75.400] is a question, at least in part, of size and amount.” Id. An accumulation exists if
“a reasonably prudent person, familiar with the mining industry and the protective purpose of the
standard, would have recognized the hazardous condition that the regulation seeks to prevent.”
Utah Power & Light Co., 12 FMSHRC 965, 968 (1990), aff’d, Utah Power & Light Co. v. Sec’y
of Labor, 951 F.2d 292 (10th Cir. 1991); see also Old Ben II, supra, 2 FMSHRC at 2808
(“[T]hose masses of combustible materials which could cause or propagate a fire or explosion
are what Congress intended to proscribe.”); Black Beauty Coal Co. v. FMSHRC, 703 F.3d 553,
558 (D.C. Cir. 2012).

8

At the time of the hearing, Terry Bentley was the Chief of Health and Safety at MSHA.
His 2007 presentation is titled “Reducing Belt Entry Fires in Underground Coal Mines.” Tr. at
107. It is commonly referred to as the Bentley report. The report’s data predates the events at
Aracoma. Tr. at 116.

35 FMSHRC Page 3175

The Commission has expressly rejected the argument that “accumulations of combustible
materials may be tolerated for a ‘reasonable time.’” Old Ben Coal Co. (Old Ben I), 1 FMSHRC
1954, 1957–58 (Dec. 1979); see also Utah Power, supra, 12 FMSHRC at 968 (section 75.400
“‘was directed at preventing accumulations in the first instance, not at cleaning up the materials
within a reasonable period of time after they have accumulated’”) (quoting Old Ben I, 1
FMSHRC at 1957); Black Beauty, supra, 703 F.3d at 558-59; Big Ridge, 35 FMSHRC ___, slip
op. at 13, No. LAKE 2009-377 et al. (June 4, 2013). The Tenth Circuit in Utah Power and Light
similarly stated that “while everyone knows that loose coal is generated by mining in a coal
mine, the regulation plainly prohibits permitting it to accumulate; hence it must be cleaned up
with reasonable promptness, with all convenient speed.” Utah Power & Light, supra, 951 F.2d
at 295, n. 11.
b. Application of the Law
I find that Respondent violated section 75.400 because there were accumulations, not
spillage. Miller measured the loose coal at the feeder and tail roller to be fifty feet in length and
the float dust to be twenty-five feet in length. On cross, Miller explained that the fifty feet of
accumulations described in the citation referred only to the loose coal, and that the seventy-five
feet noted in the citation also included the float dust. Further, four feet of coal was present on
the corner right side of the feeder and accumulations that were thirty-nine inches deep were
present on the other side. In addition, accumulations six to eighteen inches deep were present
under the tail area. Moreover, the accumulations were present around the feeder and tail piece
for so long that coal was packed around the tail roller, which was pulverizing the coal and
suspending black float dust into the air.
A reasonably prudent person familiar with the mining industry and the protective purpose
of section 75.400 would have recognized that the extensive size and amount of float coal dust
and loose coal at the tail roller and feeder were accumulations and not mere spillage. Therefore,
I find a violation of section 75.400.
2. S&S
a. Relevant Legal Principles
The Mine Act defines 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). 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).
To establish an S&S violation under National Gypsum, the Secretary must prove the four
elements of the Commission’s subsequent Mathies test: (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

35 FMSHRC Page 3176

reasonably serious nature. See Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote
omitted); accord Buck Creek Coal, supra, 52 F.3d at 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). An evaluation of the reasonable likelihood of injury is
made assuming continued normal mining operations. U.S. Steel Mining Co. (U.S. Steel III), 7
FMSHRC 1125, 1130 (Aug. 1985) (quoting U.S. Steel Mining Co. (U.S. Steel I), 6 FMSHRC
1573, 1574 (July 1984).
In examining the third element of the Mathies test for those violations that involve
hazards of ignition or fire, the Commission has held that the Secretary must prove that such a
hazard is reasonably likely to occur, in addition to proving that the hazard is reasonably likely to
result in an injury. Ziegler Coal Co., 15 FMSHRC 949, 953 (June 1993). In Ziegler Coal, the
Commission found that a fire or explosion hazard that is reasonably likely to occur is a necessary
pre-condition to finding that an injury is reasonably likely to occur. Id., citing U.S. Steel Mining,
6 FMSHRC 1834, 1836 (Aug. 1984). U.S. Steel IV, supra, 18 FMSHRC at 867, quoting OzarkMahoning Co., 8 FMSHRC 190, 192 (Feb. 1986).
At the same time, the Commission has long held that “[t]he fact that injury [or a
condition likely to cause injury] has been avoided in the past or in connection with a particular
violation may be ‘fortunate, but not determinative.’“ U.S. Steel IV, supra, 18 FMSHRC at 867,
quoting Ozark-Mahoning Co., 8 FMSHRC 190, 192 (Feb. 1986); see also Elk Run Coal Co., 27
FMSHRC 899, 906-07 (Dec. 2005); Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857
(June 1996); Amax Coal Co., 19 FMSHRC 856, 849 (May 1997), citing New Warwick Mining
Co., 18 FMSHRC 1568, 1576 (Sept. 1996); McElroy Coal Co., 30 FMSHRC 237, 247 (Mar.
2008) (ALJ) (“While [the Bentley] . . . report [has] concluded there had been no reportable lost
time injuries as a result of belt fires through 2005, it cannot be seriously contended that the report
supports the proposition that serious injury or death is not a reasonably likely result of a fire in an
underground mine.”); Big Ridge, Inc., 32 FMSHRC 1020, 1024 (Aug. 2010) (ALJ) (“I do not
however agree that the [Bentley] report supports the proposition that serious injury or death is
not a reasonably likely result of a fire in an underground mine.”).
The Commission has provided the following S&S guidance for accumulation violations:
When evaluating the reasonable likelihood of a fire, ignition, or explosion,
the Commission has examined whether a “confluence of factors” was
present based on the particular facts surrounding the violation. Texasgulf,
Inc., 10 FMSHRC 498, 501 (April 1988). Some of the factors include the
extent of the accumulations, possible ignition sources, the presence of
methane, and the type of equipment in the area. Utah Power & Light Co.,
12 FMSHRC 965, 970-71 (May 1990).
Enlow Fork Mining Co., 5 FMSHRC 5, 9 (Jan. 1997).
Finally, the Commission and courts have held that an experienced MSHA inspector’s
opinion that a violation is significant and substantial is entitled to substantial weight. Harlan

35 FMSHRC Page 3177

Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (1998); Buck Creek Coal, Inc., v. MSHA, 52
F.3d 133, 135-36 (7th Cir. 1995).
b. Application of the Law
I find that the Secretary has established that the violation is S&S. I have found a
violation of section 75.400 above. The Secretary has also satisfied the second prong of Mathies
because the violation contributed to a discrete fire hazard. Furthermore, the Secretary has met
the third Mathies element because there was a danger of a belt fire caused by the ignition of
accumulations grinding against the tail roller, and the fire was reasonably likely to cause an
injury. Specifically, the accumulations were extensive and an ignition source was present.
Miller testified that there were six to eighteen inches of loose coal “coned” around the tail roller.
Tr. at 37. Given sufficient friction between conveyor belts, loose coal, and coal dust, coal would
be heated to ignition. Tr. at 48.
I discount the effort of Respondent’s witnesses to rebut Miller’s account of the
conditions. On direct, Hendricks testified that he did not recall whether there was coal that was
being ground up at the tail roller. He did not recall one way or the other. Tr. 76. On cross,
however, Hendricks testified that he did not see any loose coal and coal dust in the tail roller. Tr.
85-86. I credit Miller’s testimony that the coal accumulations were grinding in the tail roller,
over Hendrick’s inconsistent recollection. Furthermore, while Hendricks testified that the
position of the feeder and padding on the rim of the feeder would prevent coal from
accumulating at the tail roller, these preventive measures do not appear to have been enough to
stop the accumulations that Miller observed. See Tr. 76, 85. I place little weight on Barras’
opinion that a fire was not reasonably likely to occur. Unlike the experienced inspector, Barras
was not present during the inspection and did not observe the conditions at the tail roller and
feeder.
In addition, the fact that there has not been a single reportable belt fire at Willow Lake
does not preclude an S&S finding. Tr. at 202-03. The absence of an injury-producing event
when a cited practice has occurred is not dispositive of whether a violation is S&S. See Amax,
supra, 19 FMSHRC at 849; Elk Run Coal, supra, 27 FMSHRC at 906; Blue Bayou Sand &
Gravel, supra, 18 FMSHRC at 857. For the same reason, I give little weight to the Bentley
Report (R. Ex. 3), which states that between 1980 and 2005, there were sixty-three reportable
fires in belt entries and no fatalities or lost time injuries. See Big Ridge, Inc., supra, 35
FMSHRC ___, slip op. at 5; citing Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011-12
(Dec. 1987) (rejecting use of Bentley Report and noting that “[i]t would have been inappropriate
for the Judge to draw broad conclusions about the likelihood of injury from belt fires from the
presentation, when the presentation was prepared for a different reason and had a different
focus.”).
Furthermore, applying existing Commission and Seventh Circuit precedent, I decline to
give probative value to Respondent’s testimony that it utilizes a number of early fire detection
and response systems on its belt line, including methane and carbon monoxide detectors, water
sprays, and ventilation control devices. In Buck Creek, the Seventh Circuit affirmed a judge’s
determination that a coal accumulation violation on a conveyor belt was S&S, despite the

35 FMSHRC Page 3178

presence of redundant fire detection and prevention measures. 52 F.3d at 136. Thereafter,
applying Buck Creek, the Commission has determined that little weight should be given to safety
measures such as fire detection and suppression systems when determining whether an
accumulation violation is S&S. Amax Coal, supra, 18 FMSHRC at 1359 n.8; see also Amax
Coal, supra, 19 FMSHRC at 850 (holding that the presence of fire detection or fire-fighting
equipment does not negate the serious safety risk posed by mine fires).
The Commission recently reaffirmed its prior rulings in Big Ridge, Inc., supra, 35
FMSHRC ___, slip op. at 4. It reasoned that adopting the argument that mandatory safety
protections provide a defense to a finding of S&S would lead to the anomalous result that every
protection would have to be nonfunctional before an S&S finding could be made. Id. The
Commission has held that “such an approach directly contravenes the safety goals of the Act.”
Cumberland Coal, 33 FMSHRC 2357, 2369-70 (Oct. 2011).
In Cumberland Coal Resources v. FMSHRC, the D.C. Circuit recently concurred with the
Commission’s approach:
[T]he “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.’ Because redundant safety measures have
nothing to do with the violation, they are irrelevant to the
significant and substantial inquiry.”
717 F.3d 1020, 1029 (D.C. Cir. 2013). In any event, I further note that Respondent’s early
detection systems had a history of problems with false or inoperative alarms. Tr. at 40.
Respondent also argues that the coal was damp and that a fire was unlikely to occur. The
Commission, however, has held that the existence of wet areas where accumulations have
occurred does not minimize or prevent the propagation of a fire for S&S purposes. See Utah
Power & Light Co., 12 FMSHRC 965, 971 (May, 1990) (“The fact that some of the coal
accumulations were damp. . . [is] not determinative [for S&S] because, as noted above, damp
coal dries in the presence of fire.”).
The Secretary has also satisfied the fourth element of Mathies because a fire was
reasonably likely to result in serious injuries. Miller testified that miners were likely to
experience injuries that would have resulted in lost workdays or restricted duty. He further
testified that the injuries may occur in the form of “smoke inhalation” or “falling in smoke” and
“breaking an arm.” Tr. at 40. Accordingly, I conclude that a fire was reasonably likely to result
in serious injuries.
In sum, I conclude that the violation is S&S. The Secretary has established an
accumulation violation that contributes to a discrete safety hazard, satisfying the first and second
prongs of Mathies. Moreover, during continued normal mining operations, the violation was
reasonably likely to cause a mine fire, which would produce serious injuries, meeting the third

35 FMSHRC Page 3179

and fourth elements of Mathies. Accordingly, I affirm the S&S designation for Citation No.
6679907.
3. Negligence
a. Legal Principles
Section 110(i) of the Mine Act requires that in assessing penalties the Commission must
consider, inter alia, whether the operator was negligent. 30 U.S.C. § 820(i). Each mandatory
standard thus carries with it an accompanying duty of care to avoid violations of the standard.
An operator’s failure to meet the appropriate duty can lead to a finding of negligence if a
violation of the standard occurs.
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 mine operator is required . . . to take steps necessary to correct or prevent
hazardous conditions or practices.” Id. “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.” Id. High negligence is when “[t]he operator knew or should have
known of the violative condition or practice, and there are no mitigating circumstances.” Id.
Moderate negligence is when “[t]he operator knew of should have known of the violative
condition or practice, but there are mitigating circumstances.” Id. Low negligence is when
“[t]he operator knew or should have known of the violative condition or practice, but there are
considerable mitigating circumstances.” Id. No negligence is when “[t]he operator exercised
diligence and could not have known of the violative condition or practice.” Id.; see also 30
C.F.R. § 100.3(d), Table X.
b. Application of the Law
I find that the Secretary has established that the violation resulted from Respondent’s
“moderate” negligence. Some facts mitigate against a finding of high negligence. While Miller
testified that the black color of the float dust demonstrated that the accumulations were present
for a while and at least for more than one shift, he also conceded that the bulk of the
accumulations could have occurred in less time if a miner had inadvertently dumped coal in the
wrong place. Tr. at 47. I find that such a scenario is more likely given Shavez’s uncontroverted
testimony that it was his practice to ensure that the area was scooped and dusted prior to the end
of his shift, which was immediately prior to the shift during which the citation was issued. Tr. at
94. I also find that the production delays during the afternoon shift make it less likely that the
accumulations were the result of gradual spillage as the mine was not running coal for over half
of the shift. See R. Ex. 1 (showing that coal was produced for 226 minutes of the 545 minutes
that miners were working the face).
Accordingly, I find that Citation No. 6679907 should be modified from “high” to
“moderate” negligence to reflect the fact that the condition did not last for several shifts, as the
Secretary contended, and that the area was scooped and rock dusted by Chavez’s crew at the end
of the prior shift.

35 FMSHRC Page 3180

V. Citation No. 6683969
A. Findings of Fact
On January 29, 2009, MSHA coal mine inspector, Larry Morris,9 conducted an E01
inspection of the feeder for Unit 2. He issued a 104(a) citation alleging a violation of 30 C.F.R.
§ 75.400 because oil and oil-saturated coal had accumulated in the tray inside the oil tank
compartment. The citation states:
An accumulation of combustible materials, in the form of oil and
oil saturated coal fines and loose coal, is present on the Unit #2
(MMU002) working section feeder. The accumulations are present
in and around the oil tank and in the oil filter compartment and
range from a film of oil to approximately 2 inches of oil saturated
coal fines and loose coal.
P. Ex. 29A.
Respondent’s internal examination records show that there was an oil leak at the feeder
on January 25, 2009, four days before Morris issued the citation. There was no indication in the
records that Respondent cleaned the feeder. P. Ex. 32A; Tr. at 151. Morris determined that coal
dust and loose coal saturated the oil because the ram and shuttle cars were dumping coal into the
feeder faster than the feeder could take it out, which caused an overflow of loose coal and dust to
settle in the oil. Tr. at 134. Morris was unable to specify the amount of coal in the oil. Tr. at
134.

9

Morris has been a coal mine inspector and accident investigator for MSHA for about
five years. During that time, he conducted underground regular and spot inspections, and
investigated roof falls, accidents, and fatalities. He has also inspected surface mines and mine
construction sites. Morris has been in the coal industry for thirty-seven years. Tr. at 128-29.
Prior to working for MSHA, Morris worked as a coal miner in such positions as laborer,
conveyor belt foreman, general underground foreman, section foreman, longwall foreman,
conveyor belt coordinator, and assistant mine foreman. Morris is familiar with Willow Lake
Portal and has performed numerous inspections there. Tr. at 130.

35 FMSHRC Page 3181

Five minutes prior to issuing the citation, Morris issued 104(d)(2) Order No. 6683968 for
a separate violation along the same conveyor belt because the tail piece was running in coal,
which created a frictional ignition source.10 Tr. at 135-36. Morris opined that any fire resulting
from the friction at the tail roller would spread to the oil saturated coal in the feeder tray. Tr. at
137. He determined that the foreman had repeatedly shoveled away coal from the tailpiece that
morning, but failed to clean the tray. Tr. at 162-63.
At hearing, Morris used a diagram of a feeder and tail piece to illustrate the proximity of
the accumulations to the frictional ignition source. See P. Ex. 35A. Although the photographs of
the feeder are not the same feeder as the one in question, Morris testified that they represented a
“typical tail piece feeder setup.” Tr. at 159. Respondent’s witness, Brad Champley, the
production foreman for the section, agreed that the feeder in the diagram was similar to the
feeder that was present on January 29, 2009. Tr. 179.
On the diagram, Morris marked the location of the ignition source at the tail pulley with
two “Xs,” one red and one blue, and noted that the accumulations at the tray were located
diagonally at the bottom of two circles, both red and blue, marked “TRAY.” P. Ex. 35A. Based
on the diagram, Morris testified that the ignition source was “within one to two feet” of the
feeder tray where the accumulations were located. Tr. at 136-38.
Upon examining the Secretary’s photographs, Champley and Barras testified that the
picture of the entire tray and tail roller encompassed about ten feet. Tr. at 183. 190. Barras
based his opinion on “the thickness of the radiator” and “the dimensions of the filters and . . .
where the boom comes into play.” Tr. at 189-90. Champley testified that the area marked with
the red and blue circled “X” did not represent the ignition source, but rather the feeder.
Champley further testified that the ignition source was behind a chain in the distance. He
marked the location with a circle and a blue letter “A” on the right hand side of the diagram. Tr.
at 179; P. Ex. 35A.11
Morris determined that a fire resulting from the accumulations was reasonably likely to
occur and spread, injuring ten miners in the area. Tr. at 143-44. Although air was generally
10

Morris testified that Order No. 6683968 was issued for a hazardous condition because
“the rotating tail . . . roller of the belt and the conveyor belt itself were actually turning in loose
coal and coal fines . . . up to 18 inches deep, and around the tail roller itself it was dry and the . . .
accumulations were so great that the self-cleaning roller could not throw it out fast enough and it
actually built up. . . [and] pushed the belt two feet . . . away from the tail pulley and it was
getting . . . close to . . .the metal of . . . the tail piece.” Tr. at 136. In a prior case, Judge Melick
found that Order No. 6683968 constituted an S&S violation. At hearing for the instant citation,
Judge Melick took judicial notice of the S&S designation and the ignition source at the tailpiece
for Order No. 6683968. Tr. at 134-36. On appeal, the Commission affirmed Order No. 6683968
as S&S. Big Ridge, Inc., supra, 35 FMSHRC ___, slip op. at 15.
11

The oil tank in the feeder was not shown in the diagram. Rather, it was located off to
the top left of the diagram. The boom from the feeder, which placed coal on the conveyor belt,
was located off to the right side of the diagram.

35 FMSHRC Page 3182

moving outby the tail piece, Morris testified that the gaps in the outby curtain, which allowed the
conveyor to run through, would also allow some air to move inby towards the feeder. Tr. at 143.
Thus, Morris determined that if a fire started at the tail piece, the air traveling through the
curtain’s holes would cause some movement towards the accumulations at the feeder tray. Tr. at
143. Morris testified that oil-soaked coal is more likely to catch fire than solid or loose coal, or
coal fines that are not oil saturated. Tr. at 143. Morris did not know the ignition temperature or
flashpoint of the oil or coal accumulations in the feeder tray. Tr. at 167.
There were various safety mechanisms in the feeder, including a guard over the motor, a
cooling fan behind the motor, and an automatic shut-off when the feeder approached a certain
temperature. On cross examination, Morris testified that he did not check whether the safety
mechanisms were operational. Tr. at 161.
Morris testified that the violation was obvious because the miners working near the tail
piece could see the feeder tray, which was in the same area as the tail piece. Tr. at 144. The
miners had cleaned the tail piece three times that shift before Morris issued the citation. Id.
Furthermore, the mine foreman cleaned out the gob in the tail piece during an on-shift
examination before Morris issued the citation. Tr. at 154-55. Nevertheless, Morris determined
that no one had bothered to clean up the accumulations in the feeder tray. Morris testified that
the foreman should have seen the accumulations in the nearby tray. Id.
Morris concluded that the dirty appearance of the oil-saturated coal indicated that the
accumulations were present for over three shifts. Tr. at 150. Morris further testified that
Respondent’s examination reports demonstrated that the accumulations persisted for four days.
In this regard, the report for January 25, 2009 states that the 603 feeder had an oil leak and the
fittings were replaced. P. Ex. 32A; Tr. at 146. The entry did not mention any cleaning of oilsaturated coal in the tray.
Morris opined that if the accumulations had been cleaned up, Respondent would have
recorded the action of “washed” in the reports. Tr. at 149, 151. For example, on page 1 of P. Ex.
32A, Respondent described car 879 as “needed washed” and recorded “washed” for the action
taken. Moreover, Page 2 of the report shows that Respondent described the #66 unit sub as
“dirty” and marked the “action taken” column as “cleaned.” By contrast, Champley testified that
the feeder was typically washed every shift, and it was not typical to record a feeder as washed in
a production report because feeders are not normally shut down while being washed. Tr. at 179.
Morris also testified that Respondent had a past history involving several prior violations
of 75.400. Tr. at 156. He did not analyze, however, whether those 75.400 violations were the
result of accumulations on a feeder, oil tank, or oil filter compartment. Tr. at 169.
The record shows that various safety mechanisms were present at the feeder, which
would reduce the effects of any fire. Morris acknowledged that the feeder’s fire suppression
system was operational when Morris issued the citation. Tr. at 163. In addition, Morris testified
that carbon monoxide sensing equipment was present along the belt to detect a fire. Id. Further,
Morris testified that the feeder tray had a lip on it that was about two to two-and-a-half inches
above the height of the accumulations within the tray, and a chain, cable, and water hose were

35 FMSHRC Page 3183

present between the feeder and the tray. Tr. at 164-65. Also, Barras testified that people
working in the area would have been able to smell a fire before it spread. Tr. at 190-93.
Champley testified that it was unlikely that a fire would occur because the mine mechanic
“would normally wash the feeder . . . every shift,” and “[h]e. . . did it on his own.” Champley
also testified that during the inspection, Morris did not raise any significant concern about any
oil-saturated coal or other accumulation at the feeder, and Morris seemed a lot more concerned
about the frictional source of ignition at the tail roller. Tr. at 177-79. Champley further testified
that while he was shoveling the tailpiece that morning, he did not notice any accumulations of
oil-saturated coal around the oil tank or in the oil filter compartment, nor did Morris point such
accumulations out to him during the inspection. Tr. at 179. In addition, Champley testified that
the miners were located to the far right side of the feeder when shoveling, and the chain, hose,
and water cable were located between the miners and the feeder tray. Tr. at 176-86; P. Ex. 35A.
Morris determined the violation to be S&S and designated the gravity of the violation as
“reasonably likely” to result in “lost workdays or restricted duty” to ten people. He designated
Respondent’s negligence as “high.” P. Ex. 29A. Morris testified that Respondent did not offer
any mitigating circumstances at the time of inspection. Tr. at 156.
B. Disposition
1. S&S
I find that the Secretary has established that the violation was S&S. Respondent
concedes that a violation of section 75.400 occurred as a result of the accumulations of oil and
oil-saturated coal fines and loose coal in the Unit #2 working section feeder. The Secretary has
also satisfied the second element of Mathies because the cited condition exposed miners to an
identifiable and discrete safety hazard, i.e., a propagation hazard for a fire from the friction
caused by the accumulations at the tail roller. In addition, the Secretary has met the third
element of Mathies because the propagation hazard contributed to by the violation was
reasonably likely to result in and enhance injury from the fire. The Commission has affirmed
Judge Melick’s determination that the accumulations at the tail roller were reasonably likely to
contribute to a fire hazard.
Morris testified that the accumulations were only two feet away from the tail roller. Tr.
at 165. While Barras and Champley testified that the oil tank and the tail roller were separated
by about ten feet, Morris indicated that the tray containing the oil saturated coal fines was not
only under the oil tank, but extended the greater part of the length of the feeder. Tr. at 142; P.
Ex. 35A (Morris marked the location of the tray with blue arrows). Even Barras conceded that
the feeder was only three to four feet away from the tail roller. Tr. at 190. Given the proximity
of the accumulations to the tail roller and the direction of the air flow, I find it reasonably likely
that the accumulations of oil and oil-saturated coal fines would propagate any fire ignited by the
hazardous conditions cited in Order No. 6683968.
I decline to give probative weight to Respondent’s testimony that a cooling fan was
present between the tail roller and the oil tank of the feeder. Nor do I give weight to

35 FMSHRC Page 3184

Respondent’s argument that an automatic shutoff valve would have de-activated the feeder when
it reached a certain temperature. In Buck Creek, the Seventh Circuit declined to give weight to
evidence of flame resistant belts, which are preventative safety measures. Buck Creek, supra, 52
F.3d at 135-36. By analogy, I decline to give probative weight to Respondent’s evidence that the
cooling fan and shutoff valve were preventative measures. I also do not give probative weight to
Respondent’s evidence that the mine’s fire detection and suppression systems would have
minimized the likelihood of any injuries. See Tr. at 161.
Finally, I cannot assume that Respondent would have cleaned the feeder before a fire
occurred simply because Respondent had cleaned the feeder in the past. Big Ridge, supra, 35
FMSHRC ___, slip op. at 14-15. Without more concrete evidence regarding some sort of
internal policy, schedule, or rule obliging employees to clean the feeder on a regular basis, I
decline to assume that Respondent would have abated the condition during continued normal
mining operations. Finding otherwise would open the door for mine operators to avoid virtually
any S&S designation by claiming that they would have abated the violation, merely because they
have done so in the past.
I conclude that the accumulations in the feeder tray presented a propagation hazard in the
likely event of a fire, and the propagation hazard contributed to by the violation was reasonably
likely to result in or enhance serious injury from a fire originating from the ignition hazard. Cf.,
Mid-Continent Res., Inc., 16 FMSHRC 1226, 1231 (June, 1994) (finding a propagation hazard as
a partial basis for affirming an S&S designation). Accordingly, I affirm the S&S designation for
Citation No. 6683969.
2. Negligence
I conclude that the Secretary has established that the violation resulted from
Respondent’s “high” negligence. The January 25, 2009 report describing the oil leak at the
feeder suggests that a problem existed for four days and that Respondent should have known
about it. P. Ex. 32A. Furthermore, the feeder tray set-up in the diagram was only two-and-a-half
inches high and the accumulations had risen two inches in the open metal tray. Tr. at 133, 141.
Thus, the accumulations were obvious because they were only half an inch from the top of the
rim of the tray.
The fact that Morris focused his attention during the inspection primarily on the friction
at the tail roller is immaterial, as the duty to comply with the Mine Act falls on the mine
operator. The pre- and on-shift reports establish that Respondent did not take the opportunity to
identify and correct the violation for three shifts, despite being alerted to a problem. P. Ex. 34A.
Furthermore, Respondent did not take reasonable efforts to abate the violation prior to the
issuance of the Citation. Although Respondent replaced the fittings, it failed to clean up the
accumulations of oil-saturated coal. Finally, as with the prior violation, Respondent’s history of
section 75.400 violations and MSHA’s warnings placed Respondent on notice regarding
continuing accumulation problems. Having rejected Respondent’s arguments regarding potential
mitigating circumstances, I find that Citation No. 6683969 resulted from Respondent’s high
negligence.

35 FMSHRC Page 3185

VI. Citation No. 6667482
A. Findings of Fact
On November 24, 2007, MSHA coal mine inspector, Keith Roberts,12 conducted an E01
inspection of the working section of Unit No. 3. Bart Schiff, Respondent’s safety manager,
accompanied Roberts. Roberts issued 104(d)(1) Citation No. 6667482 alleging a violation of 30
C.F.R. § 75.400 for accumulations of hydraulic oil, oil-saturated coal, oil saturated coal dust, and
oil-saturated rock dust in the main controller and pump motor compartments of the No. 516 coal
scoop. P. Ex. 1; Tr. at 276. The Citation states:
Accumulations of combustible material have been permitted to
accumulate along and in the approximate 3’ L x 8’ W frame that
houses the main electrical controller, pump motor and operator’s
compartment of the Long Airdox battery powered coal scoop, Co.
No. 516, located on MMU 003. Combustible material in the form
of oil, oil-saturated coal, oil-saturated coal dust and oil-saturated
rock dust, ranging in depth from approximately ¾” to an
approximate 2” is present along the frame and compartment
housing the main controller.
Also, combustible oil, oil-saturated coal and oil-saturated coal
dust, ranging in depth from approximately ¾” to an approximate 2
½” is present along the frame and compartment housing the pump
motor. A film of oil-saturated dust is present on the hoses and the
electrical cables running from the main controller to the pump
motor and electrical power take off (PTO) unit.
Additionally, combustible oil, oil-saturated coal, oil-saturated coal
dust and oil-saturated rock dust, approximately ¾” in depth is
present on the floor of the operator’s compartment.
Two ignition sources for the combustible material are present on
the machine. The main controller has an opening in excess of .008
inch along the flame path at the top right corner of the enclosure
and the electrical cable serving the electrical power take off (PTO)
unit is in contact with and fouling against the rotating drive shaft
running through the pump motor compartment.

12

Roberts began working in the coal mining industry in 1972. Tr. at 275. While in the
private sector, Roberts held several labor and management positions, including equipment
operator, section foreman, face boss training instructor, and safety engineer. Id. Roberts has
been with MSHA since 1999. He has held various positions concerning underground coal mines,
including work as an inspector, investigator, and ventilation and roof control specialist. Tr. at
273-74.

35 FMSHRC Page 3186

P. Ex. 1.
Roberts designated the gravity of the violation as “reasonably likely” to result in
“lost workdays or restricted duty” to one person, and thus S&S. He designated
Respondent’s negligence as “high.” P. Ex. 1. He further designated the violation as an
unwarrantable failure.
On the date of the inspection, the battery-operated coal scoop was located in a working
section that was temporarily idled due to a damaged conveyor belt. Tr. at 277. Roberts and
Schiff gave conflicting testimony regarding whether the scoop was energized at the time of the
inspection. Tr. at 345; 364; see also P. Ex. 9. When the section had been operational, Roberts
testified that the scoop would have been primarily used to pick up coal fines that are left behind
during the production cycle, and transport them to the feeder. Tr. at 278-79.
Roberts had Respondent remove several covers to access the inner-workings of the
scoop. Tr. at 294. Roberts testified that operators are required to perform an examination of the
scoop’s inner-workings once a week, and that such a task usually took a team of three miners (a
mechanic and two others) a few minutes to remove the bolts, which held the covers in place. Id.
Once the covers were removed, Roberts observed oil saturated coal and coal dust in the main
controller, the pump motor compartment, and the operator’s compartment. Tr. at 290, 280.
Roberts, however, did not observe any oil leaks. Tr. at 363.
In preparation for hearing, Roberts drew a crude sketch of a coal scoop that illustrated the
approximate locations of the alleged accumulations in the various sections of the scoop. Tr. at
280-81; P. Ex. 37. The sketch was not drawn to scale and Roberts was unsure if the picture
reflected the same scoop model that was cited. Tr. at 280-83. Referring to his illustration,
Roberts testified that the scoop was made-up of three distinct segments: the front bucket and two
main segments of the body. Tr. at 281-82. The front section of the body contained the
operator’s compartment, the main controller, the pump motor compartment, the electric power
takeoff unit, and the drive shaft. Id. The back section of the body contained the batteries and
one or two tram motors. Id.
Roberts used diagonal lines and red ink to indicate the general locations where he
observed accumulations of coal fines and oil. Tr. at 285; see P. Exs. 37-39. The alleged
accumulations were confined to three locations in the front section of the body: the operator’s
compartment, the main controller compartment, and the pump motor compartment.
1. The Operator’s Compartment
Roberts testified that a ¾- inch-deep accumulation of oil saturated coal and coal dust was
found on the floor of the operator’s compartment. Tr. at 292-93. The operator compartment is
where the operator sits and includes a tram pedal, much like a gas pedal on a car or truck, as well
as other operating mechanisms. Tr. at 283; P. Br. at 17. Roberts did not claim that an ignition
source was located near the operator’s compartment accumulation. Rather, the accumulation
presented a propagation hazard if a fire were to ignite in an adjoining section of the scoop. Tr. at
308.

35 FMSHRC Page 3187

Schiff did not take notice of the material on the floor of the operator’s compartment. Tr.
at 364. He testified that it was normal to see a mixture of mud, dirt, and coal on the floor
because such material is often tracked in on the operator’s boots. Tr. at 364-65. Schiff testified
that he was able to see the extent of the accumulations only after the panels in the operator’s
compartment were removed,. Tr. at 365-66, 369. Similarly, Schiff testified that oil was not
visible until the panels on the operator’s compartment were removed. Tr. at 369.
2. The Main Controller Compartment
Roberts testified that the main controller, which housed the scoop’s electrical operating
components, had experienced a buildup of ¾ to 2 inches of oil-saturated coal and rock dust along
the frame of the protective cover. Tr. at 282, 290, 293. Roberts alleged that an impermissible
gap of more than .008 of an inch in the main controller cover would allow the electrical
components to ignite methane in the air. Tr. at 312; P. Ex. 3.13 In such a scenario, Roberts
determined that the accumulations of oil and coal dust presented a propagation hazard. Id.
Alternatively, Roberts alleged that sustained arching or sparking could travel out through the
small gap and ignite the accumulations on the outside of the protective cover. Id. Roberts
explained that the cover needed to be sufficiently flush against the compartment to be an
effective barrier to fire. Tr. at 282, 311-12.
Schiff testified that the oil-fill area was behind the main panel, and that when the oil tank
was overfilled, the overflow would run down over the main controller panel. Tr. at 366-67.
Even with the covers on, Schiff was able to see that some oil had run over the tank. Id.
According to Schiff, if oil or accumulations are observed, the scoop should be washed. Id.
Roberts acknowledged that he found no methane at the scoop during the inspection. Tr.
at 345. Although during normal operations the scoop would be required to travel throughout the
working section, no evidence of elevated methane levels in the working section was adduced at
hearing. Roberts also admitted that the electrical components on the main controller were in a
metal and permissible structure, which was separate from the compartment with the
accumulations. Tr. at 341; P. Ex. 38-39. Roberts further acknowledged that the scoop was
equipped with an emergency stop switch and a fire suppression system, which could be activated
from the operator’s compartment. Tr. at 337-38.
3. The Pump Motor Compartment
In the pump motor compartment, Roberts observed between ¾ and 2 ½ inches of
combustible material on the frame, and a film of oil-saturated dust on the hoses and electrical
wires inside the compartment. Tr. at 293. Directly below the pump motor compartment is the
13

Roberts issued an additional S&S citation, Citation No. 6667489, for the impermissible
opening in the cover to the main controller. Tr. at 309; P. Ex. 3. As Respondent had not
contested that citation, Judge Melick instructed the parties not to retry that final citation.
Accordingly, Robert’s testimony on the subject was limited. Tr. at 311.

35 FMSHRC Page 3188

vehicle’s drive shaft. Tr. at 352-53. Roberts testified that there was not a protective cover
between the drive shaft and the pump motor compartment. Id.
After removing the foot petal cover, Roberts and Schiff noticed that a 128-volt electrical
cable had become loose in the area around the pump motor compartment and was “drooping
down.” Tr. at 367-68; see also P. Ex. 9. While the cable had no discernible damage, Roberts
noticed that a portion of the cable was cleaner that the surrounding area and surmised that this
was due to the cable touching the rotating drive shaft. Tr. at 299. Roberts testified that,
assuming continued, normal mining operations, friction with the drive shaft would eventually eat
away at the cable jacket and expose the inner electrical components. Id.14 Roberts determined
that a damaged cable would be reasonably likely to cause electrical sparks and arcing capable of
igniting the oil and coal dust in the pump motor compartment directly above, and that the
resulting fire would easily spread to other areas of the scoop. Tr. at 302. Roberts, however,
admitted that he did not know the ignition temperature or flashpoint of the coal or hydraulic oil.
Tr. at 336-37.
Roberts acknowledged that the cable had an additional conduit around it for protection.
Tr. at 389-90. He also acknowledged the existence of a circuit breaker to provide protection if
the cable became fouled with the drive shaft. Roberts testified that a circuit breaker would shut
down the scoop, which would prevent any arcing or sparking. Tr. at 391-93. Roberts testified,
however, that “there has been a very long history of circuit breakers that have failed under tests
and had to have been replaced.” Tr. at 304. Although Roberts did not perform a complete check
of the scoop’s circuit breaker during the inspection, he cited a specific example of a prior failure
in September 2007, which involved a fire on a coal scoop where trip settings had been set above
acceptable levels. Tr. at 304-05, 406.
Respondent’s witness Melvin acknowledged that circuit breakers do fail, but declined to
describe the failures as “regular” or occurring “every day.” Tr. at 391.
4. Examination Records
Roberts reviewed the examination records for the coal scoop before issuing the Citation.
P. Ex. 1. On direct, he testified:
[W]hat’s significant to me is that on [November 17, 2007], Scoop
516 was examined, and in the dangerous conditions it has ‘needs
washed,’ which is the same as saying that there’s combustible
material that needs to be removed from the machine. Under the
action taken, it really shows no action taken, it simply says that it’s
been reported.
14

Roberts had previously observed an instance at the mine where a drive shaft on a coal
scoop had worn away the cable jacket on a hydraulic hose. Tr. at 300; P. Ex. 4. Although, the
hydraulic hose and electrical cable were made of different materials, they are both intended to be
abrasion resistance. Tr. at 396.

35 FMSHRC Page 3189

Tr. at 328.
Roberts determined that the records established that the scoop was dirty, but not cleaned.
Tr. at 328-30; see also P. Ex. 5.15 Roberts determined that Respondent’s failure to address a
known hazardous condition played a “significant” role in his determination that the citation
should be designated as an unwarrantable failure. Tr. at 328.
Daniel Bishop, who works in Respondent’s safety department, testified that the scoop
was washed on November 20, four days prior to the citation. Tr. at 381. This testimony is
corroborated by the section foreman’s report for November 20 on Unit No. 3. R. Ex. 7, p. 6.
Bishop also testified that he washed two cars on the day that Roberts issued the citation, but did
not wash the scoop because it normally did not get dirty enough to wash every day. Tr. at 383.
Respondent’s operation reports show that Respondent was not washing the scoops on a daily
basis. Tr. at 384-85; R. Ex. 7.
B. Disposition
1. S&S
I find that the Secretary has established that the violation is S&S. Respondent concedes
that a violation of section 75.400 has occurred. The violation exposed at least one miner to an
identifiable and discrete safety hazard, i.e., the danger of a fire from arcing and sparking that
would have ignited the oil-saturated coal accumulations in the scoop’s main controller and pump
motor compartments. I further find that the violation was reasonably likely to cause a fire and
resultant injuries as the oil-saturated coal accumulations were reasonably likely to ignite from the
arcing and sparking caused by the PTO cable fouling against the drive shaft, under continued
normal mining operations.
I decline to find that the mixture of mud and coal on the floor of the operator’s
compartment contributed to a fire hazard. The small amount of material present “in the area
between the pedals and the seat” was likely tracked in on the boots of a scoop operator. See Tr.
at 336. Such material was likely composed of a mixture of wet coal and inert dirt or rock dust.
Tr. at 364-65; 369. As both water and inert material like rock dust are typically used to prevent
the ignition of coal, I find that the mud and dirt mixed in with the small amount of accumulations
significantly reduced the risk of ignition of the material in the operator’s compartment.
I further find that the impermissible gap on the lid to the main controller was unlikely to
result in an explosion or to ignite the coal on the main controller frame. Roberts found no
15

Roberts reasoned that if Respondent had washed the scoop at any time after November
17, Respondent would have recorded such washing like it did for the 871 and 872 cars that
appear on page 1 of the examination records with the following notation: “Dangerous Condition:
Dirty; Action Taken: Washed.” Tr. at 328-30; see also R. Ex. 7. Furthermore, Roberts was
troubled by the fact that, during the inspection, Respondent did not provide him with any
evidence of efforts to wash the scoop. Id.

35 FMSHRC Page 3190

methane at the scoop, and although the scoop would travel throughout the working section, the
Secretary did not proffer evidence concerning the levels of methane in the rest of the working
section. The record supports Respondent’s argument that the electrical components on the main
controller were in a separate metal and permissible structure, apart from the compartment cited
by the inspector. Tr. 341; P. Ex. 38, 39.
Following Commission and Seventh Circuit precedent in Buck Creek, supra, 52 F.3d at
135-36, I decline to give probative value to Respondent’s testimony that a circuit breaker would
have shut down the scoop in the event of any arcing or sparking and subsequent ignition. In
Buck Creek, the D.C. Circuit declined to give weight to evidence of flame resistant belts, which
are preventative measures. Id.; MSHA, Regulatory Impact Analysis for Flame Resistant
Conveyor Belt, Fire Prevention and Detection, and Use of Air From the Belt Entry, Final Rule 5
(Dec. 2008) (describing flame resistant belts as measures used to “prevent conveyor belt fires.”).
By analogy, I decline to give probative weight to Respondent’s evidence of the circuit breaker as
a preventative safety measure. Likewise, I decline to give probative weight to Respondent’s fire
detection and suppression measures, and I emphasize Robert’s testimony that the mine has long
history of circuit breaker failures. In fact, Roberts cited a specific example involving a fire on a
coal scoop. Tr. at 304-05. None of Respondent’s witnesses disputed these failures.
In addition, I find that the protective conduit surrounding the PTO cable would have
eventually worn away from contact with the drive shaft, given continued, normal mining
operations. On cross examination, Melvin admitted that if the PTO cable had continued to run
against the moving drive shaft, it would have eroded through the outer jacket into the inner
conductors. Tr. at 396-97. This would have resulted in arcing and sparking, thus causing a fire.
Finally, I decline to assume that the scoop operator would have washed the machine
before operating it. According to Bishop, the clean-up crews were assigned to wash two cars and
one scoop over a six-day rotation. Tr. at 374. Although Respondent washed the feeder four days
prior to the citation, I decline to find that Respondent was reasonably likely to wash the scoop
before operating it without some sort of concrete example regarding an internal policy schedule
or consistent practice obligating miners to do so. As noted, finding otherwise would open the
door for mine operators to avoid virtually any S&S designation, merely by claiming that they
would have abated the violation. See Big Ridge, Inc., supra, 35 FMSHRC ___, slip op. at 12.
Turning to the fourth element of the Mathies test, I find that heat or smoke from the fire
was reasonably likely to cause “thermal injury” or smoke inhalation and poisoning from fumes
emanating from the ignited accumulations or the insulation around the power leads. Tr. at 307.
It is reasonably likely that a miner would be operating the scoop at the time of ignition.
Furthermore, such thermal and smoke inhalation or smoke poisoning injuries were reasonably
likely to be serious. The Commission and its judges have held that smoke inhalation and burns
constitute serious injuries for purposes of the fourth prong of Mathies. Amax Coal, supra, 19
FMSHRC at 847 (upholding judge’s finding of S&S based on evidence of smoke inhalation and
burns, which constitute serious injuries); American Coal, supra, 33 FMSHRC at 2810 (finding
smoke inhalation sufficient to support fourth prong of Mathies).
Accordingly, I affirm the S&S designation for Citation No. 6667482.

35 FMSHRC Page 3191

2. Unwarrantable Failure
a. Relevant Legal Principles
The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C.
§ 814(d). It refers to more serious conduct by an operator in connection with a violation. In
Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that
unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at
2001. Unwarrantable failure is characterized by such conduct as “reckless disregard,”
“intentional misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at 2003-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal,
supra, 52 F.3d at 136 (approving Commission’s unwarrantable failure test).
The Commission has recognized that whether conduct is “aggravated” in the context of
unwarrantable failure is determined by considering the facts and circumstances of each case to
determine if any aggravating or mitigating circumstances exist. Such factors include the length
of time that the violation has existed, the extent of the violative condition, whether the operator
has been placed on notice that greater efforts are necessary for compliance, the operator’s efforts
in abating the violative condition, whether the violation was obvious, whether the violation
posed a high degree of danger, and the operator’s knowledge of the existence of the violation.
See, e.g., Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). A judge has discretion to
determine that some factors are irrelevant or are less important than other factors under the
totality-of-circumstances analysis. IO Coal Co., 31 FMSHRC 1346, 1351 (Dec. 2009).
The Secretary bears the burden of proving all elements of an unwarrantable failure by a
preponderance of the evidence. If an operator reasonably, but erroneously, believes in good faith
that the cited conduct is the safest method of compliance with the applicable regulation, its
actions will not constitute aggravated conduct that exceeds ordinary negligence. Jim Walter
Res., Inc. v. Sec’y of Labor, 103 F.3d 1020, 1024 (D.C. Cir. 1997).
b. Application of the Law
Having duly considered each unwarrantable failure factor below, I find that the Secretary
has failed to establish that the violation resulted from an unwarrantable failure to comply with
section 75.400. While the violation was extensive and posed a moderate degree of danger, the
condition did not exist for a lengthy period of time in context, and the operator had no
knowledge of the hazardous condition. The accumulations were not obvious, absent
dismantlement of the equipment, except for a small amount of oil that was visible from the
outside. Furthermore, Respondent provided contemporaneous documentation to refute an
important part of the inspector’s rationale for unwarrantable failure. R. Ex. 7, p. 6. In addition,
although on notice of an ongoing problem regarding accumulations, Respondent undertook some
reasonable efforts to abate the violation prior to the issuance of the citation.

35 FMSHRC Page 3192

i. The Extent of the Violative Condition
The Commission has viewed the extent of a violative condition as an important element
in the unwarrantable failure analysis. IO Coal Co., 31 FMSHRC 1346, 1351-52 (Dec. 2009).
This factor considers the scope or magnitude of the violation. See Eastern Associated Coal, 32
FMSHRC 1189, 1195, citing Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992);
Quinland Coals, Inc., 10 FMSHRC 705, 708 (June 1988).
The record establishes that the accumulation violation on the scoop was extensive. The
accumulations of coal dust were ¾ to 2 ½ inches deep and existed in several sections of the
scoop, including the floor of the operator’s compartment, the top of the main controller
compartment, and inside the pump motor compartment. Tr. at 292-93. In addition, a large
portion of the front body of the scoop was covered in a residue of oil and coal fines. Id. The
extensiveness factor is somewhat mitigated by the short time it took miners to clean up the
accumulations. It took just minutes to remove the covers from the scoop and a single miner
could remove the accumulated coal dust and oil by washing the machine. Tr. at 294, 379.
On balance, I find that the extensiveness factor weighs slightly in favor of an
unwarrantable failure finding.
ii. The Duration of the Accumulation Violation
The Commission has emphasized that the duration of the violative condition is a
necessary element of the unwarrantable failure analysis. See, e.g., Windsor Coal Co., 21
FMSHRC 997, 1001-04 (Sept. 1999) (remanding for consideration of duration of cited
conditions).
Weekly examination reports state that scoop 516 was in need of washing on November
17 and 19 and that the condition was reported to mine management. P. Ex. 5. Roberts
interpreted the report’s omission of any action to address the dirty scoop as evidence that the
condition lasted for seven days. Tr. at 328. Respondent, however, provided internal production
reports showing that the scoop was cleaned on November 20, four days prior to the issuance of
the citation. R. Ex. 7. This would indicate that the coal had been accumulating for no more than
four days. Respondent was only required to examine the inner-workings of the scoop once per
week pursuant to MSHA regulations. 30 C.F.R. §75.512. Accordingly, in this context, I find
that a period of up to four days was not a significant length of time, and the duration factor
weighs against finding an unwarrantable failure. See Tr. at 294, 353.
iii. Whether Respondent Was Placed on Notice that Greater
Efforts Were Necessary For Compliance with Section
75.400
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. IO Coal, supra, 31 FMSHRC at 1353-55; Amax Coal, supra, 19
FMSHRC at 851; see also Consolidation Coal, supra, 23 FMSHRC at 595. The purpose of

35 FMSHRC Page 3193

evaluating the number of past violations of a particular standard is to determine the degree to
which those violations have “engendered in the operator a heightened awareness of a serious . . .
problem.” San Juan Coal Co., 29 FMSHRC 125, 131 (Mar. 2007), citing Mid-Continent Res.,
Inc., 16 FMSHRC 1226, 1232 (June 1994). The Commission has also recognized that “past
discussions with MSHA” about a problem "serve to put an operator on heightened scrutiny that it
must increase its efforts to comply with the standard." Id., citing Consolidation Coal, 23
FMSHRC at 595.
The record establishes that Respondent was put on notice that greater efforts were
necessary to comply with section 75.400. Respondent had a significant recent and past history of
75.400 violations. Roberts testified that Respondent had received more than forty citations since
the start of the inspection, and about 140 to 150 section 75.400 citations were issued in prior year
and a half. Tr. at 312-13; see also P. Ex. 8 (showing violation history).
As a result of such multiple section 75.400 citations, Roberts discussed the need for
greater emphasis on the general cleanup program with mine management and safety personnel.
Tr. at 315. Furthermore, Roberts testified that two other inspectors had discussions with
Respondent about accumulations on electrical equipment just five days prior to the issuance of
the instant citation. Tr. at 315.16 Thereafter, Roberts provided Respondent with an electrical
inspection policy manual, which provided guidance on how to conduct an adequate examination
of electrical equipment. Tr. at 324-25.
I find that Respondent was placed on notice that greater efforts were necessary for
compliance with Section 75.400, particularly in light of Respondent's prior history of violations
and MSHA's warnings regarding Respondent's ongoing 75.400 problems, which specifically
included accumulations on electrical equipment. Accordingly, this factor supports an
unwarrantable failure finding.
iv. Whether the Violation Posed a High Degree of Danger
The high degree of danger posed by a violation supports an unwarrantable failure finding.
See, e.g., BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quinland Coals,
supra, 10 FMSHRC at 709. For purposes of evaluating whether violative conditions pose a high
degree of danger, it is often necessary to consider the same facts already considered as part of the
gravity evaluation in an S&S analysis. See San Juan Coal, supra, 29 FMSHRC at 125, 132-33.
As discussed in detail above in the S&S analysis, the accumulations on the scoop
were reasonably likely to cause a serious injury to miners in the area. Specifically, I
found that the arcing and sparking from the PTO cable fouling against the drive shaft
16

Respondent argues that the Secretary failed to prove that two other MSHA inspectors
discussed with Respondent the importance of cleaning electrical equipment five days prior to the
citation. R. Br. at 25; Tr. at 315-20. Although, the notes by inspector Smoot are almost
impossible to decipher, inspector Church’s notes clearly indicate that inspectors discussed the
“conditions of [electrical] equipment” and “the serious number 75-400 citations of [electrical]
equipment.” P. Ex. 7; see also Tr. at 317.

35 FMSHRC Page 3194

would have ignited the oil-saturated coal accumulations on the scoop, if left unabated
during continued normal mining operations. The danger posed by the ignition, however,
is mitigated by the fact that the ¾ to two inches of coal dust likely would not create
enough smoke to cause fatal or permanently disabling injuries and that only one miner
would likely be affected. See P. Ex. 1 (Roberts believed that the hazard would only
reasonably result in result in “lost workdays or restricted duty” to one miner). Further, as
the fire would be contained in sealed compartments, the risk of propagation is
diminished. Accordingly, I conclude that the moderate degree of danger posed by the
violation is neutral in the unwarrantable failure analysis.
v. The Respondent’s Knowledge of the Existence of the
Violation and Whether the Violation was Obvious
The Commission has held that the knowledge factor in an unwarrantable failure analysis
is established by “the failure of an operator to abate a violation [that] he knew or should have
known existed.” Emery Mining Corp., 9 FMSHRC 1997, 2002-03 (Dec. 1987); see also, Senate
Subcommittee on Labor, Committee on Labor and Public Welfare, 94th Cong., 1st Sess., Part I
Legislative History of the Federal Coal Mine Health and Safety Act of 1969, at 1602 (1975)
(“Coal Act Legis. Hist.”).
There is no evidence that Respondent knew of the violative condition prior to the
issuance of the Citation. The condition is not mentioned in pre-shift or on-shift reports and there
is no testimony establishing the Respondent’s advance notice of the violative condition.
Similarly, the record does not support a finding that Respondent should have known of the
accumulation, or that the condition was obvious. As Roberts noted, the inner-workings of the
scoop were required to be examined only once a week pursuant to MSHA’s interpretation of
section 75.512. Tr. at 294. To properly examine the electrical components, a mechanic and at
least one other miner would have to remove the heavy top covers that were bolted to the
machine. Tr. at 294, 379. Although some amount of oil could be observed while the covers
were on the scoop, it was not until the covers were removed that the accumulations were obvious
and “basically staring you right in the face.” Tr. at 323, 366. Roberts did not find any
observable oil leaks during his inspection and failed to quantify the amount visible without
removing the covers. Tr. at 358. As such, I cannot determine if the visible oil was plentiful
enough to constitute an accumulation under section 75.400 or if the oil was the result of minor,
permissible spillage incurred while refilling the hydraulic oil reservoir.
As the Secretary has failed to demonstrate that Respondent knew or should have known
about the existence of the violation, these factors weigh against an unwarrantable failure finding.
vi. The Respondent’s Efforts in Abating the Violation
An operator’s efforts to abate a violation are relevant to an unwarrantable failure
determination. Thus, where an operator has been placed on notice of a problem, the level of
priority that the operator places on abatement of the problem is relevant. IO Coal, supra, 31
FMSHRC at 1356, citing Enlow Fork Mining Co., 19 FMSHRC 5, 17 (Jan. 1997). The focus is
on abatement efforts made prior to issuance of the citation or order. Id.

35 FMSHRC Page 3195

As set forth above, Respondent was placed on notice that greater efforts were necessary
to comply with Section 75.400. I find that Respondent undertook some reasonable efforts to
abate the violation prior to the issuance of the citation because the scoop was washed on
November 20, four days prior to the citation. Accordingly, I conclude that this factor weighs
against an unwarrantable failure finding.
vii. Conclusion Regarding Unwarrantable Failure Factors
In sum, after considering the relevant Commission factors, I conclude that the violation in
Citation No. 6667482 was not the result of an unwarrantable failure to comply with section
75.400. The violation was extensive, but persisted for only a short amount of time relative to the
MSHA mandated inspection schedule. Respondent did not have knowledge of the violation. In
addition, the condition was not particularly obvious given the difficulty accessing the innerworkings of the scoop. Respondent was placed on notice that greater efforts were necessary to
achieve compliance with Section 75.400 and the condition was moderately dangerous. Perhaps
most importantly, however, Respondent was able to adduce evidence at hearing showing that
inspector Roberts’ unwarrantable failure analysis was based, at least in part, on the erroneous
assumption that the condition was not addressed when reported to management in pre-shift
reports.
3. Negligence
After close examination of the record, I find that Respondent’s negligence should be
reduced from “high” to “moderate.” As stated above, I find that Respondent undertook
reasonable efforts to address the violation prior to the issuance of the Citation because the scoop
was washed on November 20, four days prior to issuance of the Citation. Accordingly, this
mitigating factor supports a moderate negligence finding.
VII. Order No. 6668437
A. Findings of Fact
On November 29, 2007, MSHA inspector, Danny Ramsey, conducted a ventilation
survey of the 2C1 worked-out area.17 Safety staff member, Bob Clarida, accompanied Ramsey
during the inspection. Tr. at 198-200.
Ramsey took notes while conducting the inspection. P. Ex. 11. He issued 104(d)(1)
Order No. 6668437, which alleged a violation of 30 C.F.R. § 75.364(a)(1) for inadequate weekly

17

Ramsey has been in the underground coal mining industry for over thirty-nine years
and is currently employed as a roof control specialist in MSHA’s Benton, Illinois field office.
His duties include review of mine roof control and ventilation plans, and conducting on-site
inspections. Prior to working for MSHA, Ramsey held various positions of authority at large
underground coal mines. Tr. at 194-97.

35 FMSHRC Page 3196

examinations in the worked-out area of deepest penetration. Tr. at 198-99; P. Ex. 10. The Order
states:
Inadequate weekly examinations have been performed in the 2Cl
worked-out area in that the deepest penetration of the worked out
area has not been examined since 6/29/07. Water, up to four feet in
depth is present across #1 to #6 entries from the face to 3 crosscuts
outby and prohibits examinations to the deepest point of the
worked-out panel. Methane in excess of 5% is present in entries
#1 and #2 and an oxygen-deficient atmosphere of 18.5% is also
present in entry #1. The certification board has been progressively
moved outby as the water has accumulated. The original
certification board located at the deepest penetration of the
worked-out area is dated 06/29/07.
P. Ex. 10.
During the inspection, Ramsey and Clarida started at the mouth of the worked-out area
and traveled to the evaluation points (EPs), the locations at which methane and oxygen readings
were required to be taken under the standard. Tr. at 200. The first EP that they encountered was
at the upper left part of the area. They then went to the right side of the area, first in Entry #6
and then Entry #1. Id. Once they arrived at Entry #1, Ramsey used his handheld Solaris device
to detect “nine-tenths percent of methane” in that entry. Tr. at 201.
Ramsey observed a date, time, and initials (DTI) board, about thirty to forty feet inby
from where he detected the methane. Tr. at 201. Mine examiners use DTI boards to certify that
they have examined an area. Tr. at 202. Ramsey testified that examiners typically conduct their
tests in close proximity to the DTI boards. Id.
Proceeding inby along Entry #1, Ramsey encountered progressively deeper water and
progressively higher methane concentrations. He detected 1.5% methane about half-way
between the outby DTI board and the face. At this point, Ramsey was in four feet of water that
nearly reached his thighs. Tr. at 204; P. Ex. 13. Once Ramsey and Clarida reached the face,
Ramsey’s Solaris detected explosive levels of methane equaling or exceeding 5 percent%. Tr. at
205. Ramsey collected two atmospheric samples at the face. Later lab tests revealed an
explosive mixture of 5.880% methane and 19.25% oxygen. Tr. at 206-208. By contrast, Clarida
testified that his spotter only identified 3.4% methane and 19.4% oxygen. Tr. at 245; R. Ex. 5.
Clarida attributed the discrepancy to the fact that the methane not equally dispersed or the fact
that Ramsey had taken a sample closer to the roof. Id. at 245-46.
Ramsey observed a second DTI board at the area of deepest penetration on the right side
of the 2C1 mined-out area. Tr. at 206; P. Ex. 13. According to the second DTI board, this area
was last examined on June 29, 2007. Tr. at 212. Ramsey observed that the outby DTI board was
300 feet away from the inby DTI board, where the examinations were required to be conducted.
Tr. at 214.

35 FMSHRC Page 3197

Following the issuance of the Order, Clarida spoke with Brad Pate, an hourly examiner
and the sole miner tasked with performing weekly examinations of the methane levels at the 2C1
area. Tr. at 259-60. Clarida testified that, without consulting management, Pate determined that
he did not have to travel all the way to the face on account of the water accumulations. Id.
Clarida believed that Pate “didn’t think he was doing anything wrong” by testing the methane
levels at the outby location. Tr. at 260.
According to Ramsey, five months or twenty-one weeks had transpired between the last
proper examination of the 2C1 worked-out area and the time Ramsey issued Order No. 6668437.
Rasmey concluded that Pate conducted at least twenty weekly examinations of the 2C1 area at
the incorrect, unapproved, and non-compliant location. Tr. at 214.
Ramsey determined that the explosive concentration of methane and the presence of
possible ignition sources in the form of battery-powered vehicles or roof falls made it reasonably
likely that an explosion would occur. Tr. at 216-17. He testified that “an examiner traveling
through . . . with battery-operated vehicles doing the examinations, and potential roof falls . . .
could cause an ignition source.” Tr. at 216. Ramsey also testified that in the past he had
personally observed many roof falls causing sparks during the retreat mining process. He
determined that the sparks would constitute an ignition source as well. Tr. at 216-17.
In the three days prior to the issuance of the Order, Ramsey took part in three meetings
with mine management to discuss inadequate workplace examinations. On November 26, 2007,
Ramsey met with Bob Hill, shift mine manager. Tr. at 219-20; P. Ex. 11. The next day, Ramsey
spoke to Hill and James Ward, mine general manager. The day after, Ramsey met with Ward
and Clarida. Id. Ramsey admitted, however, that the meetings did not address weekly exams
performed under section 75.364, the cited standard. Tr. at 226-27. Rather, the meetings
addressed Respondent’s inadequate workplace examinations generally. Id.
At the time of inspection, several curtains had been knocked down in Entry No. 1. Tr.
222. Clarida testified that this caused the air to be short-circuited without traveling all the way
around the faces. Tr. at 238. Instead, Clarida claimed that the air traveled straight across into
Entry No. 1. Id. Clarida testified that the area inby the location where the air entered Entry No.
1 was not ventilated adequately, although the area outby that point was ventilated adequately. Id.
Clarida testified that if the curtains had been up, the airflow would have traveled around the
faces towards the inby DTI board where the tests were supposed to be conducted, and the
methane levels in that location would have been proper. Tr. at 226-27; R. Ex. 5; P. Ex. 13 (maps
showing path of ventilation with curtains down versus curtains up). Clarida further testified that
he observed the curtains that had been knocked down, and he was preparing to re-hang them to
dilute the methane, until Ramsey instructed him not to do so. Tr. 247-48.
Ramsey testified that a curtain was down in the water, making it unlikely that Respondent
would have found it. Ward and Clarida admitted that they had no idea how long the curtain had
been down. Tr. at 253-54, 258. Ward asserted that after he hung curtains back up, the methane
levels in the area of deepest penetration were proper. Tr. at 258.

35 FMSHRC Page 3198

Ramsey designated the gravity of the violation as “reasonably likely” to result in “fatal”
injuries to one person, and thus S&S. He designated Respondent’s negligence as “high.” He
further designated the violation as an unwarrantable failure. P. Ex. 10.
B. Disposition
1. Relevant Legal Principles
Section 75.364(a)(1) requires mine examiners to conduct weekly examinations in the
worked-out areas of deepest penetration. The purpose of the standard is to ensure that the mine’s
ventilation is working properly to prevent methane and other noxious gases from accumulating,
as well as to prevent oxygen levels from becoming too low.
Section 75.364(a)(1) provides:
At least every 7 days, a certified person shall examine unsealed
worked-out areas where no pillars have been recovered by
traveling to the area of deepest penetration; measuring methane
and oxygen concentrations and air quantities and making tests to
determine if the air is moving in the proper direction in the area.
The locations of measurement points where tests and
measurements will be performed shall be included in the mine
ventilation plan and shall be adequate in number and location to
assure ventilation and air quality in the area. Air quantity
measurements shall also be made where the air enters and leaves
the worked-out area. An alternative method of evaluating the
ventilation of the area may be approved in the ventilation plan.
2. S&S
I find the Secretary has not established that the violation is S&S. Respondent concedes
that a violation of section 75.364(a)(1) has occurred because it conducted inadequate weekly
examinations in the worked-out area of deepest penetration. The Secretary has also satisfied the
second prong of Mathies because the violation contributed to a discrete explosive hazard.
The Secretary, however, has failed to establish the third Mathies element because he has
not shown that the violation was reasonably likely to cause an explosion or serious injury. The
Commission has long held that where there is a violative condition that poses a risk of fire or
explosion, a finding of S&S requires a demonstration of a “confluence of factors,” such as the
presence of a fuel source in proximity to a potential ignition source, to establish a reasonable
likelihood that ignitions or explosions will occur. See, e.g., Texasgulf, Inc., 10 FMSHRC 498,
501 (Apr. 1988).
Here, the Secretary has alleged two possible sources of ignition: roof falls and the use of
energized vehicles. First, the Secretary argues that the battery-operated vehicle, which Ramsey
testified was used to access the area, could constitute an ignition source if maintained

35 FMSHRC Page 3199

improperly. Tr. at 216; P. Br. at 31. I find this to be, at best, an unlikely scenario. To reach the
area of deepest penetration, where the methane levels had reached explosive levels, Ramsey and
Clarida waded through four feet of water. Tr. at 204. It is extremely unlikely that a miner would
be able to drive an electric vehicle through this depth of water. Tr. at 222 (Ramsey testified that
the vehicles could not make it through the water.). Even if it were possible to do so, the
Secretary’s case is premised on the fact that miners, and presumably their vehicles, were not
entering the area to conduct required inspections. As this area of the mine was inactive and
primarily accessed only for examination and inspection, it is unlikely that a battery-operated
vehicle would access the area where the methane had reached explosive concentrations.
Even if the battery-operated vehicle reached the area with an explosive concentration of
methane, the Secretary has not shown that the battery-operated vehicles were reasonably likely to
ignite the methane.18 The Secretary did not offer any evidence that a permissive, batteryoperated vehicle could ignite the methane if maintained in proper condition. Further, although
Ramsey testified that the mine had received citations for impermissible vehicles in the past, the
vehicle that was used to access the area on the day of the inspection was maintained in
permissible condition. Tr. at 222, 235. The Commission has remanded an ALJ’s S&S finding
where, as in this case, the electric machinery alleged to be an ignition source was maintained in
permissible condition and no evidence was proffered to show that the electric equipment was
capable of getting hot enough during normal use to cause ignition. Amax Coal Co., 18 FMSHRC
1355, 1358 (Aug. 1996).
According to MSHA’s training material, explosive methane-air mixtures of 5-15%
methane and at least 12% oxygen need either a very small spark (.3 millijoules) or temperatures
exceeding 1165 degrees Fahrenheit to ignite. R. Ex. 4 at 23. The Secretary does not allege that
the vehicles used to access the area were impermissibly creating sparks or excessive
temperatures, but rather that over the service life of the vehicle, problems could arise that would
cause such conditions. P. Br. at 31. The Commission, however, has found that “[a] finding that
the passage of time increases the likelihood of an injury-producing event cannot, standing alone,
satisfy the requirements of either the substantial evidence test or the third element of Mathies.”
Amax Coal Co., 18 FMSHRC 1355, 1359 (Aug. 1996). Accordingly, I decline to find that the
battery-operated vehicles were an ignition source.
Second, the Secretary argues that the area of high methane concentration is prone to roof
falls, which can produce sparks capable of igniting methane. P. Br. at 31; Tr. at 216-17.
18

I discount the Secretary’s argument that, assuming continued mining operations, the
methane would have continue to build up until it reached active areas or areas where vehicles
normally travel. Order No. 6668437 was issued for inadequate inspections, not for the presence
of methane. Aside from Ramsey’s testimony that the area outby was adequately ventilated and
possibly capable of diluting the gas, it is undisputed that Respondent was regularly checking
methane levels approximately 300 feet from the area of deepest penetration. Tr. at 214, 238.
Had the concentration of methane continued to increase, it is reasonable to infer that the
inspection, albeit inadequate, would serve its purpose and alert Respondent to the methane
buildup.

35 FMSHRC Page 3200

Respondent points out that MSHA’s training materials explicitly state that, while possible, such
ignitions are unlikely. R. Br. at 32; R. Ex. 4 at 23. The training materials further state that even
in carefully controlled experiments of roof fall frictional ignitions, the Bureau of Mines was only
able to ignite methane-air mixtures in about 8% of the trials. R. Ex. 4 at 23. The study
concludes that the most likely potential for ignition of methane is when the roof contains large
amounts of quartz, which can release a piezoelectric discharge during a roof fall. Id.19
The roof at Willow Lake is made of shale, not quartz-rich sandstone. R. Ex. 4 at 24; Tr.
at 233. Although no testimony regarding the exact quantity of quartz in the Willow Lake mine
roof was presented at hearing, Ramsey conceded that roofs composed of shale are less likely to
create sparking. Tr. at 233-234. The Commission has held that where the Secretary is unable to
provide “any credible or probative evidentiary support for any conclusion that ready ignition
sources capable of propagating an explosion of . . . methane . . . [are] present” a judge may
reasonably conclude that a roof fall does not constitute an ignition source. Island Creek Coal
Co., 15 FMSHRC 339 (Mar. 1993) (upholding ALJ’s decision that sandstone roof did not
constitute an ignition source where the operator established that the roof above a methane
concentration did not contain large amounts of quartzite); see also Consol of Kentucky, Inc., 30
FMSHRC 1, 7 (Jan. 2008) (ALJ) (crediting the aforementioned MSHA training materials and
finding that the ignition of methane by a roof fall or by lightning “was, at best, a theoretical
possibility”); Cumberland Coal Res., LP, 27 FMSHRC 295, 319-20 (Mar. 2005) (ALJ) (where
the inspector originally alleged roof falls as a possible ignition source, “virtually all of the
witnesses, including [the inspector], testified, consistent with . . . MSHA training materials, that
a roof fall is an ‘unlikely’ source of ignition”).
While Ramsey testified that he had seen sparking in roof falls during retreat mining, he
did not identify what had caused the sparks that he observed. Tr. at 217. Ramsey did, however,
suggest that the mine where he had observed sparking may not have had a shale roof like the one
at Willow Lake. Tr. at 233. As such, Ramsey did not establish a reasonable basis for his belief
that the roof at the location of the methane concentrations could cause sparking. I further note
that Ramsey was not admitted as an expert, has no formal scientific or engineering education,
and admitted that his opinion was not informed by MSHA research or scientific testing. Tr. at
233; cf., Island Creek Coal Co., 13 FMSHRC 592, (Apr. 1991) (ALJ) (the Secretary and
Respondent offered expert witnesses with backgrounds in mining engineering to testify about the
possibility of roof falls igniting methane in an underground coal mine). Accordingly, I give
Ramsey’s testimony on this issue little weight.
Consistent with Commission precedent and the Bureau of Mines study endorsed by
MSHA’s training materials, I am not convinced that Ramsey’s testimony is enough to support

19

I decline to give any significant weight to Ramsey’s hypothesis that roof bolts in the
shale roof might cause sparking. See Tr. at 233. I also do not give much weight to Clarida’s
testimony that the dampness of the area would prevent a roof fall from igniting the methane. See
Tr. at 259. Neither argument was fleshed out fully at hearing, and MSHA’s training materials
did not mention roof bolts or the presence of dampness or water as important aggravating or
mitigating factors.

35 FMSHRC Page 3201

the general proposition that all roof falls are reasonably likely to cause heat or sparking sufficient
to ignite methane. Accordingly, I find that Order No. 6668437 is not S&S.
3. Unwarrantable Failure
a. Application of the Law
Having duly considered each unwarrantable failure factor below, I find that the Secretary
established by a preponderance of the evidence that Respondent exhibited a “serious lack of
reasonable care” by failing to conduct weekly examinations in the area of deepest penetration.
The violation was obvious, extensive, and lengthy in duration. Respondent also had knowledge
of the violation and undertook no reasonable effort to eliminate it.
i. The Extent of the Violative Conduct
The violation was extensive because there was a large distance between the location
where Pate was conducting weekly inspections and the area of deepest penetration. The outby
DTI board was progressively moved back, approximately 3 to 3 ½ crosscuts or 200 to 300 feet
away, from the location where the examinations should have taken place. Tr. at 203-06, 213-14;
P. Ex. 13.
The extensiveness factor is slightly mitigated by the relative ease by which the methane
problem was corrected. After ventilation was restored to the face, the methane buildup was
quickly dispersed. Clarida testified that after he re-hung the fallen curtain and several additional
curtains, another test of the methane levels at the area of deepest penetration found a
concentration of methane that ranged between .6% and .7%. Tr. at 257-58.
On balance, I find that the extensiveness factor weighs slightly in favor of an
unwarrantable failure finding.
ii. The Duration of the Violative Conduct
The violation persisted for a lengthy period of time. The DTI boards indicated that the
2C1 area had not been examined at the proper location for more than five months. Tr. at 219,
253. Section 75.364(a)(1) requires worked-out areas to be examined weekly. Therefore, at least
twenty examinations were performed at the wrong location. P. Br. at 33. Thus, the duration of
the violation weighs strongly in favor of an unwarrantable failure.
iii. Whether Respondent Was Placed on Notice that Greater
Efforts Were Necessary For Compliance with Section
75.364(a)(1)
Respondent was not given adequate notice that additional compliance efforts were
necessary to comply with the standard. Although Ramsey had three meetings with Respondent’s
management addressing inadequate examinations in the three days prior to the Order, these
meetings addressed examinations generally. Tr. at 219-20, P. Ex. 11. While the Commission

35 FMSHRC Page 3202

has found that past violations may be evidence that an operation was placed on notice that
greater efforts were necessary to achieve compliance, such repeated violations must be similar in
nature. IO Coal, supra, 31 FMSHRC at 1353-55; Amax Coal, supra, 19 FMSHRC at 851; see
also Consolidation Coal, supra, 23 FMSHRC at 595.
The past violations addressed during the meetings with MSHA did not address violations
of section 75.364(a)(1). In fact, Respondent had only received one minor citation under this
standard in the prior fifteen months for which a penalty of $150 was proposed. See History of
Violations for Big Ridge Inc., MSHA, MINE DATA RETRIEVAL SYSTEM, (search “MSHA Mine
ID” for “1103054”; then select “VPID” radio button select “Get Report” button; then enter date
“11/29/2007” and select “Get Info” button). Although past violations do not necessarily have to
be of the same standard to put the operator on notice, the Secretary has not offered any evidence
of the content of the meetings with mine management other than to broadly characterize the
meetings as dealing with inadequate workplace examinations. P. Br. at 33. A meeting to discuss
inadequate examination could cover anything from failing to conduct weekly checks on electrical
equipment to a miner failing to conduct an on-shift examination of a feeder belt. Furthermore,
there is no evidence that Pate was in any way involved in the workplace examinations addressed
in the meetings.
Given the wide range of issues that could have been discussed, I cannot assume on the
record before me that the meetings adequately put Respondent on notice that greater efforts were
necessary for compliance with section 75.364(a)(1). Accordingly, I find this factor weighs
against a finding of unwarrantable failure.
iv. Whether the Violation Posed a High Degree of Danger
As discussed in detail above in the S&S analysis, Respondent’s failure to test for methane
at the area of deepest penetration did not pose a high degree of danger. While the methane and
oxygen concentrations were at explosive levels, there was no identifiable ignition source which
could reasonably be expected to ignite the gas. Accordingly, I conclude this factor weighs
against an unwarrantable failure finding.
v. The Respondent’s Knowledge of the Existence of the
Violation and Whether the Violation was Obvious
Respondent had knowledge of the violation and it was obvious. Pate, the only mine
examiner tasked with conducting weekly examinations of the 2C1 worked-out area, was an agent
of Respondent. Tr. at 259; 265. Therefore, Pate’s conduct and knowledge may be imputed to
Respondent for unwarrantable failure purposes. Rochester & Pittsburgh Coal Co., 13 FMSHRC
189, 194 (1991).
As noted above, the failure to perform the requisite examination at the appropriate
location existed for over five months. The 2C1 worked-out area was examined at the incorrect
location at least twenty times. Tr. at 259-60.

35 FMSHRC Page 3203

Furthermore, it was obvious that the examinations were not being conducted at the area
of deepest penetration in accordance with the standard and the mine’s ventilation plan. Instead,
examinations were performed approximately 200 to 300 feet from the appropriate examination
area. Tr. at 203-06, 213-14; P. Ex. 13. When asked how he could tell that the outby DTI board
was not in the area of deepest penetration, Ramsey stated, “[w]ell, I could look up the entry and
[could] see that it wasn’t, for one thing, as far as my light would shine, and then it was at the
water’s edge that made me believe they were moving the board out as the water got deeper.” Tr.
at 220.
At hearing, Ward testified that Pate never told him that he conducted examinations in the
wrong location. Tr. at 260. Even if true, as Respondent’s agent, Pate’s actions and knowledge
regarding the existence of the violation are imputed to Respondent. Rochester & Pittsburgh
Coal Co., supra, 13 FMSHRC at 194. Therefore, I conclude that Respondent had knowledge of
an obvious violation and these factors support an unwarrantable failure finding.
vi. The Respondent’s Efforts in Abating the Violation
Since Respondent was not placed on notice that greater efforts were needed to comply
with workplace examination requirements, I find this factor to be neutral in the unwarrantable
failure analysis.
vii. Conclusion Regarding Unwarrantable Failure Factors
In sum, after considering the relevant Commission factors, I conclude that the violation in
Order No. 6668437 was the result of Respondent’s unwarrantable failure to comply with section
75.364(a)(1). Aggravated inattention to an obvious, recurring problem was present. The record
establishes that Respondent failed to conduct a weekly examination of the worked-out area at a
proper location for over five months. The violation was extensive, obvious, and Respondent
knew of its existence. Accordingly, I affirm the unwarrantable failure designation for Order No.
6668437.
4. Negligence
I find that Respondent’s negligence was higher than alleged by the Secretary. Although
the Secretary has designated the negligence as high, it is clear from the record before me that the
operator’s conduct was much more than ordinary negligence, exhibiting the absence of the
slightest degree of care. Pate, clearly acting as an agent of the operator, failed to examine the
2C1 area at the area of deepest penetration for more than five months. Tr. at 219, 253. Ward
testified that when he asked Pate why he had stopped conducting examinations at the correct
location, Pate responded that he had done so to avoid having to drudge through the accumulated
water and get wet. Tr. at 260. Thus, Pate deliberately substituted his desire to avoid a minor
discomfort for the clear and unambiguous meaning of section 75.364(a)(1), a mandatory safety
standard. While Pate may not have informed management of his decision to move the location
of the mandated examination, the fact that Respondent maintained little or no supervision over
its agents is apparent from the five months during which this violative conduct continued. See
id. Accordingly, negligence is modified from “high” to “reckless disregard.”

35 FMSHRC Page 3204

VIII. Civil Penalty
A. Relevant Legal Principles
Under section 110(i) of the Act, “the Commission shall have authority to assess all civil
penalties provided in this Act.” 30 C.F.R. § 820(i). Although the Secretary issues citation and
orders under the Act and proposes civil penalties, it is the Commission that is responsible for
assessing civil penalties and providing other appropriate relief. Sellersburg Stone Co., 5
FMSHRC 287, 290-91 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984). The Commission’s
assessment of penalties is a de novo determination based on the six statutory criteria specified in
section 110(i) of the Act. Section 110(i) of the Act requires the Commission to assess civil
monetary penalties considering: (1) the operator’s history of previous violations, (2) the size of
the business, (3) the level of negligence by the operator, (4) the effect on the operator’s ability to
continue in business, (5) the gravity of the violation, and (6) demonstrated good faith in
attempting to achieve rapid compliance after notification of the violation. See Douglas R.
Rushford Trucking, 22 FMSHRC 598 (May 2000)
In exercising this discretion, the Commission has reiterated that a judge is not bound by
the penalty recommended by the Secretary. Spartan Mining Co., 30 FMSHRC 699, 723 (Aug.
2008). In addition, the de novo assessment of civil penalties 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). However, when a penalty determination “substantially
diverge[s] from those originally proposed, it behooves the. . . judge[] to provide a sufficient
explanation of the bases underlying the penalties assessed. . . .” Spartan Mining, supra, 30
FMSHRC at 699. Otherwise, without an explanation for such a divergence, the “credibility of
the administrative scheme providing for the increase or lowering of penalties after contest may
be jeopardized by an appearance of arbitrariness.” Sellersburg, supra, 5 FMSHRC at 293.
The Secretary has proposed a penalty of $40,180.00 for Citation No. 6679907,
$45,708.00 for Citation No. 6683969, $44,600.00 for Citation No. 6667482, and $60,000.00 for
Order No. 6668437. With the exception of Citation No. 6683969, the Secretary has not provided
the Court with documentation showing how each proposed penalty was calculated. Further, the
Secretary did not provide the Narrative Findings for Special Assessment nor was any testimony
adduced at hearing or arguments made in post-hearing briefs on the appropriateness of the
specially assessed penalties.
Pursuant to Commission Rule 28(b)(2), the Secretary is required to include in the Petition
for Assessment of Civil Penalty “a short and plain statement of supporting reasons based on the
criteria for penalty assessment set forth in section 110(i) of the Act.” The Petitions that the
Secretary files, however, are form documents that are essentially the same in every case. In lieu
of filing a Petition with the prescribed explanations, the Secretary customarily attaches the
information as Exhibit A to the Petition. For “normally assessed” proposed penalties, the
Secretary will attach a copy of each citation/order and a printout showing how the proposed
penalty was calculated in accordance with 30 C.F.R § 100.3. For “specially assessed” proposed
penalties, the Secretary will also include the Narrative Findings for a Special Assessment, which
set forth the reasoning for a special assessment.

35 FMSHRC Page 3205

After reviewing the proposed penalties against the undersigned’s calculations under Part
100, it would appear that Citation Nos. 6679907 and 6683969 have been proposed under the
normal assessment formula set forth in section 100.3, while Citation No. 6667482 and Order No.
6668437 appear to have been specially assessed. Although a specially assessed penalty may
have been appropriate for Citation No. 6667482 and Order No. 6668437 given the danger
allegedly posed by the hazards, the Secretary has failed to provide any evidence concerning the
justification for the special assessments. In these circumstances, I decline to assess a penalty
consistent with the special assessment formula. See generally, MSHA, Special Assessment
Guidelines (2011), www.msha.gov/PROGRAMS/assess/SpecialAssess/
SpecialAssessments2011.pdf.
B. Applying the Section 110(i) Criteria
The parties have stipulated that for the purposes of accessing a penalty, Respondent is a
large operator and that as such, the penalties proposed by the Secretary will not affect
Respondent’s ability to remain in business. The parties have further stipulated that Respondent
demonstrated good-faith in abating the violations after issuance of the Citations and Order.
Respondent’s history of previous violations is based on the total number of violations and
the number of repeat violations of the same provision of a standard that became final in the
preceding fifteen-month period. 30 C.F.R § 100.3(c). Citation No. 6679907 was issued on
September 19, 2008. In the fifteen months prior, 107 violations of section 75.400 became final,
and Respondent had approximately 0.87 violations per inspection day. See Mine Safety &
Health Admin., Data Retrieval System (“MSHA DRS”), http://www.msha.gov/drs/drshome.htm
(Big Ridge Inc. (“1103054”), VPID (09/19/2008)). Citation No. 6683969 was issued on January
29, 2009. In the fifteen months prior, 153 violations of section 75.400 became final, and
Respondent had approximately 1.05 violations per inspection day. Id. (Big Ridge Inc.
(“1103054”), VPID (01/29/2009). Citation No. 6667482 was issued on November 24, 2007. In
the fifteen months prior, seventy violations of section 75.400 became final, and Respondent had
approximately 0.97 violations per inspection day. Id. (Big Ridge Inc. (“1103054”), VPID
(11/24/2007). Order No. 6668437 was issued on November 29, 2007. In the fifteen months
prior, only one violation of section 75.364(a)(1) became final, and Respondent had
approximately 0.98 violations per inspection day. Id. (Big Ridge Inc. (“1103054”), VPID
(11/29/2007).
Given these facts and the negligence and gravity criteria discussed above, I assess civil
penalties of $9,634.00 for Citation No. 6679907, $45,708.00 for Citation No. 6683969,
$3,143.00 for Citation No. 6667482, and $8,893.00 for Order No. 6668437, thereby resulting in a
total civil penalty of $67,378.00. This penalty assessment is based on the statutory criteria of
section 110(i) and the deterrent purposes of the Act. Cf., Black Beauty Coal Co., 34 FMSHRC
1856 (Aug. 2012).

35 FMSHRC Page 3206

IX. Order
For the reasons set forth above, Citation Nos. 6679907 and 6667482 are MODIFIED to
reduce negligence from “high” to “moderate.” Order No. 6668437 is MODIFIED to reduce the
likelihood of injury or illness from “reasonably likely” to “unlikely,” and to delete the significant
and substantial designation. Order No. 6668437 is further MODIFIED to increase negligence
from “high” to “reckless disregard.” Citation No. 6667482 is further MODIFIED to change the
type of action from a section 104(d)(1) citation to a section 104(a) citation, thus removing the
unwarrantable failure designation. Citation No. 6683969 is AFFIRMED as proposed. It is
further ORDERED that the operator pay a total penalty of $67,378.00 within thirty days of this
Order.
/s/ Thomas P. McCarthy
Thomas P. McCarthy
Administrative Law Judge
Distribution:
Tyler P. McLeod, Esq., and Beau Ellis, Esq., U.S. Department of Labor, Office of the Solicitor,
1999 Broadway, Suite 800, Denver, CO 80202-5708
R. Hank Moore, Esq, and Arthur Wolfson, Esq., Jackson Kelly PLLC, Three Gateway Center,
Suite 1340, 401 Liberty Avenue, Pittsburgh, PA 15222-1000

35 FMSHRC Page 3207

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

September 24, 2013
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
SUNBELT RENTALS, INC., LVR, INC.,
and ROANOKE CEMENT CO., LLC.,
Respondents

:
:
:
:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDINGS
Docket No. VA 2013-291-M
A.C. No. 44-00068-316647 4IN
Docket No. VA 2013-275-M
A.C. No. 44-00068-316648 JOS
Docket No. VA 2013-276-M
A.C. No. 44-00068-316646
Mine: Roanoke Cement Company

DECISION ON CROSS-MOTIONS FOR SUMMARY DECISION
ORDER TO DISMISS
Appearances:

Willow Eden Fort, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee for the Petitioner
Dinah L. Choi, Esq., Ogletree, Deakins, Nash,, Smoak, & Stewart, P.C.,
Washington, D.C., for the Respondent, Roanoke Cement Company, LLC
Zachary J. Cohen, Esq., Lesavoy Butz & Seitz LLC, Allentown,
Pennsylvania, for the Respondent, LVR, Inc.
Matthew R. Korn, Esq., Fisher & Phillips LLP, Columbia, South Carolina,
for the Respondent, Sunbelt Rentals, Inc.

Before:

Judge McCarthy
I.

Statement of the Case

These cases are before me upon petitions for assessment of civil penalties under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). They involve a
nonfatal fall of material accident on January 8, 2013, which resulted in citations against the
production operator (Roanoke Cement), prime contractor (LVR), and subcontractor (Sunbelt)

35 FMSHRC Page 3208

under 30 C.F.R. § 56.18002(a).1 That standard provides that “[a] competent person designated
by the operator shall examine each working place at least once each shift for conditions which
may adversely affect safety and health.”
Before hearing, the Secretary filed a Motion for Partial Summary Decision and
Memorandum of Law in Support (Sec’y Mot.). That motion “seeks findings that (1) the failure
to perform a workplace examination ‘adequate’ to discover latent defects is violative of 30
C.F.R. § 56.18002(a), and that (2) a mine operator and its contractors have a duty to either
perform an adequate workplace examination or ensure that one is performed.” Sec’y Mot. 2.
Respondents Roanoke Cement and LVR filed a Joint Opposition and Cross-Motion for
Summary Decision and Supporting Memorandum of Law (Jt. Opp. and Cross-Mot.). They argue
that a competent person designated by Respondent Sunbelt examined the working place and they
had no duty to perform separate or additional examinations of the same working place or to
ensure that an “adequate” examination was made. Jt. Opp. and Cross-Mot. 2.
Respondent Sunbelt also filed an Opposition and Cross-Motion for Summary Decision
with Supporting Memorandum of Points and Authorities (R. Sunbelt’s Opp and Cross-Mot).
Respondent Sunbelt argues that § 56.18002(a) does not contain an “adequacy” requirement; that
even assuming an adequacy requirement, Sunbelt performed an adequate examination; and that
MSHA failed to provide Sunbelt with fair notice of its regulatory interpretation. R. Sunbelt’s
Opp and Cross-Mot. 2.
The Secretary filed a Response to Sunbelt’s Cross-Motion and Reply to Sunbelt’s
Opposition (Sec’y Resp. 1). Sunbelt filed a Reply (R. Sunbelt’s Reply).
The Secretary filed an untimely Response to Roanoke and LVR’s Cross-Motion and
Reply to their Opposition (Sec’y Resp. 2).2 Even accepting the Secretary’s late filing, it does
not raise a genuine issue of material fact supported by reference to accompanying affidavits or
other verified documents as contemplated by Commission Rule 67.
II.

Issues

The issues as framed by the citations and cross-motions for summary decision are (1)
whether Respondents LVR and Sunbelt violated § 56.18002(a) by failing to perform an
“adequate” workplace examination to discover a “latent” hazard, and (2) whether Respondent
Roanoke Cement violated § 56.18002(a) by failing to perform an independent workplace

1

The Secretary filed a Motion to Consolidate the three dockets. The motion was granted
and a hearing was set for October 21, 2013 in Roanoke, Virginia.
2

Pursuant to Commission Rule 10(d), the Secretary’s response to Respondents’ crossmotions was due on September 6, 2013, but was not filed until September 12, 2013.

35 FMSHRC Page 3209

examination on January 8, 2013. For the reasons that follow, the Secretary's motion for partial
summary decision is DENIED, and Respondents’ cross-motions for summary decision are
GRANTED.
III.

Findings of Fact3

1. Roanoke Cement operates a pre-heat tower comprised of six, vertically-connected
conical vessels or cyclones, which process raw-mix limestone material heated to about 2000
degrees Fahrenheit. Jt. Opp. and Cross-Mot., Ex. A, Oedel Aff. at 2, paras. 4-5.
2. The cyclones are lined with heat-resistant refractory, which insulates and protects the
cyclones from wear and corrosion. Id. at 5.
3. LVR performs annual pre-heat tower maintenance, including refractory work,
pursuant to contract with Roanoke. Id. at 6; Sec'y Mot. 2, Ex. A, p. 3.
4. For several years, LVR has contracted with Sunbelt to erect scaffolding within the
pre-heat tower so that LVR can perform its work. Sec'y Mot. 2, and Ex. A, p. 3 and Ex. B,
Answer 1; Jt. Opp. and Cross-Mot., Ex. A, Oedel Aff. at 2, para. 6.
5. Sunbelt supervisor Kendrick Lavon Davis has personally supervised the annual
scaffold erection projects at Roanoke over the past seven years. R. Sunbelt's Opp. and
Cross-Mot. 4, and Davis Aff. at 2, para. 4.
6. About a week before Sunbelt began erecting scaffolding, Roanoke shut down the
tower for cooling, inspection and cleaning, and used an air wand to clear loose or hanging
material. Jt. Opp. and Cross-Mot., Ex. A, Oedel Aff. at 2-3, para. 8; R. Sunbelt's Opp. and
Cross-Mot. at 3, Davis Aff. at 3, para 8.
7. On January 2, 2013, Roanoke and LVR walked the exterior staircase of the pre-heat
tower and inspected each level by looking through 2' by 2' doors to inspect for damaged
refractory and buildup of loose material. None was observed. Jt. Opp. and Cross-Mot., Ex. A,
Oedel Aff. at 3, para. 10, and Ex. C, Synder Aff. at 2, para. 7; see also R. Sunbelt's Opp. and
Cross-Mot. 3.
8. Roanoke provided site-specific hazard awareness training to LVR and Sunbelt
employees before they arrived on site. Jt. Opp. and Cross-Mot., Ex. A, Oedel Aff. at 5, para.
10.

3

The following facts are uncontested as contemplated by Commission Rule 67 and raise
no genuine issue of material fact.

35 FMSHRC Page 3210

9. On January 7, 2013, Sunbelt employees began scaffolding work inside the tower. Id.
at 6, para. 13; Jt. Opp. and Cross-Mot., Ex. C, Synder Aff. at 2, para. 8.
10. On January 8, 2013, Sunbelt was erecting scaffolding at the sixth level within the
pre-heat tower. Sec'y Mot., Ex. B, pp. 1-2.
11. At the start of the shift, Sunbelt supervisor Davis examined the area where the
Sunbelt crew would be working and visually inspected the interior areas of the pre-heat tower
above the sixth level. R. Sunbelt's Opp. and Cross-Mot. 4, and Davis Aff. at 3, para 8.
12. No physical objects or things were located between the sixth and seventh levels.
Sec'y Mot., Ex. B at 2.
13. Davis did not climb the exterior staircase to the seventh level to peer through the
small door because Sunbelt employees were not working on that level. R. Sunbelt's Opp. and
Cross-Mot. 3-4, and Davis Aff. at 3, para 8.
14. Davis avers that the sixth level provided a better vantage point to examine interior
areas above the sixth level because he could see the entire seventh floor, including the areas
around the door. Id. at 3, para 9.
15. Davis further avers that the conditions that he observed on January 8, 2013 were the
same as those observed in all the other pre-heat towers at Roanoke where Sunbelt had worked
over the past seven years; that he had never seen more than dust or small particulates fall from
the inside of the pre-heat tower; and that any material buildup on the walls was solid, and not
loose or likely to fall. Id. at 3-4, paras. 10-11.
16. Davis and his crew had received all required MSHA training, including hazard
recognition training associated with scaffold erection work. R. Sunbelt's Opp. and Cross-Mot.
3, and Davis Aff. at 2, para 5.
17. Davis was trained to observe potential hazards from falling objects during scaffold
erection. Id.; see also R. Sunbelt's Opp. and Cross-Mot. 4, and Davis Aff. at 4, para. 12, and
Pre-Shift Hazard Assessment Form at Attachment C.
18. Davis recorded his examination on a Pre-Shift Hazard Assessment form, which listed
loose falling objects among potential hazards, and he reviewed potential hazards with his crew.
R. Sunbelt's Opp. and Cross-Mot. 4, and Davis Aff. at 4, para. 12, and Pre-Shift Hazard
Assessment Form at Attachment C.
19. During the January 8, 2013 shift, Sunbelt employee Brian Tyler was struck by
unspecified falling material which fell from above him and knocked him unconscious. Sec'y
Mot. 2, and Ex. A, pp. 1-2, and Ex. B, Answers 2, 3, 9, 17, and 21; see also R. Sunbelt's Opp.
and Cross-Mot. 3 and 5.

35 FMSHRC Page 3211

20. Tyler was wearing all required personal protective equipment, including fall
protection. R. Sunbelt's Opp. and Cross-Mot., Attachment D, MSHA Inspector Nichols'
January 8, 2013 post-accident field notes at 3.
21. Inspector Nichols' notes indicate that when he examined the seventh level from a
two-foot door outside the tower, he observed build-up of material that could have fallen through
a six-foot hole located between the sixth and seventh level above where Tyler was working. R.
Sunbelt's Opp. and Cross-Mot., Attachment D, pp. 5-6.
22. Nichols asked Davis whether he traveled to the door on the seventh level during his
workplace examination on January 8, 2013. Davis told Nichols that he did not travel to the
seventh level. Nichols never asked Davis whether Davis examined the seventh level from inside
the pre-heat tower on the sixth level. R. Sunbelt's Opp. and Cross-Mot. at 4, Davis Aff. at 4,
para. 15. The Secretary failed to provide any affidavit or other verified document from Nichols
that he did so.
23. Nichols issued a citation to Roanoke based on his determination that Roanoke last
performed a workplace examination on December 30, 2012 and did not check the area above the
accident site before turning the area over to the contractor. Sec'y Mot., Ex. C, p. 1.
24. Nichols issued a citation against LVR because . . . Sunbelt Rentals did not do an
adequate work place exam as they never inspected the area above where the employees were
working where there was hanging material." Sec'y Mot., Ex. C, p. 3.
25. Nichols issued a citation against Sunbelt because Sunbelt ". . . did not do an adequate
work place exam in the area they were working as there [was material] hanging overhead that
had not been noted on the workplace exam . . . ." Sec'y Mot., Ex. A, p. 4.
IV.

Legal Principles and Analysis

Commission Rule 67 sets forth the guidelines for granting summary decision. A motion
for summary decision shall be granted only if the entire record, including the pleadings,
depositions, answers to interrogatories, admissions, and affidavits, shows (1) that there is no
genuine issue as to any material fact; and (2) that the moving party is entitled to summary
decision as a matter of law. 29 C.F.R. § 2700.67(b).
A motion shall be accompanied by a memorandum of points and authorities and a
statement of material facts specifying each material fact as to which the party contends there is
no genuine issue, and supported by reference to accompanying affidavits or other verified
documents. 29 C.F.R. § 2700.67(c).
An opposition shall include a memorandum of points and authorities and may be
supported by affidavits or other verified documents. The opposition shall also include a separate
concise statement of each genuine issue of material fact supported by reference to any

35 FMSHRC Page 3212

accompanying affidavits or other verified documents. Material facts identified as not in issue by
the moving party shall be deemed admitted unless controverted by the statement in opposition.
If a party does not respond in opposition, summary decision, if appropriate, shall be entered for
the moving party. 29 C.F.R. § 2700.67(d).
Applying these rules, the Commission has long recognized that summary decision is an
extraordinary procedure analogous to Rule 56 of the Federal Rules of Civil Procedure, under
which “the Supreme Court has indicated that summary judgment is authorized only ‘upon proper
showings of the lack of a genuine, triable issue of material fact.’” Energy West Mining Co., 16
FMSHRC 1414, 1419 (July 1994) (quoting Missouri Gravel Co., 3 FMSHRC 2470, 2471 (Nov.
1981) and Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)); see also Lakeview Rock Prods.,
Inc., 33 FMSHRC 2985, 2987-88 (Dec. 2011) (reiterating the Commission's summary decision
rules). In reviewing a record on summary decision, a judge must evaluate the evidence in the
light most favorable to the party opposing the motion. Hanson Aggregates New York, Inc., 29
FMSHRC 4, 9 (Jan. 2007); see also Poller v. Columbia Broadcasting Sys., Inc., 368 U.S. 464,
473 (1962); United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
In this case, the undisputed material facts set forth above establish that Respondents are
entitled to summary decision as a matter of law.
Commission law holds that the requirements of 30 C.F.R. § 57.18002 are three-fold: (1)
daily workplace examinations are required to identify workplace safety or health hazards; (2) the
examinations must be made by a competent person; and (3) a record must be kept by the
operator. FMC Wyoming Corp., 11 FMSHRC 1622, 1628 (Sept. 1989); Cemex, Inc., 32
FMSHRC 1897, 1903 (Dec. 2010) (ALJ); TXI Port Costa Plant, 22 FMSHRC 1301 (Nov.
2000)(ALJ); Lopke Quarries, Inc., 22 FMSHRC 899, 911-12 (July 2000) (ALJ); Dumbarton
Quarry Assocs., 21 FMSHRC 1132, 1136 (Oct. 1999) (ALJ). Each of these three requirements
were met here. On January 8, 2013, a working place4 examination was done by a competent
person, Davis,5 and a record was kept by Sunbelt.
In his response to Sunbelt’s cross-motion for summary decision, the Secretary argues that
Sunbelt did not perform an “adequate” examination of the 7th level, but does not contend or

4

“Working place” is defined as “any place in or about a mine where work is being
performed.” 30 C.F.R. §§ 56.2, 57.2. “As used in the standard, the phrase applies to those
locations at a mine site where persons work during a shift in the mining or milling process.” 61
Fed. Reg. 42788 (Aug. 19, 1996); MSHA Program Policy Manual at § 56.18002; see also
Procedure Instruction Letter (PIL) No. P11-IV-01, entitled “Reissue of P10-IV-3: Examination
of working places (30 C.F.R. §§ 56/57.18002),” effective February 17, 2011 through Match 31,
2013.
5

A competent person is defined as “a person having abilities and experience that fully
qualify him to perform the duties to which he was assigned.” 30 C.F.R. §§ 56.2, 57.2.

35 FMSHRC Page 3213

establish by opposition that the 7th level was a “working place.” Sec’y Resp. I at 2. In his
untimely response to Roanoke’s and LVR’s cross-motions for summary decision, the Secretary
argues that whether Sunbelt performed a workplace examination sufficient to satisfy the
requirements of the standard is a material fact in dispute. Both arguments presume that the
standard contains an “adequate” workplace examination requirement. It does not.
The plain language of Section 56.18002(a) does not include an adequacy requirement.
No adequacy requirement is contained in MSHA’s program policy guidance regarding the
requirements of Section 56.18002.6 As noted, no adequacy requirement is present in
Commission case law interpreting the three requirements of section 56.18002(a).
In his untimely opposition to Roanoke’s and LVR’s cross-motions for summary decision,
the Secretary also argues that Roanoke and LVR did not designate Davis to perform the
workplace examination, but the Secretary errs when citing Synder’s affidavit as the purported
source for said designation. Sec’y Resp. II at 3. Roanoke and LVR rely on Attachment C to
Sunbelt’s Response, which is the “Pre-Shift Hazard Assessment” form by which Roanoke
project manager Odell designated Sunbelt supervisor Davis to perform the workplace
examination consistent with past practice. By that designation, Davis acted as examination agent
for Roanoke, LVR, and Sunbelt on January 8, 2013. I reject any contrary argument that Section
56.18002 imposes a duty on multiple operators to perform multiple examinations of the same
working place when the examination has already been done by a competent person.
Although the Secretary does not concede that Davis met the necessary requirements to be
designated as a competent person, he offers no material facts, supported by affidavit or verified
documents to show otherwise, apart from the fact that Davis missed the “latent” hazard during
his examination. That is not enough under Commission precedent. Cf., FMC Wyoming Corp.,
11 FMSHRC 1622, 1629 (Sept. 1989) (examiner Hastings lacked ability and experience fully
qualifying him to examine the work place around the turbine for adverse safety and health
conditions because he had not seen company memorandum regarding the presence of asbestos in
turbine insulation, he was unaware of the presence of asbestos-containing material in the turbine,
and he had no training in asbestos recognition).
By contrast, Respondents have established by affidavit and other documents that
Roanoke project manager Odell designated supervisor Davis as a competent person to examine
the work place around the pre-heat tower prior to erection of the scaffolding. The record
establishes that Davis received all required MSHA training, including hazard recognition
training associated with scaffold erection work. Sunbelt Mot. 3, and Davis Aff. at 2, para 5.
More specifically, Davis was trained to observe potential hazards from falling objects during

6

See MSHA’s Program Policy Manual, Vol. IV, Subpart Q, Safety Programs,
56/57.18002, Examination of Working Places (Feb. 2003); MSHA’s “Final Policy on
Examination of Working Places,” 61 Fed. Reg. No. 161, 42787-88 (Aug. 19, 1996); MSHA’s
Program Policy Letter No. P11-IV-01 (Feb. 17, 2011).

35 FMSHRC Page 3214

scaffold erection. Id.; see also Sunbelt Mot. 4, and Davis Aff. at 4, para. 12, and Sunbelt Attach.
C. Davis recorded his examination on a Pre-Shift Hazard Assessment form, which listed loose
falling objects among potential hazards, and Davis reviewed potential hazards with his crew.
Sunbelt Mot. 4, and Davis Aff. at 4, para. 12, and Sunbelt Attach. C. In these circumstances, I
find that Davis was a competent person having abilities and experience that fully qualified him
to perform the workplace examination duties to which he was assigned.
It is unfortunate that Davis, although legally competent, may have performed his
examination duties in a negligent fashion by failing to peer through the small door on the 7th
level to check for a falling material hazard. Nevertheless, absent any legal authority to imply an
adequacy requirement in the standard, there was no violation here for failure to find what the
Secretary concedes to be a “latent” hazard. Sec’y Mot. 2.7
Finally, I conclude in the alternative, that the Respondents did not have fair notice of the
Secretary’s interpretation that the cited regulation included an adequacy requirement. As noted,
the plain language of the regulation does not include an adequacy requirement, no adequacy
requirement is contained in MSHA’s program policy guidance, and no adequacy requirement is
present in Commission case law interpreting section 56.18002(a). In these circumstances, a
reasonably prudent miner would read the standard, as written, to require that a competent person,
designated by the operator, examine each working place at least once per shift for conditions
which may adversely affect safety and health. That was done here.
Concededly, an adequacy requirement is consistent with the overarching purpose of the
Mine Act to protect the safety and health of miners. If the Secretary, on behalf of MSHA, now
feels that an adequacy requirement should be imposed under section 56.18002(a), the Secretary
may revise the standard consistent with the extensive use of the word “adequate” throughout
Title 30, Parts 1-100, to give the regulated industry notice. See Sunbelt Mot. 15, and Sunbelt
App. A; cf., Northshore Mining Co. v. Sec’y of Labor, 709 F.3d 706, 711 (8th Cir.
2013)(emphasizing MSHA’s failure to revise its regulation or update its policy guidance to
reflect adverse interpretation).

7

This does not mean that an examiner can turn a blind eye toward numerous, obvious or
egregious hazards, which may equate to failure to perform the requisite examination.

35 FMSHRC Page 3215

V.

Order

The Secretary's motion for partial summary decision is DENIED. Respondents’ crossmotions for summary decision are GRANTED. This matter is DISMISSED.

/s/ Thomas P. McCarthy
Thomas P. McCarthy
Administrative Law Judge
Distribution:
Willow E. Fort, Esq., Office of the Solicitor, U.S. Dept. Of Labor, 618 Church Street, Ste. 230,
Nashville, TN 37219
Dinah L. Choi, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 1909 K. Street, NW, Ste.
1000, Washington, DC 20006
Matthew R. Korn, Esq., Fisher & Phillips, LLP, 1320 Main Street, Ste. 750, Columbia, SC
29211
Zachary J. Cohen, Esq., Lesavoy, Butz & Seitz, LLC, 7535 Windsor Drive, Ste. 200, Allentown,
PA 18195

35 FMSHRC Page 3216

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
th

721 19 STREET, SUITE 443
DENVER, CO 80202-2536
303-844-5267/FAX 303-844-5268

September 26, 2013
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.
NORTH COUNTY SAND &
GRAVEL, INC.,
Respondent

:
:
:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDING
Docket No. WEST 2010-365-M
A.C. No. 04-05632-203553

Mine: Roadrunner No. 32

DECISION
Appearances:

Pamela Mucklow, Esq., & Timothy J. Turner, Esq., on brief, Office of the
Solicitor, U.S. Department of Labor, Denver, Colorado, for Petitioner;
C. Gregory Ruffennach, Esq., Washington, D.C., for Respondent.

Before:

Judge Manning

This case is before me upon a petition for assessment of a civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”),
against North County Sand & Gravel, Inc. pursuant to sections 105 and 110 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Act” or “Mine Act”). The
parties introduced testimony and documentary evidence at a hearing held in San Bernardino,
California. The parties filed post-hearing briefs and Respondent filed a post-hearing reply brief.
North County operated the Roadrunner No. 32 mine in San Bernardino County,
California. Citation No. 7980681 was adjudicated at the hearing. The Secretary proposed a total
penalty of $5,961.00 for the citation. For the reasons set forth below, the likelihood of an injury
alleged in the citation is modified from highly likely to reasonably likely, the gravity is modified
from fatal to permanently disabling, and the negligence is modified from reckless disregard to
high. In all other respects, the citation is affirmed.
I. DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW
On April 16, 2009, MSHA Inspector Steven Soderburg issued Citation No. 7980681
under Section 104(d)(1) of the Mine Act, alleging a violation of Section 56.15005 of the
Secretary’s safety standards. The citation states that the mine president and owner, Mike
LaPaglia, did not wear fall protection when he was standing on top of the motor cover of a
Roadrunner 450 portable track cone crusher. (Ex. G-9). The top of the motor cover was 58
inches above a travelway on the crusher, and 11 feet above the hard-packed ground. Id.
Inspector Soderburg determined that an injury was highly likely to occur and that such an injury
could reasonably be expected to be fatal. Further, he determined that the violation was

35 FMSHRC Page 3217

S&S,1 the operator acted with reckless disregard, and one person was affected by the violation.
Section 56.15005 of the Secretary’s regulations requires, in pertinent part, that “[s]afety belts and
lines shall be worn when persons work where there is danger of falling. . . .” 30 U.S.C.
§ 56.15005.
The Secretary originally proposed a penalty of $35,500.00 for this citation under
MSHA’s special assessment regulation. See 30 C.F.R. § 100.5. Subsequent to that assessment
and prior to the filing of post-hearing briefs, the Secretary amended the proposed penalty to
$5,961.00 in response to North County’s motion to strike the specially assessed penalty. On July
30, 2013, I issued an order regarding Respondent’s Motion to Strike and the Secretary’s Motion
to Amend the Penalty Proposal, which is incorporated herein by reference. North County Sand
& Gravel, Inc., 35 FMSHRC ____, 2013 WL 4648488 (July 30, 2013).
A. Summary of Evidence
Inspector Soderburg testified that as he drove his vehicle onto mine property he observed
the president and owner of North County, Michael LaPaglia, standing on top of the engine cover
of a portable cone crusher. (Tr. 27). The machine was running and vibrating, no handrails were
installed, and LaPaglia was not wearing any fall protection. (Tr. 120-21). Upon seeing LaPaglia
atop the machine, the inspector parked his van approximately 50 yards from the crusher, walked
toward it about 25 yards, took a picture, and then walked about 15 yards closer to it. (Tr. 28; Ex.
G-1). About 10 yards from the site, he took another picture. (Tr. 28; Ex. G-2). Inspector
Soderburg stated that he did not yell at LaPaglia to step down because he was concerned that
doing so would startle LaPaglia and that the noise of the machine would have prevented
LaPaglia from hearing him. (Tr. 28).
Inspector Soderburg noted that LaPaglia appeared to use a remote control device to
operate the machine while he was standing upon it. (Tr. 32). He did not know how long
LaPaglia had been atop the crusher. Id. When the inspector was about 10 yards from the
machine, after he took the second picture, he motioned for LaPaglia to get down from the
machine. (Tr. 32-33). LaPaglia then immediately came down from the machine and turned it
off. (Tr. 32-33, 50, 104). In order to get down from the machine, Inspector Soderburg testified
that LaPaglia turned around, took a step back, stepped down onto a cover about two feet below,
1

An S&S violation is a violation “of such nature as could significantly and substantially
contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d)
(2006). 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 order to establish the S&S nature of a 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 will be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984);
accord Buck Creek Coal Co., Inc., 52 F.3d 133, 135 (7th Cir. 1995); Austin Power Co., Inc., 861
F. 2d 99, 103 (5th Cir. 1988) (approving Mathies criteria).

35 FMSHRC Page 3218

stepped down to a control panel platform, walked to the back of the machine, and climbed down
a ladder attached to the machine. (Tr. 35). Inspector Soderburg presumed that LaPaglia got on
top of the machine in the same way. (Tr. 35-36). He stated that the machine had a platform
provided on the other side from which one could safely observe the size of the rock coming off
of the return belt, without the need for a person to be where LaPaglia stood. (Tr. 43-44, 47).
Inspector Soderburg designated the citation as S&S. (Ex. G-9). He determined that an
injury was highly likely to occur had he not instructed LaPaglia to come down from the top of
the machine. (Tr. 58-59). He observed that the machine was running and vibrating, that
LaPaglia was not wearing fall protection, that there were no handrails installed in the area of the
machine upon which LaPaglia was standing, and that LaPaglia was 11 feet above the ground.
(Tr. 59). In addition, LaPaglia was standing near the edge of the engine cover and it was windy
that day. (Tr. 60). Had LaPaglia fallen from the engine cover, he could have fallen into the
crusher, down in between the crusher and the front of the engine cover where there are moving
machine parts, or 11 feet down to the ground below. (Tr. 54-55). Any of these falls could have
resulted in fatal injuries. (Tr. 54-56).
The inspector designated the citation as an unwarrantable failure to comply with a
mandatory safety standard.2 (Tr. 62; Ex. G-9). He reached this conclusion because LaPaglia is
the president and owner of the mine and is a competent trainer who instructs other miners in the
use of fall protection. The inspector believed that it was obvious that a fall hazard was present,
the condition posed a high degree of danger, and LaPaglia did nothing to abate the condition
because he was the person who created it. (Tr. 63-64, 109-10). Inspector Soderburg also
determined that the violation was the result of the operator’s reckless disregard. (Tr. 64). He
noted that LaPaglia is an experienced miner who was on top of the engine cover without fall
protection in front of other miners. Id.

2

The Commission has defined an unwarrantable failure as aggravated conduct
constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec.
1987). Unwarrantable failure is defined by such conduct as “reckless disregard,” “intentional
misconduct,” “indifference” or a “serious lack of reasonable care.” Emery Mining Corp., 9
FMSHRC at 2003; see also Buck Creek Coal, Inc., 52 F.3d at 136. Whether conduct is
“aggravated” in the context of an unwarrantable failure analysis 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, the extent of the violative condition, whether the operator
was 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. See e.g. Consolidation
Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). 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. Peabody Coal Co., 14 FMSHRC
1258, 1261 (Aug. 1992).

35 FMSHRC Page 3219

LaPaglia testified that he was atop the crusher in order to observe its functionality before
deciding whether to purchase it.3 (Tr. 157, 174). The surface upon which he was standing was
level, dry, free of loose materials, and had suitable traction. (Tr. 170). He testified that he has
good balance and health and that he was not engaged in any lifting, bending, or other physical
work while atop the machine. (Tr. 171-72). He only intended to be upon the machine for a short
duration of time. (Tr. 174, 176). LaPaglia noted that the machine has since been outfitted with
handrails around the area where he was standing when the citation was issued and that traction
tape was added to the engine cover. (Tr. 158-59, 164; Exs. R-8, R-9).
LaPaglia testified that there are occasions when mine employees must work at heights,
and the company had safety lines and belts available for use, including on the date of the
inspection. (Tr. 148-49). In addition, the company trains its miners regarding its tie-off policy.
(Tr. 149-50). However, there were no tie-off anchors or cables installed on the machine and he
did not feel that fall protection was necessary. (Tr. 173-74).
B. Discussion and Analysis
The Secretary argues that section 56.15005 required LaPaglia to use fall protection at the
location where he was standing because there was an inherent danger of falling. (Tr. 27, 12021). Because LaPaglia was standing near the edge of the engine cover surface, the machine was
running and vibrating, the surface was metal and slick, and there were no handrails, the Secretary
contends that it was highly likely that a fall would result from the violation. (Tr. 58-60; Sec’y
Br. 13, 15).
Respondent argues that no fall protection was required upon the machine and that the
likelihood of LaPaglia falling was low. (Tr. 170-76; Resp. Br. 8-9). The condition of the
machine – flat, dry, immobile, and free of loose materials – as well as LaPaglia’s relatively still
posture and good balance, suggest that there was no danger of falling at the cited location. (Tr.
170-72; Resp. Br. 10, 17). In addition, LaPaglia was only intended to be on the machine briefly.
(Tr. 174, 176; Resp. Br. 9-10). Respondent argues that the duration of exposure to a fall hazard
is relevant to determining whether a violation occurred and that the short duration here mitigates
any violation of section 56.15005. (Resp. Br. 13-16).
I find that the Secretary established a violation of section 56.15005. LaPaglia was upon
an elevated surface that lacked handrails or other restraints. I credit LaPaglia’s testimony that he
only intended to be upon the engine cover for a short duration of time, that the surface was flat,
that his balance was stable, and that if he fell, it would likely be to an intermediate point between
the engine cover and the ground. However, those arguments speak to the gravity of the
3

At the hearing, North County introduced evidence to show that it did not own the cone
crusher and the Secretary introduced evidence to show that title had passed to North County
before the citation was issued. I conclude that the question of ownership is irrelevant to the
resolution of the issues in this case. Assuming North County did not own the crusher and could
not therefore install handrails around the engine cover or anchors for attaching a lanyard,
LaPaglia should have observed the operation of the crusher from a location that did not place
him in danger of falling.

35 FMSHRC Page 3220

violation, discussed below, but do not absolve North County of liability for violating section
56.15005. The safety standard requires safety belts and lines “where there is a danger of falling”
and I find that the Secretary established that such a danger existed. An informed, reasonably
prudent person would have recognized that the danger of falling warranted the use of safety belts
at that location given the lack of handrails. Indeed, a reasonably prudent person would not have
stood at that location while operating the crusher due to the lack of handrails or any means to
attach safety lines.
I also find that the Secretary established that the violation was S&S. The Secretary
established the fact of violation and that inadequate fall protection creates a discrete safety
hazard. The Secretary also proved that the cited conditions were at least reasonably likely to
contribute to an injury. The parties agree that LaPaglia stood atop the engine cover without fall
protection and the crusher did not have handrails where LaPaglia was standing. They also agree
that the machine was running when Inspector Soderburg first saw LaPaglia. Respondent argues,
and the Secretary does not dispute, that LaPaglia was operating a remote control while atop the
crusher and was not performing physical labor or otherwise moving around. However, the
parties presented conflicting evidence with respect to some of the facts. The Secretary argues
that the machine was shaking, but LaPaglia testified that no rock crushing took place and the
machine was relatively stable; the Secretary believes that wind gusts and silica dust made
LaPaglia less stable on his feet, while Respondent denies that any such factors were present or
relevant.
Respondent argues that if LaPaglia lost his balance, he would not have fallen to the
ground but to an intermediate surface between the engine cover and the ground. (Resp. Br. 12;
Resp. Reply Brief 3). Further, Respondent maintains that even if one were to fall into the
crusher itself, there would not be a serious injury as the miner could escape without coming into
contact with moving machine parts. (Tr. 207-08, Resp. Br. 18-19).
I find that it is reasonably likely that LaPaglia’s position atop the crusher would have
contributed to a serious injury. Although he was only planning to be on the crusher for a brief
period of time, his presence there contributed to the likelihood of injury. The Secretary, in his
post-hearing brief, noted that “[e]ven a skilled employee may suffer a lapse of attentiveness,
either from fatigue or environmental distractions, which could result in a fall.” (Sec’y Br. 11-12,
citing Cold Spring Granite Co., 26 FMSHRC 119, 123 (Feb. 2004), quoting Great Western
Electric Co., 5 FMSHRC 840, 842 (May 1983)). I credit LaPaglia’s testimony that LaPaglia was
not engaged in any manual labor but I find that the violation was reasonably likely, although not
highly likely, to contribute to an injury. I credit the testimony of Inspector Soderburg that
LaPaglia was standing near the edge of the engine cover, the crusher was vibrating, and it was a
relatively windy day.
I find that the most likely injury that would result from a fall was either a permanently
disabling injury or an injury that would result in lost workdays or restricted duty. A fatal injury
was certainly possible, but not as likely as a lesser injury. The likelihood of an injury and the

35 FMSHRC Page 3221

type of injury often depend upon the length of a potential fall.4 The Secretary argues that the
surface on which LaPaglia stood was 11 feet from ground level and that a fall to the ground was
most likely. I conclude that the evidence establishes that LaPaglia would likely have fallen to an
intermediate surface a few feet below where he stood. Although fatal injuries are possible from
such a height, less severe injuries are more likely. Additionally, the Secretary argues that if
LaPaglia had fallen into the cone crusher, he would have received fatal injuries. Based upon the
evidence presented at hearing, I find that it was unlikely that he would have fallen into the
crusher. Accordingly, permanently disabling injuries or injuries resulting in lost work days or
restricted duty would reasonably result from a fall from the top of the engine cover. Broken
bones, sprains, or other more serious injuries were more likely than a fatal injury.
The Secretary argues that because LaPaglia was the president of North County and a
certified trainer at the mine and he violated the standard in plain view of other miners, the
violation was the result of reckless disregard and was an unwarrantable failure to comply with a
mandatory safety standard. (Tr. 62-64, 109-10; Sec’y Br. 16-18). The Secretary believes that
LaPaglia was aware of the requirements of the standard, but purposely chose to ignore them.
(Sec’y Br. 17-18). North County argues that LaPaglia’s conduct was neither negligent nor the
result of an unwarrantable failure. It does not believe that a reasonably prudent person would
have recognized a danger of falling. (Resp. Br. 10, 19-20). In addition, Respondent has fall
protection available to its miners when it deems its use appropriate, the alleged violation was not
extensive, the duration of exposure was brief, the mine had not been cited for this standard
before, and even if there was a violation, LaPaglia was not aware of it. (Tr. 21-23). Respondent
contends that all these factors together suggest that MSHA’s designations of reckless disregard
and unwarrantable failure are excessive.
I find that the Secretary did not establish that the violation was the result of North
County’s reckless disregard, but that it was an unwarrantable failure to comply with the safety
standard. The determination of whether conduct is “aggravated” in the context of unwarrantable
failure is made by considering all the facts and circumstances of a case. The violative condition
existed for a short time, as LaPaglia testified that he was only going to be atop the crusher for
several minutes and the Secretary did not introduce any evidence to the contrary. The
unwarrantable failure analysis also looks at the extent of the violative condition. LaPaglia was
the president and owner of the mine and is the primary person to whom other miners look for
guidance and direction. While there is nothing to suggest that this violation was a regular
occurrence, LaPaglia’s status as a supervisor supports a finding of an unwarrantable failure
determination. Because supervisors are held to a high standard of care, a supervisor’s
involvement in a violation is an important factor in an unwarrantable failure determination. The
mine had not received any citations for a similar violation in the preceding 15 months and the
operator was not put on notice that greater efforts were necessary for it to comply with the fall
4

See e.g. Great Western Electric Co., 5 FMSHRC at 843 (a miner’s “position twelve
feet above the ground presented a substantial height from which to fall”); Molton Co., LP, 31
FMSHRC 427 (Mar. 2009) (ALJ) (finding an S&S violation where a miner was working without
fall protection seven feet from the surface below); Laramie Cnty. Road & Bridge, 17 FMSHRC
902, 905-06 (June 1995) (ALJ) (finding an S&S violation where a miner was working without
fall protection eight to twelve feet from the surface below).

35 FMSHRC Page 3222

protection standard. I find that the preponderance of the evidence establishes that when LaPaglia
operated the cone crusher from atop the engine cover he demonstrated aggravated conduct that
was greater than ordinary negligence. His actions were the result of a serious lack of reasonable
care but were thoughtless rather than reckless. As the president and owner of North County,
LaPaglia should have known better than to put himself in such a precarious position.
Whether LaPaglia realized that he violated the safety standard at the time, it is evident
that he was on top of a raised surface without fall protection or handrails. The Secretary argues
that LaPaglia knew about the violation and simply did not care. However, there is no evidence
to support that position and I find it more likely that LaPaglia violated section 56.15005 without
realizing it at the time. The inspector’s unwarrantable failure determination is affirmed but I
reduce the negligence attributable to the operator from “reckless disregard” to “high.”
II.

APPROPRIATE CIVIL PENALTY

Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an
appropriate civil penalty. North County’s history of previous violations is set forth in Exhibit G19. During the period between January 16, 2008 and April 15, 2009, North County had a history
of three paid violations, none of which were designated S&S, and none of which alleged a
violation of section 56.15005. Respondent was a small operator with only a few employees at
the Roadrunner No. 32 Mine at the time of the violation. North County owns several other small
sand and gravel operations in the area that employ a total of about 20 employees. (Resp. Br. 25).
The instant violation was abated in good faith. There was no proof that the penalty assessed in
this decision will have an adverse effect upon Respondent’s ability to continue in business. The
gravity and negligence findings are set forth above. Based upon the criteria in section 110(i) of
the Mine Act, 30 U.S.C. § 820(i), I assess a penalty of $3,500.00 for this violation. I make
special note of the operator’s small size and history of previous violations.
III. ORDER
For the reasons set forth above, Citation No. 7980681 is AFFIRMED as a significant and
substantial violation of section 56.15005 that was the result of North County’s unwarrantable
failure to comply with the safety standard. I have reduced the negligence and gravity of the
violation as discussed above. North County Sand & Gravel, Inc. is ORDERED TO PAY the
Secretary of Labor the sum of $3,500.00 within 30 days of the date of this decision.5

/s/ Richard W. Manning
Richard W. Manning
Administrative Law Judge

5

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

35 FMSHRC Page 3223

Distribution:
Timothy J. Turner, Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800,
Denver, Colorado 80202 (Certified Mail)
C. Gregory Ruffennach, Esq., 1629 K Street, N.W., Suite 300, Washington, D.C. 20036
(Certified Mail)

35 FMSHRC Page 3224

ADMINISTRATIVE LAW JUDGE ORDERS

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

September 6, 2013
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.
NEW NGC INCORPORATED,
Respondent

:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDING
Docket No. CENT 2013-538-M
A.C. No. 41-02670-323136

Mine: Posey Pit

ORDER
Before: Judge Rae
This case is before me upon a petition for assessment of a civil penalty under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d) (2000) ("the Mine
Act" or "the Act").
On August 29, 2013, the Secretary filed a motion to amend Citation No. 8764751 to
plead, in the alternative, that New NGC Incorporated (Respondent) violated 30 C.F.R. §
56.4104(b) in addition to the allegation in the citation that Respondent violated section
56.4104(a).1 On September 5, 2013, Respondent filed a response in opposition to the Secretary's
motion. For the reasons set forth below, the Secretary’s motion is granted.
The Procedural Rules provide that the Commission’s judges shall be guided by the
Federal Rules of Civil Procedure "[o]n any procedural question not regulated by Act, these
Procedural Rules, or the Administrative Procedure Act." 29 C.F.R. § 2700.1(b). Rule 15(a) of
the Federal Rules of Civil Procedure provides that leave to amend a complaint shall be "freely
given when justice so requires." Fed. R. Civ. P. 15(a); Foman v. Davis, 371 U.S. 178, 182
(1962). The Commission has taken a liberal view when it comes to amending complaints,
"especially when... they do not prejudice a party in preparing its defenses." Brannon v. Panther
Mining, LLC, 31 FMSHRC 1277, 1279 (2009) (ALJ); see also Cyprus Empire Corp., 12
FMSHRC 911, 916 (1990); El Paso Rock Quarries, Inc., 3 FMSHRC 35, 38 (January 1981); Bak
1

The standard cited states waste materials shall not accumulate in quantities that create a
fire hazard. 30 C.F.R. § 56.4104(a). The standard that the Secretary seeks to plead in the
alternative requires such materials be placed in covered metal or other non-flammable containers
prior to disposal. 30 C.F.R. § 56.4104(b).

35 FMSHRC Page 3225

Construction, 2006 WL 2927263 at *6 (ALJ). Among the permissible purposes of such
amendments are changes in the nature of the plaintiff's claims or legal theories. E.g., Moore's,
supra, Par. 15.08[3]. Delay alone, regardless of length, does not bar a proposed amendment if the
other party is not prejudiced. Moore's, Par. 15.08[4]. The Commission has further stated that, in
accordance with F.R.C.P. 15(b), even the conformance of pleadings to the evidence adduced at
trial may be permissible. Faith Coal Co., 19 FMSHRC 1357, 1361-62 (1997). Provided
adequate notice is given and there is no prejudice to the opposing party, administrative pleadings
are to be liberally construed and easily amended. CDK Contracting Company, 23 FMSHRC
783, 784 (2001) (ALJ); Bak, 2006 WL 2927263 *1, * 6 (Sept. 11, 2006) (ALJ). The grant or
denial of a motion for leave to amend is within the sound discretion of the court and will be
reversed only for an abuse of discretion. Jim Walter Resources, No. SE 2010-351, 2013 WL
3865345 *4 (June 12, 2013) (ALJ), citing Zenith Radio Corp. v. Hazeltine Research, Inc., 401
U.S. 321, 330 (1971); Foman, 371 U.S. at 182.
The Secretary moves to amend the citation to add an allegation that Respondent violated
section 56.4104(b) on the grounds that justice so requires it. He contends that Respondent will
suffer no prejudice because formal discovery has not begun at this time, and the Secretary will
rely mainly on facts stated in the body of the Citation and described in the Inspector’s notes.
Respondent argues that the motion should be denied on three grounds. First, Respondent
contends that the Secretary should not be allowed to allege the violation of multiple standards in
a single citation. The issuing inspector was afforded the opportunity to inspect the site and, at
the conclusion of the inspection, failed to identify any alleged violations of 30 C.F.R.
§56.4101(b). Respondent asserts that the two standards impose distinct requirements on an
operator and that the Secretary should not be permitted to argue the Respondent violated both
standards. The inspector has been trained by MSHA to competently review the alleged hazards
and determine the correct standard for issue, and failed to issue a citation for an alleged hazard
under 30 C.F.R. §56.4104(b). Second, Respondent contends that it would be prejudiced if the
motion is granted, as the Secretary requests the amendment as a change in litigation position
after the parties have commenced litigation and negotiations. Citation No. 8764751was issued
five months ago on April 2, 2013. Respondent argues that the Secretary has had ample
opportunity to correct an error by the inspector, with no action. Respondent claims that it
invested miner and financial assets to abate a citation under 30 C.F.R. § 56.4101(a), and that
granting the Secretary's motion could impose new and additional abatement requirements under
30 C.F.R. § 56.4104(b). Finally, Respondent argues that it was not provided fair notice that an
alleged violation existed under 30 C.F.R. §56.4104(b) at the time of inspection. MSHA's failure
to cite a condition during an inspection should not be permitted because the Secretary's
representative did not view the alleged hazard and cannot verify that a hazard existed at the time
of issuance.
I do not find Respondent’s argument persuasive that the Secretary lacks authority to
allege multiple violations in a citation. It is well settled that administrative pleadings are
liberally construed and easily amended, as long as adequate notice is provided and there is no
prejudice to the opposing party. Likewise, I am not persuaded by Respondent's argument that it
was not provided fair notice because the inspector did not view the alleged hazard. Whether the
inspector can verify the hazard goes to credibility, which is an issue for me to decide at hearing.

35 FMSHRC Page 3226

The only issue for the purposes of this Order is whether Respondent is prejudiced by the
Secretary's amendment. See CDK, 23 FMSHRC at 783.
The Commission has stated "[m]ere allegations of potential prejudice or inherent
prejudice should be rejected," and a Respondent must demonstrate more than a danger of
prejudice to show actual prejudice. Long Branch Energy, 34 FMSHRC 1984, 1993 (2012); PBS
Coals, 2013 WL 3152306 at *16 (May 2013). The Commission has given examples of actual
prejudice, which include the inability of witnesses to appear at hearing or "lateness so great as to
unduly delay a hearing." Long Branch, 34 FMSHRC at 1992. The majority of other examples
of prejudice arise when motions are filed during or after hearing has occurred. Cumberland Coal
Resources, 32 FMSHRC 442, 446-49 (May 2010) (denying Secretary's motion to amend her
pleadings at oral argument); Jim Walter Resources, No. SE 2010-351, 2013 WL 3865345 *4
(June 12, 2013) (ALJ) (denying Secretary's motion to amend citation to align it with inspector's
revised assessment of citation at hearing); Consolidation Coal, 33 FMSHRC 2632, 2633 (Oct.
2011) (ALJ) (denying Secretary's motion to amend as untimely when filed almost three months
after hearing and days before briefs were due); cf. Boart Longyear Co., No. WEST 2012-248RM, 2013 WL 3947971 *2 (ALJ) (denying motion prior to hearing where the two safety
standards at issue were not "virtually identical" and the evidence presented regarding both would
not be "equally applicable."). Accordingly, the Commission and its Judges have generally been
more willing to grant motions to amend prior to a hearing.2
Respondent's arguments that it would suffer prejudice are unpersuasive given the
procedural posture of this case. It is not in litigation. It has not yet been scheduled for hearing
and only informal exchanges of information have been made in an attempt to settle it and two
other dockets pursuant to my pre-hearing order. While it is true the company may feel
compelled to amend its answer and conduct additional discovery, the expenses "inherent in such
activities are the necessary consequences of litigation, costs the company (and any litigant) must
be prepared to bear." Brannon, 31 FMSHRC at 1279. The fact that the citation was written 5
months ago is not persuasive. This is a relatively new case, and most cases that come up for

2

This interpretation is consistent with the language of Rule 15 of the Federal Rules of
Civil Procedure. Fed. R. Civ. P. 15. Rule 15(a) allows amendments before trial to a party as a
matter of course within "21 days" after serving its pleading or "if the pleading is one to which a
responsive pleading is required, 21 days after service of a responsive pleading or 21 days after
service of a motion under Rule 12(b), (e), or (f), whichever is earlier." In all other cases, a party
may amend its pleading with the opposing party's written consent or the court's leave and the
court should "freely give leave when justice so requires." For amendments made during and
after trial, however, the rules are somewhat stricter. In such cases, the rule permit an amendment
only when it aids in presenting the merits and the objecting party fails to satisfy the court that the
evidence would prejudice that party's action or defense on the merits.

35 FMSHRC Page 3227

hearing are significantly older. Furthermore, there is no indication that MSHA is going to
require Respondent to perform any other action to abate this citation so there is no additional
expense involved in this instant case. Any suggestion otherwise at this point is pure speculation.
Furthermore, there has been no evidence of bad faith or dilatory motive on the part of the
Secretary. Accordingly, Respondent's arguments fail and I find that it will not be prejudiced by
the addition of the allegation of the violation of 30 C.F.R. § 56.4104(b).
WHEREFORE, the Secretary’s Motion to Amend is GRANTED.

/s/ Priscilla M. Rae
Priscilla M. Rae
Administrative Law Judge

Distribution:
William D. O'Dell, Conference Litigation Representative, South Central District, Metal/NonMetal, U.S. Department of Labor/Mine Safety & Health Administration, 1100 Commerce Street,
Room 462, Dallas, TX 75242
Nicholas W. Scala, Esq., Law Office of Adele L. Abrams, P.C., 4740 Corridor Place, Suite D,
Beltsville, MD 20705
Justin M. Winter, Esq., Associate Attorney, Law Office of Adele L. Abrams P.C., 4740 Corridor
Place, Suite D, Beltsville, MD 20705
/mjc

35 FMSHRC Page 3228

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 Pennsylvania Avenue, N.W. Suite 520 N
WASHINGTON, D.C. 20004-1710
Telephone No.: 202-434-9933
Telecopier No.: 202-434-9949

September 16, 2013
SECRETARY OF LABOR, MSHA, on
behalf of HAROLD W. PYEATT,
Complainant
v.
LINDSEY CONTRACTORS, INC.
AND ITS SUCCESSORS,
Respondent

:
:
:
:
:
:
:
:
:
:

DISCRIMINATION PROCEEDING
Docket No. CENT 2012-219-DM
SC-MD 11-19

Naruna Quarry
Mine ID 41-04468

ORDER DENYING REQUEST FOR SUBPOENA
Before the Court is Respondent’s, Lindsey Contractors, Inc., request for issuance of
a subpoena. Respondent’s request is for a subpoena duces tecum directed to APAC-Texas, Inc.,
(“APAC”) commanding that it produce certain documents. Respondent asserts that
Complainant, subsequent to his termination by the Lindsey, obtained a similar position at APAC
and that he was later terminated from APAC for reasons similar to his termination at Lindsey.
Respondent maintains that “Complainant’s job performance as a quarry manager in his
immediate, post-Lindsey employment is directly relevant to Lindsey’s claims and/or defenses in
this matter that Complainant showed signs of poor job performance as a quarry manager.”
Request for Issuance of Subpoena, (“Request”) at 3.
Respondent’s Request also seeks “written and/or oral discovery on all Complainant’s
(post-Lindsey) employers from July 18, 2011 through the present” so that it may “determine
what, if any, ‘differential back pay and employment benefits’ would be due Complainant if the
Secretary (sic) were to find in his favor.1” Id.

1

If the Complainant prevails, it is not the Secretary, but rather the Court, in its role as an
administrative law judge with the Federal Mine Safety and Health Review Commission hearing
this matter, that makes the determination as to whether a discrimination complaint is upheld.

35 FMSHRC Page 3229

29 C.F.R. Part 2700, setting forth the Commission’s procedural rules, provides at Section
2700.60(c) that “[t]he Commission or the Judge, as appropriate, shall revoke or modify the
subpoena if it seeks information outside the proper scope of discovery as set forth in §2700.56(b)
. . . or if for any other reason it is found to be invalid or unreasonable.” Dye v. Mineral Recovery
Specialists, 25 FMSHRC 170, (March 2003) (ALJ), Secretary of Labor v. Martin Marietta
Aggregates, 20 FMSHRC 1239 (Oct. 1998) (ALJ).
Respondent’s request is denied in both aspects. For the first ground, seeking information
about the Complainant’s post-Lindsey employment, the request is denied because it is immaterial
to this proceeding. Complainant’s post-employment experiences do not bear upon the issues
regarding his employment interactions with Lindsey. That is, whatever those experiences may
have been, they are not probative on the merits of Mr. Pyeatt’s discrimination action here.
This should be obvious but the point may be highlighted by noting that if the Complainant had
an outstanding experience with some post-Lindsey employer, that would be equally immaterial
to the present action and certainly could not be used by the Secretary to show that Lindsey must
have discriminated against Mr. Pyeatt.2
As to the second aspect of the Request, in which the Respondent seeks "determine what,
if any, ‘differential back pay and employment benefits' would be due” should the Complainant
prevail, this request is premature. The usual order is for a determination to first be made as to
whether the Complainant’s discrimination claim is upheld. Should that occur, the Court
typically directs that the parties communicate and endeavor to reach an agreement as to damages
and to then report back to the Court as to whether those terms could be amicably agreed-upon.
It is only when those efforts are not fruitful, that the Court must become involved and consider
appropriate discovery requests. See, Dolan v. F & E Erection Co., 20 FMSHRC 847, (Aug.
1998) (ALJ).
For the reasons set forth above, Respondent’s subpoena request is DENIED.
SO ORDERED.
/s/ William B. Moran
William B. Moran
Administrative Law Judge

2

It is probably worth noting that the Court makes no finding or inference whatsoever
regarding Mr. Pyeatt’s post-Lindsey employment experiences, as there has only been an
assertion by the Respondent regarding those experiences and because in any event, as noted
above, they are not material.

35 FMSHRC Page 3230

Distribution:
Mia Franklin Terrell, Esq., U.S. Department of Labor, Office of the Solicitor, 525 S. Griffin
Street, Suite 501, Dallas, Texas 75202
Ryan C. Johnson, Beard Kultgen Brophy Bostwick,, Dickson & Squires, LLP,
220 South Fourth Street, Waco, Texas 76701

35 FMSHRC Page 3231

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
Office of Administrative Law Judges
1331 Pennsylvania Avenue, N.W., Suite 520N
Washington, D.C. 20004

September 23, 2013
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

:
:
:
:
:
v.
:
:
LEWIS JOHNSON, agent of ELMORE SAND :
& GRAVEL, INC.,
:
Respondent.
:

CIVIL PENALTY PROCEEDING
Docket No. SE 2013-68-M
A.C. No. 01-01138-279202A

Mine: Scott Pit

ORDER DENYING MOTIONS TO DISMISS
ORDER GRANTING LEAVE TO FILE AND ACCEPTING PENALTY PETITION
ORDER TO FILE ANSWER
This matter arises under the Federal Mine Safety and Health Act of 1977 (“Mine Act”),
30 U.S.C. § 815, and this case is before me upon the Federal Mine Safety and Health Review
Commission’s May 30, 2013, Order remanding this matter to Chief Administrative Law Judge
Robert J. Lesnick for further proceedings under the Mine Act and the Commission’s Procedural
Rules, 29 C.F.R. Part 2700.
This case’s path has been circuitous. On January 31, 2012, the Mine Safety and Health
Administration (“MSHA”) mailed a proposed assessment to Lewis Johnson (“Johnson” or
“Respondent”) at Elmore Sand & Gravel, Inc. (“Elmore”), but the proposed assessment was
returned unclaimed. Lewis Johnson, 35 FMSHRC 1259, 1259 (May 2013) available at
http://www.fmshrc.gov/decisions/bluebook. On May 17, 2012, MSHA mailed a delinquency
notice. Id. In his November 2, 2012, motion to reopen his section 110(c) penalty assessment,
Johnson asserted “that he left his employment with Elmore . . . on January 27, 2012, and has no
recollection of receiving the assessment.” Id. The Commission concluded that the penalty
assessment had not become a final order because Johnson never received it. Id. at 1260. After
remanding the case to Chief Judge Lesnick, the Commission directed the Secretary of Labor
(“Secretary”) “to file a petition for assessment of civil penalty within 45 days of [May 30,
2013.]” Id.
Then things get interesting. On August 6, 2013, Respondent’s counsel filed a Motion to
Dismiss (“Mot. to Dismiss I”) this proceeding because the Secretary had not filed his penalty
petition within the 45-day window the Commission provided. (Mot. to Dismiss I at 2.) Notably,
Johnson’s August 6, 2013, Motion to Dismiss was not served on the Secretary. Then, on August
16, 2013, the Secretary filed Petitioner’s Motion for Leave to File Petition for Assessment of
Civil Penalty Instanter (“Mot. for Leave”), as well as the Secretary of Labor’s Petition for the
Assessment of Civil Penalty (“Petition”). Not to be outdone, on August 19 Johnson’s counsel
filled substantially the same Motion to Dismiss (“Mot. to Dismiss II”) that he filed on August
6—this time serving the Secretary—and filed Respondent’s Opposition to Petitioner’s Motion

35 FMSHRC Page 3232

For Leave to File Petition Instanter (“Johnson Resp.”) on August 23, 2013. Chief Judge Lesnick
assigned this case to me on August 26, 2013, and the Secretary filed his Response in Opposition
to Respondent’s Motion to Dismiss (“Sec’y Resp.”) on August 29, 2013.
The parties’ gale of paperwork notwithstanding, these competing motions and responses
each address essentially the same issue: whether the Secretary should be permitted to file his
penalty petition despite missing the Commission’s 45-day deadline. The Commission recently
clarified its burden-shifting framework for evaluating late-filed petitions.1 Long Branch Energy,
34 FMSHRC 1984, 1989–1991 (Aug. 2012). The Secretary satisfies his burden of production
with a “non-frivolous explanation for delay,” supported by “sufficient” evidence establishing the
delay was not the result of mere caprice, willful delay, intentional conduct, or bad faith. Id. at
1991. Once the Secretary has satisfied his burden, an operator “must show at least some actual
prejudice arising from the delay in order to secure a dismissal of a penalty proceeding due to a
late-filed petition.” Id. (emphasis added). Moreover, “[m]ere allegations of potential prejudice
or inherent prejudice should be rejected.” Id. Where both the Secretary and operator have
satisfied their burdens of production, the Commission directs judges to “weigh the interests of
fairness to the operator against the public interest in upholding the enforcement purpose inherent
in section 105(d).” Id.
The Secretary admits that he did not file his petition by the Commission-ordered
deadline, but contends that this delay “was not deliberate but rather the result of an
administrative error by the Office of Assessment.” (Mot. for Leave at 2.) The Secretary also
avers that it “is the practice of the Atlanta Solicitor’s Office to comply with all filing deadlines
set out in the Commission Rules,” but “in this case, the Solicitor was unaware of the matter and
need to file a Petition until the Office of Assessment notified the Solicitor on August 14, 2013.”
(Id.) According to the Secretary, his request to file the penalty petition after the deadline is
therefore based on adequate cause. (Id.) The Secretary also argues that Respondent is not
prejudiced by the delay because Johnson “was notified of the penalty assessments as evidenced
by his [November 2, 2012] Motion to Reopen, to which the Secretary did not object.” (Id.)
Finally, the Secretary supports his motion with an attached declaration by Melanie Garris, Chief
1

Under section 105 of the Mine Act and Commission Procedural Rule 28(a), the
Secretary must file a penalty petition within 45 days of receiving an operator’s contest of a
proposed penalty. 30 U.S.C. § 815(d); 29 C.F.R. § 2700.28(a). As Administrative Law Judge
Zielinski has observed, “there are no comparable provisions directly governing the filing and
processing of penalty cases against individual agents of operators pursuant to section 110(c) of
the Act, [but] several Commission judges have determined that penalty cases against individuals
must be processed expeditiously, and that delay in filing of a petition in a section 110(c) case
should be analyzed using adequate cause and prejudice considerations similar to those addressed
in Long Branch.” Dyno-Nobel East-Central Region, 35 FMSHRC 265, 266 (Jan. 2013) (ALJ)
available at http://www.fmshrc.gov/decisions/bluebook. The parties have each relied on the
Commission’s decision in Long Branch Energy, 34 FMSHRC 1984 (Aug. 2012), in their filings.
Moreover, I note that the Commission specifically referenced Commission Rule 28 in its order.
Lewis Johnson, 35 FMSHRC at 1260. Accordingly, I will employ the Long Branch framework
to analyze the parties’ claims.

35 FMSHRC Page 3233

of the MSHA Office of Assessments, Civil Penalty Compliance Office (“Garris declaration”),
which outlines the clerical errors that occurred at the Office of Assessments.
Johnson, meanwhile, claims that the Secretary has not established an adequate cause for
the delay in filing the penalty petition because his “clerical mistakes” demonstrate “obvious
indifference” to the Commission’s deadline and the Respondent’s Motion to Dismiss “triggered”
the “Secretary’s discovery of the clerical error.” (Johnson Resp. at 3.) In addition, Johnson
claims he would be unfairly prejudiced by the delay because of unavailable witnesses and
personnel transitions at Elmore Sand. (Id. at 3–4; Mot. to Dismiss II at. 2.) According to
Johnson “the Secretary’s initial failure to properly serve . . . Johnson, and the Secretary’s failure
to subsequently timely file the petition” has prejudiced his “ability to prepare for this litigation.”
(Johnson Resp. at 4.)
Commission Procedural Rules are not suggestions, and I take seriously the deadlines
outlined in the Mine Act and the Commission’s procedural rules. Nevertheless, the Commission
has recognized that dismissal on “mere procedural grounds . . . would frustrate section 105(d)’s
overriding purpose of ensuring prompt and efficient enforcement.” Long Branch, 34 FMSHRC
at 1990. Here, the Secretary’s explanation is non-frivolous, and the Garris declaration
sufficiently establishes the delay did not result from caprice, willful delay, intentional conduct, or
bad faith. I conclude, therefore, that the Secretary has satisfied his production burden showing
adequate cause.
Conversely, Johnson has not established any actual prejudice from the Secretary’s monthlong delay in filing the penalty petition. As I explained, the Commission has specifically
rejected assertions of potential prejudice. Johnson, however, provides only unsubstantiated
claims that Respondent will not have “ready access to the company’s records and personnel who
would be of assistance in preparing his defense.” (Johnson Resp. at 4.) Specifically, he indicates
that Elmore’s safety director at the time of the alleged violation left the operator in May 2013.
(Id.) Conceptually, an inability to locate witnesses or access company records might have been
the basis for claiming prejudice if they were substantiated or thoroughly explained. In this case,
however, Johnson provides nothing beyond supposition to support his inability to track down
witnesses or collect pertinent material. In fact, Johnson’s knowledge that Elmore Sand’s former
safety director no longer works at Elmore suggests he has some knowledge about the safety
director’s identity and whereabouts. I also note that the Commission’s procedural rules allow the
parties liberal discovery and broad discretion to seek subpoenas. See 29 C.F.R. §§ 2700.56–.60
(providing discovery and subpoena rules). Based on the Respondent’s filings, it is unclear why
Johnson cannot use discovery and subpoenas to gather the information he requires to for his
defense. Accordingly, I conclude that Johnson has not satisfied his production burden showing
actual prejudice.2
2

Johnson seems to suggest that I should reach back to the Secretary’s service of the
proposed penalty assessment in late-January 2012 to measure his prejudice rather than the
month-long delay in filing the penalty petition. (Johnson Resp. at 4. (“Respondent’s ability to
prepare for this litigation has been prejudiced by the Secretary’s initial failure to properly serve
(continued…)

35 FMSHRC Page 3234

WHEREFORE, it is ORDERED that Respondent’s motions to dismiss are hereby
DENIED. It is also ORDERED that the Secretary’s motion for leave to file is hereby
GRANTED and the Secretary’s Petition for the Assessment of Civil Penalty is ACCEPTED.
Furthermore, Commission Procedural Rule 29 requires “a party against whom a petition
for assessment is filed” to “file an answer within 30 days after service of the petition for
assessment of penalty.” 29 C.F.R § 2700.29. Accordingly, it is ORDERED that Johnson file an
answer within 30 days of the date of this order.

/s/ Alan G. Paez
Alan G. Paez
Administrative Law Judge
Distribution: (Via Electronic Mail & U.S. Certified Mail – Return Receipt Requested)
Carmen L. Alexander, Esq., U.S. Department of Labor, Office of the Solicitor, 61 Forsyth Street,
SW, Suite 7T10, Atlanta, GA 30303
(Alexander.Carmen@dol.gov)
Justin M. Winter, Esq., Law Office of Adele L. Abrams, PC, 4740 Corridor Place, Suite D,
Beltsville, MD 20705
(jmwinter28@gmail.com)
/pjv

2

(…continued)
Mr. Johnson . . .”).) I am not convinced that service of the proposed penalty is the proper
reference point for measuring Johnson’s actual prejudice from the Secretary’s late-filed petition.
Cf. Long Branch, 34 FMSHRC at 1985 (discussing late-filed petitions). Yet it is unclear how
Johnson would have a winning argument even if I were to accept his position that January 2012
is the proper measuring point. As Johnson acknowledges, he left Elmore on January 27, 2012,
four days before MSHA issued its citation and proposed penalty to him. (Johnson Resp. at 2.)
Had the Secretary served the citation to Johnson directly at the time, he would be in substantially
the same position he is in now—relying on the Commission’s liberal discovery and subpoena
rules to collect the information he needs to mount a defense. Though more time has elapsed,
Johnson did have knowledge of the charges against him when he filed his motion to reopen this
case in November 2012. Mere passage of time does not, itself, establish actual prejudice. Cf.
Christopher Brinson, 35 FMSHRC 1463, 1472 (May 2013) (ALJ) (“None of the Respondents
here have alleged anything other than a hypothetical fading of memory, and I will not infer
prejudice from the passage of time.”) available at http://www.fmshrc.gov/decisions/bluebook.
Nevertheless, I do not need to address this issue because I conclude that Johnson has provided no
indication of actual prejudice.

35 FMSHRC Page 3235

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 Pennsylvania Avenue, N.W., Suite 520N
Washington, DC 20004-1710
Telephone No.: 202-434-9933

September 25, 2013
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner
v.
CONSOLIDATION COAL COMPANY,
Respondent

:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDING
Docket No. WEVA 2011-2185
A.C. No. 46-01968-258310-01

Blacksville No. 2

ORDER ON RESPONDENT’S MOTION TO COMPEL
PRODUCTION OF MSHA’s SPECIAL ASSESSMENT REVIEW FORM
Before: Judge Moran
Respondent, Consolidation Coal Company, has filed a “ Motion to Compel Production of
the Special Assessment Review Form.” The Motion notes that the Secretary is seeking Special
Assessments in this case, but that MSHA has asserted that these documents are privileged.
Respondent, acknowledging that the case law among administrative law judges is “mixed with
regard to whether the SAR Forms must be disclosed,” contends that it “should be able to
discover the basis for such [special assessment] requests in order to challenge this at the
hearing.” Motion at 1. The Court has considered Respondent’s Motion and the Secretary’s
Response in Opposition. Upon such consideration, Respondent’s Motion is DENIED.
Extended discussion of this matter is not, in the Court’s view, warranted. As the
Secretary notes, its role involves proposing penalties, but that it is the Commission that assesses
all civil penalties under the Mine Act. In that acknowledged role, the Commission’s
determination, initially made by the presiding judge, “is an exercise of discretion, bounded by
[the] proper consideration [of] the six statutory criteria under Section 110(i) of the Act, through
relevant information developed in the course of the adjudicative proceeding.” Response at 2-3.
To cut to the core, once a matter is before the Commission, no part of Part 100 or that subset

35 FMSHRC Page 3236

within it, special assessments under section 100.5, remains material. Although the Secretary has
put forth other, substantial, reasons to deny the Respondent’s Motion, the foregoing is sufficient,
standing alone, to deny the motion. However, the Court adopts and incorporates the other
well-stated points made by the Secretary in its Response. These appear as “Attachment A” to
this Order.
SO ORDERED.

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

Distribution:
David J. Hardy, Esq.
Hardy Pence PLLC
500 Lee Street, East, Suite 701
25301
Post Office Box 2548
Charleston, WV 25329-2548
Rebecca L. Simon-Pearson, Esq.
U.S. Department of Labor
Office of the Solicitor
The Curtis Center, Suite 630 East
170 S. Independence Mall West
Philadelphia, PA 19106-3306

35 FMSHRC Page 3237

Attachment “A”
UNITED STATES OF AMERICA
FEDERAL MINE SAFETY HEALTH AND REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SECRETARY OF LABOR,
UNITED STATES DEPARTMENT
OF LABOR (MSHA),
Petitioner
v.
CONSOLIDATION COAL COMPANY,
Respondent

:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDING
Docket No.
A.C. No.
Mine:
Mine I.D.:

WEVA 2011-2185
000258310
Blacksville No. 2
4601968

PETITIONER’S RESPONSE IN OPPOSITION TO MOTION TO COMPEL
DISCOVERY OF RESPONDENT, CONSOLIDATION COAL COMPANY
I.

INTRODUCTION

This matter involves five (5) specially assessed violations (two specially assessed 104(d)(2)
orders; one regularly assessed 104(d)(2) order; and, two specially assessed 104(a) citations) totaling
$47,300.00 that were issued against Consolidation Coal Company’s (hereinafter “Respondent”)
Blacksville No. 2 Mine during five (5) inspection days between the dates of June 22, 2010 and
December 6, 2010.
Respondent did not specifically request the Special Assessment Review Forms (hereinafter
“SAR Forms”) in the Request for Production of Documents. 1On or about August 23, 2013,
Respondent informally requested the SAR Forms relating to the violations at issue in this matter.
For the following reasons, Petitioner respectfully requests that Respondent’s Motion to
Compel be denied.
II.

ARGUMENT
A.

The SAR Forms are not Discoverable

Two independent bases compel this Court to deny Respondent’s request for the disclosure
of the SAR Forms. First and foremost, the information contained therein is not reasonably calculated
to lead to the discovery of admissible evidence insofar as the Court exercises de novo review of all

1

Please note, formal discovery was propounded and answered by Rebecca Oblak, Esq.
Jim McHugh, Esq. subsequently replaced Ms. Oblak as counsel.

35 FMSHRC Page 3238

penalty assessments. Secondly, even if the SAR Forms contain relevant information, it is protected
from disclosure by the deliberative process privilege.
1.

The Information Contained in the SAR Forms is not Reasonably
Calculated to Lead to the Discovery of Admissible Evidence.

Pursuant to FMSHRC’s Rule 56(b), 29 C.F.R. § 2700.56(b), and Rule 26(b)(1) of the Federal
Rules of Civil Procedure, all relevant material that is not privileged is subject to discovery, including
information that is reasonably calculated to lead to the discovery of admissible evidence. The SAR
Forms, however, are not relevant or reasonably calculated to lead to the discovery of admissible
evidence.
The special assessment of violations is simply a “process for determining an appropriate civil
penalty without using the penalty tables in 30 C.F.R. 100.3.” Respondent’s Exhibit “4” (MSHA
Program and Policy Manual, Volume III, § 100.5). While the Secretary is delegated with the duty
of proposing penalties for violations of the Mine Act under 30 U.S.C. §§ 815(a) and 820(a),
pursuant to Section 110(i) of the Federal Mine Safety and Health Act (hereinafter “the Act”), “[t]he
Commission shall have authority to assess all civil penalties provided in this Act.” (emphasis
added). “The principles governing the Commission’s authority to assess civil penalties de novo for
violations of the Mine Act are well established.” Douglas R. Rushford Trucking, 22 FMSHRC 598,
600 (Comm. 2000). As such, Commission judges are not bound by the Secretary’s proposed civil
penalties. See Claysville Quarry, 32 FMSHRC 242 (ALJ Feldman) (Jan. 2010). Rather, a judge’s
penalty assessment for a particular violation is an exercise of discretion, bounded by proper
consideration for the six statutory criteria under Section 110(i) of the Act, through relevant
information developed in the course of the adjudicative proceeding. See Sellersburg Stone Co., 5
FMSHRC 287, 291-92 (ALJ Backley) (Mar. 1983).
Recently, in Pocahontas Coal Co., 2012 WL 1564576 (ALJ Feldman) (Apr. 4, 2012), a copy
of which is attached hereto as Exhibit “A,” ALJ Feldman directly addressed the issue of whether
SAR Forms are relevant. In denying Respondent’s Motion to Compel the SAR Forms, ALJ Feldman
held that “the Secretary’s special assessment criteria . . . is not relevant given the de novo authority
of the Commission to assess civil penalties . . . .” Id. at *2; see also, Alcoa World Alumina, LLC,
23 FMSHRC 691, 692 (ALJ Hodgdon) (Jun. 2011) (granting Secretary’s motion to quash deposition
of “person or persons at MSHA’s office of assessments who made the decision regarding the amount
of penalty for this case” on the basis that “[s]ince the assessment of a penalty after a hearing is based
solely on the information presented during the hearing on the penalty criteria set out in section
110(i), the reasons the Secretary may have relied on in proposing the penalty are not relevant”);
Hidden Splendor Resources, Inc., 33 FMSHRC 2345, 2347 (ALJ Rae) (Sep. 2011) (holding that
mental impressions contained in SAR Forms are not only privileged, but also irrelevant in the ALJ’s
de novo determination at hearing). In light of the fact that an ALJ makes his or her own
determination as to the proper penalty, the SAR Forms do not have any “tendency to make the
existence of any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Fed. R. Evid. 401.

35 FMSHRC Page 3239

2.

The SAR Forms are Protected from Disclosure by the Deliberative
Process Privilege.

Respondent is not entitled to the SAR Forms because these documents are protected from
disclosure by the deliberative process privilege. The deliberative process privilege, “attaches to
interagency communications that are part of the deliberative process preceding the adoption and
promulgation of an agency policy.” In re Contests of Respirable Dust Sample Alteration Cases, 14
FMSHRC 987, 990-93 (Comm. 1992) (hereinafter “Dust Cases”) (quoting Jordan v. U.S. Dept. of
Justice, 591 F.2d 753, 772 (D.C. Cir. 1978)). “The privilege protects thoughts, ideas, reasoning, and
analyses which lead to a decision of the agency.” Hidden Splendor Resources, Inc., 33 FMSHRC
at 2347 (citing Kan. State Network, Inc. v. F.C.C., 720 F.2d 185, 191 (D.C. Cir. 1983)). In
interpreting the privilege, the Supreme Court has stated that the privilege protects “‘the decision
making process of government agencies,’ and focus[es] on documents ‘reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which governmental decisions
and policies are formulated.’” N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975)
(citations omitted). In order for a document to be privileged under the deliberative process privilege,
it must: (a) be “pre-decisional;” (b) pertain to communications between subordinates and
supervisors that are antecedent to the adoption of an agency policy; and (c) relate to “deliberative”
communications – i.e., the process by which policies are formulated. See Dust Cases, 14 FMSHRC
at 992.
The Commission has explained that “purely factual information that does not expose an
agency’s decision making process does not come within the ambit of the privilege.” Dust Cases,
14 FMSHRC at 992. In the event unprotected factual information is combined with protected
information, the party opposing disclosure must show, “that the material is so inextricably
intertwined with the deliberative material that its disclosure would compromise the confidentiality
of the deliberative information that is entitled to protection.” Consolidation Coal, 19 FMSHRC
1239, 1246 (Comm. 1997) (internal citations and quotations omitted).
The Commission has yet to issue a ruling on whether, and to what extent, SAR Forms are
discoverable. However, as Respondent points out, there is a split among Administrative Law Judges
as to whether the deliberative process privilege applies to these types of documents. See
Respondent’s Motion at ¶3. While ALJs Melick and Manning have held that the deliberative process
privilege does not apply, ALJs Rae and Paez have held otherwise. Compare American Coal
Company, 33 FMSRHC 2352, 2353 (ALJ Melick) (Sept. 2011) and CDK Contracting Co., 25
FMSHRC 289 (ALJ Manning) (May 2003) with Hidden Splendor Resources, Inc., 33 FMSHRC at
23472 and Humphreys Enterprises, Inc., 2010 WL 5619976 at *5 (ALJ Paez) (Dec. 23, 2010).
2

ALJ Rae also independently denied Respondent’s Motion for the SAR Forms under the
work product privilege, explaining:
The SAR is a document which contains the selected facts pertaining
to a cited violation of a health or safety standard along with the
mental impressions, conclusions and opinions of MSHA officials
(continued...)

35 FMSHRC Page 3240

It is the Secretary’s position that ALJs Rae and Paez properly interpreted the application of
the deliberative process privilege. In Humphreys Enterprises, Respondent filed a Motion to Compel
the production of the “Possible Knowing/Willful Violation Review Form” (hereinafter “Review
Form”), to which the Secretary objected on the basis of the deliberative process privilege. Id. at *1.
In denying Respondent’s Motion, ALJ Paez recognized that the Review Form typically gathers the
inspector’s conclusions as to whether a knowing or willful violation occurred, as well as the
inspector’s superiors’ opinions of the inspector’s analysis. See id. at *5. ALJ Paez held that
“[a]ltogether, the content generated by these questions typically forms pre-decisional
communications between the inspector and his superiors prior to the formulation of a conclusion as
to whether a knowing or willful violation has occurred. These sections of the form are protected
from disclosure under the deliberative process privilege.” Id. ALJ Paez further held that, although
the Review Form contains factual information, the entire Review Form is privileged because the
factual information guides the Secretary’s decision-making process as it relates to the determination
of whether a knowing or willful violation occurred. Id. Although Humphreys Enterprises involved
the deliberative process privilege as applied to the “Possible Knowing/Willful Violation Review
Form” as opposed to the SAR Form, the forms are similar in that they both document the
inspector’s, and his supervisors’, opinions as to whether a particular type of violation occurred.
In Coteau Properties Co., 22 FMSHRC 915 (ALJ Zielinksi) (Jun. 2000), Respondent sought
certain information gathered during an MSHA special investigation concerning a discrimination
claim. The Secretary objected to the request pursuant to the deliberative process privilege. ALJ
Zielinski expressly rejected Respondent’s attempt to obtain the information, stating that, “the
Secretary’s decision making process, by which a determination is made whether or not to initiate
a discrimination proceeding under the Act, is the type of governmental decision to which the
deliberative process privileges applies.” Id. Similarly, the determination whether or not to specially
assess a citation is exactly the type of governmental decision to which the deliberative process
privileges applies.
Here, the SAR Forms contain not only factual information about the violations at issue, but
also the mental impressions, conclusions, and communications between the inspectors and their
(...continued)
used in the determination to categorize the violations as flagrant, and
thus enhancing penalties assessed. While this deliberative process is
engaged in at a time when litigation is not pending, it is readily
foreseeable that should the special assessment be imposed, the
operator is highly likely to contest the penalty. Furthermore, once the
enhanced penalty is decided upon, the operator is served with a notice
of the proposed penalty and is given 30 days to pay or contest the
proposed penalty (citations omitted). Therefore, this document is
prepared in contemplation of litigation and is protected by the
work product privilege.
Hidden Splendor Resources, 33 FMSHRC at 2346 (emphasis added).

35 FMSHRC Page 3241

superiors regarding the appropriateness of the special assessments. The information contained in the
SAR Forms consists of pre-decisional communications, as they were exchanged prior to the
formulation of MSHA’s decision to specially assess the violations. These communications are also
deliberative in nature, as they constitute the thoughts, ideas, reasoning, and analyses used by the
inspectors and their supervisors in reaching the decision to specially assess these violations. These
are precisely the types of communications the deliberative process privilege was meant to protect.
Moreover, the factual information contained in the forms is inextricably intertwined with the
inspectors’ decision-making process of whether the violations warranted special assessment;
therefore, SAR Forms, as a whole, are privileged and are not subject to disclosure. See
Consolidation Coal Co., 19 FMSHRC at 1246; Humphreys Enterprises, 2010 WL 5619976 at *5.
Lastly, the factual information that Respondent alleges it is seeking has either already been
produced through discovery, or will be produced during the depositions of the inspectors. Petitioner
has already provided Respondent with, among other things, the inspectors’ notes, which set forth
in detail the justification underlying the issuance of the citations/orders. In this regard, the
production of the SAR Forms serves only to disclose MSHA’s decision-making process in
concluding that special assessments were warranted. Courts have applied the deliberative process
privilege to disclosures of factual information when such disclosures “would expose an agency’s
decision-making process in such a way as to discourage candid discussion within the agency and
thereby undermine the agency’s ability to perform its functions.” Consolidation Coal, 19 FMSHRC
at 1247 (quoting Quarles v. U.S. Dep’t of the Navy, 893 F.2d 390, 392 (D.C. Cir. 1990)). If this
Court orders the SAR Forms to be provided, inspectors and supervisors at MSHA would be
discouraged from providing their candid analysis in the future for fear of disclosure.
1.

The SAR Forms are not Essential to a Fair Determination of the Case.

The Commission has noted that, even if a claim of privilege is properly asserted, it is
qualified and subject to a balancing test. See Humphrey’s Enterprises, Inc., 2010 WL 5619976 at
*4 (citing Bright Coal Co., 6 FMSHRC 1520, 2523 (1984)). If it is found that “disclosure is essential
to the fair determination of a case, the privilege must yield.” Id. In order to make that determination,
the Court must consider such factors as: (a) whether the Secretary is in sole control of the
information; (b) the nature of the violation; (c) possible defenses; and (d) the impact of the
information. Id.
In this case, Petitioner has produced or identified the factual bases of the violations at issue.
Specifically, Petitioner has produced copies of, inter alia, the citations and the inspectors’ notes for
the violations at issue. Furthermore, depositions being conducted presently the week of September
16, 2013, during which Respondent will have a full opportunity to explore the factual bases
underlying the issuances of the citations. As ALJ Paez held in Humphrey’s Enterprises, under these
circumstances the factual information sought by Respondent is “reasonably accessible to it,” and the
information contained in the SAR Forms are not essential to a fair determination of the case.
Humphrey’s Enterprises, 2010 WL 5619976 at *5.

35 FMSHRC Page 3242

III.

CONCLUSION

For the foregoing reasons, the Secretary requests that the Court deny Respondent’s Motion
to Compel Discovery.
Respectfully submitted,
Rebecca Simon-Pearson, Attorney
UNITED STATES DEPARTMENT OF LABOR

35 FMSHRC Page 3243

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 Pennsylvania Avenue, N.W., Suite 520N
Washington, DC 20004-1710
Telephone No.: 202-434-9933
Telecopier No.: 202-434-9949

September 27, 2013
FRED ESTRADA,
Complainant
v.
FREEPORT McMoRan TYRONE, INC.,
and/or RUNYAN CONSTRUCTION,
Respondent

:
:
:
:
:
:
:
:
:

DISCRIMINATION PROCEEDING
Docket No. CENT 2013-311-DM
SE-MD 2013-06

Tyrone Mine
Mine ID 29-00159

ORDER ON FREEPORT-McMORAN TYRONE’s MOTION
FOR SUMMARY DECISION
Respondent, Freeport McMoRan Tyrone, Inc. (“Freeport”) filed, on September 13, 2013,
a Motion for Summary Decision together with an accompanying memorandum of law in support
of its motion. Respondent Runyan Construction, through Counsel, filed a response to the motion
on September 25, 2013.1 Runyan’s Response, agrees with the six enumerated statements2 in
Runyan’s Response bears the incorrect date of September 12, 2013 date on the first
page but the certificate of service correctly lists that it was served on September 25th.
1

Those statements were: 1. This motion concerns the improper inclusion of Freeport as a
respondent to these proceedings even though it was not Complainant, Fred Estrada's ("Mr.
Estrada") employer, nor in control of or responsible for the instrumentalities at issue; 2. Pursuant
to 29 C.F.R. § 2700.67 of the Procedural Rules of the Federal Mine Safety and Health Review
Commission, Freeport is entitled to summary decision in this action as a matter of law.
Summary judgment "shall be granted" when it is shown that "[t]hat there is no genuine issue as
to any material fact; and . . . [t]hat the moving party is entitled to summary decision as a matter
of law." ... ; 3. Mr. Estrada specifically explained that the party responsible for the condition of
the truck and later for his termination was Runyan Construction, Inc. and not Freeport. Freeport
is an improper respondent in this proceeding and should be dismissed as a matter of law.; 4. . . .
the undisputed facts demonstrate that Freeport cannot be held liable for the acts of its
independent contractor, Runyan, because Freeport did not contribute by either act or omission to
the occurrence of the alleged violation in the course of Runyan's work or operation; Freeport did
not contribute by act or omission to the continued existence of the violation alleged by Mr.
Estrada; Freeport's employees were never exposed to the alleged hazard complained of by Mr.
2

(continued...)

35 FMSHRC Page 3244

Freeport’s Motion and concludes that Runyan “does not object to Freeport [McMoRan] Tyrone,
Inc. [] being granted summary decision and dismissed from this proceeding.” Runyan Response
at 2. No response was made by the Complainant, Fred Estrada.3
There being no genuine issue as to any material fact, pursuant to 29 C.F.R. § 2700.67 of
the Commission’s procedural rules, the Motion is appropriate for summary decision on the issue
of whether Freeport McMoRan is a proper named party in this litigation. For the reasons which
follow, upon consideration of the Motion, the Memorandum in support thereof, the Response of
Counsel for Runyan Construction, and the entire record at this point, the Court GRANTS
Freeport’s Motion and DISMISSES Freeport from this action.
The Court adopts the following undisputed material facts4 relating to Freeport’s Motion:
Runyan was an independent contractor working at the Freeport Tyrone Mine . Runyan
Construction entered into a contract with Freeport to haze birds and manage wildlife at the
Tyrone mine. Freeport and Runyan conduct their respective operations separately, and Freeport
has no ownership interest in Runyan. Freeport and Runyan share no common management
personnel. Freeport does not control or instruct Runyan in how to carry out its obligations under
the contract as Runyan is responsible for the methods and means of performance of the services
under the contract. Freeport has no control over the business or employment practices of
Runyan. Freeport is not involved in the termination of employees of Runyan. Mr. Estrada
worked for and was supervised by Runyan in October 2012, working as a bird hazer for Runyan
at the Tyrone mine. Mr. Estrada was supervised by Runyan and not by any employee of
Freeport. Mr. Hamilton was Mr. Estrada's supervisor. Hamilton was an employee of Runyan
and was not employed by Freeport. Mr. Estrada's employment paperwork and training records
were processed and retained by Runyan. Mr. Estrada did not fill out any employment paperwork
with Freeport to work at the Tyrone Mine. Mr. Estrada's pay stubs were issued by Runyan.
2(...continued)

Estrada; and Freeport had no control over the condition of the truck that allegedly needed
abatement.; 5. Freeport and Runyan are separate and distinct companies conducting distinct
operations at the Tyrone mine. Runyan performed bird hazing activities at the Tyrone mine to
protect migratory fowl from the leach ponds on the property and Mr. Estrada's sole job was to
"haze" the migratory fowl by using Runyan's truck. Freeport is not a single-employer with
Runyan.; 6.Freeport is entitled to summary decision as a matter of law because there is no issue
of material fact, and it was included as a respondent improperly and not in accordance with the
law.
3 The absence of a response was not unexpected as, on more than one occasion,

Complainant Estrada has expressed that he agrees that Freeport is not a proper party to this
proceeding. However, the Court has ruled that the determination of the proper parties is a
factual and legal determination for it to make. Court’s Order of July 30, 2013.
4 The motion was accompanied by supporting exhibits A through G.

exhibits are omitted from the Court’s adopted supporting facts.

35 FMSHRC Page 3245

Citations to those

Freeport was not involved in the day-to-day business operations of Runyan, and Freeport took no
part in the decision to terminate Mr. Estrada. Freeport has no ownership interest or operational
control of the vehicles operated by Runyan. Runyan supplies its own trucks to fulfill its bird
hazing obligations. The truck that was operated by Mr. Estrada was owned and maintained by
Runyan, and Runyan was responsible for the servicing of its own trucks. Freeport has no
maintenance obligations for the vehicles operated by Runyan. Freeport did not contribute, by
any act or omission, to the alleged defective condition of the vehicle operated by Mr. Estrada.
Freeport did not contribute to any violation alleged by Mr. Estrada. None of Freeport's
employees were exposed to the alleged hazardous condition complained of by Mr. Estrada.
It is true that the Commission, in determining whether two or more entities can be
deemed a single operator under the Mine Act, has looked to the standard employed “under
similar statutory language [found in] the NLRA [National Labor Relations Act] and Title VII [of
the Civil Rights Act of 1964].” Those factors are: the interrelation of operations; common
management; centralized control of labor relations; and common ownership. Berwind Natural
Resources Corp., et al., 21 FMSHRC 1284, *1316. No one of the factors carries the day.
Instead, the Commission examines the “totality of the circumstances to determine whether one
corporate entity exercised such pervasive control over the other that the two entities should be
treated as one.” Id. at *1317.
It is accurate to state that none of the factors above apply to the relationship between
Freeport and Runyan. Runyan’s task was limited to “haz[ing] birds and manag[ing] wildlife as
needed at the Freeport Tyrone Mine.” Freeport, Exhibit D. Although, for the most part,
Freeport’s Exhibit G appears to be simply a standard form services agreement with boilerplate
language and not specifically tailored to Runyan’s specific contractual responsibilities with
Freeport, the last attached page of that exhibit, identified as “Section 6: Scope of Services,”
provides that Runyan is to “[m]onitor and haze migratory birds from Tyrone and Chino Mines,”
with its additional responsibilities listed as “None.” Given the limited nature of Runyan’s
contract with Freeport, it is not surprising that the two entities conduct their operations
separately, that they share no common management personnel and that Freeport does not have
control over or direct the employment practices of Runyan. Indeed, Runyan has admitted to this
during discovery. Freeport Exhibit B. Runyan has also agreed that it owned the vehicle that was
operated by the Complainant, and that Freeport had no operational control, nor maintenance
obligations, over that vehicle. Freeport Exhibit B.
Counsel for Respondent Freeport also addressed, in its Motion and its memorandum of
law in support of that Motion, the issue of whether Freeport could be liable for the acts of
Runyan, acting as its independent contractor. It noted that in Bryant v. Dingess Mine Service, et
al., 10 FMSHRC 1173, the Commission stated that resolution of liability of a principal for the
acts of others working at a mine site depends upon the conduct of the parties and the “true nature
of th[eir] relationship.” Id. at 1178. As Freeport has observed, the issue of whether it can
“properly [be] included in these proceeedings centers on what amount of control, if any, Freeport
had over Runyan’s operations and employees.” Freeport Memorandum at 9. The Court agrees
with Freeport’s statement that the answer to that inquiry is “none.” Id.

35 FMSHRC Page 3246

Accordingly, for the foregoing reasons, the Court DISMISSES Freeport McMoRan
Tyrone, Inc. from this proceeding.
The Court is fully aware that in its earlier Motion to Dismiss, Freeport, through Counsel,
provided strong arguments to support that motion. However, as Counsel for Freeport
recognized, there is a process which must be followed and the Court’s July 30, 2013 Order
adhered to that process, for the reasons it articulated at that time. With Freeport’s subsequent
motion, as discussed above, along with its memorandum in support, and with the response from
Runyan’s Counsel, that process was carried out. The Court is appreciative of the high ethical
standards presented by Counsel in Freeport’s September 13th submission, which foursquarely
addressed the applicable case law.
Having dismissed Freeport as a Respondent from this proceeding, future captions will not
include Freeport-McMoRan Tyrone Inc. Only Runyan Construction will be listed as the sole
remaining Respondent.

So Ordered.

/s/ William B. Moran
William B. Moran

Distribution:
Fred Estrada, P.O. Box 404, Tyrone, New Mexico 88064
David Estrada, 3861 East New Berry Ave. SE, Mesa, AZ 85206
Kristin R.B. White, Esq..Michelle Witter, Esq., Jackson Kelly, PLLC, 1099 18th Street, Suite
2150, Denver, CO 80202
Runyan Construction Inc., P. O. Box 2827 Silver City, NM 88062
Runyan Construction Inc.,12 Truck By Pass Rd, Silver City, New Mexico 88061
Nathan Gonzales, Esq., Gonzales Law, 925 N. Hudson, Silver City, New Mexico 88061
nathan@gonzaleslaw.us

35 FMSHRC Page 3247