NOVEMBER AND DECEMBER2010

COMMISSION DECISIONS AND ORDERS
11-10-2010 Pinky's Aggregates, Inc.
11-16-2010 Culp & Son, LP
11-16-2010 Parker-Northwest Paving Co.
11-22-2010 Giant Cement Holding Company
11-24-2010 Washington Rock Quarries, Inc.
11-24-2010 Lamb Rock
11-24-2010 Custom Crushing Industries, Inc.
11-26-2010 Coal Country Mining, Inc.
12-01-2010 Pacific Power & Light Company
12-01-2010 Rockspring Development
12-02-2010 Freedom Energy Mining Company
12-03-2010 Larry D. Baumgardner Coal Co.
12-03-2010 Sandpoint Sand & Gravel, Inc.
12-10-2010 Elk Run Coal Company
12-14-2010 Mosaic Potash Carlsbad Inc.
12-14-2010 Dodge Hill Mining Company, LLC.
12-14-2010 Dittrich Mechanical & Fabrication, Inc.
12-14-2010 Appalachian Stone Company
12-14-2010 D & H Quarry, Inc.
12-14-2010 Quality Sand & Gravel
12-14-2010 DMC Mining Services
12-14-2010 Elk Run Coal Company
12-15-2010 East Tennessee Zinc Company
12-15-2010 B & W Resources, Inc.
12-16-2010 B & S Trucking Company, Inc.
12-16-2010 Aracoma Coal Company- order
12-16-2010 Aracoma Coal Company-Amended decision
12-17-2010 Highland Mining Company
12-17-2010 · Highland Mining Company .
12-22-2010 Wolf Run Mining Company
12-29-2010 Long Branch Energy·

1

CENT 2009-848-M
CENT 2011-16-M
WEST 2010-1074-M
SE
2009-65-M
WEST 2010-1706-M
WEST 2011-97-M
WEST 2011-98-M
WEVA 2010-918
WEST 2010-1625-M
WEVA 2010-865
KENT 2010-174
PENN 2010-355
WEST 2010-766-M
WEVA 2009-1738
CENT 2010-1226-M
KENT 2010-197
LAKE 2010-407-M
SE
2010-852-M
SE
2010-1223-M
WEST 2010-1646-M
WEST 2010-1888-M
WEVA 2009-511
SE
2001-177-M
KENT 2010-1080
KENT 2011-161
WEVA 2006-654
WEVA 2006-654
WEVA 2009-688
WEVA 2009-689
WEVA 2006-853
WEVA2010-992

Pg. 1543
Pg. 1547
Pg. 1550
Pg. 1554
Pg. 1557
Pg. 1560
Pg. 1563
Pg. 1566
Pg. 1570
Pg. 1573
Pg. 1577
Pg. 1581
Pg. 1584
Pg. 1587
Pg. 1592
Pg. 1595
Pg. 1599
Pg. 1604
Pg. 1607
Pg. 1611
Pg. 1615
Pg. 1618
Pg. 1622
Pg. 1627
Pg. 1631
Pg. 1634
Pg. 1639
Pg. 1659
Pg. 1664
Pg. 1669
Pg. 1690

ADMINISTRATNE LAW JUDGE DECISIONS
U.S. Silica Company
William Metz v. Carmeuse Lime, Inc.
Newtown Energy, Inc.
Caballo Coal Company, LLC.
Knight Hawk Coal, LLC.
Jeppesen Gravel
Oil-Dri Production Company
Dix River Stone, Inc.
Granite Rock Company
Performance Coal Company
Freedom Energy Mining Company
LaFarge Midwest, Inc.
Cargill Deicing Technology
Highland Mining Company
Sec. Labor o/b/o Okey Sartin v.
Kiah Creek Transport, LLC.
12-23-2010 Clintwood Elkhorn Mining Company
12-27-2010 Cemex, Inc.
12-29-2010 Black Beauty Coal Company
11-03-2010
11-08-2010
11-08-2010
11-12-2010
11-17-2010
11-18-2010
11-18-2010
11-19-2010
11-19-2010
11-22-2010
12-02-2010
12-08-2010
12-10-2010
12-16-2010
12-16-2010

SE 2009-712-M
PENN 2009-541-DM
WEVA 2009-173
WEST 2009-536
LAKE 2009-523
CENT 2009-438-M
SE 2009-293-M
KENT 2009-397-M
WEST 2008-979-M
WEVA 2008-1825
KENT 2007-433-R
CENT 2009-344-M
LAKE 2009-675-M
KENT 2008-1083

Pg. 1699
Pg. 1710
Pg. 1730
Pg. 1736
Pg. 1745
Pg. 1749
Pg. 1761
Pg. 1779
Pg. 1792
Pg. 1797
Pg. 1809
Pg. 1832
Pg. 1848
Pg. 1859

WEVA 2010-1004-D
KENT 2011-53-R
KENT 2008-1592-M
LAKE 2009-36

Pg. 1868
Pg. 1880
Pg. 1897
Pg. 1905

WEVA2009-1421

Pg. 1919

KENT 2008-736-D

Pg. 1923

ADMINISTRATIVE LAW JUDGE ORDERS
11-24-2010 Marfork Coal Company
12-08-2010 Charles Scott Howard v.
Gumberland River Coal Company

ii

NOVEMBER AND DECEMBER 2010

Review was granted in the following cases during the months ofNovember and December 2010:

Secretary of Labor, MSHA v. Mach Mining, LLC., Docket No. LAKE 2009-324-R. (Judge
Weisberger, September 27, 2010)
Secretary of Labor, MSHA v. American Coal Company, Docket No. LAKE 2010-408-R. (Judge
Weisberger, September 28, 2010)
Secretary of Labor, MSHA v. Twentymile Coal Company, Docket No. WEST 2008-788-R.
(Judge Manning, October 18, 2010)
William Metz v. Carmeuse Lime, Inc., Docket No. PENN 2009-541-M. (Judge Feldman,
November 8, 2010)
Secretary of Labor, MSHA v. Performance Coal Company, Docket No. WEVA 2008-1825.
(Judge Barbour, November 22, 2010)
Review was denied in the following cases during the months November and December 2010.

Justin Nagel v. Newmont USA, Limited, Docket No. WEST 2010-464-DM. This order is
published following the Commission Orders in this volume.
Secretary of Labor, MSHA v. Kingwood Mining Company, Docket No. WEVA 2009-210.
(Interlocutory Review of Judge Bulluck' s unpublished August 10, 2010 order.)

iii

COMMISSION DECISIONS AND ORDERS

.

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

November 10, 2010
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2009-848-M
A.C. No. 32-00793-188600

v.
PINKY'S AGGREGATES, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY: Young, Cohen, and Nakamura, Commissioners
On September 22, 2009, the Commission received from Pinky's Aggregates, Inc. ("PA")
a letter seeking to reopen Proposed Assessment No. 000188600, which proposed civil penalties
for three citations in the sum of $463. The proposed penalty assessment had become a final
order of the Commission pursuant to section lOS(a) of the Mine Act, 30 U.S.C. § 815(a), because
the operator had failed to contest the proposed assessment within 30 days after receiving it. On
January 12, 2019, the Commission denied the motion without prejudice on the basis that PA had
not provided a sufficiently detailed explanation for its failure to timely contest the proposed
penalties. Pinky's Aggregates, Inc., 32 FMSHRC 1, 3 (Jan. 2010). On January 27, the
Commission received a second request to reopen. On July 29, the Commission denied the
request, with prejudice, on the basis that the operator had again failed to sufficiently explain its
failure to file a timely contest. Pinky's Aggregates, Inc., 32 FMSHRC 790, 791-92 (July 2010).
We have discovered a letter from PA, dated January 25, 2010, explaining its failure to
timely file a contest of the proposed penalty assessment, that was intended to be considered with
the earlier, timely submission by PA, but was not. Upon consideration of the letter, we find good
cause for reopening the proposed assessment.

In the interests ofjustice, we hereby reopen this matter and remand it to the Chief
Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission's Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the

32 FMSHRC Page 1543

Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

~·
Patrick K. Nakamura, Commissioner

32 FMSHRC Page 1544

Chairman Jordan and Commissioner Duffy, dissenting.
As the majority indicates, the Commission received a letter from Pinky's Aggregates, Inc.
("PA") dated January 25, 2010, explaining the untimely filing of the contest of the proposed
penalty assessment. The Commission received the January 25 letter by facsimile on August 24,
2010. There are no notations on the letter explaining the discrepancy between the date of the
letter and the date it was faxed to the Commission.
We would deem the letter received by the Commission on August 24 to constitute a
petition requesting the Commission to reconsider its order of denial issued on July 29, 2010.
Pursuant to Commission Procedural Rule 78(a), a petition for reconsideration must be filed
within 10 days after a decision or order of the Commission has been issued. 29 C.F.R.
§ 2700. 78(a). Accordingly, we would deny PA's petition for reconsideration as untimely.

-

32 FMSHRC Page 1545

Distribution:
Jenny Levtitl .
Office Administrator
Pinky's Aggregates, Inc.
3731 86th St., N.E.
Rollette, ND 58366
W. Christian Schumann, Esq.
Office ofthe Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor~
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety~ Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1546

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

November 16, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2011-16-M
A.C. No. 41-03971-222096

v.
CULP & SON, LP

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 October 1, 2010, the Commission received from
Culp & Son, LP, a letter requesting that the Commission reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a). On October 27, 2010, the Commission received a response from the Secretary of Labor
stating that she ~toes not oppose the request to reopen the assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Comrrrission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on.the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

32 FMSHRC Page 1547

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 the facts and circumstances _of this case, the operator's request, and the
Secretary's response, we hereby reopen this matter 'and remand it to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessmentofpenaltywithin 45 days of the date ofthis order. See 29 C.F.R.
§ 2700.28.

Robert F. Cohen, Jr., Commissioner

32 FMSHRC Page 1548

i ..

Distribution:
Richard Culp
Culp & Son, LP
2230 CR335
Burnet, TX 78611
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris, Acting Chief
Office of the Penalty Compliance
U.S. Dept. of Labor, MSHA
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1549

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

November 16, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST2010-1074-M
A.C. No. 35-00497-191325

v.
Docket No. WEST 2011-72-M
A.C. No. 35-00497-177107
PARK.ER-NORTHWEST PAVING
COMPANY
BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 April 20, 20 I 0, the Commission received a request to
reopen two penalty assessments issued to Parker-Northwest Paving Company ("Parker") that
became final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a). 1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers WEST 2010-1074-M and WEST 2011-72-M, both captioned
Parker-Northwest Paving Co., and involving similar factual and procedural issues. 29 C.F.R.
§ 2700.12.
32 FMSHRC Page 1550

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief ·
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b)(''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that· default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
On February 18, and July 15, 2009, the Department of Labor's Mine Safety and Health
Administration ("MSHA;') issued Proposed Assessment Nos. 000177107 and 000191325,
respectively, to Parker, proposing civil penalties for numerous citations. In its letter seeking
reopening, Parker apologizes for "being negligent in the handling of the citations that we wished
to contest and not following the correct MSHA procedures."

The Secretary opposes Parker's request to reopen both assessments. As to Assessment
No. 000177107, she maintains that Parker did not seek reopening until April 20, 2010, over one
year after the proposed assessment became a final order of the Commission on March 27, 2009.
The Secretary argues that because the reopening request was filed more than one year after the
penalty assessment became a final order, it should be denied. As to Assessment No. 000191325,
she asserts .that Parker's explanation lacks sufficient detail as to why it failed to timely contest
the assessments and therefore does not provide adequate grounds for reopening. The Secretary
also notes that a delinquency notice was sent to the operator on October 8, 2009, but the operator
waited more than six months to seek reopening.
Having reviewed Parker's· request to reopen and the Secretary's responses thereto, we
agree that Parker has failed to provide a sufficient basis for the Commission to reopen the penalfy
assessments. With respect to Assessment ~o. 000177107, which, according to MSHA' s records,
was delivered on February 25, 2009, and became a final order on March 27, 2009, more than a
year passed before the operator sought reopening with the Commission. Under Rule 60(b), any
motion for relief must be made within ~reasonable time, and in the case of mistake,
inadvertence, or excusable neglect not more than one year after the order was entered. Fed. R.
Civ. P. 60(b). The Commission denies requests for reopening that are brought more than a year
after the order has become final. JS Sand & Gravel, Inc., 26 FMSHRC 795, 796 (Oct. 2004).
Accordingly, we deny with prejudice the request to reopen Assessment No. 000177107.
As to Assessment No.000191325, Parker has failed to adequately explain its failure to
timely contest the proposed assessments. Furthermore, Parker has failed to explain the
circumstances surrounding its receipt of the October delinquency notice. 2 Accordingly, we

2
. · In considering whether an operator has unreasonably delayed in fiiing a motion to

reopen a final Commission order, we find relevant the amount of time that has passed between an
operator's receipt of a delinquency notice and the operator's filing of its motion to reopen. See,
e.g.. Left Fork Mining Co., 31 FMSHRC 8, 11 (Jan. 2009).
32 FMSHRC Page.1551

hereby deny without prejudice Parker's request to reopen Assessment No. 000191325. FKZ
Coal Inc., 29 FMSHRC 177, 178 (Apr1 2007); Petra Materials, 31FMSHRC47, 49 (Jan. 2009).
The words ''without prejudice" mean that Parker may submit another request to reopen
Assessment No. 000191325. 3 Any amended or renewed request by Parker to reopen this
assess~ent must be filed within 30 days of this order. Any such request filed after that time will
be denied with prejudice.

Robert F.. COhen, Jr., Comillissioner

Patrick K. Nakamura, Commissioner

3

If Parker submits another request to reopen, it mustestablish good cause for not
contesting the proposed penalties within 30 days from the date it received the assessment from
MSHA. Under Rule 60(b) of the Federal Rules of Civil Procedure, the existence of"good cause"
may be shown by a number of different factors including mistake, inadvertence, swprise, or
excusable neglect ori. the part of the party seeking relief, or the discovery of new evidence, or
fraud, misrepresentation, or other misconduct by the adverse party. Parker should include a full
description of the facts supporting its claim of"good cause," including how the mistake or other
problem prevented it from responding within the time limits provided in the Mine Act, as part of
its request to reopen. Parker should also submit copies of supporting documents with its request
to reopen and specify which propo,sed penalties it is contesting. Parker should further explain in
similar detail why it delayed in responding to MSHA's delinquency notice.

32 FMSHRC Page 1552

Distribution:
Duane Johnson
Parker-Northwest Paving Co.
24370 S. Hwy., 99E
Canby, OR 97013
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris, Acting Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 251h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1553

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

November 22, 2010

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2009-65-M
A.C. No. 38-00007-165394

v.
GIANT CEMENT HOLDING COMPANY

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

DIRECTION FOR REVIEW AND 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 October 9, 2008, the Department of Labor's Mine Safety
and Health Administration ("MSHA") issued Proposed Assessment No. 000165394 to Giant
Cement Holding Company ("Giant Cement"). On December 11, 2008, after Giant Cement had
timely contested certain proposed penalties, the Secretary of Labor ("Secretary") filed a petition
for assessment of civil penalty with the Commission regarding those contested penalties. On
January 13, 2010, Chief Administrative Law Judge Robert Lesnick issued an Order to Show
Cause to Giant Cement for failure to :file an answer to the Secretary's petition. On October 12,
2010, the judge issued an Order of Default entering judgment for the Secretary and directing
Giant Cement to pay the proposed civil penalties immediately. On November 10, 2010, the
Commission received a petition for discretionary review from Giant Cement, requesting that the
Commission issue an order directing review and vacating the default order.
In support of its petition, Giant Cement states that on December 17, 2008, it timely filed
its answer to the petition, but acknowledged that the answer's caption inadvertently referenced
Docket No. "SE 2008-1016-M" as opposedto Docket No. SE 2009-65-M. An internal review of
the case file for Docket No. SE 2008-1016-M revealed that Giant Cement's answer referencing
contested Citation Nos. 6117058 and 6117065 was, in fact, received by the Commission on
December 23, 2008. Giant further states that it timely filed an answer to the show cause order on
February 1, 2010, explaining that it had timely filed its answer to the Secretary's petition. The

32 FMSHRC Page 1554

Commission has not received a response from the Secretary.
The Chief Judge's jurisdiction over this case terminated when he issued his default order
on October 12, 2010. 29 C.F.R. § 2700.69(b). Relief from a judge's decision maybe sought by
filing a petition for discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2};
29 C.F.R. § 2700. 70(a). We conclude that Giant Cement's petition for discretionary review was
timely filed, and we hereby grant it.
Upon review of the record and an internal review of the case files, in the interest of
justice, we hereby vacate the Order of Default and remand this matter to the Chief Judge for
further appropriate proceedings. See REB Enterprises, Inc., 18 FMSHRC 311 (Mar.. 1996).

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 1555

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

32 FMSHRC Page 1556

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

November 24, 2010
SECRETARY OF LABOR,
MINE SAFETY AND·HEALTH
ADMINISTRATION {MSHA)
DocketNo. WEST 2010-1706-M
A.C. No. 45-03224-199237

v.
WASHINGTON ROCK QUARRIES INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 August 20, 2010, the Commission received from
Washington Rock Quarries fuc. ("Washington Rock") a motion by counsel seeking to reopen a
penalty assessment thatmay have becoine a final order of the Commission pursuant to section
105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) ofthe Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC-782, 786.:89 {May 1993) ("JWR"). fu evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (..the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure");JWR., 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
32 FMSHRC Page 1557

On October l, ,20()9, the Department of Lab.or's Mine Safety and Health Administration
("MSHA") issued Proposed Penalty Assessment No. 000199237 to Washington Rock. The
record indicates that the proposed assessment was delivered to a wrong address and not received
at that time by Washington Rock. Washington Rock allegedly only learned of the assessment
months later when it was contacted by telephone by a debt collector retained by the U.S. Treasury
Department. The Secretary states that she does not oppose the reopening of the proposed penalty
assessment.
Having reviewed Washington Rock's request and the Secretary's response, we conclude
that the proposed penalty assessment has not become a final order of the Commission because it
was not reeeived by Washington Rock. Accordingly, we deny the request to reopen as moot and
remand this matter 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. If Washington Rock
has not done so already, it must file a contest of the proposed penalty assessment within 30 days
of the date of this order and the Secretary shall file a petition for assessment of penalty within 45
days of the date of its contest. See 29 C.F.R. §§ 2700.26 and 2700.28.

Michael

~r·· Cmnntl••ioPatrick K. Nakamura, Commissioner

32 FMSHRC Page 1558

Distribution:
Mark N. Savit, Esq.
Patton Boggs LLP
1801 California Street, Suite 4900
Denver, CO 80202
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor.
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of the Penalty Compliance
U.S. Department of Labor, MSHA
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C'. 20001-2021

32 FMSHRC Page 1559

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

November 24, 2010
SECRETARY OF LAl30R,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2011-97-M
A.C. No . .02-03237-224474

v.

LAMB ROCK
BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 October 15, 2010, the Commission received from
Lamb Rock a letter requesting that the Commission reopen a penalty assessment that had become
a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
On November 9, 2010, the Commission received a response from the Secretary of Labor stating
that she does not oppose the request to reopen the assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) (".!WR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

32 FMSHRC Page 1560

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 the facts and circumstances of this case, the operator's request, and the
Secretary's response, we hereby reopen this matter and remand it to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F .R. Part 2700~ Accordingly, consistent with Rule 28, the Secretary shalLfile a
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R.
§ 2700.28.

Michacl~A.

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRCPage 1S61

Distribution:
Michael D. Ferris
Lamb Rock
16455 Santa Rita Rd. #5
Sahuarita, AZ 85629
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 the Penalty Compliance
U.S. Department of Labor, MSHA
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Chief Administrative La'Y Judge Robert J. Lesnick
Federal Mine Safety &,H~althReview Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1562

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

November 24, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2011-98-M
A.C. No. 04-05367-222547

v.
CUSTOM CRUSHJNG INDUSTRIES, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 October 15, 2010, the Commission received from
Custom Crushing Industries, Inc., a letter requesting that the Commission reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a) .. On November 9, 2010, the Commission received a response from
the Secretary of Labor stating that she does not oppose the request to reopen the assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("./WR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); .!WR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

32 FMSHRC Page 1563

for a failure to tiriiely respond, the case may be reopened and appropriate pro~c;:dings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed the facts and circumstances of this case, the operator's request, and the
Secretary's response, we hereby reopen this matter and remand it to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R.
§ 2700.28.

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 1564

Distribution:
Paul Goodwin, President
Custom Crushing fudustries, Inc.
P.O. Box 357
Grenada, CA 96038
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Civil Penalty Processing Office
U.S. Department of Labor, MSHA
1100 Wilson Blvd., 25th Floor West
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1565

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

November 26, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2010-918
A.C. No. 46-08884-203963 X359

v.

COAL COUNTRY MINING, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 April 22, 2010, the Commission received a request to
reopen a penalty assessment issued to Coal Country Mining, Inc.("Coal Country") that became a
final order qf the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

32 FMSHRC Page 1566

for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995);
On October 20, 2009, the Department of Labor's Mine Safety and Health Administration
("MSHA'') issued 19 citations/orders to Coal Country. On November 24, 2009, MSHA issued
Proposed Assessment No. 00020396:3 to Coal Country, which proposed civil penalties for three
of the citations/orders that were issued on October 20, 2009. On December 22, 2009, MSHA
issued Penalty Assessment No. 000206855 covering the remaining 16 citations/orders from the
inspection of October 20, 2009. Coal Country asserts that it intended to contest all citations
stemming from the inspection on October 20, 2009. It further submits that it successfully
conte~ted the penalties for the 16 citations that were contained on the December 2009 penalty
assesSm:~t. With respect to Assessment No. 000203963, Coal Country submits that it sent the
assessment to its representative to contest but that the assessment was never received. The
representative further submits that he discovered that Penalty Assessment No. 000203963 had
not been contested while reviewing MSHA's website but does not indicate when that occurred.
The Secretary opposes Coal Country's request to reopen because its explanation lacks
sufficient detail as to why it failed to timely contest the assessments. She maintains that an
inadequate or unreliable internal office procedure does not provide sufficient grounds for
reopening. The Secretary notes that a delinquency notice was sent to the operator on
February 16, 2010, two months before it filed its reopening request.
Having reviewed Coal Country's request to reopen and the Secretary's response thereto,
we agree that the operator has failed to provide a sufficient basis for the Commission to reopen
the penalty assessment. In addition, Coal Country has failed to explain why it delayed
approximately two months in responding to the delinquency notice sent by MSHA. 1
Accordingly, we herebY. de:py without prejudice Coal country's request to reopen. FKZ Coal
Inc., 29 FMSHRC 177, 178 (Apr. 2007); Petra Materials, 31FMSHRC47, 49 (Jan. 2009). The
words ''without prejudice" mean that Coal Country may submit another request to reopen
Assessment No. 000203963. 2 Any amended or renewed request by the operator to reopen this

1

In considering whether an operator has unreasonably delayed in filing a motion to
reopen a final Commission order, we find relevant the amount of time that has passed between an
operator's receipt of a delinquency notice and the operator's filing of its motion to reopen. See,
e.g., Left Fork Mining Co., 31 FMSHRC 8, 11 (Jan. 2009); Highland Mining Co., 31 FMSHRC
1313, 1316 (Nov. 2009) (holding that motions to reopen filed more than 30 days after receipt of
notice of delinquency must explain the reasons why the operator waited to file a reopening
request; and lack of explanation is grounds for the Commission to deny the motion).
2

If Coal Country submits another request to reopen, it must establish good cause for not
contesting the proposed penalties within 30 days from the date it received the assessment from
MSHA. Under Rule 60(b) of the Federal Rules of Civil Procedure, the existence of "good cause"
may be shown by a number of different factors including mistake, inadvertence, surprise, or
32 FMSHRC Page 1567

assessment must be filed within 30 days of this order. Any such request filed after that time will
be denied with prejudice.

g,Cdtmm&I

.7P'·. r&1-~· .·
Robert F. Cohen, Jr., Commissioner

96L·.
Patrick K. Nakamura, Commissioner

or

excusable neglect on the part of the party seeking relief, the discovery of new evidence, or .
fraud, misrepresentation, or other misconduct by the adverse party. Coal Country should include
a full description of the facts supporting its claim of"good cause," including how the mistake or
other prob~em prevented it from responding within the time limits provided in the Mine Act, as
part of its request to reopen. Coal Country should also submit copies of supporting documents
with its request to reopen.
.

32 FMSHRC Page 1568

Distribution:
James F. Bowman
Coal Country Mining, Inc.
P.O. Box 99
Midway, WV 25878
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 ~ommission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 2000.1-2021

32 FMSHRC Page 1569

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

December 1, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMJNISTRATION (MSHA)
Docket No. WEST 2010-1625-M
A.C. No. 48-00152-188933 UIO

v.
PACIFIC POWER & LIGHT COMPANY

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 July 30, 2010, the Commission reeeived from Pacific
Power & Light Company ("Pacific Power") a request by counsel seeking to reopen a penalty
assessment that may have become a final order of the Commission pursuant to section 105(a) of
the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
The Secretary submits that upon reviewing the records in this proceeding, she has
determined that the underlying citation in this proceeding, Citation No. 6419908, contained on
Proposed Assessment No. 000188933, has been vacated. Accordingly, she submits that the
request to reopen should be denied as moot.

32 FMSHRC Page 1570

Having reviewed Pacific Power's request and the Secretary's response, we deny the
request to reopen as moot because the citation in question has been vacated.

~
Du~~

Michael F.

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 1571.

Distribution:
Jason W. Hardin, Esq.
Fabian & Clendenin
215 S. State Street, Suite 1200
Salt Lake City, UT 84111-2323 .
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. ofLabor ,.
1100 Wilson Blvd.
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021 ·

32 FMSHRC Page 1572

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 95oO

WASHINGTON, OC 20001

December 1, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2010-865
A.C. Nq. 46-05121-206639

v.
ROCK.SPRING DEVELOPMENT
.. .

.

.

.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakaml.lTa, 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 April 6, 2010, the Commission received from Rockspring
Development ("Rockspring") a letter seeking to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section IOS(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) (".!WR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l{b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); .!WR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

32 FMSHRC Page 1573

In its letter, Rockspring asserts that it did not timely contest the proposed assessment
because it had not been received by its safety ~anager
or. accounts
payable department.
.
'
However, the Secretary states that the assessment was received on December 28, 2009 and
signed for by a G. Merritt, the name listed on Rocksptjng's Legal ID Report's Address of
Record. She attached to her opposition to Rockspring's motion a copy of a FedEx tracking slip
to support this assertion. Rockspring provided no response to this submission. It also failed to
indicate which of the 48 violations contained in the assessment it seeks to contest.
Having reviewed Rockspring's request and the Secretary's response, we conclude that
Rockspring has failed to provide an adequate basis for the Commissfon to re<>pen the proposed ·
penalty assessment. Rockspring has failed to explain why it did not timely contest the proposed
assessment in light of the Secretary's substantiated claim that the assessment had been received
by the operator.
An operator seeking to reopen a proceeding after a final order is effective bears the
burden of establishing an entitlement to extraordinary relief. Ata mini~um, the applicant for
such relief must provide all known details, including relevant dates and persons involved, and a
clear explanation that accounts, to the best of the operator's knowledge, for the failure to submit
a timely response and for any delays in seeking relief once the operator became aware of the .
delinquency or failure. The operator must also identify which specific citations or orders in the
assessment it wishes to contest upon reopening. Affidavits from persons involved in and
knowledgeable of the situation and pertinent documents should be included with the request to
reop_en. Higgins Stone Co., 32.FMSHRC 33. (Jan. 2010)
.

32 FMSHRC Page 1574

Accordingly, we hereby deny without prejudice Rockspriiig's request. FKZ Coal Inc., 29
FMSHRC 177, 178 (Apr. 2007); Petra Materials, 31 FMSHRC 47, 49 (Jan. 2009). The words
''without prejudice" mean that Rockspring may submit another request to reopen the 11Ssessment
so that it can contest the penalty assessment. Any amended or renewed request by Rockspring to
reopen the assessments must be filed within 30 days ofthis order. Any such request filed after
that time will be denied with prejudice.

Robert F. Cohen, Jr., Commissioner-

GITJL

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 1575

Distribution:
Clark McCoy, Safety Manager
Rockspring Development
400 Patterson Lane
Charleston, WV 25311
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris, Acting Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209.:.3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page l576

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

December 2, 2010
SECRETARY OF LABOR,.
MINE SAFETY AND HEALTH.
ADMINISTRATION (MSHA)
Docket No. KENT 2010-174
A.C. No. 15-07082-189961

v.
FREEDOM ENERGY MINING
COMPANY

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 November 4, 2009, the Commission received a motion by
counsel for Freedom Energy Mining Company ("Freedom") seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section lOS(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR''). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

32 FMSHRC Page 1577

for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17FMSHRC1529, 1530 (Sept. 1995).
Freedom received Proposed Asses~µient No. 000189961 from the Department of Labor's
Mine Safety and Health Administration ("M;SHA") on July 10, 2009. Freedom's safety director
stamped the assessment as having been received on July 14, 2009, and on August 11, 2009, the
operator filed its notice of contest with MSHA. While Freedom contends that its notjce of
contest was timely, the Secretary of Labor, who does not oppose reopening, responds that the
notice was untimely. The Secretary points out that' the 30 days within which Freedomhad to
respond ran from the operator's July 10 receipt of the assessment, and not the date ori whlch its
safety director stamped it in.

32 FMSHRC Page 1578 .

Having reviewed Freedom's request and the Secretary's response, in the interest$ of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F .R.
Part 2700. 1 Accordingly, consistent with Rule 28, the Secretary shall file a petition for
assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

~·
Duey,coo}Dliss~

Michael F.

Robert F. Coh~ Jr., Commissioner

Patrick K. Nakamura, Commissioner

1

To avoid confusion, and lessen the need to file future motions to reopen, Freedom
should ensure that it date stamps any assessment it receives on the date on which it receives the
assessment from MSHA, and not the date on which it delivers the assessment to its safety
director.
32 FMSHRC Page 1579

Direction:
Carol Ann Marunich, Esq.
Dinsmore & Shohl, LLP ·
215 Don Knotts Blvd., Suite 310
Morgantown, WV 26501
W. Christian Scllumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris, Acting Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor .
1100 Wilson Blvd., 25m Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine .Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1580

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

December 3, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 2010-355
A.C. No. 36-07561-202650

v.
LARRY D. BAUMGARDNER COAL
COMPANY, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 3, 2010, the Commission received from
Larry D. Baumgardner Coal Company, Inc., a letter requesting to reopen a penalty assessment
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a). On March 25, 2010, the Commission received a response from the Secretary of
Labor stating that. she. does not oppose the request to reopen the assessment.
Under section l 05(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the. Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator falls to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Co:mmission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (".!WR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.1 (b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); .!WR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, ifthe defaulting party can make a showing of good cause
32 FMSHRC Page 1581

for a failure to timely respond, the case may be reopened and appropriate proceedings on the
meritS pennitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
'i:,

.

Having reviewed the facts and circumstances of this case, the operator's request, and the
Secretary's response, we hereby reopen this matter and remand it to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700·. Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R.
§ 2700.28.

·Robert F. Cohen, Jr., Commissioner

32 FMSHRC Page 1582

Distribution:
Larry Baumgardner, President
Larry D. Baumgardner Coal Co., Inc.
421 Knox Run Rd.
Lanse, PA 16849
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
I 100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris, Acting Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500 .·
Washington, D.C. 20001-20il

32 FMSHRC Page 1583

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

SUITE9500
WASHINGTON, DC 20001

December 3, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST2010-766-M
.
'
A.C. No. 10-00792-199073

v.
SANDPOINT SAND & GRAVEL, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 3, 2010, the Commission received from
Sandpoint Sand & Gravel, fuc., a letter requesting to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a). On March 18, 2010, the Commission received a response from the Secretary ofLabor
stating that ~he does not oppose the request to reopen the assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). fu evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure''); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

32 FMSHRC Page 1584

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 the facts and circumstances of this case, the operator's request, and the
Secretary's response, we hereby reopen this matter and remand it to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R.
§ 2700.28.

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 1585

Distribution: ·
Frank Linscott
Standpoint Sand & Gravel, Inc.
256 TiniberlineDt.
Sagle, ID 83860
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris, Acting ·Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25'h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1586

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

December 10, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket
No. WEVA 2009-1738
.
.
A.C. No. 46-07938-180891

v.
ELKRUN COAL COMPANY

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY: Jordan, Chairman; Young, Cohen, and Nakamura, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On July 28, 2009, the Commission received from Elk Rlin
Coal Company a request to reopen a penalty assessment that had become a final order of the
Commission pursuant to section lOS(a) of the Mine Act, 30 U.S.C. § 815(a). On August 17,
2009, the Commission received a response from the Secretary of Labor stating that she does not
oppose the requ.est to reopen the assessment.
Under section_ 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a)..
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section lOS(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis ofrnistak:e,madvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

32FMSHRC Page·15g7

for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits pennitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
This motion involves Assessment Case No. 000180891, issued to Black Castle Mining
Company ("Black Castle") and served upon Elk Run Coal Company ("Elk Run") on or about
April 1, 2009. The Assessment Case includes 16 citations, of which 13 citations are significant
and substantial ("S&S"). 1 All of the citations were issued between February 17 and February 25,
2009. Elk Run filed with its motion an affidavit from Kevin Deaton, the safety director for Black
Castle. According to Deaton's affidavit, Black Castle is a subsidiary of Elk Run, and idled the
subject mine on April 9, 2009, leaving only a skeleton crew. The crew stacked the mail during
the time the mine was idled and did not date-stamp it. Deaton did not learn that the assessment
had been received until July 2009, when the mine was removed from idle status. At this time,
Deaton gave the Assessment to counsel, indicating that the company intended to contest the 13
S&S violations.
The Secretary does not oppose the Motion.
The reasons offered by Elk Run do not amount to inadvertence or excusable neglect
within the meaning of Fed. R. Civ. P. 60(b), and do not constitute good cause to reopen the
assessment, which became a final order of the Commission in May 2009. The Commission has
made it clear that where a failure to contest a proposed assessment results from an inadequate or ·
unreliable internal processing system, the operator has not shown grounds for reopening the
assessment. Pinnacle Mining Co., 30 FMSHRC 1061, 1062 (Dec. 2008); Pinna~le·Mining Co.,
30 FMSHRC 1066, 1067 (Dec. 2008); Highland Mining Co., 31FMSHRC1313,1315 (Nov.
2009); Double Bonus Coal Co., 32 FMSHRC 1155, 1156 (Sept. 2010); see Gibbs v. Air Canada,
810 F. 2d 1529, 1537-38 (11th Cir. 1987). In this case, the fact that an operator idles a mine does
not relieve if of its obligation to open and deal with the mail it receives. To allow three months
of mail to stack up unopened, without further explanation of how this was allowed by the
management who made the decision to idle the mine, is not inadvertence; it is irresponsibility.
Deaton' s affidavit states, "The crew of the mine did not understand the importance of the timing
of the filing of the 1000-179 fonn." However, th!s ·is a failure of training by management, a
failure which could have been prevented by the simplest and most basic precautions.
Moreover, Elk Run has demonstrated a pattern of failing to deal adequately with
proposed assessments received from MSHA. On July 2, 2007, Elk Run sought reopening of an
assessment which had become final because it was "inadvertently lost in the office of the safety
director." Elk Run Coal Co., 29 FMSHRC 613, 613 (Aug. 2007). The Commission remanded
the case to the Chief Administrative Law Judge for a determination of good cause, id., and the
Chief Adrriinistrative Law Judge ~~bsequently reopened the final assessment. Unpublished
1

The S&S tenninology is taken from section 104(d)(l) of the Act, 30 U.S.C.
§ 8 l 4(d)(l ), which distinguishes as more serious any violation that "could significantly and
substantially contribute to the cause and effect of a ... mine safety or health hazard.''
32 FMSHRC Page 1588

Order dated Sept. 4, 2008. On January 28, 2008, Elk Run sought reopening of three citations
within a proposed assessment which its attorney had failed to contest due to an unspecified
''clerical error." Elk Run Coal Co., 30 FMSHRC 423, 424 (June 2008). The Commission
remanded the case to the Chief Administrative Law judge for a determination of good cause, id.,
and the Chief Administrative Law Judge subsequently reopened the final assessment.
Unpublished Order dated Sept. 4, 2008. On December 19, 2008, Elk Run sought reopening of an
assessment which became final because its safety director failed to successfully fax the
assessment form to counsel, and did not check whether the fax had been received. Elk Run Coal
Co., No. WEVA 2009-511 (motion pendjng).
Based on the foregoing, we conclude that Elk Run has failed to provide an adequate basis
for the Commission to reopen the penalty assessment. See Pinnacle Mining, 30 FMSHRC at
1062-63 (denying reliefbecause operator's excuse was insufficient); Pinnacle Mining, 30
FMSHRC at 1067-68 (same). Accordingly, we deny Elk Run's request to reopen.

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakam~ Commissioner

32 FMSHRC Page 1589

Commissioner Duffy, dissenting:
I would grant this unopposed.request to reopen.

32 FMSHRC Page 1590

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

32 FMSHRC Page 1591

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

December 14, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2010-1226-M
A.C. No. 29-00802-228600

v.
MOSAIC POTASH CARLSBAD INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 September 10, 2010, the Commission received from
Mosaic Potash Carlsbad Inc. ("Mosaic'') a motion to reopen a penalty assessment that niay have.
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
The Secretary submits that upon reviewing the records in this proceeding, she has
discovered that the proposed penalty assessment for Citation No. 6571486 was delivered on
August 12, 2010, and that the motion to reopen was post-marked September 9, 2010, which falls
within the 30-day time period for contesting a proposed assessment. She states that the Civil
Penalty Compliance Office of the Department of Labor's Mine Safety and Health Administration
has accepted Mosaic's motion to reopen as a timely contest and has added the citation to an
active civil penalty proceeding (Docket No. CENT 2010-1166-M).

32 FMSHRC Page 1592

Having reviewed Mosaic's request and the Secretary's response, we find the request to
reopen to be moot. The proposed penalty assessment did not become a final order of the
Commission. Accordingly, the request to reopen is dismissed as moot.

nu:cmDri~ ·
~

Michael F.

Robert F. Cohen, Jr., Commissioner

~

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 1593

Distribution:
Charles C. High, Jr., Esq.
Kemp Smith, LLP
P.O. Box 2800
El Paso, TX 79999-2800
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris, Acting Chief.
Office of the Penalty Compliance
U. S. Dept. Of Labor, MSHA
1100 Wilson Blvd. 25th Floor
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1594

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

December, 14, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 2010-197
AC. No. 15-18335-1.93080
.

v.

.

DODGE HILL MINING COMPANY, LLC

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 August 9, 2010, the Commission received from Dodge
Hill Mining Company, LLC ("Dodge Hill") a renewed motion by counsel to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700. l (b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
32 FMSHRC Page 1595

On August4, 2009, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No .. 000193080 to Dodge Hill for 16 citations MSHA
had issued to the operator in June of that year. However, the operator did not file a timely notice
of contest. fu its first motion to reopen, filed on November 10, 2009, Dodge Hill stated that it
intended to contest six of the proposed penalties, but because of a "clerical error" it failed to
return the contest form to MSHA. The Commission subsequently denied the request to reopen
without prejudice because of Dodge Hill's failure to provide a sufficiently detailed explanation
for its failure to file a timely contest. See Dodge Hill Mining Co., 32 FMSHRC 754 (July 2010).
The renewed request to reopen from Dodge Hill includes an affidavit from the
Assessment Analyst for its corporate parent, who explains that the assessment was not processed
as it normally would have been because she inadvertently misplaced it after the operator had
decided which penalties it wished to contest. Dodge Hill also demonstrates that it had requested
conferences on the underlying citations. The Secretary of Labor did not oppose Dodge Hill's
original motion and has not responded to its renewed motion.

32 FMSHRC Pagel596

Having reviewed Dodge Hill's requests and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

-~~

Michael F. Duffy, Comnuss1oner · ·

. Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 1597

Distribution:
Michael T. Cimino, Esq;
Jackson Kelly, PLC
1600 Laidley Tower
P.O. Box 553
Charleston, WV 25322
K. Brad Oakey, Esq.
Jackson Kelly, PLLC
175 Main St., Suite 500
P.O. Box 2150
Lexington, KY 40588-9956
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA, U.S. Dept.ofLabor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1598

F.EDERAL MINE· SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW

SUITE9500
WASHINGTON, DC 20001

December 14, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 2010-407-M
A.C. No. 21-00057-188834 X380

v.
DITTRICH MECHANICAL&
FABRICATION, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY: Duffy, Young, and Nakamura, Commissioners
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 18, 2010, the Commission received from
Dittrich Mechanical & Fabricatiori, Inc. ("Dittrich'') a request to reopen a penalty assessment that
may have become a final order of the Commission pursuant to section lOS(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section_ 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
Dittrich states that it never received a copy of the two May 12, 2009, citations that are the
subject of the proposed penalty assessment at issue, No. 00018834, which was issued by the
Department of Labor's Mine Safety and Health Administration ("MSHA") on June 23, 2009.
Dittrich attaches a letter dated May 21, 2009, from MSHA informing it of its Contractor
Identification Number. It also acknowledges receiving the proposed penalty assessment, but
states that a secretary filed the assessment away, which prevented Dittrich from acting upon it.
Dittrich also acknowledges receiving a delinquency notice from MSHA.
The Secretary opposes reopening the assessment on the ground that the excuse offered by
Dittrich for not responding to the assessment is not sufficiently detailed to justify reopening. The
32 FMSHRC Page 1599

Secretary also states that Dittrich has failed to explain why it did not respond to t}le delinquency
notice, but instead waited until after MSHA had referred the matter to the U.S. Trea.Sury before it
made its request to reopen.
The Secretary does not address Dittrich' s argument that it never received the citations that
are the subject of the assessment. Section 104(a) of the Mine Act requires that MSHA issue
citations to operatOrs (and .thus also to contractors) in writing. See 30 U.S.C. § 814(a). The Mine
Act :further provides in section 105(a) for proposed penalty assessments for· citations and orders
issued pursuant to section 104. See 30 U.S.C. § 815(a). We do not condone the operator's
handling of the proposed penalty assessment in this instance, especially its failure to act upon
receiving an MSHA delinquency notice. However, absent evidence that the citations were ever
issued to Dittrich~ 1 we cannot find that the assessment was ever effective.
Consequently, we conclude that there is no final order in this case, and we dismiss the
operator's request to reopen as moot. MSHA is free to issue another proposed penalty
assessment once it has complied with the requirements of section 104(a).

...

Patrick K. Nakamura, Commissioner

1

We note that the Secretary did not submit copies of the citations with her response in
opposition, but rather internal MSHA documentation regarding the violations;
32 FMSHRC Page 1600

Chairman Jordan and Commissioner Cohen, concurring:
Our colleagues conclude that there is no final order in this case and therefore the request
to reopen should be dismissed as moot. We disagree, but would grant relief on alternative
grounds.
The majority states that, absent evidence that the citations were delivered to the operator,
they cannot find the penalty assessmentwas ever effective. Slip op. at 2. They note that the
Secretary submitted internal MSHA documents regarding the violations but did not submit
copies of the citations. Our colleagues suggest that MSHA may issue another proposed penalty
assessment once it has complied with the requirements of section 104(a) (which mandates that
citations be issued in writing), thus finding, based only on the operator's unsubstantiated
assertion, that no written citation was ever issued.
The Secretary, who opposed the motion to reopen, submitted a printout (from an MSHA
website) with information identical in almost all respects to that found in the paper version of a
citation that MSHA traditionally provides to an operator. 1 Thus, by elevating form over
substance, our colleagues find that the Secretary failed to offer evidence that the citations were
ever issued to Dittrich because, perhaps out of expediency, the versions of the citations that the
Secretary provided to the Commission were not photocopies of the paper citations. This despite
the fact that the Secretary's submission contains the same substantive information found on a
paper citation (for instance, it contains the citation numbers and states that the citations were
issued to Richard Dittrich at 11 :30 a.m. on May 12, 2009 and terminated on May 12 and May
28). We conclude that the Secretary's submission is sufficient to rebut the operator's contention
that no written citation issued.
We believe the majority could be setting an unfortunate precedent. It appears that in the
future, if an operator claims to have not received a written citation, the Secretary must submit a
photocopy of the original form given to the operator, instead of an electronic version that is
slightly reconfigured, in order for the rebuttal evidence to be sufficient for the majority. We do
not believe the Secretary must go to such lengths to meet her burden of proof. Additionally,
based on the record in this case, we do not believe the Commission should order the Secretary to
re-serve the citation before she can issue a penalty assessment.
Consequently, we conclude that there was a final order in this case, as the Secretary
offered sufficient proof that she issued a written citation and proposed a penalty, but the operator
failed to timely contest it. However, we would grant relief because the operator's reason for
failing to respond to the proposed penalty (which was that Dittrich's secretary filed it but did not
properly inform the operator), constitutes excusable neglect. See 46 Sand & Stone, 23 FMSHRC

1

The forms submitted by the Secretary (one of which has a website address that includes
the term "IssuanceViewForm") may in fact simply be a printout of an electronic version of the
same document the majority insists the Secretary submit.
32 FMSHRC Page 1601

1091-92 (Oct. 2001) (granting request to reopen because the proposed penalty assessment form
was misfiled).

Robert F. Cohen, Jr., Commissioner

32 FMSHRC Pagel 602

Distribution:
Richard Dittrich
Dittrich Mechanical & Fabrication, Inc.
101 Kingswood Rd.
Mankato, MN 56001
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA, U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1603

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

December 14, 2010
SECRETARY OF LABOR,
M1NE SAFETY ANO HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2010-852-M
A.C. No. 31-02096-216857-02.

v.
APPALACHIAN STONE COMPANY

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamiira, 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 June 14, 2010, the Commissio11 recei.ved from
,
Appalachian Stone Co., a motion by counsel seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a). On July 9, 2010, the Commission received a response from the Secretary of Labor
stating that she does not oppose the request to reopen the assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR''). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

32 FMSHRC Page 1604 .

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 the facts and circumstances of this case, the contractor's request, and
the Secretary's response, we hereby reopen this matter and remand it to the Chief Administrative ·
Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R.
§ 2700.28.

Michael F. Duffy, Commissioner

Rol;>ert F. Cohen, Jr., Commissioner

Patrick K. Nakamur~ Commissioner

32 FMSHRC Page 1605

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

32 FMSHRC Page 1606

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

SUITE 9500 .
WASHINGTON, DC 20001

December 14, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2010-1223-M
A.C. No. 09-01057-211071

. v.
D & H QUARRY, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 September 23, 2010, the Commission received from
D & H Quarry, Inc. ("D & H") a motion requesting that the Commission reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

32 FMSHRC Page 1607

On February 11, 2010, the Department of Labor's Mine Safety and Health Administration
("MSHA'') issued Proposed Assessment No. 000211071 to D & H. In its request, D & H alleges
that its President, who is responsible for overseeing health and safety activities at the mine, had
been diagnosed with cancer between the time the citations were issued and the time that the
proposed assessment was issued, and was undergoing treatment and surgery at the time the
assessment was issued. The President's wife, who is the Secretary of D & H, states that she
believed that she had returned the assessment in a timely manner while dealing with her
husband's surgery. She further states that she "may have sent [the assessment] to the wrong
address or it was lost in the mail." Affidavit of Kathy Addison. D & H further alleges that it was
unaware that MSHA had not received the contest of the assessment until it received a
delinquency notice dated May 6, 2010, and then sent a letter to MSHA on May 31, 2010,
explaining that it believed that the proposed assessment had been timely contested.
The Secretary does not oppose D & H's request to reopen Assessment No. 000211071.

.

~--

32 FMSHRCPage 1608

Therefore, in the interests of justice, we hereby reopen this matter and remand it to the
Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission's Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the
Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

:~
Patrick K. Nakamura, Commissioner

32 FMSHRC Page 1609

Distribution:
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris, Acting Chief
Office <;>fthe Penalty Compliance
U.S. Dept. Of Labor, MSHA .
U 00 Wilson Blvd.,
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1610

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

December 14, 2010
Dock~t No. WEST 2010-1646-M
. A.C. No. 10-02141-208356

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

Docket No. WEST 2010-1914-M
A.C. No. 10-02141-179350

v.
QUALITY SAND & GRAVEL

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
. This matter arises under the Fe4eral Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Acf'). On August 6, 2010, and September 27, 2010, the
.
Commission received from Quality Sand & Gravel ("Quality'') requests to reopen two penalty ·
assessments that had become final orders of the Commission pursuantto section 105(a) of the
.
Mine Act, 30U.S.C. § 815(a). 1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 u.s.c. §, 815(a).
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have beqome final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) C'JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers WEST 2010-1646-M and WEST 2010-1914-M, both captioned
Quality Sand & Gravel, and involving similar factual and procedural issues. 29 C.F.R.
§ 2700.12.
32 FMSHRC Page 1611

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Jug.ges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
On March 17, 2009, and January 12, 2010, the Department of Labor's Mine Safety and·
Health Administration (''MSHA'') issued Proposed Assessment Nos. 000179350 ahd 000208356,
respectively, to Quality. In its request to reopen Proposed Assessment No. 000179350, Quality
states that it is under new management and that it only learned recently that MSHA did not
receive its contest. Quality also asserts that it never received a delinquency letter covering the
assessment. The Secretary opposes Quality's request to reopen because it was filed more than
one year and five months after the proposed assessment became a final order of the Commission.
She also notes that the assessment was sent to the Treasury Department for collection on
October 15, 2009.

In its request to reopen Assessment No. 000208356, Quality alleges that shortly after the
citations contained in the assessment were issued in November 2009, it sent a letter to the MSHA
district office, disputing all 12 violations. Quality also asserts that it sent a letter to MSHA on
February 9, 2010, within the 30-day contest period, informing MSHA of its dispute regarding the
12 violations. Quality also attaches a letter to MSHA dated April 16, 2010, inquiring as to the
status of its dispute of these violations. The Secretary states that she does. not. oppose Quality's
request to reopen Assessment No. 000208356,
Having reviewed the facts and circumstances of these proceedings, the operator's requests
and the Secretary's responses, we agree that Quality has failed to provide a sufficient basisior
the Commission to reopen Assessment No. 000179350, but has provided a sufficient basis for
reopening with respect to Assessment No.· 000208356;' ·
Proposed Assessment No. 000179350 became a final order of the Commission on
April 23, 2009, and more than a year passed befor~ the operator sought reopening with the
Commission on September 27, 2010. In fact, we note that the reopening request was submitted
almost a year after the matter had been referred for collection with the Treasury Department.
Under Rule 60(b), any motion for relief must be made within a reasonable time, and in the case
of mistake, inadvertence, or excusable neglect not more than one year after the order was entered.
Fed. R. Civ. P. 60(b). The Commission generally denies requests for reopening that are brought
more than a year after the order has become final. JS Sand & Gravel, Inc., 26 FMSHRC 795,
796 (Oct. 2004). Accordingly, we deny the request to reopen Assessment No. 000179350. 2

2

We are mindful of Quality's concern with the amount of the penalty and its effect on
business. We note that MSHA' s Civil Penalty Compliance Office may be able to arrange an
installment repayment plan if an operator is unable to pay this debt all at one time. See
32 FMSHRC Page 1612

With respect to Assessment No. 000208356, we grant the request to reopen the
assessment and remand it to the Chief Administrative Law Judge for further proceedings
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. ·
Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of penalty
within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

~~L~

Patrick K. Nakamura, Commissioner

Delinquency Letter dated June I 0, 2009.
32 FMSHRC Page 1613

Distribution:
Kerry Fuller, Gen. Mngr.
Quality Sand & Gravel, Inc.
P.O. Box455
Meridian, ID 83680
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris, Acting Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Healthlleview Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington,' D.C. 20001-2021

32 FMSHRC Page 1614

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

December 14, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2010-1888-M
A.C. No. 26-02286-212068

v.
DMC MINING SERVICES

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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) f'Mine Act''). On September 29, 2010, the Commission received from
DMC Mining Services, a motion requesting that the Commission reopen a penalty assessment
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 81S(a). On October 22, 2010; the Commission received a response from the Secretary
of Labor stating that she does not oppose the request to reopen the assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
32 FMSHRC Page 1615

Having reviewed the facts and circumstapces of this case, the operator's request, and the
Secretary's response, we hereby reopen this mattei: and remand it to the Chief Administrative
Law Judge for :further proceedings pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R.
§ 2700.28.

Michael F. Duffy, Commissioner

Robert F. Cohen, Jr., Commissioner

~-

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 1616

·

Distribution
C. Gregory Ruffennach, Esq.
DMC Mining Service Corp.
1629 K Street, Suite 300
Washington, D.C. 20036
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris, Acting Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1617

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

December 14, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2009-511
A.C. No. 46-07009-161679

v.
ELK RUN COAL COMP ANY

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY: Jordan, Chairman; Duffy, Young, and Nakamura, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On December 19, 2008, the Commission received froni Elk
Run Coal Company ("Elk Run'') a motion seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. §
815(a).
Under section l 05(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 81S(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
r~pen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700. l{b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
32 FMSHRC Page 1618

Affidavits submitted by Elk Run stated that the operator intended to contest the proposed
penalty assessment and faxed it to counsel. However, the fax allegedly never was received by
counsel. When the operator realized that the fax had not been received, it promptly sought
reopemng.
The Secretary states that she does not oppose the reopening of the proposed penalty
assessment. However, as our dissenting colleague and the Secretary note, this case represents the
fourth time that Elk Run has filed· a request to reopen sinc.e July 2007. The Secretary urges that
Elk Run take whatever additional steps are necessary to ensure that future contests are filed in a
timely manner. 1
Having reviewed Elk Run's request.and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

~~-~· .

.MafY_Lrd~ ~ ·

c;t:1)L

Patrick K. Nakamura, Commissioner

1

While the facts of the prior cases are significantly different, in light of this history of
motions to reopen, the Commission will employ greater scrutiny in considering whether to grant
any requests to reopen filed by Elk Run after the date of this order. See Elk Run Coal Co., 32
FMSHRC _ _,No. WEVA 2009-1738 (Dec. 10, 2010).
32 FMSHRC Page 1619

Commissioner Cohen, dissenting:
I cannot agree with my colleagues' determination that Elk Run has established
inadvertence or excusable neglect so as to justify reopening the assessment in this case. Elk Run
attributes the failure to file its notice of contest to the fact that the Safety Director had "only
recently" been transferred to that position and ''was in the process oflearning her job duties."
Mot. at 1-2. The Safety Director attempted to fax the proposed assessment to counsel so that a
notice of contest could be filed, but the fax did not go through '~due to the large vollillle of ·
documents being faxed." Id. at 2. As Elk Run acknowledges, "[the Safety Director] did not
check to make sure that the fax was accepted and a confirmation received." Id. The penalties
which Elk Run intended to contest total $75,394. Id. at Ex. 1.

In view of Elk Run's history of failing to file timely contests ofproposed assessments,' I
view the Safety Director's failure to successfully fax the proposed assessment to counsel (and,
more importantly, the failure to check on whether the fax had gone through) not as an isolated
instance of inadvertence but as the result of an inadequate and unreliable internal processing
system, which does not justify reopening. Pinnacle Mining Co., 30 FMSHRC 1061 (Dec. 2008);
Pinnacle Mining Co., 30 FMSHRC 1066 (Dec. 2008); Highland Mining Co., 31FMSHRC1313,
1315 (Nov. 2009); Double Bonus Coal Co., 32 FMSHRC 1155 (Sept. 2010); see Gibbs v. Air
Canada, 810 F.2d 1529, 1537-38 (11th Cir. 1987) (District Court did not abuse its discretion for
denying RUle 60(b) mQtion on the grounds that the movant failed to establish minimum
procedural safeguards that would have avoided default). Not to check a fax confirmation cannot
be justified by relative inexperience, and the fact of a "large volume of documents being faxed''
demonstrates the need for greater attention rather than being an excuse for failure, especially
given the large amount of money at stake.

Robert F. Cohen, Jt., Commissioner

1

This is the fourth time that Elk Run filed a request to reopen within an 18 month period.
In at least three of these four instances, including this case, the failure was due to an avoidable
mistake on its part. Moreover, since this motion was filed, Elk Run filed another motion to
reopen an assessment which had become final because of an avoidable mistake. See Elk Run
Coal Co., 29 FMSHRC 613 (Aug. 2007); Elk Run Coal Co., 30 FMSHRC 423 (June 2008); Elk
Run Coal Co., 32 FMSHRC _ _, WEVA2009-1738 (Dec. 10, 2010).
32 FMSHRC Page 1620

Distribution:
Max L. Corley, III, Esq.
Dinsmore & Shohl, LLP
P. 0. Box 11887
900 Lee Street, Suite 600
Charleston, WV 25339
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA, U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1621

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

WASHINGTON, DC 20001

December 15, 2010
SECRETARY OF LABOR,
MINE SAFETY ANO HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2010-177-M
A.C. No. 40-00168-175532

v.
EAST TENNESSEE ZINC COMPANY

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners··
ORDER
BY: Jordan, Chairman; Young, Cohen, and Nakamura, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On November 30, 2009, the Commissic.m received from
East Tennessee Zinc Company ("ETZC") a motion by counsel seeking to reopen a penalty .
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815{a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105{a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l{b) {"the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 {Sept. 1995).
32 FMSHRC Page 1622

On February 3, 2009, the Department of Labor's Mine Safety an:d Health Adininistration
("MSHA") issued Proposed Assessment No. 000175532 to ETZC for fifteen citations that
MSHA had issued to the operator in December 2008. MSHA also issued Proposed Assessment
No. 000175533 to ETZC on February 3, 2009. ETZC states that upon receipt, it forwarded both
proposed assessments to counsel to have contests filed as to each, but that "during subsequent
administrative handling of the cases, Case No. 000175533 was contested, but inadvertently Case
No. 000175532 was not." Mot. at 2. ETZC asserts that it discovered it was delinquent upon
consulting MSHA's data retrieval system. Id. On December 24, 2009, the Commission received
a response from the Secretary of Labotstating that she does not oppose the request to reopen the
assessment.

Having reviewed ETZC's request and the Secretary's response, we conclude that ETZC
has failed to provide a sufficiently detailed explanation for its failure to timely contest the
proposed penalty, assessment. The operator's explanation that it failed to file a timely contest due
to "administrative oversight" by counsel (Mot. at 2), without any further elaboration, does not
provide us with an adequate basis to justify reopening the assessment. We note in particular that
ETZC fails to provide any explanation for its inaction during the prolonged period of over eight
months between the assessment becoming a final order and the filing of the motion to reopen.
Accordingly, we deny without prejudice ETZC's request. See, e.g., Eastern Associated Coal
LLC, 30 FMSHRC 392, 394 (May 2008); James Hamilton Constr., 29 FMSHRC 569, 570 (July
2007).

32 FMSHRC Page 1623

Any amended or r~newed request by ETZC to reopen Assessment No. 000175532 must
be filed within 30 days of the date of this order. Any such request filed after that time will be
denied with prejudice.
.
·
. ·

Robert F. Cohen, Jr., Commissioner

~

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 1624

Commissioner Duffy, dissenting:
I would grant this unopposed motion to reopen. In the past the Commission has denied a
motion to reopen because of the operator's delay in seeking relief after having been notified by.
the Secretary of its delinquency. Here, there is no evidence that a delinquency notice was sent
prior to the operator's discovery ef the delay upon its own investigation. On the basis of that
distinction and the Secretary's non-opposition, the motion should be granted

32 FMSHRC Page 1625

Distribution:
Michael T. Heenan; Esq.
Ogletree, Deakins, Nash,
Smoak & Stewart, P.C.
2400 N Street NW, 5th Floor
Washington, DC 20037
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1626

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

. December 15, 2010
SECRETARY OF LABOR, .
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 2010-1080
A.C. No.15-19008-212909

v.
B & W RESOURCES, INC.

BEFORE: Jordan, Chairman;
Duffy,
Young, Cohen, and Nakamura, 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 May 18, 2010, the Commission received :from B & W
Resources, Inc. ("B & W") a letter seeking to reopen a penalty assessment that had beconie a
final order of the Commission pursuant to section 105(a)ofthe Mine Act, 30 U.S.C. § 815(a).
Under section I 05(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (MayJ993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) ofthe
Federal Rules of Civil Procedure under which, for example, a party could be. entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on .the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995)..
.

'

32 FMSHRC Page 1627

On March 4,2010, the Department of Labor's Mine Safety and Health Administration
C'MSHA'') issued Proposed Assessment No. 000212909 to B & W proposing a penalty for one
order that had been issued to the operator on January 6, 2010. According to B & W, it had
moved its office and hired new personnel to manage the office. The operator explains that the
recipient's inexperience in promptly delivering mail to the appropriate person, and a change in
Safety Director personnel, contributed to the responsible person not receiving the assessment
fonn until April 15, 2010. The operator states that when the appropriate person received the
assessment form, the contest was promptly faxed to MSHA. The operator submits that it has
since corrected the personnel problem.
The. Secretary opposes the request to reopen. She states that B & W's explanation for the
failure to file a timely contest is conclusory and thus insufficient to establish grounds for
reopening the assessment. The Secretary notes that the fact of inadequate or unreliable office
procedures does not constitute an adequate excuse under Rule 60(b) of the Federal Rules of Civil
Procedure. The Secretary also points out that B & W is currently delinquent at this mine with
eight separate penalty assessments totaling $95,984.07, including this case, and has three oth~
mines sites that have an outstanding, delinquency totaling $4, 785.39, which she alleges is an .
indication that the operator has acted in bad faith in seeking to reopen this final order.
Having reviewed B & W's request and the Secretary's response, we conclude that the.
operator has not provided a sufficiently detailed explanation for its failure to timely contest the
proposed penalty assessment. Without further elaboration on all of the relevant circumstances,
including the allegations of delinquent penalties raised by the Secretary, the operator's
explanation has not provided the Commission with an adequate basis to reopen. Accordingly, we
hereby deny the request for relief withoµt prejudice. ·See Eastern Assoc. Coal, LLC, 30
FMSHRC 392, 394 (May 2008); James Hamilton Constr., 29 FMSHRC 569, 570 (July 2007).
The words "without prejudice" mean that B. & W may submit another request to reopen
Assessment.No. 000212909. 1

1

IfB & W submits another request to reopen these cases, it must establish good cause for
not contesting the citations and proposed assessments within 30 days from the date itreceivoo the
proposed penalty assessments from MSHA. Under Rule 60(b) of the Federal Rules of Civil
Procedure, the existence of "good cause" may be shown by a number of different factors
including mistake, inadvertence, surprise, or excusable neglect on the part of the party seeking
relief, or the discovery of new evidence, or fraud, misrepresentation, or other misconduct by the
adverse party. B & W should include a full description of the facts supporting its claim of"good
cause," including how the mistake or other problem prevented it from responding within the time
limits provided in the Mine Act, as part of its request to reopen these cases. B & W should also
include copies of all documents supporting its request to reopen these cases.
32 FMSHRC Page 1628

At a minimum, the operator must provide an affidavit satisfactorily responding to the
allegations raised in the Secretary's response, an explanation of how it normally contests
proposed penalties, and specific information regarding why that process did not work in this
instance. Any amended or renewed request by B & W to reopen Assessment No. 000212909
must be filed within 30 days of the date of this order. Any such request filed after that time will
be denied with prejudice.

Michael

Robert F. Cohen, Jr., Commissioner

~L

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 1629

Distribution:
Scott Warren ·
B& W Resources, fuc.
P.O. Box 249
Stanville, KY 41659
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris, Acting Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th· Floor
Arlington, VA 22209-3939

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

32 FMSHRC Page 1630

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

December 16, 2010

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 2011- 161
A.C. No. 15-17077-229820 Q7G

v.
B & S TRUCKING COMPANY, INC.

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

§ 801 et seq. (2006) (''Mine Ac;t"). On November 1, 2010, the Commission received from
B & S Trucking Company, Inc.,. a letter requesting that the Commission reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a). On December 1, 2010, the Commission received a response from
the Secretary of Labor stating that she does not oppose the request to reopen the assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
32 FMSHRC Page 1631

by the Federal Rules of Civil Procajure"); .!WR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed the facts and circumstances of this case, the operator's request, and the
Secretary's response, we hereby reopen this matter and remand it to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R.
§ 2700.28 .

.

·~
Michael F.

Duffy~s:ill;

Robert F. Cohen, Jr., Commissioner

I

·~.J

.

·.·.·W~·-···

Patrick K. Nakamura, Commissioner·

32 FMSHRC Page 1632

·.

Distribution:
Jim Brummett
Conference & Litigation Officer
B & S Trucking Co., Inc.
P.O. Box 313
Pineville, KY 40977
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris, Acting Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1633

FEDERAL MINE SAFETY AND H~ALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500

WASHINGTON, DC 20001

December 16, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket Nos. WEVA 2006-654, et al. .

v.
ARACOMA COAL COMPANY, INC.

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen Commissionera 1

ORDER ON MOTION FOR RECONSIDERATION
BY THE COMMISSION:
These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006). On December 18, 2008, the parties filed with the Chief Judge a joint
motion to approve settlement of 102 penalty dockets consisting of 1',302 separate citations and
orders, covering two mines. The joint motion enumerated the 102 penalty dockets and 1,302
citations and orders in Addendum 1 and Addendum 2 attached to the motion. Chief Judge
Robert Lesnick issued a Decision Approving Settlement/Order to Pay on December 23, 2008.
30 FMSHRC 1160 (Dec. 2008) (ALJ}. On January 22, 2009, the Commission on its own
motion, directed review of the judge's decision approving the settlement.
On January 23, 2009, the parties filed with the judge a Joint Motion to Correct Settlement
Order. The motion explained that the enumeration of the penalty dockets and of the citations and
orders in Addendum I and Addendum 2 of the settlement motion had contained inaccuracies.
Specifically, it had inadvertently contained 21 citations which were not part of the settlement,
and contained a number of errors in associating citations and orders with the correct penalty
docket. In their joint brief filed with the Commission, the parties noted the motion to the judge

1

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 Patrick K. Nakamura has elected not to
participate in this matter.
32 FMSHRC Page 1634

and pointed out that pursuant to Commission Procedural Rule 69(c), 29 C.F.R. § 2700.69(c), the
judge did not have authority to correct the clerical errors without leave of the Commission. Jt.
Br. at 1 n.l.
On November 17, 2010, the Commission issued a decision affirming the judge's approval
of the settlement. 32 FMSHRC _,Nos. WEVA 2006-654, et. al. (Nov. 17, 2010). On
November 24, 2010, the Secretary filed a motion for reconsideration pursuant to Commission
Procedural Rule 78(a), 29 C.F.R. § 2700.78(a), on behalf of the parties, which asked the'
Commission to reconsider its decision of November 17, 2010, so as to address the Joint Motion
to Correct Settlement Order previously filed with the Chief Judge.

The parties' joint motion to correct the Chief Judge's Decision Approving
Settlement/Order to Pay is granted, and pursuant to the January 23, 2009letter from the Solicitor
of Labor to Judge Lesnick, the Judge's December 23, 2008 Decision shall be corrected as
follows:
1. In the caption of the Decision, Docket Nos. WEVA 2007-444 and WEVA 2007-525
shall be deleted;
2. Docket Nos. WEVA 2006-659 and WEVA 2006-661 shall be added to the caption on
the first cover page of the Decision;
3. In the first paragraph of the Decision, the reference to "1,302 citations and orders"
shall be changed to "1,281 citations and orders;"
4. In both the first paragraph of the Decision and in footnote 1 on page 1 of the Decision,
the amount of the total assessment shall be changed from "$2,806,027to $2,803,293;"
5. In relation to Addenda 1and2 of the parties' Motion to Approve Settlement,
incorporated by reference into the court's December23, 2008 Decision Approving
Settlement/Order to Pay: ·
(a) the 20 citations set forth within Docket No. WEVA 2007-444 on pages 9 and
10 of Addendum 1 (relating to the Aracoma Alma Mine #1) shall be deleted, and
(b) the one citation set forth within Docket No. WEVA 2007-525 on page 3 of
Addendum 2 (relating to the Hernshaw Mine) shall be deleted;
6. That the following 19 citation numbers previously associated with Docket No. WEVA
2006-660- set forth on page 3 of Addendum 1 (relating to the Aracoma Alma Mine #1)- shall
be associated with Penalty Docket No. WEVA 2006-659:

32 FMSHRC Page 1635

7241394, 7241396, 7244374, 7244375, 7244376, 7244377,
7244378, 7244379, 7244380, 7244381,7249273, 7250537,
7250538, 7252615, 7252805, 7252808, 7252810, 7252811,
7252812;
7. That the following 20 citation numbers - set forth on pages 23 and 24 of Addendum 1
(relating to the Aracoma Alma Mine #1 )- shall be associated with Penalty Docket No. WEVA
2006-660:
7241398, 7241399, 7241400, 7244382, 7244383, 7244384,
7244386, 7252618, 7252619, 7252630, 7252640, 7252834,
7252838, 7252844,7252845, 7252850, 7252855,7252857,:
7252858, 7252859;
8. That the following two citation numbers - set forth on page 24 of Addendum I
(relating to the Aracoma Alma Mine #1) - shall be associated with Penalty Docket No. WEVA
2006-661:
7252866, 7253425;
9. That the following six citation and order numbers- set forth on pages 23 and 24 of
Addendum 1 (relating to the Aracoma Alma Mine #1)-shall be associated with Penalty Docket
No. WEVA 2008-1577:
6612795, 7182014, 7265918, 7265920, 7273497, 7280540;
10. That the following 30 citation numbers - set forth on pages 5 and 6 of Addendum 2
(relating to the Hernshaw Mine)- shall be associated with Penalty Docket No. 2008-1567:
6616651,6616652,6616653,6616654,6616655,6616658,
6616659,6616660,6616663,6616670,6616672,6616673,
6616679,6616680,6616681,6616682,6616717, 7279591,
7279594, 7279595,7279596, 7279599, 7279606, 7279607,
7279608, 7279609, 7279610, 7279612, 7279615, 7279618.

32 FMSHRC Page 1636

Accordingly, this matter is remanded to the Chief Judge to correct the settlement order as
indicated above to conform to the corrections submitted by the parties.

Mary Lu Jordan, Chairman

Michael F. Duffy, Commissioner

Robert F. Cohen, Jr., Commissioner

32 FMSHRC Page 1637

Distribution
Jerald Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22n<1 Floor
Arlington, VA 22209-2247
Mark E. Heath, Esq.
Spilman, Thomas & Battle, PLLC.
300 Kanawha Blvd., East
P.O. Box273
Charleston, WV 25321

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

32 FMSHRC Page 1638

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

December 16, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket Nos. WEVA 2006".'654, et al.

v.
ARACOMA COAL COMPANY, JNC.

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen Commissioners 1.
AMENDED DECISION
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801 et seq. (2006) ("Mine Act"). On December 23, 2008, Chief Administrative Law Judge
Robert Lesnick approved a settlement agreement between the Secretary of Labor and Aracoma
Coal Company ("Atacoma"), which disposed of 102 penalty dockets that encompassed 1,281
citations and orders. 30 FMSHRC 1160 (Dec. 2008) (ALJ). 2 Some of the citations and orders
resulted from an investigati9n by the Department of Labor's Mine Safety and Health
Administration ("MSHA") into conditions at Aracoma's Alma No. 1 Mine and the Hernshaw
Mine, following a fire at the Alma mine that resulted in two fatalities on January 19, 2006. Id.
at 1167. Others were alleged violations occurring at the two mines after the fire.

1

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 Patrick K. Nakamura has elected not to
participate in this matter.
2

The decision is amended pursuant to the parties' joint motion for reconsideration, filed
November 24, 2010. In that motion, the parties asked the Commission to reconsider its original
decision in this matter dated November 17, 2010, in order to address a joint motion to correct the
settlement order that had initially been filed with the Chief Judge after the Commission granted
review of this case on its own motion.
32 FMSHRC Page 1639

On J~uary22, 2009, pursuant to section ll3(d)(2)(B) of the Mine Act, 30 U.S.C.

§ 823(d)(2)(B), Chairman Jordan and Commissioner Cohen voted to order sua sponte review of
the judge's decision on the grounds that the decision may be contrary to law and presented a
novel question of policy. The Commission direction for review was limited to ''the question of
whether the provisions of the settlement agreement ... relating to the pattern of violations
procedures are consistent with the provisions and objectives of section 104(e) of the Mine Act,
30 U.S.C. § 814(e)." After receiving permission from the Commission, the Secretary and
Aracoma filed a joint brief on the question.
Having considered the judge's decision and the settlement agreement in light of thejoint
brief, Chairman Jordan and Commissioners Duffy and Young affirm the judge's decision. ·
Commissioner Cohen would vacate and remand the judge's decision approving the settlement.
Separate opinions of Commissioners follow.

Commissioners Duffy and Young, affirming the judge's decision:
We did not join in ordering sua sponte review because nothing at that time led us to
believe that the judge had abused his discretion in approving the settlement. Nothing we have
seen since disturbs that conclusion, so we affirln his decision.

Michaei F. Duffy, CoJJ)Jllissioner

32 FMSHRC Page 1640

Chairman Jordan, affirming the judge's decision:

I.

Introduction

In this civil penalty proceeding arising under-the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (2006) ("Mine Act"), the Commission granted review on: its own
motion of a decision approving a settlement agreement between the Secretary of Labor and
Aracoma Coal Company, Inc. ("Aracoma"). In his decision, Chief Judge Robert Lesnick
approved the settlement of proceedings consisting of 102 penalty dockets and 1,281 citations and
orders~ 30 FMSHRC 1160 (Dec. 2008) (ALJ) .. Twenty-five of these violations were designated
as contributing to the January 19, 2006 fire at Aracoma's Alma Mine No. 1 that resulted in the
deaths of two miners. Id. at 1167. The proposed penalties totaled $2,803,293. In the settlement
agreement, Aracoma agreed to accept all the violations as written and to pay a penalty of
$1,700,000. Id.
In addition to the civil penalties, Aracoma agreed with the United States Attorney for the
Southern District of West Virginia to enter a guilty plea to a ten-count information related to the
accident, and to pay a criminal fine of $2,500,000. Id. at 1169. The court subsequently accepted
this plea agreement. Letter of April 21, 2009, from Jerald S. Feingold, Attorney, United States
Department of Labor.
As part of the settlement, the parties also reached an agreement, discussed in detail below,
providing Aracoma with an opportunity to voluntarily provide the Department of Labor's Mine
Safety and Health Administration ("MSHA") with plans to reduce the rate of significant and
substantial ("S&S") violations at both its Alma No. I Mine and its Hernshaw Mine. Pursuant to
the agreement, each mine could remain on the plan as long as it continued. to maintain the goals
in its plan. MSHA would forego issuing a warning letter that would normally begin the process
of designating amine as exhibiting a "pattern of violations" (or "POV"), pursuant to 30 C.F.R.
§ 104.4, 30 FMSHRC at 1168, which as explained below, has potentially severe consequences
for an operator.

It is this latter portion of the settlement that is the focus of my review. In the Directfon
for Review, the Commission limited its consideration to "the question of whether the provisions
in the judge's settlement order relating to the pattern of violations procedures are consistent with
the provisions and objectives of section 104(e) ofthe Mine Act, 30 U.S;C. § 814(e)." Direction
for Review at 8. 1

1

Section 11 O(k) of the Mine Act provides that "[n]o proposed penalty. which has been
contested before the Commission under section 105(a) shall be compromised, mitigated, or
settled except with the approval of the Commission." 30 U.S.C. § 820(k). In considering
settlements, Commission judges must review each proposed settlement in light of the six
statutory factors set forth in section l lO(i) of the Mine Act. 30 U.S.C. § 820(i).
32 FMSHRC Page 1641

II. The Fire at the Alma No. 1 Mine
On January 19, 2006, a fire occurred at the Alma Mine No. 1 which resulted in the deaths
of two miners. Jt. Br. at 2. The fire resulted from frictional heating that occurred when the
longwall belt became misaligned in the 9 Headgate longwall belt takeup storage unit. Order
No. 7435539. This frictional heating ignited accumulations of combustible materials which
"were present in the form of grease, oil, coal dust, float coal dust, coal fines and loose coal
spillage at numerous locations along the approximate 2,000 feet (sic) length of the 9 Headgate
longwall belt conveyor." Order No; 7435532. "[T]he need for additional cleaning and rock
dusting" along the 9 Headgate longwall belt conv~yor was noted in the mine record books but not
corrected "for38 of the 56 examinations" between January 2, 2006 and January 19, 2006.
Order No. 7435527. Once ignited, the accumulations "quickly grew into the strong flaming fire
needed to ignite the flame resistant belt." .Order No. 7435532. The resulting belt fire generated
"copious quantities of hot, dense, toxic smoke." Id.
Immediately upon discovery of the fire, the belt examiner notified the responsible person
designated by the operator for that shift, but that individual failed to initiate an .immediate mine
evacuation. Order No. 7435538. The Atmospheric Monitoring System ("AMS") should have
provided a visual and audible signaI to all affected working sections when the carbon monoxide
concentration reached alarm level. However, the miners at 2 Section did not receive an
automatic notification because "[n ]o carbon monoxide alarm unit was installed at a location
where it could be seen or heard by miners on 2 Section." Order No. 7435523. Adequate visual
examinations ofthe alarms and sensors, as required by 30 C.F.R. § 75.351(n)(l) would have
revealed the lack of an alarm unit on 2 Section, as would have adequate training in the
installation of the system components. Order Nos. 7435521 and 7435548. There was an AMS
operator who was on duty when the mine fire occurred, but that person "did not promptly notify
the appropriate personnel that an alarm signal had been generated." Order No. 7435529.
During the preceding month, "[t]wo other fires occurred at this mine." Order
No. 7435524. Alarm signals were activated in the dispatcher's office on the surface but "[i]n
both cases, the miners in the affected areas of the mine were not notified of the alarms and were
not withdrawn to a safe location." Order No. 7435524.
When the fire occurred-on January 19, 2006, a breach in the separation between the belt
and escapeway "allowed smoke and carbon monoxide gas to inundate the primary escapeway
used by the miners during the evacuation from 2 Section." Order No. 7435530. The breach
existed because "prior to November 2005 ... one or more of the permanent stoppings that
provided separation between the No. 7 Belt conveyor entry and the primary escapeway in the
North East Mains were (sic) removed." Id. This condition should have been detected during
preshift exams. Order No. 7435108. An "inaccurate map" also "resulted in the operator not
correcting the lack of separation between the primary escapeway and the belt entry." Order
No. 7435537.

32 FMSHRC Page 1642

Efforts to fight the fire were hampered by several factors .. The fire-fighting equipment
was inadequate in that "[t]he threads of the female coupling of the fire hose were not compatible
with the threads of the male pipe of the fire hose outlet valve." Oider No. 7435534. The
pertinent water supply line ''was not capable of delivering 50 gallons of water per minute at a
nozzle pressure of 50 pounds per square inch." Order No. 7435533. According to an eye
witness, ''while attempting to fight the fire, the fire hose outlet valve located near the belt
conveyor takeup storage unit wa8 opened and no water was produced." Id. ·In addition, "[t]he
mine operator failed to install the water sprinkler system in accordance with 30 C.F.R.
§ 75.1101-S(a)." OrderNo. 7435535.
MSHA issued 25 citations and orders to Aracoma as a result of the fire and resulting
deaths of miners Don Bragg and Ellery Hatfield. All were denoted as significant and
substantial. 2 Of these, 21 were the result of"reckless disregard" which is defined in 30 C.F.R.
§ 100.3(d) as "conduct which exhibits the absence of the slightest degree of care." The
remaining four orders were characterized by MSHA as resulting from "high negligence."
MSHA assessed each of the 25 contributory violations the then-maximum penalty of $60,000.
Aracoma contested the assessments for these 25 citations· and orders. In addition to these
proposed assessments, Aracoma contested 1,256 other proposed assessments: Indeed, it appears
that Aracoma contested every penalty for a citation or order that MSHA issued between January
19, 2006, and May 6, 2008; the inclusive dates of the citations and orders in this case. The
citations and orders appended to the In Camera Joint Motion to Approve Settlement
("Settlement") include 298 proposed assessments for $60 each and 162 proposed settlements for
$100 each.

ill.

Overview of Commission Review of ALJ Decisions on Settlement Agreements

The Commission has recognized that oversight of proposed settlements of contested cases
is an important aspect of its adjudicative responsibilities under the Mine Act. Birchfield Mining
Co., 11FMSHRC1428, 1430 (Aug. 1989). Section llO(k) of the Mine Act, 30 U.S.C. § 821(k),
requires the Commission and its judges "to protect the public interest by ensuring that all
settlements of contested penalties are consistent with the Mine Act's objectives." Knox County
Stone Co, 3 FMSHRC 2478, 2479 (Nov. 1981); see also Co-op Mining Co., 2 FMSHRC 3475,
3475-76 (Dec. 1980) (rejecting judge's approval of a settlement after directing case for review
sua sponte). Our own procedural rules also require that all settlements be approved by the
Commissfon. Commission Procedural Rule 31, 29 C.F.R. § 2700.31.
The Commission has acknowledged that, although judges have wide discretion in their
oversight of the settlement process, "it is not unlimited and at least some of its outer boundaries

2

The S&S terminology is taken from section 104(d)(l) of the Act, 30 U;S.C.

§ 814(d)(l ), which distinguishes as more serious any violation that "could significantly and
substantially contribute to the cause and effect of a .... mine safety or health hazard."
32 FMSHRC Page 1643

are clear." Knox, J FMSHRC at 2479. As it has declared.in Knox, if a judge's approval or
rejection of a settlement is fully supported by the re~ord, consistent with the statutory penalty
criteria and not otherwise improper, the Commission will not disturb it. Id. at 2480.
However, the Commission has at the same time cautioned that in reviewing such cases,
"abuses of discretion or plain errors are not immune from reversal." Id. We have held that abuse
of discretion maybe found when "there is no evidence to support the decision or if the decision
is based on an improper understanding of the law." Akzo Nobel Salt, Inc., 19 FMSHRC 1254,
1258 n.3 (July 1997). Thus, "the abuse of discretion standard cannot be used as a rubber stamp
to approve all settlements." United States v. City of Miami, 614 F.2d 1322, 1335 (5th Cir. 1980).
As stated above, the Commission's review ofthejudge's decision approving settlement
in this case is limited to the portion of the agreement regarding how notification of potential
pattern of violations would occur. In examining the non-financial.aspect of the settlement, I take
into account the principle set forth in the separate opinion issued by Commissioner Marks and
me in Madison Branch Management, 17 FMSHRC 859, 867-68 (June 1995), that "[t]he
'affirmative duty' that section 11 O(k) places on the Commission and its judges to 'oversee
settlements,' .... necessarily requires the judge to accord due consideration to the entirety of the
proposed settlement package, including both its monetary and non-monetary aspects." Thus, the
judge properly took the. POV section of the settlement intq account in issuing his decision and
consequently, the Commission has the authority to review the POV issue in the parties'
settlement agreement.3

IV.

MSHA Procedures for Enforcement of Section 104(e) of the Mine Act

Before proceeding with a discussion of the parties' agreement relating to the POV
process, it is helpful to review the legal authority,on which the implementation of this heretofore
seldom-used provision of the Mine Act rests.4 Section I 04(e) of the Mine Act states in relevant
part:
( 1) If an operator has a pattern of violations of mandatory
health or safety standards in the coal or other mine which are of

3

In Madison Branch the Commission split evenly on the issue of whether a judge must .
consider both the monetary and non-monetary aspects of settlement agreements. 17 FMSHRC
at 860 n.l. For pmposes of this case, the parties have assumed that the law requires the
Commission and its judges to consider both monetary and non-monetary aspects of settlements.
Jt. Br. at 6 n.5.
4

One administrative law judge has concluded that the POV procedures and policy "are
little understood by many in industry and the bar," and acknowledged the "difficulty
comprehending the POV process." RockhouseEnergy Mining Co., 30 FMSHRC 1125, 1129
(Dec. 2008) (ALJ).
32 FMSHRC Page 1644

·such nature as could have significantly and substantially
contributed to the cause and effect of coal or other mine health or
safety hazards, he shall be given written notice that such pattern
exists. If, upon any inspection within 90 days after the issuance .of
such notice, an authorized representative of the Secretary finds any
violation of a mandatory health or safety standard which could
significantly and substantially contribute to the cause and effect of
a coal or other mine safety or health hazard, the authorized
representative shall issue an order requiring the operator to cause
all persons in the area affected by such violation, except those
persons referred to in subsection (c), to be withdrawn from, and to
be prohibited from entering, such area until an authorized
representative of the Secretary determines that such violation has
been abated.
(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 be issued by an authorized representative of
the Secretary who. finds upon any subsequent inspection the
existence in such mine of any violation of a mandatory health or
safety standard which could significantly and substantially
contribute to the cause and effect of a coal or other mine health or
safety hazard. The withdrawal order shall remain in effect until an
authorized representative of the Secretary determines that such
violation has been abated.
(3) If, upon an inspection of the entire coal or other mine,

an authorized representative of the Secretary finds no violations of
mandatory health or safety standards that could significantly and
substantially contribute to the cause and effect of a coal or other
mine health and safety hazard, the pattern of violations that
resulted in the issuance ofa notice under paragraph ( 1) shall be
deemed to be terminated and the provisions of paragraphs (1) and
(2) shall no longer·apply. However, if as a result of subsequent
violations, the operator reestablishes a pattern of violations,
paragraphs ( 1) and (2) shall again be applicable to such operator.

30 U.S.C. § 814(e).

32 FMSHRC Page 1645

In enacting this provision, Congress explicitly recognized why such a sanction was
necessary:
The need for such a provision was forcefully demonstrated during
the investigation by the Subcommittee on Labor of the Scotia mine
disaster which occurred in March 1976 in Eastern Kentucky. That
investigation showed that the Scotia mine, as well as other mines,
had an. inspection history of recurrent violations, some of which
were tragically related to the disasters, which the existing
enforcement scheme was unable to address. The Committee's
intention is to provide an effective enforcement tool to protect
miners when the operator demonstrates his disregard for the health
and safety of miners through an established pattern of violations;

. . . . The Committee believes that this additional sequence
and closure sanction is necessary to deal with continuing violations
of the Act's standards. The Committee views the [pattern of
violations] notice as indicating to both the mine.operator and the
Secretary that there exists at that mine a serious safety and health
management problem, one which pennits continued violations of
safety and health standards. The existence of such a pattern; should
signal to both the operator and the Secretary that there is a need to
restore the mine to effective safe and healthful conditions and that
the mere abatement of violations as they are cited is insufficient.
S. Rep. No._95-181, at 32-33 (1977), reprinted in Senate Subcomm. On Labor, Comm. on
Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 620-21
(1978).
Despite the insistence of Congress on the need for this enforcement mechanism,
implementing regulations were not promulgated until 1990. See 55 Fed. Reg. 31,128 (July 31,
1990). The regulations describe MSHA's procedures for determining whether an operator has
demonstrated a POV. 30 C.F.R. § 104.1 et seq. They establish a four-step process to designate a
POV and to terminate POV status: (1) initial screening (section 104.2); (2) identification by
MSHA of mines with a potential POV by applying the regulatory criteria (section 104.3);
(3) designation of POV status and issuance of the designation to the operator (section I 04.4); and
(4) termination of POV status (section 104.5).
The first step includes an initial annual screening (which takes into account, among other
factors, the mine's history of S&S violations). 30 C.F.R. § 104.2. If the initial screening
indicates that the operator "may habitually allow the recurrence of' S&S violations, the second

32 FMSHRC Page 1646

step, MSHA's identification of mines with a potential POV, is triggered. 30 C.F.R. § 104.3.
The criteria used to make this determination include (1) a history of repeated S&S violations of a
particular standard, (2) a history of repeated S&S violations of standards related to the same
hazard, or (3) a history of repeated S&S violations caused by unwarrantable failure to comply.
30 C.F.R § 104.3: By use of the word "or," MSHA indicated that any one of these three
circumstances would trigger the next step. Significantly, pursuant to section 104.3(b), only
citations and orders which have become final shall be used to identify mines with a potential
POV.
Next, pursuant to section 104.4(a), if a potential pattern of violations is identified, MSHA
is to notify the operator in writing. The operator then has a variety of ways to respond, including
instituting a program to avoid repeated S&S violations at the mine. 30 C.F.R. § 104.4(a)(4).
However, if the district manager continues to believe that a potential POV exists at the mine, he
or she is to send a report to the appropriate MSHA Administrator, with a copy to the operator.
30 C.F.R. § l 04.4(b). The operator has an opportunity to respond to the report. After all of these
procedures, the MSHA Administrator decides whether to issue a notice of POV, constituting the
third step in the process. 30 C.F.R. § 104.4(c). Finally, the regulations provide for the
termination of POV status. 30 C.F.R. § 104.5.
Even after these regulations were in place, however, for many years no enforcement
action was taken byMSHA under section 104(e). US. Steel Mining Co., 18 FMSHRC 862, 872
(June 1996) (Comm 'r Marks, concurring). In fact, the agency only recently has begun to exercise
its authority under section 104(e) of the Act. Rockhouse, 30 FMSHRC at 1129.
MSHA issued a screening criteria and scoring model to determine if a potential POV
exists, and revised it in 2009. MSHA, Pattern of Violations Screening Criteria and Scoring·
Model - 2009, previously available at http://www.msha:gov/POV/POVScreeningCriteria.pdf. .
This document focuses on the initial screening criteria under 30 C.F.R. § 104.2, and lists a
number of initial screening factors. It lists a series of eight specific criteria, 5 five of which are
triggered by the issuance.of citations or orders, while the other three are triggered by citations or
orders becoming final orders of the Commission. Significantly, the initial screening criteria·
provides that unless a mine meets all of the criteria, it will not be considered under the next step
of the process, the pattern of violations criteria set forth in 30 C.F.R. § 104.3. One of the eight
initial screening factors is that "[t]he mines' (sic) rate of S&S Citations/Orders issued per 100
inspection hours during the 24 month review period is equal to or greater than 125% of the
National rate of S&S Citations/Orders issued per 100 inspection hours for that mine type and
classification." As described infra, this screening factor ofl25% of the national average is at the
heart of the settlement agreement between MSHA and Aracoma in this case.

5

Literally, there are 10 criteria listed. However, four of them are essentially pairs, one
being applicable to surface mines and facilities and the other being applicable to underground
mmes. Thus, effectively, there are eight criteria applicable to any given mine.
32 FMSHRC Page 1647

V.

The Settlement Agreement Between MSHA and Aracoma

With regard to pattern of violations, the Aracoma settlement agreement focuses entirely
on reducing the S&S violation issuance rate to 125% of the national average for underground
bituminous coal mines. (According to the agreemi:mt, the issuance rate for all underground
bituminous mines of S&S violations per l 00 inspection hours during the 24 months ending
June 30, 2008, was 7.1. During the same period, the Aracoma Alma #1 Mine had an issuance
rate of 15.6, while theHernshaw Mine had an issuance rate of 8.9). It provides that Aracoma
may submit a plan to reduce (for the Alma Mine, over two to three calendar quarters) and
maintain (for Hernshaw Mine) the rate to 125% of the national average.. No other action is
required of Aracoma to avoid a POV Notice.
I granted review of the judge's decision approving the settlement because the agreement
involved enforcement of section 104(e), the pattern of violations provision in the Mine Act that
the Secretary had not enforced against an operator to date. Although this statutory provision has
been in effect for over 30 years, the historic lack of enforcement means that both the practical
and legal implications of the Secretary's recent decision to breathe life into this once moribund
provision are still untested.
The settlement agreement states that ''[a]s long as the mine's S&S issuance rate remains
at or below 125% of the national average for that quarter; the mine will not.be considered as. ·
exhibiting a potential pattern of violations.... As long as each mine continues to achieve and
maintain the goals described above, that mine will be able to remain on its S&S reduction plan
indefinitely and MSHA will forego issuing potential pattern warning letters.'' Settlement at 6~ 7.
The "goals described·above" refer to the reduction of overall S&S violations to ·125% of the
national average. The language in this section suggests that MSHA is agreeing to permanently
forego issuing a POV warning letter to Aracoma as long as the mine's S&S violation rate does
not exceed l 25% of the national average.
However, -the agreement also states that the reduction plan "will remain in effect only as
long as the mine remains in immediate jeopardy of receiving a potential pattern warning letter
after the plan's adoption." Settlement at 5 n.3. It goes on to state that upon the first POV review
in which it is determined that an Aracoma·mine "is no·longer in jeopardy of receiving a potential
POV warning letter because the mine does not meet the screening criteria set forth at
http://www.msha.gov/Pov/POVScreeningCriteria.pdf, that mine will no longer qualify for
participation in the voluntary S&S reduction plan described herein, and will thereafter be
evaluated, along with all other mines, under MSHA 's normal pattern. of violations process," Id.
This language suggests that the plan, with its reliance on the 125% S&S violation rate, is not.·
permanent, and that Aracoma will be treated just like other companies after it achieves a
violation rate of 125% of the national average. Thus, it appears that the language of the
settlement agreement is inconsistent with regard to the duration of the reduction plan.

32 FMSHRC Page 1648

One might a8k why the duration of the reduction plan matters, since no mine can be
considered as having a potential pattern of violations if its overa11·s&S issuance rate is within
125% of the national average. My concern was that the Screening Criteria then published on the
internet could change in the future. MSHA could reconsider its Screening Criteria in the future,
and eliminate the 125% industry-wide.norm as a sine qua non of POV consideration. In that
case, based on the language contained on page 7 of the Settlement, Aracoma might contend that
MSHA could never enforce section 104(e) of the Mine Act against it so long as its overall S&S
issuance rate was within 125% of the national average. (Indeed, MSHA recently did revise its
Screening Criteria and withdrew the criterion regarding the 125% industry-wide norm,
http://www.msha.gov/pov/povsinglesource.asp, but those revised criteria are not at issue in this
case).
6
The Commission now has the benefit of a joint brief from the parties.
The joint brief
.
.
does not directly address the ambiguity in the settlement agreement regarding its duration, but it
states that the agreement would ''temporarily remove the Alma #1 Mine and the Hernshaw Mine
from the POV screening process and permit them to continue to operate under the voluntary S&S
reduction plan as long as the mines .continued to achieve the goals set forth in the agreement or
until they were no longer in jeopardy of receiving a potential POV warning letter at the time of a
subsequent POV review by the Secretary. Thereafter, Aracoma's mines would be treated
precisely like all other mines during a POV review." (Jt. Br. at 4-5).

VI.

Conclusion

Although I would have preferred more clarity on the question of the duration. of the
settlement agreement, it does not appear that the parties intended to permanently insulate
Aracoma from any future changes in the screening criteria that may occur. Consequently, I find
that the judge did not abuse his discretion in approving the settlement agreement between the
parties. Theref~re, I would affirm his decision .

. ·~?~·---

Mary L~Chairman · .

6

·.

The joint brief makes a general assertion that "in practical effect," Aracoma's voluntary
reduction plan is identical to the one an operator may provide under section 104.4(a)(4), but
provides no explanation to support this claim. Jt. Br, at 14; see also id. at 18 (Aracoma's
voluntary plan "requires no less than what would be required in plans submi.tted pursuant to a
formal notice issued under Section 104(e)").
32 FMSHRC Page 1649

Commissioner Cohen, dissenting:

It is a fundamental function of the Commission to ensure that the public interest is
adequately protected before a settlement is approved. Birchfield Mining Co., 11 FMSHR.C 1428,
1430 (Aug. 1989). In this case, the Commission took review on its own motion to detennine
whether this settlement of 1,281 citations and orders, including 24 section 104(d)(2) orders and
one section 104(a) citation resulting from the fatal fire at Aracoma's Alma No. 1 Mine on
January 19, 2006, metthatstandard.
My dissent is based on the Secretary's implementation of Section 104(e) of the Mine Act.
Section 104(e) is a provision under which Congress gave the Secretary strong powers to take
decisive action when an operator displays a "pattern of violations of mandatory health or safety
standards ... which are of such nature as could have significantly and substantially contributed
to the cause and effect of coal or other mine health-or safety hazards." 30 U.S.C. § 814(e)(l).
At the onset, it is important to recognize that the tragic deaths of Don Bragg and Ellery
Hatfield should never have occurred. The Secretary issued 25 citations and orders for violations
which contributed to the fire and the deaths ofBragg and Hatfield. 30 FMSHRC 1160, 1167
(Dec. 2008) (ALJ). The Secretary detennined that all of these citations and orders showed either
"reckless disregard" (defined in 30 C.F.R. § 100.3(d) as "conduct which exhibits the absence of
the slightest degree of care") or ..high negligence.". Aracoma has withdrawn its contests of these
citations and orders as part of the settlement agreement, In Camera Jt. Mot. to Approve
Settlement ("Settlement") at 9-10, 1 and thus the Commission accepts these citations as being
accurate and true.

I.
As Chairman Jordan has described, the fire resulted from frictional heating caused by a
misaligned longwall belt. The inspector observed numerous conditions which were "indicative
of prolonged operation of the longwall belt conveyor while the belt was misaligned." Order
~ · The Secretary assessed each of the 25 contributory citations and orders the thenmaximum penalty of$60,000. _She assessed a total of$2,803,293 for the total 1,281 citations and
orders included in the settlement. In reducing the total penalties to $1,700,000, the settlement
agreement merely stated that "[t]he civil penalty is to be apportioned in payment of each covered
citation and order in the same proportion as $1,700,000 is to the total assessment of$2,806,027."
Settlement at 4 n.2. (The assessment as subsequently corrected is $2,803,293). Thus, in terms of
the monetary settlement, the judge was informed only that each penalty was being settled for a
little less than 61 cents on the dollar. I question how a judge can fulfill his statutory
responsibility under section llO(k) of the Mine Act, so as to review a settlement of 1,281
citations and orders, when the judge has been informed only of the total amount of the
settlement. However, this issue is not part of the Direction for Review, and so I will not address
it.

32 FMSHRC Page 1650

No. 7435539: The frictional heating ignited accumulations of combustible material in the form
of grease, oil, coal dust, float dust, coal fines, and loose coal spillage at numerous locations along
the longwall belt conveyor. Order No. 7435532. The hazardous conditions of a misaligned belt
and accumulations of combustible material had not been identified in Aracoma's on-shift
examinations, Order No. 7435526. Where hazardous conditions, such as the need for cleaning
and rock dusting, were recorded in mine record books, they had not been corrected. Order
No. 7435527.
The miners on the longwall section were unable to fight the fire effectively because
of a number of violations. The water supply'line was not capable of delivering the required
volume of water. fudeed, when the fire hose outlet valve was opened, "no water was produced."
Order No. 7435533. Moreover, the threads of the female coupling of the fire hose were not
compatible with the threads of the male pipe of the fire hose outlet valve. Order No. 7435534.
Additionally, the water sprinkler system was improperly installed, and failed to provide coverage
over the belt takeup storage unit where the fire began. Order No. 7435535. The water sprinkler
system, fire hydrants and fire hoses had not been properly examined and tested before the fire.
Order Nos. 7435536 and 7435522.
Although the dispatcherwas immediately notified of the fire by the mine examiner, mine
management failed to initiate and conduct an immediate evacuation despite imminent danger to.
the miners. Order No. 7435538. Moreover, theAtmospheric Monitoring System ("AMS")
operator who was on duty when the fire occurr~ did not promptly notify appropriate personnel
that an alarm signal had been generated. Order No. 7435529. Miners were not promptly
evacuated to a safe area in response to AMS alarm signals. Order No. 7435524. ·
The miners on 2 Section, where Bragg and Hatfield worked, were unaware· that a fire
existed outby their location. The AMS, which was supposed to provide visual and audible
signals at all af(ectedworking sections when the carbon monoxide concentration at CO sensors
reached alarm level; failed because 1).0 carbon monoxide alarm unit had been installed at a
location where it could be seen or heard by miners on 2 Section.· Order No. 7435523.
When the miners on 2 Section finally attempted to evacuate the mine, their ability to
escape was compromised by additional violations. Aracoma had removed permanent stoppings
which provided separation between the belt conveyor entry and the primary escapeway in the
North East Mains. This lack of separation ''allowed smoke and carbon monoxide gas to inundate
the primary escapeway used by miners during the evacuation from 2 section." Order ·
No. 7435530. Moreover, adequate escapeway drills had not been conducted as required, Order
No. 7435531, the location of personnel doors in stoppings were not clearly marked so that doors
could be easily identified to someone traveling in the escapeways, Order No. 7435109, and the
mine map did not accurately depict the. location .of permanent ventilation controls or the
designations of escapeways, Order No. 7435537. Preshift and weekly examinations of the entries
were inadequate in failing to identify and correct the lack of separation between the belt conveyor
entry and the primary escapeway, and the lack of a clearly marked primary escapeway and

32 FMSHRC Page 1651

location of personnel doors. Order Nos. 7435525, 7435110, 7435108, 6643276, and 7435528.
Because of reduced visibility caused by the thick smoke; Bragg and Hatfield were separated from.
the section crew, and were unable to escape. Id.

,.
This was not the first time that Aracoma had reacted to a fire in an improper manner.
Two fires had occurred at this mine withiil a month of this fire, on December 23, 2005, and
December 29, 2005, and on both occasions CO sensors had activated alarm signals in the
dispatcher's office, but miners in affected areas were not notified of the alarms and were not
withdrawn to a safe location. On both previous occasions, MSHA had issued section 104(d)(2)
orders. MSHA determined that Aracoma's "repeated lack of proper response to the carbon
monoxide alarm signals is an indication of an attitude of indifference" to the requirements of
response to AMS alarm signals. Order No. 7435524.

II.
Chairman Jordan's opinion sets forth the text and legislative history of section 104(e) of
the Mine Act, the provision addressing a pattern of violations ("POV"). Slip op .. at 6-8.
Chairman Jordan also notes that although Congress enacted this provision in 1977, the Secretary
did not promulgate implementing regulations until 1990. Her opinion describes the
implementing regulations set forth at30 C.F.R. Part 104~ .the non-enforcement of those
regulations for many years, and the Secretary's issuance several years ago of a Screening Criteria
and Scoring Model (hereinafter "Screening Criteria") to determine if a POV exists. Id. at 8-9.2
The purpose of the Screening Criteria appears to be to screen out all but the most
egregious mine operators from even being considered for POV designation. Thus, one of the
Screening Criteria provides:
The mines' rate of S&S Citations/Orders issued per 100 inspection hours
during the 24 month review period is equal to or greater than 125% of
the National rate of S&S Citations/Orders issued per I 00 inspection hours
for that mine type and classification.

In other words, a mine, during the 24 month review period, can not only have an S&S issuance
rate greater than the national average for such mines, but can be up to 25% worse than the
national average, and be excluded from consideration forPOV, no matter what else is in the
mine's violation or accident history. 3

2

On September 28, 2010, MSHA issued a set of revised Pattern of Violations Screening
Criteria, which replace the Screening Criteria discussed herein.
·

3

The revised Screening Criteria published September 28, 2010, supra, do not contain a
requirement that a mine's S&S issuance rate be at least 125% of the national average before the
mine can be considered as having a pattern of violations. The revised Screening Criteria appear
32 FMSHRC ~age 1652 ·

The Screening Criteria provision that no mine can be considered. for POV unless its S&S
issuance rate is at least 125% of the national average is contrary to the regulation it purports to
implement. Section 104.2 provides:

§ 104.2 Initial screening.
At least once each year, MSHA shall review the
compliance records of mines. MSHA's review shall include an
examination of the following:
(a) The mine's history of-'(1) Significant and substantial violations;
(2) Section 104(b) of the Act closure orders resulting from
significant and substantial violations; and
(3) Section 107(a) of the Act imminent dangerorders.
(b) In addition to the compliance records listed in paragraph
(a) of this section, the following shall also be considered as part of
the initial screening:
(1) Enforcement measures, other than section I 04(e) of the
Act, which have· been applied at the mine.
(2) Evidence of the mine operator's lack of good faith in
correcting the problem that results in repeated S&S violations.
(3) An accident, injury, or illness record that demonstrates a
serious safety or health management problem at the mine.
(4) Any mitigating circumstances.
(c) Only citations and orders issued after October 1, 1990,
shall be considered as part of the initial screening.
Screening criteria which prevent consideration for pattern of violations status if the operator has
an S&S issuance rate no more than 125% of the national average preclude consideration of
factors required to be considered under 30 C.F.R. § 104.2, such as a history of section 104(b)
closure orders and a history of section 107(a) imminent danger orders. It would not matter if, for
example, a mine had an egregious and dangerous history of imminent danger orders, as long as
the operator kept its S&S issuance rate within 125% of the national average. Thus, the Screening
Criteria are in conflict with 30 C.F.R. § 104.2.
fu the preamble to the final rule on POV, MSHA stated that the regulations should focus
on the safety and health record of each mine rather than "strictly quantitative comparisons of
mines to industry-wide norms." 55 .Fed. Reg. 31,128, 31,129 (July31, 1990). Significantly,
when 30 C.F.R. § 104.2 was initially published as a proposed rule, comnienters - citing the need
for operators to receive adequate notice of the specific factors which would cause them to be
identified through initial screening as having a potential POV - suggested that MSHA utilize a
0

to be designed to apply all of the factors set forth in 30 C.F.R. § 104.2. Hence, the discussion of
the Screening Criteria contained in this opinion does not apply to present MSHA policy.
32 FMSHRC Page 1653

statistical comparison of a mine's rate of violations with an industry-wide average, and the
agency rejected the suggestion:

A number of commenters stated thatthe initial screening
factors do not provide adequate notice to operators of the specific
number or combination ofcitations and orders which would cause
an operator to be identified through initial screening as having a
potential pattern of violations. Commenters suggested a variety of
specific statistical screening mechanisms, including comparison of
a mine's rate of violations with an industry~wide average.
Although the Agency has consider~ such a scheme, MSHA
believes that the initial screening criteria will allow identification
of those mines which are in a recurrent cycle of violation and
abatement with no correction of the underlying circumstances
giving rise to the violations. Additionally, the final rule is
consistent with the legislative history of section l 04(e), which
stresses that a pattern of violations does not necessarily mean a
specific number of violations of any particular standard.

Id. at 31,131.
Although the preamble made clear that the POV screening criteria were not to be based
on "strictly quantitative comparisons of mines to industry-wide norms," it appears that MSHA
did precisely that in providing that any mine within 125% of the industry average for S&S
violations will be excluded from further consideration as a mine on POV status. Thus, despite its
notice-and-comment rulemaking, MSHA has adopted a strictly quantitative sine qua non,
contrary to the language of the regulations.
ill.

With respect to Aracoma's POV status, the settlement agreement in this case focuses
entirely on whether Aracoma's S&S issuance rate exceeds 125%:of the national average. I
question the validity of the settlement agreement for that reason, and thus would find that the
judge erred in approving the settlement agreement.
The Commission has emphasized that a judge's approval or rejection of a settlement
agreement must "be based on principled reasons.'' Madison Branch Mgmt., 17 FMSHRC 859,
864(June1995) (quoting Knox County Stone Co., 3 FMSHRC 2478,2480 (Nov.1981)). Here,
the judge merely recited the terms of the section of the settlement agreement pertaining to the
POV provisions. However, the Screening Criteria, with the 125% issuance rate threshold for.
POV consideration, are in contradiction of 30 C.F.R. § 104.2, which provides for consideration
of a variety of factors, and, as explained in the preamble, are not to be based on "strictly
32 FMSHRC Page 1654

quantitative comparisons of mines to industry-wide norms." Clearly, a threshold of a 125% S&S
issuance rate is a quantitative comparison to an industry-wide norm. Mindful that a judge's
abuse of discretion in approving a settlement is ''not immune from reversal," Madison Branch,
17 FMSHRC at 864, I conclude that the judge abused his discretion in approving the pattern of
violations aspect of this settlement agreement.
In voting to review the judge's decision, I also sought to determine whether, in the
settlement agreement, the Secretary was enforcing the POV provision of the Mine Act more
leniently against Aracoma, as compared with other operators. 4 According to the Settlement, the

4

If this were the case, it could be the resultof Aracoma's litigation strategy, which
involved contesting every single penalty MSHA assessed for each of the 1,281 citations and
orders issued over a period of two years and three months, beginning with the date of the Alma
No. 1 fire. In this group of 1,281 citations and orders were 298 assessments for the previous
minimum of$60.00and162 assessments for the later minimum of$100.00. I question whether
there is a basis to contest 1,281 consecutive penalties, including 460 minimum penalties, other
than an intent to obstruct the enforceDJ.ent system. Such has been the practice in other industries, ·
such as tobacco. For example, R.J. Reynolds Tobacco Company was able to win dismissal of a
case by burying its opponent in paper. In a confidential memo, an attorney for R.J. Reynolds
boasted about the strategy: "The aggressive posture we have ta.ken regarding depositions and
discovery in general continues to make these cases extremely burdensome and expensive to
plaintiffs' lawyers, particularly sole [practitioners] ..... To paraphrase General Patton, the· way
we won these cases was not by spending all of Reynolds' money, but by making that other son of
a bitch spend all his." See Kenneth Lasson, Lawyering Askew: Excesses in the Pursuit ofFees
and Justice, 74 B.U.L. Rev. 723, 755 (1994). It would be outrageous if an operator was able to
ignore mine safety, and then achieve a more favorable settlement of the resulting violations by
clogging the appellate system with frivolous penalty contests. From a purely economic
standpoint, this would give such an operator a competitive advantage over mine operators which
were spending the necessary money to keep their mines safe~· More law-abiding operators would
have an incentive to change their practices for the worse, calculating that they could similarly
stonewall penalties for better than two years, settle everything for 61 cents on the dollar, and
walk away with no sanction other than a requirement to bring their S&S rates down to 125% of
the national average.
This poses an especially difficult problem in an industry where there have historically
been some operators willing to subordinate safety responsibilities to production imperatives.
See, e.g., Consolidation Coal Co., 23 FMSHRC 588, 597 (June 2001) (operator subordinated
cleanup responsibilities to its desire to complete construction); Consolidation Coal Co., 22
FMSHRC 328, 332 (Mar. 2000) (operator failed to rectify a violative condition so as not to
interfere with production); Jim Walter Res., Inc., 19 FMSHRC 1761, I 770 (Nov. 1997) (in order
to continue production, operator made a conscious decision to evade a device designed to act as
an important preventive safeguard). The January 19, 2006 fire at Aracoma's Alma No. 1 Mine is
consistent with the Supreme Court's characterization of the mining industry as "industrial
32 FMSHRC Page 1655

Alma Mine# 1 had a rate of 15.6 S&S citations and orders per 100 on-site inspection hours
during the baseline 24 month period ending on the last day of June 2008. Settlement at 5. The
Settlement further indicates that the National Average for All Underground Bituminous Mines
was 7.1 S&S citations and orders per 100 on-site inspection hours, so that 125% of the national
rate was 8.9 S&S citations and orders per 100 on-site inspection hours. Id. at 6. Presumably,
with an S&S issuance rate which was 220% of the national average, the Alma No.I Mine was a
prime candidate for POV status, at least after the requisite violations had become final.
If MSHA had issued a notice of potential pattern of violations for the Alma No. 1 Mine
pursuant to 30 C.F.R. § 104.4(a), Aracoma would have had an opportunity to "[i]nstitute a

program to avoid repeated significant and substantial violations at the mine" pursuant to 30
C.F.R. § 104.4(a)(4). The record does not indicate what requirements MSHA typically imposes
on other operators in their section 104.4(a)(4) programs.
Specifically, assuming hypothetically that an operator has received a section 104.4(a)
warning letter because its section 104.3 analysis revealed a history of repeated S&S violations of
standards relating to respirable dust hazards, would MSHA require this operator to specifically
address respirable dust in its section 104.4(a)(4) program, or would MSHA be satisfied ifthe
operator simply reduced its overall rate of S&S violations to 125% of the national average or
less? If it is the latter, then Aracoma is not being treated differently. However, if MSHA
normally requires .an operator to address specifically the problems which have been identified in
the section 104.3 analysis (e.g., respirable dust), then Aracoma is being treated differently from
other operators. One could pose similar hypothetical· questions based on any of the pattern .
criteria contained in 30 C.F.R. § 104.3 (i.e., repeated S&S violations of a particular standar~
repeated S&S violations relating to the same hazar~ or repeated S&S violations caused by
unwarrantable failure to comply). The question is whether a section 104.4(a)(4) remediation
program requires an operator to focus on the particular issue which brought about the written
warning of a potential pattern ofviolation:s under section 104.4(a), or whether MSHA is satisfied ..
that an operator- brings its S&S issuance rate down to 125% of the national average. There is no
information in the record to clarify this point.

activity with a notorious history of serious accidents and unhealthful working conditions."
Donovan v. Dewey, 452 U.S~ 594, 603 (1981).
32 FMSHRC Page 1656.

Based on the record before us, I would hold that the Chief Administrative Law Judge
abused his discretion in approving a settlement agreement which, with respect to the pattern of
violations provisions, is based on a principle - that an operator cannot be found to have
committed a pattern of violations pursuant to section 104(e) of the Mine Act unless its S&S
issuance rate is at least 125% of the national average for similar mines -which is contrary to the
regulations, 30 C.F.R. § 104.2. Therefore, I respectfully dissent.

Robert F. Cohen, Jr., Commissioner

32 FMSHRC Page 1657

Distribution
Jerald Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2247
Mark E. Heath, Esq.
Spilman, Thomas & Battle, PLLC.
300 Kanawha Blvd., East
P.O. Box273
Charlesto~ WV 25321

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

32 FMSHRC Page 1658

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

December 17, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEVA 2009-688
A.C. No. 46-08693-164121

v.
Docket No. WEVA 2009-1037
A.C. No. 46-06558-169988

HIGHLAND MINING COMPANY

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY: Duffy, Young, Cohen, and Nakamura, Commissioners
These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq~ (2006) ("Mine Act"). On January 21 and March 25, 2009, the Commi~sion
received from Highland Mining Company (''Highland") motions made by counsel tO reopen,
respectively, Proposed Assessment Nos. 000164121and000169888, ~ach of which had become
a final order of the Commjs~ionpursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 {May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a b,arsh remedy and that, if the defaulting party can make a showing of good cause

32 FMSHRC Page 1659

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).
In the case of Proposed Assessment No. 000164121, Highland originally explained that it
was signed for by the company receptionist but was subsequently lost within the operator's
internal mail system and never delivered to that mine's safety director for processing. With
respect to Proposed Assessment No. 000169988, Highland stated that the proposed penalty
assessment was mispla.Ced on the desk of the safety director for that mine, and that, as a result,
Highland inadvertently failed to transmit the proposed penalty assessment to counsel for the
filing of a contest. In both instances Highland moved to reopen soon after receiving a notice
from the Department of Labor's Mine Safety and Health Administration ("MSHA") stating that
payment on the proposed assessment was delinquent. The Secretary did not oppose either of the
requests to reopen. 1
In Highland Mining Co., 31 FMSHRC 1313, 1316 (Nov. 2009), a consolidated order that
also addressed other Highland motions to reopen, a majority of the Conunission denied
Highland's requests to reopen Proposed Assessment Nos. 000164121 and 000169988 without
prejudice. The Commission stated that should Highland renew its request to reopen, it would
need to "fully explain the circumstances" of its failure to timely contest the assessments at issue,
and what steps it has taken to ensure both that it does not misplace assessments in the future and
that it responds to them in a more timely manner. Id.

Highland has now filed renewed motions to reopen the two assessments. With regard to
Proposed Assessment No. 000164121, it again states that the proposed assessment was lost in
transit between a secretary for Highland and its safety director for the mine. Highland notes that
no other persons have knowledge of what happened. In the case of Proposed Assessment
No. 000169988, the safety director for that mine received the assessment and marked which ·
penalties Highland intended to contest, but failed to forward it to the operator's counsel to submit

1

We consider the Secretary's position in light of the provisions of the Informal
Agreement between Dinsmore & Shohl Attorneys and Department of Labor - MSHA Attorneys Regarding Matters Involving Massey Energy Company Subsidiaries" dated September
13, 2006. That agreement was in effect when the Secretary filed her responses. Therein, the
Secretary agreed not to object to any motion to reopen a matter in which any Massey Energy
subsidiary failed to timely return MSHA Form l 000-179 orinadvertently paid a penalty it
intended to contest so long as the motion to reopen is filed within a reasonable time. Thus, we
assume that the Secretary was not considering the substantive merits of a motion to reopen from
any Massey Energy subsidiary so long as the motion was filed within a reasonable time. Such
agreements obviously are not binding on the Commission, and the Secretary's position in
conformance with the agreement in this case has no bearing on our determination on the merits
of the operator's proffered excuse. The Commission has been informed that, since the time the
Secretary filed her responses, she has rescinded the agreement.
32 FMSHRC Page 1660

to MSHA. The safety director's affidavit explains in detail what other duties and obligations
prevented him from acting on the assessment.
Highland also states that, starting in June 2009, before the issuance of the Commission's
order, it began to coordinate its response to proposed assessments with its parent company,
Massey, so as to better keep track of assessments. Since then, the process has been further:
centralized, with MSHA mailing all assessment· forms issued to Massey subsidiaries directly to
Massey, which then consults With the subsidiary in responding to the assessment.
Having reviewed Highland's renewed requests to reopen, in the interests ofjustice, we
hereby reopen these matters and remand them to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file petitions for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 1661

Chairman Jordan, dissenting:
In my dissent from the prior Commission order in this case, I stated that I would deny the
motions at issue with prejudice. I concluded that "indifference, as opposed to inadvertence,
would appear to more accurately describe the underlying reason for Highland's pattern
untimely contests." Highland Mining CQ., 31FMSHRC1313, 1318 (Nov. 2009). Highland's
renewed motions to reopen fail to provide a sufficient ratiol)ale for revising this determination.
Accordingly, I conclude that relief is not warranted and would deny the renewed motions with
prejudice.

of

32 FMSHRC Page 1662

Distribution:
Max L. Corley, III, Esq.
Dinsmore & Shohl, LLP
P. 0. Box 11887
900 Lee Street, Suite 600
Charleston, WV 25339

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

32 FMSHRC Page 1663

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

December 17, 2010
SECRETARY OF LABOR,
M1NE SAFETY ANb HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2009-689
A.C. No. 46-08693-167069

v.
HIGHLAND MINING COMPANY

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY: Jordan, Chainnan; Young, Cohen, and Nakamura, Commissioners
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 21, 2009, the Commission received from
Highland Mining Company ("Highland") a motion made by counsel to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

32 FMSHRC Page 1664

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).
Highland's original request stated that the proposed penalty assessment, No. 000167069,
was misplaced on the desk of the operator's safety director, and that; as a result, Highland
inadvertently failed to transmit the proposed penalty assessment to counsel for the filing of a
contest. The operator further stated that, after discovering the mistake, it immediately
transmitted the matter to counsel, who submitted the contest to the Department of Labor's Mine
Safety and Health Administration ("MSHA") that same day. After MSHA rejected the
submission as untimely, the operator filed its motion to reopen. The Secretary stated that she did
not oppose the reopening of the proposed penalty assessment. 1
In Highland Mining Co., 31 FMSHRC 1313, 1316 (Nov. 2009), a consolidated order that
also addressed other Highland motions to reopen, a majority of the Commission denied
Highland's request to reopen Proposed Assessment No. 000167069 without prejudice. The
Commission stated that should Highland renew its request to reopen, it would need to "fully
explain the circumstances" of its failure to timely contest the assessments at issue, and what steps
it has taken to ensure both that it does not misplace assessments in the future and that it responds
to them in a timely manner. Id.
Highland has filed a renewed motion to reopen Proposed Assessment No. 000167069. Its
safety director explains that he received the assessment and marked those penalties Highland
intended to contest, but the inteiruption·of other job duties led to the form remaining on his desk.
The safety director further states that, over time, the form got intermingled with other documents,
and consequently was not forwarded in a timely manner to operator's counsel, as it otherwise
would have been.
Highland also states that, starting in June 2009, it began to coordinate its response to
proposed assessments with its parent company, Massey, so as to better keep track of assessments.

1

We consider the Secretary's position in light of the provisions of the Informal
Agreement between Dinsmore & Shohl Attorneys and Department of Labor- MSHA Attorneys Regarding Matters Involving Massey Energy Company Subsidiaries" dated September
13, 2006. That agreement was in effect when the Secretary filed her response. Therein, the
Secretary agreed not to object to any motion to reopen a matter in which any Massey Energy
subsidiary failed to timely return MSHA Form I 000-179 or inadvertently paid a penalty it
intended to contest so long as the motion to reopen is filed within a reasonable time. Thus, we
assume that the Secretary was not considering the substantive merits of a motion to reopen from
any Massey Energy subsidiary so long as the motion was filed within a reasonable time. Such
agreements obviously are not binding on the Commission, and the Secretary's position in
conformance with the agreement in this case has no bearing on our determination on the merits
of the operator's proffered excuse. The Commission has been informed that, since the time the
Secretary filed her response, she has rescinded the agreement.
32 FMSHRC Page 1665

Since then, the process has been further centralized, with MSHA mailing all assessment forms
issued to Massey subsidiaries directly to Massey, which then consults with the. subsidiary in ·
responding to the assessment.
With regard to Proposed Assessment No~ 000167069, we find Highland's explanation for
why it did not respond in a timely manner to be insufficient, especially in light oforir previous
order. The safety director's excuse that other job duties interrupted him from forwarding the
assessment on a timely basis cannot be accepted without further details regarding what those .l
duties were, whether those duties were extraordinary, and the amount of time devoted to those
duties. Consequently, we again deny Highland's request, this time with prejudice.

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 1666

Commissioner Duffy, dissenting:
While the explanation Highland provided in its renewed motion for why it was delinquent
in responding to the proposed penalty assessment was not as detailed as it could have been, the
renewed motion explains how Highland had begun to improve its assessment response
procedures even before we issued our earlier order denying its motion to reopen. Moreover,
Highland has not moved to reopen a default in over 20 months. Consequently, I would deem
Highland's renewed motion as sufficiently responsive to our earlier order, and grant its request to
reopen. 1

Michael F. Duffy, Commissioner

1

My colleagues' reference to a now-defunct agreement between the Solicitor of Labor
and counsel for the operator may not be relevant here. See supra, at 2 n. l. While that general
agreement not to oppose certain motions to reopen did not allow one to determine whether the
Secretary's non-opposition.was substantive or not, the Secretary ultimately rescinded that
agreement in May of2009, six months prior to our initial denial of Highland's request to reopen
and ten months before this renewed motion was filed. The Secretary did not respond to the
renewed motion, so one could just as easily presume that her prior notice of non-opposition was a
substantive rather than a pro forma position.
32 FMSHRC Page 1667

Distribution:
Max L. Corley, ill, Esq.
Dinsmore & Shohl, LLP ·
P. 0. Box 11887
900 Lee Street, Suite 600
Charleston, WV 25339
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-:2296

Myra James, Chief,
Office of Civil Penalty Compliance
MSHA, U.S. Dept. Of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1668

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

December 22, 20 I 0 .

Docket Nos. WEVA 2006-853
A.C. No. 46-08791-090341-01

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

Docket No. WEVA 2006-854
A.C. No. 46-08791-090341-02

v.

Docket No. WEVA 2007-666
A.C. No. 46-08791-121866

WOLF RUN MINING COMPANY

BEFORE: Jordan, Chairman; Duffy, Young, and Nakamura, Commissioners1
DECISION
BY THE COMMISSION:
These consolidated civil penalty proceedings, arising under the Federal Mine Safety and
Health AC:t of 1977, 30 U.S;C. § 801 et seq. (2006) ("Mine Act" or "Act"), involve five citations
issued to Wolf Run Mining Company ("Wolf Run") for violations of30 C.F.R. 75.521. 2 Judge
1

Commissioner Robert F. Cohen, Jr., is recused in this case.

2
·

Section 75.521 states:
[ 1]Each ungrounded, exposed power conductor and each
ungrounded, exposed telephone wire that leads underground shall
be equipped with suitable lightning arresters of approved type
within 100 feet of the point where the circuit enters the mine.
[2]Lightning arresters shall he connected to a low resistance
grounding medium on the surface which shall be separated from ..
neutral grounds by a distance of no less than 25 feet.

30 C.F.R. § 75.521. The regulation as it pertains to power conductors originated as section
305(p) of the Federal Coal Mine Health and Safety Act of 1969 ("Coal Act"), and was carried
over as the same section of the Mine Act, 30 U.S.C. § 865(p). The statutory language was
promulgated as section 75.521 after the enactment of the Coal Act. 35 Fed. Reg. 17,890, 17,910
32 FMSHRC Page 1669

Jerold Feldman affirmed three citations that allegeclviolations of the standard but vacated two
others. 31 FMSHRC 640, 666 (June 2009) (ALJ). He also concluded that the Secretary of Labor
had established that one of the violations he.affirmed was significant and substantial ("S&S"), but
that she had failed to establish as S&S the other violation that the Department of Labor's Mine
Safety and Health Administration ("MSHA") had designated as such. 3 Id. The Commission
subsequently granted cross-petitions for discretionary review filed by Wolf Run and the Secretary
challenging the judge's determinations.

I.
Factual and Procedural Backa=round
In early January 2006, 12 miners died and one was seriously injured as a result of an
explosion caused by lightning at Wolf Run' s Sago Mine, an underground coal mine in Upshur
County, West Virgina. 31 FMSHRC at 641, Jt. Ex. 2, at 2 (stipulations). MSHA's inspection of
the mine as part of its subsequent accident investigation resulted in the agency issuing a total of
149 citations and orders to Wolf Run, including the five citations now before the Commission,
though none were alleged to have contributed to the explosion. See Jt. Ex: 2, at 3, 5, 6, 7, 8, 9.4
MSHA's investigation included a complete inspection of all electrical equipment at the
mine, which resulted in the issuance of many citations and orders to the operator. 31 FMSHRC
at 641-42; Jt. Ex. 2, at 3. In these three dockets, Wolf Run contested 36 of the electrical citations
and orders and their associated penalties. 31 FMSHRC at 640. The Secretary and WolfRuri
settled 31 of the citations and orders, with the operator agreeing to pay $25~257 of the $28,339
that MSHA had initially proposed in penalties for those violations. Id. The judge approved the
settlement as part of his decision. Id. at 640, 666-67. The remaining five citations, all aUeging a
violation of the requirements of section 75.521 regarding the use oflightning arresters, went to
hearing.
By way of background, a lightning strike from as much as a mile away can cause a surge
of energy on a power conductor. Id. at 645. Even when it does not hit the conductors directly,

(1970). It was revised in 1973 to include ungrounded, exposed telephone wires. See 38 Fed.
Reg. 4974, 4975 (1973).
3

The S&S terminology is taken from section 104(d)(l) 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."
4

According to MSHA's investigation, the lightning ignited methane in an inactive
portion of the mine. 31 FMSHRC at 641 & n. l; Jt. Ex. 2, at 3. This destroyed seals separating
that area of the mine from its active portion, which permitted toxic levels of carbon monoxide to
enter a portion of th~ active mine. 31 FMSHRC at 641 & n. l.
32 FMSHRC Page 1670

such a strike can induce thousands of volts and amps of electric current into a power conductor.
Tr. 238-40. The purpose of a lightning arrester required by section 75.521 is to minimize the
amount of such energy entering into the underground portions of the mine. 31 FMSHRC at 643. 5
Unless a power conductor entering a mine from the outside is protected by a lightning
arrester, the excess energy from a lightning strike on the conductor would not be dissipated into
the ground, but could instead travel into the mine: via the conductor. Id.. at 645. This could
energize the frames of equipment, resulting in a shock or electrocution hazard, and the energy
could cause an arcing that would pose a fire hazard and an ignition source for methane. Id.
Four of the five citations at issue here involve the same type of allegation: a lightning
arrester was required but not provided for a power conductor or communications wire that was
located in whole or part aboveground on the surface at the Sago Mine, and either ran to, or
originated in, an underground portion of the mine. 6 In Citation No. 7582485, MSHA charged that
the lack of arresters on a 120-volt cable running from the fan house on the surface, through the
track entry; to a water pump underground, constituted a non-S&S violation of the standard.
Gov'tEx. l, 11, 12, 14, 16. Citation Nos. 7583316and7583317,whichwerebothdesignated
S&S, each involved the lack of arresters on two 575-volt cables, both of which originated at a
power center underground and powered separate battery cable chargers located on the surface.
Gov't Ex. 2, 3, 13, 20, 21. Citation No. 7335233, also designated S&S, charged Wolf Run with
violating the arrester requirement with respect to telephone paging and trolley phone system wires
that ran from the Dispatcher's Office and entered the mine through the track entry. Gov't Ex. 5.

5

The parties stipulated as follows regarding lightning arresters:
A lightning arrester is a device that liniits the overvoltage of
lightning or other electrical surges by providing an electrical path
between an ungrounded conductor and earth which is used as the
grounding medium. A simple lightning arrester consists of two
contacts that are separated by an air gap. One contact is connected
to the transmission line and the other is connected to earth. The
normal voltage of the circuit cannot bridge the gap. When an
overvoltage occurs it sparks the gap between the contacts. This
creates an electrical path for the excess energy to discharge to
earth.

Jt. Ex. 1, at 3.
6

Apparently it is rare for a mine to have equipment on the surface directly powered from
an underground source, or underground equipment directly powered from a source on the
surface. 31 FMSHRC at 659 n.4. Both types of situations occurred· at the mine.
32 FMSHRC Page 1671

The fifth citation in this case, referred to ,herein as the "grounding medium citation,"
involves the second sentence of section 75.521, which states that "[l]ightning arresters shall be
connected to a low resistance grounding medium on the surface which shall be separated from
neutral grounds by a distance of no less than 25 feet." When an arrester directs overvoltage from
lightning into the ground on the surface of the mine, an electrical field is created there, and serves
as the grounding medium for that arrester. That area cannot be too close to the separate area
serving as the neutral ground for a mine's underground electrical equipment, 7 otherwise electrical
current from.a lightning strike could travel along the neutral.grounding medium to the
underground equipment. To reduce the likelihood of such an event occurring, the second sentence
of section 75.521 requires that the grounding medium for a lightning arrester must be at least 25
feet away from the neutral grounding medium for the underground equipment. Tr. 344, 398-400;
Gov'tEx. 8 (MSHA Program Policy Manual ("PPM") excerpt for section 75.521 stating that
"[t]his distance prevents lightning surges from being transmitted to the neutral field where they
could momentarily energize the frames of equipment grounded to the neutral ground field").
The 25-foot distance was originally maintained at the Sago Mine, as there was a neutral
resistance ground field located more than 25 feet away from the electrical substation at the mine.
Tr. 333-35, 380; Jt. Ex. 1, at 2; Gov't Ex. 9. A gr01md wire ran to the field from the µnderground
portion of the mine, first in a high-voltage shielded cable running from the power center to a pole
outside the track portal and then as an overhead bare ground wire via another p,ole. Tr. 333-34,
339-40, 383-88.
The surface area around the substation was considered to be part of the grounding medium
for the arresters in question in this instance because the arresters were connected to the substation.
Tr. 325-26, 335, 340-46, 380-82, 397-98. Specifically, running from the substation, along a series
of power poles, were three high voltage power lines and a "static wire" above the lines, which was
there to provide "umbrella" type protection from lightning f9r those lines. Tr. 333-37, 348-49,
357, 364, 367-68, 374, 517-19; Gov't Ex. 9, 11, 23. Attached to one of the poles were a phone
line ground wire, three transformers, and multiple lightning arresters for the power lines. Tr. 32627, 347, 350, 355-56; Gov't Ex. 9, 23. The arresters and the static line had a common grounding
to earth via a copper wire running down that pole, known as a "butt ground," designed to transfer
the energy from any lightning strike down to the earth. Tr. 327, 331, 337-38, 347-48, 356, 35859, 378-79, 535-36; Gov't Ex. 9, 23.
Intermingled with the high voltage lines was a cable that included a ground wire, and that
cable powered the stacker belts, which were entirely above ground. Tr. 335-37, 359-60, 520-23;
Gov't Ex. 9, 23. That ground wire was also attachaj to the butt ground. Tr. 335-37, 359-60,
369-73. The Secretary alleges in Citation No. 7583340 that the ground wire in the cable did not
extend all the way to the stacker belts, but rather terminated early by connecting to the metal

7

The area designated to serve as the neutral ground for the ilnderground equipment is a
low resistance ground bed, which would serve to dissipate electricity from -the frames of that
equipment in the event of an electrical fault in the system. Tr. 383'"'.84.
. ,

32 FMSHRC Page 1672

rame of the conveyor belt structure, thus resulting in the neutral ground becoming common with
he lightning arrester ground, because that belt ran underground. Tr. 360, 366-67, 369~ 70, 375-77,
~79-80, 398-99, 523-24, 540-43; Gov't Ex. 4, 9.
After the hearing, the judge found that for the four citations alleging the lack of one or
nore required lightning arresters, the Secretary's interpretation of the term "exposed" was
·easonable and thus deserved deference. 31 FMSHRC at 656. ·He furtherconcluded, however,
hat it was impossible to install a lightning arrester on a cable that is connected underground
>ecause it would defeat the 25-foot separation requirementrequired bythe second sentence of the
:tandard; Id. at 657. Consequently, he held that power conductors containing such cables are not
:ubject to the provisions of section 75.521 because they are not ''ungrounded," while "power
:ables, telephone wires and trolley wires that are not grounded are subject to section 75.521."
d. at 659.
Turning to the individual citations, the judge started by addressing the grounding medium
:itation, holding that it
was issued because the lightning arrester' ground for the overhead
high voltage lines was connected to a ground wire for the power
cable supplying the surface belts which in tum was connected to the
conveyor belt frame on the surface. The problem arose beca.use the
U.nderground portion of the conveyor frame was the medium used.to
connect the underground equipment to the neutral grounds. This
condition clearly constitutes a violation ofthe25 feet separation
required in section 75.521. Citation No. 7583340 exemplifies why
section 75;521 does not apply to power conductors in cables that are
· connected through the neutral ground medium.

i. at 660. The judge also upheld the designation of the violation as S&S and the Secretary's
roposed penalty of $963. Id. at 661-62.
As for the two citations alleging violations of the arrester requirement with respect to the
attery charger cables (Citation Nos. 7583316 and 7583317), the judge vacated the citations.
t. at 649, 662; The judge found that the power center was grounded through the metal frame of
ie belt conveyor to the neutral ground field on the surface, and that, consequently, lightning
rresters could not be used on the power conductors contained in the cables under the second
~ntence of section 75.521. Id. at 662. Accordingly he vacated the two citations, and thus did not
~ach the issue of whether the violations were S&S. Id.
With regard to the water pump cable (Citation No. 7582485), the judge found that the
:tble was not connected to the conveyor frame or otherwise connected to neutral grounds, and
mid not be considered grounded as its ground wire was conducting electricity. Id. at 663. The

32 FMSHRC Page 1673

judge consequently found that the cable was subject to the lightning arrester provisions of section
75.521, upheld the citation, and assessed the $60 penalty requested by the Secretary. Id~
Finishing with the citation alleging the lack of lightning arresters on the communication
wires (Citation No. 7335233), the judge held the grounding of one of the trolley wires at issue to
the track at the track entry constituted· adequate grounding for purposes of section 75.521, as the
Secretary had conceded. Id. at 664; He also held that the grounding of the second trolley wire, at
the far end of the track, after it ran along the roof, complied with section 75.521 as well. Id.
Nevertheless, the judge concluded that there was a violation of section 75.521 because neither of
the two conductors in the cited telephone wires was grounded. Id. He refused to uphold the
designation of the violation as S&S, however, .because of his finding that any electrical surge from
lightning would destroy the 12-volt telephone wires before the wires entered the mine p-ortal. Id.
Consequently, the judge did not assess the penalty at $440 as requested by the Secretary, but
rather at $60. Id. at 663, 665.

II.

Disposition
Both parties filed petitions for discretionary review which the Commission granted. The
Secretary seeks review of the following: ( 1) whether the judge erred in finding that section
75.521 did not apply to the cables supplying the battery chargers because of the ground wires
within the cables and that to require the operator to ground the other conductors contained within
the cable would resultin a violation ofthe second sentence of the standard; and (2) whether the
judge erred when he found that the violation of the standard posed by the telephone wires was not
S&S. 8 WolfRun's PDR challenges: (1) the judge's decision to the extent that it upheld the
citations charging that the power conductors were subject to section 75.521 because they were
"exposed" under the standard; (2) the judge's determination that the grounding medium violation
had been established; and (3) the judge's conclusion that the grounding medium violation was an
S&S violation.

A.

The Groundin& Medium Citation (No. 7583340)

We begin with the grounding medium violation, even though it involves the second
sentence of section 75.521, because the judge employed his understanding of the basis for this
citation in determining that two of the four other alleged violations, involving the lightning
arrester requirement in.the first sentence of the standard, could not be established.

8

While the Secretary's petition for review included the question of whether the judge
erred in concluding that the grounding of the trolley wire at the far end ofthe track constituted
effective grounding for purposes of section 75.521 (S. PDR at 18-19), in her brief she withdrew
her request for review of that issue. S. Br. at 4.
32 FMSHRC Page 1674

1.

Violation

·Wolf Run argues that a violation of the second sentence of section 75.521 was not
established and thus that the judge's finding should be reversed. WR Br. at 35-38. According to
Wolf Run, the Secretary's witness acknowledged that the violation hinged on whether the ground
wire among the power cables was attached to the belt structure, and the evidence does not
establish that it was. Id. at 35-36. Wolf Run submits that the judge failed to resolve this key
factual dispute and to address its arguments that, even if there was a solid connection between the
ground wire and the belt frame; there was not necessarily a violation of section 7 5.521 in this
instance. Id. at 36-38.
The Secretary agrees with Wolf Run that the judge erred by not resolving the factual
dispute of whether the ground wire was connected to the structure, and thus urges the Commission
to vacate and remand the finding of violation. S. Br. at 28-29. The Secretary further agrees that
the judge failed to address Wolf Run' s additional arguments, previously set forth in the operator's
PDR, and states that on remand the judge should be instructed to do so. Id. at 29.
We agree with Wolf Run and the Secretary that the judge committed a fundamental error
in concluding that there was a violation in this instance. Arthur Wooten, the MSHA inspector
who issued the grounding medium citation, was the Secretary's primary witness at the hearing.
Tr. 158-60, 325. He stated early in his testimony regarding the citation that, ifthe ground wire in
the power cable had not been attached to the frame of the conveyor belt that led underground, no
citation would have been issued. Tr. 341. He explained that the grounding field for the three
arresters would have been the butt ground and the substation from which the cable originated, and
thus the 25-foot distance requirement of section 75.521 would have been maintained. Tr. 380-81,
560-61, 570-71.
Throughout his testimony, Wooten referred to the ground wire in the power cable as
having been attached not only to the butt ground wire (Tr. 335-37, 359-60, 369-73), but also to the
conveyor belt structure:, thus defeating the separation requirement. Tr. 360, 366-67, 369-70,
375-77, 379-80, 398-99, 523-25; Gov't Ex. 9, 23. However, WolfRun's safety manager, John
Semple, denied that the wire was attached to, and terminated at, the conveyor belt structure.
Tr. 727. He instead described the wire as bypassing the conveyor belt and ultimately being
attached to a control box for the,surface stacker belts. Tr. 726-29, 761-65. Another member of
the MSHA electrical inspection team, James Honaker, was called as a rebuttal witness to Semple.
Tr. 828-31. Honake~ confirmed Wooten's account and disputed part ofSemple's, testifying that
he had observed a solid connection between the ground wire at issue and the conveyor belt
structure. Tr. 831-32.
The judge essentially accepted as true the citation as written (see 31 FMSHRC at 660), but
at the hearing Wolf Run had clearly challenged the factual predicate of the citation. See also
WR Post-Hearing Br. at 13 (one issue in matter was "(w]hether the ground wire for the cable
conveying power to the surface conveyor equipment was attached to the underground conveyor

32 FMSHRC Page 1675

structure"). 9 Without resolution of the dispute over whether the ground wire was attached to the
conveyor belt structure, it is impossible to determine whether the Secretary has established the
condition that she alleges violated section 75.521 in this instance, and thus whether substantial
evidence supports the judge's decision to affirm the grounding medium citation. 10 Resolving the
dispute over whether the ground wire was so attached is primarily a matter of deciding which
witness or witnesses to credit, and is thus within the province of the judge in the first instance. 11
Consequently, we vacate the judge's affirmance of the grounding medium citation and remand it
for a resolution of whether the ground wire was attached to the belt structure. See Mid-Continent
Res., Inc., 16FMSHRC1218, 1222-23 (June 1994) (remand appropriate when judge has failed to
analyze and weigh all probative record evidence, make appropriate findings, and explain the
reasons for his or her decision).
Should he find that the.ground wire was so attached, the judge on remand must then also
address WolfRun's remaining arguments as to whether the Secretary had established a violation
of the second sentence of section 75.521. Wolf Run made these arguments in the brief that it
submitted after the hearing (at 3 8-40), but the judge did not address them. It preserved these

9

Citation No. 7583340 states:
The lightning arresters grounding medium was not separated from
the neutral grounds by a distance of 25 feet. The arresters were
wired in a manner that would not prevent the frames· of the
equipment being used underground which are connected to the
neutral grounding field from becoming energized in the event of a
strike on the surface. The arrester ground was connected to the
frames of the swface belt structure which are entering the mine
and are connected to the mine track and all underground electrical
·
equipment.

Gov't Ex. 4 (emphasis added).
10

When reviewing an administrative law judge's factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means" 'such relevant evidence as a reasonable
mind might accept as adequate to support [the judge's] conclusion."' Rochester &Pittsburgh
Coal Co., 11FMSHRC2159, 2163 (Nov. 1989) (quoting ConsolidatedEdison Co. v. NLRB,
305 U.S. 197, 229 (1938)).
1
'

B<:!cause the judge ''has an opportunity to hear the testimony and view the witnesses[,]
he [or she] is ordinarily in the best position to make a credibility determination." In re: Contests
ofRespirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1878 (Nov. 1995) (quoting
Ona Corp. v. NLRB, 729F.2d 713, 719 (11th Cir.1984)), ajf'd sub nom. SecyofLaborv.
Keystone Coal Mining Corp., 151F.3d1096 (D.C. Cir. 1998).
32FMSHRCPage1676

issues in its PDR (at 19-21) and its opening briefhere (at 36-38). Consequently, the judge is
required to address the arguments on remand. See Haro v. Magma Copper Co., .4 FMSHRC
1935, 1941 (Nov. 1982) (instructing the judge on remand to address arguments he had, in error,
failed to address originally).

2.

S&S

Vacating the judge's decision affirming the citation means that the judge's finding
upholding the violation as S&S is also vacated. 12 In addition to that ground for vacating and
remanding the S&S finding, the parties again agree that there are other grounds on which to do so.
Wolf Run argues thatthe conclusion that a violation is S&S requires a finding that there
was a reasonable likelihood that the hazard posed by a violation would result in an injury, and that
therefore the judge applied the wrong legal standard for S&S when he stated that an electrical
surge "could" result in a fire or explosion. WR Br. at 39-40 (quoting 31 FMSHRC at 661 ). The
operator also takes issue with thejudge's conclusion that the electricity from a lightning strike
would have necessarily been conveyed underground, or even if it was, whether it would have been
of sufficient voltage to be hazardous. Id. at 40-42.
The Secretary agrees that the judge misstated the legal standard for S&S in this instance,
and that he should have determined whether the evidence was sufficient to establish that there was
a reasonable likelihood that a lightning strike would result in an event causing injury. S. Br. at 30.,.
31. The Secretary would have the Commission remand the case to the judge to apply the proper
standard. Id. at 31. According to the Secretary, there is substantial record evidence to support an
S&S finding under existing law. Id. atJl n.1.8.The S&S terminology is taken from section 104(d) of the Mine Act, 30 U.S.C. § 814(d),
and refers to "significant and substantial," i.e., more serious, violations. A violation is S&S if,
based on the particular facts surrounding the violation, there exists a reasonable likelihood that the
hazard contributed to will result in an injury or illness ofa reasonably serious nature. See Cement
Div., Nat'/ Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co., 6 FMSHRC 1
(Jan. 1984), the Commission further explained:

In order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum, the
12

In affirming that the violation was S&S, the judge found that, while lightning is
unpredictable and random, it was dangerous to~expose miners underground to the significant
electrical surge that could result from a lightning strike on the high voltage lines. 31 FMSHRC
at 661. The judge further found that this created both an electrocution hazard with respect to
those miners in the vicinity of the underground equipment and an ignition source that could result
in a fire or explosion. He concluded that the Sago tragedy demonstrated the serious hazard posed
to miners by lightning. Id. at 661-62.
32 FMSHRC Page 1677

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

Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir.
1995); Austin Power, Inc. v. Secretary ofLabor, 861 F.2d99, 103 (5th Cir. 1988) (approving
Mathies criteria).
Should the judge conclude on remand that a violation of section 75.521 was established,
he will need to apply the Mathies factors to determine whether the violation was. properly
designated S&S. We note that in past cases we have not agreed that it is sufficient that a violation
''could" result in an injury. See Peabody Coal Co., 17 FMSHRC 26, 29 (Jan. 1995).
Accordingly, on remand the judge should be more precise when discussing the potential for
various injuries in the context of the Mathies analy$.is. ·
Moreover, the judge's decision does not reflect that he fully considered the evidence
proffered by the parties and mentioned in their briefs regarding. the likelihood of dangerous levels
of electricity surging underground in the event of a lightning strike. See 31 ·FMSHRC at 661-62 ..
His decision on remand should reflect that he considered the specific evidence that the parties
submitted on that key issue.

B.

The Arrester Requirement Citations (Nos. 7583316. 7583317.7582485,
7335233)

Only .those power conductors that run in part underground and are both "exposed" and
"ungrounded" on the surface are subject to the lightning arrester requirement contained in the first
sentence of section 75 .52 l. Therefore, to establish a violation, the Secretary had to prove that at
least one conductor contained in the cable or wire at issue in a citation was both "exposed" and
"ungrounded" as those terms are used in the standard. The judge held that the conductors were
uniformly "exposed" for purposes of the regulation, but that only some of the conductors could be
considered "ungrounded," and thus onlythose were subject to the arrester requirement. 3 l
FMSHRC at 655-59.
Where the language of a regulatory provision is clear, the terms of that provision must be
enforced as they are written unless the regulator clearly intended the words to have a different
meaning or unless such a meaning would lead to absurd results. Dyer v. United States, 832 F.2d·
1062, 1066 (9th Cir. 1987) (citations omitted); see also Utah Power & Light Co., 11 FMSHRC
1926, 1930 (Oct. 1989) (citations omitted); Consolidation Coal Co., 15 FMSHRC 1555, 1557
(Aug.1993). If, however; a standard is ambiguous, courts have deferred to the Secretary's
reasonable interpretation of the regulation. See Energy West Mining Co. v. FMSHRC, 40 F .3d

32 FMSHRC Page 1678

457, 463 (D.C. Cir. 1994); accord Sec'y of Labor v. Western Fuels-Utah, Inc., 900 F.2d 318, 321
(D.C. Cir. 1990) ("agency's interpretation ... is 'of controlling weight unless it is plainly
erroneous or inconsistent with the regulation"') (quoting Bowles v. Seminole Rock & Sand Co.,
325 U.S. 410, 414 (1945) (other citations omitted)).
The Secretary's interpretation of a regulation is reasonable where it is "logically consistent
with the language of the regulation[] and ... serves a permissible regulatory function." General
Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995) (citation omitted). The Commission's
review, like the courts' review, involves an examination of whether the Secretary's interpretation
is reasonable .. Energy West, 40 F .3d at 463 (citing Sec 'y ofLabor on behalfofBushnell v.
Cannelton Indus., Inc., 867F.2d1432, 1439 (D.C. Cir. 1989)); see also Consolidation Coal Co.,
14 FMSHRC 956, 969 (June 1992) (examining whether Secretary's interpretation was
reasonable).
1.

Whether the Power Conductors Were "Exposed"

Below, the parties stipulated that, for each of the power cables cited, certain wires within
the cables were the "power conductors" at issue, and that none of those wires were bare, as all
were insulated and were contained within an outer protective jacket covering the cable. Jt. Ex. 2,
at 5, 6-7, 7-8. The telephone wire and the trolley phone wires were also covered by insulation.
Id. at 9. Wolf Run contended that this established that the conductors could not be considered
"exposed" and thus the operator could not be found in violation of section 75.521 with regard to
any of the four citations. WR Post Hearing Br. at 16-19.
The Secretary disputed that the presence of the insulation and outer jacket established that
the conductors were not "exposed" under section 75.521. Inspector Wooten testified thatthe
insulation simply serves to keep the electrical current confined within, thus protecting anyone who·
may come in contact with the live copper leads inside the wires from the hazard of electrical
shock. Tr. 218-220. He further explained that the outer jacket was merely designed to provide
mechanical protection for the inner leads and to prevent them from being damaged. Tr. 218.
According to the Secretary's witnesses, neither the insulation nor the outer jacket protected the
conductors from the atmospheric effects of lightning, and thus MSHA considered the conductors
"exposed" under section 75.521. Tr. 218, 222-23, 276, 632.
At the hearing, the Secretary's witnesses also explained that, well prior to· 2006, the PPM
for section 75.521 provided a comprehensive illustration of the various ways in which a c6nductor
could be protected from the effects of lightning, and thus not be considered "exposed" under the
standard. Tr. 244-59. The PPM states that with regard to the first sentence of section 75.521:
Conductors that are (1) provided with metallic shields; (2)
jacketed by a ground metal covering or enclosure; (3) installed
under grounded metal· framework; (4) buried in the earth; or (5)
made of triplex or qliadraplex that is supported by a grounded

32 FMSHRC Page 1679

messenger wire, are not considered f!Xposed for the length so
protected.
Gov't Ex. 8 (emphasis added). The parties stipulated that none of the conductors at issue in the
four citations had the shielding referred to in the PPM (Jt. Ex. 2, at 5, 7, 8, 9), and it was
established at the hearing that none of the cables or wires at issue met any of the four other
qualifications. Tr. 258-59 (water pump cable), 289-91 (battery charger cables).
As it did below, Wolf Run maintains that the ordinary meaning of the tenn "exposed" is
"bare," as in lacking insulation or otherwise uncovered, and that the conductors at issue in each of
the four citations here were not bare. WR Br. at 9-19; WR Reply Br. at 8-10. 13 The Secretary
responds that "exposed" is an ambiguous term and that her interpretation of it to mean "exposed
to the effects of lightning" is a reasonable one, given that it is used in the context of a regulation·
designed to protect against the dangers oflightning. S. Br. at 20-25; S. Resp. Br. at 11-14.
To establish its asserted "ordinary" meaning of the term "exposed" in relation to
con,ductors, Wolf Run relies upon Merriam-Webster's Online Dictionary, http://www.merriamwebster.com/dictionaty/exposed (as accessed Oct. 13, 2008), which defines the term to mean "not
shielded or protected; also: not insulated <an exposed electric wires>." WR Br. at 1O; ·WR Ex. 1.
However, a number of other dictionary definitions of "exposed" support the Secretary's
interpretation of the term to mean "subject to the atmospheric effects oflightning."14 Under those
definitions, to "expose" a conductor can mean to put it in a. position in which it is subject to the
effects of lightning.
Where dictionary definitions must be relied µpon to establish the meaning of a term, and
those definitions show that a· term as it is used in a regulation is open to alternative interpretations,
the Commission has found the term to be ambiguous .. See Island Creek Coal Co., 20 FMSHRC

13

This argument is thus offered by Wolf Run as both as a basis on which it is appealing
the judge's decision affirming the water pump cable and telephone wire citations, and as an
alternative basis on which the Commission can uphold the judge's decision to vacatethe battery
charger cables citations, which the Secretary is challenging on appeal. As the party defending the
judge's decision with respect to the battery charger cable citations, Wolf Run can argue in
support of the judge's vacatur of those citations a basis for vacatur that the judge rejected - that·
the conductors cannot be considered "exposed" under the terms of section 75.521. See Sec '.Yon
behalf ofPrice & Vacha v. Jim Walter Res.~Jnc., 14 FMSHRC 1549, 1552 n.2 (Sept. 1992).
14

For instance, one definition of "expose" is "'to lay open (as to attack, danger, trial, or
test): make accessible to S()mething that may prove detrimental: deprive of shelter, protection, or
care." See Webster's Third New Int'/ Dictionary Unabridged 802 (1993). Another dictionary
defines "expose" to mean "to lay open to something specified." See The Random House
Dictionary ofthe English Language Unabridged 682 (2d ed. 1987).
32 FMSHRC Page 1680

14, 19 (Jan. 1998). Consequently, while the term "exposed" can be used to describe a wire that is
not insulated or otheiwise not covered, that is by no means the only meaning of the term.
Moreover, we ascertain the meaning of regulations not in isolation, but rather in the ·
context in which those regulations appear. RAG Shoshone Coal Corp., 26 FMSHRC 75, 80& n.7
(Feb. 2004). As the Secretary points out (S. Br. at 22), MSHA's Part 75 electrical regulations
demonstrate that when the agency refers to uninsulated wires, it uses the term "bare." See 30
C.F.R. §§ 75.516 ("bare or.insulated ground or-return wires"), 75.517 ("bare signal wires").
Accordingly, if MSHA had meant to limit the scope of section 75.521 to uninsulated wires, it
would have made more sense to use the term "bare" than the term "exposed."
Further, the terms of section 75.521 must be read in the context of a regulation clearly
designed with protection from the effects of lightning in mind. Consequently, interpreting the
term ''exposed" as referring to those effects makes much more sense than the interpretation
offered by Wolf Run;· We thus agree with the judge's reasoning upholding the Secretary's
interpretation of the term:
section 75.521 seeks to mitigate, by means oflightning arresters, the
hazard posed by the high[-]powered transmission of electrical
energy from a lightning strike from the surface to the underground
mine. Thus, the focus of the cited standard is on power cables that
are situated on the earth's surface and ''exposed" to lightning. It
naturally follows that the·term "exposed conductors" refers to the
location outside the underground mine, rather than their method of
insulation and protection from human contact.
31 FMSHRC at 656. 15
Finally, and perhaps most importantly, the meaningof"exposed" in section 75.521 is best
understood by the equivalent regulation that applies to underground metal and nonmetal mines.
Using more precise language, that regulation states:
Each ungrounded conductor or telephone wire that leads
widerground and is directly exposed to lightning shall be equipped
with suitable lightning arrester of approved type within I 00 feet of
the point.where the circuit enters the mine. Lightning arresters shall
be connected to a low resistance grounding medium on the surface

15

We also agree with the judge that this case can be decided without relying on the PPM.
Id. at 655-56. The purpose of the PPM is to explain to operators the different methods they can
employ under the regulation to protect power conductors from "exposure," and the citations in
this instance would have been justified even in the absence of the PPM.
32 FMSHRC Page 1681

and shall be separated from neutral grounds by a distance of not less
than 25 feet.
30 C.F.R. § 57.12069 (emphasis added). There is no logical reason why underground coal mines
would be subject to a regulation designed to be less protective with regard to the effects of
lightning than the regulation governing other mines, and it would make little sense for MSHA or
its predecessor agency to have intended such a result. Consequently, we uphold the Secretary's ·
interpretation ·of the term "exposed" as eminently reasonable in this instance.
Wolf Run argues that even if we accept the Secretary's interpretation of the term
"exposed," there remains the issue of whether the operator had been provided adequate notice of
that interpretation. WR Br. at 19-21. Separate from the issue of regulatory interpretation is
whether the regulated party has received fair notice of the Secretary's interpretation of the
regulation. Where the imposition of a civil penalty is at issue, considerations of due process
prevent the adoption of an agency's interpretation "from validating the application of a regulation
that fails to give fair warning of the conduct it prohibits or requires." Gates & Fox Co. v. OSHRC,
790 F.2d 154, 156 (D.C. Cir. 1986) (citations omitted). An agency's interpretation maybe
pennissible but nevertheless may fail to provide the notice required to support imposition of a
civil penalty. See Gen. Elec, 53 F.3d at1333-34; PhelpsDodge Corp. v. FMSHRC, 681 F.2d
1189, 1193 (9th Cir. 1982).
The Commission's test for notice under the Mine Act is "whether a reasonably prudent
person familiar with the mining industry and the protective purposes of the standard would have
recognized the specific prohibition or requirement of the standard." Ideal Cement Co., 12
FMSHRC 2409, 2416 (Nov. 1990). In deciding whether a party had adequate notice of regulatory
requirements, a wide variety of factors is relevant, including the text of a regulation, its placement
in the overall regulatory scheme, its regulatory history, the consistency of the agency's
enforcement, and whether MSHA has published notices informing the regulated community with
ascertainable certainty of its interpretation of the standard in question, Lodestar Energy, Inc.,
24 FMSHRC 689, 694-95 (July 2002); see Island Creek, 20 FMSHRC at 24-25; Morton Int'/,
Inc., 18 FMSHRC 533, 539 (Apr. 1996); see also DiamondRoofing Co. v. OSHRC, 528 F.2d 645,
649 (5th Cir. 1976); United States v. Hoechst Celanese Corp., 128 F.3d 216, 224 (4th Cir. 1997).
As discussed; the Secretary's interpretation is practically a self-evident one, given the
context of the regulation. In addition, the PPM clearly indicates that "exposed" was being used in
section 75.521 in the context of protection from the effects oflightning. Finally, as the Secretary
points out in her brief, there is record evidence from WolfRun's own witness that it attached
lightning arresters to insulated cables running from the surface to underground locations. S. Br.
at 24-25 (citing Tr. 823). We therefore conclude that Wolf Run had adequate notice of the
Secretary's interpretation of the term "exposed" as it appears in section 75.521.

32 FMSHRC Page 1682

2.

Whether the Power Conductors Were "Un1rounded"

The Secretary argues that, in vacating the two battery charger cable citations, thejudge
failed to properly understand the concept of grounding as it is used in section 75.521. She
submits that the judge confused the concept of the grounding of a "conductor" with the grounding
ofthecableorwireinwhichitiscontained. S.Br. at 14-15, 16-19; S.Resp.Br. at2-5, 7-11. The
Secretary further contends that the judge also erred in concluding that connecting a lightning
arrester to a cable that was connected to a power source underground would necessarily result in a
violation of the 25-foot separation requirement set forth later in the standard. S. Br. at 15-16;
S. Resp. Br. at 5-7. WolfRun's position is that thejudge had numerous grounds to reject the
Secretary's arguments that the battery charger cables should be considered ungrounded for
purposes of section 75.521. WR Br. at24-31, WR Reply Br. atl-8. 16
The judge found that the cables that originated underground from the underground power
source and ran to the surface to the battery chargers were connected to the neutral grounding
medium. He further concluded that if Wolf Run had installed lightning arresters on those cables,
as MSHA alleges that it should have, the operator would have violated the 25-foot separation
requirement with respect to the grounding fields. 31 FMSHRC at 657-59.
Because the judge concluded that it would have thus been impossible for the operator to
comply with both sentences ofsection 75.521 in this instance, he vacated the two battery cable
charger citations, as they were connected to the underground power center. Id. at 662. 17 In so
doing, the judge misapprehended the record evidence with respect to this issue. Consequently,
substantial evidence in the record does not support the judge with respect to this basis Jor his
vacatur of the two battery charger cable citations.
The judge apparently concluded that installing an arrester on any cable that ran to the
underground power center would result in the same violation of the second sentence of section
75.521 that is alleged in the grounding medium citation. With regard to the grounding medium
citation, however, as discussed supra, slip op. at [4-5, 7], the record establishes that the butt
ground wire connected the arresters and a grounding wire that ran to the belt conveyor (which, if
connected to that structure, defeated the 25-foot separation requirement). Tr. 335-37, 359-60,
369-73.
With regard to all the cables or wires at issue in the four arrester requirement citations, the
arresters would only have been installed on the ungrounded conductors within the cables or wires,

16

The judge found that neither the water pump cable nor the telephone wires were
grounded, which led him to affirm the citations. 32 FMSHRCat 663, 664. Wolf Run did not
appeal those findings.
17

The judge also noted this issue when discussing the water pump cable citation; but
found that the cable was not connected to the neutral ground medium. Id. at 663.
32 FMSHRC Page 1683

as they carried current to the equipment. Tr. 199-201, 206-07, 276-77, 844, 861. The arresters
would not have been connected to any ground wires in the cables, because such wires do not
nonnally carry such current. Tr. 201-02, 207, 842, 844, 860-61. The lack ofa connection
between a ground wire and an arrester thus makes the two situations quite different.
Consequently, the judge erred in concluding that it would have been impossible to comply with
the first sentence of section 75.521 with respect to the two battery charger cables without violating
the second sentence ofthe.standard. 18
The judge also considered the issue of grounding in the context of whether the cables or
telephone wires at issue contained a properly functioning ground wire. In the judge's view, if
such a ground wire were present, as was the case with the battery charger cables, the cable would
not be considered ''ungrounded" under section 75.521. 31 FMSHRC at 658'-59. Conversely, the
judge held that those power conductors that were within cables that did not include a properly
functioning ground wire were "ungrounded," so he affirmed the water pump cable and telephone
wire citations. Id. at 659.
We agree with the Secretary that the judge erred in focusing on whether the cables at issue
contained a ground wire. Section 75.521 plainly states that it is directed at ungrounded
"conductors," and not the cables which contain the conductors. Compare 30 C.F.R. §§ 75.516-2,
75.517, 75.517-1, 75.517-2 (nearby regulations regulating the use of"cables"). Moreover,
throughout the hearing, the Secretary was clear that the violation occurred in each instance to the
extent that one or more wires, contained in the cable or wire that was the subject of the citation,
were serving as a "power conductor," .Tr. 199-201 (two.phase conductors in water pump cable);
212-13 (improperly connected ground wire in water pump cable), 276 (three phase conductors in
each battery charger cable), 621-22 (trolley wires), 622-24 (telephone wires). Indeed, the parties'
stipulations contain multiple references to one of the issues being whether "conductors" were
ungrounded. Jt. Ex. 2, at 4, ii~ 13, 15. Thus, even ifa proper functioning ground wire was present
in a cable, th~ proper inquiry was whether any of the power conductors contained in the cable was
itself ''ungrounded."
As to the term "ungrounded," we agree-with the judge that the term is ambiguous as it
applies to "conductors." There is no applicable regulatory definition of the term; and while
Subpart Hof Part 75 governs grounding (see 30 C.F. R. § 75.700 et seq.), it does not address the ·.
grounding of "conductors."

.
18

We note that Wolf Run did not argue to the judge that complying with the arrester
requirement for cables powered from underground would result in a violation of the second
sentence of section 75.521; the judge apparently arrived at that conclusion on his own. See S. Br.
at 15. On review, Wolf Run argues in defense of the judge's opinion that the proximity within a
cable of the ground wire to the conductors supports thejudge' s conclusion, but cites no record
evidence in support of this view. See WR Br. at 28-29; WR Reply Br. at 4-5.
32 FMSHRC Page 1684

·The only reason the judge gave for holding that the Secretary unreasonably interpreted
''ungrounded" in applying it to conductors in cables containing a properly functioning ground wire
is the definition of"grounded power conductor" contained in the Dictionary ofMining, Minerals,
and Related Terms (2d ed. 1997) (''DMMRT?). See 31 FMSHRC at 658. There a "grounded
power conductor" is defined as "[a]n insulated or bare cable that constitutes one side of a power
circuit and normally is connected to ground. It differs from a ground wire in that a grounded
power conductor normally carries the load current while the equipment it serves is in service."
DMMRTat 247.
The Secretary objects to the judge's consideration of this definition because it was not
included in the record, and the Secretary did not have an opportunity to address it during the
hearing. S. Br. at 16-17. While this is true, we do not hold that the judge necessarily erred in
looking to the DMMRT definition. The technical usage of a term is quite relevant in determining
its meaning, 19 and the DMMRT is a recognized authority for such usage.
However, we cannot hold that the DMMRT definition in question is dispositive in this
instance. The definition essentially treats a "conductor" as the equivalent of a "cable," but in this
case the cables at issue were composed of multiple conductors, some of which connected to
ground and thus did not power the equipment, but others of which were not connected to ground
and carried current to the equipment. Tr. 200-04; Gov 't Ex. 16. ··Consequently the judge, in
deciding whether the Secretary's interpretation was reasonable, should have considered more than
the DMMRT definition.

As with the entire standard, there is no regulatory history that could assist in understanding
section 75.521 's use of the term ''ungrounded" as it applies to conductors. Consequently, we look
to the explanation provided at hearing by the Secretary's witnesses as to why the conductors
themselves would have had to be grounded to not fall Within the scope of the regulation, and why
it was not sufficient that they were contained in a cable that contained a ground wire.
The Secretary's witnesses explained that to escape the purview of the arrester requirement
of section 75.521, the conductors themselves must be grounded, given the amount of electricity
that could surge through them in the event of a lightning strike. The ground wire in a cable is
designed merely to protect against a fault, short circuit, or damage to the cable. Because of the
considerably greater danger posed by the energy from lightning, in the absence of lightning
arresters MSHA would require any exposed conductor to be grounded to direct that energy to the
earth, where it will dissipate. Tr. 276-79, 284, 873-74.

As the Secretary notes, WolfRun's witnesses did not contradict her witnesses on this
issue. S. Br. at 15. Rather, Wolf Run has argued that the Secretary's evidence establishes that the
19

If there is no regulatory definition of a term, the Commission will look to its technical
usage. Bluestone Coal Corp., 19 FMSHRC 1025, 1029(June1997); Peabody Coal Co., 18
FMSHRC 686, 690 (May 1996), aff'd, 111 F.3d 963 (table), 1997 WL 159436 (D.C. Cir. 1997).
32 FMSHRC Page 1685

grounding of a conductor prevents electricity from flowing to the equipment it serves, and that
therefore the Secretary's interpretation of the standard is not entitled to deference because it wouk
lead to the absurd result of preventing a power conductor from serving its intended pmpose.
WR Br. at25.
Wolf Run correctly characterizes the testimony, as MSHA electrical engineer Honaker
testified that a grounded conductor will not provide power to the equipment to which it is
connected. Tr. 861, 873. However, this does not establish that the Secretary's interpretation of
''ungrounded" is absurd in this instance. Honaker stated that it is rare to have an underground
source for surface equipment and vice-versa (Tr. 862), so section 75.521 is rarely applicable.
Moreover, he attempted to explain that, at the time the. standard originated, it was .common at
small mines for there to be direct current ("DC") electrical systems which had grounded
conductors, but references to the "grounding" of a conductor now make less sense with the
predominance of alternating current ("AC") systems throughout mining. Tr. 848-50.
Thus, it is true that time has likely rendered ·the standard's reference to "ungrounded" with
respect to conductors superfluous, as Wolf Run argues. WR Br. at 26; WR Reply Br. at 7.
However, the obsolescence of a single term in the standard does not make continued application
of the entire standard "absurd." The lightning arrester requirement only applies to ungrounded
conductors that are "exposed." Accordingly, while it may be impossible for a conductor to
provide power while grounded, and thus an operator cannqt ground a conductor to avoid the
arrester requirement, an operator has control over the design of its mine's electrical system, and
can still avoid the arrester requirement as to that conductor by not having an "exposed" power
conductor running between the surface and underground.

In light of the foregoing, we cannot agree with the judge that the Secretary's interpretation
of ''ungrounded conductor'' to include the conductors at issue here is unreasonable and thus not
deserving of deference. Accordingly, we vacate the judge's determination that section 75.521 was
not violated as alleged in the two battery charger cable citations.
On remand, thejudge needs to decide one or more additional issues with respect to the
battery charger cable citations which he did not reach because he vacated the citations:
(1) whether Wolf Run had adequate notice regarding the Secretary's interpretation of the term
"ungrounded" as it applies to a power conductor contained in a cable that has a properly
functioning ground wire (see S. Post-Hearing Br. at 39-41; WR Post-Hearing Br. at 36-37);20 and.
if Wolf Run had such notice, (2) whether it was established that the two violations of section
75.521 were S&S, as alleged in the citations, and (3) the penalties for the citations.

Because Chairman Jordan believes that a reasonably prudent pe~son familiar with the
mining industry and the protective purpose of lightning arresters would have recognized that the
presence of a ground wire in a cable does not comply with the requirement in section 75.521 that
an exposed power conductor in such a cable must itself be grounded, she does not join in
including the issue of notice in the remand.
20

32 FMSHRC Page 1686

3.

The Telephone Wire Non-S&S Findin&

The telephone and trolley wires citation was deiignated by MSHA as S&S as to the
violation of section 75.521 posed by the two-conductor telephone wire, and not the trolley wires.
The judge, however, concluded that the energy from a lightning strike would be unlikely to enter
the mine via the telephone wires, because the wires have a relative low voltage capacity of 12
volts. 31 FMSHRC at 664. Because the surge from a lightning strike can exceed one million
volts, the judge reasoned that the telephone wire likely would be destroyed by Stich a surge before
the energy entered the mine. Id. Consequently, the judge modified the citation to· delete the S&S
designation. Id. at 664-65.
The Secretary urges the CommissiOn to reinstate· the S&S designation and remand the case
for a recalculation of the penalty on the ground that the judge confused the figure cited for the
normal voltage carriedbythe telephone wire - 12 volts -with the wire's capacity to conduct
electricity. S. Br. at26-27. The Secretary also argues that the judge erred in assuming that
electricity from a lightning strike would not be conducted into the mine via the wires before the
wires were destroyed. Id. at 27.
Consistent with the position it takes with respect to whether the battery charger cable
citations could properly be found to be S&S (WR Br. at 42), Wolf Run argues that there are too
many variables to predict what would happen in the event any of the cables or wires at issue in
this case were affected by a lightning strike. WR Br. at 43-45; WR Reply Br. at 11. Wolf Run
maintains that in the case of the telephone wires, there is a lack of evidence to support an S&S
finding. WR Br. at 45-46; WR Reply Br. at 11.
We agree with the Secretary that the judge's conclusion regarding the capacity of the
telephone wire is not supported by substantial evidence, in that MSHA Engineer Kevin Hedrick
only testified regarding the voltage normally can?ed by Wolf Run' s telephone wires, and did not
discuss the capacity of such wires. Tr. 622, 624, 644. We also agree with the Secretary that it
was error for the judge to fail even to acknowledge Hedrick's statement that a surge of electrical
energy from lightning could enter a mine via the wire before that energy destroyed the wire.
Tr. 654. While Wolf Run makes a number of possibly valid points regarding the quality of the
Secretary's evidence on the S&S issue, this is an issue that is best decided by the judge on
remand. Consequently, we vacate. and remand the judge's non-S&S finding for his consideration
of the overall record with regard to whether the violation of section 75.521 was S&S in this
instance.

32 FMSHRC Page 1687

III.
Conclusion
For the foregoing reasons, we (1) vacate and remand the judge's determination that an.
S&S violation of section 75.521 was established with regard to the grounding medium (Citation
No. 7583304); (2) reverse the judge's determinations that violations of section 75.521 were not
established with respect to the two battery charger cables (Citation Nos. 7583316 and 7583317),
and remand for a determination whether the operator had adequate notice of the term
"ungrounded" with respect to those cables, and, if there was such notice, the further
determinations of whether the violations were S&S and the appropriate penalties for the
violations; (3) affirm in result the judge's determination .that a violation of section 75.521 was
established with respect to the water pump cable (Citation No. 7582485); and.(4) affirm in result
the judge's determination that a violation of section 75.521 was .established with respect to the ·
telephone wire (Citation No. 7335233), and vacate and remand the judge's finding that the
violation was not S&S.

Mic

r-~JL
Patrick K. Nakamura, Commissioner
32 FMSHRC Page 1688

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

Edward Waldman, Esq.
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., 25 1h Floor
Arlington, VA 22209-3939
Administrative Law Judge Jerold Feldman
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021
·

32 FMSHRC Page 1689

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

December 29, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2010-992
A.C. No. 46-04955-212816

v.
LONG BRANCH ENERGY

BEFORE: Jordan, Chairman; Duffy, Young, Cohe~ and Nakamura, 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 May 6, 2010, and November 15, 2010, the Commission
received from Long Branch Energy ("Long Branch") motions by colUlsel seeking to reopen a
penalty assessment that had become a final order of the Commission pursuant to section 105(a)
of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders Wlder section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits pennitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
32 FMSHRC Page 1690

On October 21, 2010, the Commission denied without prejudice Long Branch's request
on the basis that the operator had failed to provide a "sufficiently detailed explanation for its·
failure to timely contest the proposed penalty assessment." Long Branch Energy, 32 FMSHRC
1220, 1221 (Oct. 2010). The Commission stated that at a minimum, Long Branch "must provide
an explanation of how it normally contests proposed penalties
specific infomiation regarding
why that process did not work in this instance," and file any amended or renewed request within
30 days of the date of the order. Id. at 1222.

and

On November 12, 2010, Long Branch filed a second motion to reopen the penalty
assessment with an affidavit and documentation that explain the reason for its delay in contesting
the assessment in much more detail Long Branch explains that, after receiving the proposed
assessment on March 8, 2010, it gathered information about the citations and placed the proposed
assessment form on the desk of its president/general manager during the week of March 31 to
April 2, 2010. The operator's president/general manager intended to contest Citation Nos.
8078978, 8078979, and 8078980: However, on April 5, 2010, an explosion occurred at the
Upper Big Branch mine, which is close to one of Long Branch's mines. The president/general
manager became engaged in answering multiple questions regarding how the explosion would
impact Long Branch's mine and, as a result, the president/general manager mistakenly failed to
timely contest the citations.

The Secretary has not opposed Long Branch's second request to reopen.

32 FMSHRC Page 1691

Having reviewed Long Branch's requests and the Secretary's response, in the interest of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act.~nd the Commi~~ion's Pr9cedural Rules, 29 C.F.R.
Part 2700. Accordingly,. consistent with Rule. 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

li~~
~

Michael F. Duffy, Commissioner

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 1692

Distribution:
Melissa Robinson, Esq.
Jackson Kelly PLLC
1600 Laidley Tower
P.O. Box 553
Charleston, WV 25322
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris, Acting Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. ·Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1693

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

WASHINGTON, DC 20001

November 23, 2010

JUSTIN NAGEL
Docket No. WEST 2010-464-DM

v.
NEWMONT USA LIMITED

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

DIRECTION FOR REVIEW AND ORDER
BY THE COMMISSION:
On January 5, 2010, Justin Nagel, acting prose, filed a complaint of discrimination
against Newmont USA Limited (''Newmont") under section 105(c)(3) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 815(c)(3) (2006). The c~e had a compiex procedural
history before the Administrative Law Judge ("the judge"), which culminated on October 27,
2010, when the judge issued an order entitled, "Order Certifying Interlocutory Discovery Ruling
to the Commission; Order Granting Respondent's Motion to Dismiss for Failure to Comply with
Discovery Orders and Repeated Lack of Candor with Tribunal; Order Staying Dismissal Pending
Commission Ruling on Certified Interlocutory Discovery Order." We will refer to this combined
order as the "October 27 Dismissal Order." In this Direction for Review and Order, the
Commission will consider whether to address two issues which Mr. Nagel has raised before the
Commission, and will also address the legal implications of the Judge's attempt to stay the
October 27 Dismissal Order.
I.

Factual and Procedural Background
On September 24, 2010, the judge orally granted Newmont' s oral request that it be
allowed to hire private security guards for the scheduled September 28, 2010 deposition of Mr.
Nagel, and that all participants in said deposition submit to a reasonable search upon entry. This
oral order was confirmed by a written Order Granting Respondent's Request for Security on
October 13, 2010. Mr. Nagel filed a document entitled "Petition for discretionary review" with
the Commission on October 26, 2010. In his October 27 Dismissal Order, the judge treated this
32 FMSHRC Page 1694

submission as a motion to certify this interlocutory ruling 1 tinder Commission Procedural Rule
76, 29 C.F.R. § 2700. 76. He declined to certify the issu,e for intedocutory review, stating that the
order did not materially advance the final disposition of the proceeding and was moot because
the deposition had already occurred. Oct. 27 Dismissal Order at 17.
In addition, after a protracted discovery dispute involving recordings Mr. Nagel had made
of conversations with representatives of Newmont management, the judge on October 18, 2010
issued an order partially granting Newmont's motion to compel production of the recorded
conversations. Although the judge ordered Mr. Nagel to produce copies of the audio tapes of inperson conversations with Newmont management (but not tapes of telephone conversations),
Mr. Nagel did not comply with this order. Oct. 27 Dismissal Order at 5-6. On October 19, 2010,
Newmont filed a motion to dismiss, arguing that Mr. Nagel had demonstrated a pattern of
unwillingness to comply with direct orders from the judge.. Oct. 27 Dismissal Order at 6. During
a conference call on October 21, 2010, the judge issued an order to show cause why the case
should not be dismissed due to Mr. Nagel' s failure to comply with the discovery order to produce
the tapes. This was followed by a written show cause order issued on October 22. Id. at 11. Mr.
Nagel responded to the motion to dismiss, stating that he intended to appeal the discovery order
to the Commission. Id. at 10.
On October 25, 2010, Mr. Nagel filed a Petition for Discretionary Review, asking the
Commission to review the judge's order requiring him to turn over copies of the audio
recordings. As with the petition relating to the hiring of private security guards, the judge treated
this document as a motion for certification of his interlocutory discovery ruling. Unlike the issue
of the private security guards, however, the judge ruled that the order to turn over the tapes
involved a controlling question of law that would materially advance the final disposition of the
proceeding, and certified the question to the Commission for interlocutory review. Id. at 16-17.
In his October 27 Dismissal Order, the judge discussed whether dismissal of the case as a·.

1

An interlocutory ruling is an order issued during the pendency of a lawsuit, prior to the
final decision in the case. Generally, the Commission is reluctant to review interlocutory rulings
because such review is inefficient, and interferes with the flow of the case before the judge.
Interlocutory rulings can generally ,be reviewed after the judge has issued a final decision as part
of an overall appeal to the Commission. For this reason, the Commission has enacted separate
regulations addressing review from a judge's final decision and review from a judge's ruling
prior to his final decision. Thus, Commission Procedural Rule 70, 29 C.F.R. § 2700.70,
addresses "Petitions for discretionary review," which is the procedure used to obtain review of a
judge's final decision. Where a party seeks review of a judge's interlocutory ruling, it may file a
"petition for interlocutory review" under Commission Procedural Rule 76, 29 C.F.R. § 2700. 76.
However, petitions for interlocutory review are granted only under very narrow circumstances.
Piecemeal appeals are usually not favored, as they often result in additional costs to the parties
and the judiciary. Certification of an interlocutory order is considered' an exception, not a rule.
20 James Wm. Moore etal., Moore's Federal Practice~ 305.03 (3d ed. 2010). ·
32 FMSHRC Page 1695

discovery sanction was appropriate. He held that it was appropriate, due to Mr. Nagel's
"repeated failure to comply with discovery Orders and lack of candor with the tribunal, which
has interfered substantially with a fair hearing in this matter, unduly burdened the record, and
caused additional work, delay, and expense through refusal to comply with discovery Orders and
Commission rules." Id. at 18. He dismissed the case but stayed the dismissal pending the
Commission'.s ruling on the certified interlocutory discovery ruling. Id. at 23.

II.
Disposition
Before considering Mr.. Nagel' s two petitions, we must first consider the legal
implications ofthejudge staying the October 27 Dismissal Order. In Capitol Aggregates, Inc., 2
FMSHRC 1040, 1041 (May 1980), the Commission held that a judge who had issued a stay of
bis decision lacked the authority to issue the stay. See also Sec. ofLabor on behalfofPasula v.
Consolidation Coal Co., 1FMSHRC25 (Apr. 1979){neither the Mine Act nor the
Commission's Interim Rules of Procedure provide for a stay of the effective date of a judge's
decision once the decision is issued). 2 Thus, if the judge in the present case lacked the authority
to issue the stay, the effect is that the October 27 Dismissal Order was a final decision which
commenced the running of the 30-day period in Which a party may file a petition for
discretionary review under section l 13(d)(2)(A)(i) of the Mine Act, 30 U.S.C.§·823(d)(2)(A)(i);
and Commission Procedural Rule 70(a), 29 C.F.R. § 2700.70(a). Because of the stay, Mr. Nagel
is,not on notice that his time for filing a petition for discretionary review from the October 27
Dismissal Order is running.
For this reason, the Commission will, on its own motion pursuant to Commission
Procedural Rule 71, 29 C.F.R. § 2700.71, review the October 27 Dismissal Order. Our review is
limited to t~e issue of whether the judge had the authority to stay the effect of his decision. We
conclude that he did not have this authority. Capitol Aggregates, Inc., supra at 1041. Therefore,
we must vacate the October 27 Dismissal Order.
We have before us Mr. Nagel's two petitions. Although these are styled aS petitions for
discretionary review under Rule 70, they are really"'- as the judge recognized - petitions for
interlocutory review under Rule 76. Although the judge certified to the Commission, pursuant to
Rule 76(a)(l)(i), the issue involving the partial granting ofNewmont's motion to compel
production of audio tape recordings, which was appealed by Mr. Nagel in one of his petitions; we
conclude that review of these issues is not appropriate at this time. We note that the Commission
usually does not grant interlocutory review of discovery orders. See Asarco, Inc., 14 FMSHRC
1323, 1328 (Aug. 1992)("unless there is a 'manifest abuse of discretion' on the part of a judge,
discovery orders are not ordinarily subject to interlocutory appellate review") (citations omitted);

2

Commission Rule. 69(b) states that, except for the. correction of clerical errors, "the
jurisdiction of the Judge terminates when his decision has been issued." 29 C.F.R. § 2700.69(b).
32 FMSHRC Page 1696

In re: Contests of Respirable Dust Sample Alteration Citations, 14 FMSHRC 987, 1004 (June
1992) ("discovery orders are usually not appealable"). Accordingly, we deny both petitions.

III.
Conclusion
Consequently, we vacate the judge's Dismissal Order of October 27, 2010, and remand
the case to him for further proceedings consistent with this decision. Once the judge has issued a
final decision, a petition for discretionary review of that decision may be filed within 30 days
after issuance of the decision or order, pursuant to section 113(d)(2)(A)(i) of the Mine Act, 30
U.S.C. § 823(d)(2)(A)(i), and the Commission's Procedural Rule 70(a), 29 C.F.R. § 2700.70(a).
IfMr. Nagel files a petition for discretionary review, he may include the issues set forth in his
interlocutory petitions on the security and discovery issues. 3

~r:mmIB~oPatrick K. Nakamura, Commissioner

3

On November 19, 2010, the Commission received from Mr. Nagel another petition for
discretionary review, which asked the Commission to review the judge's denial, on October 20,
2010, of Mr. Nagel's Motion to Order Respondent to Reduce Verbal Motion to Writing. As with
the other two petitions, we find it inappropriate to review this ruling on an interlocutory basis.
Therefore, we deny this petition. Mr. Nagel may raise this issue in the context of a petition for
discretionary review after the judge has issued a final decision in the overall case.

32 FMSHRC Page 1697

Distribution
Justin Nagel
P.O. Box 182
Rathdrum, ID 83858
Richard Tucker
Newmont Mining Company
1655 Mountain City Highway
Elko, NV 89801
Donna Vetrano Pryor, Esq.
Patton Boggs, LLP
1801 California Street, Suite 4900
Denver, CO 80202
W. Christian Schumann, Esq.
Offi~e of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2247
Administrative Law Ju,dge Thomas McCarthy
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Wa.5hington, D.C. 20001-2021
·.

32 FMSHRC Page 1698

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19th STREET, SUITE 443
DENVER, CO 80202-2500
303-844-5266/FAX 303-844-5268

November 3, 2010
CIVIL PENALTY PROCEEDING

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

..

Docket No. SE 2009-712-M
A.C. No. 40-02937-190347
·

v.
U.S. SILICA COMPANY,
Respondent.

..
Mine: Jackson Plant

DECISION
Appearances: Matthew Shepherd, Office of the Solicitor, U.S. Department of Labor, Nashville,
Tennessee, for Petitioner; Bob Dailey, Safety Director, U.S. Silica Company,
Jackson Tennessee, for Respondent.
·
Before:

Judge Miller

This case is before me· on a petition for assessment of civil penalty filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration (''MSHA"), against U.S.
Silica Company (''U.S. Silica" or "Respondent"), pursuant to sections 105 and 110 of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act"). The case
involves three dtations issued by MSHA under section 104(a) of the Mine Act at the Jackson
Plant located in Jackson, Tennessee. The parties presented testimony and documentary evidence
at the hearing held on September 9, 2010, in Nashville, Tennessee. A decision was issued on the
record at the conclusion of the hearing. Portions of the transcript, with necessary edits and
amendments, are included in this decision. The parties stipulated that, at all pertinent times, U.S.
Silica was a mine operator subject to the provisions of the Mine Act. Stip. 2-'3.
I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
U.S. Silica is the owner and operator of the Jackson silica plant (the "plant" or "mine") in
Jackson, Tennessee. On June 2, 2009, Kenneth Large, a twenty-five year veteran MSHA
inspector, conducted a regular inspeetion at the mine. Large has worked in the mining industry
for 42 years. Prior to working for MSHA, Large worked for a number of mine operators and
held numerous positions, including assistant mine superintendent.

32 FMSHRC Page 1699

The mine operates three shifts, i.e., two production shifts and one maintenance shift. The
mine processes sand that is hauled to the procesS~g plant by trucks. During the inspection
Large was accompanied at various times by Anna Walters and Dan Simms, both representatives
of the Respondent.
Transcript pages 96-97:
fu the case of the U.S. Silica Company, Docket No. SE 2009[-]712, I make the
following finding[s]: U.S. Silica Company is the owner and
operator of the Jackson silica plant located in Jackson, Tennessee.
The parties have entered into stipulations that have been accepted
into the record, and those stipulations refer to the jurisdiction of
the Mine Safety and Health Administration to conduct an
inspection at the plant, as well as the jurisdiction of the Review
Commission to hear the case and issue a decision. I accept the
stipulations and enter those into the record at this time.
The stipulations also refer to a number of the penalty criteria, including the fact
that the proposed civil penalties will not affect U.S. Silica's ability
to ... [continue in] business. I find that the Jackson plant is a
medium-sized sand operation, but it is owried by a large company.
U.S. Silica Company is, indeed, a large operator within the ·
meaning of the Mine Safety and Health Act.
On June 2nd, 2009, fuspector Kenneth Large conducted a regular inspection at the
U$. Silica Jackson plant. He was accompanied, at least during
part of his inspection, by a representative from the plant. fuspector
Large has manyyears' experience -- over 40 years' experience in
the mining industry and many years' experience with the Mine
Safety and Health Administration.
a.

Citation.No. 6517158

As a result of the investigation Large issued Citation No. 6517158 to U.S. Silica alleging
a violation of30 C.F.R. § 56.14112(a)(2), which requires that "[g]uards shall be constructed and
maintained to ... [n]ot create a hazard by their use." The citation described the violation as
follows:
The guard on Conveyer #13 which feeds Mill #1, was tOose at the head pulley and sharp edges.
were exposed. The area is easily accessed and is.accessed by the Mill.operator at le.ast six times
a day for regular equipment checks. The guard had created a hazard to the miners and a cut
injury could occur.

32 FMSHRC Page 1700

Large determined that the violation was reasonably likely to result in an injury, that it was
significant and substantial("S&S"), that one employee was affected, and that the negligence was
moderate. A civil penalty in the amount of $150.00 has been proposed for this violation.
The Commission interprets safety standards to take into consideration "ordinary human
carelessness." Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097 (Sept. 1984). In Thompson
Bros., the Commission held that the guarding standard must be interpreted to consider whether
there is a "reasonable possibility of contact and injury, including contact stemming from
inadvertent stumbling or falling, momentary inattention, or ordinary human carelessness." Id.
Human behavior can be erratic and unpredictable. Guards are designed to prevent accidents.
The fact that no employee has ever been injured by an unguarded or inadequately guarded area is
not a defense because there is a history of such injuries at crushing plants throughout the United
States. "Even a skilled employee may suffer a lapse of attentiveness, either from fatigue or
environmental distractions .... " Great Western Electric Co., 5 FMSHRC 840, 842(May1983).
Large explained that the edges protruding from the guard were a hazard since persons are
in the area and could, with little effort, brush against the sharp edges and be cut. The mine
operator agrees that the guard had sharp edges protruding but denies that it was a hazard. The
mine submits that access to the sharp edges was prevented by the belt pulley and shaft guards.
Transcript pages 97-99:
As a result of his investigation on June 2nd, [Large] issued Citation No. 6517158
for a violation of ... [30 C.F.R. § 56.14112(a)(2)], which requires
that guards shall be constructed and maintained to not create a
hazard by their use. He issued the citation based upon observation
of a guard that had come loose or out of its place and had exposed
sharp edges. Inspector Large determined that it was reasonably
likely that a violation would result in an injury, that the violation
was S and S, one employee would be affected and negligence
would be moderate.
I credit Inspector Large's testimony, that he observed that the gwird was loose,
had jagged edges sticking out. Exhibit 2 is a photograph of the
guard with the jagged edges, and Exhibit 3 is a photograph of the
guard after the violation was terminated.
The guard was located at the head of the conveyor belt. The conveyor belt was
used to carry material into the mill. It was made of expanded
metal. Jagged edges were sticking out a couple inches away from
the guard.

32 FMSHRC Page 1701

Someone at -- there is at least one employee working in the area and passes
· through this area at least six times per day. I believe Inspector
Large's testimony was that he was ·told that someone walked
through the area, that is shown in Exhibit S(a), at least six times a
day, every hour and 20 minutes. When Inspector Large entered
the area, the violation was obvious to him. Although he did not
touch it, he could see that the edges were sharp. I understand that
one of~- the operator believes that the edges were burred and were
not sharp. But a look at the photograph, Exhibit 2, particularly,
makes it clear that those edges would cut someone if they came in
contact with [them]. So I credit Inspector Large's testimony in that
regard.
Large stated that the hazard was obvious, that it should have been pre-shifted, and
that it was most likely there for a number of shifts in order for it to
get in that condition. He also testified.that the area is open and
'that it would be easy for someone to come in contact with it.
I will note that the Commission interprets safety standards to take into
consideration ordinary human carelessness. And in the case of
Thompson Brothers Coal, the Commission held that a guarding
standard must be interpreted to consider whether there is a
reasonable possibility ofcontact[] [that would result in] injury,
including contact stemming from· an inadvertent stumbling or
falling, momentary inattention, or ordinary human carelessness.
In this particular case, the area is.open, and certainly there is a reasonable
possibility ofcontact and injury, including contact from
inadvertent stumbling, falling, momentary inattention, or
carelessness. If someone were specifically standing in the area
talking to someone and moved back out of the way, they would
come in contact with the guard. Therefore, I fmd that the violation
is established as alleged by the Secretary, based on - primarily on
the testimony of Inspector Large and the testimony of Mr.
McK.ibbin, who was not present during the inspection, but did
agree that the guard was in the condition as cited by the inspector.
1.

Significant and Substantial

A S&S violation is described in section 104(d)(l) of the Act as a violation "of such
nature as could significantly and substantially contribute to the cause and effect of a coal or other
mine safety or health hazard." A violation is properly designated S&S "if, based upon the
particular facts surrounding that violation, there exists a reasonable likelihood that the hazard

32 FMSHRC Page 1702

contributed to will result in an injury or illness of a reasonably serious nature." Cement Div.,
Nat'! Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
The Commission has explained that:
[i]n order to establish that a violation of a mandafocy safety standard is significant and
substantial under National Gypsum, the Secretary of Labor must prove: ( 1) the underlying
violation of a mandatory safety standard; (2) a discrete safety hazard--that is, a measure of
danger to safety--contributed to by the violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a reasonable likelihood that the injury in question
will be of a reasonably serious nature.

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861 F.2d 99,
103-04 (5th Cir. 1988), ajj'g AustinPower, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving
Mathies criteria).
As noted above, I find that there is a violation of the mandatory safety standard as alleged
by the Secretary. I find, further, thatthe violation contributed to the hazard of persons walking
by, or working in, the area and contacting the jagged metal edges. Third, the hazard contributed
to will result in an injury as a result of someone coming in contact with the sharp edge. Finally,
given the sharpness, and the fact that any cut or ga8h would be caused by metal, the injury would
certainly be serious.
Transcript pages 100-103:
Next, is the issue of whether or not this particular violation is significant and substantial. The
Review Commission has indicated that a significant and substantial violation is a violation of
such a nature as could significantly and substantially contribute to the cause and effect of a mine
safety or health hazard. The violation is properly desigilated S and S ... [if] based upon the
particular facts ... [s]urrounding that violation, there exists a reasonable likelihood that the
hazard could contribute to or result in an injury or illness of a reasonably serious nature.
In order to establish the violation as significant and substantial, I must first find
that there is an underlying violation of the mandatory safety
standard, which I do in this case. I have already found that there is
a violation.
·

Next I must find that there is a discrete safety hazard, that is a measure of danger
to safety contributed to by the violation. And I find in this case ·
that the -- that there is a discrete safety hazard and measure of
danger to safety, and that hazard is those sharp edges of the guard
sticking out in ail area where someone may come in contact with

32 FMSHRC Page 1703

them. And if, in fact, someone does come in contact with those
edges, an injury is likely to result, and that injury would be of a
serious nature.
. . . Inspector Large testified that the injury would result in lost workdays or
restrictive, duty. I credit[] his testimony in that regard. The
Commission and Courts have observed that an experienced MSHA
inspector's opinion thata violation [is] significant and substantial
is entitled to substantial weight. [Harlan Cumberland Coal CQ., 20
FMSHRC 1275, 1278-79 (Dec. 1998); Buck Creek Coal Inc. v.
MSHA, 52 F.3d. 133, 135-136 (7th Cr. 1995).] Inspector Large ...
qualifies, without question, as an experienced MSHA inspector.
He described the violation as significant and substantial, and
explained that it is likely that someone would come in contact with
the sharp edges of the guard, and that as a result, someone would
suffer a serious scrape or cut.
In making his determination, he relied upon hi~ e_xperience as a mine inspector,

and particularly in a recent accident investigation that he had
conducted, wherein a miner had been scraped by the sharp edge
inadvertently, accidentally, of expartded,µietal and as a result
suffered a serious injury, including the amputation of his leg..
In his view, it's reasonably likely this violation was reasonably likely to lead to an

event that causes a serious injury, and that serious injury could be
as serious as the amputation of a leg or an arm .
. . . [T]he mine, operator ... [argues] thatthe violation is not significant and
substantial for a number of reasons, including that the guard -- the
sharp edges of the guard are not next to the walkway, that the
walkway is -- somehow is back and that the guard is set back
under.... [T]he photograph shows that the walkway is not far
away, and certainly it is an open area up to the guard. If it were
somehow blocked -- it's not blocked by something else that l can
see in the photograph.
. . . I find that this violation is significant and substantial as Inspector Large
indicated. I credit his testimony in that regard. I find -- I also

agree with Inspector Large that the negligence for this violation is
moderate. The guard was visible. Inspector Large saw it
immediately upon entering the area. In his view, it should have
been detected and repaired immediately. If it continued to exist, it
would again contribute to an accident or an injury. There were

32 FMSHRC Page 1704

two shifts. People were walking by it on both of those production
shifts and most likely on the maintenance shift for the third shift. l
find that the facts of this violation clearly lead to a significant and
substantial finding.
With regard to the penalty, the parties have stipulated to the history, which l -this mine has a stellar history, and I give the mine credit for having
such a good history and such a good safety record ....
The mine -- U.S. Silica is a large mine operator. A penalty
will not affect its ability to continue its business. It engaged in a
good faith abatement of the violation. The gravity is, as I
described above, in the significant and substantial discussion, and
the negligence was moderate, as the inspector indicated. The
violation was obvious. No one knows how long it existed, but it
certainly didn't get in that condition overnight. The condition
should have been seen and corrected, or should have been noted at
least on a pre-shift. I assess a $500 .penalty for this violation.

b.

Citation Nos. 6517159 and 6517160

As a result of the investigation Large issued Citation Nos. 6517159 and 6517160 to U.S.
Silica alleging violations of 30 C.F.R. § 56.20003(a), which requires that "[a]t all mining
operations ... [w]orkplaces, passageways, storerooms, and service rooms shall be kept clean and
orderly." Citation No. 6517159 describes the violation as follows:
On top of 7B1N2 there was material build up and in some areas the
build up was over the toe board. There were footprints on top of
the bin which shows that someone had been in the area. An injury
could occur from a slip, trip or fall.
Large determined that it was reasonably likely that the violation would result in an injury, that
the violation was S&S, that one employee was affected, and that the negligence was moderate.
A civil penalty in the amount of $150.00 has been proposed for this violation. The Secretary
moved to modify the citation to non-S&S based upon the testimony at hearing and I accept the
Secretary's modification.
Citation No. 6517160 describes the violation as follows:

32 FMSHRC Page 1705

On top of7BIN15 there was material build up and in some areas
the build· up was over the toe board. This area is only accessed by
maintenance personnel and hasn't been accessed in over a month.
An injury could occur from a slip, trip or fall.
Large determined that it was unlikely that the violation would result in an injury, that the
violation was non-S&s; that one employee was affected, and that the negligence was moderate.
A civil penalty in the amount of $100.00 has been proposed for this violation. . .
The cited standard does not require that the area be a ''travelway," i.e., a passage, walk or
way that is regu.larly used and designated for persons to go from one place to another. Rather; as
pertinent to this matter, the area need only be a workplace or passageway. Section 56.2 of the
Secretary's regulations defines "working place" as "any place in or about a mine where work is
being perfonned." 30 CF.R. § 56.2. The Seeretary's regulations do not define "passageway."
The dictionary defines "passageway" as "a way that allows passage," while "pa8sage" is defined
as "a way of exit or entrance: a road, path, channel, or course by which something passes," or
alternatively as "a corridor or lobby giving access to different room:s or parts of a building or
apartment." Webster's New Collegiate Dictionary (1979) at 830.
A number of the Commission's judges have addressed in similar cases the issue of what
constitutes a workplace or passageway. In USS, a Division of USX Corp., 13 FMSHRC 145,
153(Jan 1991) (ALJ), the judge determined that s.ection 56,20003 applied to "allworkplaces and
passageways, even though no work was being performed at the t4ue of the cited violations, and
even though the passageways were not designated or regularly used as such." Similarly in
Brubaker-Mann Inc., 8 FMSHRC 1482, 1483 (Sept.1986) (ALJ), violations were affirmed where
the inspector observed a build up of powdery fines, which created a slipping and tripping hazard,
on top of a storage tank.
With regard to both citations, Inspector Large testified that sand and fine material were
located on top of the bins. Gov. Exs. 8, 9, 14. The bins are used to store sand. There is an access
ladder to the top of the bins, a cat'i• alk around the top of each bin. and a catwalk leading to other
bins. Thereis a footprint in the acc·.umulated material on top of the one bin cited in Citation No.
6517159. Gov. Ex. 11. Workers travel around the bins to conduct inspections, and maintenance
persons access the area to do routine maintenance and repairs. The accumulated material was as
deep as 12 inches in places and was over the toe board at points. Id. The material constituted a
tripping hazard.

There is no dispute that the accumulations existed as cited by the inspector. The
Respondent, however, argues that the area is not a ''workplace" or "passageway" as required by
the standard. There are twelve bins, connected by walkways and ladders. According to the

32 FMSHRC Page 1706

Respondent, employees perform limited work on top of the bins. Occasionally, persons climb
the ladder to the top of a bin to inspect piping and ensure that it is not clogged or, if clogged, to
unclog the pipes. At times an electrician may walk on top of the bins to do repair work. In
addition, workers regularly climb up to the area to clean it when the dryer operation is complete.
Transcript pages 103-106:
The next two violations I'll talk about together. Citation
No[s]. 6517159 and [6517)160 are both violations of the same
standard, ... (30 C.F.R. § 56.20003(a)], which requires that
"[w ]orkplaces, passageways, storerooms, and service rooms shall
be kept clean and orderly." There is no question, and I don't think
the mine disputes, that there was an accumulation of sands on the
top of those bins, and certainly they were not kept clean and
orderly.
The issue in both of these citations is whether or not the
bins were a workplace, passageway, store room, or service room. I
will focus on the issue of workplace or passageway. And I would ·
note for the record -- I believe it's already in there - that originally
one of the citations was S and S, but the Secretary has moved to
modify, so both of these violations are non S and S. And I will
just address the issue of the violation and the penalty.
The photographs in evidence clearly show the
accumulation of material on top of the bin. The issue then is
whether or not they were a workplace or passageway; I looked at
the cases regarding this particular standard. There are no
Commission decisions that address what -- the workplace or
passageway, as it's used in this standard. There are ALJ decisions,
and there are decisions of the Commission that address this
language under other standards.

In this particular area, there is an access ladder to the top of
the bin. There's a catwalk leading to other bins. There were
footprints indicating, at some point, whether before or after the
spill, someone was up there. The testimony is clear that people do
work on there. It may only be -- I think, the inspector mentioned -he was told once c: month, but people do go Up there, workers go
up to inspect, maintenance people go up on top of the bin, and
certainly people access it, pass through it, and perform work there.
It doesn't have to -- the work doesn't have to be ongoing -doesn't have to be going on when the inspector visits or sees the

32 FMSHRC Page J 707

violation, nor does someone have to be walking through there at
the time ofthe violation. Based on the inspector's testimony and
the testimony of Mr. McKibbin, I find that the area is a
passageway and a workplace, that both things occur in that area,
that the Commission has interpreted that language in a broad
sense. And the case law[] by the administrative law judges that I
read found it was not a workplace or passageway in areas that were
under a. belt -- under a belt where no one would go for any reason
that -- or in a grease pit, in certain areas that people just really
would not travel in any sense for work.

. . .. I find that it is a passageway or a work way. I find that
there is a violation as alleged in both citations, 6517159 and
657160 as alleged by the Secretary. Both of the violations are non
Sand S. I've already discussed the mines -- the penalty criteria
with regard to these. I find I agree with the inspector's indication
that the negligence was moderate. Even though some of the spill
could, in the inspector's view, be seen from below the bin, I would
still indicate negligence to be moderate, and the - that neither of
them are Sand S. The gravity of the violation then would be low
-- would not be very high. . ... I woµld assess $100 penalty for
each of those violations.

II. PENALTY.
The principles governing the authority of Commission administrative biw judges to
assess civil penalties de novo for violations of the Mine Act are well established. Section 1IO(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, thar '"in assessing civil monetary penalties,
the Commission [AL.r! shall consider" six statutory r·-~r·alty criteria:
[l] the operator's history of previous violations, [2] the
appropriateness of such penalty to the size of the business of the
operator charged, [3] whether the operator was negligent, [4] the
effect on the operator's ability to continue in business, [5] the
gravity of the violation, and [6) the demonst~·ated good faith of the
person charged in attempting to achieve rapid compliance after
notification of a violation.

30 u.s.c. § 820(1).

32 FMSHRC Page 1708

I accept the stipulation of the parties that the penalties proposed are appropriate to this
operator's size and ability to continue in business and that the violations were abated in good
faith. The history is normal for this size operator. I accept the Secretary's finding of low
negligence. Finally, I find that the Secretary has estabiished the gravity as described .in the
citations.
Transcript page 106:
[B]ased on the criteria in Section 11 O[(i)] of the Act, the
proposed penalty is $500 for the first violation, [and $100 dollars
each] for the other [two] violations, for a total [penalty] of$700.

III. ORDER
Based on the criteria in section 11 O(i) of the Mine Act, 30 U.S.C. § 820(i); I assess a
penalty of $700.00 for the violations. U.S. Silica is hereby ORDERED to pay the Secretary of
Labor the sum of $700.00 within 30 days of the date of this decision. 1

Distribution:
Matthew S. Shepherd, U.S. Dept. of Labor, Office of the Solicitor, 618 Church St., Suite 230,
Nashville, TN 37219-2456
Bob Dailey, Safety Director, U.S. Silica Company, P.O. Box 187. Berkely Springs, WV 25411

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

32 FMSHRC Page 1709

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

November 8, 2010
DISCRIMINATION PROCEEDING,

WJLLIAM METZ,
Complainant

v.
CARMEUSE LIME, INC.,
Respondent

Docket No. PENN 2009-541-DM
NE MD 2009-02
Carmeuse Lime
Mine 36-00017

DECISION

Appearances: Kim Lengert, Esq., Lengert Law LLC, Robesonia, Pennsylvania, for the
Complainant;
R. Henry Moore, Esq~, Jackson Kelly PLLC, Pittsburgh, PennsylVania, for the
Respondent.
Before:

Judge Feldman

This case is before me based on a discrimination complaint filed on June 4, 2009,
pursuant to section 105(c)(3) ofthe'Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 815(c)(3) (2006) ("Mine Act'} The complaint, filed by William Metz,
concerns his March 18, 2009,·tennination by Canneuse Lime, Inc. ("Canneuse") from a
lime processing plant located in Annville, Pennsylvania. 1 Section 105(c)(1) of the Mine Act,
30 U.S.C. §.815(c)(l), provides, in pertinent part:
No person shall discharge or in any manner discriminate against . . . any miner ...
because such miner . . . has filed or made a complaint under or related to this Act,
including a complaint notifying the operator or the operator's agent ... of an alleged
danger or safety or health violation in a coal or other mine ... or because such miner ...
instituted any proceeding under or related to this Act ....

1

Metz' s complaint which serves as the jurisdictional basis for this matter was filed
with the Secretary of Labor (the "Secretary") on March 28, 2009, in accordance with section
105(c)(2) of the Act, 30 U.S.C. § 815(c)(2). Metz's complaint was investigated by the Mine Safety
and Health Administration ("MSHA"). On May 11, 2009, MSHA advised Metz that its
investigation did not disclose any section 105(c) violations. On June 4, 2009, Metz filed
his discrimination complaint with this Commissfon which is the subject of this proceeding.
The hearing in this matter was delayed because Metz had difficulty obtaining counsel.
32 FMSHRC Page 1710

The hearing was conducted in Lancaster, Pennsylvania from April 13 to April 15, 2010.
The parties have filed post-hearing briefs and replies that have been considered indisposition of
this matter.

I. Statement of the Case
Metz's discrimination allegation primarily is based on his complaint, expressed·shortly
before his termination, concerning his belief that contract employees were dismantling a kiln i.n an
unsafe manner. As discussed below,· direct evidence of discriminatory motive is rare. More
commonly, acts ofdiscrimination are inferred from circumstantial indicia such as, coincidence in
time between a safety related complaint and the adverse action, hostility or animus towards the
complaint, and disparate treatment of the complainant. Secy ofLabor o/b/o Chacon v. Phelps
Dodge Corp., 3 FMSHRC 2508, 2516-17 (Nov. 1981) (citations omitted), rev'd on other grounds,
709 F.2d 86 (D.C. Cir. 1983). Metz presented a prima facie case of discrimination as his safety
related complaint occurred shortly before his March 18, 2009, termination of employment.
In response, Canneuse seeks·to rebut the primafacie case by·demonstrating that the
termination of Metz was not motivated by his protected activity. Rather, Carmeuse asserts that
Metz was terminated as a direct result of an·incident that occurred on March 12, 2009, in which
Metz used profanity and expressed hostility towards a Carmeuse human resources official. This
incident was unrelated to any protected activity under the Mine Act. The hostility occurred during
a meeting in which Metz was protesting a company policy that denied retroactive back pay for
on-call employees who now are receiving compensation for their on~call status. In the alternative,
Carmeuse seeks to affirmatively defend by demonstrating that it would have terminated Metz
regardless of any protected activity.
With the exception of coincidence in time, the evidence does not reflect any other
circumstantial evidence of discriminatory motive to support Metz's complaint. Rather, the
evidence reflects that his unprotected belligerent conduct provided an adequate independent basis
for his termination. In this·regard, Metz's hostile reaction to the company's refusal to provide him
with a written denial of his back pay request was an unreasonable response that was not elicited by
any wrongful provocation.· Moreover, Metz's hostility was related to a personnel matter rather
than any activity protected by the Mine Act. Accordingly, Metz' s discrimination complaint must
be denied.

II. Findines of Fact

a. Background
Carmeuse is an affiliate ofCarmeuse Lime and Stone, Inc. (Resp. Br. 1). The company
operates approximately 35 sites across the United States and Canada and employs approximately
2,400 people. (Tr. 368-69, 683). Its North American headquarters is in Pittsburgh, Pennsylvania.
(Tr. 368). There are approximately 50 employees at the Annville; Pennsylvania plant. (Tr. 612).

32 FMSHRC Page 1711

The plant produces lime from stone extracted from an adjacent quarry that is owned and
operated by an unaffiliated company. (Tr. 639). Raw stone extracted from the adjacent quarry is
heated in kilns. (Tr. 639). The by-product is a powdery lime substance that can be crushed into
different sizes for commercial sale. (Tr. 639 ).
William Metz was employed by Canneuse and its predecessor companies at the Annville
plant for approximately 22 years. (Tr. 32). At the time ofhis March 2009 termination, Metz was
employed in the maintenance department as a milhyright. (Tr. 33). His responsibilities
included working on general maintenance, inspecting equipment, and welding and fabricating.
(Tr. 33, 226). Metz also served on the safety committee and periodically acc()mpanied mine
inspectors asa miners' representative. (Tr. 35-37, 195).
Metz filed two previous discrimination complaints under section 105 of the Mine Act
against Canneuse and a predecessor company. Metz's initial complaint, filed against predecessor
company Wimpy Minerals (''Wimpy" ) and Wimpy' s successor Tarmac America, Inc, concerned his
March 21, 1995, termination of employment. At that time, Metz was allegedly terminated for
confronting a supervisor with "loud," "insubordinate" and "threatening behavior." Metz's
employment was ordered to be reinstated after a Commission hearing on the merits. The decision
was based on a finding that the conduct, relied on by Wimpy: as an independent basis for Metz' s
termination, was provoked by the company's response to Metz's safety related protected
complaints. Metzv. Wimpy Minerals, 18FMSHRC 1087, 1089-90, 1100-01 {J11ne1996)(AIJ).
An investigation by MSHA following Metz's second complaint, filed in March 2007, found
no evidence of discrimination. Metz did not pursue this complaint after MSHA informed him of the
results of its investigation. Metz does not contend that his previous discrimination complaints were
·
a motivating factor in his March 18, 2009, discharge.
b. Metz's Behavioral Histozy
Metz is an assertive and opinionated individual who was not hesitant to express safety
concerns to management, or, to act as an employee spokesman who COillll1unicated personnel
grievances. (TL 228, 514, 547). Metz's brief characterizes Metz's reported safety related
complaints as, "caus[ing] friction with management." (Metz.Br. at 2). However; with the ·
exception ofMetz's termination 14 years earlier by a predecessor company, the evidence, including
testimony by a Metz witness, does not reveal any history of animus or retribution by Canneuse in
response to safety related complaints.
Metz had a history of engaging in confrontational and abusive behavior. At trial, Metz was
questioned about an incident that occurred on or about March 5, 2007, in which Metz was seeking
the approval of area manager Ken Kauffman for four hours of compensation that had been docked
from Metz for a previous incident. Metz was asked;
Metz Counsel: In 2007 - and I only bring this up because it was part of the
consideration that was used for your termination. In 2007, did you ever threaten
Ken Kauffinan?
32 FMSHRC Page 1712

Metz: Oh, yeah. Yeah.
Metz Counsel: How did you threaten him?
Metz: Well, I, actually, don't call it a threat; I didn't then until I looked it up; but it
had to do with when I was helping Jim Smith. They sent me home. ·I filed a peer
review. Ken Kauffman denied it~
(Tr. 112).

Contrary to Metz's characterization of his behavior as non-threatening, Kauffman
testified that Metz told him, and an MSHA inspector who was present at the time, that he would
"kick both of [their] asses." (Tr. 572). As a result of this incident, a written warning was.placed in
Metz's personnel file cautioning him of termination if his threatening behavior should reoccur.
(Resp. Ex. 6).
· Metz also had a history of abusive and harassing behavior towards a fellow employee.
Metz teased the employee about the fact that the employee's mother, who had separated from his
father, was in a relationship with another,Carmeuse employee. Metz told the employee that his
mother was "pretty hot," and he suggested that he wanted to have sexual relations with her in crude
and obscene language. {Tr. 418).
Carmeuse's harassment assertion was presented through hearsay rather than.direct
evidence. (Tr. 418). However, Metz'sinappropriate conduct was corroborated by Metz's witness,
Robert Boehler, who testified that the victim of Metz's harassment quit his employment because
Metz harassed him about his mother. (Tr. 312).
At trial, Metz again was equivocal when given the opportunity to deny that he had, in fact,
teased this employee:
Metz Counsel: Did you ever tease [this employee]?
Metz: I don't remember teasing him.
Metz Counsel: Not the same thing. Did you ever tease him? ...
Metz: I can't remember a specific incident, but we all teased around with him
some, a little bit.
(Tr. 120).

32 FMSHRC Page 1713

c. Kiln Complaints
During Metz' s employment at the Annville plant, there were four kilns that were used to
process lime from limestone rock. These kilns were suspended on solid steel girders that were
connected to a wheel called a truniuon that allows the kilns to spin. Kilns and their supporting
structures weigh several· tons. During approximately the first week in March 2009, independent
contractors started to dismantle and remove two of the four kilns that had been inactive for several
years. (Resp. Br. 12).. Instead of being paid by Carmeuse, the contractor was allowed to sell the
scrap metal salvaged during the dismantling and removal of the kilns. (Tr. 25, 50-55, 577, 669).
Metz was concerned that someone could be struck by falling material because the area
being dismantled was not properly dangered-off. Metz was also concerned about possible
electrocution because the kiln area was not de-energized. (Tr. 53-55). During the week preceding
Metz's termination, Metz and several other hourly employees expressed their safety related
concerns to mine management officials, Ron Popp, Greg Doll, Keith Lambert, Mark Miller,
and area manager Ken Kauffman. (Tr. 56).
Although Kauffman could not specifically recall Metz~s kiln related complaints, Kauffman
testified, "it wouldn't be uncommon for [Metz] to come in and talk about issues at the plant."
(Tr. 581 ). Kauffman testified that he had met with Metz and other employees numerous times
about various safety issues. (Tr. 581-82). In this regard, BruceKercher,.a friend of Metz, who was
also an hourly employee at the plant, also complained to mine management about the kiln
contractor. (Tr. 252, 284). Kercher testified that he did not experience any company retaliation as
a consequence of his safety complaints. (Tr. 252). In fact, Kercher testified that he would feel
comfortable making safety complaints to management. (Tr. 283-84).
The activities of the independent contractor were the subject of an MSHA inspection on
March 5 and March 6, 2009. (Tr. 583-85, 669-70). The mine inspector spoke to the contractor but
no violations were cited. (Tr. 583-84, 669-70). The contractor ultimately discontinued the work
because the price of scrap metal was low and the job was unprofitable. (Tr. 276, 577). At trial,
Carmeuse stipulated that "[t]here were complaints by any number of people," including Metz.
(Tr. 59). Carmeuse also stipulated that these complaintS were communicated within no more than
two to three weeks prior to Metz's termination. (Tr. 60). Although Carmeuse maintains that the
contractor was operating in a safe manner, Carmeuse stipulated that Metz's complaints were made
in good faith. (Tr. 60-61).
d. The On-Call Policy
Carmeuse has an "on-call policy" that requires certain maintenance and electrical
employees to be available to work on their days off if their services are needed at the plant.
(Tr. 72-76, 219). On-call employees have always been paid for at least four hours if they were
summoned to work. However, prior to January 2009, it was Carmeuse's policy not to pay on-call
employees for their on-call status, even though their required availability disrupted their personal
lives. (Tr. 169-71 ). In January 2009, in response to employee requests, a new on-call policy was
implemented at the plant. (Tr. 74-76, 219, 718 ). On-call employees continued to receive at least
32 FMSHRC Page 1714

four hours pay if their services were required. However, the new policy paid employees $25.00
for each day that they were on-call, but not required to work. (Tr. 74•76, 219, 501, 718).
Some employees, including Metz, believed that they deserved back pay for at least the prior
two"-year period when the new on-call program had not been in place. (Tr. 169; Resp. Ex. 15).
Determined to obtain the back pay he believed was owed to employees, Metz acted as a
representative of the millwrights. (Tr. 76, 222). Metz approached several members of the human
resources department, including Annville plant human resources representatives Becky Vinton and
Ed Jones about this issue. (Tr. 427-28). Metz testified that Vinton promised that on-call
compensation would be paid retroactively, (Tr. 93, 191). Consequently, the company's refusal to
pay retroactively was a contentious issue. (Tr. 72).
e. Metz's Peer Review Request
.Peer review is a method of addressing employee grievance and discipline issues.. It is a
process where aggrieved employees can request review by the employee's supervisor, the human
resources area manager, and the plant manager. Alternatively, an employee can request peer
review before a panel of hourly and salaried employees who have completed peer review training.
(Metz Ex. 10). Certain subjects are excluded from the peer review process, including the setting
or changing of company policy and issues concerning sexual harassment. (Metz Ex. 10).

On December 29, 2008, Metz filed a written peer review request concerning the back pay
issue. Metz's request for peer review stated:
Per HR Pittsburg [sic] agrees compensation for being on call is reviewable by peer
review -:- maintenance has been on-call for over. yr and hlf [sicJ with no .
compensation for om lives being interrupted. Back pay for an agreed amount that's
fair for the troubles on-call cause and has caused.
(Metz Ex. 15). Metz's request for peer review was denied by supervisor Ron Popp and area
manager Ken Kauffman. (Resp. Ex. 15).
f. Croll's Account of the March 12. 2009. Meeting
Melissa Croll is a corporate human resources manager based out of Carmeuse' s. corporate
headquarters in Pittsburgh, Pennsylvania. (Tr. 364-68). Croll's supervisor is Kathy Wiley.
Wiley is a Vice President of Human Resources who also is based in Pittsburgh, Pennsylvania.
(Tr. 367-68). Croll, who recently had been assigned to oversee the Annville plant, made her initial
visit to the plant in February 2009. (Tr. 370).

On March 12, 2009, Croll returned to the plant to finalize her performance goals with
human resources assistant Ed Saterstad. (Tr. 371-72). After the meeting, Saterstad informed Croll
that an employee wanted to meet with her. (Tr. 372). Croll initially testified that Saterstad did not
identify or tell her anything about the employee she was about to meet. (Tr. 373). However,
when confronted with her deposition, Croll later admitted that Saterstad told her the employee
32 FMSHRC Page 1715

was Bill Metz and that Metz was a "complainer." (Tr. 453-54). Moreover, Croll admitted in a
March 12, 2009, e-mail, sent to Wiley shortly after her meeting with Metz, that she had known tha.t
Metz was a "disgruntled employee" prior to the March 12, 2009, meeting. (Resp. Ex. 18).
Metz denies that he requested the March 12, 2009, meeting with Croll, claiming that it was
Saterstad and Croll who initiated the meeting. (Tr. 71). However, Metz testified that he previously
had called Croll in Pittsburgh in January 2009. (Tr. 81). At that time, Metz left Croll a message
requesting that Carmeuse explain in writing why the men were not getting back pay for being
on-call. (Tr. 81 ). However, Croll reportedly did not recall receiving a message from Metz, and she
did not return his call. (Tr. 371). Regardless of who initiated the meeting, given Metz's December
2008 written request for peer review on the back pay issue, and his January 2009 telephone
message to Croll, the company had reason to believe that Metz wanted to speak to Croll.
Saterstad called Metz to come to the plant conference room to meet with Croll. (Tr. 374).
Upon entering the conference room, Metz was greeted by Croll who was sitting at the conference
table. (Tr. 376). Saterstad, a human resources assistant who worked at the Annville plant and
knew Metz, departed the conference room leaving Metz and Croll alone. Metz sat down next
to Croll, a distance of approximately three to four feet, and they faced each other as the
conversation began. (Tr. 377; Metz Ex. 24).
Metz began the conversation by stating that he wanted to invoke the company's peer
review process to resolve whether maintenance workers were entitled to receive back pay for
being on-call for the past two years. (Tr. 378-79). Croll infonned Metz that the company's new
on-call policy did not include back pay for employees who had been on-call. Croll reminded
Metz that issues concerning company polic'y were notsubject to the peer review process.
(Tr. 379; Metz Ex. 10). Croll testified that Metz became agitated and irate and yelled at her,
''that's fucking bullshit." (Tr. 379).
Croll testified that she tried to placate Metz, but he again yelled, ''that's fucking bullshit."
(Tr. 3.80). He rep.ortedly repeated similar statements several more times. (Tr. 381 ). Croll stated
she again attempted to diffuse the situation by offering to bring the back pay issue to the attention
of her supervisor Kathy Wiley. (Tr. 381). Consistent with the prior telephone message he had
left Croll requesting a written decision, Metz demanded, '~I want a fucking formal response on
this issue." (Tr. 382). Croll re.lated that Metz continued to be loud and aggressive, and before
exiting the room, he sprang from his chair in a manner that made it appear that he was lunging at
·
Croll. (Tr. 382-83).
g. Metz's Account of the March 12. 2009. Meeting
Metz's account of the March 12, 2009, meeting cannot be reconciled with Croll's account
of the meeting. Metz testified that he was summoned to Saterstad's office without explanation,
where he was met by Saterstad and Croll. (Tr. 77, 85). Shortly thereafter, Croll exited her
meeting with Saterstad and joined Metzwho was waiting in.the conference room. (Tr. 85).
Saterstad left the area and did not participate in the meeting. (Tr. 93).
32 FMSHRC Page 1716

Although Croll testified that she initially became aware of a previous incident that·
occurred when Metz confronted Mei Lorick, a former human resources representative at the
plant, after the March 12 meeting, Metz testified that Croll began the meeting by stating to him,
"you are the one who hates Mei Lorick." (Tr. 85-8, 391-93). Metz testified that he denied hating
Lorick, but he told Croll that "[Lorick] doesn't do her job." (Tr; 87).
Metz testified that Croll explained Carmeuse's position on peer review. Metz responded
that he already understood the peer review policy. (Tr. 88). Metz testified that he requested a
written document formalizing Carmeuse's refusal to provide back pay for retroactive on-call
service. (Tr. 89). Metz stated that he sought this document as a means to extricate himself from
his role as intermediary between Carmeuse and its employees on the back pay controversy. ·
(Tr. 89). In this context; Metz instructed Croll to "have Ms. Wiley ... make this document up."
(Tr. 89). Croll reportedly responded, "[d]on't talk to me like that," to which Metz reportedly
responded, "what do you mean?" (Tr. 89). Metz testified that he concluded that, "something
screwy is going on here. I am going to get out of here and try to save myself," and then he left the
conference room. (Tr. 89).
Conspicuously absent from Metz's account is any admission that he used profane language,
or, that he acted in a hostile or otherwise inappropriate manner. Metz' s testimony regarding his
behavior on March 12, 2009, was evasive and lacking in credibility. In this regard, Metz testified:
Metz Counsel: Did you swear at Melissa Croll?
Metz: I don't remember swearing at her.
Court: Mr. Metz, the question was: did you swear at Ms. Croll? You said you
don't remember swearing at Ms. Croll or you didn't swear at Ms. Croll? What
was yo~ response?
Metz: If I did, I wouldn't have had to ask her what I did or said. I don't remember
swearing at her.
Court: That's what I'm asking. Is your testimony that you didn't swear at her or is
your testimony that you don't remember swearing at her?
Metz: I would say it would be out of character for me to swear in front of a lady,
first of all. Not that I don't; but, accidentally, you could maybe say something.
Court: So I'll ask you again. Is it your testimony that you don't remember
swearing at her or that you didn't swear at her?
Metz: I would say I didn't because since she couldn'ttell me what it was when I
asked her a couple times.

32 FMSHRC Page 1717

Court: l ~not asking you to tell me what she told you. I am asking you to try to
remember what you said. Do you remember what you said Qr was your testimony
that you remember what you said and you didR't swear at her?
Metz: I don't remember swearing at her....
Court: So you don't remember what you said?
Metz: No.
Court: Was that a yes?
Metz: No.
Court: You do remember what you said?
Metz: Okay, no. You are confusing me.
Court: Well you are confusing me; My question: is: do you remember what you
said to her?
Metz: I don't recall swearing at her. I thought that's what you asked. I didn't
swear at her.
Court: Your testimony is you didn't swear at all at her?
Metz: Not that I remember. I am confusing you again.
Court: No, you are not confusing me. Your testimony is that you don't remember
swearing at her. That's the best we are going to get, right?
Metz: I am saying that there's-there could be sometimes when someone swears,
and they don't remember swearing or-.
Court: I am not asking you to recall what happened on March 12 ... I am asking
you: since this was a topic of discussion all during that time; March 12, 13, 14 when were you finally terminated? March 18?
Metz: Yes.
Court: So it was a topic of conversation. I don't find it credible that you don't
remember what you said. Because this would have been discussed over the course
of that week. Did you or didn't you swear at all at her.

32 FMSHRC Page 1718

Metz: I say I didn't swear at her.
Court: Your testimony is you didn't swear at her?
Metz: No, I didn't. I hate to say not that I know of. I am going to say no.
Court: All right.
Metz: I didn't swear at her.
Court: It's an equivocal no.
(Tr. 107-10).
h. The Events Following the March 12. 2009. Meeting
Metz's behavior reportedly startled Croll. (Tr. 384). She left the conference room and
went to Kauffman's office where Kauffman testified he noticed she appeared ''very shaken."
(Tr. 385, 587). Croll reported to Kauffman what had happened. Shew~ concerned about Metz
returning to work in his agitated state. (Tr. 385). Croll asked Kauffman to call Metz to the office
so that she could express her concerns and explain to Metz that his behavior in the conference
room was, inappropriate. (Tr. 385).
Kauffman called Maintenance Manager Keith Lambert, and Lambert escorted Metz to
Kauffman's office. (Tr. 387, 587-88). When Croll explained to Metz that his behavior was
unacceptable, Metz replied, "this is all bullshit." (Tr. 388, 588-89). Concerned by Metz's
agitation, Croll suggested to Metz that he should look :(or another job if working at the plant was
making him tha~ unhappy. (Tr. 389). Metz promptly left the room at which time Croll,
Kauffman and Saterstad left to go to lunch. (Tr. 391-92).
During lunch, Saterstad remembered an incident involving Metz and Mei Lorick.
(Tr. 391). Saterstad explained that Metz had been upset <:ibout an incident where he was accused
of intentionally burning an employee by giving the employee a recently welded hot piece of
metal. The company ultimately found that Metz WflS not at fault. However, Saterstad recalled
that Metz became hostile in his meeting with Lorick .in that he yelled and pointed his finger in
Lorick's face. (Tr. 392-93). Saterstad further related to Croll that Metz was known to exhibit.
anger and hostility in the workplace. (Tr. 393).
Upon returning from lunch, Croll, Kauffman and Saterstad were met by maintenance
supervisor Ron Popp who had just spoken to Metz. (Tr. 394). Popp gave Croll written notes he
had taken after his encounter with Metz. (Tr. 395; Resp. Ex. 20). Popp explained that he.had
asked Metz what was wrong after seeing Metz, who was apparently upset, standing by one of the
kilns. (Tr. 396, 644). Metz responded, "who the fuck does she think she is," and "she is a waste .
of my fucking time." (Tr. 396, 644; Resp. Ex. 20). Metz then said, at least twice, that he needed
to go home before "I hurt myself or someone else." (Tr. 396, 644, Resp. Ex. 20).
32 FMSHRC Page 1719

Concerned for the we11 being of Metz and the safety of the plant employees, Popp agreed
that Metz should go home. (Tr. 644). Popp drove Metz to the locker room and waited until he
observed Metz leave plant property. (Tr. 645). Popp opined to Croll that he believed Metz was
"a time bomb ready to explode." (Tr. 395; Resp. Ex. 20).
After listening to Popp, Croll felt threatened and believed Metz was capable of workplace
violence. (Tr. 397-98). Mark Miller, an area loss prevention manager, also testified that an
hourly employee came to see him after the Metz incident because he too was afraid Metz could
return and harm people at the plant. (Tr. 673-74, 679-80).
Kauffinan and Croll called Roger Downham, Vice President of Operations, who is based
in Toronto, Canada, as Croll's supervisor Wiley was unavailable because she was on jury duty.
(Tr. 19, 398-99). They explained the series of events that had occurred. Downham decided that
Metz should be suspended without pay pending further investigation. (Tr. 399). Pursuant to
Downham's decision, Croll and Kauffinan decided they would have Lambert meet Metz at the
gate entrance to plant property the next morning at 5:30 a.m. before the start of the 6:00 a.m.
shift to inform Metz of his suspension. (Tr. 399-400).

In the meantime, Croll decided to review Metz's personnel file and to interview
employees about their interactions with Metz before speaking to Wiley. (Tr. 410). In addition
to the incident involving Metz' s hostile reaction to Lorick, Croll noted the March 6, 2007,
discipline notice concerning Metz's threatening behavior towards Kauffinan, and the· warning
that Metz would be terminated if his threatening behavior toward management should reoccur.
(Tr. 404, 571-72; Resp. Ex. 6).
Croll e-mailed Wiley a detailed description of the March 12 events, including attachments
of copies from Metz's personnel file. (Tr. 406, 685; Resp. Ex. 18). Wiley telephoned Croll to
discuss the :incident and they agreed on a plan to determine if this was an isolated event or a
pattern of behavior. (Tr. 406, 685, 687). Wiley suggested contacting the local police to provide
security at the plant if Metz became angry about being prevented from entering plant property.
(Tr. 407). Carmerise informed the North Landonderry Township Police of their concerns
regarding Metz. (Tr. 406-08, 597; Resp. Ex. 27B).
Metz did not attempt to come to work on March 13, 2009. (Tr. 106, 407-08).
Concerned that Metz would be upset by the investigation and suspension, Miller arranged for
Metz's suspension notice to be delivered by-the state constable as suggested by the Township
Police. (Tr. 409; Resp. Ex. 21 ).
·
Croll continued her investigation by interviewing employees about their interactions with
Metz. (Tr. 410; Resp. Ex. 26). Croll learned about the previously noted incident in which
Metz harassed fellow employee and made lewd comments about that employee's mother.
(Tr. 418-20). After completing her interviews, Popp escorted Croll to the highway for her return
·- ·
··
to Pittsburgh. (Tr. 420).

a

32 FMSHRC Page 1720

Upon returning to Pittsburgh, Croll called Lorick and Jones as they were former
human resources representatives at the Annville Plant who were familiar with Metz. (Tr. 424-28;
Resp. Exs. 22, 23). Croll testified that each described Metz as a "hot head" with a bad temper.
(Tr. 424-28). Lorick also described Metz as a "time bomb ready to explode." (Tr. 426).
Jones told Croll that Metz also had previously contacted him about obtaining peer review
for the on-call back pay issue. (Tr. 428).
Croll reported to Wiley a chronological account of the relevant events concerning Metz. ·
(Tr. 695-96; Resp. Ex 18(a)). Wiley testified she reviewed the information and discussed the
March 12 incident with Downham and Canneuse's in-house counsel Kevin Whyte. {Tr. 699700; Resp. Exs. 22, 23). Their conclusion was that Metz should be terminated. (Tr. 597, 685,
699).

In a telephone conversation on March 18, 2009, Wiley explained to Metz Canneuse's
decision to terminate his employment because of his "repeated use of profanity, vile, threatening
and/or abusive conduct in the workplace with [his] peers and members of management."
(Tr. 701-02; Resp. Ex. 1). Wiley informed Metz that his personnel file had been reviewed and it
too demonstrated a "clear pattern of harassing, abusive and offensive behavior" that would not be
tolerated in the workplace. (Tr. 702).

A letter from Wiley summarizing her conversation with Metz and outlining the reasons
for his termination was sent to Metz on March 18, 2009. (Resp. Ex. 1). The letter stated, in
pertinent part:
Effective Wednesday, March 181' \ 2009, you are being terminated from
employment with Canneuse Lime and Stone for violation of the Corporate
Harassment Policy in addition to General Rules and Regulations as outlined in the
Annville Handbook (plant specific). Your repeated use of profane, vile,
threatening and/or abusive language in the workplace used with your peers and
members of management, in addition to a thorough review of your personnel file,
has demonstrated a clear pattern of harassing, abusive and offensive behavior in
the workplace as well as a lack of respect for others. This behavior will not be
tolerated in the workplace.
{Resp. Ex. 1).
Metz requested peer review of his termination. (Tr. 704). The request was denied due to
the confidential nature of information obtained during the investigation concerning harassment of
a Canneuse employee. (Tr. 704.;.05; Resp. Ex. 27A). A formal letter dated March 23, 2009, was
sent to Metz detailing the reasons for the denial of his request for peer review. (Resp. Ex. 27A).

32 FMSHRC Page 1721

III. Further Findin&s and Conclusions
a. Analytical Framework
Section 105(c) of the Mine Act prohibits discriminating against a miner because of his
participation in safety related activities. Congress provided this statutory protection to encourage
miners "to play an active part in the enforcement of the Act" recognizing that, "if miners are to
be encouraged to. be active in matters of safety and heal.th, they must be protected against any
possible discrimination which they might suffer as a result of their participation." S. Rep. No.
95-181, at 35 (1977), reprinted in Senate Subcomm. on Labor, Committee on Human Res.,
Legislative History of the Federal Mine Safety and Health Act of 1977at 623 (1978). It is the
intent of Congress that, "[w ]henever protected activity is in any manner a contributing factor to
the retaliatory conduct, a finding of discrimination should be made." Id. at 624.
Metz, as the complainant in this case, has the burden of proving a prima facie case of
discrimination. In order to establish a prima f acie case, Metz must establish that he engaged in
protected activity, and that the termination of his employment was motivated, in some part, by .
that protected activity. See Secy ofLabor on behalf ofPasula v. Consolidation Coal Co.,
2 FMSHRC 2786, 2797-2800(October1980) rev'd on other grounds sub nom. Consolidation
Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Secy ofLabor on behalf ofRobinette v.
United Castle Coal Co., 3 FMSHRC 803, 817-18(April1981).
Carmeuse may rebut a prima facie case by demonstrating, either that no protected activity
occurred, or, that the termination of Metz was not motivated in any part by his protected activity.
Robinette, 3 FMSHRC at 818 n.20. Carmeuse may also affirmatively defend against a
prima facie case by establishing that it was also motivated by unprotected activity, and that it
would have taken the adverse action for the unprotected activity alone. See also Jim Walter
Resources, ~20 F.2d at 750, citing with approval Eastern Associated Coal Corp. v. FMSHRC,
813 F.2d 639, 642 (4th Cir. 1987); Donqvan v. Stafford Constr. Co., 732 F.2d.954, 958-59
(D.C. Cir. 1984); Boich v. FMSHRC, 719F.2d194, 195-96 (6th Cir. 1983) (specifically
approving the Commission's Pasula-Robinette test).
b. Metz's Prima Facie Case
As the complainant, Metz has the burden of proving that his termination violated the
anti-discrimination provisions of section I 05(c) of the Act. While Metz testified that he
occasionally served as a miners' representative; the primary protected activity relied upon is
Metz's safety related complaints concerning the contractor's method of dismantling the kilns.
To .establish a prima facie case, Metz need only demonstrate a proximity in time between his
protected activity and the adverse action complained of, in this case his termination, and
company knowledge of the protected activity. Although Carmeuse maintains that the contractor
was dismantling the kiln in a safe manner, Metz's kiln related complaints are protected as long as
he had a good faith belief that a hazard existed, regardless of whether the activities of the kiln
contractor were in fact hazardous. Robinette, 3 FMSHRC 810-812.
32 FMSHRC Page 1722

Carmeuse has stipulated that several employees, including Metz, communicated

kiln related safety complaints no more than two to three weeks prior to Metz' s termination.
(Tr. 60-61). Carmeuse also stipulated that Metz's complaints were made in good faith. (Tr. 61).
Consequently Metz has satisfied his burden of demonstrating a prima facie case of
discrimination.
As·a threshold matter, Carmeuse contends that the protected activity relied upon by Metz
is not material because Croll, Wiley, and Downham, who made the ultimate decision to terminate
Metz, had no knowledge ofMetz's safety related complaints. However, plant management
personnel who knew Metz well, such as, Kauffman, Saterstad, and Popp, counseled Croll in her
deliberations concerning Metz. Moroover, the Annville plant is a: relatively small facility with
approximately 50 employees. Notwithstanding whether actual knowledge of protected activity
has been demonstrated, the Commission has held that the small size of a mine supports an
inference that an operator was aware of a miner's protected activity. Morgan v. Arch ofIll.,
21FMSHRC1381, 1391(December1999) (citations omitted). Consequently Carmeuse is
deemed to have had actual knowledge ofMetz's protected activity when they decided to
teiminate him.
c. Carmeuse's Rebuttal
However the analysis does not stop there. In ail effort to rebut Metz' s prima facie case,
Carmeuse contends that Metz's termination was motivated solely by his inappropriate and hostile
conduct on March 12, 2009, as well as his history of abusive and threatening behavior. In this
regard, Carmeuse contends that Metz's reported safety related protected activity was not
considered in any way in the company's decision.
Having concluded that Carmeuse was aware ofMetz's protected activity, the analysis
shifts to whether Carmeuse's reported rationale for terminating Metz, i.e., his profane,
insubordinate and belligerent behavior, is a pretext for an ulterior motive of retaliation. ·
Determining whether Carmeuse's reported rationale is a pretense requires analysis of the
credibility of the differing accounts of Metz and Croll with respect to their March 12, 2009,
meeting. In resolving credibility issues, the.judge "[who] has an opportunity to hear the testimony
and view the witnesses ... is ordinarily in the best position to make a credibility determination."
In re: Contests ofRespirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1878 (Nov.
1995) (quoting Ona Corp. v. NLRB, 729 F.2d 713, 719 (11th Cir. 1984)), ajf'd sub nom. Secretary
ofLabor v. Keystone Coal Mining Corp., 151 F.3d 1096 (D.C. Cir. 1998).
Croll's initial testimony that she was totally unprepared for Metz's outburst, because she
did not know prior to their meeting the identity of Metz nor his history, lacks credibility. (Tr. 353).
Croll later admitted that Saterstad had told her, prior to the meeting, that Metz was a complainer.
Moreover, Croll' s e-mail to Wiley after the meeting reflects that Croll had reason to know before
the meeting that Metz was a "disgruntled employee." (Tr. 353, 453-54; Resp. Ex. 18). Thus, the
degree to which Croll contends that she was startled by Metz's conduct is suspect.

32 FMSHRC Page 1723

Despite her unsubstantiated claim that she was not forewarned about Metz, Croll's account
ofMetz's profane and belligerent conduct is entitled to great weight because it is corroborated by
evidence of similar conduct both before and after the March 12 meeting. Kauffman testified about
an incident that occurred in March 2007 when Metz threatened him. (Tr. 573). Metz's threat was
taken seriously enough to warrant a written disciplinary notice cautioning Metz that he would be
terminated if such threatening conduct directed at management reoccurred. (Resp. Ex 6). Metz
had also reacted aggressively during a previous meeting with Lorick, a company human resources
employee. (Tr. 391-93).
Popp encountered Metz shortly after the meeting with Croll, at which time Metz used
profanity and threatened to hurt himself or someone else. (Tr. 394-96; Resp. Ex. 20). Popp
escorted Metz off mine property because he was so concerned about Metz' s hostile behavior.
Miller also testified that employees were afraid that Metz was capable of harming people at the
plant. (Tr. 673-74, 679-80). Saterstad also believed Metz had a reputation for exhibiting anger
and hostility in the
workplace. (Tr. 393). Even Metz's own witness, Jeffrey Englehart,
.
. related that
. Metz was known to be the one to confront management on employee issues because "[h]e has more
balls than we do." (Tr. 222).
·.
Finally, the company's claim that Metz's behavior could no longer be tolerated is supported
by the information contained in Metz's March 18, 2009, termination letter. The termination letter
described Metz's language as "profane, vile, threatening and/or abusive." (Resp. Ex. 1). Jn short,
unless Croll, Kauffinan, Lambert, Saterstad and Popp have all conspired to falsely report that they
witnessed Metz's hostile and abusive conduct on March 12, 2009, the evidence amply supports
Croll's testimony that Metz acted in a profane arid hostile manner during their meeting.
Although Metz has attempted to discredit Croll, his testimony concerning whether he had
acted inappropriately and used profane language was evasive. Moreover, Metz's testimony that he
could not recall whether he used profanities during his meeting with Croll is not worthy of belief.
Metz's March 12 conduct was the focus of discussion and consideration from March 12 until
March 18, 2009. (Resp. Exs. 1, 21). On March 18, 2009, Wiley telephoned Metz to inform him
that his employment was terminated because of his "repeated use of profanity, vile, threatening
··
and/or abusive conduct in the workplace with [his] peers and members of management."
(Tr. 701-02; Resp. Ex. 1). Wiley also informed Metz that his personnel file had been reviewed
and it too demonstrated a "clear pattern of harassing, abusive and offensive behavior" that would
not be tolerated in the workplace. (Tr. 702). Their telephone conversation was committed to
writing in Metz's March 18, 2009, termination letter. (Resp. Ex. 1).
It is in this context that Metz's claim that he is not certain that Croll's accusations are true,
because he cannot recall how he behaved during their meeting, is incredulous. It is also
noteworthy that Metz also could not recall his behavior with regard to the Kauffman incident and
the events concerning his harassment of a fellow employee. (Tr. 572, 312). Thus, in the final
analysis, the great weight of the evidence supports Carmeuse's contention that Metz's conduct on
March 12, 2009, was insubordinate and intolerable.

32 FMSHRC Page 1724

d. Metz' s Reliance on Circumstantial Evidence
The focus now shifts to whether Carmeuse was also motivated, in any part, by Metz's
protected activity. In determining whether Metz's conduct, alone, was the basis for Carmeuse's
decision to terminate his employment, it is significant that the "Commission does not sit as a super
grievance board to judge the industrial merits, fairness, reasonableness, or wisdom of an
operator's employment policies except insofar as those policies may conflict with rights granted
under section 105(c) of the Act." Delisio v. Mathies Coal Co., 12 FMSHRC 2535, 2544
(December 1990) (citations omitted).
The Commission has addressed the proper criteria for considering the merits of an
operator's asserted business justification:
Commission judges must often analyze the merits of an operator's
alleged business justification for the challenged adverse action. In
appropriate cases, they may conclude that the justification is so
weak, so implausible, or so out of line with normal practice that it
was mere pretext seized upon to cloak the discriminatory motive.
The Commission and its judges have neither the statutory charter
nor the specialized expertise to sit as a super grievance or
arbitration board meting out industrial equity. Once it appears that
a proffered business justification is not plainly incredible or
implausible, a finding of pretext is inappropriate. We and our
judges should not substitute for the operator's business judgement
our views on "good" business practice or on whether a particular
adverse action was ''just" or "wise." The proper focus, pursuant to
Pasula, is on whether a credible justification figured into the
motivation and, if it did, whether it would have led to the adverse
action apart from the miner~s protected activities.
Chacon, 3 FMSHRC ·at 2516-17.

The Commission subsequently further explained that, while a proffered business
justification must be facially reasonable, it is not the role of the judge to substitute his or her
judgement for that of the mine operator. The Commission stated:
[T]he reference in Chacon to a "limited" and "restrained"
examination of an operator's business justification defense does
not mean that such defenses should be examined superficially or be
approved automatically once offered. Rather, we intended that a
judge, in carefully analyzing such defenses, should not substitute
his business judgement or a sense of "industrial justice" for that of

32 FMSHRC Page 1725

the operator. As we recently explained, "Our function is not to
pass on the wisdom or fairness of such asserted business
justifications, but rather only to determine whether they would·
have motivated the particular operator as claimed."

Haro v. Magma Copper Co., 4 FMSHRC 1935, 1938 (Nov. 1982) (citations omitted).
In determining whether Carmeuse's decision to terminate Metz is tainted, in any part, by
a discriminatory motive, it must be remembered that direct evidence of.discrimination is rare.
Rather, the Commission looks to circumstantial evidence of discrimination. Thus, the
Commission has stated:

[D]irect evidence of motivation is rarely encountered; more typically, the only
available evidence is indirect .... 'Intent is subjective and in many cases the
discrimination can be proven only by the use of circumstantial evidence.'

Chacon, 3 FMSHRC at 2510 (quoting NLRB v. Melrose Processing Co., 351F.2d693, 698
8th Cir. 1965). Some of the more common circumstantial indicia of discriminatory intent are
knowledge of the protected activity, hostility or animus towards it, coincidence in time between
the adverse action and the protected activity, and disparate treatment of the complainant. Id.
However, to demonstrate by indirect evidence that Carmeuse was motivated, at least in
part, by Metz's protected activity requires a rational connection between the evidentiary facts and
Metz's termination. See Garden Creek Pocahontas, 11 FMSHRC 2148, 2153 (Nov. 1989) citing
Mid-Continent Resources, Inc., 6 FMSHRC at 1132, 1138. Carmeuse's knowledge of Metz's
kiln related complaints, that were communicated· shortly before his termination, alone, does not
provide an inherently reasonable basis for inferring that he was discriminated against.
Rather, the evidence must reflect that Metz was the victim of disparate treatment because
of a company animus toward his protected activity. With respect to animus, the evidence does
not reflect an atmosphere of general intolerance of safety related complaints. On the contrary,
Metz's own witness testified that he felt comfortable making safety complaints.to anyone in
management. (Tr. 283-84). The company conceded that, in addition to Metz, numerous other
employees complained about the kiln contractor. ·It has neither been contended nor shown that
any of these .employees experienced retaliation. Moreover, there is no evidence of a retaliatory
motive for Metz's activities as a miners' representative, or, for his previous discrimination
complaints that are remote in time. Significantly, despite his history of protected activity, Metz
received only a written warning for his March 2007 insubordination.

32 FMSHRC Page 1726

The Commission has previously addressed the issue of disparate treatment in a
matter where a mine operator relies on the use of profanity as a justification for termination.
"fu analyzing whether a complainant was disparately treated in the context of termination. for
using offensive language, the Commission has looked to whether the operator had prjor
difficulties with the complainant's profanity, whether the operator had a policy prohibiting
swearing, and how the operator treated other[s] ... who had cursed." Sec '.Y o/b/o Bernardyn v.
Reading Anthracite 23 FMSHRC 924, 929-30 (Sept. 2001) citing Cooley v. Ottawa Silica, 6
FMSHRC at 521, and Hicks v. Cobra Mining, 13 FMSHRC 532-33.
Here, Carmeuse had previously warned Metz for threatening Kauffinan. fu seeking to
minimize the significance of his profane and hostile behavior, Metz claims the COI11pany has a
permissive policy regarding the use of profanity.. Jn this regard, Metz presented evidence
. .that
hourly employees in the maintenance department "routinely swear" during their conversations
with each other. (Tr. 204). While I am certain that men at the plant did not always use the
Queen's English to express themselves, such banter cannot be equated with the inappropriate
language and hostile behavior witnessed by Croll, Kauffinan, Lambert, Saterstad and Popp.
(Tr. 379-80, 388, 392-93, 395-96, 572). Thus, the company's assertion that its termination of
Metz was motivated by his profanities and threatening behavior is neither pretextual in nature, nor
evidence of disparate treatment.
Metz also contends that the denial of peer review for his termination is an indicia
of disparate treatment. Carmeuse's assertion that peer review did not apply because Metz's
termination involved comments that constituted sexual harassment is supported by the peer review
guidelines. (Metz Ex. 1O; Resp. Ex. 27A).
Moreover, the company's concern about a potential violent situation, as evidenced by the
company's request for a police presence after Metz's suspension and termination, provides an
additional busine,ss justification for denial of peer review. fu this regard, although Metz presented
evidence that two employees were granted peer review: prior to their discharge, the discharges
apparently did not involve threatening behavior as a police presence at the plant was not requested
immediately after their terminations. (Tr. 316, 325). SeeDreissen v. Nevada Gold.fields, Inc.,
20 FMSHRC 324, 332 n. 14 (Apr.1998)citing Schulte v. Lizza1ndus., Inc. 6 FMSHRC 8, 16
(Jan. 1984); Chacon, 3 FMSHRC at 2512 (disparate treatment requires evidence that another
employee guilty of the same or more serious offenses escaped the disciplinary fate suffered by the
complainant). Thus, there is no rational basis for concluding that the denial of peer review is an
indicia of discriminatory motive.
Finally, a Commission judge is "obligated to determine whether the actions for which the
miner was disciplined were provoked by the operator's response to the miner's protected activity."
Floyd Dowlin, III, v. Western Energy Co., 28 FMSHRC 23, 31(Jan.2006) (AU) citing Secy of
Labor olb/o McGill v. U.S. Steel Mining Co., 23 FMSHRC 981, 992 (Sept. 2001). Consequently,
at the culmination of the hearing, the parties were requested to address the issue of provocation in
their briefs.

32 FMSHRC Page 1727

The Court of Appeals has noted that "[t]he more.extreme an employer's wrongful
provocation the greater would be the employee's justified sense. of indignation and the more likely
its excessive expression." Bernardyn,23 FMSHRC at 936quoting NLRB v. M &B Head.wear
Co., 349 F.2d 170, 174 (4th Cir. 1965). In its brief, Canneuse concedes that it "may not have·
handled Mr .. Metz in the best manner possible, from a htiman resources standpoint ... " ·
(Resp. Br. at 36). Croll had never met Metz prior to their March 12 meeting. Given Metz's ·
volatile history, his outburst may have been foreseeable. However, the failure of Carmeuse to
anticipate Metz's aggressive behavior does not constitute the requisite intentional wrongful
provocation that would mitigate, or otherwise justify, Metz's behavior on March 12, 2009.
In the final analysis, Metz is responsible for his conduct .
.,

Moreover, even if Metz was provoked by Carmeuse, such provocation would not give rise
to a discrimination claim under the Mine Act because it was not in response to safety related
protected activity. Consequently, Carmeuse's reliance on Metz's misconduct as the sole reason for
his termination cannot be defeated by a claim of provocation.
Absent evidence of animus, disparate treatment or wrongful provocation, the evidence
reflects that Metz's termination was not motivated in any part by his protected activity.
Thus, Metz' s prima facie case of discrimination has been successfully rebutted by Carmeuse.
As Carmeuse has rebutted Metz's claim that he was the victim of discrimination,
further inquiry into whether Carmeuse has demonstrated an affirmative defense is unnecessary.
Gravely v. Ranger Fuel Corp., 6 FMSHRC 799, 803 (Apr. 1984). However; I note that even if
Canneuse was motivated, in any part, by Metz' s protected activity, his hostile and· threatening
conduct during and immediately following the March 12, 2009, m!eting provided Carmeuse with a
rational and independent basis for his termination regardless of his protected activity. Accordingly,
Metz's discrimination complaint must be denied.

ORDER
In view of the above, IT IS ORDERED that the discrimination complaint filed
by William Metz IS DENIED. Accordingly, IT IS FURTHER ORDERED that
Docket No. Penn 2009-541-DM IS DISMISSED.

Administrative Law Judge

32 FMSHRC Page 1728

Distribution: (Regular and Certified Mail)
Kim L. Lengert, Esq., Law Office ofK.im L. Lengert, P.O. Box 223, Robesonia, PA 19551
R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340,
401 Liberty Ave, Pittsburgh, PA 15222

/jel

32 FMSHRC Page 1729

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

./

November 8, 2010
SECRETARY OF LABOR,
M1NE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING:
Docket No. WEYA 2009-173
A.C. No. 46-08993-165542

v.
Mine: Coalburg Number One Mine
NEWTOWN ENERGY, INC.,
Respondent.

DECISION
Appearances: Jessica R. Hughes, Esq., Office of the Regional Solicitor, Arlington, Virginia, on
behalf of the Petitioner
Christopher D. Pence, Esq., Allen Guthrie and Thomas, PLLC, Charleston, West
Virginia, on behalf of the Respondent
Before:

Judge Barbour

This case is before me on a Petition for the Assessment of Civil Penalty filed by the Secretary
of Labor ("Secretary'') on behalf of her Mine Safety and Health Administration ("MSHA") against
Newtown Energy, Inc. ("Newtown"). The matter arises under sections 105(a) and l IO(a) of the
Federal Mine Safety and Health.Act of 1977 ("the Mine Act"). 30 U.S.C. §§ 815(a), 820(a). In the
petition, the 'secretary alleges Newtown violated a mandatory safety standard requiring the roof, rib,
and face of areas where persons work or travel be supported so as to protect those persons from the
hazards relating to the falls of the roof, ribs, or face. The standard is set forth in Part 75, Section
202(a), Title 30, Code of Federal Regulations. 30 C.F.R. Part 75.202(a). The Secretary alleges that
the company violated the standard on October 301ih, 2007 when the roof of a travel way used to
examine an unsealed and worked out area was not supported so as to protect persons from roof falls.
She further alleges that the violation was a significant and substantial contribution to a mine safety
hazard ("S&S"), that the violation was due to the company's high negligence, and because of the
violation, one miner was reasonably likely to be fatally injured. She proposes an assessment of
$12,900 for the alleged violation.
Following the issuance ofthe citation, the company contested the validity ofthe citation and
the proposed assessment. After the Secretary's penalty petition was filed, Newtown answered,
denying the Secretary's allegations, and in particular challenging the S&S finding and the negligence
'
assertion of the inspector.

32 FMSHRC Page J 730

The matter was assigned to me, and I issued an Order directing Counsels to confer to
determine whether they could settle the case. When the parties, foilowing diligent efforts, advised
me that they were unable to agree to a settlement, I scheduled the case to be heard in Charleston,
West Virginia. At the hearing, the parties presented testimonial and documentary evidence regarding
the alleged violation. Also at the hearing, the parties presented stipulations and offered them as a
joint exhibit. Tr, 14-15.

STIPULATIONS
The stipulations are as follows:

1. This case involves one underground bituminous coal mine known as Coalburg No. l
Mine, which is owned and operated by Newtown.

2. The mine is subject to the jurisdiction of the Federal Mine Safety and Health Act of
1997 (''the Act").
3. The Administrative Law Judge has jurisdiction over these proceedings, pursuant to
Section 105 of the Act.
4. Newtown is an"operator" as defined in§ 3(d) of the Act, 30 U.S.C. § 803(d), at the
coal mine at which the citation at issue in this proceeding was issued.
5. The parties stipulate to the authenticity of the examination reports and inspector's
notes, but not to the relevance or truth of the matters asserted therein.
6. Newtown's operations affect interstate commerce.
7. True copies of each citation at issue in this proceeding were served on Newtown or its
agent as required by the Mine Act.
8. The citation contained in Exhibit A attached to the Secretary's petition [is an] authentic
[copy] of the citation that is at issue in this proceeding with all appropriate modifications or
abatements, if any.
9. The individual whose signature appears in Block 22 of the [citation] ... was acting in
[his] official capacity and as an authorized representative of the Secretary of Labor when the
[citation was] issued.
10. The proposed penalty will not affect Newtown's ability to remain in business.
11, Newtown demonstrated good faith in abating the cited conditions.

32 FMSHRC Page 1731

12. The Violator Data Sheet contained in Exhibit A attached to the Secretary's petition
accurately sets forth:

[A.] The size of Newtown, in production tons or hours worked per year,
[B.] The size in production tons or hours worked per year, of the coal or other
mine at which the citation ... at issue in this proceeding [was] issued,

[C.] The total number of assessed violations for the twenty-four (24) months
preceding the month of the referenced citation ... , and
[D.] The total number of inspection days for the twenty-four (24) months
proceeding the month of the referenced citation[.]

Jnt. Exh. 1.

CITATION NO.
7276088

DATE
10/30/07

30CFR§
75.202(a)

PROPOSED ASSESSMENT
$12,900

The citation states in part:
· The travelway being-used to examine the first left panel unsealed worked-out
areas was not supported or otherwise controlled to protect persons from hazards
related to falls of the roof, or ribs [,] and coal or rock bursts. Numerous locations
have rock fallen away from permanent roof supports that have made the bolts not
effective at spads 2726 (34 bolts), 2767 (40bolts), 2585 (4 bolts), and 2948{5 bolts).·
The operator dangered the areas off to travel.

Gov't. Exh. 3~
In pertinent part, section 75.202(a) requires. "[t)he roof ... of areas where persons work or
travel shall be supported or otherwise controlled to protect persons from hazards relating to falls of
the roof."
Following the conclusion of the testimony, the submission of the evidence, and counsel's
closing arguments, I delivered an oral bench decision. Pertinent parts of the decision follow.
Editorial changes have been made for clarity's sake.

I stated:
The fundamental issue in this case is whether the company violated section
75.202(a), and I find that it did. The Commission has made· Clear that to prove a

32 FMSHRC Page 1732

violation of a standard, the Secretary must establish the operator acted other than in
a way a reasonably prudent person would under the circumstances ... I am persuaded
that here a reasonably prudent operator would not have acted as Newtown did. · I
accept [the mine inspector's] description of the roof conditions[.] The inspector was
forthright and he was credible. I have no doubt the conditions existed as he indicated
on [the] citation and in his testimony. And this includes ... [places] where the roof
had fallen two to three feet above the roof bolt plates.
·That the conditions found by the inspector were hazardous . . . is patently
obvious . . . . The entire entry ... itself was made hazardous by the defective bolts,
especially where two feet to three feet of the roof was missing .... Further, the
standard requires that miners work or travel in the affected area, and clearly this was
the case. All of the witnesses agree that although [active] ... mining had ceased on
the first level panel, the second area was subject to a weekly examination. Thus, as
Inspector Nelson found, one person, the weekly examiner, was subjected to the
hazards inherent in the inadequately supported roof.
[T]he company recognized how hazardous it was for the examiner by using
two senior management persons, Mr. Asebes and Mr. Harper, to conduct the
examinations . . . . The fact that they could avoid traveling under the damaged bolts
by staying to the right of the entry does not defeat the violation, because the evidence
establishes that ... roof sloughage ... compromised the safety of the roof in
the ... crosscuts and across'the entire entry. The evidence [also] establishe[s] that
both Mr. Asebes and Mr. Harper, [the two senior management persons], walked the
route traveled by [the mine inspector]. I [therefore find] that [the two senior
management persons] ... traveled under inadequately supported roof in violation
of the standard.
I ... [further] find the violation was significant and substantial. First, there
was a violation of [the] standard. Second, the violation created a discrete safety
hazard, the . . . danger that the cited areas of the roof would fall on the weekly
examiner. Third, the hazard was reasonably likely to come to fruition.· I must view
the violation not only in terms of when it was cited, but also in terms of ongoing
mining .... It is clear Newtown was awaiting the agency's approval to seal the first
left panel. It had no apparent plans to move the evaluation point. [The] plans did not
materialize until after the violation was cited. Thus, in terms of continuing mining,
I find that . . . the weekly examinations Would have brought the examiner under a
seriously compromised roof. Making the situation even more dangerous is the fact
that all of the witnesses agree and I find that roof conditions were deteriorating as
time went on, a situation that subjected the examiner to an increasingly greater
hazard. [T]he inspector rightly noted that the hazard could reasonably be expected
to result in a fatal injury. Roof falls continue to be leading causes of death in the
·
nation's underground coal mines.

32 FMSHRC Page 1733

The violation also was very serious. I evaluate its gravity not in terms of ·
[if the hazard] was reasonably likely, but in terms of what [could have] happened
if ... [a roof fall] ... occurred. And a roof fall under these circumstances [easily]
could have seriously injured or killed an examiner. [S]o[,] with regard to the
violation, its [S&S] nature and its gravity, I affirm the inspector in all respects.
However, I take issue with [the inspector's] negligence finding. It is clear to
me that the company was caught in an unfortunate situation that was not entirely of
its ... making. Newtown was trying to get permission to seal the first left panel in
the wake of two major disasters [at other mines] involving ... seals. MSHA's
resulting consideration of regulatory changes to ... the standard involving seals and
the agency['s] ... [desire] to "get it right," led to delays in approvals to seal areas.
The company had the misfortune of getting caught in [such a] delay. I credit Mr.
Hartsog' s testimony that he was genuinely surprised ... how long it was taking to get
the seals approved. [T]his [together] with the fact that ... it would have. been
extremely impractical for the company to . . . [rehabilitate the roof, and] . . .
testimony regarding the laborious nature of such work emphasized why the company
did.11ot seriously consider [that] option.
Rather, than try to· change the evaluation point, .the .company waited for
MSHA's approval to seal the area, and it coupled this with sending only highly
experienced miners to conduct the weekly examination. It changed its.examination
procedure because it recognized. the hazard. It used its judgment to address the
danger.
As it turned out, the company's choice of a remedy did not meet the standard
of care required, but given the situation in which [the company] found itself, .. _, [its
approach] was not ... illogical[.] I conclude that the company's lack of care was
more moderate than high, and I will modify the citation to reflect this conclusion. In
[reaching] this conclusion, I ... accept as entirely factual [the company's counsel's]
observation that absolutely nothing in the record supports finding that the company's
approach to the situation was financially motivated. Tr. 232-:238.

CIVIL PENALTY ASSESSMENT
Having found the alleged violation exists, I must assess a civil penalty taking
into accorint the civil penalty criteria set forth in section 11 O(i) ofthe Act. 30 U.S.C.
§ 820(i). I must consider the very serious nature of the violation, the company's
moderate negligence, its good faith abatement, its size, as stipulated by the parties,
and the fact that the.penalty [will not] affect its ability to ~ontinue in business. I also
will be especially.mindful of the small applicable history of prior yiolations, which
may well reflect [the MSHA inspector's]. observation that management at the mine
was good and cared about compliance. [Tr. 71.]

32 FMSHRC Page 1734

I stated at the hearing:
Given all of the civil penalty criteria, I assess the civil penalty at $6,000(.]
· Tr. 239.

ORDER
Within 40 days ofthe date of this decision, the Secretary IS ORDERED to modify Citation
No. 7276088 by reducing the negligence level from high to moderate. In addition, Newtown IS
ORDERED to pay civil penalties totaling $6,000 in satisfaction of the violation in question. Upon
modification of the citation and payment of the penalty, this proceeding IS DISMISSED.

J)D~if/£

Administrative Law Judge

Distribution: (Certified Mail)
Robert S. Wilson, Esq.; Jessica R. Hughes, Esq., U.S. Department of Labor, Office of the
Solicitor, 1100 Wilson Blvd., 22nd Floor West, Arlington, VA 22209.,.2247
David J. Hardy, Esq.; Christopher D. Pence, Esq., Allen, Guthrie & Thomas, PLLC, -500 Lee
Street East, Suite 800, P.O. Box 3394, Charleston, WV 25333
/sa

32 FMSHRC Page 1735

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

November 12, 2010
CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY & HEALTH
ADMINISTRATION {MSHA),
Petitioner,

Docket No. WEST 2009-536
A.C. No. 48-01034-175585

v.
Caballo Mine
CABALLO COAL COMPANY, LLC,
Respondent.

DECISION
Appearances:

Ronald F. Paletta, Conference and Litigation Representative, Mine Safety
and Health Administration, Price, Utah, for Petitioner;
Duane Myers, Safety Manager, Caballo Mine, Gillette, Wyoming; for
Respondent.

Before:

Judge Manning

This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor ("Secretary"), acting through the Mine Safety and Health Administration {"MSHA")
against Caballo Coal Company, 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 "Mine Act").
Caballo Coal Company ("Caballo" or "Respondent") operates the Caballo Mine (the
"mine"), a surface coal mine in Campbell County, Wyoming. This case involves one 104(a)
citation issued at the mine. An evidentiary hearing was held in Gillette, Wyoming, and the
parties introduced testimony and documentary evidence. For the reasons set forth below, I find
that the Secretary established a. technical violation of the safety standard, but that the violation
was not significant and substantial.

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
On December 24, 2008, MSHA fuspector David Hamilton issued Citation No. 6686966
to Caballo for an alleged violation of section 77.205{d) of the Secretary's safety standards. The
citation states that:
The regularly used travel way at the Main office for the Caballo
Mine was not sanded, salted or cleared of snow and ice as soon as
32 FMSHRC Page 1736

practicable. For 150 feet on the East.side and 150 feet on the
South side of the Office Building the travel ways were covered
with accumulations of at least one quarter inch of packed snow
from foot traffic. Posing slipping and falling hazards.
(Ex. P-1 ). Inspector Hamilton determined that an injury was reasonably likely to occur and that
such an injury could reasonably be expected to result in lost workdays or restricted duty. ·Further,
he determined that the violation was significant and substantial'("S&S'') and that 50 persons
would be affected. Hamilton subsequently modified the citation to reflect that only one person
would be affected. In addition, he found that the violation was the result of moderate negligence
on the part of the operator.
Section 77.205(d) of the Secretary's regulations requires that "[r]egularly used travelways
shall be sanded, salted, or cleared of snow and ice as ·soon as practicable." 30 C.F .R.
§ 77.205(d). The Secretary proposes a penalty of $634.00 for this citation.
A. Back&round and Summary of Testimony
David Hamilton has.worked for MSHA for over three years and is currently a surface coal
mine inspector. (Tr. 8). As a surface mine inspector, Hamilton spends approximately 230 to 240
days a year inspecting equipment, buildings, impoundments, and explosive storage, and checking
for, among other things, imminent dangers and other hazards. (Tr. 9-10). Prior to joining
MSHA, Hamilton worked in the mining industry for over 26 years and, in 1996, received his
surface mine foreman ;certificate from the State of Wyoming. (Tr. 8-9).
On December 23, 2008, Inspector Hamilton traveled to the Caballo mine.to begin
conducting a required biannual inspection. (Tr. I 0-11 ). During the inspection Hamilton was
accompanied by Randy Milliron, a safety supervisor at the mine. (Tr. 11, 47).· Hamilton testified
that, at sonie point on the 23rd, he had a conversation with Milliron and Duane Myers, the mine's
safety manager. Milliron advised the inspector that there had been an accident at the North
Antelope Rochelle Mine in which a miner had slipped and fallen on ice. 1 (Tr. 11 ). Hamilton
testified that, during the conversation, Myers stated that he was planning to send an internal
email to the supervisors at the Caballo mine asking them to clean all of the walkways,
travelways, and sidewalks so that a similar accident would not occur at the Caballo mine. (Tr.
11-12). Hamilton stated that, as he left the mine on the 23rc1, the outside temperature was at or
near zero degrees Fahrenheit-and there was}~ inch of snow on the ground. (Tr. 12-13). While he
was concerned about the snow accumulations on the sidewalks, Hamilton believed that Myers
·
and Milliron had the situation under control. (Tr. 12).

1

The Caballo mine and the North Antelope Rochelle Mine are both owned by Peabody

Energy.
32 FMSHRC Page 1737

At 8:30 a.m. on December 24, 2008, lnsp~tor Hamilton returned to the Caballo mine to
resume the inspection. {Tr. 13). During the course of the inspection, Hamilton took a series of
14 photographs which, according to him, represented the condition of the exterior walkway as it
appeared at the time. (Tr. 19-25; Ex. P-2). Upon arrival, he noted that an additional eighth of an
inch of snow had fallen over night and the parking lot area had been sanded. (Tr. 13, 17).
Hamilton testified that further examination revealed that.none of the sidewalks had been .
shoveled or otherwise cleaned; that the snow on the walkways was becoming packed down by
people walking on it, and that, with one exception, all of the salt canisters located at the entrances
and exits to the buildings had snow on top of them, which indicated to him that the canisters had
not been opened since the snow began to fall. (Tr. 13; Ex. P-2). Salt had been thrown on the
ground near the one exterior door. (Tr. 21; Ex. P-2, Photo 4). Hamilton testified that, while
attempting to find Myers in one of the buildings, he encountered Walt Mayo, a Caballo
employee, who told Hamilton that he was "stepping up" while Myers was in a meeting with mine
management. (Tr. 14). Mayo accompanied Hamilton while he examined the remaining
travelways and entrances/exits around the perimeter of the buildings; (Tr. 14). In addition to the
snow on the travelways, Hamilton specifically noted "at least an inch" of ice that had formed on
the step and the grating at the main entrance to the building. (Tr. 14-15, 23-24; Ex. P2, Photo
11 ). Hamilton testified that Mayo told him the ice was created by snow melt dripping off of a
light above the entrance and re-freezing on the step. (Tr. 15). According to Hamilton; Mayo told
him this had been a problem for quite a while. (Tr. 15). Hamilton observed additional areas
where scuff marks in the snow on the travelways indicated to him that individuals had slipped
while walking.on the travelways. (Tr. 21-22; Ex. P-2, Photos 5& 7). Finally, Hamilton noted a
mixture of ice and. dirt that had formed inside and on top of the metal grating in front of an
exterior door. (Tr. 22; Ex. P-2; Photo 5). Hamilton explained his concerns to Mayo and, based
on the conditions observed, issued Citation No. 6686966 under section 104(a) for a violation of
section 77.205(d). ·(Tr. 15-16).
Hamilton told Mayo that the travelways needed to be cleared before anyone else walked
on them. (Tr. 14). Mayo instnicted a number of mechanics, plant technicians, and truck drivers
to clean the walkways. (Tr. 26). Hamilton terminated the citation after the employees abated the
violation by shoveling and salting the travelways, at which point he took a set of post abatement
photos. (Tr. 25-27; Ex. P-3). ·
Hamilton determined that an injury was reasonably likely to occur based on his
observation that {l) the snow thathad built up on the travelways had been packed down, (2) there
were marks in the snow that indicated sliding or slipping; and (3) his knowledge that an accident
involving a slip-and-fall had recently occurred at the North Antelope Rochelle Mine. .(Tr. 17).
However, Hamilton testified on cross-examination that he was not positive what type of injury
was sustained, or what the conditions were, at the other mine. (Tr. 28). Hamilton testified that
an injury could reasonably be expected to result in lost workdays or restricted duty since such
accidents generally result in sprains, bruises, concussions, and broken bones, which "in [his]
opinion would at least end up in restricted duty, and most likely lost work days, but ... would
[not] be pennanently disabling." (Tr. 17). He initially determined that 50 persons would be
32 FMSHRC Page 1738

affected by the conditions,2 but later modified the citation to one person affected since he could
reasonably only expect one person to slip at a time. (Tr. 16-17). Hamilton testified that he did
not issue the citation as an imminent danger because he did not see anyone standing in the cited areas at the time he issued the citation. (Tr. 30).
Hamilton determined that the violation was the result of the company's moderate
negligence based on the fact that at least some· effort had been made. to address the conditions,
i.e., the parking lot had been sanded and salt had been thrown in front of one door. (Tr. 18). He
felt that the violation was the result of more than low negligence because there were still 300 feet
oftravelways around the buildings that had not been touched.- (Tr. 18).
Walt Mayo, an hourly employee who worked as a plant maintenance tecbriician at the
mine, testified that, based on his hazard recognition training, he did not believe that the cited
conditions were a hazard since "there was not enough snow ... (and] [i]t wasn't slick." (Tr. 3637, 39). He had not slipped on the snow, nor had he heard of anyone else slipping on it. (Tr. 39).
Mayo testified that, while Hamilton told him the condition was citable, Hamilton did not issue
the citation prior to it being abated. (Tr. 38). Mayo stated that the scuffmarks noted by
Inspector Hamilton were not from slipping but were caused by coveralls dragging behind the
boots that created the footprints in the snow. (Tr. 40-41; Ex. R-1, Photo 8). Mayo testified that
the employees had recently been issued new coveralls that were too long and would drag behind
the miner's boots. (Tr. 40-41). Mayo noted that the texture of the ground under the snow was
very rough and the ice which had built up near the main entrance was not on the tread, i.e.,
upward facing part of the step, but rather, was on the rise, i.e., outward facing part of the step.
(Tr. 42; Ex. R-1, Photos 2 and 4). Mayo does not remember telling the inspector that ice on the
front step had been a problem for "some time." (Tr. 42.). Mayo testified that it was below
freezing on both the 23rd and 24th, and the snow that was on the ground was very dry and
powdery. (Tr. 43, 45).
Duane Myers, the- safety and training manager at the mine, testified that he was at the
mine on both the 23rd and 24th. (Tr. 47). According to Myers the high temperature on the 23rd
was four degrees Fahrenheit, while on the 24th the high temperature was twenty six degrees
Fahrenheit. (Tr. 48). On the morning of the 241h it was sunny and cold before warming up in the
afternoon. (Tr. 48). Myers testified that he was in a safety meeting on the 24th and did not get
out of the meeting until after abatement of the citation had begun. (Tr. 52-53). It was his belief
that the conditions did not constitute a violation because the snow was very light and it was
mostly sitting on top of rough asphalt, which increased the traction on the surface. (Tr. 48, 53).
He opined that it was unlikely for a slip-and-fall to occur and, as a result, the violation should not
be S&S. (Tr. 54-55). According to Myers, the snow was so light that it was difficult to shovel
and, even with ice melt on top of it, very little moisture was coming out of the snow. (Tr. 49-50,
53). Myers testified that the ice alleged to be on the step at the front entrance was to the side of

2

Hamilton based this finding on a conversation he had Myers and Mayo during which he
learned that at least 50 people walked the travelways twice per shift. (Tr. 16-17)

32 FMSHRC Page 1739

the front door, and not in front of it. (Tr. 51 ). As a result, the likelihood of someone stepping on
the ice was very remote. (Tr. 51; Ex. R-1, Photo 2). Myers stated that the one area that had.
been salted was the main entrance for the hourly employees. (Tr. 51-52; Ex. R-1, Photo 6).
Myers testified that the ice and dirt mixture in the grate near the exterior door that had been noted
by Hamilton was not dangerous because the dirt provided traction and the frozen mix was below
the surface of the grate. (Tr. 58; Ex. R-1, Photo 7). Further, the scuff marks in the snow were
the result.of the miners' coveralls dragging behind their boots. (Tr. 52; Ex. RI, Photo 8). He
argued that if miners had been slipping, there would not have been clear boot· sole imprints in the
snow, which there were. Id Additional photos taken by Caballo after the Christmas holiday
show the rough asphalt that was under the snow at the time of the citation. {Tr. 49, 51; Ex. R-2,
Photos 2-8). Myers testified that all mine employ~es are trained in how to identify and correct
hazards. (Tr. 56).

B. The Violation
It is important to recognize that the Commission and the courts have uniformly held that
mine operators are strictly liable for violations of safety and health standards. See, e.g. Asarco v.
FMSHRC, 868 F.2d 1195 (lOlh Cir.. 1989). "(W]hen a violation of a mandatory safety.standard
occuts in a mine, the operator is automatically assessed a civil penalty." Id.. at 1197. In addition,
the Secretary is not required to prove that a violation creates a safety hazard, unless the safety
standard so provides.

The [Mine Act] imposes no general requirement that a violation of
MSHA regulations be found to create a safety hazard in order for a
valid citation to issue. If conditions existed which violated the
regulations, citations [are] proper. ·
Allied Products, Inc., 666 F.2d 890, 892-93 (5th Cir. 1982) (footnote omitted). The negligence of
the operator and the degree of the hazard .created by the violation are taken into consideration in
assessing a civil penalty under section 11 O(i). 30 U.S.C. § 820(i). Thus, if a violation is found, a
penalty must be assessed even if the chance of an injury is not very great.

. There is little dispute regarding the relevant facts as to whether a violation of the cited
standard occurred. The cited safety standard requires that "[r ]egularly used. travelways shall be
sanded, salted,. or cleared of snow and ice as soon as practicable." 30 C.F.R. § 77.205(d). It is
not disputed that miners regularly travel the subject walkways, or that the walkways are .
travelways as contemplated by the cited standard. Indeed, the pre-abatement pictures provided
by both parties show multiple footprints in the snow which indicate that heavy foot traffic is
quite common on these walkways. (Ex. P-2; Ex. Rl, pp. 2-9). Further, there can be no debate
that snow existed on these walkways. I credit fuspector Hamilton's testimony that approximately
5/8ths of an inch of snow had fallen, i.e., there was Yi inch of snow on the ground on the 23rd and
an additional I/8th inch of snow fell overnight before Hamilton arrived on the 24th. Respondent
takes issue with whether there was "enough" snow on the ground to create a hazard. The cited

32FMSHRCPage1740

section of the Secretary's regulations does not require a certain amount of snow to be present
before it needs to be sanded, salted or cleared. Rather, the language requires only that snow and
ice be sanded, salted, or cleared "as soon as practicable."
The issue of what constitutes "as soon as practicable" is not entirely clear. "As soon as
practicable" is not defined in the Secretary's regulations. The Commission has held that in the
absence of a regulatory definition of a word, the ordinary meaning of that word may be applied.
See Bluestone Coal Corp., 19 FMSHRC 1025, 1029 (June 1997); Peabody Coal Co., 18
FMSHRC 686; 690(May1996), affd, 111F.3d963 (D.C. Cir. 1997). The dictionary defines
"practicable" as "possible to practice or perform: FEASIBLE." Webster's New Collegiate
Dictionary 895 (1979). Relying on such, a reasonable interpretation of the cited standard would
require that snow and ice be sanded, salted, or cleared as soon as possible.
While neither the Commission nor its judges have addressed what "as soon as
practicable" means in the context of the standard at issue, they have addressed this language in an
identical standard for.surface metal/non-metal mines. 3 In Hanna Mining Co., the Commission•
upheld an administrative law judge's finding that, while the judge did not know exactly how long
an accumulation of ice existed, he could infer that it had existed for some time and had not been
removed "as soon as practicable" based on the particular cause of the condition, i.e., water
dripping/spraying from a pipe, and the fact that more than three hours had elapsed since the
beginning of the work shift. 3 FMSHRC 2045, 2049 (Sept. 1981). Commission administrative
law judges have also addressed this similar standard. In NL. Industries, Inc.; a judge found that
an accumulation of six inches of snow and ice was not cleared as "as soon· practicable" when it
had been present on a walkway for three days. 2 FMSHRC 3040, 3044 (Oct. 1980) (AU). In
Spencer Quarries Inc., I found that an operator had salted its walkway "as soon as practicable"
when, on the morning after a day in which the mine was closed, salt was applied to the snowcovered walkway at the start of the shift. 32 FMSHRC 644, 646-647 (June 2010) (ALJ).

as

It is clear that snow, albeit very little, was present on the cited travelways on both
December 23rd and 24th. Salt canisters were readily available along the exterior of the buildings.
No evidence has been offered to show that any effort was made to sand, salt or clear the snow
prior to Inspector Hamilton instructing Mayo to do so. I credit Inspector Hamilton and find that
the snow which had accumulated on top of the salt canisters was evidence that the canisters had
not been opened and that, with one exception, salt from those canisters had not been used on the
cited travelways. The multiple footprints seen in the photos provided by both parties indicate
that a number of people had traversed the walkways in the time since the snow had stopped
falling. I find it highly unlikely that it was "impossible" or "not feasible" for any of the
individuals who created such footprints to reach into the provided salt containers, grab some salt,
and spread it along the travelways. In finding that cited areas had not been sanded, salted or
cleared "as soon as practicable," I rely in part on the fact that at least one individual found time to
spread salt on the travelway near one of the exterior doors. Clearly it was practicable to do so,

3

The current surface metal/non-metal standard is located at 30 C.F.R. § 56.11016.
32 FMSHRC Page 1741

yet it had not been done. Light, dry snow can be easily removed from walking surfaces with a
broom. For the above reasons, lfind that a technical violation of section 77.205(d) did occur.

C. Si&nificant and Substantial, Gravity and Ne&liience
At the outset ofthis analysis I note that snow is an extremely common occurrence in the
region where this mine is located. The cited standard does not differentiate between trace
amounts of snow, as were present in this instance, and amounts which could reasonably pose a
hazard. I credit the testimony of Mr. Mayo that th~ snow was dry and powdery so that it
contained very little moisture.· For reasons that follow, I find that the violation discussed above
was not S&S and that the gravity was very low.
An S&S violation is described in section 104(d)(l) of the Act as a violation "of such
nature as could significantly and substantially contribute to the cause and effect of a coal or other
mine safety or health hazard." A violation is properly designated S&S "if, based upon the
particular facts surrounding that violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious nature." Cement Div.,
Nat'! Gypsum Co;, 3 FMSHRC 822, 825 (Apr. 1981)..
The Commission has explained that:

In order to establish that a violation of a mandatory safety standard
is significant and substantial under National Gypsum, the Secretary
of Labor must prove: (1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard - that is, a measure of
danger to safety- contributed to by the violation;· (3) a reasonable
likelihood that the hazard contributed to will result in an iajury; .
and (4) a reasonable likelihood that the injury in question will be of
a reasonably serious nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984)·(footnote omitted); see.also, Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary ofLabor; 861 ·
F.2d 99, 103-04 (5th Cir. 1988), affg Austin Power, Inc., 9 FMSHRC2015, 2021(Dec.1987)
(approving Mathies criteria).
·

In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission
provided additional guidance:
We have explained further thatthe third element of the Mathies
formula "requires that the Secretary establish a reasonable
likelihood that the hazard contributed to will result in an event·in
which there is an injury." U.S. Steel Mining Co., Inc., 6 FMSHRC
1834, 1836 (August 1984). We have emphasized that, in

32 FMSHRC Page 1742

aecordance with the language of section 104(d)(l), it is the
contribution of a violation to the cause and effect of a hazard that
must be significant and substantial. US. Steel Mining Co., Inc., 6
FMSHRC 1866, 1868 (August 1984); US. Steel Mining Co., Inc.,
6 FMSHRC 1573, 1574-75(July1984).

of

This evaluation is made in terms "continued normal mining operations." US. Steel, 6
FMSHRC at 1574. The question of whether a particular violation is S&S must be based on the
particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
As discussed above,Tfind that a violation of the cited mandatory safety standard did
occur. Further, I find that a discrete safety hazard contributed to by the violation did exist, i.e~,
the danger of injuries caused by a slip-and-fall accident on the accumulated snow and ice.
However, I find that the Secretary has not met her bl.lrden with regard to the third element of the
Mathies formula. The evidence indicates that the accumulated snow and ice were not extensive.
The snow was dry and powdery, which means that it was not particularly slippery at low
temperatures. Further, the surface of the travelways was level and the rough nature of the ground
underneath the snow provided substantial traction such that a slip-and-fall, while possible, was
not reasonably likely to occur'. I do not credit the testimony of Inspector Hamilton that the scuff
marks he observed in the tracks on the travelways indicated that.someone had slipped in the. .
snow. The inspector did not demonstrate any expertise in the interpretation of footprints in
snow. It is more likely that the scuff marks behind the footprints were caused by coveralls that
were dragging in the snow. The miner or miners who left those tracks could also have simply
been dragging their feet.
'··

With regard to the ice near the main entrance, I credit the testimony of Mayo and find that
the ice on the step was at the very edge of the step and mostly on the rise, i.e., non-walking
surface, of the step. The light above the main entrance was attached to a vertical surface that was
directly above and along the same plane as the rise of the step. Given the location of the ice on
the non-walking surface of the step, I find it unlikely that an individual would slip on the ice and, ·
in turn, very unlikely that any slip would result in an injury. Finally, I credit the testimony of
Myers and find that the ice and dirt mixture that had accrimulated in the grating near the. 'back
entrance did not present a hazard that could reasonably be expected to result in an injury. Ex. R1, Photo 7. Myers explained that the mixture had accumulated in the grating as miners used the
grating to scrape the mud off of the bottom of their boots. The dirt in the mixture provided
traction such that a slip-and-fall was unlikely to occur. For the above reasons, I find that the
violation was not S&S. In addition, I find that the gravity should be modified to reflect that an
injury or illness was unlikely.
I further find that Caballo 's negligence was moderate. The violation did not create a
hazard to elllployees. Dry, light snow is quite common in Wyoming, Caballo's management and

32 FMSHRC Page 1743

its miners genuinely believed that the cited condition did not create a hazard and did not violate
the safety standard. Nevertheless, Myers advised the inspector on December 23, following
their discussion of the accident at the North Antelope Rochelle Mine, that the sn.ow would be
removed. Caballo's failure to remove or apply salt to the snow and ice demonstrated a lack of
reasonable care.

: II. APPROPRIATE CIVIL PENALTY

the

Section 11 O(i) ~f the Mine Act sets forth
criteria to he considered in determining an
appropriate civil penalty. The record shows that Caballo had 36 paid violations at this facility
during the two years preceding December 24, 2008. (Ex. P-4). Three of these violations were
S&S. Caballo produced 31, 172,396 tons of coal in.2008. Caballo Coal Company, Inc. is a large
operator. The penalty as~essed in this decision will not affect the operator's ability to continue in
business. The violation was abated in good faith. My gravity and negligence findings are set ..
forth above. Based on the penalty criteria,J find that a penalty of$100.00 is appropriate.

m. ORDER
For the reasons set forth above, Citation No. 6686966 is MODIFIED to delete the S&S
determination and to reduce the.gravity to ''unlikely." Caballo Coal Company, Inc., is.
ORDERED TO PAV the Secretary of Labor the sum of $100.00within 30 days of the date of
this decision. 4
··

Richard W. Manning
Administrative Law Judge
Distribution:
Ronald F. Paletta, Conference and Litigation Represeptative, Mine Safety and Health
Administration, 45 East 1375 ~outh, Price, UT 84501 (Certified Mail)
Duane Myers, Caballo Coal Company, 2298 Bishop Road, Caller Box 3401,, Gillette, WY
82717-3041 (Certified Mail)
.
RWM

4

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.
32 FMSHRC Page 1744

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

November 17, 2010
CIVIL PENALTY PROCEEDINGS

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

Docket No. LAKE 2009-523
A.C. No. 11-03143-187455
Mine: Prairie Eagle
...

Docket No. LAKE 2009-501
A.C. No. 11-03162-184600
Mine: Royal Falcon Mine

v.

Docket No. LAKE 2009-438
A.C. No. 11-03143-181532
Mine: Prairie Eagle

KNIGHT HAWK COAL, LLC
Respondent

DECISION
Appearances: Matthew.Linton, Office·ofthe Solicitor, U.S. Department of Labor, Denver,
Colorado for the Petitioner
Mark Heath, Spilman Thomas & Battle, PLLC, Charleston,
West Virginia for Respondent.
Before:

Judge Miller

This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration ("MSHA"), against Knight
Hawk Coal, 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 "Mine Act"). The cases involve the three dockets listed
above, containing a total of nine violations, all of which settled at the time of the hearing. The
total penalty assessed for the dockets is $31,402.00. The citations were issued by MSHA under
section 104(a) of the MineAct at the Prairie Eagle mine and at the Royal Eagle Mine. The
parties presented the settlement proposal at the hearing held on October 26, 2010 in Evansville,
Indiana.
Knight Hawk Coal, LLC, ("Knight Hawk") is the owner and operator of the Prairie Eagle
Mine and the Royal Falcon Mine. The mine agrees that it is subject to the jurisdiction of the
Mine Safety and Health Administration and the Administrative Law Judge has jurisdiction to
issue this decision. (Tr. 5). In March and April of 2009 MSHA inspectors conducted a regular

32 FMSHRC Page 1745 ·

inspection of the Prairie Eagle Mine and the Royal Falcon Mine. As a result of the inspection,
the citations contested herein were issued.
Docket No. Lake 2009-438: Prairie Eagle Mine
The parties reached an agreement and entered the following stipulation on the record.
The originally proposed assessment amount for the docket is $724.00.
Citation No. 6679874: the parties agree that no modification is made to the citation but
the Secretary has agreed to modify the penalty from $362.00 to $308.00.
Citation No. 6679875: the parties agree that no modification is made to the citation but
the Secretary has agreed to modify the penalty from $362.00 to $308.00.

Docket Lake 2009-501: Royal Eagle Mine
The originally proposed assessment amount for the docket is $1,333.00.
Citation No. 6680512:the parties agree that no modification is made to the citation but
the Secretary has agreed to modify the penalty'from $1,026.00 to $872.00.
Citation No. 6680515: the parties agree that no modification is made to the citation but
the Secretary has agreed to modify the penalty fro:t;n $207.00 to $176.00.
Citation No. 6680516: the parties agree that no modification is made to the citation and
the Respondent agrees to pay an amended penalty of 2,276.00. 1
Docket No. 'Lake 2009-523: Prairie Eagle Mine
The originally proposed assessment amount for the docket is $26,767.00
Citation No. 8417042: the parties agree that no modification is made to the citation but
the Secretary has agreed to modify the penalty from $9,882.00 to $2,470.00.
Citation No. 8417043: the Secretary agrees to reduce the violation to non S&S to modify
it to ''unlikely" and reduce the original penalty of $8,893 to $800.00.
Citation No. 8417044: the parties agree that no modification is made to the citation but
the Secretary has agreed to modify the penalty from $3,996.00to $3,000.

1

Tbis file originally contained citation No. 6680514 and not 6680516. Citation No. 6680514 has
been paid and, instead, the docket has been amended to include Citation No. 6680516.
32 FMSHRC Page 1746

Citation No. 8417045: the Secretary agrees to reduce the violation to non S&S and
reduce the proposed penalty from $3,996.00 to $500.00.

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 ciyil
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 [f\LJ] 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
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) ...
I accept the stipulation of the parties that the penalties proposed are appropriate to this
operator's size and ability to continue in business and that the violations were abated in good
faith. The history of each mine is typical for a mine of its size. The size of the operator is
small. I accept the Secretary's proposed modification of the penalties based upon the
information presented regarding the reduced negligence for the citations as discussed above.
Further, I find that the Secretary has established the gravity as described in the citation or as
modified and assess the following penalties as agreed by the parties:

Docket No. Lake 2009-418:
Citation No. 6679874
Citation No. 6679875

$308.00
$308.00.

Docket Lake 2009-501:
Citation No. 6680512
Citation No. 6680515
Citation No. 6680516

$872.00
$176.00.
$2,276.00

32 FMSHRC Page 1747

Docket No. LAKE 2009-523:
Citation No. 8417042
Citation No. 8417043
Citation No. 8417044
Citation No 8417045

$2,470.00
$800.00
$3,000.00
$500.00

Total for allofthe dockets:

$10,710.00.

ORDER
Based on the criteria in section l lO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
penalties listed above for a total penalty of $10, 710.00 and Knight Hawk Coal, LLC, is hereby
ORDERED to pay the Secretary of Labor the sum of$10,710.00within 30 days of the date of
this decision.

Distribution:
Matthew Linton, Office of the Solicitor, U.S. Department of Labor, 1999 Broadway
Suite 800, Denver, CO 80202-5708
·
Mark Heath, Spilman Thomas & Battle, PLLC, P.0 Box 273, Charleston,
WV 25321-0273

32 FMSHRC Page 1748

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, NW, Suite 9500
Washington, DC 20001-2021

November 18, 2010
SECRETARY OF LABOR,
MINE SAFETY HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 2008-438-M.
A.C. No. 13-02285-145467
Docket No. CENT 2008-565-M
A.C. No. 13-02285-149527-01
Docket No. CENT 2008-785-M
A.C. No. 13-02285-162467

JEPPESEN GRAVEL,
Respondent

. Mine: Jeppesen Pits

DECISION
Appearances: Jamison Poindexter Milford, Esq., Office ofthe Solicitor, U.S. Department ofLabor,
Kansas City, Missouri, on behalf of the Petitioner;
Jay A. Jeppesen, Sibley, Iowa, prose.
Before:

Judge Melick

These cases are before me upon petitions for civil penalty filed by the Secretary of Labor
pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq., ("Act"), charging Jeppesen Gravel (Jeppesen) with violations of mandatory standards and
proposing civil penalties for those violations. 1 The general issue before me is whether Jeppesen
violated the cited standards and, if so, what is tile appropriate civil penalty to be· assessed in
accordance with Section 110 of the Act. Additional specific issues are addressed as noted.
Jeppesen Gravel is the sole proprietorship ofJay Jeppesen. His business primarily involves
excavation, tree removal, demolition and the haulage of fill dirt and gravel. The record shows that
during 2007, the calendar year at issue, he devoted only six hours to mining. At the initial hearings
on August 25, 2009, Mr. Jeppes~ stipulated to the violations c;harged in the citations and orders at
issue herein. He further stipulated·.to the gravity, "significant and substantial", negligence and
"unwarrantable failure" findings made therein. At hearings, Mr. Jeppesen also stated that he was,
as a preliminary matter, first challenging the Secretary's jurisdiction under the Act to cite the

1

A motion for partial settlement of a number of citations was submitted before hearings
in which an 80% across-the-board reduction in penalties was approved based solely on the
financial condition of the operator.
32 FMSHRC Page 1749

Caterpillar front end loader at issue. Alternatively; assuming that the Secretary has jurisdiction under
the Act, he was challenging the amount of civil penalties proposed by the Secretary for these
violations. In particular, he maintained that the proposed penalties for the five violations remaining
at issue will effectively bankrupt him. 2
Following the initial hearings and reviewing the evidence of record, it was apparent that
additional evidence was necessary to determine whether all of the proffered stipulations were
supported by evidence. In particular , it appeared that the unrepresented Respondent did not fully
comprehend the complex legal concepts of"significant and substantial" and ''unwarrantable failure."
Accordingly, subsequent hearings were held to permit additional evidence limited to the issues of
whether the violations were "significant and substantial" and whether the violation charged in Order
No. 7840434 was the result ofRespondent's ''unwarrantable failure."
Jurisdiction

As noted, Respondent maintains that the Caterpillar model 966C front end loader cited in
each of the charging documents at issue was not subject to the Secretary's jurisdiction as not within
the scope of the Act. However, under Section 3(h)(l) of the Act, "coal or other mine" means (A)
an area of land from which minerals are extracted in non-liquid form and .... (B) private ways and
roads appurtenant to such area, and (C) ... equipment, [or] machines ... used in, or to be used in, or
resulting from, the work of extracting such minerals from their natural deposits in non-liquid
form ...."
Based on the undisputed allegations in the charging documents at bar as well as the
corroborated testimony of Inspectors Jeffrey Hornback, James Hines, and William Owen of the
Department of Labor's Mine Safety and Health Administration ("MSHA"), it is clear that the cited
966C front end loader was bein:g used at the time of the issuance of these charging documents in a
private way and/or road appurtenant to the area where a mineral (gravel) was extracted. It was
loading processed gravel from the gravel stockpile into dump trucks for removal from the mine
(Exhibit R-7). The front end loader was also "equipment" or a "machine" performing a function
(loading) that resulted from the work of extracting a mineral. Respondent does not dispute that the
cited loader was used in this manner and was located in the position depicted on Exhibit R-7 as
"loader." Within this :framework of evidence and law it is clear that the cited loader was being used
in an area and in a manner bringing it within the scope of the Act. Accordingly, Respondent's claim
that the Secretary lacked jurisdiction is denied.

In reaching this conclusion I have not disregarded Mr. Jeppesen's argument that he can, in
essence, carve out or segregate his loading activities from his other operations. However the
Commission specifically rejected such an approach in Mineral Coal Sales, Inc., 7 FMSHRC 615 at

2

These penaltieswere proposed by the Secretary in accordance·with the mandatory
minimum penalties prescribed by the 2006 Miner Act for "Section 104(d)" citations and orders.
See Section l 10(a)(3) of the Act.
32 FMSHRC Page 1750

620-21 (May 1985) in which it held that:

In examining the "nature of the operation" performing work activities listed
in section 3(i), [of the Act]; the operations taking place at a single site must
be viewed as a collective whole. Otherwise, facilities could avoid Mine Act
coverage simply by adopting separate business identities along functional
. lines, with each perfonn:i:hg only some part of what, in reality, is one
operation. · This approach is particularly appropriate in the present case in
view of the pervasive intermingling ·of personnel and functions among
entities that sporadically operated at the facility, with little or no apparent
· regard for business or contractual formalities.
Within this framework oflaw I conclude that Jeppesen cannot carve out from the Secretary's
jurisdiction under the Act his act ofloading, with his own front end loader, his stockpiled gravel next
to his processing plant into trucks for transport and sale. It is an integral part of his overall mining
operation.
Alleged Violations
Citation Number6198325, issued September24, 2007, pursuantto Section 104(d)(l) ofthe
Act alleges a "significant and substantial" violation of the standard at 30 C.F.R. § 56.14130 (h) and
charges that the violation was the result of''reckless disregard" negligence. 3 The citation charges

3

Section 104(d) of the Act provides as follows:

( 1) If, upon any inspection of a coal or other mine, an authorized representative ofthe
Secretary finds that there has been a violation of any mandatory health or safety standard,
and ifhe also finds that, while the conditions.created by such violation do not cause
imminent danger, such violation is of such nature as could significantly and substantially
contribute to the cause and effect of a coal or other mine safety or health hazard, and if he.
finds such violation to be caused by an unwarrantable failure of such operator to comply
with such mandatory health or safety standards, he shall include such finding in any
citation given to the operator under this Act. If, during the same inspection or any
subsequent inspection of such mine within 90 days after the issuance of such citation, an
authorized representative of the Secretary finds another violation of any mandatory h~alth
or safety standard and finds such violation to be also caused by an unwarrantable failure
of such operator to so comply, he shall forthwith issue an order requiring the operator to
cause all persons in the area affected by such violation, except those person 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.
(2) If a withdrawal order with respect to any area in a coal or other mine has been issued
32 FMSHRC Page 1751

as follows:
The seat belt was not properly installed on the Cat 966 C front end loader SIN
7613644. The seat belt order cited; date 08/24/2006 # 6181901 was abated
for the front end loader being removed from the mine property. When the
. citation was terminated the mine operator was informed in writing by
registered mail that the violation .still existed but was being terminated
because of the equipments removal from that mine site. Further, the operator
was informed that they were· required to repair the seat belt prior to working
the machine at the.mine site. The co-owner stated that this is the only loader
they own and that there is [sic] no moneys available to repair or replace the
machine. By returning this loader to the mine site and loading trucks from
the stockpiles, the mine operator has engaged in aggravated conduct
constituting more ..· than ordinary negligence.. . This violation is an
unwarrantable failure to comply with a mandatory standard.
The cited standard, 30 C.F.R. § 56.14130(h), provides as follows:

Seat belts construction. Seat belts required under this section shall meet the
requirement of SAE J386, "Operator Restraint System for Off-Road Work
Machines" (1985, 1993, or 1997), or SAE Jl 194, "Roll-Over Protective
Structures (ROPS) for Wheeled Agricultural Tractors" (1983, 1989, 1994, or
1999), as applicable, which are incorporated by reference.
SAE J386 "Operator Restraint System for off-Road Work Machines" June 1985 provides at
section 5.2.5 that "there must be no rupture release or other failure of any element in the
operator's restraint system.... "
MSHA Inspector J effreyHomback testified that he issued the subject citation on September
24, 2007 when -he observed that the safety belt on the cited CAT 966C front-end loader was
improperly instalfed. According to Hornback, the retractor spring was broken outside ofits housing
and would not permit the seatbelt to pull freely from the retractor. As a result, ihe seatbelt would
not pull tip to latch.
The Secretary alleges that the violation was "significant and substantial". A violation is
properly designated as "significant and substantial" if; based on the particular facts surrounding that

pursuant to paragraph (I), 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.ofviolations similar to those thatresulted in the issuance of the withdrawal
order under paragraph (l) 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 provision of paragraph (l) shall again be applieable to that mine.
32 FMSHRC Page 1752

yiolation, there exists a reasonable likelihood that the hazard contributed to will result in an injury
or illness of a reasonably serious nature. Cement Division, National Gypsum Co., 3 FMSHRC 822,
825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission
explained:
In order to establish that a violation ofa mandatory standard is significant and
substantial under National Gypsum the Secretary must prove: (1) the
underlying violation of a man~tory safety standard, (2) a discrete safety
hazard - - that is, a measure of danger· to safety - - contributed to by the
violation, (3) areasonable likelihood that the hazard contributed to will result
in injury and (4) a reasonable likelihood that the injury in question will be of
a reasonably serious nature.

See also Austin Power Co. v. Secretary, 861F.2d99, 103-04 (5th Cir. 1988), ajf'g
9 FMSHRC 2015, 2021(December1987) (approving Mathies criteria).
The third element of the Mathies formula requires that the Secretary establish a reasonable
likelihood that the hazard contributed to will result in an event in which there is an injury. U.S. Steel
Mining Co., 6 FMSHRC 1834, 1836 (August 1984), and also that the likelihood of injury be
evaluated in terms of continued normal mining operations. U.S. Steel Mining Co., Inc., 6 FMSHRC
1573, 1574(July1984). See also Halfway, Inc., 8 FMSHRC 8, 12 (January 1986); Southern Ohio
Coal Co., 13 FMSHRC 912, 916-917 (June 1991).

fu this· regard, Inspector Hornback opined that, without an operable seatbelt, there was a
reasonable likelihood that th~ operator would fall out of the cab and be injured. He noted that
MSHA' s statistics demonstrate that not wearing a seatbelt has resulted inmany fatalities throughout
the mining industry. More particularly, the inspector testified that if you are operating the loader on
uneven ground traveling roadways that are not paved and not wearing a seatbelt, you could
reasonably expect the operator could.be injured during aroll over situation . He noted in this regard
that the mine surface was not level and there were dips and valleys and a large ditch ·On the property.
Hornback noted that when the loader operator is ejected, he is not thrown beyond the cab structure
and thereby gets crushed by the loader. Within this framework of evidence, I conclude that, indeed,
without an operable seatbelt, the loader operator was reasonably likely to be ejected from the cab of
the loader and suffer serious if not fatal injuries. The violation was therefore "significant and
substantial" and of high gravity.
fu reaching this conclusion, I have not disregarded Mr. Jeppesen' s testimony that on the date
the citation was issued, September 24, 2007, the cited loader was being used only to load trucks from
the stockpile. Jeppesen claims that at that time, the loader was not being driven up the feed ramp.
While theloader was nevertheless available to drive up the feed ramp and since other hazards such
as the uneven ground existed, it is clear that the violation charged herein was, under a:Jl the
circumstances, "significant and substantial" and of high gravity.
The violation was also found to have been the result of Jeppesen's ''unwarrantable failure"
32 FMSHRC Page 1753

and high negligence. Unwarrantable failure is "agw.avated conduct, constituting more than ordinary
negligence, by a mine operator in relation to a violation of the Act." Emery Mining Corp., 9
FMSHRC ·1997, 2004 (Dec. 1987). Unwarrantable failure is characterized by such conduct as
"reckless disregard," "intentional misconduct," "indifference," or a "serious lack ofreasonable care."
Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 193-94 (Feb. 1991). See also
Rock ofAgesCorp. v. Seeretaryo/Labor; 170F.3d148, 157 (2d Cir. 1999);BuckCreekCoal, Inc.
v. MSHA, 52 F.3d 133, 136 (71h Cir. 1995) (approving Commission's unwarrantable failure test).
Moreover, the Commission has examined the conduct of supervisory personnel in detennining
unwarrantable failure and recognized that a heightened standard of care is required of such
individuals. See Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011 (Dec. 1987) (section
foreman held to demanding standard of care in safety matters); S&H Mining, Inc., 17 FMSHRC
1918, 1923 (Nov. 1995) (heightened standard of care required of section foreman and mine
superintendent).
Considering the prior citations and warnings issued to mine owner himself, the violation
herein was clearly the result of his unwarrantable failure and high negligence.
Order Number 6198326, also issued on September 24, 2007, pur5uantto Section 104(d)(l)
ofthe Act, alleges a "significant and substantial" violation ofthe standard at 30 C.F.R. § 56.14130(a)
and charges that the violation was the result of "reckless disregard" negligence. The order charges
as follows:
Roll Over Protection was not pro:vided Cat 966 C front end loader s/n
76J3644. The ROPS order cited; date 08/24/2006 # 6181902 was abated for
the front end loader being removed from the mine property. When the
· citation was terminated the mine operator was informed in writing by ·
registered mail that ·the violation still existed . but was being terminated·
because ofthe equuipments[ sic] removal from that mine site. Futher[sic], the
operator was informed that they were required provide Rops structure
meeting all the requirements of this standard prior to working the machine at
the mine site. The co-owner stated that this is the only loadertheyown and
that there is [sic] no moneys available to repair or replace the machine. By ·
returning this loader to the mine site a:nd loading trucks from stockpiles, the
mine operator has egaged [sic] in aggravated conduct constituting more than
ordinary negligence.
This violation is an unwarrentable[ sic] failure to comply with a mandatory standard.
The cited standard, 30 C.F.R. § l4130{a) provides, iri relevant part, as follows: "(a)
Equipment included. Roll-overprotective structures (ROPS)and seat belts shall be installed on .... (3)
wheel loaders and wheel tractors ....
According to Inspector Hornback, there was no "manufactured roll overprotective structure"
provided on the cited loader. The inspector acknowledged that there was a steel cab structure on top
32 FMSHRC Page 1754

of the cited loader, but that it did not have a "certification" from the manufacturer. Hornbackfurther
acknowledged that he could not testify regarding the level of protection provided by the existing cab
and that a structural engineer would be required to make that determination. Thus, while itis dear
that the cab on the cited loader did not have the proper manufacturer's certification, l find that there.
was insufficient credible evidence presented by the Secretary to show what level of protection the
cab did in fact provide. Without such information, it cannot be determined whether the violation was
indeed "significant and substantial." Accordingly, the violation is affirmed without "significant and
substantial" findings. For the same reasons I find that the Secretary has not sustained her burden of
proving a high level of gravity with regard to this violation. Order Number 6198326 must
accordingly be modified to a citation under section 104(a) of the Act. However, because of the
existence ofprior charges and notice to the operator regarding the same violation on the same loader,
I find the operator chargeable with high negligence.
Order Number 6198899 issued pursuant to Section 104(d)(2) of the Act, alleges a
"significant and substantial" violation of the standard at 30 C.F.R. § 56.14130(h) and charges that
the violation was the result of"reckless disregard" negligence. The order charges as follows:
The seat-belt remains inoperable on the Caterpillar 966c front end loader
serial #76J3644. On 08/24/2006 Citation #6181901 which addressed the
inoperable seat-belt was terminated when the loader was removed from the
mine site. On 09/24/2007 Citation #6198325 was issued· when again the
loader was brought to the mine site and again the seat-belt was inoperable and
again terminated upon removal of the loader from the mine site. In both of
these cases, upon termination, the mine operator was informed in writing that
return of this loader to the· mine site without repair of the cited condition
could constitute a higher than ordinary negligence. On 11115/2007 the loader
was again found on mine property with evidence showing it to have recently
ran [sic] and it again being the only loader on site to be used for truck and
material loading. By again returning this loader to the mine site without
repairing the cited condition, the mine operator has engaged in aggravated
conduct constituting more than ordinary negligence. This violation is an
unwarrantable failure to comply with the mandatory standard.
The loader may not be operated on the mine site until the cited condtion [sic] has been
repaired and the order lifted by an authorized tepresentitve [sic] ofMSHA.
MSHA Inspector James Hines issued this order on November 15, 2007 when he found that
the seatbelt remained inoperable on the cited CAT 966-C loader. Hines testified that he tried to pull
the seatbelt out but could not. The spring remained in a ball on the side of the seat and you could not
move the seatbelt. (Gov. Ex. I 7). This is the same condition that had previously been reported. Hines
followed the loader's tracks which showed the movement of the loader from the bank where the raw
materials (sand and gravel) were removed. (Gov. Ex.18). The tire tracks from the loader were also
observed between the processed material to the truck loading site. The tracks also indicated that the
loader operated on a roadway passing an unbermed drainage ditch. The violation is clearly proven
32 FMSHRC Page 1755

as charged.
· The Secretary also alleges that this violation was "significant and substantial." Inspector
Hines observed that the loader had been working on uneven ground and near drop-offs and that
should the loader overtravel, it could roll the large machine over. Hines also noted that there were
no berms on the feed ramps and as the loader proceeds up the ramp to feed materials into the plant,
the loader has to raise its bucket. As the bucket is lifted, the loader becomes more unstable and
without a berm on the side of the feed ramps, it would be more likely to rollover, Hines opined that
based on his experience, there was a reasonable likelihood that the operator would fall or be ~own
out of the loader and sustain fatal injuries. Within this :framework of evidence, it is clear that the
Secretary has met her burden of proving that the violation was "significant and substantial" and of
high gravity.
The Secretary also argues that the violatio11 was the result of the Respondent's
"unwarrantable failure" and high negligence. There were two violations for inoperable seatbel~ on
the subject loader, on August 24, 2006 and September 24, 2007. Jeppesen nevertheless continued
to resume operation of the loader without an operable seatbelt. The violation herein was therefore
clearly the result of unwarrantable failure and intentional misconduct.
Order Number 6198900, issued on November 15, 2007, pursuant to Section 104(d)(2) of the
Act, alleges a "significant and substantial" violation of the standard at 30 C.F .R. § 56 .14130(a) and
charges that the violation was the result of "reckless disregard" negligence. The order charges as
follows:
Roll over protection has not yet been provided for the C~terpillar 966C front
end loader Serial# 76J3644. This lack ofROPs was cited on 08/24/2006 and
was terminated when the loader was removed from the mine site. On
09/24/2007 Citation #6198326 was issued when again theloader was brought
to the mine site and again the ROPs system was not provided and again
terminated upon removal of the loader from.the mine site. In both of these
cases, upon termination, the mine operator was informed in writing that
return of this loader to the mine site without repair of the cited condition
could constitute a higher than ordinary negligence. On 11/15/2007 the loader
was again found on mine property with evide~ce showing it to have recently
ran [sic] and it again.being the only loader on site to be used for truck and
material loading. By again returning this loader to the mine site without
repairing the cited condition, the mine operator has engaged in aggravated
conduct constituting more than ordinary negligence. This violation is an
unwarrantable failure to comply with a mandatory standard~
The loader may not be operated on the mine site until the cited condtion[ sic] has been
repaired and the order lifted by an authoriz~ represent.itve[ sic] ofMSHA.
During his insp~ction on November 15, 2007, Inspector Hines also observed that the cited
32 FMSHRC Page 1756

966 loader did not have what he asserted was a roll over protection system. He concluded that it did
not have "roll-over protection" because a roll-over protection system is a" fairly massive steel
structure." The steel cab on the cited loader was, in Hines' opinion, simply to protect the operator
from the dust, noise, rain and snow. Hines did not however test the existing structure in any way to
see what level of protection it might have provided in a roll-over situation. It is also noted that
Inspector Hornback had previously testified that it would be necessary for a structural engineer to
test the cab to make such a determination. Since it is not disputed that Respondent violated the cited
standard, I find that there was a violation. However, without testing ofthe existing structure, it is not
ascertainable what level
protection it did provide in the event of a rollover. Without such
evidence, I cannot find that the Secretary has met her burden of proving that the violation was
"significant and substantial" or of high gravity. Order No. 6198900 must accordingly be modified
to a citation under section 104(a) of the Act.

of

I do find however that the violation was a result of gross intentional misconduct. The
Secretary has shown that the same equipment on two prior occasions had been operated and cited
for not having certified rollover protection.
·Order Number 7840434, also issued pursuant to Section 104(d)(2) of the Act, alleges· a
"significant and substantial" violation of the standard at 30 C.F.R. § 56.14130(g) and charges that
the violation was the result of "reckless disregard" negligence. The order charges as follows: .
The loader operator observed operating the Caterpillar 966C front end loader was not
wearing a seat belt. The loader was under a 104d2 order at this time for lack of a working
seat belt and at the time of this issuance the seat belt remains inoperable. The loader is used
to load trucks as· well as travel unbenned areas including a feed ramp approx. 5 foot in
height. In addition, when cited, the left cab door was open increasing the level of danger to
this operator and the likelihood if injury. These conditions expose this miner to the hazard
of possibly over turning the loader or being thrown from the cab and being over traveled by
this large machine.
The mine operator had knowledge of the inoperable seat belt and both citations and orders
have been written to him requiring the correction of this dangerous condition. Currently the
loader is under a l 04d2 order and the operator aware the machine should not be ran [sic]
(Order #6198899) until the seat belt is repaired. The mine operator has engaged in
aggravated conduct constituting more than ordinary negligence knowing the seat belt remains
inoperable and the loader continues to be used on site.
The cited standard, 30 C.F.R. § 56.14130(g), provides, "(g) Wearing seat belts. Seat belts
shall be worn by the equipment operator except that when operating graders from a standing
position, the grader operator shall wear safety lines and a harriess in place of a seat belt."
Inspector Hines issued this order on May 5, 2008 when he observed an individual operating
the cited loader and not wearing a seatbelt. The loader operator was actually in the process ofloading
from the stockpile onto a truck. The door to the loader was latched opened and Hines had a clear
32 FMSHRC Page 1757.

view of the operator in the cab without a seatbelt. Upon close examination, Hines observed that the
retractor spring was still in a ball as it had existed at the time of the prior violation and the seatbelt
remained inoperable. (Gov. Ex.22). As the operator exited the cab, he told Inspector Hines
"obviously I wasn't wearing it." The violation is clearly proven as charged. Based on the prior
testimony regarding the hazards in failing to use a seatbelt at this mine site, I find that the violation
was also "significant and substantial" and of high gravity. It is also clear that the violation was the
result of Respondent's "unwarrantable failure" and gross negligence. As noted by Inspector Hines,
the same condition had been cited at least four or five times but the Respondent would merely
remove the loader from the mine site toterminate the citations. Respondent would then later return
the loader with the same inoperable seatbelt.

Civil Penalties
Under Section 11 O(i) ofthe Act, the Commission and its judges must consider the following
factors in assessing a civil penalty: the history of violations, the negligence of the operator in
committing the violation, the size of the operator, the gravity of the violation, whether the violation
was abated in good faith and whether the penalties would affect the operators ability to continue in
business. As noted, Jeppesen Gravel is the sole proprietorship of Mr. Jeppesen. The Commission
has construed "the ability to continue in business" criterion as applied to sole proprietors as whether
the proposed penalty would affect the proprietor's ability to meet his financial obligations; Secretary
v. Unique Electric, 20 FMSHRC 1119, 1122(October1998). It is also noted that Section 110(a)(3)
of the. Act qualifies and may supercede the provisions of section 11 O(i) by imposing mandatory
minimum penalties for violations of section 104(d).
The parties have stipulated as·follows with respect to the civil penalty criteria:
Jay Jeppesen is the sole proprietor ofJeppesen Gravel, and his only employee
is his son, Alan. Mr. Jeppesen min~s gravel, as needed,. from a small gravel
pit on property that he leases. Sometimes he runs the mined gravelthrough
his plant to produce gravel for sale. He also produces gravel that is not
processed in any way for use.as ballast under concrete.
Respondent's History of Previous Violations:
Jeppesen has no history of previous violations, as defined by 30 C.F.R. §
100.3(c), with regard to any of the citations at issue in these consolidated
dockets. Jeppesen was assessed no history penalty points with regard to
calculating the penalty assessments in these cases.
Appropriateness of the Penalties to the Size of the Business of the Operator:
Jeppesen is a nonmetal mine. 30 C.F.R. § 100.3(b) provides that the size of
a nonmetal mine is measured by hours worked. According to the evidence
present by the Secretary, Jeppesen worked 16 hours in 2006, 6 hours in 2007,
32 FMSHRC Page 1758

and 23 hours in 2008. Jeppesen was assessed no "size of operator" penalty
points with regard to calculating the penalty assessments in these cases.
Demonstrated Good Faith of the Operator in Abating the Violations:
Jeppesen was given a 10% penalty credit/reduction for good faith abatement, as defined in
30 C.F.R. section 100.3(f), for the § 104(a) citations in Docket Nos. CENT 2008-438-M,
CENT 2008-565-M, CENT 2008-566-M, CENT 2008-668-M, and CENT 2008-713-M.
Jeppesen was given no credit for good faith abatei:nent for the citations in Docket No. CENT
2008-785-M.
The record shows that mining activities during the year in question (2007) were limited to
six hours and it may reasonably be inferred that the cited front end loader was not being operated
during the entire time. The size of Mr. Jeppesen's mine (calculated by hours worked) is also
extremely small i.e. only six hours in 2007 and 23 hours in 2008. I further find that the proposed
penalties would seriously affect Mr. Jeppesen' s ability to meet his financial obligations. He has met
his burden of proof in this regard through creclible e~dence (Ex. R-1). Indeed, in recognition ofhis
:financial condition, the Secretary agreed in the motion for partial settlement to reduce her proposed
penalties for the settled citations by 80%. However, the mandatory minimum penalties set forth in
section 110(a)(3) of the Act may supercede consideration of this factor.

ORDER

Citation No. 6198325 is affirmed as written and, pursuant to section 110 (a)(3) of the Act,
Jeppesen Gravel is directed to pay the mandatory minimum penalty of $2,000.00 within 40 days of
the date of this decision. Order No. 6198326 is modified to a citation under section 104(a) of the Act
without ~significant and substantial" findings and, in recognition of the reduced gravity and the
serious financial conditions of the operator (in effect, stipulated to by the Secretary in basing her
80% reduction in penalties in the settlement motion). Jeppesen Gravel is directed to pay a civil
penalty of $100.00 within 40 days of the date of this decision.
Order Number 6198899 is affirmed and, pursuant to section 110 (a)(3) of the Act, Jeppesen
Gravel is directed to pay the mandatory minimum penalty of$4,000.00 within 40 days of the date
ofthis decision. Order No. 6198900 is modified to a citation under section 104(a) of the Act without
"significant and substantial" findings and, in recognition of the reduced gravity and the serious
financial condition of the operator, Jeppesen Gravel is directed to pay a civil penalty of $100.00
within 40 days of the date of this decision. Order Number 7840434 is affirmed and, pursuant to
32 FMSHRC Page 1759

section 110 (a)(3) of the Act, Jeppesen Gravel is directed to pay the mandatory minimum penalty o:
$4,000.00 within 40 days of the date of this decision
.

Distribution: (Certified Mail)
Jamison Poindexter Milford, Esq., Office of the Solicitor, U.S. Department of Labor, Two
Pershing Square Building, Suite 1020, 2300 Main Street, Kansas City, MO 64108
Jay A. Jeppesen, OWner, Jeppesen Gravel, 719 gm Street, Sibley IA 51249
Ito

3i FMSHRC Page 1760

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19t11 Street, Suite 443

Denver, CO 80202-2500
303-844-3577/FAX 303-844-5268.

November 18, 2010

CIVIL PENALTY PROCEEDINGS

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

Docket No. SE 2009-293-M
A.C. No. 22-00035-167206

v.

Docket No. SE 2009-639-M
A.C. No~ 22-00035-186663
Ripley Mine & Mill.

OIL-DRI PRODUCTION COMPANY,

DECISION
Appearances:

Lydia A. Jones, Esq., Office of the Solicitor, U.S. Department of Labor,
Atlanta, Georgia, for Petitioner;
Larry R. Evans, Safety & Health Manager, Oil-Dri Corporation of
America, Ochlocknee, Georgia, for Respondent.

Before:

Judge Manning

. These cases are before m~ on petitions for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration (''MSHA"),
against Oil-Dri Production Company ("Oil-Dri") pursuant to sections 105 and 110 of the Federal.
Mine Safety and Health Act of 1977, 30 U.S,C. §§ 815 and 820 (the ''Mine Act"). The parties
introduced testiinony and documentary evidence at a hearing held in Memphis, Tennessee, and
presented closing ar~ents.
Oil-Dri operates a clay mine and mill in Tippah County, Mississippi. This facility
employed an average of 60 people in 2008. The citations at issue in these cases were all issued at
the mill, which is often referred to as the "plant" in this decision. These cases involve 17
citations issued under section 104(a) of the Mine Act. The parties settled nine of the citations
prior to the hearing, as discussed in more detail below. At the hearing, the representative for OilDri agreed that it was not contesting the gravity or negligence of any of the citations but only the
of a significant and substantial nature ("S&S'').
fact of violation and whether the violation
(Tr. 6-7, 176).

was

32 FMSHRC Page 1761

I. DISCUSSION WITH FINDINGS OF FACT
CONCLUSIONS OF LAW
A. Citation No. 7751806
On July 30, 2008, MSHA Inspector Tim Schmidt issued Citation No. 7751806 under
section 104(a) of the Mine Act alleging a violation of30 C.F.R. § 56.11012 as. follows:
No railing was provided for the elevated travel way near the
platform for the tail pulley of the takeaway belt. Miners travel to
the platform approxiniately once a year to perform maintenance.
This condition exposes miners to a fall of 4 feet to a concrete
surface should they slip and fall from the unprotected opening.
(Ex. G-2). The inspector determined that an injury was unlikely but that if an injury did occur it
would result in lost workdays or restricted duty. He determined that the violation was not S&S
and that the company's negligenc~ was moderate. Section 56.11012 provides that "[o]penings
above, below, or near travelways through which persons or materials may fall shall be protected
by railings, barriers, or covers." The Secretary proposes a penalty of $100.00 for this citation.
Inspector Schmidt testified that he issued the citation because there was no railing for an
elevated travelway near the bottom of the ladder-way leading to a work platform. The ladderway, which was constructed of fixed rails and was part of the structure supporting the work
platform, was adjacent to a retaining wall with a four foot drop-off. This ladder-way provided
access to the platform. (Tr. 16; Ex. G-3). He did not believe that an accident was likely because
he was advised that miners would generally approach the ladder-way from a direction that was
not near the unprotected edge. (Ti. 17). He issued the citation because a miner approaching the
ladder-way to go up on the platform could walk next to the unprotected drop-off. (Tr. 19). At ,
the titne Schmidt conducted his inspection, the cited area consisted of uneven ground, which he
believed presented a tripping hazard. On cross-examinatio~ Inspector Schmidt admitted that he
was advised that employees do not walk near.the unprotected area. {Tr. 54-55).
Lance White, an inspector-trainee, accompanied Inspector Schmidt. He testified that
there was uneven ground, loose, unconsolidated rock, and vegetation along the travelway ··
adjacent to the retaining wall. (Tr. 75) .. It is his understanding that miners only needed to get to
the platform to perform maintenance on the tail pulley about once a year, but that they might
need to access the platform more frequently if mechanical problems occur. (Tr. 76).
Steve Gibens, packing and processing manager at the mill, testified for Oil-Thi. He stated
that employees who work in the processing plant never travel in the cited area. (Tr. 122). Grease
hoses are provided so that components can be greased without climbing up the ladder-way to the
platform. The only employees who work on the platform are from the maintenance department.
They must work on the platform to replace the belt. (Tr. 122). Steven Barnes is a journeyman

32 FMSHRC Page 1762

mechanic, miners' representative, and treasurer of the local union. (Tr. 159). He said that
mechanics perform maintenance on the be.It and tail pulley from the work platform. He testified
that mechanics access the platform from the road rather that from the area where the citation was
issued. (Tr. 160).
The Secretary argues that Inspector Schmidt took into consideration the fact that the cited
travelway was not :frequently used when he determined that an accident or injury was unlikely
and that the violation was not S&S. (Tr. 176). She states that the area cited by the inspector was
a travelway even though it was infrequently used. She relies, in part, on Nolichuckey Sand
Company, Inc., 22 FMSHRC.1057, 1059-61(Sept.2000). In that case, the Commission held that
a judge's decision upholding MSHA' s treatment of a maintenance platform as a "travelway''
under section 56.14109 was consistent with the plain meaning of that term. Oil-Dri argues that
the area cited by Inspector Schmidt was not a travelway as that term is defined by MSHA. The
platform was "not approached" from the direction that would put employees near the hazardous
area. (Tr. 185).
In section 56.2, the Secretary defines the term "travelway'' as a "passage, walk, or way
regularly used and designated for persons to go from one place to another." The issue in this case
is whether the area cited by the inspectorwas "regularly used and designated" for persons to go
from one place to another. 1 Here Oil-Dri is contending that the alleged travelway was neither
regularly used nor designated for persons to go from one place to another.
I find that the area cited by Inspector Schmidt was not a passage, walk, or way regularly
used by persons to ,go frotn one place to another. I credit the testimony of Gibens and Barnes on
this issue; They stated that when mechanics need to accf!SS the work platform for maintenance,
they approach the work platform from the road. Mechanics do not travel by the cited area when
approaching the work platform in this manner. No other employees go up on the work platform.
In addition, the area cited was not designated for persons to·get from one area to another.· ·
Consequently, this citation is vacated.

B. Citation No. 6068216
On July 30~ 2008, MSHA Inspector Schmidt issued Citation No. 6068216 under section
104{a) of the Mine Act alleging a violation of30 C.F.R. § 56.14107{a) as follows:

1

In Nolichuckey Sand Co., the Commission applied a different definition of"travelway''
because the Secretary has defined that term differently as applied to "Subpart M- Machinery and
Equipment." In Subpart M, at section 56.14000, the Secretary defined "travelway" as a "passage,
walk, or way regularly used or designated for persons to go from one place to another." See also
22 FMSHRC at l 060. I must assume that the Secretary intended that these two definitions to
have different meanings; otherwise the definition at section 56.14000 serves no purpose since the
definition at section 56.2 applies to all safety standards in Part 56.

32 FMSHRC Page 1763

Guards were not provided for the trunnion and truss roller on the
new Ag kiln. An area guard was in place but individual moving.
parts were not guarded. This condition is a hazard to miners
should they travel inside the area guard and become entangled in
the moving machine parts. Miners travel in the area once a month
to do maintenance.
(Ex. G-5). The inspector determined that an injury wa8 unlikely but that if an injury did occur it
would be of a pennanently disabling nature. He determined that the violation was not S&S and
thatthe company's negligence was moderate. Section 56.14107(a) provides that "[m]oving
machine parts shall be guarded to protect persons from contacting gears, sprockets, chains, drive,
head, and takeup pulleys, flywheels, couplings, shafts, fan blades, and similar moving parts that
can causeinjuty." The Secretary proposes a penalty of $117;00 for this citation.
Inspector Schmidt testified that the cited area was guarded by what he referred to as an
"area guard." (Tr. 21 ). This guard acts as a barrier to prevent employees from getting close to
the kiln, but maintenance personnel had to pass through a gate in the guard to perform their work
from timetotime ... He testified that, for an area guard to be acceptable, the gate for the guard
must be locked.to. prevent entry and the.gate must be equipped with an automatic switching
device that will de-energize the equipment inside the gate. (Tr; 21, 57). He stated that .
equipment inside the area guard was not individually guarded to prevent miners from becoming
entangled in the moving parts. Inspector Schmidt also testified that he was told that miners must
enter the area behind the guard about once a month to perform maintenance. {Tr. 24, 68). The
inspector stated that the photographs he took during the inspection show the moving machine
parts that are required to be individually guarded under the safety standard. {Tr. 25- 26; Exs. G7, G-8, and G-9).
Mr. Gibens testified that the guards'. that were present around the kiln would prevent
anyone from getting close to any machinery. (Tr. 124). No employee would be required to be in
the area while the plant was operating. If any maintenance were required, mechanics would lock
out and tag out the equipment before going inside the guards to the kiln. (Tr. 124, 142, 157,
161 ). He further testified that other inspectors have inspected this same area of the plant and
have.not issued citations under MSHA's guarding standard. (Tr. 124-25, 142-43). Mr. Gibens
does not believe that the cited condition created a hazard to miners and MSHA has never
designated it as a hazard in the past. (Tr. 125).
The Commission interprets safety standards to take into consideration "ordinary human
carelessness." Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097 (Sept. 1984). In that case, the
Commission held that the guarding standard must be interpreted to consider whether there is a
"reasonable possibility of contact and. injury, including contact stemming from inadvertent
stumbling or falling, momentary inattention, or ordinary human carelessness." Id. Human
behavior can be erratic and unpredictable. For example, someone might attemptto perform
minor maintenance or cleaning near an unguarded gear without first shutting it down. In such an

32 FMSHRC Page 1764

instance, the employee's clothing could become entangled in the moving parts and a serious
injury could result. Guards are designed to prevent just such an accident. The fact that no
employee has ever been injured by moving machine parts at the Ripley Mine and Mill is not a
defense because there is a history of such injuries at mines, quarries, and mills throughout the
United States. "Even a skilled employee may suffer a lapse of attentiveness, either from fatigue
or environmental distractions ...." Great Western Electric Co., 5 FMSHRC 840, 842 (May
1983).
I find that the Secretary established a violation. The existing guarding was more like a
fence than a guard for moving parts. Area or perimeter guarding does not comply with the safety
standard. See, e.g. Walker Stone Company, Inc., 16 FMSHRC 337, 357 (Feb. 1994) (ALJ).
Miners must enter the area about once a month to perform routine maintenance. ·These miners
would be exposed to gears, rollers, and other moving parts. Individually guarding the trunnion
and truss roller protects a miner who, through a lapse of judgment, enters the area without
shutting down the operations. A penalty of $117.00 is appropriate.

C. Citation No. 6068218
On July 31; 2008, MSHA Inspector Schmidtissued Citation No. 6068218 under section
104(a) of the Mine Act alleging a violation of30 C.F.R. § 56.11001 as follows:

Safe access was not provided to the ladders to the cooler tank belt
and new Ag scrubber platform in the RVM cooler area~ Standing
water and several inches [of] mud, with footprints and forklift
tracks, were in a wide area, exposing the miners to slips, trips, and
falls.
(Ex. G-10). The inspector determined that an injury was reasonably likely and that if an iajury
were to occur it would result in lost workdays or restricted duty. He determined that the violation
was S&S and that the company's negligence was high. Section 56.11001 provides'that "[s]afe
means of access shall be provided and maintained to all working places." The Secretary
proposes a penalty of $1,304.00 for this citation.
Inspector Schmidt testified ·that there was standing water and mud in one of the main
milling areas of the plant. (Tr. 27; Ex. G-12; G-13). Miners had to walk through this area to
access machinery and equipment. There were footprints showing that miners had walked
through the slick, wet area. The footprints primarily went to and from ladder-ways and
equipment in the area. The inspector testified that the violation created a slip-and-fall hazard to
miners traveling in the area. (Tr. 28). If a miner were to fall, he would likely suffer strains,
sprains, contusions, or broken bones. (Tr. 28, 32). Inspector Trainee White's testimony supports
Inspector Schmidt's testimony. (Tr. 79-82).

32 FMSHRC Page 1765

InSpector Schmidt determined that the violation was S&S because the violation existed
over a large area and there were numerous footprints through the mud. (Tr. 30, 53).. The area
was about 10 by 15 yards in size. The mud was two to three inches deep in some areas. (Tr. 30;
Ex. G-12). He determined that the negligence was high because it was obvious that the mud had
been there for some time and the operator had been cited numerous times for violations of the
safety standard. (Tr. 30, 33, 60, 68).
Mr. Gibens testified that the cited area is the low spot in the plant. When it rains, water
gathers in that area. (Tr. 127). There is a sump in the area to drain the water. If mud collects in
the area; it is washed out with a hose. (Tr. 128, 144-46). It had been raining heavily in the days
preceding this inspection. (Tr. 157). Mr. Barnes testified that the area is cleaned up once or
twice a week. (Tr. 162). The surface below the mud-and waterwas concrete. (Tr. 163). The
·
area is accessed daily. (Tr. 171 ).
I find that the Secretary established a violation of the safety standard. Miners traveled
through the area on a daily basis. The mud and water made the area hazardous with the result
that safe access was not provided to working places. Oi-Dri argues·that the.condition should
have been cited under the housekeeping standard at section 56.20003. While it is true that
Inspector Schmidt could have cited that standard, he chose to cite section 56.11001 and I find
that the conditions he observed violated section 56.11001.

I also find that the Secretary established that the violation was S&S. An S&S violation is
described in section 104(d)( I) of the Act as a violation ~'of such nature as could significantly and
substantially contribute to the cause and effect of a coal or other mine safety or health hazard." A
violation is properly designated S&S "if, based upon the particular facts surrounding that
violation, there exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature." Cement Div.,Nat 'l Gypsum Co., 3 FMSHRC
822, 825 (Apr. 1981).
The Commission has explained that:
In order to establish that a violation of a mandatory safety standard
is significant and substantial under National Gypsum, the Secretary
of Labor must .prove: ( 1) the ·underlying violation of a mandatory
safety standard; (2) a discrete safety hazard. - that is, a measure of
danger to safety- contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury in question will be of
a reasonably serious nature.

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary ofLabor, 861

32 FMSHRC Page 1766

F.2d 99, 103-04 (5th Cir. 1988), aff'g Austin Power, Inc., 9 FMSI:IRC 2015, 2021 (Dec. 1987)
(approving Mathies criteria).
fu U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985); the Commission
provided additional guidance:

We have explained further that the third element of the Mathies
formula "requires that the Secretary establish a reasonable
likelihood that the hazard contributed to will result in an event in
which there is an injury." U.S. Steel Mining Co., Inc., 6 FMSHRC
1834, 1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d)(l), it is the
contribution of a violation to the cause and effect of a hazard that
must be significant and substantial. U.S. Steel Mining Co., Inc., 6
FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., Inc.,
6 FMSHRC 1573, 1574-75 (July 1984).
This evaluation is made in terms of"continued normal mining operations." U.S. Steel, '6
FMSHRC at 1574. The question of whether a particular violation is S&S mustbe based on the
particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007.(Dec. 1987).
As discussed above, I find that a violation of the cited mandatory safety standard did
occur. Further, I find that a discrete safety hazard contributed to by the violation existed. I also
find that the Secretary met her burden with regard to the third element of the Mathies test. There
existed a reasonable.likelihood that the hazard contributed to by the violation would result.in an
injury, assuming continued mining operations. I credit the testimony offuspectotSchmidtas to
the conditions that existed at the time of his inspection. There was standing water and a
considerable amount of accumulated mud in an area that is frequently traveled. The concrete
walking surface was very slippery. A miner could easily slip and fall. The injuries sustained
would range from strains and sprains to broken bones. These types of injuries are of a reasonably
serious nature and meet the fourth element of the Mathies test. A penalty of$1,304.00 is
appropriate.

D. Citation No. 6068226
On July 31, 2008, MSHA Inspector Schmidt issued Citation No. 6068226 under section
104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.14132(b)(2) as follows:
The backup alarm on the Nissan 50 Optimum forklift was not
audible above the surrounding noise. The forklift is used
throughout the entire plant for maintenance work. This condition

32 FMSHRC Page 1767

exposes miners operating in or around the forklift to the hazard of
not knowing of the forklift's intended rearward movement.
(Ex. G-14). The inspector determined that an injury was unlikely but that if an injury did occur it
would be of a permanently disabling nature. He determined that the violation was not S&S and
that the company's negligence was moderate. The safety standard provides that "[a]larms shall
be audible above the surrounding noise level." The Secretary proposes a penalty of$100.00 for
this citation.
Inspector Schmidt testified that the backup alarm on the cited forklift could not be heard
above the ambient noise level. (Tr. 35). ·He testified that the forklift is required to be operated
around some of the noisiest equipment in the plant such as blowers and dryers. ·He said that
when the backup alarm was tested in his presence, he couldnot hear it. (Tr. 36, 61). Someone
working near the forklift could suffer serious injuries if he could not hear the alarm and the
forklift struck him. The inspector was advised that, when the forklift was examined by the
equipment operator at the start of the shift, he could hear the backup alarm. The inspector
believes that it was tested in an area where the ambient noise level was not as great. Inspector
Schmidt determined that such an accident was unlikely, because the forklift was equipped with a
strobe light that flashes. whenever it is operating. fd;
Inspector Trainee White testified that some of the machinery used in the plant is loud and
earplugs are required in some of those areas. (Tr. 83). The backup alarm could be heard in quiet
areas, but not in the noisier areas..White testified that he could not hear the backup alarm when
it was tested until he walked quite close to it. (Tr. 83, ·89-90).
Mr. Gibens testified that he was with InspectorBchmidt when the backup alarm was
tested and he was able to hear it. (Tr. 129-30). He said that the inspector was standing a little
further away from the forklift atthe time. (Tr. 146). Mr. Barnes also testified that he could hear
the alarm when it was tested. (Tr. 163). He said he was standing behind the forklift. Oil-Dri
abated.the condition by installing a new backup alarm.
I find that the. Secretary established a violation. I credit the testimony of Schmidt and ..
White that the backup alarm could not be heard above the ambient noise level when it was tested,
unless you were standing right next to the forklift. The fact that the forklift was equipped with a
strobe light does not eliminate the hazard because it flashes whenever the forklift is operating and
not just when it is put into reverse. The citation and penalty are affirmed.

E. Citation No. 6068238
On August 2, 2008, MSHA Inspector Schmidt issued Citation No. 6068238 under section
104(a) of the Mine Act alleging a violation of30 C.F.R. § 56.11012 as follows:

32 FMSHRC Page 1768 .

Three chained areas of the top rail of the railing around the stack
testing platform were not in place. One chain was broken and
another taped to the post. Contractors travel to the area once every
two years to perform testing. This condition exposes miners to the
hazard of a fall of approximately 50 feet.
(Ex. G-16). The inspector determined that an injury was unlikely but that if an injury did occur it
would be fatal. He determined that the violation was not S&S and that the company's negligence
was low. The Secretary proposes a penalty of $100.00 for this citation.
Inspector Schmidt testified that there was an elevated platform around the smoke stacks
for the plant. (TL 38; Ex. G-). The platform had a railing around it, but some sections of the top
railing were missing. In the areas with the missing railing, chains had been installed. One chain
was not attached at one end because the clasp was broken and another chain was secured to the
upright with duct tape. There were three areas that did not have a top railing around the
platform. (Tr. 38-39; Exs. G-18, G-19, G-20). The platform was about 50 feet above the ground
level. Oil-Dri representatives told the inspector that the platform is only used by a contractor
who comes in every two years to test for emissions· from the smoke stacks. (Tr. 39). This
platform provided the only access to the stacks. There were no barriers to prevent Oil-Dri
employees from going up on the platform. (Tr. 42). The middle rail was present in all areas.
The inspector determined that an accident was unlikely. He also determined that Oil-Dri's
negligence was low because the platform is infrequently used. (Tr. 42, 62). Preshift
examinations of the platform were not required because it is not a working place. (Tr. 62). The
citation was abated by securing the chains over the opening.
Mr. Gibens testified that the contractor had to remove the top rail .in the three cited
locations in order to perform the stack testing. (Tr. 130). The testing ¢quipment hangs off the
side in those locations. (Tr. 147). The chains were not replaced when the testing work was
completed. (Tr. 147). The contractor's employees wear fall protection when they are up on the
platform. Id. Gibenstestified that he has worked at the plant for 27 years and he has never been
up on this platform because Oil-Dri employees have no need to· go up there. There is no
equipment or machinery there. Mr. Barnes also testified that Oil-Dri's maintenance employees
do not go up on this platform. (Tr. 164).
Oil-Dri maintains that the cited platform is not a travelway, as that term is used in the
safety standards. (Tr. 187). I find that a work platform can be considered to be a travelway.
Nolichuckey Sand, 22 FMSHRC at 1059-61. As stated above, a walkway is defined as a
"passage, walk, or way regularly used and designated for persons to go from one place to
another." I find that the cited platform is ••designated" for persons to go from one place to
another. The contractor employees must walk along the platform to do their testing at the three
locations on the platform. Whether the platform is "regularly used" is a more difficult question.
The evidence demonstrates that Oil-Dri employees do not use the platform. Nevertheless, I find
that the employees of a contractor regularly walk alorig the platform to test for emissions.

32 FMSHRC Page 1769

Although these people do not walk on the platform on a :frequent basis, they do so on a regular
basis. 2 Every two years the contractor performs emissions testing so that the facility can maintain
its state license. I find that the Secretary establish~ a violation. fu the future, Oil-Dri need only
make sure that the contractor replaces the chains.before its employees leave the platform. A
penalty of $100.00 is appropriate.

F. Citation No. 6068239
On July 31, 2008, MSHA fuspector Schmidt issued Citation No. 6068239 under section
104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.12047 as follows:

Seven guy wires on three different power poles were not insulated
according to the National Electrical Code. Guy wires· were
attached to the poles above the level of energized high voltage
· conductors. The. guy wires did not have insulators and were not
. grounded to the' pole.
(Ex. G-21 ). The inspector determined that an injury was unlikely but that if an injury were to
occur it would be fatal. He determined that the violation was not S&S and that'the company's
negligence was moderate .. The safety standard provides that "[g]uy wires of poles supporting
high-voltage transmission lines shall meet the requirements for grounding or insulator protection
of the National Electrical Code .... " The Secretary proposes a penalty of $224.00 for this
citation.
fuspector Schmidt testified that the cited power poles had guy wires that helped support
the poles. (Tr. 44). The reason that-guy wires must be insulated or grounded is so that, in the
event of an accident, the .guy wires do not become energized. The inspector testified that he did
not observe·a. grounding wire or insulators for the guy wires on the power poles in question. (Tr.
44-45; Exs. G-23, G-24, & G-25). He said that either of these safety components can ''typically"
be seen from the ground. (Tr. 44). Given the conditions he observed; he believed that if one of
guy wires were to break, it could become energized and electrocute someone. A guy wire could
break if a vehicle struck it. The poles were near the plant parking area and they were within 15
feet of traveled roadways. (Tr. 46). Miners have been killed at other mines when guy wires have
broken. The testimony offuspector Trainee White is consistent with Inspector Schmidt's
testimony. (Tr, 85-87, 90).
Schmidt testified that he discussed this citation with company representatives at the time
he issued it. Someone called the power company and was advised by Danny Caples that the guy
wires on power poles in the area of the mine were not insulated or grounded. (Tr. 47; Ex. G-22).
The citation was terminated by Inspector Morrison after the guy wires were insulated to abate the

2

The term "regular" can be defined as "recurring or functioning at fixed or uniform
intervals." Webster's New Collegi,ate Dictionary 966 (1979).
32 FMSHRC Page 1770

condition. Photographs taken by Inspector Morrison show insulators that were added to the guy
wires. (Tr. 50; Ex. G-26 & G-27). ·
On cross-examination, Inspector Schmidt admitted that a grounding wire, colloquially
referred to as a "butt ground," ran down the power poles. (Tr. 64; Exs. G-23, G-24 & G-25).
Schmidt said that he did not see any wires connecting the guy wires to the butt ground wires on
the power poles. (Tr. 66, 69-70).
Mr. Gibens admitted that the guy wires were not insulated. (Tr. 131 ). Gibens testified
that when a service technician from the power company came to the mine to abate the condition, ·
he told mine personnel that the guy wires were already grounded. (Tr. 132, 148). The technician
came a few days after the inSpection. Gibens testified that Oil-Dri went ahead and had the
insulators installed because the power company already had a work order to complete this work. ·
For some of the poles, the power company electrician simply made the wires connecting the guy
wires to the butt ground more visible to someone standing on the ground. (Tr. 133, 150). Barnes
testified that the wires connecting the guy wires to the butt ground were very difficult to see from
ground level.· (Tr. 172-73).
The parties do not dispute the fact that the National Electrical Code requires that guy
wires be insulated or grounded on poles supporting high-voltage transmissfon lines. Oil-Dri does
not dispute that the power lines in question were high-voltage transmission lines. Oil-Dri also
admits that the guy wires were not insulated. The Secretary argues that the guy wires were not
grounded at the time oflnspecto:r Schmidt's inspection. Oil-Dri put on evidence to show that,
although the company did not know·it at the time of the inspection, the guy wires were grounded.
It offered hearsay evidence that when the local power company sent an electrician to abate the
violation, the electrician told company representatives that the guy wires were already grounded.
Oil-Dri maintains that it had insulators installed because the power company's electrician was
already at the site to install insulators. It argues that, in at least one instance, the electrician
simply moved the existing ground wire to make it more visible from the ground level.
There are significant conflicts in the testimony on this citation. On one hand, I can
understand that it would be difficult to see whether a guy wire is properly grounded by simply
looking up at the pole while standing on the ground. On the other hand, at the time of. the
inspection, a representative of the power company advised Oil-Dri that the guy wires were not
grounded or insulated at the plant. The evidence that the power company's electrician said that
the guy wires Were already grounded when he came to abate the cited condition is hearsay.
Although this is a close case, I credit the testimony of the two inspectors that the guy wires were
not grounded to the butt wire. The citation is affirmed and a penalty of $224.00 is appropriate.

G. Citation No. 6513295
On April 29, 2009, MSHA Inspector Harold J. Wilkes issued Citation No. 6513295 under
section l04(a) of the Mine Act alleging a violation of30 C.F.R. §46.12(a)(2) as follows:

32 FMSHRC Page 1771

The mine operator failed to provide information to. [an]
independent contractor of [its] obligations to comply with [MSHA]
regulations. Each production operator must provide information to
each independent contractor who employs a person at the mine in
site-specific mine hazards and the obligation to comply with
· [MSHA] regulations.·.
(Ex. G-29). The inspector determined that there was no likelihood of an injury or illness. He
determined that the violation was not S&S and that the company's negligence w~ moderate.
Section 46.12(a)(2) provides that "[e]ach production-operator must provide information to each
independent contractor who employs a person at the mine on site-specific mine hazards and the
obligation of the contractor to comply wi.th our, regulations, including the requirements of this
part." The Secretary proposes a penalty of $100.00 for this citation.
Inspector Wilkes testified that during his inspection of the plant he encountered
contractors performing construction work at a buil4ing known as the perimeter building. (Tr.
96). The contractor, Steel-Con, was installing siding on the recently constructed building. This
building was behind the main plant and was between the shipping and maintenance buildings.
There were seven Steel-Con employees at the mine that day. The inspector talked to Brent Ross,
the project supervisor for Steel-Con, and was advised that be was not aware that Steel-Con's
employees needed to have Part46 new miner training. (Tr: 97, 106). Mr. Ross stated that his
crew did receive site-specific hazard awareness training from Oil-Dri. Inspector Wilkes testified
that when he talked to Oil-Dri managers, he was told that, because the contractor's employees .
would not be exposed to any mine hazards, the company determined that site-specific hazard
training was all that was necessary. (Tr. 98).
Inspector Wilkes. determined that Steel-Con's employees would be exposed to a number
of mine hazards. The contractor employees had to cross an active railroad track to get from the
parking lot to their work site. 3 To get to their parts and tools trailer, the contractor employees
had to walk across an open area in between some of the buildings at the plant where mobile
equipment is operated and customer trucks travel. .(Tr. 99; Exs. G-31 & G-32). These
employees also worked near operating conveyor.belts•carrying Oil-Dri'sproduct. (Tr. 101). He
testified that, if the employees of Steel-Con had received new miner training, they would have
been made aware of the hazards present in the plant environment. (Tr. 102- 05; Ex. G-33).
Steel-Con had been working at the site for about two months. The employees of the contractor
who had built the perimeter building, had been provided with new miner training and some of
those employees were still working at the site. {Tr.· I 07).
Mr. Gibens testified that site-specific safety awareness training is given to all contractor
employees by Oil-Dri. (Tr. 134). These employees are also given a tour of the facility. Oil-Dri

3

The contractor employees were instructed to use a parking lot that was away from the
other work areas at the plant.
32 FMSHRC Page 1772

notifies contractors of its obligation to comply with MSHA regulations and safety standards on
the requisitions it issues. Id. The requisition that was used to contract with Steel-Con states:
Supplier shall be in compliance with all MSHA.regulations & Oil-·
Dri policies at all times while on the job site. The Project Manager
will advise ofrequirements and administer site-specific hazard
training.
(Tr. 134-35 ; Ex. R-M).
The Secretary argues that mine operators are obligated to inform all independent
contractors of their training obligations under the Mine Act and MSHA regulations. (Tr. 181).
The Secretary contends that, given the nature of the work being performed by Steel-Con, Oil-Dri
was obligated to advise SteeJ:-Con that their employees would be required to have new miner
training before they could start their work. 4 She maintains that, as a general matter, because
construction workers will potentially be exposed to mining hazards, they are required to have
new miner training. ·She contends that it is clear from the evidence that Steel-Con's employees
were exposed to mining hazards. She relies, in part, on my decision in Spencer Quarries, Inc.,
32 FMSHRC 644, 648-50 (June 2010) (ALJ). In that decision, the.operator admitted that it did
not advise a construction contractor that new miner training was required for its employees. Id.
Oil-Dri argues that· it provided the required site-specific hazard training to the employees
of Steel-Con. (Tr.188). The company alsoadvised Steel-Con on the requisition fonn thatit had
to comply with all MSHA regulations. (Ex. R-'M). Prior to the start of work, Oil-Dri determined
that new miner training was not required for Steel-Con's employees.
I find that the Secretary established that the employees of Steel-Con were exposed to the
hazards of the mining operations. The plant is, of course, part of the mine as that term is defined
in section 3(h)(l) of the Mine Act. 30 U.S.C. § 803(h)(l ). The preponderance of the evidence
shows that the employees were exposed to numerous hazards that were present at the plant; I
credit the testimony of Inspector Wilkes in this regard. Although many of the hazards that SteelCon' s employees faced were similar to hazards they would face on other construction projects,
the mining environment presents challenges that may not be present at other jobs.
I also find that Steel-Con's employees were required to be provided with new miner
training. Subsection (b) ·of section 46.12 makes clear that the independent contractor is primarily
responsible for making sure that its employees have all the necessary MSHA-required training.
Section 46.5 provides that each "new miner" must receive training in a number of subjects as
specified in the regulation. The term "miner" is defined to include employees of independent

4

Inspector Wilkes issued a section 104(g) order of withdrawal to Steel-Con for its failure
to provide new miner training to its employees. (Tr. 109).
32 FMSHRC Page 1773

contractors ''who are engaged .in mining operations" and construction workers who are "exposed
to hazards of mining operations," 30 C.F.R. § 46,2(g)(l). 5
The issue with respect to this citation is what sort of notice must the production operator
provide to the independent contractor under.section 46.12(a)(2). The regulation simply states, as
relevant here, that each production operator.must "provide information to each independent
contractor" on the "obligation of the contractor to comply with" MSHA's regulations including
the requirements of part 46. Thus, the regulation merely requires the production operator to
"provide information" to the independent contractor.
Oil-Dri contends that it provided all necessary information on the requisition form that
was used to engage the services of Steel-Con. That form contained what appears to be boilerplate language that states that the contractor shall be "in compliance with all MSHA regulations."
(Ex. R-M). The language goes onto state that the "project manager will advise of requirements
and administer site-specific hazard training."
This appears to be a case of first impression. My decision in Spencer Quarries did not
address this issue. I find that the language in the requisition form did not provide sufficient
information to Steel-Con regarding its obligation t~ comply with MSHA's training regulations.
Simply putting stock language on a form advising all contractors that they must comply with all
MSHA regulations is insufficient. Most construction contractors are familiar with the safety
regulations of the Occupational Safety and Health Administration, which are similar to MSHA' s
safety standards for surface metal and nonmetal operations. It is unlikely, however, that·these
contra,ctors will know much about the detailed training requirements that MSHA has
promulgated. Indeed, in Spencer Quarries, the construction contractor had no knowledge of
MSHA's training requirements when it was constructing a building at the quarry. 32 FMSHRC
at 650. I hold that the responsibility of a production operator to notify an independent contractor
performing work at the mine of its obligation to comply with. MSHA's training regulations
cannot be carried out by simply putting language in a standard form stating that MSHA
regulations must be followed. It must affirmatively advise the contractor of its duty to have its
employees trained in accordance with the requirements set forth in MSHA's regulations. 6
Indeed, the language in Oil-Dri's form states that its pi:oject manager will advise the contractor of
these requirements.
In this instance, Oil-Dri unilaterally determined that new miner training was not required
for Steel-Con's employees. The company's safety manager and the plant manager discussed the
matter before making this determination and apparently Mr. Ross of Steel-Con was told that

5

The definition excludes, in subsection (2), such people as vendors, delivery workers,
and over-the-road truck drivers.
6

The contractor does not necessarily have to provide the training. It can reach an
agreement with the production operator to provide new miner training for its employees.
32 FMSHRC Page 1774

training beyond hazard awareness training was not required. (Tr.. 106, 152, 188). Based on the
above, the violation alleged in this citation is affirmed and I find that a penalty of$100;00 is
appropriate.

H. Citation No. 6513296
On April 29,'2009, MSHA Inspector Wilkes issued Citation No. 6513296 under section
104(a) of the Mine Act alleging a violation of30 C.F.R. § 56.14112(b) as follows:
The tail roller guard on the north side of the truck load-out belt
conveyor was damaged exposing the moving machine parts. The ·
guard had been pulled up [in the area] where the grease line came
up from the fitting on the bearing. This condition exposed persons
working on three shifts .... ·The area has low overhead clearance
and is in a narrow place between two belt conveyors.
(Ex. G.;34). The Inspector determined that an injury was reasonably likely and that if an injury
were to occur it would be of a permanently disabling nature. He determined that the violation
was S&S and that the company's negligence was moderate. Section 56.14112(b) provides that
"[g]uards shall be securely in place while machinery is being operated, except when testing or
making adjustments which cannot be performed without removal of the guard." The Secretary
proposes a penalty of $8,209.00 for this citation.
Inspector Wilkes testified that during hfa inspection he walked by the tail roller of the
truck load.-out belt. (Tr. 110). ·This belt carries the product from the plant to bins that are used to
store the product for loading into trucks for shipment to customers. The guard for the tail roller
was damaged in that the guard had been pulled up, thereby exposing moving parts. Another · ·
section of the gaard had come loose and swung down, thereby exposing more of the moving
parts. Id. The inspector testified that this condition exposed miners to the hazard of becoming
entangled in the moving machine parts, which could result in the amputation of a hand or arm.
He testified that a person has to bend over to walk through the area. Because the tail
roller is adjacent to another piece of machinery, the area was also narrow. (Tr. 111 ). In addition,
there were accumulations of product on the ground in the area. (Tr. 11 I; Ex. G-36, G-37).
Given these environmental conditions, he determined that the violation was serious and S&S.
The inspector believed that it was reasonably likely that someone would slip, trip, or lose his
balance in the area and get his hand caught in the moving machine parts. (Tr. 112). Employees
would be required to go into the area to grease the tail rollers, to clean up the accumulated
material, and to perform preventive maintenance. He observed footprints in the accumulated
material. Maintenance Supervisor Billy Jordan, who was with Inspector Wilkes, told the
inspector that he did not know that the guard was damaged. Id. Inspector Wilkes said that the
exposed moving parts were less than waist high. (Tr. 113). The condition was abated when the
operator constructed and installed a new guard. (Tr. 114; Ex. G-37).

32 FMSHRC Page 1775

Mr. Gibens testified that the photograph taken by Inspector Wilkes shows the area
between the truck load-out belt and the hopper car belt. (Tr. i 37). Gibens was not at the plant
on the day of the inspection, but he examined the area after the citation was issued. He estimated
that the hole in the guard that the inspector cited was about seven inches long and an inch and
one half wide. (Tr. 138). He testified that the accumulations were cleaned up using a fire hose
because the area is too tight to do any shoveling. The person using the hose stands outside the
cited area when he cleans up accumulations next to this belt. (Tr.139). Mr. Barnes confirmed
the testimony of Gibens. (Tr. 166).
I find that the Secretary established a violation of the safety standard. It is not disputed
that the guard for the tail pulley on the truck load-out belt was not securely in place. The primary
issue is whether the violation was S&S. Oil-Dri maintains that miners were not exposed to the
hazard because, when the bearings were greased, a grease line was used. It.also argues that
machinery was locked out whenever maintenance was performed. Finally, it contends that the
area was cleaned from a different location using a high-pressure hose. I find that a
preponderance of the evidence establishes that the violation was S&S. The grease line was
immediately adjacent to the damaged area of the guard. (Ex. G-36) .. The conditions in that,
confined area were such that it was.reasonably likely.that a miner would stumble or lose his
balance while using the grease line. His hand, arm, or clothing could easily become entangled in
the moving machine parts. I find that the Secretary established all four elements of the,
Commission's Mathies S&S test.
The Secretary proposed a penalty of $8,209.00 for this citation. The proposed penalty is
substantially higher than the proposed penalty for S&S Citation No. 6068218 issued on July 31,
2008, primarily J:>ecause of the Secretary's manner of calculating penalty points for citations
issued per inspection day and repeat citations issued per inspection day. Information at MSHA's
website shows that nine citations were issued to Oil-Dri in December 2008, but that these
citations have all been contested by Oil-Dri. I find that a penalty of$5,000.00 is appropriate for
this violation.

II. SETTLED CITATIONS
Prior to the hearing, the parties agreed to settle the remaining citations in these cases. In
SE 2009-293-M, by order dated August 13, 2010, I approved the parties' joint motion to approve
partial settlement. The parties agreed that one citation should be vacated and I ordered Oil-Dri to
pay the Secretary a total penalty of $34 LOO for the remaining two citations included in the
motion. Docket No. SE 2009-639-M was originally assigned to Judge William Moran. On July
27, 2010, the parties filed a joint motion to approve partial settlement with Judge Moran. This
motion has not yet been.ruled on. The Secretary agrees to vacate Citation No. 6513287. The
parties agree that Citation Nos. 6513289, 6513290~ 6513291, 6513293, and 6513297 should be
affirmed and that Oil-Dri should pay a total penalty of$1,608.00 for the violations. I have
considered the representations and documentation presented and I conclude that the proposed

32 FMSHRC Page 1776

settlement is appropriate under the criteria set forth in Section 11 O(i) of the Act. The joint
motion to approve partial settlement in SE 2009-639-M is GRANTED.
,

III. APPROPRIATE CIVIL PENALTIES ·
Section 1lO(i) of the Mine Act sets forth the criteria to be considered in determining an
appropriate civil penalty. Oil-Dri had about i4 paid violations at the Ripley Mine and Mill
during the 15 months preceding August 4, 2008, and about 14 paid violations during the 15
months preceding April 29, 2009. 7 Oil-Dri is a medium-sized operator. The violations were
abated in good faith. The penalties assessed in this decision will not have an adverse effect on
Oil-Dri's ability to continue in business. I have not entered gravity and negligence findings
because the representative for Oil-Dri agreed not to contest the MSHA inspectors'
determinations. Consequently, I affirm the gravity and negligence determinations set forth in the
citations.
IV. ORDER

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

·30 C.F.R. §

Penalty

56.11012
56.14107(a)
56.11001
56. l 4132(b)(2)
56.11012
56.12047

Vacated
$117.00
1,304.00
100.00
100.00
224.00

46.12(a)(2)
56.14112(b)
Various

100.00
5,000.00
1,608.00

TOTAL PENALTY

$8,553.00

SE 2009-293-M
7751806
6068216
6068218
6068226
6068238
6068239
SE 2009-639-M
6513295
6513296
Settled Citations

7

These numbers are based on information at MSHA's website. Citations that were
contested by Oil-Dri are not included in these figures including the citations that were contested
in these two cases.
32 FMSHRC Page 1777

For the n~asons set forth above, Citation No. 7751806 is VACATED and the other
citations listed above are AFFIRMED. Oil-Dri Production Company is ORDERED TO PAY
the Secretary of Labor the sum of$8,553.00 within 40 days of the date of this decision. 8 Upon
payment of the penalty, these proce~dings are DISMISSED.

Richard W. Manning
Administrative· Law Judg

Distribution:

Lydia A. Jones, Esq., U.S. Department of Labor, Office of the Solicitor, 61 Forsyth Street, S.W.,
Suite 7Tl0, Atlanta, Georgia 30303
Larry R. Evans, Safety & Health Manager, Oil-Dri Corporation, P.O. Box 380, Ochlocknee, GA
31773

RWM

Paym~nt 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.
8

32 FMSHRC Page 1778

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATfVE LAW JUOOES
601 NEW JERSEY AVENUE, N.W., SUITE 9500

WASHINGTON, DC 20001-2021
TELEPHONE: 202-434-9964 I FAX: 202-434-9949

November 19,2010
CNIL PENALTY PROCEEDINGS

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH

ADMINISTRATION, (MSHA),

Docket No. KENT 2008-397-M
A.C. No; 15-16138-132556 -01

Petitioner
v.

Docket No. KENT 2008-463-M
A.C. No.: 15-16138-134706-01

DIX RNER STONE, INC.,
Respondent

Dix River Surface

DECISION
Appearances: Jennifer D. Booth, Esq., (at October 14, 2009, hearing) and Willow Fort, Esq., (at
March 10, 2010, hearing), Office of the Solicitor, U.S. Department ofLabor,
Nashville, Tennessee, for the Petitioner,
Tomil1y ()wens, President, Dix River Stone Inc., Stanford, Kentucky, for the·
Respondent.
Before:

Judge Weisberger

Statement of the Case
These cases are before me based upon Petitions for Assessment of a Civil Penalty filed. by
the Secretary of Labor, ("Secretary") seeking the imposition of civil penalties for the alleged
violation by Dix River Stone, Inc., ("Dix River") of various mandatory standards and set forth in
Title 30, Code of Federal Regulation. Subsequent to notice, these matters were scheduled to be
heard in Lexington, KY on October 14, 2009. At the hearing, the following citations were
litigated: Nos. 7765946, 7765949, and 7765950. 1 Due to scheduling conflicts, Citation Nos.
7765947 and 7765593 were rescheduled based on the parties' agreement, and heard on March 10,
2010, in Richmond, Kentucky.

I.

Docket No. Kent 2008-463
A.·

Citation No. 7765946

At the conclusion of the hearing on October 14, 2009, a bench decision was rendered
which, aside from the correction of non-substantive matters, is set forth below.

1

Subsequent to the hearing, the Secretary vacated Citation No. 7765950.
32 FMSHRC Page 1779

On September 11, 2007, MSHA Inspector Richard Jones inspected Dix River's surface
quarry ("the quarry"). He observed an employee on an elevated belt guard that was
approximat~ly ten feet,offthe ground. Jones testified that the employee was not tied off, and was
not wearing a safety belt. He issued a citation alleging a violation of 30 CFR § 56.15005.2
1.

Violation of Section 15005, supra
a.

Respondent's Position

The Respondents' defense is based upon a number of contentions. It is argued, that there
was a greater danger to the use of a belt and tie line in circumstances where the work being
performed was only ten feet above the ground. Owens explained that if a person is tethered at
this height and falls, he would lose control of the motion of his body, and could be bumped
against some dangerous materials causing severe injuries.

.

.

In essence, Respondent argues that if the Section 56.15005, supra is appljed to the
situation presented herein, the result would be a diminution of safety. Commission case law has
established the principle that it can not entertain this argument. Rather, it must first be presented
in a modification, and that it can not be raised before the Commission as a defense. Clinchfield
Coal Co., 11 FMSHRC 2120, 2130 (1989); Otis Elevator Co., 11 FMSHRC 1918, 1923 (1989)
Next, Respondent argues, in essence, that the cited condition was not dangerous, as it did
not expose the observed employee to any danger. Owens opined that if the employee would have
lost his balance, he could have landed on a platform that was four feet below the platform he was
working on, and protruded approximately four feet beyond it. He said that a, tank was lo~ated
below the work platform, and partially protruded beyond it. Also* Owens mah1.tained that the
cited conditions, and manner of operation have existed for ten years, and they have not led to
any accidents or injuries.
b.

Discussion

I note that the following particulars of the inspector's testimony have not been
contradicted or impeached: that the employee was not tied off, and was not wearing a safety belt,
that he was working on a platform that was approximately ten feet off the ground, and that while
the employee was sitting on a belt guard at the edge of the platform, he was leaning over, picking
up fist-sized stones, and throwing them down to the ground. Jones opined that the employee
could lose his balance and fall to the ground below which was composed of various sized stones.

2

Section 56.15005, supra, provides as follows, "Safety belts and lines shall be worn
when persons work where there is a danger of falling."
32 FMSHRC Page 1780

Based on Jones' testimony, I find that one of Dix Riv~'s employees wasworking on an
area ten feet above the ground, but he was not wearing a safety belt or line. Also, that he was
sitting on a belt guard close to the edge of the platform, leaning over, picking up and throwing
stones to the ground. Hence, there was a danger of falling. rm not quantifying the danger, but
certainly there was a danger of falling, especially considering that there weren't any rails. I thus
find the Respondent violated Section 56.15005 which requires the wearing both a safety belt and
lines where there is a danger of falling.

2.

Significant and Substantial

In essence, Commission case law provides that a violation is "significant and substantial"
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 (Apr. 1981). ·In order,to·establish that
a violation of a mandatory safety standard under the Federal Mine Safety and Health Act of 1977
("Mine Act") is significant and substantial, the Secretary must prove: 1) the underlying violation
of the mandatory safety standard; 2) a discreet safety hazard contributed to by the violation; 3) a
reasonable likelihood that the hazard contribqted 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).
As set forth above, the evidence clearly establishes the first two criteria.. I find that the
record establishes the existence of the following facts: (1) the employee observed by Jones was ·
on a platform that was 10 feet above the ground; (2) the employee was observed throwing stones
off the platform; (3) the employee was picking up and throwing stones; (4) there were not any
rails on the platform; and (5) the employee was not wearing a safety belt or a line. Based on a
combination of these facts, I conclude that the third and fourth of the above criteria have been
established. I thus find that the violation was significant and substantial. (See, Mathies, supra)

3.

Penalty

Pursuant to Section l lO(i) of the Mine Act, in determining the penalty to be assessed
upon a mine operator, the following six factors must be considered: 1) the operator's history of·
previous violations; 2) the appropriateness of the penalty to the size of the business of the
operator; 3) whether the operator was negligent; 4) the effect on the ability of the operator to
continue in business; 5) the gravity of the violation; and 6) whether good faith was demonstrated
in attempting to achieve prompt abatement of the violation.

32 FMSHRC Page 1781

I find that the gravity of the violation was relatively high for the reasons set forth above,
(I)(A)(2) infra. I do not find anything in the operator's history of previous violations or the size
of the operator's business that justifies an increase or decrease of a penalty. Dix River is a small
operator. The history. of violations neither warrants increasing or decreasing the penalty. The
evidence appears to indicate that abatement was done iii a reasonably timely fashion.
The following testimony of Jones·is instructive regarding the level of the operator's
negligence:
And I figured that if the operator had provided him with proper fall protection, the
training how to wear it, a good place to store it, then I felt the operator ... had
some sort of an attempt to provide this person with the fall protection that they
. needed . . . and the training to know when to use the equipment ... even though
the operator is not there standing there telling him to put it on, that he would know
to put it on himself. (Tr. 30).
·Based on all the above, I find that Dix Riv~r's negligence is mitigated to some extent. 3
The mine operator has the burden of showing that the penalty will have a detrimental
effecton its ability to continue in business. Sellersburg Stone Co., 5 FMSHRC 287, 294 (Mar.
1983); Buffalo Mining Co., 2 IBMA 226 (1973). Respondent's representative ha8 submitted
evidence showing that Dix River Stone, Inc. was merged with Owens Chevrolet, Inc., a used
Chevrolet dealership owned by the subject quarry's owner.. He· also submitted various bank
statements, loan balances, and a judgment by a Kentucky Circuit Court ordering payment by
Owens Chevrolet of taxes, penalties, interest and fees. These documents indicate that Owens
Chevrolet; Inc. incurred losses in the previous years. However, Respondent did not offer any
evidence of the quarry's assets and liabilities and provided on\y an estimation of the assets
owned by Owens Chevrolet. 4 .The documents provided by Respondent fall short of the kind of
3

The bench decision did not make any determination the remaining penalty criterion set
forth in Section 11 O(i) of the Act, i.e., the effect of the imposition of a penalty on the ability of
the operator to remain in operation. The record was kept open to allow Dix River to proffer
documentary evidence on this issue. Subsequent to the hearing, Dix River filed Exhibits Cl-9, GA, G-1-11, H, I, J, K, L, M, N-1, N-2, 0, P-1, Q, R, S, and T-1. In conference calls on
September ll, 2010, and April 30, 2010 the Secretary did not object to their admission, and they
·
were admitted.
4

Section 110 (a)( I) of the Act provides, as pertinent, as follows:
The operator of a coal or other mine in which a violation occurs of a mandatory
health or safety standard or who violates any other provisions of this Act, shall
be assessed a civil penalty by the Secretary which penalty shall not be more
than $50,000 [currently $70,000] for each such violation. (emphasis added)
32 FMSHRC Page 1782

evidence which allows a reduction in a penalty due to the operator's inability to continue in
business. See, Spurlock Mining Co., Inc., 16 FMSHRC 697, 700(April1994)(the operator
introduced its tax returns, balance sheets, and tax liens. It was held that the operator "failed to
introduce specific evidence to show that the penalties would affect their ability to reswne
operations and continue in business"); Ron Coleman Mining, Inc., 21 FMSHRC 935 (Aug.
l 999)(ALJ). (mine' s tax returns indicating a loss, was held fo tend to indicate a negative impact
on its ability to continue in business). See also, Bob BakConstruction,I 9 FMSHRC 1791 (Nov.
1997)(ALJ).
Within the above context, I find that Respondent has not provided specific evidence to
show that the penalties would affect its ability to continue operations and continue in business.
Considering all the above factors set forth in Section 110 (i) of the Act, especially the low
level of negligence, I find that a penalty of $1,000 is appropriate.

B.

Citation No. 77659475
1.

Introduction

On September 11 and 12, 2007, Jones conducted an inspection of the quarry. Jones
observed a Thomas ProTough 900 brand skid steer loader ("loader" or "skid steer loader'')
parked on the quarry premises. The loader was not marked as defective and was not parked in an
area specially designed for defective equipment. During his' inspection, Jones spoke to an
employee whom he identified as the "plant operator" (Tr. 187.) Jones said the latter indicated
that he was the "normal" operator of the loader. (Id) Jones "had him" raise the safety bar ("seat
bar") "all the way" to the ''up" position (Tr. 188). Jones indicated he observed that the operator·
lifted the seat bar to its "full upright position" which should have "locked" all the controls (Tr.
188-89). The employee operating the loader was able to use the controls to raise the bucket
while the seat bar was in the raised position. (Tr. 189-90.) ·
4

cont'd
Section l lO(i) of the Act provides that if the penalty amount assessed by
the Secretary is challenged, the Commission is required to assess a penalty. The Commission is
mandated to consider, inter alia, the operator's ability to continue in business (Sellersburg Stone,
supra). Section 3(d) of the Act, defines an "operator' as the owner, or other person who operates
controls, and supervises"... a coal or other mine." (emphasis added.) Thus, reading together all
these sections, it is clear that for· the purpose of assessing a penalty, the consideration of its effect
is limited to the operation of a mine, rather than the financial condition of the non-related
businesses of the owners of the mine. Therefore, not much weight was placed on the evidence
adduced by Dix River related to the operation of Owens Chevrolet.
5

This matter was heard on March I 0, 20 I 0. The date for the parties to file post briefs was
extended to August 20, 2010, based on the granting ofnwnerous requests made by the parties.
The date to file responses was extended to August 30, 2010. The Secretary filed a brief on
August 2, 2010. To date, Dix River has not filed a brief, or argument.
32 FMSHRC Page 1783

Jones subsequently issued citation No.776.5947 alleging a violation of 30 C.F.R.
§56.14100(c}, which states as follows:
..

When defects make continued operation hazardous to persons, the defective items
including self-propelled 'mobile equipment shall be taken out of service and
placed in a designated area posted fc;>r that purpose, or a tag or other effective
method of marking the defective item shall be used to prohibit further use until
the defects are corrected.
2.

Violation of30 C.F.R. §56.14WO(c)

To show a violation of Section 56.14100(c} supra, the Secretary must establish 1) the
existence of a defect, that 2) makes continued operations hazardous to persons, and 3) the
machine was not taken out of service. Since both parties agree that the loader was not taken out
of service, only the first two elements are presently at issue.
a.

The Existence of a Defect
1.

The Parties' Evidence

Jones testified
that a typical. .skid steer loader is equipped .with a seat bar safety
.
device which, when raised to the. upright position, locks themachine'scontrols so that the.
machine.cannot move. Jones testified that an employee he identified as the plant manager
told him that he. was the normal operator of the skid steer loader. Jones asked the
employee to enter the cab of the loader, and start it. Jones observed the employeeJ~ft the
seat bar safety device to its full upright position. While. the seat bar was raised, Jones
observed the employee attempting to move theloader with the tram controls in the cab,
but it did not move. Jones observed that the employee was
able .to
.
. raise the bucket on the
loader, even though the safety bar was in the full upright position.
Owens did not impeach Jones' testimony. However, he asserted that the loader
did not have any defect. Owens testified that the loader was equipped with a button
which, when pushed in, would deactivate the loader's controls. According to Owens, the
button was designed to be pushed in by the seat bar when the seat bar was raised. He
indicated, in essence, that his testimony in these regards is based upon the safety
instruction booklet that he read. Owens testified that the day the loader was cited, an 80year old employee, whom he referred to as Clarence, was the only employee at the quarry
who was not "up front" with him. (Tr. 272.) Owens opined that Clarence was directed to
operate the loader. According to Owens, Clarence was not trained to operate it, and due
to his age and medical condition, was not allowed to get on it. Owens opined that
Clarence must not have fully raised the safety bar. As such, the button had not been
pushed in to de-activate the controls.

32 FMSHRC Page 1784

Owens testified that a technician inspected the machine shortly after Jones issued·
the citation and found nothing wrong with the loader's safety device.
11.

Discussion

The Commission has defined a "defect" as "a fault, a deficiency, or a condition
impairing the usefulness of an object or a part." Allied Chemical Corp., 6 FMSHRC
1854, 1857 (Aug. 1984) (citing Webster's Third New International Dictionary 59 (1971);
U.S. Dept. Of Interior, Bureau of Mines, Dictionary ofMining, Mineral and Related
Terms 307 (1968)). According to Jones, he observed the bucket move while the seat bar
safety device was in the full upright position. As such, it can be reasonably inferred from
the inspector's observation that the safety device was deficient, as it did not prevent
movement of the bucket while the seat bar was in the upright position. fu other words,
the usefulness of the loader's safety mechanism was impaired to some degree.
Owens did not observe the operator of the loader rasing the safety bar. Thus,
Owens does not have any personal knowledge as to how far the operator raised the safety
bar. It is significant to note that Respondent did not call this employee to testify.
I note Owens' testimony that the day after the citation was issued a "technician"
checked it out and "there was nothing wrong with the machine."(Tr. 273-274.) There is
not any evidence that Owens had personal knowledge as to specifically what the
technician did.. It is significant to note the Respondent did not have the technician testify.
For all the above reasons, I find that Owens' conjectures as to what individuals
might have done are insufficient to rebut the :direct evidence adduced by the Secretary,
consisting of Jones' testimony based on his observations. I therefore conclude that the
Secretary has e~tablished the existence of a defect.
b.

. Continued Operations Hazardous to People

i. Testimony
According to Jones, he was told by quarry employees that the loader was used
almost every day, and had been used that day prior to Jones' arrival at the quarry. Jones
testified that" ... [he's] seen it commonly done where [operators] would leave the cab
and leave the machine operating ... [and] the safety bar would be in the upright
position .... " (Tr. 199.) Jones indicated that the. loader ''could very well be used" when
there were employees nearby (Tr. 198.) He testified that he has seen it "commonly done
where [operators] would leave the cab and leave the machine running." (Tr. 199.) Jones .
concluded that the safety defect on the skid steer loader constituted a hazard to the loader
operator and other quarry employees.

32 FMSHRC Page 1785

According to Owens, the quarryhad not been running on.the day the citation was
issued. However, Andrew Works, a foreman, test~fied that the loader is used even when
the quarry is not running.
11.

Discussion

The descriptive term "hazardous" denotes a measure of danger to safety or health.
Cement Div., Nat'/ Gypsum Co., 3 FMSHRC at 827. I note Jones' testimony that, in
essence, given the defective operation of the safety bar as observed by him, an individual .
could have been struck by the bucket if its controlling leverswere unintentionally moved
while the bar was in an upright position. Based on this testimony that .was not impeached
or contradicted, I find that the defect constitutes a measure of danger to the safety of
quarry workers. Therefore, I find the Secretary h8$ established that the defect makes
continued operations of the loader hazardous to people~
For all the above reasons, I find that Respondent violated Section 56.14100(c),

supra.
3.

Significant and Substantial

As set forth above, the condition of the loader violated a mandatory standard i.e.,
Section 56.14000(c ),·supra. Also, the violation contributed, in some degree, to a safety
hazard. Hence, I find that the first two elements of Mathies supra, have been meet.
The third element set forth in Mathies, supra, requires that the Secretary establish
a reasonable likelihood that the hazard will contribute to an injury-producing event. .U.S.
Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984). In the case at bar, in order for
the safety d~fect on the loader to contribute to an injury-producing event, a number of
events must occur. First, the operator of the skid steer loader would have to raise the seat
bar safety device.- Next, the operator would have to exit the machine while the machine
was still running. Finally, the operator must inadvertently hit the controls of the skid
steer loader, causing the machine to move and strike a quarry wor~er. Jones testified that
it is common for an employee operating a skid steer loader to raise the seat bar safety
device and exit without turning the machine off. However, the Secretary did not adduce
any evidence to establish that the inadvertent contact with the controls by the operator
was reasonably likely to haveoccurred. 6
Thus, I find that the Secretary has not established that there was a reasonable
likelihood of an injury-producing event, i.e., a person being hit by the bucket.

6

There is not any evidence of the inner dimensions or the. cab of the spatial relationship of
operator's seat, and the controls. Indeed, Inspector Jones stated he did not know where the
controls on the skid steer loader were located. He also did not remember if he could see the
operator moving the controls.
32 FMSHRC Page 1786

Accordingly, it is concluded that the Secretary has not established that the violation was
significant and substantial; (See, Mathies, supra).
4.

Penalty

As discussed above, inadvertent movement of the bucket as a consequence of the ·
violation, was not reasonably likely to have occurred. However, if, as a consequence, the
bucket had hit a person, s~ous injuries could have resulted.
I find that the penalty is' appropriate when considered in the context of the size of
the operator's business. The analysis of the effect of a penalty on the operator's ability to
remain in operation is the same as set forth above, I (A)(3), infra. I find nothing in the
operator's history of previous violations to justify either an increase or decrease in
penalty.
I find that Respondent, in good faith, attempted to achieve prompt abatement of
the violation. Since the defect would become apparent only if the controls for the bucket
were activated while the safety bar was in an upright position, I find that the violative
condition was not obvious.
The safety bar was intended to ·prevent movement both of the loader and the bucket
When Jones tested its functioning, only the bucket could still be moved. I find that the violative
condition was not extensive. There. is not any evidence as to how long the violative condition
had existed prior to its being cited by Jones on September 11, 2007. There is not any evidence
that Respondent had either knowledge or notice of the violative condition. I thus find that the
level of Respondent's negligence was low.
Taking iµto consideration all of the above, especially the low level of negligence, and the
fact that the violative condition was neither extensive nor obvious, lfind that a penalty of $700 is
appropriate.
C.

Citation No. 7765953
1.

Introduction.

On September 12, Jones inspected the quarry's pug mill. Jones observed three
distribution boxes which controlled the electrical circuits to the pug mill. The distribution box
on the right controlled the right paddle of the pug mill, and the box in the middle controlled the
left paddle. The box on the left was the main disconnect for the pug mill. 7

7

According to Jones, " ... [if the main disconnect] is shut off, there's not power to either
of the other two boxes." (Tr. 334.)
32 FMSHRC Page 1787

The distribution boxes controlling the paddles had black markings on the exterior of the
boxes. The distribution box for the main disconnect did not have any markings, but had a
manufacturer's label on the front of the box.
Inspector Jones issued citation number 7765953, alleging a violation of30 C.F.R.
§56.12006, which states as follows:
Distribution boxes shall be provided with a disconnecting device
for each branch circuit. Such disconnecting devices shall be
equipped or designed in such a manner that.it can be.determined by
visual observation when such a device is open and that the circuit
is de-energized, the distribution box shall be labeled to show which
circuit each device controls.
2.

Violation of Section 56.12006, supra
·a.

The Parties' Evidence

According to Jones, the distribution box in the middle (center) controlling the left paddle,
"has some sort of writing on it that you could make out part of it but not entirely'' (Tr. 333.)
Jones testified that the box on the right; controlling the right paddle was not labeled at all, and
the left box controlling the man disconnect did not have any markings on it regarding the circuit
it controls. Jones concluded that the boxes were inadequately labeled. In support of his
conclusion, Jones stated that:
there is some portion, part, piece oflabeling, but for the person who is under a
stressful situation or something similar to that; or if a person wants to make
ab~olutely sure that they lock out the proper circuit, you've got to be able to
absolutely make positively sure that it is the circuit that you want locked out.,.
(Tr. 367.)
Owens testified that the distribution boxes controlling the pug mill's left and right
paddles were labeled, and the labeling was faded but readable. Owens also testified that the
distribution box for the main disconnect had a factory label on the front of the box. According to
Owens, the factory label included the words "main disconnect." (Tr. 375.} Respondent also
provided a photograph of the distribution boxes taken within a week after the·citation was issued,
and after the boxes had been re-labeled.
b.

Discussion

Section 56.12006, supra, requires that each distribution box be labeled in order to show
which circuit it controls. Thus, in order to establish a violation of Section 56.12006, supra,.the
Secretary need only show that one distribution box was not adequately labeled.

32 FMSHRC Page 1788

Government Exhibit 14A, and Respondent Exhibit F, appear to indicate that the
distribution
box located in the middle of the three boxes, was somewhat labeled to show it controlled the left
paddle. I note Owens' testimony that the distribution box controlling the main disconnect had a
factory label that said "main disconnect" in fine print. (Tr. 375'.) On the other hand, Jones
testified that this box did not have any markings on it regarding the circuit it controls. I
examined Exhibits 14A and F and I find that they do not corroborate Owens' testimony in that
the words "main disconnect" can not be ascertained. Further, according to Jones' testimony, the
box on the right did not have any markings regarding the circuit it controls. A photograph of the
boxes taken on the day he issued his citation, appears to corroborate his testimony regarding the
lack of labeling.
I note that Respondent proffered photographs depicting the boxes in issue, and the
following is written in black on the right distribution box "right side paddle." (Ex. Fl and F2.)
However, the record fails to establish that these pictures were taken on the date the conditions
were observed and. cited by Jones. Owens testified that he took them "within probably a week
[after they were cited on September 11 ]"(Tr. 374), and after the boxes at issue had been labeled.
In follow-up testimony he said that he "[did not] know if that was before or after, ... but it was
shortly after *** we did this like the very same day he did the inspection." (Tr. 375.) I find this
testimony unclear and confusing. I therefore accord more weight to Jones' pictures as depicting
the condition of the labeling of the boxes when they were cited. In this connection , I note that in
Exhibit 14A, taken on S~ptember 11 by Jones, the left and right boxes are not depictedwith any
writing or other labeling to indicate the circuit each controlled.
Based on all the above, I find that the left and right boxes were not adequately labeled to
indicate the circuit controlled by each box. Thus, I conclude that the Secretary has established
that at least one distribution box was inadequately labeled. Accordingly, I find that it has been
established that .Respondent violated Section 56.12006, supra.
3.

Penalty

As set forth above, I(A)(3), I conclude that nothing in the operator's history of previous
violations or size leads me to increase or decrease the penalty. I also found that Dix River has
not provided specific evidence to establish that the penalties would affect its ability to continue
in business. If find that Respondent, in good faith, attempted to achieve prompt abatement of
the violation. Jones testified that the violative conditions could have resulted in electrocution, or
a fatal injury. This testimony was not refuted by Respondent. Accordingly, I find the gravity of
the violation to be relatively high.
I find that the violative conditions, affecting only two distribution boxes, were not
extensive. Based on Jones' photograph of the outside cover of the box on the right side, I find
that the lack oflabeling was obvious.

32 FMSHRC Page 1789

The operator promptly abated the situation by re-labeling the distribution boxes .
.Respondents negligence regarding the lack of labeling on the left is mitigated somewhat
by
Owens' testirnonythat a factory label on the box indicated "main disconnect in 'fine print'"(Tr
375.) Tue Secretary did not establish how long these conditions had existed. Therefore, I
conclude the operator's negligence to have been only moderate.
Considering all the above criteria set forth in Section 11 O(i) of the Act, I find that a
penalty of $200 is appropriate.

II.

Docket No. Kent 2008-463

A.··

Citation No. 7765949

At the conclusion of the October 14, 2009 hearing a bench decision was issued which,
except for the correction of non-substantive matters, is set forth belOw as follows:

On September 12th, 2007, MSHA Inspector Richard Jones inspected Dix River's above
ground crushing operation. He specifically inspected a rock-breaker platform that was elevated··
approximately 20 feet from the ground. There were two parallel rails on three sides of the
platform. The highest rail was approximately four feet off the ground and the rail below was at
an equal distance between the top rail and·theplatforin.
According to the inspector, men needed to access the platform to perform maintenance
and repair work on various hydraulic lines, motors; and equipment. He indicated that it would be
extremely hazardous for a person to access the platform from a platform located adjacent that
was approximately a foot and a half higher because of the presence of rails on three sides and the
presence of a series of rebar bars closing off the fourth side. Jones testified that a person could
lose his balance and trip while climbing over the rails and fall 20 feet. He was told that Dix
River had some type of man-bucket to transport a miner to the platform at issue in order to
perform maintenance and repairs. However, he was concerned about the hazaid of climbing
from the man-bucket over the rails to get onto the platform. Also, he noted that the previous day
he issued a citation because he·had observed an employee working on a piece of equipment that
was approximately ten feet off the ground, and that employee did not have either a safety belt or
was not tied off. He was concerned that a person attempting to access the platform at issue from
a man-bucket would also not he tied down.
30 CFR § 56.11001 provides as follows, "Safe means of access shall be provided and
maintained to all working places." (Emphasis added.) 30 CFR § 56.2 provides that a "working
place" means any place in or about the mine where work is being performed.
The plain wording of Section 56.11001 supra, requires the provision of a safe means of
access; it does not require the safest means of access. Also, the plain language of Section
32 FMSHRC Page 1790

.

.

56.11001 supra, does not state that only safe ambulatory access satisfies its requirements.
Owens testified that the company had a "bucket-truck"(Tr. 125-26), that allowed a person
to enter a bucket, and then be transported right up to that platform. He also indicated that he is
familiar with this operation, that he has been in the bucket, and that it can be placed flush against
the rail. He also indicated that the height of the rail is less than the height of the bucket. Thus, to
access the platform safely one would have to climb out of the bucket and then just step down
onto the platform~ it is not necessary to climb over any rail. I find Jones' testimony credible
based on my observations of his demeanor, and the fact his testimony in these regards was not
impeached or contradicted. Therefore, I filld that safe access to the platform was provided.
For all the above reasons I find that it has not been established that the operator did not
comply with Section 56.11001, supra.

B.

Citation No. 7765950

After this matter was heard on October 14, 2009, the Secretary vacated this citation,
therefore, it is dismissed.

ORDER
It is Ordered that Citation Nos. 7765949 and 7765950 be DISMISSED.
It is further Ordered that, within 30 days of this decision, Respondent shall pay a total
civil penalty of $1,900 for the violations found herein.

~

. berger

Admii:iistrative Law Judge
Distribution:
Jennifer D. Booth, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219-2456
Willow E. Fort, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite
230, Nashville, TN 37219-2456
Tommy Owens, President, Dix River Stone Inc., 376 Somerset Street, Stanford, KY 40484
/cmj

32 FMSHRC Page 1791

. FEDERAL MINE SAFETY AND HEALTH R\:VIEW COMMISSION
Office of Administrative Law Judges
601 New Jersey Avenue, N.W ., Suite 9500
Washington, D.C. 20001

(202) 434-9973

November 19, 2010
CI\TILPENALTYPROCEEDING

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

Docket No. WEST 2008-979-M
A.C. No. 04-00119-147478
Mine: AR Wilson Quarry

v.
GRANITE ROCK COMPANY,
Respondent

DECISION

Appearances: John Pereza, U.S. Department of Labor, Mine Safety and Health Ad.ministration,
Vacaville, California, for the Petitioner,
Kevin Jeffrey, Esq., Watsonville, California, for the Respondent
Judge Weisberger

Before:

Statement of the Case

This case is before me based upon a Petition for Assessment of Civil Penalty filed by the
Secretary of Labor ("Secretary''), alleging violatioris by Granite Rock Company ("Granite
Rock") of 30 CFR § 56.11027 1 (Citation No. 6196739), and 30 CFR § 56.14132 (Citation No.
6196742). Subsequent to notice, the case was scheduled and heard in San Jose, California on
October 19, 2010.2 After both parties rested, they waived the right to file a written brief, and
relied on closing arguments. A bench decision was made which, with the exception of
correction of non-substantive matters is set forth below.

1

The citation was issued alleging a violation of30 CFR § 56.11012, but was subsequently
amended to allege a violation of Section ,56.11027, supra.
2

At the hearing, the parties filed a set of stipulations.
32 FMSHRC Page 1792

I.

Citation No. 6196739

Granite Rock Company ("Granite Rock") owns and operates a quarry known as the AR
Wilson Quarry, an above-ground mining operation. This operation contains an elevated work
platform where a primary rock crusher ("crusher") is located. The work platform is
approximately 32 inches above the platform located below it. The size of the work platform is
approximately twenty-eight by eighteen inches. There was a rail around the perimeter of the
platform except for an eighteen inch gap on the on the west side of the platform.3
The crusher, used to break rocks, is operated approximately twice during the evening
shift. The operator stands in front of two joysticks that are located on the north side of the
platform, and moves the joysticks to operate the crusher.
On February 4, 2008, MSHA inspector Jan Niceswanger inspected the work platform.
Niceswanger indicated that he observed that there was a gap in the railing. According to
Niceswanger, the platform needed to be protected by a rail, as there was an eighteen inch gap.
He indicated that due to the lack of handrails, a person could fall off the elevated platform; He
issued a citation alleging a violation of 30 CFR § 56.11012 which was amended to cite a
violation of 30 CFR § 56.11027. The oonditfon was abated by the placing of a removable chain
which eliminated the eighteen inch gap.

A.

The Company's witnesses

Angel Mejia was the company's lead man operator for a little more than three years~ He
operated the primary crusher approximately twice a night. He indicated that in operating the
crusher, he faces the joysticks which are on the north side of the platform, and there is not any
need for him to look to his left. However, he does glance to the right to check the cone to ensure
that the crusher is working properly. Mejia indicated that he had not been distracted by any
rock. Also, that the area is well lit during his night shift. He said that he is not aware of any
persons slipping on the platform; nor has he slipped on it. He opined that the eighteen inch gap
did not create any type of a hazard.
David Clay, a heavy duty mechanic for the last four years, has been involved in some
operations at the crusher. He indicated that, in his experience, he did not become disoriented by
dust, did not experience any lighting problems, and has not seen frost on the platform. He
indicated specifically that when he has operated the joysticks, there wasn't any need to move to
the left. According to Clay, in operating the joysticks, he kept his feet shoulder length apart, and
right in front of the controls. He also has never experienced any slipping or tripping, and has not
been aware of anyone slipping or tripping on the platform. He opined that the absence of an
eighteen inch gap did not constitute a hazard.

3

The north and south sides of the platform extended for eighteen inches; the east and west
sides extended for twenty-eight inches.
32 FMSHRC Page 1793

Henry Ramirez, the plant manager for the last six years, indicated that in his position he
becomes aware of all the safety incidents. According to Ramirez, there have not been any
tripping; slipping or falling accidents on the platform at issue. He stated that he also is not aware
of any such accidents in his 20 years experience atthe quarry. He opined that the gap did not
constitute a hazard.
B.

Discussion

The secretary has the burden of proof of establishing a violation. Section 56.11027,
supra, provides, a pertinent, that working platforms shall be ''provided with handrails."
The secretary's position is that, in essence, there should have been a handrail all around
the perimeter of the platform. Thus, it is argued .that an eighteen inch gap in the railing
constituted a violation of Section 56.11027, supra. The company argues just the opposite, i.e.,
that there is not anything in the wording of Section 56~ 11027, supra, that requires that the
handrails completely go all around the working station.
I note that the word "handrail" is defined in Webster's Third New International
Dictionary, (2002 ed.), as pertinent, as follows: "a light structure of wood or metal serving as a .
guard at the outer extremity of a deck." Random House Unabridged Dictionary (1998 ed.)
similarly describes a handrail as "a rail serving as a support or guard at the side of a stairway,
platform, a number of other related places." Thus, the common meaning of a handrail relates to
its yg: as a guard at the edge of a platform, which is consistent with the clear purpose of Section
56.11027, i.e., to prevent a fall.

Thus; specific issue is whether the handrail that had an eighteen inch gap, was adequate
to serve as a guard to prevent falls. I take cognizance of Respondent's argument that, in essence,
the Secretary has not met its burden of showing that a reasonable likelihood of a hazard existed. 4 •
However, there is not anything in the clear language of Section 56.11027, supra; which req.uires
the Secretary to prove a likelihood of injwy as part of its burden of establishing. a violation.
Based on the inspector's testimony that I find credible, I conclude that there was a
pos§ibility of a fall because of the eighteen inch gap in the railing. Taking into account the
purpose of Section 56.11027, supra, and the common meaning of the word "handrail", I
conclude t,hat the cited handrail was not adequate. Hence, I find the Respondent violated Section
56.11027 supra. (See, Palmer Coking Coal Co., 26 FMSHRC 504 (June 2004){ALJ)).

4

1 note the inspector's testimony, in essence, that it was ''unlikely'' that this condition
would have resulted in any injuries.
32 FMSHRC Page 1794

C.

Penalty

. I find that the violative. condition was abated in good faith. The inspector indicated the
area was clean, well maintained, and well lit. He Indicated that should there be a fall, it would
result in loss of work days. All this adds up to very low level of gravity.

With regard to negligence, there is not any evidence as to the lerigth of time that the
violative condition existed. There is not any evidence that MSHA had ever communicated to the
Respondent any need for additional compliance with the standard. There is not any evidence of
any history of accidents. I find that there is not sufficient evidence to establish that the
negligence was any more than low.
There was no any evidence adduced relating to the operator's history of violations and
its size. Hence neither of those factors play any part in either raising or lowering a penalty.
The parties stipulated that the imposition of the penalty will not have any effect on the
operators' ability to continue in business.
Weighing all these factors, especially the good faith abatement, and low levels of gravity
and negligence, I conclude that a penalty of $25 is appropriate.

II.

Citation No. 6196742

At the hearing, the parties, in essence, made a motion to approve a settlement of Citation
No. 619674 on the ground that the operator has agreed to pay the full amount of the penalty
assessed by the Secretary ($100). The settlement was approved as follows:
I have reviewed all the documentary evidence in the trial, and the operator's
agreement to pay the full amount is a reasonable resolution of this matter
under the terms of the Act, especially Section 11 O(i) of the Act. I approve it.

It is ordered that within 30 days of this decision, Respondent shall pay a total civil
penalty of$125.

/iJ
l ~eisberger ·
Administrative Law Judge

32 FMSHRC Page 1795

Distribution:
John Pereza, US. Department of Labor, (MSHA), 2060 Peabody Road, Suite 610, Vacaville, CA
95687
Kevin Jeffrey, Esq., Gran,ite Rock, 350 Technology Drive, Watsonville, CA 95077

/cmj

32 FMSHRC Page 1796

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION
. OFFICE OF ADMINISJ'RATIVE LAW JUDGES
601 NEW JERSEY AVENUE, NW, SUITE 9500
WASHINGTON, DC 2000 I

November 22, 2010

CNIL PENALTY PROCEEDING:

SECRETARY OF LABOR,
MlNE SAFETY AND HEALTH
ADMJNISTRATION (MSHA),
Petitioner, .

Docket No. WEVA 2008-1825
A. C. No. 46-08436-150504

v.
Upper Big Branch-South
PERFORMANCE COAL COMPANY
Respondent

..
DECISION

Appearances: Patrick M. Dalin, Esq.:; Linda M. Henry, Esq., U.S. Department of Labor,
Philadelphia, PA on behalf of the Secretary
Carol Ann Maunich, Esq., Dinsmore & Shohl, LLP, Morgantown, West Virginia,
on behalf of Performance Coal Company
Before:

Judge David F. Barbour

This case is before me upon a Petition for Civil Penalty filed by the Secretary of Labor
(Secretary) on behalf of her Mine Safety and Health Administration (MSHA) against
Performance Coal Company (Performance or the company) pursuant to section 105(d) (30
U.S.C. §815(d)),ofthe Federal Mine Safety and Health Act of 1977 (the "Act"). 30 U.S.C. §801,
et seq. The Secretary alleges that in four instances Performance violated mandatory safety
standards for underground coal mines at its Upper Big Branch mine, a bituminous coal mine
located in Raleigh County, West Virginia. In addition to making allegations regarding the
gravity and negligence of each of the violations; the Secretary alleges that each was a significant
and substantial contribution to a mine safety hazard (S&S). The Secretary proposes assessing
Performance a total of$10,260 for.the violations. Performance denies all of the Secretary's
allegations.
Pursuant to an order directing the parties to confer, counsels agreed to settle all issues
relating to three of the four alleged violations. The Secretary then moved for approval of the
partial settlement, and on November 23, 2009, I granted the motion. Performance Coal
Company, Decision Approving Partial Settlement (November 23, 2009). Counsels advised me
they remained irreconcilably at odds over the Secretary's allegations regarding Citation No.
7279729, in which the Secretary alleges the company violated mandatory safety standard 30

32 FMSHRC Page 1797

C.F.R. §74.400, and that a trial would be necessary. 1 As a result, the case was heard in Beckley,
West Virginia.
STIPULATIONS
At the commencement of the hearing the parties stipulated as follows:

1. [C]oal mine inspector, Keith Sigmon ... was acting as a
representative of the Secretary ... when he issued Citation
[No.] 7279729.
2. Citation [No.] 7279729 was properly served ... upon
the agents of [Performance] at the date, time, and place
stated ... on the citation.

3. [A] true copy of Citation [No.] 7279729 was served upon
. ~ . [Performance] or its agents as required by the Mine
Act.
.
4. [T]he imposition of the proposed civil penalty of $4,329
will have no effect upon ... [Performance's] ability to·
remain in business.
5. [T]he appropriateness of the penalty, if any, to the size
of ... [Performance's] business should be based on the
fact that 2007 [Performance] ... mined 576,672 tons
of coal from the Upper Big Branch-South [m]ine and
that in 2007 Massey Energy Company, the controller
· of ... [the inine], mined in excess often million tons
of coal.

in

6. [Performance] was assessed the total of one hundred
forty nine citations based on two hundred twenty two
inspection days in the fifteen month period preceding
1

Section 75.400 states:
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 electrical equipment
therein.
32 FMSHRC Page 1798

the issuance ofCitation [No.] 7279729.
7. [A]n authentic copy of ... [Citation No. 7279729] may
be admitted into evidence for the purpose of
establishing its issuance.
8. [On the date Citation No. 7279729 was issued] the
· power center at issue in this case ... was in an area
where miners were normally required to work or
travel.
9. [T]he ... power center is electrical equipment as
described in. ; . [section]75.400.

THE TESTIMONY
THE-SECRETARY'S WITNESSES
MSHA Inspector Keith Sigmon issued Citation No. 7279729. In addition to being an
inspector, Sigmon also is an agency ventilation specialist. At the.time of the hearing Sigmon had
been with MSHA for three and one half years. Before that, he worked for Consolidation Coal
Company, during which he held a wide range of positions, "[ e]verything from utility work to
supervision." Tr. 14. Once with MSHA, Sigmon conducted inspections at many different mines.
Sigmon was trained to recognize combustible materials such as coal dust, float coal- dust and
float coal dust mixtures. Tr. 15-16.
Prior to February 11, 2008, Sigmon had inspected the Upper Big Branch-South mine "on
numerous occasions". Tr. 16. On February 11, he arrived at the mine at 6:00 a.m. Tr. 19.
Sigmon, accompanied by mine foreman William "Bill" Harless, went underground and he and
Harless traveled to the one north main conveyor belt. Tr. 18-19. A production shift was in
progress. Tr. 18. Sigmon inspected the belt. He also inspected the cross cut in which the belt's
high voltage power center was located. 2 The power center supplied power to the one north main
conveyor belt's drive and hydraulic take up unit. Tr. 27. The power center was located at the
point where the one north main conveyor belt discharged onto the one south main conveyor belt.;
Tr. 20, 27. (The discharge point is also known as the transfer point. Id.). At the transfer point,
the coal dropped four or five feet from the north to the south belt. Tr. 28. The power center was
approximately twenty feet from the transfer point. Id.
Sigmon testified that "float coal dust ... had accumulated in the cross cut where the
power center was located and [that the] float coal dust [was] on top of the power center as well as

2

12,470 volts of electricity ran to the power center. Tr. 18.
32 FMSHRC Page 1799

inside the power center on the electrical components, the leads, insulators and exposed leads."3
Tr. 19. There also was coal dust and float coal dust outside the power center on the floor, ribs
and roof of the cross cut. Tr. 21. The float coal dust ranged from "paper thin" to an eighth of an
i11.Ch deep. Id., Tr. 84. Around the power center's cat heads the float coal dust was a little deeper
than one eighth of an inch. Tr. 21.
Sigmon acknowledged that the float coal dust on the floor and ribs was deposited on top
of rock dust. Despite this, the float coaldust was black in,color. The float coal dust in and on
the power center also was black. Tr. 22-23. The color signified to Sigmon that the coal dust had
not mixed with the rock dust. Id., Tr. 194.
In Sigmon' s opinion, the float coal dust was dangerous. He testified that, ''the blacker the
coal dust ... the more combustible it would be." Tr. 22. Sigmon also explained that the power
center had a "sight glass," that is, a plexiglass window that allowed a person to look into the
power center and see the busbars of the high voltage circuits. 4 Looking through the window he
could see that the coal dust "covered the electrical components, the insulators, [and] the bare
wires." Tr. 24. He was certain that much of what he saw was float coal dust. He testified that
the dust, "[W]as a fine powder." Tr. 24. He stated, "I took my fingers across the power center
and [the coal dust] went up in suspension. It was dry. It wasn't ... stick[ing] together. It was a
very dry powder." Id. No fire suppression system was installed over the power center or in the
crosscut. Tr. 32.

Sigmon believed the float coal dust accumulated because a valve that controlled the.
water sprays at the discharge point of the subject conveyor belt was broken and coal dust was
not being suppressed. 5 Tr. 26. Sigmon stated that even with the sprays working, during the
transfer of the coal from one belt to another, the vibration of the belts and the impact of the
falling coal "pulverized" the coal, which became "fine and ... powdery and [began] to be

3

It was the company's safety director, Michael Vaught, who explained how the coal dust
could enter the power center. Air to ventilate the center came into the box enclosing the center·
through louvered vents on the box's lower sides. A "chimney effect" pulled the air through the
lower vents and out through· similar vents near the top ofthe·box. Coal dust traveled on the air
into and through the box, and some of the coal dust was deposited on the interior surfaces of the
power center. According to Vaught, some rock dust also was deposited inside the box in this
way. Tr. 150-151, 166.
4

A busbar is defined as a "heavy conductor, often made of copper in the shape of a bar,
used to collect, carry and distribute powerful electrical currents."
Hiip://dictionmy. reference.comlbrowselbusbar. ·
5

Sigmon and Harless found the broken valve after Sigmon inspected to the power center
and cross cut. Id.

32 FMSHRC Page 1800

suspended in the air and the air current then [took] it to different areas of the mine and [laid] it
down." Tr. 2 7. With the sprays not working, the amount of coal dust generated at the transfer
point increased significantly. According to Sigmon, the float coal dust entered the power center
through the center's ventilation vents. Once inside the power center, it settled on the center's
interior components. Tr. 27-28, 51-52.
Sigmon testified that in the case of the subject power center, there was a stopping which.
should have prevented much dust-laden air from reaching the center. However, there were holes
in the stopping and even though there were pieces of curtain placed over ·the stopping, the air still
traveled through the stopping and the coal dust accumulated at, on and in the power center. Tr.
37. None the less, he recognized the curtain somewhat limited the amount of dust that reached
the center. Tr. 75.
Sigmon reviewed the pre-shift report for the belt conveyors. Tr. 38; Gov't Exh. 2. The
shift before his inspection was the February 11 . owl shift. Tr. 39. He noticed that the pre-shift
examiner indicated. that both the number one south mains belt and the number one north mains
belt needed dusting "from head to tail." Id., Gov't Exh. 2 at 3. This indicated to Sigmon that the
area had "become settled with float coal dust and n:eed[ed to be] rock dusted." Tr. 39-40. This
was consistent with what he later found. Tr. 41.
Sigmon thought that the conditions at the·power center reflected conditions on both belts.
The air flowing from the one north main belt carried the float coal dust around and into the
power center. Tr. 43. The pre-shift examiner reported by telephone at 6:30 a.m. Gov't Exh. 2 at
3. Sigmon was at the power center at 11 :20 a .. m., approximatelyS hours later. Tr. 43. Based on
his experience, Sigmon believed that the accumulations at the power center existed between ''two
or three shifts ... at least." Tr. 44. Five hours was not enough time to accumulate that amount of
float coal dust that he saw. Tr. 46. He also stated that at 11 :20 a.m. there was not a great amount
of float coal dust suspended in the air.. He implied from all ofthis that it took up to three days for
the float coal dust to accumulate in the amounts he observed. Id.
As a result of what he saw in and around the power center, Sigmon issued Citation No.
7279729 to the company. 6 Tr. 47; Gov't Exh. 3. The citation charges that the accumulations of
float coal dust violated section 75.400. Tr. 47. In addition, Sigmon found that the violation of
section 75.400 was reasonably likely to result in a fire or ignition. Gov't Exh. 3. He explained:
because ofthe float coal dust being inside the
power center where there[were] exposed electrical
connections. You [had] a transformer that
produce[d] heat inside the power .center. You [had]
relays and contacts that [were] being made.

6

Sigmon served the citation on Rick Hodge, the mine superintendent. According to
Sigmon, neither Hodge nor any one else disputed the citation .. Tr. 54.
32 FMSHRC Page 1801 .

Also, ... there [would be]arcingthat occurs when
those [electrical] relays [were] . •.. made ...
[a]nd ... heat[.]Tr. 48.
He testified that the circuit breakers arced each time they were set (turned off and turned
on), that they were set on the maintenance shift in order to allow work to be performed on the
belts and that they were set each time there was an electrical overload. Tr. 48. He estimated the
breakers were turned off and on at least three times a shift .. Tr~ 49. When they were set, no ·
defects were required inthe power center for arcing to occur. He believed that the arcing "would
propagate a fire or ignition of the float coal dust and ... [if] the float coal dust was in suspension
... that·could cause an explosion.'' Tr. 51. If an explosion occurred, Sigmon believed it
reasonably likely that the explosion would spread via suspended dust to the north.and south main
conveyor belts where other coal dust had accumulated. Tr. 52.

In addition, there were exposed and energized electrical wires in the power center and
Sigmon could plainly see through the sight glass that coal dust had accumulated on the wires.
Tr. 49-50. Further, Sigmon believed it was possible that the circuit breakers themselves could
fail, which would result in "[al lot of charring, burning, [and] melting of ... metal." Id. In sum,
Sigmon believed a fire or explosion was reasonably likely to occur because of "the electrical
components being exposed, the heat of the ... transformer, the breaker arcing, and the float coal
dust being present in the power center and outside." Tr. 5 L
Sigmon testified that if an ignition and explosion occurred, numerous miners could be
affected: the fire boss could be in the area conducting an inspection, maintenance shift personnel
could be in the area servicing the belts, in addition, six miners were observed by Sigmon
cleaning the south main belt on the day he issued the citation. Tr. 52-53.
He also found that the company was moderately negligent. He testified the company
should have known float coal dust had accumulated' at the power center and in the crosscut and ·
should have cleaned the areas. According to Sigmon, Earl Halls, the midnight shift foreman
described the power center as a "problem area" because float coal dust tended to accumulate
there. Tr. 56. He also told Sigmon that he•had to frequently clean the area. Tr. 82.
On cross examination Sigmon agreed that the violation concerned only float coal dust,
not coal fines and not loose coal. Although he was concerned about the possibility of a fire,
Sigmon did not know the flash point of float coal dust. Tr. 60. He agreed that for float coal dust
to catch on fire, a specific concentration of dust had to be present, but he did not know what that
concentration was. 7 Tr. 63-64. Further, he did not know if the power center's transformer could
"rise to the level of the heat flash point necessary to catch any of [the] float coal dust" on fire. Tr.
66-67. There was no visual indication ofany improper arcing or sparking when he was at the

7

None the less he stated, "The more confined float coal dust is, the less you have to have
and the greater [is the] likelihood of [an] explosion." Tr. 72.
32 FMSHRC Page 1802

power center, and he observed no defective components atthe power station. Tr. 71. Further, fire
extinguishers and rock dust were in the area. Tr. 65.

Larry Cook is an electrical engineer.and an MSHA employee. He supervises a group of
electrical specialists who conduct electrical inspections and investigate mine accidents. Tr. 110.
Cook has been an MSHA supervisor for the past ten years. Cook~ stated that he is familiar with
underground power centers supplying power to belt drives. Tr. 112. Inside such power centers
are sources capable of igniting accumulated coal dust and float coal dust. Circuit breakers arc
when they open and close fu fact, each time a circuit break.er trips, an arc occurs. Tr. 113. In
addition, bare, high voltage connections are common throughout a power center. Tr. 114.
Cook also stated that if a fire for some reason began inside a power center, the flame
could travel outside the center through the center's side vents. Tr. 114. He had seen this, and he
knew of instances where circuit breakers inside a power center had arced and caused a fire. Tr.
115-116, see also Tr. 130. However, Cook agreed that he had no knowledge as to the particular
conditions of the power center in question, since he never saw the subject power center.

THE COMPANY'S WITNESS
In February, 2008, Michael Vaught was the Safety Director of Performance. Prior to
becoming the safety director, he had been involved in mining for approximately nine years, seven
of them in the coal industry. Vaught was not an electrician, but as the safety director, he was
familiar with the safety hazards associated with power centers and coal dust.
Tr. 136-138, 190.
In Vaught' s opinion, the concentration of coal dust inside and outside the cited power
center was not high enough to pose an explosion hazard. Tr. 139. Vaught explained that
sometimes when there is dust in the air, it is not all coal dust. Rock dust often mixes with the
coal dust, and rock dust is not combustible. Id., Tr. 141. The company tried to ensure that all
areas of the mine were rock dusted at least every five days. Tr. 142. Vaught stated that
management instructed "electricians and fire bosses and people to keep an eye out for float coal
dust ... in order to control ... accumulations." Tr. 142-143.

Vaught was not present when Inspector Sigmon found the cited conditions, but after the
citation was issued, he looked at the area, including the power center. He forthrightly stated, "I
did observe float coal dust on the power center, and I did observe float coal dust in the area. It
was ... paper thin[.]" Tr. 144-145. However, Vaught did not believe there was enough coal dust
present to create a fire or explosion hazard. 8 Tr. 149.

8

Vaught stated,
In my experience as a coal miner when I look at dust
that's as thin as a sheet of paper laying on rock dusted
32 FMSHRC Page I 803

In addition, he did not believe the power center constituted an ignition hazard. He
maintained:

If everything .... is working properly ... the settings
are set properly, everything is insulated and hooked
up the way it should, ·you shouldn't have any major
arcs or sparks or problems[.]
·Tr. 161.
Even if there was a fire or an explosion, Vaught believed that miners who worked out by
the power center would "get outside pretty quickly." Tr. 177. Moreover, they had self contained
selfrescue devices. Tr. 177-178.
Finally, if there was a violation of section 75.400, it was not due to the company's
moderate negligence, because the fire boss:
indicated that we did have some float coal dust in and
around the belt head area, which ... includes the
power center area. They did report it in the preshift book.
They did report it to mine management and we were
making arrangements to have the area cleaned and dusted.
Tr. 178-179.

THE ISSUES
The issues are whether section 74.400 was violated and, if so, whether the violation was
S&S. If a violation is found, also at issue are the gravity of the violation, the negligence ofthe·
company and the amount of the civil penalty that must be assessed talcing into account the
statutory civil penalty criteria.

THE VIOLATION
For almost as long as the Commission has existed, it has been accepted that section
75.400 "is violated when an accumulation ofcombustible materials exists" (Old Ben Coal
Company, 1FMSHRC1954, 1958 (December 1979)) and that a violative ·~accumulation" exists

areas or in and around a power center that doesn't
have any problems, that's operating normally, there's no
extremely high temperatures, then I'm not ... alarmed
to take immediate action to correct or terminate
this condition. I am going to make [a] note ... that the
area needs clean[ ing], [and] needs rock dust[ing~]
Tr. ·185-186.

32 FMSHRC Page 1804

"where the quantity of combustible materials is such that, in the judgement of the [inspector,] it
likely could cause a fire or explosion if an ignition source were present." Old Ben Coal
Company, 2 FMSHRC 2806, 2808(October1980). Since some combustible material is
inevitable in mining operations, the inspector's judgement as to what constitutes a mass of
combustible materials which could cause or propagate a fire or explosion is subject to challenge
before.a Commission administrative law judge (Old Ben, 2 FMSHRC at 2808, n.7), and the
judge is required to review the inspector's judgement by applying the ·objective test of whether a
reasonably prudent person, familiar with the mining industry and the protective purposes of the
standard, would have recognized the hazardous condition that the regulation seeks to prevent.
UP&L, 12 FMSHRC 965, 968(May1990); aff'd 591F.2d292 (10th Circ. 1991).
In this case,.! find that the citation reflects the reasonable exercise of Inspector Sigmon's
judgement. ·He testified as to the existence of the float coal dust both on and inside the power
center, on the catheads at the power center, and in the crosscut. Tr. 19-21, 51, 84. He testified
that the float coal dust's depth ranged from "paper thin" to one eighth inch or more. Tr. 21. He
described the dust as black, which signified to him that it had not mixed with rock dust Tr. 2223. At the power center he touched the float coal dust and easily put it into suspension. As a
result he believably described the float coal dust as dry. Tr. 24.
Safety Director Vaught, who was not with Sigmon when the inspector observed the
accumulation, saw the float coal dust later and did not disagree that it was present when Sigmon
found it. Rather, he thought that the coal dust did not exist in a concentration sufficient to create
a fire or explosion hazard. Tr. 149. Vaught also thought that a lot of the float coal dust was
mixed with rock dust He described the dust as charcoal colored, a lighter color than Sigmon
described. Tr. 171 .. However, Vaught's testimony was tentative. It lacked the specificity and
certitude that characterized Sigmon's testimony, and I therefore fully credit the inspector's
description of the existence, quantity, and quality of the float coal dust that he observed.
Moreover, I fully credit Sigmon's belief that the float coal dust was dangerous and posed·
a fire and/or explosion·hazard. Black, dry, float coal dust not only can burn, it also can trigger a
self propagating explosion when an ignition puts it into suspension. Sigmon was trained to
recognize float coal dust and to prevent such a hazard from occurring, and I fully credit his belief
that if an arc or spark occurred inside the box, the accumulated dust could catch on fire and/or
explode.
The Commission has repeatedly held that violations of section 75.400 can be established
by an inspector's observations, and here, where I credit inspector Sigmon's description of the
existence, amount, quantity and quality of the float coal dust and the danger it posed, I find that
the company violated the standard. See e.g. Harlan Cumberland Coal Co., 20 FMSHRC 1275,
1290 (December.1998).

S&S AND GRAVITY

32 FMSHRC Page 1805

Inspector. Sigmon found that the violation was S&S. An S&S violation is described in
section 104(d)(l) of the Act, 30 U.S.C. §814(d)(l), as a violation of"such nature as could
significantly and substantially contribute to the cause and effect of a coal ... mine safety or
health hazard." A violation is properly designed as S&S "if, based upon the particular facts
surrounding that violation, there exists a reasonably ijkelihood that the hazard contributed: to will
result in an injury or illness ofa reasonably serious nature." Cement Division, National Gypsum
Co. 3 FMSHRC 822, 825 (April 1981 ).
In Mathies Coal Co., 6 FMSHRC 1 (January 1984), the Commission enumerated four
criteria that must be met for a violation to be S&S. See also Buck Creek Coal, Inc. v. FMSHRC,
52 F.3d 133, 135 ('7111 Cir. 1995); Austin Power, Inc. v. Secretary, 861 F. 2d 99, 103-104 (5th Cir.
1988), aff'g Austin Power; Inc., 9 FMSHRC 2015, 2012 (December 1987) (approving Mathies
criteria). Evaluation of the criteria is made in terms of"continued normal mining operations."
U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). The question of whether a violation
is S&S must be based on the particular facts surrounding the violation. Texasgulf, Inc. lO
FMSHRC 498 .(April 1988); Youghiogheny& Ohio Coal Co., 9 FMSHRC 2007
(December 1987).
ln order to prove a violation is S&S, the Secretary must establish: (1) a violation of a
safety standard; (2) a distinct safety hazard contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood
that the injury will be of a reasonably serious nature. Mathies, 6 FMSHRC at J-4.

I have found a violation of the cited safety standard. I further find that the accumulated ,
float coal dust contributed to a distinct safety hazard, i.e., that the accumulation served as the
source of a fire and/or the source and propagator of an explosion. I have credited the testimony
of Inspector Sigmon regarding the presence, quantity and quality of the float coal dust. In so
doing I have rejected Safety Director Vaught' s suggestions that the coal dust may have been
sufficiently inerted by rock dust to make the accumulation nonhazardous. It should go without
saying that float coal dust can bum and, worse, can explode and propagate an explosion. Further,
the inspector, a person who had been trained to recognize combustible materials (Tr. 15-16),
credibly believed the float coal dust he saw could bum and/or explode.
The question then is whether there was a "confluence of factors" that made an injury
producing fire and/or explosion reasonably likely, and I conclude that there was. Utah Power &
Light Col, 12 FMSHRC 965, 970-97l(May 1990);. Texasgulf, 10 FMSHRC at 500-503; Enlow
Fork Mining Co., 19 FMSHRC 5, 9(January1997). I have accepted Sigmon's testimony that the
quantity and quality of the float coal dust was such that it could catch fire or explode and/or
propagate an explosion. Further, Sigmon credibly described ignition sources that were present
and that could have caused just such a fire and/or explosion. In fact, in this instance it is enough
that ignitable float coal dust was present inside the confines of the power center where, as
Sigmon explained, there were "exposed electrical connections" and where "arcing occur[ed]
when ... [electrical] relays [were] ... made" and when breakers were reset approximately three

32 FMSHRC Page 1806

tim~s each shift. Tr. 48, 49; see also Tr. 113-114 (testimony ofMSHA superv~sory engineer,

Larry Cook). With 12,470 volts. of electricity being delivered to the power center (Tr. 102-103),
Vaught' s opinion that even if everything in the power center was working properly, there would
be no "major" arcs or.sparks was inapposite to the issue. Tr. 161. I accept Cook's knowledgeable
statement that each time circuit breaker tripped, an arc resulted. {Tr. 113), and I conclude that
as nonnalmining continued the presence of a triggering arc or spark, whether "lllajor" or not,
inside the power center and immediately adjacent to the combustible accumulation,s of float coal
dust made it reasonably likely that a fire and/or explosion would occur.
·
·

a

Moreover, it is clear from the record that miners worked outby the power center and that
occasionally miners traveled into the crosscut where the power center was located. Stip. 8.
Miners at the power center and those outby were subject to burn injuries, smoke inhalation
and/or concussive type injuries, any of which were reasonably likely to be serious, even fatal.
The S&S nature of a violation and the gravity of a violation are not synonymous. The
Commission has pointed out that the "focus of the seriousness of the violation is not necessarily
on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry, but rather
on the effect of the hazard ifit occurs." Consolidation Coal Co., 18 FMSRHC 1541, 1550
(September 1996). Here, the "effect of the hazard" ifit occurred would have been gave indeed,
up to and including a fatality or fatalities. This was a serious violation.

NEGLIGENCE
Negligence is the failure to meet the standard of care required by the circumstances, and I
agree with Inspector Sigmon that the company was moderately negligent. Within the context of
this case, the most reasonable interpretation of Sigmon' s testimony that the company placed
curtains across the holes in the stopping near the power center is that the company knew there
was a problem with coal dust traveling to the power center and that it was trying to alleviate the
problem. Tr. 75. The company's knowledge that float coal dust was a problem at the power
center and crosscut was confirmed by Earl Halls who he told Sigmon about the problem and
about the frequent need to clean the area. Tr. 56, 82. Moreover, as Sigmon also testified, the
preshift reports indicated that for the three shifts prior to his inspection the one north main belt
needed to be extensively rock dusted. This indicated to Sigmon that coal dust had accumulated
on and around the belt. Tr. 44-46, As Sigmon also noted, the mine's ventilation system carried
float coal dust from the belt into the crosscut where the power center was located. Thus,
Sigmon's belief that the float coal dust he saw in the crosscut and in and on the power center
took up to three days to accumulate was perfectly consistent with the preshift reports for the one
main north belt and with his visual observations during the inspection. Tr. 54.
I do not doubt Vaught' s testimony that the company was trying to have all areas of the
mine rock dusted at least every five days. Tr. 147. Nor do I doubt that some rock dust had been
applied to the crosscut where the power center was located. However, I do not find the fact that

32 FMSHRC Page 1807

the preshift examiner for the shift on which the condition was observed found that the crosscut
was "okay'' to be indicative of a lack of negligence ori the company's part. See Tr. 171. Rather,
given the amount of float coal dust found by Sigmon, I conclude the preshift examiner
misreported the condition of the crosscut and the power center. Knowing that the cited area wa.s
a ''problem/' the company should have taken more aggressive steps to make sure that it wa5 kept
clean. It did not do so. As a result, float coal dust accumulated in violation of the standard.
Because the company did not exhibit the care required by the circumstances, I affirm Inspector
Sigmon's negligence finding.
CIVIL PENALTY ASSESSMENT
I have foilnd that the violation was serious and was the result of the company's moderate
negligence. The parties have stipulated that the proposed penalty of $4,329 will not effect the
company's ability to continue in business. Stip. 4. Further, they have stipulated that mine and its
controlling entity are large in size, as is the mine's history of prior violations. Stips. 5 and 6. I
find further that the company exhibited good faith in abating the violation. Given these criteria, I
condude the Secretary's proposal is appropriate, and I assess a civil penalty of $4,329. ·
ORDER
Within 40 days of the date of this decision, Performance Coal Co. IS ORDERED to pay
a civil penalty fo $4,329 for the violation of section 75.400 set forth in Citation No. 7279729.
Upon payment of the penalty, this proceeding IS DISMISSED.

_])"'4(/£ u_. L --

David~~~
.
..

Administrative I;aw JuClge
Distribution: (Certified Mail)

Patrick M. Dalin, Esq.; Linda M. Henry, Esq.; U.S. Department of Labor, 170 S. Independence
Mall West, Suite 630E, The Curtis Center, Philadelphia, PA 19160
Carol Marunich, Esq., Dinsmore & Shohl, LLP, 215 Don Knotts Boulevard, Suite 310,
Morgantown, WV 26501

Isa
32 FMSHRC Page 1808

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

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

December 2, 2010
FREEDOM ENERGY MINING CO.,
Petitioner

CONTEST PROCEEDING
Docket No. KENT 2007-433-R
Order No. 6643527;07/31/2007

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

#1 Mine
Mine ID 15-07082 ·

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

. CIVIL PENALTY PROCEEDING

FREEDOM ENERGY MINING CO.,
Respondent

#1 Mine

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

. CIVIL PENALTY PROCEEDING

Docket No. KENT 2008-776
A.C. No. 15-07082-142973 -01

Docket No; KENT 2008-1503
A.C. No. 15-07082-157603A (10633A)

v.
MYRON DESKINS, employed by
FREEDOM ENERGY MINING CO.,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION,. (MSHA),
Petitioner .

#1 Mine

CNIL PENALTY PROCEEDING

Docket No. KENT 2008'."1506
A.C. No. 15-07082-157602A (10634A)

v.
JERRY VARNEY, employed by
FREEDOM ENERGY MINlNG CO.,
Respondent

#1 Mine

32 FMSHRC Page 1809

DECISION
Appearances: Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, on behalf of the Secretary of Labor;
Carol Ann Marunich, Esq., Dinsmore & Shohl, LLP, Morgantown, West Virginia,
for Respondents
Before:

Judge Zielinski

These cases are before me on a Notice of Contest and Petitions for Assessment of Civil
Penalties filed pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 815, 820. The petition in Docket No. KENT 2008-776 alleges that Freedom
Energy Mining Company is liable for 20 violations of the Secretary's Mandatory Safety
Standards for Underground Coal Mines 1 and proposes the imposition of civil penalties in the
amount of$52,116.00. The Secretary also filed petitions, pursuant to section 1 lO(c) of the Act,
alleging that two employees·ofFreedom Energy are liable in their individual capacities for one
violation, and seeks imposition of a civil penalty in the amount of $1,000.00 against each of the
individual respondents. A motion seeking approval of partial settlement of 12 violations as to
Freedom Energy was filed prior to the hearing. At the hearing, which was held in Pikeville,
Kentucky, an oral motion was made seeking approval of settlement of an additional four
violations. The proposed settlements will be approved. Remaining at issue as to Freedom
Energy are four alleged violations, for which the Secretary has proposed civil penalties in the
total amount of$29,809.00. The violations alleged as to the individual Respondents also remain
at issue. The parties filed briefs following receipt of the hearing transcript. 2 For the reasons set
forth below, I find that Freedom Energy committed three of the violations, and impose civil
penalties in the amount of $3,850.00. I also find that the Secretary failed to prove the allegations
against the individual Respondents, Deskins and Varney, by a preponderance of the evidence.
That citatioI,J. is vacated as to all parties and the petitions against the individual Respondents are
dismissed.
Findings of Fact - C~nclusions of Law
Freedom Energy operates the subject underground coal mine, the #1 Mine, located in
Pike County, Kentucky. Inspectors from the Secretary's Mine Safety and Health Administration
("MSHA"), inspected the mine several times from July 2007 through January 2008. The
citations and orders at issue in these cases were issued in the course of those inspections.
Freedom Energy and the individual Respondents timely contested the alleged violations and
assessed civil penalties.

I

30 C.F.R. Part 75.

2

The transcript of the first day of the hearing is referred to as "Tr." The transcript of the
second day of the hearing is referred to as "Trll."
32 FMSHRC Page 1810

Citation No. 6643527
Citation No. 6643527 was issued by MSHA inspector Darrell Hurley on July 31, 2007,
and alleges a violation of 30 C.F.R. § 75.202(b), which provides that ''No person shall work or
travel under unsupported roof .... " The violation was described in the "Condition and Practice"
section of the Citation as follows:
Observed the rail-mounted Fletcher Roof Bolter SIN 75170 being used to install
primary support in a fall area. Six rows of four-foot resin rods had been installed
and the Fletcher Roof Bolter was not equipped with an ATRS nor were any safety
jacks being used or present at the work site. The distance the roof bolts had been
installed measured 17'6". Two foremen were engaged in aggravated conduct
constituting more than ordinary negligence because one was observed operating
the roof bolter and one was standing beside the machine observing this action. A
clean-up plan was posted at the three sides of the fall area and item 2 and item 10
directly stated that under no circumstances will any one be allowed to travel out
past roof support and the bolter will be equipped with an A TRS or safety roof
jacks. This violation is an unwarrantable failure to comply with a mandatory
standard.
Ex. G-2.
Hurley determined that it was reasonably likely that the violation would result in a
permanently disabling injury, that the violation was significant and substantial ("S&S"), that one
person was affected, and that the operator's negligence was high. The citation was issued
pursuant to section I 04(d)(l) of the Act. A specially assessed civil penalty in the amount of
$18,700.00 was proposed for this violation.
The Violation
Freedom was considering a change to its roof control plan in its No. l working section,
and had requested that MSHA evaluate the proposal.3 Hurley, an MSHA roof control specialist,
traveled to the mine in response to Freedom's request. He was accompanied by Arnold Fletcher,
an MSHA trainee. Worley Taylor, a roof control specialist for the Kentucky Office of Mine
Safety and Licensing, was also present to evaluate the roof control plan proposal, and traveled
with Hurley and Fletcher. On the previous day, July 30, there had been a small roof fall on the
track entry. The fall resulted from a shift in rock strata that had sheered off roof bolts ranging
from several inches to two or three feet above the mine roof. It was below the anchorage zone of

3

Operators are required to develop and follow a roof control plan approved by the
MSHA district manager. 30 C.F.R. § 75.220(a).
32 FMSHRC Page 1811

the six-foot-long roof bolts and was not required to be reported as an accident.4
The inspectors arrived at the mine and went to the office where they met with Eric
Coleman, the mine superintendent at the time, who told them about the fall. They advised
Coleman that they wanted to see the area of the fall, and Coleman replied that they would .be
traveling right by it because it was on the track entry that was the route to the section. Coleman
called underground to Rodney Chapman, a mine foreman, and instructed him to bring a transport
vehicle to the elevator. The inspection party, including Coleman, went underground about
9:00 a.m., and traveled to the working section on tracked vehicles. When theyreached the area
of the fall, they had to stop. and proceed on foot. Escapeways and lifelines had been re-routed
around the fall, the area had been dangered off, and copies of Freedom's clean-up plan had been
posted at all approaches to the area. That plan specified that, when re-bolting a fall, a bolter with
an ATRS be used, or that roof jacks be employed if the ATRS was not available or would not
reach the roof. 5 Ex. G-3.
At the fall, the inspectors observed a track~mounted Fletcher roof bolter attached to a
locomotive. The drill head was located at the end of a boom mounted on the inby end of the
bolter. The controls were located on the.rightside of the boom, as viewed from the trackmounted base. There was a four-foot-square canopy above the controls, made of approximately
one-half inch thick steel plate. As the inspectors walked forward, past the locomotive, they
observed Myron Deskins, a mine foreman, at the bolter's controls in the process ofinstalling a
roof bolt. Jeny Varney, another foreman, was standing to the right of the bolter, observing
Deskins. The·bolter.did not have an ATRS and there were no jacks in the area.
Deskins was approximately half-way through the process of installing the bolt. The
inspection party watched him finish.for about two minutes, by which time Hurley ~'figured out
what was happening." Tr. 41. Six rows of bolts had been fostalled in the fall area, and about two
more rows of bolts needed to be installed to support the roof up to the inby edge of the fall. 6
Hurley and the other inspectors believed that Desltjns and Varney had installed all of the bolts in
the fall area without using jacks. Tr. 51-54, 120-21; Ex. G-2, R-14, R-15. As Hurley explained,
"if you see a guy bolting and you walk up and they've been there all morning, you just make that
assumption." Tr. 51. They believed that Deskins was continuing to bolt in the fall and, as such,

An unplanned roof fall that is not "at or above the anchorage zone" is not ~ "accident"
required to be reported under the Secretary's regulations. 30 C.F.R. §§ 50.2(h)(8), 50.10.
4

An A TRS is an automated temporary roof support system, ~ssemia11y, hydraulic jacks
that apply pressure against the mine roof while bolts, permanent roof support, are being installed.
5

6

There is conflicting evidence on the number of bolts that had been installed in the fall.
Hurley testified that it was 27-29, and his notes reflect that it was 27. Tr. 32; Ex R-14. Fletcher
testified that it was 20-24, and his notes reflect 24. Tr. 112; Ex. R-15. Taylor testified that it was
23. Tr. 85.
.
32 FMSHRC Page 1812

that he was under unsupported roof.7 Tr. 24, 88. When Deskins was finished with the bolt,
Hurley called Deskins and V amey over and asked where the jacks were. No one responded,
except Varney, who said he did not believe that jacks were needed. Hurley stated that Deskins
and Vamey should "know better" than to do what they were doing. Tr. 263. Coleman told the
men to stay quiet until he could figure out what was going on. Tr. 56, 167. He believed that
Hurley was accusing them of bolting the fall without jacks, and was concerned, based upon prior
experience, that any statements made might be taken out of context and used against the ·
company. Tr. 167-69. Varney and Deskins followed Coleman's lead, and did not discuss the
situation with the inspectors. Tr. 55, 115. Deskins explained that he was "bombarded" with
accusatory questions, didn't see that he had done anything wrong, and felt that the situation
"already went sour in my eyes." Tr. 263. He did not speak, in part, because he was upset with
the whole situation." Tr. 264.
Once outside Coleman was informed that a citation was being issued pursuant to section
I 04(d)(l) of the Act for bolting the fall without jacks, which would have been a violation of
Freedom's roof control plan. Tr. 170. The citation, as issued, specified a violation of a different
standard, traveling under unsupported roof. Fletcher's notes indicate that Freedomwas informed
that a section 104(d)(l) citation would be issued for not followirig the roof control plan and
allowing miners to work under unsupported roof. Ex. R-15.
The parties' respective versions of the facts are in irreconcilable conflict. Respondents
contend that V amey and Deskins had not installed any of the bolts in the fall,· that Deskins was
not bolting in the· fall when the inspectors arrived, and that he was not under unsupported roof.
Deskins noticed a small area where material had separated from the plate on a bolt near the right
rib that was adjacent to, but not in, the fall. He decided to spot a bolt in it while he and Vamey
waited for the inspectors, and was in the process of installing that bolt when the inspectors
arrived on the scene.
Coleman testified that, on July 30, the day of the fall, he secured jacks and the Fletcher
roof bolter from another facility, and assigned John Ball, a second shift foreman, to begin the
process of cleaning up and securing the roof in the area. Tr. 158-59. Ball testified that he and
another miner installed cable bolts in the track entry leading up to the fall, and installed resingrouted roof bolts inthe area of the fall. Tr. 135-36. When working under the now-unsupported
roof, they set jacks to provide temporary roof support, and used the track-mounted roof bolter to
install a row ofbolts. Tr. 136. They backed the locomotive and bolter out of the area to a spur
off the main track, brought in a scoop to clean the newly re-bolted area, brought the bolter back
in, re-set the jacks, and repeated the process. Tr. 135-36. They worked 16 hours and installed
about 27 bolts in the fall area, over the next two shifts. A small area on the left inby comer of the
fall remained to be bolted. Tr. 137-38. That area of the track entry \Vas very confined and was

7

Taylor's testimony was couched in terms of his assumption that the foremen had
installed the other bolts and, because Deskins was bolting in the fall, "he would have to be inby
the last row of permanent roof support." Tr. 92.
32 FMSHRC Page 1813

crowded with water lines. In order to facilitate cleaning, they removed everything they didn't
need from the area, including the jacks. Tr. 139-40. The jacks were placed on a mantrip, which
was backed out to allow the locomotive and bolter to be removed. Coleman thought that the
third shift miners took the mantrip, with the jacks on it, to the elevator on their way out of the
mine, because the jacks were found near the elevator. Tr. 182.
When V amey reported for work on the morning of July 31, Coleman told him of the fall,
that Ball was working on it, and asked him to see if anything needed to be done. Tr. 199.
Vamey and Chapman went underground about 7:00 a.m., and proceeded to the area of the fall.
Ball was preparing to clean a newly bolted area so that the remainder of the fall could be bolted.
Tr. 109. Varney brought the scoop in, cleaned the area, which took about an hour, and then
backed the scoop out and brought the locomotive and roof bolter fon'Vard. Tr. 199, 208-10.
Deskins knew of the fall and went to the area to see if Varney needed any help. Tr. 249. He
arrived-about the same time that Coleman called Chapman to get a ride for the inspection party.
Tr. 210.
Deskins testified that he noticed a small defect next to an existing bolt near the right rib
that was not in the area that fell. He decided to put a bolt in it to make it safer while he and
Vamey waited for the inspectors. Tr. 211,-255-56. V amey did not object. Deskins went to the
controls under the canopy on the right side of the roof bolter's boom and began to install the bolt.
There was permanently supported roof to his rear, on both sides and in front of him. Tr. 211-13,
258. He drilled the hole, but had trouble getting the. drill steels out. Tr. 258. About that time the
inspectors arrived. Tr. 258. Deskins put the resin grout into the hole, and installed the bolt.
Tr. 259. Hurley called Deskins and V amey over after Deskins finished, and the other previously-·
described events. occurred.
It is unfortunate, although perhaps understandable, that Coleman instructed Varney and
Deskins to keep quiet when Hurley began to question them. Had there been an open discussion
at that point, major_ conflicts in the evidence might have been eliminated. The precise location of
the bolt that Deskins installed could have been fixed and the exact boundaries of the fall could
have been diagramed. Ifthere was disagreement, more probative evidence, e.g., pictures and
drawings, could have been developed on those critical issues. 8 As it is, when Hurley made a
sketch of the area, he approximated the area of the fall, arid he made no attempt to indicate the
locations of the bolts that had been installed in the fall or the bolt that Deskins installed. Tr. 60;

8

Freedom apparently conducted some sort of investigation after the citation was issued.
Tr. 187-89. However, no pictures diagrams or other materials were presented at the hearing.
Vamey testified that, in 2007, he didn't think they would need much evidence to refute the
violation, and that if it happened today, he would g~ther.infonnation to support a defense.
Tr. 243-44. He also stated that if he had to do it over again he would have explained what had
happened to the inspectors - but that "hindsight was 20/20." Tr. 228.
32 FMSHRC Page-1814

Ex. G-4, R-14. 9 His later-prepared diagram shows Deskins, who was, at the controls of the bolter,
on the wrong (left) side ,of the boom, which would have placed him closer to the unsupported
inby area ofthefall. 10 Ex. G-4.

It is understandable that Hurley was not particularly concerned about the location of the
bolt that Deskins installed. He, and the other inspectors, thought that Varney and Deskins had
installed all of the bolts that had thus far been installed in the fall, and were simply installing one
more. Since they were "obviously'' bolting the fall without an ATRS or jacks, they were in clear
violation.of Freedom's roof control plan, and·Deskins would have had to have been under
unsupported roof to install the next row of bolts, both to get to and while under the canopy.
Tr. 70. The assumption that Varney and Deskins were in the process of bolting the fall,
undoubtedly resulted in a lack of focus on the location of the bolt, and the possibility that it was
adjacent to, not in, the fall.
Despite the conflicts noted above, there are a few issues upon which the parties' evidence
is not diametrically opposed. The diagram made by Hurley and the drawing submitted by
Respondents show the bolter in virtually the same position in the entry, with the boom extended
toward the right rib. Ex. G-4, R-16. Respondents' exhibit also depicts the location of the bolt
that Deskins was installing when the inspectors arrived. It is consistent with the location and
orientation of the bolter, as shown in both depictions, and I find that it accurately shows the
location of the bolt along the right rib of the entry.
Witnesses agreed that a substantial portion of the fall had been bolted, and that only a
small area on the inby end remained to be supported. 11 There is also general agreement that the
fall was somewhat irregularly shaped, and the area remaining to be bolted extended further inby
on the left side of the entry than on the right. 12 Again, there are similarities in Hurley's sketch

9

It appears that Hurley initially made a rough sketch of the scene in his notes. Ex. R-14.
Later that day, he prepared a more detailed di~gram. Tr. 30; Ex. G-4.
10

Hurley's diagram shows Deskins on the left side of the boom. Ex. G-4. Witnesses
established that the control~ are on the right. Tr. 91, 122, 163, 214-15, 254.
11

Approximately 11 feet of the 30-foot fall remained to be bolted. (Hurley) Tr. 32, 38.
Seven to 11 feet of fall was unbolted. (Fletcher) Tr. 113. Unbolted area was 11 feet on left side,
6-7 feet on right. (Taylor) Tr. 85, 101-04. Unbolted area was 6-8 feet, and two rows ofbolts
were needed. (Coleman) Tr. 179. Small portion on left needed to be bolted, three to four bolts.
(Varney) Tr. 179,201--04, 230-32; Ex. R-16. Fall was 98% bolted. (Deskins) Tr. 253. Inby
comer on the left side of the entry was the only thing left to bolt, three to four bolts to finish.
(Ball) Tr. 137-38,.142-43.
12

Fall was oblong, like a football, and the area remaining to be bolted was about 11 feet
on the left and 6-7 feet on the right. (Taylor) Tr~ I 01-04. Fall was shaped like a "u" from the left
side, area to be bolted was on left side of the bolter. (Coleman) Tr. 155, 163. Area to be

32 FMSHRC Page 1815

and Respondents' depiction of the area on those issues. 13 On Respondents' drawing, the area of
the fall was outlined in blue pen by Varney, Tr. 200.,.04; Ex. R-16. It generally corresponds with
the shape of the fall described in the testimony. The area that had been bolted, highlighted in ·
pink, also generally corresponds with the testimony, and shows a small, unbolted area on the left
inby portion of the fall. Neither Hurley's original sketch, nor his diagram, purport to show the
bolted and unbolted areas of the fall. However, at the hearing he drew a line on his. diagram to
indicate the area ofunsupported roofinby, and marked ''X"s and.dots to indicate where bolts had
been installed; 14 Tr. 66-68;·Ex. G~. The line that he drew to identify.the unsupported area in the
entry shows the supported area extending inby past the depicted location of the bolter drill head.
He later testified thatthe line should have been further outby closer to the bolter, where he
depicted the bolts. Tr. 72-73. However, the line, as drawn, corresponds with the testimony that
the fall had largely been bolted. If it were moved back outby to where he depicted th~ bolts,
there would have been substantially more of the fall, at least half, that had yet to be bolted.
I find that the roof in the entry had been supported to a point inby where the bolter drill
head was located, and that there was supported roof inby and outby where Deskins· was located
on the right side of the bolter's boom, as Deskins and Varney testified. 15 The irregular shape of

supported was small and pie-shaped, fall was wider outby and tapered in inby. (Varney) Tr. 23032. Fall remaining to be bolted was to the left of the bolter. (Deskins) Tr. 261.
13

Hurley's original sketch, reflected in his notes, shows the fall as angled from right to
left and extending further inby on the left side. Ex. R-14. His diagram shows.the fall essentially
across thewidth of the entry on the inbyside. Ex. G-4; This relatively small inconsistency is
quite significant, since Respondents claim that the area on the right rib toward the inby area of
the fall, where Deskins installed the bolt, was not in the fall and was supported roof.
14

The eyents in question occurred some three years prior to the hearing and recollections
of events were not fresh in witnesses minds. When Hurley drew the line of unsupported roof on
the exhibit, it is highly unlikely that he was doing so from recollection. Rather, he was most
likely indicating an area consistent with his testimony that all but about 11 feet of the fall had
been bolted. Likewise, when he placed ''x"s and.dots indicating the bolts, he was most likely
showing where bolts would have been if Deskins was in the process of continuing to install
another row of bolts in the fall area, which is what he assumed to be the case. But the last row of
bolts in the fall could not have been that far outby, and been consistent with the testimony on the
amount of the fall remaining to be.bolted.
15

Hurley also believed that there was unsupported roof behind Deskins, possibly in the
crosscut intersecting the track entry on the right. There was considerable dispute about whether
the fall extended into the crosscut, and whether the roof in the crosscut was permanently
supported. I see no need to resolve those conflicts, because, even if there was some unsupported
roof in the crosscut, neither Deskins nor V arneywould have been under it. They were· in much
the same relative position with respect to the crosscut, and there is no contention that Varney was
under unsupported roof. Tr. 69.
32 FMSHRC Page 1816

the fall, and the fact that it extended further on the left side of the. entry than the right, also .
supports Respondents' contention that the right rib, where Deskins installed the bolt, was not in
the area of the fall. Ex. R-16. I so find.
Responderits also argue that they would not have committed an overt violation, or
exposed Deskins to a hazardous condition, in the presence of federal and State mine inspectors. 16
Varney and Deskins were very experienced foreman at Freedom, had cleaned up previous falls,
and were well aware of the requirements of the clean-up plan.·· Tr. 198, 248. They knew that
Freedom had requested an evaluation of proposed changes to the roof control plan for the No. I
section, and expected that inspectors would be coming into the mine that day. Tr. 207, 251, 257.
More significantly, Chapman was with them when Coleman summoned him to bring a transport
for the inspectors. Tr. 210. Consequently, they knew that inspectors were actually in the mine
and would soon be coming up the track entry to the area of the fall, where they would have to
disembark from the transport vehicle and proceed on foot. Tr. 211, 245, 257. Varney testified
that he could hear the approach of the diesel.:.powered mantrip that the inspectors were on, and
could see them walking up to the bolter. ·Tr. 245. Taylor was confident that Varney and Deskins
knew he was in the mine. Tr. 96-97.
Resolving the parties' competing versions of the facts has been difficult. The inspectors
all had considerable mining experience, and were not likely to mistakenly conclude that Deskins
was bolting in the fall. However, the similarities in the parties' evidence regarding the location
of the bolter and the bolt, the shape of the fall and area of unsupported roof, are more consistent
with Respondents' contentions, and lead me to conclude .that it is more likely that Deskins was
under supported roof. I am also persuaded that Deskins and Varney would not have committed
an obvious serious violation knowmg they were in, or would soon be in, the presence of mine
inspectors.
Considering all of the above, I find that the Secretary has failed to carry her burden of
proof that the violation was committed, as alleged. Accordingly, the citation will be vacated.

16

Deskins testified that he knew the inspectors were on the way because Chapman had
gone to get them. He had no reason to hurry, because he didn't feel he was doing anything
wrong. Tr. 257-58. Coleman testified that Varney and Deskins had 40 years of experience
between them and deal with inspectors every day. They knew he was bringing two roof control
inspectors to the section and would have to drive straight to them. If they would do something
like they were accused of, they would have been fired years ago. Tr. 171-72. As previously
noted, Varney testified that he heard and saw the inspectors approach and they were "absolutely
not" putting a bolt in the fall. He would not have participated in an open violation of the roof
control plan and would not have let his friend and co-worker engage in hazardous conduct.
Tr. 224.
32 FMSHRC Page 1817

Individual· Liability
The Act provides that a director, officer, or agent of a corporate operator may be subject
to civil penalties in his individual capacity for knowingly authorizing, ordering or carrying out a
violation oftheAct. 30 U.S.C. § 820(c). The legal standards governing individual liability have
often been stated by the Commission. See, e.g., Maple Creek Mining, Inc. 27 FMSHRC 555,
566-67(Aug. 2005). Having found that the Secretary failed to carry her burden of proof of
establishing the violation of the cited provision, the cases against Varney and Deskins must also
fail.
Order No. 6645336
Order No. 6645336 was issued by MSHA inspector Roger Workman on October 11,
2007, and alleges a violation of 30 C.F.R. § 75.36Q(b), which requires that certified persons
conduct preshift examinations ofvarious areas; including working sections, and specifies that
''the examination shall include tests of the roof, face and rib conditions on these sections and in
these areas." The violation was described in the "Condition and Practice" section of the Order as
follows:

An adequate preshift was not .conducted for the 001-0 MMU section, dated 10-1107, from 5:35 a;m. to.6:20 a.m. The,preshift examiner failed to recognize the #4
right crosscut was not permanently supported and no warning devices were in
place to warn miners of the unsupported mine roof. There. was a line curtain hung
on the last row of permanent supports going by.the unsupported crosscut. The
operator is required to· have a safety talk with foremen before this order is
terminated. Two other violations were issued in conjunction with this order.
Citation# 6645334. Citation 6645335.
Ex. G-6.
Workman detennined that it was reasonably likely that the violation would result in an
injury requiring lost work days or restricted duty, that the violation was S&S, that one person was
affected, and that the operator's negligence was high. The order was issued pursuant to section
104(d)(l) of the Act, and alleged that the violation was the result of the operator's unwarrantable
failure to comply with the mandatory standard. A specially assessed civil penalty in the amount
of$9,800.00 was proposed for this violation.

32 FMSHRC Page 1818

The Violation
Workman was at the mine to conduct a regular quarterly inspection. 17 He was
accompanied by Lester Preece, an inspector trainee, and Varney, who represented Freedom.
They traveled the No. 4 entry of the 001 MMU, and observed notations made by Jonathan Hunt,
the foreman on the midnight shift, who had conducted the preshift examination for the oncoming
day shift between 5:30 a.m. and 6:28 a.m. that morning. Preshift examiners mark the date and
time of their examination and initial the entries at various locations during their examinations,
including on the roof and ribs, and at the faces. The entry was clean, had been rock dusted, and a
line curtain had been hung on the last row of roof bolts on the right side of the entry to within
eight feet of the face. From all appearances, there were no hazards in the area, and none had
been reported by Hunt in the preshift record book. Tr. 293.
Workman lifted the curtain to check the condition ofthe right rib and found the #4 right
crosscut had been cut to a depth of about 20 feet, but had been left unbolted. There were no
warning devices alerting persons to the condition, which posed a serious hazard. The opening of
the crosscut began about 16 feet from the face~ eight feet from the end of the curtain, and
extended outby for approximately 20 feet. The condition is depicted iri a diagram prepared by
Preece. Tr. 329; Ex. G-7. Under Freedom's roof control plan, no one is permitted to proceed
inby a newly mined crosscut until at least three rows of roof bolts have been installed.
Unsupported mine roof may fall, and if it falls, it would typically take out the first row of bolts it
encounters. Tr. 297, 332. Consequently a fall of the roof in the crosscut would most likely have
extended out into the entry, a few feet past the row of bolts that the line curtain had been hung
on. Clearly, this posed a threat of serious injury to any person working or traveling in that part of
the entry. And just as clearly, Hunt had failed to sufficiently examine the right rib of the entry, as
required by the standard. ·
·
Respondent concedes that it was improper to hang the curtain without first having bolted
the crosscut, but contends that improperly hanging the line curtain does not definitively establish
a violation of section 75.360(b). Respondent argues that the preshift examiner "could have been
following MSHA's regulations and conducting a thorough preshift examination and still have
missed this condition." Resp. Br. at 17. Respondent's argument is based, in part, on a
consideration that has nothing to do with the violation. It points to the fact that an examiner
should not stand behind the line curtain to measure the volume of air flow, because his body
would interfere with the flow. Tr. 345. However, a proper examination of the rib would have
been entirely independent of an air flow measurement. Freedom also argues; relying on Varney' s
testimony, that an examiner could have examined the rib by looking behind the end of the
curtain, and failed to see the crosscut. Tr. 347. However, since Varney never looked behind the
curtain, the accuracy of that statement is highly questionable. Tr. 358-59. Varney also conceded
that a preshift examiner should check behind the curtain for hazards, and would have to look

17

The Act requires that underground coal mines be inspected four times annually..
30 U.S.C. § 813(a).

32 FMSHRC Page 1819

behind the curtain to check for loose ribs. Tr. 346, 357. Any examination of the right rib that
failed to disclose the presence of the crosscut would have been per se inadequate. I find that·
Freedom violated the standard by failing to conduct a proper preshift examination.
Significant and Substantial
An S&S violation is described in section 104(d)(l) of the Act as a violation "of such
nature as could significantly and substantially contribute to the cause and effect of a coal or other
mine safety or health hazard." A violation is properly designated S&S "if, based upon the
particular facts surrounding that violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious nature." Cement Div.,
Nat 'I Gypsum Co., 3 FMSHRC 822, 825 {Apr. 1981 ).

The Commission has explained that:

In order to establish that a violation of a mandatory safety standard is
significant and substantial.under National Gypsum, the Secretary of Labor must .·
prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete
safety hazard--that is, a measure of danger to safety--contributed to by the
violation; (3) a reasonable likelihood that the hazard contributed to will result in.
an injury; and (4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan.1984) (footnote omitted); see also, Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary ofLabor, 861
F.2d 99, 103-04 (5th Cir. 1988), affg Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987)
(approving Mathies criteria).

In U.S. SteelMiningCo., Inc., 7FMSHRC1125, 1129 (Aug. 1985), the Commission
provided additional guidance:
We have explained further that the third element of the Mathies formula "requires
that the Secretary establish a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury." U.S. Steel Mining Co., Inc.,
6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance
with the language of section 104(d)(l ), it is the ,contribution of a violation to the
cause and effect of a hazard that must be significant and substantial. U.S. Steel
Mining Co., Inc., 6 FMSHRC 1866, 1868(August 1984); U.S. Steel Mining Co.,.
Inc., 6 FMSHRC 1573, 1574-75(July1984).
This evaluation is made in tenns of"continued nonnal mining operations." U.S. Steel,
6 FMSHRC at 1574. The question of whether a particular violation is significant and substantial
must be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC
498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
32 FMSHRC Page 1820

The fact of the violation has been established. A measure of danger to safety was
contributed to by the failure to conduct an adequate preshift examination, a hazardous condition
was not discovered and corrected or dangered off. There is little question that any injury
resulting from a roof fall would have been reasonably serious and could easily have been fatal.
As is often the case, the primary issue in the S&S analysis is whether the violation was
reasonably likely to result in an injury causing event.
The injury causing event in this instance would be a roof fall in the unbolted crosscut that
would extend past the first row of bolts and strike a person in the entry.· That would require a··
confluence of two events, a roof fall in the crosscut and a person being present in the area of the
entry affected by the fall. The roof in the mine was composed of sandstone and shale, which
tends to separate at the seams of the layers, creating loose draw rock. Tr. 296. Workman
explained that one cannottell ifa roof is about to fall by looking at it. Tr. 31 L Draw rock was
not uncommon on the section, but the roof in and around the crosscut appeared to be in good
condition, and there was no apparent draw rock. Tr. 296, 311, 334. Judging from the appearance
of the roof, a fall was not imminent.
While the eritry was not a main travelway, persons had been in the entry, and were
expected to be in the entry prior to the abatement of the hazardous condition. The hazardous
condition most likely was created during the evening shift the day before. While it had existed
for some 10 hours, it had existed only for about four hours after the preshift examination at issue,
and may have existed for the rest of the shift.. Tr. 299. ·The entry had been cleaned and dusted,
and the line curtain had been hung. Tr. 307. Hunt had conducted the preshift examination, and a
miner operator may have traveled to the face to conduct safety checks. However, the cleaning
and dusting, as well as the hanging of the curtain, would have occurred prior to the conduct of
the preshift examination. Consequently, any exposure to those persons should not be considered
in evaluating the likelihood of an injury occurring because of the inadequate preshift
examination. Travel in the entry after the inadequate preshift examination would have been very
limited. A miner operator conducting safety checks was the only possibility noted, except for the
unlikely prospect of a person simply deciding to walk up the entry. A day shift foreman may also
have conducted an.on-shift examination, but would likelyhave discovered the condition and
avoided it.
A roof fall in the crosscut could extend to the second row of bolts, about eight feet into
the entry, and four feet past the line curtain. Tr. 297. It was generally recognized that miners
would most likely travel near the center of the entry, i.e., approximately 10 feet from either rib.
Tr. 337, 342. To be struck by a fall in the crosscut, a person would have had to be within four
feet of the line curtain, i.e., on the extreme right side of the 16 foot -wide opening between the left
rib and the curtain.
While I agree with Workman, that people that make a habit of traveling under
unsupported roof will eventually suffer a fatal injury, I am not convinced that the violation, an
inadequate preshift examination, was reasonably likely to result in an injury causing event.
32 FMSHRC Page 1821

Tr. 306. The presence of persons in the entry was and would have been quite limited, and it is
likely that any persons who did travel the entry would have remained far enough away from the
right rib and line curtain, such .that they would not have been injured even in the unlikely event
that they happened to be adjacent to the crosscut when its rooffell.
Given all of these factors, I find that, while it is possible that a serious injury could have
occurred as a result of the violation, the Secretary failed to carry her burden of establishing that it
was reasonably likely that a serious injury would occur in the normal course of continued normal
mining operations. I find that the violation was unlikely to result in a permanently disabling
injury and that it was not S&S.
Unwarrantable Failure - Negligence·

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, 11 ,.intentional
misconduct," "indifference," or a "serious lack ofreasonable 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 ail.alysis 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 Consolidation Coal Co., 22 FMSHRC 340, 353
(Mar. 2000) ... ; Cyprns 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); Quin/and
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 circumstarices exist. Consol, 22 FMSHRC at
353. Because supervisors are held to a high standard of care, another important
32 FMSHRC Page 1822

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 Order was issued pursuant to section 104(d)(l) of the Act. 18 The predicate section
104(d)(l) citation was Citation No. 6633527. That citation was invalidated above, which
dictates that, in order to be properly issued pursuant to section 104(d), the Order would have to
be considered a citation, and the violation would have to be both S&S and the result of an
unwarrantable failure. 30 U.S.C. § 814(d)(l). Having found that the violation was not S&S, it is
technically unnecessary to decide whether it resulted from an unwarrantable failure. However, it
is necessary to address the issue of negligence, which is alleged to have been high. Because tlie
S&S findings herein may, or may not, become final, the issue of unwarrantable failure will be
addressed for the sake of judicial economy.
The Secretary contends that the violation: was an unwarrantable failure because the
preshift examiner, an agent of the operator, failed to examine the right rib of the entry, a clear -·
violation of the standard. She notes that the condition was extremely dangerous, and that the
unbolted crosscut would have been an obvious hazard to anyone who looked at it.
The unbolted crosscut presented the potential for a roof fall that would extend into the
entry, possibly four feet past the line curtain. The hazardous nature of that condition was
exacerbated by the hanging of line curtain that hid the condition, so that persons traveling in the
entry could not see it. The hanging of the line curtain and the failure to danger off the area were
egregious actions, and Workman issued two S&S citations related to the creation of the hazard.
Ex. G-8, G-9. Those citations were issued pursuant to section 104(a) oftheAct, because
Workman had no evidence linking the obviously high negligence of the responsible hourly
employees to mine management. Tr. 323.

18

Section 104(b) of the Act provides:

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).
32 FMSHRC Page 1823

The instantviolation stands on a slightly different footing. The violation at issue did not
involve the creation of the hazard, but, rather the failure to discover it, about eight hours after it
had been created. Workman noted that the condition had existed for at least 10 hours when he
issued the order. However, the violation at issue had occurred approximately four hours earlier.
The condition could not be observed by anyone in the ~try. but it would have been obvious to
anyone who looked behind the line curtain in the area of the crosscut. Was the violation, the
inadequate preshift examination, obvious or extensive? These concepts are not easily applied io ·
this "failure to look" violation.
Freedom contends that there are several mitigating factors that preclude a finding of high
negligence or reckless disregard. The curtain had been hung to the face, giving every appearance
that the crosscut had not been cut. There is no dispute that this was a highly unusual situation
that had not been encountered at the mine. Workman agreed that the preshift examiner was "put
in a bad position" by those who created the hazard. Tr. 315-16. Varney postulated that, under
the circumstances, with the entry cleaned and dusted and the roof and left rib appearing in good
condition, that he might not have looked behind the curtain to check the right rib, because it too
would be fine "90% .of the time." Tr. 359-60, 362.
Whether Hunt's actions rose to the level of unwarrantable failure is a close question. On
the one hand, he was an agent of the operator, and he clearly did not effectively examine the right
rib of the entry, as required by the standard. As a result, a condition hazardous to persons
traveling in the entry was not discovered and wo.uld have continued to exist for approximately
one more shift. On the other ham:t, the hazard affected a relatively small area of the entry. Very
few miners would have had reason to travel in the entry,. and probably would not have traveled in
the affected area. He apparently assumed, given that the roof and left rib were in good condition,
that the right rib also posed no hazard.
As the Secretary points out in her brief, the Act's preshift examination requirements are
"of :fundamental importance in assuring a safe working environment underground." Buck Creek
Coal Co., 17 FMSHRC 8, 15 (Jan. 1995). An effective examination by a certified person
provides assurance that no hazardous conditions will be encountered by miners assigned to work
or travel in the area. Freedom• s agent's failure to effectively examine the right rib was clearly a
violation of the standard that allowed a hazardous condition that could have resulted in a fatal
accident to continue. I find that the violation was the result of Freedom's high negligence, and
its unwarrantable failure to comply with the standard.
Citation No. 6655438
Citation No. 6655438 was issued by MSHA inspector Craig Plumley on January 7, 2008,
and alleges a violation of30 C.F.R. § 75.512, which requires that "electric equipment shall be ...
properly maintained by a qualified person to assure safe operating conditions." The violation
was described in the "Condition and Practice" section of the Citation as follows:

32 FMSHRC Page 1824

In the underground shop area at the bottom of the elevator shaft, the operator has
failed to maintain electrical equipment in safe operating condition. Two electrical
heating elements were operating and were red-hot with no protective guarding to
prevent persons from being exposed and coming into contact with this open heat ·
source. The two heating elements are located 24 inches above the ground, 12
inches from a 2-man bench seat, 24 inches from personnel lockers and within 48
inches of the walkwaywhere personnel enter and exit the mantrip. Persons
coming into contact with this exposed heat source would receive severe burn
tnJunes.

Ex. G-12.
Plumley determined that it was reasonably likely that the violation would result in a
permanently disabling injury, that the violation was S&S, that one person was affected, and that
the operator's negligence was moderate. A civil penalty in the amount of$1,304.00 was
proposed for this violation.
The Violation
Plumley was a ventilation specialist who had returned to the mine to terminate a citation
that had been issued related to seals. He was accompanied by Keith Preece, who was in training
to become a certified MSHA inspector. As they entered the shop area where the mine elevator
terminated, Plumley noticed a "burning" smell and traced it to two electrical heating elements
that were located behind a small bench. The heating elements were inside stainless steel
cylinders that were 10 inches in diameter and 12 inches tall. They were about 12 inches apart,
and had several electrical heating elements, similar to burners on an electric stove top, arranged
two to three inches below each other starting about three inches from the tops of the open
cylinders. The eylinders had been used to clean filters of diesel locomotives, but were no longer
used for that purpose because the engines of the locomotives had been changed, and the filter$
were no longer required. The heating elements were controlled by timers, which cycled on and
off over a period of about 45 minutes. They were energized during cold periods to provide heat
for persons in that part of the shop area.
There are no significant factual disputes as to the cited condition. The heating elements
were extremely hot, and the steel cylinders were also very hot. There was no guard or other
barrier to prevent access to the heating elements, or the cylinders themselves, which were located
in an area traveled by miners entering and exiting the mine. The violation was abated by the
installation of expanded metal guards preventing contact with the cylinders.
Respondent argues that the devices were not defective and that they presented no hazard
because in order to suffer a burn injury a person would have to intentionally stick his hand down
through the curing filter to the heating element. The arguments are unavailing. The key
consideration in the standard is that electric equipment be maintained in a safe condition. The
fact that the cylinders were not defective, in an operational sense, does not alter the fact that they
32 FMSHRC Page 1825

were extremely hot when in operation, and could cause injury to anyone coming into contact with
them. It would not have been necessary to contact the heating elements to suffer a burn injury.
The hot steel ,cylinders themselves could also have caused an injury. There is some suggestion
that the devices were still in use to clean filters at the time of the alleged violation. I find that
they were no longer used for that purpose. In any ~vent, it is clear that they were not being used
to clean filters at the time of the violation. Smith explained that the filters were also 10 inches in
diameter and fit on top of the cylinders. There clearly were no filters on the devices at the time.
They were being used to provide heat in the shop area, not to clean filters. With no filter on top,
the heating elements were readily accessible to inadvertent contact.
I find that the cylinders and heating elements presented a hazard. Persons coming into
contact with either object could suffer burns. Because the electrical equipment was not
maintained in safe operating condition, the standard was violated.
S&S
Plumley believed that the hazard was reasonably likely to result in a pennanent injury,
either from personal contact with the hot surfaces, or a fire resulting from clothing or objects
coming into contact with the heating elements. Crews worked on two sections in the mine, three
shifts. per day, six days per week. Consequently, two groups of 18-20 men, one exiting and one
entering the mine, traveled through the shop area three times per day. If a mantrip was not
immediately available, the group entering might spend 5 to -10 minutes in the area. In cold
weather, men waiting in the area would gather near the cylinders for warmth. The area was
clean, generally dry, and there were no slipping or tripping hazards noted. Plumley thought that•
there were personnellockers in the area, but,. they were actually metal tool boxes that resembled
lockers and were not routinely accessed by the miners in transit. TrII. 14, 45.
Respondent counters that miners also have access to mantrips through an adjacent entry,
and do not necessarily travel through the shop area when entering and exiting the mine~ There
are also numerous fire extinguishers in the shop area. The cylinders have been in operation for
many years and have caused no injuries. Miners and other personnel, including mine inspectors,
have warmed themselves by the heaters, which have never been cited as being in violation of a
standard. Respondent also argues that the chance of inadvertent contact was minimized by the
presence of the timing devices·on a shelf located above the devices. Trll. 112.
Considering the number and frequency of miners that came into relatively close proximity
to the unprotected cylinders, I find that it was reasonably likely that a miner would have suffered
a bum injury as a result ofthe violation~ However, I find it unlikely that any such injury would
have been reasonably serious. Rather, a miner, typically wearing protective clothing, would
suffer no more than a minor bum injury, resulting in no lost work days. 19 Consequently, the

19

Plumley also.determined that injuries might result from a fire originating from the
heating elements contacting clothing or personal items worn by miners sitting on the bench, or by
32 FMSHRC Page 1826

violation was not S&S. I agree with Plumley's assessment of the degree of operator negligence
as moderate, for the reasons stated in his testimony. Trll. at 16-17.
Citation No. 6656994
Citation No. 6656994 was issued by MSHA inspector Kip Bell, on January 10, 2008, and
alleges a violation of 30 C.F.R. § 75.202(a), which requites that the "roof, face and ribs of areas
where persons work or travel shall be supported·or otherwise controlled to protect persons from
hazards related to falls of the roof, face or ribs and coal or rock bursts." The violation was
described in the "Condition and Practice" section of the Citation as follows:
The roof where persons work or travel, is not being supported to prevent falls of
the mine roof, located at the elevator bottom at the man trip storage area (track
spur). There are two cribs on the left rib that have not been constructed firmly
against the mine roof. The area between the top of the cribs and the mine roof
measures approximately Linch to 10 inches. Loose and broken draw rock is
present in the affected area.
Ex. G-16.
Bell determined that it was reasonably likely that the violation would result in a
permanently disabling injury, that the violation was S&S, that one person was affected~ and that
the operator's negligence was moderate. A civil penalty in the amount of$1,304.00was
proposed for this violation.
The Violation
Bell was conducting a regular quarterly inspection of the Freedom mine. He was
accompanied by Phillip Carter, an MSHA inspector in training. The area in question was located
at the bottom of the mine elevator, where crews entering the mine boarded man trips to travel to
the working sections, and crews exiting the mine exited man trips to get on the elevator. Man
trips, used to transport miners to and from the working sections, traveled on tracks that ran in an
entry adjacent to the elevator access. Another entry intersected the main track entry in the area of
the elevator. A short section of track, or spur, ran up that entry and was used to store man trips
that were inactive or in need of repair. Trll. 73, 78. A switch controlled tracked vehicles' access
to the spur. Generally, entering miners boarded the vehicles parked on the main track that had
been used by the exiting miners to travel to the elevator. Trll. 78, 84. Occasionally, a man trip
was not immediately available on the main track, and one that was stored on the spur was used.

items being tossed into the cylinders on the mistaken belief that they were trash cans. His
description of how such a fire might result in an injury was vague. He opined only that smoke
could be generated and thatthere was flammable material used in the shop. Trll. at 30. I fmd it
highly unlikely that the· violation would have resulted in a fire-caused injury.
32 FMSHRC Page 1827

There had been a rib roll on the left side of the entry in which the spur was located, and
12 sets of cribs had been erected along the rib to provide roof support and protection from rib
rolls. 20 Nine jacks had also been installed on the right side of the entry, to provide supplemental
roof support. The spur entry was approximately 20 feet wide, rib-to-rib. The cribs and jacks
effectively shortened the width to 15-16 feet. Trll. 73. The mine roof in the area of the cribs was
broken, and loose draw rock was present. TrII. 56, 79. The two cribs that were nearest to the
main track had been dislodged, possibly by a piece of mobile equipment, such that they were no
longer in contact with·the mine roof. Varney traveled with Bell and confirmed.the conditions
observed by Bell and Carter. Trll. 75, 79. When the inspection party traveled to the working
sections, the shop personnel "tightened up" the cribs, and the citation was terrn.4iated by Bell .
when he returned to exit the mine.
Rib rolls change the location of the rib/roof intersection, lengthening the distance from
existing roof bolts to the rib, and· necessitating the installation of supplemental roof support.
Trll. 83. Properly installed cribs supplied that support, and provided protection from further
deterioration of the rib and the adjacent mine roof. The two cribs that were not installed firmly
against the roof did not provide the required support and created the possibility of further
deterioration of the roof and rib. TrII. 55-56. They also presented an additional hazard, because
they could be toppled by a rib roll and strike a nearby miner. Trll. 56-57.
Respondent argues that the standard was not violated because there was adequate roof
support in the area, and the "loosened cribs were still present and provided adequate protection."
Resp. Br. at 26. I reject the argument. The critical area was located in the immediate vicinity of
the left rib of the spur entry, where the rib roll had occurred, and the cribs had been erected. The
presence of permanent roof support in the entry, and the jacks on the opposite side, did not
provide support in that area. Trll. 88. Nor did the ·loosened cribs provide support for the roof in
that area, which had loose and broken draw rock.
I find that the standard was violated, as alleged in the citation.

S&S

An injury caused by falling draw .rock; or crib timbers toppling into or onto a miner,
would have been reasonably serious. Trll. 58. The critical question in the S&S analysis is
whether an injury causing event was reasonably likely to have resulted from the violation. There
was loose draw rock. in the area that could have fallen at any time. However, the evidence
establishes that it was confined to the immediate area of the cribs, where the rib roll had
occurred. The cribs themselves, including the two that were not firmly against the roof, provided
a reasonably effective barrier to travel under the loose draw rock. Bell did not require that any
draw rock be taken down before departing the area, and did not require that the area be dangered

20

Cribs are constructed of 6-by-6-by-30-inch pieces of hardwood, stacked in alternating
pairs. Wooden wedges are driven between the mine roof and the last layer of structural timber.·
32 FMSHRC Page 1828

off before departing to inspect the working sections. Trll. 64, 79 .. It is unlikely that a miner
would have been injured by falling draw rock. Arib roll might have toppled the loose cribs, and
they might have fallen on or into a miner in the immediate area. However, the probability of
such a rib roll occurring is unknown. That section of the mine had been developed many years
before, and. the rib roll had occurred years before. Trll. 71. Miners were only occasionally in the
area. Man trips on the spur were not routinely accessed. Trll. 78. If an additional vehicle was
needed, an operator would conduct a pre"."operational inspection of the vehicle, and then move it
onto the main track.. Trll. 53. If it was to be used to transport a crew to a working section, the
miners would generally enter the spur entry to board the covered man trip. However, there is no
evidence that that was a frequent occurrence.
In light of the uncertainty of a potentially injury-causing event and limited presence of
miners in the subject area, I find that the Secretary has failed to prove by a preponderance of the
evidence that the violation was S&S.
Negligence.
Bell determined that Respondent's negligence was moderate because examiners checked
the area three times per day, and there were numerous. foremen passing by the conditiondaily.
While the condition should have been observed by foremen passing through the area, there is.no
evidence as to how long the condition had existed. The cribs could have been dislodged· by a
piece of mobile equipment shortly before the inspectors arrived. Varney had noted a similar
condition and corrected it about a month earlier. Trll. 61, 86. I find that Respondent's
negligence was low.
The Appropriate Civil Penalties
The Freedom Energy Mining Company's #1 mine is a very large mine which produced
over 1,000,000 tons of coalin 2007. Its controlling entity is also extremely large. The
assessment data refleets that it averaged slightly over 0.5 violations per inspection day during the
relevant period, a moderate incidence of violations. Freedom does not contend that payment of
the proposed penalties will affect its ability to continue in business. The violations were
promptly abated.
Order No. 6645336 is modified to a citation issued pursuant to section 104(a) of the Act,
and the violation is affirmed. However, the gravity of the violation was found to be less serious
than alleged, including that it was not S&S. Respondent's negligence was found to be high. A
specially assessed civil penalty of $9;800.00 was proposed by the Secretary. The reduction in
gravity justifies a significant reduction in the propos~d penalty. I impose a penalty in the amount
of$3,000.00 upon consideration of the above and the factors enumerated in section l IO(i) of the
Act.
Citation No. 6655438 is affinned. However, the gravity of the violation was found to be
less serious than alleged, including that it was not S&S. A civil penalty in the amount of
32 FMSHRC Page 1829

$1,304.00 was proposed by the Secretary. The lowering of the level of gravity justifies a
reduction in the proposed penalty. i impose a penalty in the amount of$500.00 upon
consideration of the above and the factors enumerated in section 1 lO(i) of the Act.
Citation No. 6656994 is affirmed. However, the gravity of the violation was found to be
less serious than alleged, including that it was not S&S. In addition, the operator's negligence
was found to be low. A civil penalty in the amount of$1,304.00 was proposed by the Secretary.
The lowering of the levels of negligence and gravity justify a significant reduction in the
proposed penalty. I impose a penalty in the amountof$350.00 upon consideration of the above
and the factors enumerated in section 11 O(i) of the Act.
The Settlement

On May 19, 2010, the Secretary filed a Joint Motion to Approve Partial Settlement, whicli
presented a proposed disposition of 12 of the citations at issue. At the commencement of the
hearing, the parties jointly moved for approval of a proposed settlement of four additional
citations. As to the settlement of the 16 citations which are the subjects of the motions, the
Secretary has agreed to modify six citations and it is proposed that the total penalty for the settled
violations be reduced from $21,058.00 to $14, 102.00. I have considered the representations and
evidence submitted· and conclude that the proffered settlements ate appropriate under the criteria
set forth in section 11 O(i) of the Act.

ORDER
WHEREFORE, the motions for approval of settlement are GRANTED, and it is
ORDERED that the citations are hereby amended as proposed in the·motions and that
Respondent pay a penalty of$14,102.00 for the settled violations.
Citation No. 6643527 is VACATED, and the petitions in Docket Nos. KENT 2008-1503
and KENT 2008-1506 are DISMISSED. Order No. 6645336 is MODIFIED to a citatiOn issued
pursuant'to section 104(a) of the Act and, as so modified, is AFFIRMED. Citation Nos.
·
6655438 and 6656994 are AFFIRMED, as modified, and Respondent is ORDERED to pay
civil penalties in the amount of $3,850.00, for the litigated violations.

32 FMSHRC Page.1830

Distribution (Certified Mail):
Joseph B. Luckett, Esq., Donna E. Sonner, Esq., Office of the Solicitor, U.S. Department of
Labor, 618 Church Street, Suite 230, Nashville, TN 37219-2456
Carol Ann Marunich, Esq., Dinsmore & Shohl, LLP, 215 Don Knotts Blvd., Suite 310,
Morgantown, WV 26501

32 FMSHRC Page 1831

FEDERAL MINE SAFETY ANO HEALTH REVIEW COMMISSION
72119th STREET, SUITE 443
DENVER, CO 80202-2500
303-844-5267/FAX 303-844-5268

December 8, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

. CNIL PENALTY PROCEEDING
Docket No. CENT 2009-344-M
A.C. No. 14-00073-178858

v.
LAFARGE MIDWEST, INC.,
Respondent

Lafarge Midwest Inc.

DECISION
Appearances:

Matthew Finnigan, Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado, for Petitioner;
Christopher Peterson, Jackson Kelly, PLLC, Denver, Colorado, for
Respondent.

Before:

Judge Miller

This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration, against Lafarge Midwest,
Inc., ("Lafarge") pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act" or "Act"). The case involves one citation
issued by MSHA under section 104(d) of the Mine Act at the Lafarge Midwest cement plant
operated by Lafarge Midwest, Inc. The parties presented testimony and documentary evidence
at the hearing held in Wichita, Kansas on June 15, 2010. At the conclusion of the hearing, the
parties presented oral arguments, and a decision was rendered from the bench. This decision
incorporates the decision issued from the bench, and adds to that decision. There is some minor
editing of transcript pages 206 through 225, which is incorporated into this decision and set out
below. For the reasons stated on the record, and as further explained below, Citation No.
6448009, is affirmed as issued and Lafarge Midwest Inc. is ordered to pay a penalty of
$10,000.00.
The parties entered into the following stipulations that were accepted by the Court:

I.
2.

The Administrative Law Judge has subject matter and personal jurisdiction over the
dispute in this case.
Lafarge Midwest, Inc. ("Lafarge") is engaged in mining operations in the United States,
and its mining operations affect interstate commerce.
32 FMSHRC Page 1832

3.
4.

5.

6.

7.
8.
9.
10.
11.

12.
13.
14.

Lafarge is subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. §§ 801-965.
'
Lafarge operates the Lafarge Midwest, Inc. cement plant in Wilson County, Kansas,
Mine ID No. 14.:.00073 (the "Mine'l
Melvin Lapin (4'Lapin") is an authorized representative of the United States Secretary of
Labor, assigned to the Topeka, Kansas field office of the Mine Safety and Health
Administration's Metal/Non-Metal· division.
Lapin inspected the Mine on February 4, 2009, and issued Citation No. 6448009 to
Lafarge, alleging a· violation of30 C.F.R. § 56.14103(b) under Section 104(d)(l) of the
Mine Safety and Health Act of 1977, 30 U.S.C. § 814(d)(l).
The Secretary of Labor proposed a penalty of $8,209.00 for Citation No. 6448009.
Lafarge purchased the John Deere "Gator" at issue in this case on July 21, 2008.
The Gator was provided for use by the Mine's Quality Control Laboratory.
The Mme's Quality Control Laboratory used the Gator every two hours of all three shifts,
·seven days each week.
Lafarge cleaned the Gator's windshield on the following dates and with the following
substances:
i.
August 4, 2008: glass cleaner;
II.
August 7, 2008: different glass cleaner;
111.
August 12, 2008: vinegar and water; and
1v.
September, 2008: Ro-Mix Back-Set solution, which is a molecular
cement dissolver.
Greg Hicks was the Mine's Quality Control Laboratory Supervisor between September 1,
2008 and February 4, 2009.
Lafarge demonstrated good faith in abating the violation.
The exhibits to be offered by the parties are stipulated to be authentic but no stipulation is
made as to their relevance or as to the truth of the matters asserted therein.

(Tr. 6-7).

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
Lafarge Midwest, Inc., operates the cement plant at issue (the "mine"), which is located
in Wilson County, Kansas. (Tr. 23). The mine is subject to regi.llar inspections by the
Secretary's Mine Safety and Health Administration ("MSHA") pursuant to section 103(a) of the
Act. 30 U.S.C. § 813(a). The parties stipulated that Lafarge is an operator as defined by the Act,
and is subject to the jurisdiction of the Federal Mine Safety and Health Review Commission.

a.

Citation No. 6448009

On February 4, 2009, Inspector Melvin Lapin issued Citation No. 6448009 to Lafarge for
a violation of Section 56.14103(b) of the Secretary's regulations. The citation alleges that:
[t]he Plexiglas windshield for the Quality Control Lab's John Deere
Gator, located in the parking ·area on the ea8t end of the Quality
32FMSHRC Page 1833

control Lab, was damaged from scratches in the glass from cleaning
the abrasive dust off that was generated from the cement milling
process; A person would clean the glass with a dry cloth, or
sometimes, glass cleaner was used. When the gator was driven
toward the sunlight during the day,· or toward bright lights at ipght,
the glare created from the reflection ofthe light in the scratches made
it very difficult for the driver to see. When a person was driving this
vehicle under these conditions, they could easily run over another
person walking in the area, impact an obstruction, or travel into the
path of another vehicle. This vehicle was used every two hours of all
three shifts, 7 days a week to obtain samples for quality control
purposes~

The inspector found that a fatal injury was reasonably likely to occur,thatthe violation
was significant and substantial, that one person would be affected, and that the violation was the
re~;ult of high negligence on the part of the operator.

1.

The Violation

At hearing, I read the following findings into the record:
With regard to citation number 6448000 issued on f?ebruary
4th, 2009 by Inspector Melvin Lapin, I make the following findings:
Inspector Lapin issued a citation for a violation .of Section
56.14103(b) of the Secretary's regulations and essentially charged
that the Plexiglas windshield in the quality control lab's John Deere
gator was damaged from scratches to the glass to the point that it
created a hazard to anyone driving the equipment.
Lapin testified that he has been a mine inspector for more
than four years and he has worked in the mining industry for nearly
30 years prior to working with MSHA. He is an inspector in the
Topeka, Kansas office .
.Inspector Lapin on February 4th was C()ntinuing an inspection
that he had begun atthe mine on January 20th, 2008. He wentto the
-- on that day, he inspected equipment first in the maintenance shop.
208
Exhibit 13 is a map or a layout of the facility that was used to
indicate the various areas in.the mme.
Inspector Lapin, inspected the equipment in the maintenance
shop, the trucks and other equipment, and including in that inspection
two gators that the maintenance shop used. A gator is a four-wheel
32 FMsaRc Page 1834

vehicle, a small -- similar to a small pickup, bigger than a golf cart.
It has a bench seat, and in· this case the gators that Mr. Lapin
observed on that date had Plexiglas windshields.
One ofthe employees, while Mr. Lapin was -- while Inspector
Lapin was in the lunchroom, one of the employees asked him to look
at the windshield because that employee felt that it was not safe.
Lapin saw both - saw that both of the gators in the maintenance shop
had Plexiglas windshields that were.scratched.
He rode in the first gator. They attempted to wipe off the
windshield prior to getting in, he used a dry cloth. He took a drive
with the shop mechanic, drove

209
northeast and then turned into the sun, and the ·glare from the sun
shown on all the scratches and encompassed the entire win,dshield
making it difficult to see~ The glare covered all but the comers, and
the glare blinded him as well as the driver.
He instructed the driver to turn around as soon as he saw the
glare. He returned to the maintenance shop and then looked at the
second gator and again took a ride in that gator. This time the
operator of the gator used a windshield cleaner to try to clean the
glass prior to the ride. The same thing occurred when the gator, with
Lapin in it, was turned toward the sun. The glare was so bad that
Lapin testified he couldn't see, instructed the driver to tum around
and return to the shop.
At that point, Lapin determined that the mine had violated the
standard, that there was a hazard, they could not see out of the
windshield· in the sun or in the light and that would result·· in an ·
accident. He issued citations for both gators at the maintenance shop.

210
Later he spoke with someone -- or at some point during that
day, he spoke with some -- another employee about the gator thatwas
being used by the quality control lab, so he went to .that lab to
examine that gator. While -- during that, the course ofhis inspection,
he spoke with both Don Ballard and with Greg Hicks concerning the
gator at the quality control shop.
When Mr. Lapin observed the gator, he saw that the gator's
windshield had the same -- the scratches and the same - what word
32 FMSHRC Page 1835

- the same problems that he had seen in the earlier -- in the two gators
that he had observed earlier in the maintenance. shop, they had the
same type of scratches and the same .kind of damage. There was a
light in the garage but no natural light but he could easily see the
scratches and he could easily tell that the gator was in the same
condition as the other two he had driven.
The photos on Exhibit 5 show the scratches on the Plexiglas,
and they resemble what he saw in the gator parked in
211
the garage. The photos also showed the glare that he experienced
except the photos don't show it accurately. He testified that the glare
was a lot more than the photos depict.
He did not get into the driver's side of the gator but he could
see the pattern and·scratches on. the windshield and·he, after just.
driven in two other gators, he did not think it was safe -- first he
didn't believe that he needed to look at it again, but he also thought
it was unsafe for others to get in and drive the gator, it might expose
someone to a hazard and he didn't want to do thatunderstandably. So
he already knew that the scratches were the same and that the
sunlight · and the light at night would create a hazard .given the
condition of the windshield as he observedit.
I understand that there are some cases that talk about an
inspector getting into the cab and actually looking at the windshield,
but there are also cases that say if a miner has been operating the
212
equipment and has looked through the windshield, their testimony,
if credible certainly, is just as valid as that of an inspector.
I think Mr. Lapin was correct in what he did, not having
someone drive it in an unsafe condition, and given his experience and
what he observed on that day, I see no problem with him coming to
the conclusion that windshield was as -- as unsafe, if not more, than
the other gators he had looked at during that day.
This particular gator at the quality control lab is used every
two hours, every shift for seven days. It's driven primarily by the
persons -- the persons who work in the quality control lab who
collect samples every two hours. Particularly the testimony of Mr.

32 FMSHRC Page 1836 ·

Ballard, who was one of the persons who collected samples every
two hours at the mine, supports the testimony of Inspector Lapin.
Ballard testified that he had retired from Lafarge in February
2009 after working there for many years. He worked primarily
213
on the day shift. The mine operated three shifts each day. He drove
the gator every two hours for any time period, but he testified
approximately 15 minutes as he rode around the plant area collecting
samples.
He complained constantly to his supervisor regarding the
condition ·of the windshield on the gator until he gave up in
frustration. His supervisor was ,Mr. Hicks, who also testified. Mr.
Ballard operated the gator, he used it for samples and at other times
depending on what he's required to pick up.
Ballard described how· he traveled most of the areas of the
mine, normally in a complete circle every two hours, it took him
about 15 minutes. It depended on how much he had to pick up.
There were coal piles in the area that could be 20 feet high and as
long as 100 feet. Other vehicles operated around the stockpiles,
loaders, maintenance vehicles, supervisors, other four-wheelers, and
he had to be careful as he said he had to watch it going
214
around the comer.
There's also foot traffic, many people worked. The area R
where he primarily traveled was a busy place for vehicles, there were
loaders, maintenance vehicles, pickups, open-bed pickups, loaders,
forklifts, and trailers :parked in the area to unload. Area R is a very
busy location given that it is adjacent to the -- given that it's adjacent
to the storage area, and there's also a repair area at that -- in that
location.
Ballard drove the gator as much as anyone, and shortly after
he -- the mine acquired-the new gator the glass started to scratch up,
it fogged over. He washed the windows as much as he could. The
abrasive cement, dust and dirt caused scratches on the windshield.
The Plexiglas didn't hold up according to Ballard. The damage got
worse over time and it became - became more scratched.

32 FMSHRC Page 1837

He used different window cleaners; usually just dusting it off
made it a little bit better. The scrat~hes obscured
215

his view, mostly with direct light. Driving into the sunlight made it
difficult for him to see, hard to look out the window. The same
experience is true at night when the large lights were on.

·Mr. Ballard indicated that there was a lot of traffic, as I
mentioned before, foot traffic and equipment that he had to watch out
for. He often encountered other workers on foot. He could see that
he did-- he said he could see them but it wasn't clear, he could just
make them out. Driving at night, the glare ofthe.nights in the dark
made it -- made· it difficult, and in Ballard's words it certainly didn't
help any. Lights from other vehicles and lights were on at the plant.
The parties agree that the mine had cleaned the windshield on
a number of days and times with different things. According to
Ballard, none of those things alleviated the problem with the
scratches and the difficulty with seeing out the windshield.

I credit Lapin's testimony first that the windshield was
damaged and next that
216

the windshield obscured the visibility necessary for safe operation,
and also that the condition of the windshield created a hazard to the
equipment operator. Lapin indicated that it was his opinion that
visibility was obscured by the scratches to the extent that the operator
of the vehicle could not operate it safely. He said that the glare of the
sun on the scratches would impede the safe operation of the gator.
Due to impeded vision, a crushing injury would result if the operator
did not see a person in the area and ran over him or if he ran into or
was run into by another vehicle.
Lapin's observation of the windshield are supported by
Ballard in every regard. I find that a violation did occur as alleged by
the Secretary, supported by Mr. Lapin and Mr; Ballard. I understand
that Mr. Hicks testified that he didn't see the scratches, but I credit the
testimony of the other witnesses in that regard~

32 FMSHRC Page 1838

(Tr. 207-216). 1
Section 56.14103(b) requires that "[i]f damaged windows obscure visibility necessary
for safe operation, or create a hazard to the equipment operator, the windows shall be replaced or
removed .. " 30 C.F.R. § 56.14103(b). I find that, based upon the testimony of Lapin and Ballard,
there is a violation.
A number of Commission judges have decided the issues raised bythis standard. In
Walker Stone Company, Inc. 17 FMSHRC 1389 (Aug. 1995) (ALJ), an ALJ vacated a similar
citation because the inspector did not look through the windshield to determine whether visibility
was impaired, and the operator of the vehicle testified credibly that he drove the truck and his
view was not obstructed by the cracks. In the case at hand, the inspector, did not 'sit in the
driver's seat of this particular gafor but he did look through the windshield and Ballard, who
drove the gator daily, testified that the condition of the windshield obscured his vision. · In D &
H Gravel, 31 FMSHRC 272 (Feb. 2009) (ALJ), the Secretary alleged that a cracked windshield
presented a hazard in the form of a risk that an individual would cut their hand while cleaning
the windshield. There, the ALJ found that the risk was so insignificant that the citation for
violation of section 56.l4103(b) was vacated. Id. at 277. Here, the risk is much more
substantial, i.e., that an equipment operator would not be able to see when the sun or the glare
from the lights hit the windshield. The hazard described by Ballard was more than enough to
substantiate a violation of the standard.

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), ajfd,.Sec'y
ofLabor v. Keystone Coal Mining Corp., 151F.3d1096 (D.C. Cir. 1998); ASARCO Mining Co.,
15 FMSHRC 1303, 1307(July1993); Garden Creek Pocahontas Co., 11FMSHRC2148, 2152
(Nov. 1989). The Secretary has met her burden of proving that, on the day of inspection, the
gator had a damaged windshield that obscured visibility to the point that it could not be operated
safely and, consequently, created a hazard to the driver and others working in the area in which
he drove. I find that the Secretary has established a violation.
2.

Significant and Substantial Violation

A significant and.substantial ("S&S"}violation is described in section 104{d)(l) of the
Act as a violation "of such nature as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard." 30 U.S.C. § 814{d)(l ). A violation is
properly designated 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." CementDiv., Nat'! Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
The Commission has explained that:
1

The numbers located at breaks in the transcript quotations refer to the page numbers of the transcript.

32 FMSHRC Page 1839

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

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861F.2d99,
103-04 (5th Cir. 1988), aff'g Austin Power, Inc.~ 9 FMSHRC 2015, 2021 (Dec. 1987) (approving
Mathies criteria).
As noted above, I find that there is a violation of.the mandatory safety standard as alleged
by the Secretary. Second, I find that a discrete safety hazard existed as a .result of the violation,
i.e., the danger associated with the driver of the gator not being able to seewhen operating the
vehicle in sun or in the glare of the lights at night. Third, I find that the hazard created by
driving with an obstructed view will result in an injury to the driver or to a person who crosses
the path of the gator. Fourth, I find that it is reasonably likely that any injury resulting from the
aforementioned hazards would be serious or even fatal.
The difficulty with finding a violation S&S normally comes with the third element of the
Mathies formula. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the
Commission provided additional guidance:
We have explained further that the third element of the Mathies
formula "requires that the Secretary establish a reasonable likelihood
that the hazard contributed to will result in an event in which there is
an injury." U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836
(August 1984). We have emphasi~ed that, in accordance with the
language of section 104(d)(l), it is the contribution of a violation to
the cause and effect of a hazard that must be significant and
substantial. U.S. Steel Mining Co., Inc., 6 FMSHRC 1866, 1868
(August 1984); [f.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 157475 (July 1984). ·
·
This. evaluation is made in consideration of the length of time that the violative condition
existed prior to the citation arid the time it would have existed if normal mining operations had
continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc.,
6 FMSHRC at 1574. The question of whether a particular violation is S&S must be based on the
particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).

32 FMSHRC Page 1840

Lapin designated this violation as a
217
significant and substantial violation. Tve already addressed a number
ofthe issues that -- with regard to significant and substantial when we
talk about -- when I talked about the violation in this case.
Lapin testified that he regarded this violation as S and S because the
condition of the windshield was of such a nature that it created a
hazard to the driver. When the sun was shining or in the light, the
glare in the windshield would cause the driver to be unable to see.
There were pedestrians in the area and I think all witnesses testified
regarding the :number of pedestrians in the area and the number of
other vehicles in the area and there were quite a few. They could not
be seen and would be hit by the gator if the gator were driving into
the sun or into the light.
Ballard· explained a number of -- the number and types of
vehicles in the area along with the pedestrians and the large coal piles
that he had to maneuver around. It's clear that Ballard drove the
gator more near pedestrians and many other types
218
qfvehicles including loaders and maintenance. vehicles.

I credit Ballard's testimony that the windshield was in such a
condition that it created a hazard for the driver, that he couldn't see
a pedestrian or another vehicle at certain times when he was driving
and thatthat condition created the.hazard, ..the discrete safety hazard,
a measure of danger to not only the pedestrians but to the driver of
the vehicle himself.
The mine operator asserts that Ballard continued to drive the
gator, that there were no accidents, that the brakes worked, that other
safety measures were in place, and that Ballard testified that he could
see a pedestrian and other equipment, that the gator moved slowly,
and that the area was not really congested.
Again, I credit the testimony of Ballard and I credit the
testimony of Lapin and I find that the violation was significant and ·
substantial as Inspector Lapin so designated.

32 FMSHRC Page 1841

(Tr. 216-218).
In a similar situation, an AU found that a sand and gravel operator committed an S&S
violation of §56.14103(b) based on a cracked window on a front-end loader. The ALJ credited
the inspector's detailed testimony about the window's condition and found tlie violation to be
S&S because the cracked window obscured the operator's vision, thereby creating a risk of him
running into other equipment, running off the road, or running over another employee. South
West Sand & Gravel Inc., 23 FMSHRC 540 (May 2001) (ALJ).

I find that the preponderance of the evidence establishes that it was reasonably likely that
the hazard presented would contribute to an injury. Even if the brakes on the gator worked and
the gator did not travel at a high speed, it is lijcely that the driver would hit a person crossing his
path or run the gator into the coal pile or other obstruction because his view.was obstructed. The
defenses raised by Lafarge do.not tajce away from the seriousness of the violation and the
reasonable likelihood that an injury will occur. Th.ere is no question that the gator was operated
in a high traffic area with both ~uipment and pedestrians.. Ballard agreed that sometimes he
could see, but, if the sun or a light was shining on the windshield, it was extremely difficult to
see what was ahead. In the course of continued mining operations, an accident was sure to
occur. Further, as mentioned previously, it is reasonably likely that these hazards would result in
injuries of a reasonably serious nature.
3.

Unwarrantable Failure

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," "mtentional misconduct,"
"indifference," or the "serious lack ofreasonable care." Id. at 2003-04; Rochester & Pittsburgh
Coal Co., 13 FMSHRC at 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 violatfon wa8 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., 21FMSHRC997, 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.
Lapin described the condition as obvious and as having existed for an extended period of
time. He designated the negligence level as "high" and found the violation to be an
unwarrantable failure to comply with the mandatory standard. Lapin learned from employees at
Lafarge that there was a problem with the gator and, after.speaking with Ballard, realized that it
had existed for some time. Ballard had constantly made complaints that went unheeded. Lapin
credibly testified to each and every factor used to determine unwarrantability. The violation
32 FMSHRC Page 1842

existed for at least the six months, during which it was brought to the attention of Ballard's
immediate supervisor as well as that individual's supervisor.
·
219
As to the unwarrantable failure, there's a lot of testimony in
this case about what the operator knew regarding this violation. rn
start with Mr. Ballard because Mr. Ballard certainly made the most
complaints about this gator. ··
Exhibit 10, the area checklist, he·filled out those checklists
and put them in the notebook and then Mr. Hicks would look at it and
maybe write -- and write down what he had done to take care of the
situation.
On August 4th, Ballard wrote on the lab vehicle the. gator
needs a new front window, it's scratched up. Hicks wrote that he
tried to clean it with glass cleaner. And Mr. Ballard reported the
condition every day until August 18th.. "He designated the condition·
as U for unacceptable most of the time, on more than one occasion.
Then again on September 1st until September 5th, he reported
every day that the lab vehicle · was unacceptable and listed the
windshield. As far as I can see at this point, the mine cleaned the
windshield
220
and I'm not clear why cleaning the windshield would alleviate the ·
scratches except that Mr. Hicks testified that he didri't see the
scratches so he was working on the assumption that the windshield
needed to be cleaned. The windshield was not removed until
February 4th after the inspector issued a citation.
On September 8th, both shifts again mentioned the windshield
needed to be replaced. It wasn't Mr. Ballard who was -- it was not
only Mr. Ballard who was complaining about the windshield, but I
noticed on the checklist, on both checklists, Exhibit 6 and 10, that
there were other lab technicians who also reported a problem with the
windshield. On September 10th, for example, both lab techs reported
it, not just Ballard. Ballard testified that he got frustrated and finally
stopped reporting it because nothing was being done.
On Augiist -- I find it important that on August 12th, 2010,
Ballard wrote on Exhibit 6, the mobile equipment checklist, if
32 FMSHRC Page 1843

221
someone has an accident because of the windshield, it won't be our
fault. Another person on August 19th said that the windshield is
uncleanable. The checklist went to Hicks and then maybe to Hicks'
-- sometimes to Hicks' supervisor Parker who were supposed to do
something about it..
The condition of the windshield was noted for many.days.
August 12th, again it says that it needs attention as soon as possible,
thatthere could be an accident .. On August(sic) 14th, Mr. Ballard
filled out another fo~ an RIR form, for a safety auditor who came
to this Lafarge plant from the headquarters office, he wrote up the
windshield again, and he was told that someone would take care of
it. It sounds like the person from the Lafarge headquarters office
agreed.· that something should. be done about it. It was Mr.
Thompson, he looked at it, said he ·would take care of it, he said that
it definitely needed attention, but, again, nothing was done. Ballard
said he saw -- he saw no issue -- I'm sorry, strike that.

222
Ballard testified that he continued to complain until he thought he
couldn't do it anymore.
Mr. Hicks testified that he saw no issue with the gator, that
he would not have let Mr. Ballard operate it if he felt it was unsafe·
and that at one point he told Mr. Ballard that he could walk or take
the windshield out. And when -- in fact, when the citation was
abated, Ballard and Hicks together removed the windshield. ·
Hicks testified that he kept cleaning the windshield to make
Ballard happy, doing what he could do in other words. Hicks said
that no one else complained, but a review of the checklists show that
that's not exactly the case, there were several other people who did
complain. One -- again, I will refer to .Exhibit 6 and Exhibit 10.
Hicks testified he tried different products to clean the
windshield in an effort to make Ballard happy. He noted several
times that he did not see the scratches or see any problem with the

223
window but tried anyway to clean the windshield. I find ·that Hicks
did not do enough, he didn't take the problem seriously, and I credit

32 FMSHRC Page I 844

Ballard when he said he was told sarcastically that he could walk or
take the windshield out; that it was management's responsibility to
remove. the windshield if indeed that was determined what the
solution should be, but that the management knew for months, many,
many months that there was a complaint about the windshield and not
enough was done.
The complaints kept coming and cleaning it obviously was
not doing any good. There was never direction from management to
remove the windshield until the citation was issued. Lapin described
the condition as extensive because it was the entire windshield, that
it was obvious, he saw it as soon as he approached the gator, and it
had ..,- as I discussed above, I think the most telling thing is it had
existed for a period of time.
Lapin designated the negligence level as .
224
high and found the violation to be unwarrantable. I agree with Lapin
that the citation is, indeed, unwarrantable with high negligence on the
part of management. I uphold Mr. Lapin's citation in every regard.
(Tr. 219-224).
A number of.the Commission's ALJs have found a violation of this type to be not only
S&S, but an unwarrantable failure. For example, a cracked windshield on a front-end loader
constituted an S&S and ''unwarrantable" violation of §56.14103(b) because the violation was
obvious and nothing had been done to correct it. Bob Bak Constr., 19 FMSHRC 582 (Mar.
1997) (ALJ).
I find that the Secretary has demonstrated, by a preponderance of the evidence, that the
violation was unwarrantable.

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 11 O(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) and 820(a). Thus, when an operator notifies the
Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess
the penalty. 29 C.F.R.§ 2700.28. The Act requires that, "in assessing civil monetary penalties,
the Commission [AU] shall consider" six statutory penalty criteria:
32 FMSHRC Page 1845

[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 i'fegligent, [4] the
effect on the operator's ability to continue in business; [5] the gravity
of the violation, and [6] the demonstrated good faith of the person
charged in attempting to achieve rapid compliance after notification
of a violation.
30 u.s.c. § 820(i).
I accept the stipulation of the parties that the penalties proposed are appropriate to this
operator's size (large operator) and ability to continue in business. The violation was abated in
good faith, and no evidence has been presented to the contrary. The history does not
demonstrate an unusual violation history. I find that the Secretary has established that the
negligence was high and that Lafarge did not take seriously the safety complaints of its
employees. Further, I find that the gravity determined in the order is accurate.
Next is the penalty. There are six penalty criteria addressed
by the commission. The -,- I accept the stipulation of the parties that
the penalties proposed are appropriate to this operator's size, which
is large, and their ability to continue in business, the violation was
abated in good faith, and the history of violations show no other
violations for this particular standard. The violation history is normal
for an operator of this size, but I do note that Mr. Lapin issued two
citations earlier in the day for the same violation. I find that the
Secretary has established that the negligence amounted to high
negligence for the violation and that the graVity was as designated by
the inspector.
And I, given the six-penalty criteria,

225
based on the testimony I heard today, crediting the testimony of
Lapin and Ballard, I assess the $10,000 penalty for the violation.
Once the order is reduced to writing, the company will be ordered to
pay -- the company is ordered to pay $10,000 within 30 days of the
date of that written order.
(Tr. 224-225)

32 FMSHRC Page 1846

III.ORDER
Based on the criteria in section l lO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess a
penalty of $10,000.00 for this violation. Lafarge Midwest Inc. is ORDERED TO PAY the
Secretary of Labor the sum of $10,000.00 Within 30 days of the date of this decision.
I

(\\(.Y\\·\'\-, \\{\~·

Q

Margar¥"~er
T•• Aft~
tive Law Judge

· Admini

Distribution:
Matthew Finnigan, Office of the Solicitor, U.S. Department of Labor, 1999 Broadway,
Suite 1600, Denver, CO 80202
Christopher Peterson, Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO 80202

32 FMSHRC Page 1847

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
72119th STREET, SUITE 443 ·
DENVER, CO 80202-2500
303-844-5267/FAX 303-844-5268

December 10, 2010
CIVIL PENALTY PROCEEDING

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

Docket No. LAKE 2009-675-M
A.C. No. 33-01994-192845

v.
CARGILL DEICING TECHNOLOGY,
Respondent

Mine: Cleveland

DECISION
Patrick DePace, Office of the Solicitor, U.S. Department of Labor,
Cleveland, Ohio, for Petitioner;
Mark Savit, Donna Vetrano Pryor, P~ttori Boggs LLP; Denver, Colorado
for Respondent.

Appearances:

Before: Judge Miller
This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration ("MSHA"), against Cargill
Deicing Technology ("Cargill"), pursuant to sections 105 and 110 of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the ''Mine Act"). The case involves six
violations issued by MSHA under section 104(a) of the Mine Act at the Cargill deicing salt mine
(the "Cleveland Mine" or the ''Mine") located in Cleveland, Ohio. The parties presented
testimony and documentary evidence at the hearing held on October 14, 2010 in Cleveland,
Ohio.
At the hearing, the parties agreed that four of the citations have been settled. The
settlement terms were read into the record and the settlement is approved as set forth below.
Two citations are left for decision, one involving ground control and one involving an electrical
violation.

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
Cargill is the owner and operator of the Cleveland salt mine in Cleveland, Ohio. At the
outset of the hearing, the parties agreed that the Mine is a mine as defined by the Act, that the

32 FMSHRC Page 1848

Mine is subject to the jurisdiction of the Mine Safety and Health Administration, and that the
Commission has jurisdiction to hear this matter. Jt. Ex. l; (Tr. 7).
Both contested citations were issued by Inspector Jan Niceswanger of the Hebron, Ohio
MSHA office. Niceswanger has been a mine inspeetor for six years. Prior to'becoming an
inspector, he worked nearly 30 years in the mining industry, most of which was spent working in
coal mines. He has experience in underground and surface mines. Niceswanger has extensive
training in many areas, is a certified electrician, and was hired by MSHA as an electrical
inspector. (Tr. 19).

a.

Citation No. 6403641

On June 2, 2009, Niceswanger issued Citation No. 6403641 to the Cleveland Mine,
alleging a violation of 30 C.F.R. § 56.3200, which requires, as pertinent to this analysis, that
"[g]round conditions that create a hazard to persons shall be taken down or supported before
other work or travel is pennitted in the affected area." The citati6n (as amended) described the
violation as follows:
Hazardous ground conditions were present on the south rib next to
the A/B Transfer power center, including a prominent overhanging
bulge. A crack exceeding one in~h wide ran vertically from the
mine floor to as high as 12 feet. The bulge was about three feet
wide and 10 to 14 inches thick. A miner would suffer major
traumatic injuries from the falling ground. In addition, the
energized 4160 volt cable was coiled beneath the loose slab and
the power center was located only four to five feet away.
Maintenance personnel, laborers, and the belt crew work and travel
,
the area three shifts per day.
Niceswanger determined that it was reasonably likely that the vfolation would result in an
injury or fatality, that the violation was significant and substantial, that one employee was
affected, and that the negligence was moderate. A civil penalty in the amount of$1,944.00 has
been proposed for this violation.

i.

The Violation

Inspector Niceswanger testified that, while conducting his inspection of the Mine, he
noticed a bulge in the rib adjacent to the power center. Niceswanger testified that the power
center, which had an energized high voltage cable attached, provided power to the conveyor belt
and other parts of the mine. He described the bulge in the rib as being "separated from the
original structure of the wall or rib," ''uncontrolled," "overhanging," and as having "large
cracks." (Tr. 22). Niceswanger took a photograph of the condition as he observed it. Gov. Ex.
3; (Tr. 22-24). The same photograph depicts the proximity of the rib bulge to the power center.
Id. Based upon his observations, Niceswanger determined that the condition was hazardous.

32 FMSHRC Page 1849

Niceswanger explained that the bulge in the rib was considered·a hazard due, in part, to
its proximity to the power center and high voltage, energized cable laying next to it. If the rib
were to fall on the cable or the power center, it is likely that it would ignite a fire. In addition, all
three shifts working in the.mine passed by or worked in the area of the power center and .the
overhanging rib. Niceswanger believed that the condition of the rib indicated that it was likely
to fall. He refused to allow anyone to tap or scale the broken rib because he believed it was too
dangerous, partieularly given its proximity to the power center. He agreed that it would be safer
to test the rib and begin scaling if the power center were moved. It was his observation that the
rib was broken, loose and separated from the wall and that footprints he observed in the area
indicated that miners had worked nearby. Niceswanger did not explain what it might take for the
bulge to come down, and did not explain how large a piece of the wall would need to fall in
order to damage the power cable or power center, thereby increasing the risk of a fire. I can only
conclude from his testimony that he believed the condition to be a hazard because he expected
the entire rib to fall onto the cable and power center.
John Grueber, currently the mine superintendent at the Mine accompanied Niceswanger
during the inspection. Grueber disagreed with the inspector's assessment that the rib was not
safe and offered to get a scaling bar to demonstrate that the rib was not loose. In Grueber' s
experience, simply viewing the area does not provide the information needed to determine if
there is a hazard. Grueber observed the footprints in the area and also observed the 1 inch wide
crack on one side of the rib. He believed that because the crack was only on one side, and not on
any of the other three sides, it was safe, i.e., that it was tied in on the top and back. (Tr. 100102).
After receiving the citation, Grueber, due to the fact that the height of the area would not
accommodate the mechanical scaler, instructed the night crew to move the power center and use
a front end loader and a scaling bar to take doWn the rib. Grueber observed the area after the
work was completed. He saw that, while portions of the rib had been taken down, the entirety of
the rib had not been taken down. (Tr. 102-104). Grueber later learned that, in attempting to take
down the rib, the miners rammed the rib with a loader. Grueber agreed that while ramming the
rib with a loader could damage the machine, it is the proper equipment to use when the
mechanical scaler is not.available.
Mark Khairallah, an hourly employee at the Mine, was asked by his foreman to take
down the rib bulge area cited by Niceswanger. He was instructed to move the transformer and
then begin the scaling. After the transformer was moved, he initially tried to use a ten foot bar to
bring down the rib, but after a short time he determined that it was not effective. As a result, a
loader was retrieved and another individual operating the loader began chipping away at the rib .
bulge with the bucket. Khairallah stood approximately 20-30 feet away from the rib while the .
loader operator broke off small chunks of the rib. According to Khairallah, the rib was not
coming down as expected. When the initial approach of using the loader did not work, he and
the other employee began using the loader to ram the wall at different angles until the material
came down in chunks. In all, the assignment took 2 to 3 hours including the ten minutes to move

32 FMSHRC Page 1850

the transformer, the short time with the scaling bar, half an hour with the loader, and another half
hour for clean up. (Tr. 119-125).
Mike Espenschied, a second hourly employee, testified about his experience working
with Mr. Khairallah to remove the slab. He agreed that, first, the power center was moved, then
they used a scaling bar for about fifteen minutes and, finally, moved onto the loader. He drove
the loader while Khairallah directed him. He adjusted the bucket height and bumped into the rib
with the bucket. He described the· area as being ''too tight" to get the loader· at .a ·good angle to
the rib. He described the· slab as coming down in chunks. (Tr. 129-131). In his view, using the
scaling machine is easier because it has a pick and is designed for scaling..
Neither Mr. Khairallah nor Mr. Espenschied testified· about how long it would take if the
mechanical scaler was used or what the normal amount of time it had previously taken them to
take down loose slabs at this mine. However,. they did indicate their belief that it took an extra
amount of time and effort to remove this particular slab.
Leo Van Sambeek, an expert in rock mechanics, testified on behalf of Cargill: Van
Sambeek disagrees with Niceswanger that visual observation of a crack is sufficient evidence
upon which to make a hazard determination. (Tr. 146-147). Dr. Van Sambeek reviewed the
citation and the photographs, visited the mine after the condition was corrected, and listened to·
the inspectors testimony. Van Sambeek indicates that in order to make ahazard determination·
he would first "sound" the rib. If sounding the rib could not tell him the condition, ·then he
would use a hammer and bolt to determine its condition. If that did not yield a result, he would
next utilize a scaling bar to test the rib to determined if there is· any movement. After reviewing
the rib area where the bulge had been removed, Van Sambeek disagrees that a hai:ard existed
and, instead, believes that it was safe to sound the area.
While Van Sambeek believed that the condition of the rib was such that it was safe to
perform a sounding, he did not discuss the issue of the proximity of the loose rib to the power
center in his analysis. He did testify that he had a concern when he first viewed the photograph
of the rib prior to it being removed, i.e., Gov. Ex.· 3, in that he saw a bulge that he could not
explain. He explained that the photo could lead to the conclusion that there were loose slabs of
rock on the rib. (Tr. 158). However, when he went underground, he determined that what looked
like a bulge, was actually a mismatch of the two faces where they intersect. (Tr. 150). He
testified that, because the loader hit the rib a number of times and was unsuccessful in bringing it
down, he was convinced that the slab was not loose.

I cannot credit the testimony of Van Sambeek with regard to the before and after
photographs and his use ofsuch to form an opinion that what was taken down was not the area
sited. The inspector observed the condition at the time of issuance, while Van Sambeek saw the
area only after it had been abated. (Tr. 156). However, a portion of Van Sf:mbeek's testimony is
useful and supports the Respondent's position that the rib was not hazardous. Van Sambeek
testified that he could not agree with the inspector and that he ''would not characterize [the cited
area] as a ground control hazard." (Tr. 160).

32 FMSHRC Page 1851

The primary issue is whether the ground CQndition, as observed by Niceswanger, was a
hazard. A hazard, has been defined as a danger or risk. I have no doubt that Niceswanger had a
reasonable belief; after viewing the condition of the rib, that it was a danger or risk to miners
who may travel in the area, and particularly a danger or risk of rock falling on the transformer or
cables. However, given that the area had to be rammed with a loader, which resulted in only
small chunks of the rib being removed, it does not appear that the area created a hazard to·
persons. Additionally, Van Sambeek testified that the nature of the ribs in a salt mine are
different than those a coal mine. Further, when such ribs only have a crack along the side, it is
not considered a hazard.

in

The Respondent has relied on a Commission Judge's decision in Springfield
Underground, J 7 FMSHRC 611 (Apr. 1995) (AU), to support its position that visually observing
the cited area is.not enough to support a violation. While I disagree with Cargill's reliance on
that case, I do find that, in this particular case, the testimony reveals that a more. thorough
investigation of the condition was necessary to determine if the rib was a hazard. The witnesses
indicated that it was difficult to bring down the rib. Further, there is a lack of evidence of what
types of activities might cause it to .come down. The Commission has discussed, in. relation to
another standard.involving loose material, that a visual observation along with a sound test was
sufficient to indicate that a roof was loose. Amax Chemica/Co!llpany, 8 FMSRHC 1146, 1149
(Aug. 1986). However, the Commission in Amax refused to agree th;;it there is per se rule
regarding the means necessary to demonstrate that ground is loose. Id. There is not enough
evidence here to substantiate that ongoing activity in the mine would cause the rib tQ fall or that
such a fall would involve a slab large enough to damage the cable or the power center. The
Secretary has not met her burden of demonstrating that the rib created a hazard to persons. For
the foregoing reasons, the citation is vacated.
·
b.

Citation No. 6403648

On June 9, 2009, Niceswanger issued Citation No. 6403648 to the Cleveland mine,
alleging a violation of30 C.F.R. § 57.12040, which requires that "[o]perating controls shall be
installed so that they can be operated without danger of contact with energized conductors." The
citation described the violation as follows:

The main battery switches were installed inside the electrical
panels on #86 and #12 locomotives with bare energized
conductors. The equipment operators would reach inside the panel
to operate the switches. · 72 volts DC was present on the blades of
the switch about two inches below the knob of the knife-blade type
switch. Two other.controls for the remote system were also
located next to bare conductors on the #12 unit. Miners would
operate these .controls routinely on start up and shut down each
weekend and periodically during the week, three shifts per day.
The condition created a shock/burn.hazard. The close proximity of

32 FMSHRC Page 1852

the liVe parts to the controls and the repetitive nature of the
practice made an accident reasonably likely to occur.
Niceswanger determined that it was reasonably likely that the violation would result in an
injury that would lead to lost workdays or restricted duty, that the violation was. significant and
substantial, that one employee \.vas affected, and that the negligence was moderate. A civil
penalty in the amount of$334.00 has been proposed for this violation.
1.

The Violation

fuspector Niceswanger testified that he conducted an inspection of the electric panels on
two of the Mine' s locomotives after he learned that the controls used to operate the locomotive
were located in an area that would expose the operators to energized conductors. Niceswanger
stated that the location of a double-hold knife switch for the main battery, which is used to put the
locomotive into start.:.up mode, would require an operator to place their fingers "right next to
energized conductors." (Tr. 37). During the inspection, Niceswanger asked one of the Mine's
electricians to take a voltage reading at the knife switch depicted in Gov. Ex. 8. (Tr. 215-216).
The electrician determined that voltage at the switch was 72. Id. According to Niceswanger, the
photograph entered as Gov. Ex. 7 accurately depicts the location of the handle'ofthe switch and
its proximity to the energized conductors. (Tr. 36).
The locomotives used at· the Mine are like any train locomotive. They are used to move
railroad cars around the rail yard. Two locomotives, the #12 and #86, had the exposed energized
conductors near or next to the main battery switch that is used by the locomotive operators. In
addition, locomotive #12 had exposed parts near the remote control switch. As Niceswanger
explained,''when the switch is operated, a miner's hand was immediately adjacent to the
eneregized parts." (Tr. 3.9). Gov. Ex. 9 depicts the door that is opened to operate the control,
while Gov. Ex. 10 depicts the remote control operating controls that were installed by the Mine
on at least one of the locomotives. The remote controls were in close proximity to fuses and wire
terminations, whichwere energized bare conductors, that created shock and burn hazards for the
miners exposed to them. (Tr. 41-43). The energized conductors seen on the right hand side of
Gov. Ex. 10 were situated such that a workers hands would be ten to twelve inches from exposed
energized parts when turning on the switch.
Michael Wendell, a contractor for Cargill, testified that he has serviced the locomotives at
the Cleveland Mine for 31 years. Wendell understands that miners only need to access the
controller for the battery after the machine is shut down. Shutting down the battery prevents it
from wearing down. The area is well lit, and he has never contacted an energized part while
working. Wendell described the electrical locker on the #12 locomotive and confirmed that the
photograph entered as Cargill Ex. D accurately depicted the locker. The locker contains the
switches and exposed conductors that were by Niceswanger. · The area marked with a number "3"
in the photo is the battery disconnect switch and, according to Wendell, is not operated when the
locomotive engine is running. The purpose of the switch is to isolate the batteries so they can be
turned off. If the locomotive is not operating, the conductors should have 62-64 volts. The area

32 FMSHRC Page 1853

marked with a nll.mber "2" in the photo is the disconnect for the remote control. An operator will
only touch this area if the remote control must be disconnected and, in his view, it is only
disconnected for the purpose of performing maintenance. The area marked with a number "l" in
the photo is the transfer valve to switch from manual to remote control. Wendell has operated the
switches many times and has contacted the energized componentswhen doing maintenance work,
yet he has not been burned or shocked and, rather, has only felt a tingle. (Tr. 184).
Taimour Ahmed, the maintenance supervisor, testified on behalf of the Mine that the
switches described in the citation are not operating controls. Ahmed testified that an operating
control is a function of a button, or some other object that has power to it, which allow an
operator to tell a machine what to do, e.g., tum signals, brakes, gears. (Tr. 204). Ahmed testified
that he measured the amperage in, the control .box as 30 milliamp, which was far below the level
of amperage that would be necessary to cause a bum to a miner. (Tr. 205). It is his view that it is
not reasonably likely that a miner would inadvertently touch aJ.J.Y component in the electrical box.
He explained that it would be difficult to contact a."bare conductor" due to the distance between
components in the box and the fact that not all of the components would be energized at the time
a miner reaches into the box to flip the battery switch. (Tr. 207-208).
fu essence; it is Cargill' s position that the battery switches inside the electrical panels are
not an "operating control" and, hence, it was improperly cited. Cargill . relies on the fact that the
panel of switches and the battery switch itself are not used to operate the locomotive, and, rather,
are only used to tum off the battery. Thus, Cargill argues that the battery switch is not the
operating control Sor the locomotive. Cargill does not cite any relevant legal authority that
supports its conclusion that a breaker used to de-energize a piece of equipment is not an
"operating control." It appears to be Cargill's position that the battery switches located in the
electrical panel should not be considered an operating control since they are accessed only to deenergize the battery to prevent it. from being drained by lights or other components that may be
left on.
During normal operation of the locomotives, the battery switches at issue·are thrown at
least once a shift on the weekends to cut off power to the battery so as to assure that the battery
does not run down. It follows that, upon start up of the locomotive, the battery switch would, out
of necessity, be thrown in order to allow electricity to resume flowing to the various components
so that the locomotive could be operated. fudeed, the locomotive could not operate if the battery
switch were not reset. Because throwing the switc~ into the off position stops the operation of the
battery and everything it controls, it certainly controls its operation and, accordingly, is within the
purview of the term "operating controls." TX! Port Costa Plant, 22 FMSHRC 1305, 1312 (Nov.
2000) (ALJ) (citing Random House Webster's Unabridged Dictionary 1357(2nd Ed.,1999)).
The only way the battery could be· de-energized· and reset required a miner to open the
door to the electrical panel, reach in, and throw the switch. A similar result was reached in Nelson
Quarries Inc., 30 FMSHRC 254 (Apr. 2008) (ALJ). In Nelson Quarries, circuit breakers in a
cabinet were found to be operating controls that were in close proximity to exposed wires and
terminals. The AU found that the proximity created a risk of shock for anyone who opened the

32 FMSHRC J>age 1854

cabinet. Here, according to Niceswanger, the locomotive operator would be placing his hand into
the control box often and each time he did, he would be exposed to an area of energized
conductors which he could inadvertently contact. ·Therefore, I find that the Secretary has shown
that the operating controls were not installed to prevent the danger of contact and has established
that Cargill violated Section 57A2040 as alleged.

11.

Significant and Substantial

A significant and substantial ("S&S'') violation is described in section l 04(d)(l) of the
Act as a violation "of such nature as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard. "A violation is properly designated
S&S "if, based upon the particular facts surrounding.that violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious
nature." Cement Div., Nat'l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
The Commission has explained that:

In order to establish that a violation of a mandatory s_afety 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., 6FMSHRC l, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal,
Inc. v. MSHA, 52'F.3d 133, 135(7th Cir. 1999); Austin Power, Inc. v. Secretary, 861F.2d99,
103-04 (5th Cir. 1988), ajj'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving
Mathies criteria).
As noted above, I find that there is a violation of the mandatory safety standard as alieged
by the Secretary. I find, further, that the violation contributed to the hazard of an electrical shock.
Third, the hazard contributed to will result in an injury. Finally, given the exposure to electricity,
even at low levels, the injury would certainly be serious.
The question of whether a particular violation is significant and substantial must be based
on the particular facts surrounding the violation. Texasgu,/f, Inc., 10 FMSHRC 498 (Apr. 1988);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). I find that the facts of this
violation clearly lead to a finding that it was a significant and substantial violation.

32 FMSHRC Page 1855

Niceswaiiger explained in detail his reasoning for designating this violation as S&S. ··First,
he described the hazard as one of a shock or bum. He measured 74 volts in the electrical panel.
Niceswanger testified that, if a miner came in contact with the bare wires or conductors that
possessed 74 volts, there would be a shock hazard. In addition;. the locomotive operators would
need to reach in the area each time they shut down and started up the motor. Moreover,
Niceswanger testified that he learned that the locomotive operators did not use gloves when
reaching into the electrical panel. (Tr. 44-45). As a result, the proximity of the various exposed
electrical parts to the switches, and the frequency at which the locomotive operators would need
to access the area made it reasonably likely that a miner would come in contact with the bare
wires or conductors.
According t.o Niceswanger, the amount of voltage does not cha,nge if the locomotives are .
running or idle. The voltage is enough to cause a. burn or shock to the operator who inadvertently
comes in contact with the exposed energized parts. Niceswanger did not measure the amperage,
but opines.that even.less than 1 amp µas an effect on a person who· contacts the exposed parts. In
addition, should a short or fault occur, there is a greater potential for a bum when operating the
switch.
Ahmed and Wendall both testified that the shock from contacting a bare wire or conductor
inside this box would be minimal. They also allege that the components ip. the box are too close
together to allow contactwith the bare conductors. However, I credit the testimony of
Niceswanger, a certified electrician, who finds this to· be a serious hazard. The Secretary has
established that the violation was S&S.

c.

Settled Citations

At the hearing, the parties entered into stipulations resolving the remaining four violations
as follows:
Citation No. 6403643:
Citation No. 6403644:
Citation No. 6403645:
Citation No. 6403646:

. No changes, penalty is $100.00
Vacate
Vacate
Reduce penalty from $150.00 to $100.00

Total penalty of settled citations:

$200.00

I accept the stipulations and the modifications made by the Secretary. Pursuant to the
agreement reached by the parties, I assess a $200.00 penalty for the violations that have been
settled.

32FMSHRCPage1856

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(1)
of the Mine Act delegates to the Commission and its judges "authority to assess all civil
penalties providedin [the] Act.'' 30 U.S.C. § 820(1). The Act delegates the duty of proposing
penalties to the Secretary._ 30
§§ 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:

u:s.c.

[1] the operator's history of previous violations, [2] the
appropriateness of such penalty to the size of the business of the
operator charged, [3] whether the operator was negligent, [4] the
effect on the operator's ability to continue in business, [5] the
gravity of the violation, and [6] the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after
notification of a violation.
30

u.s.c. § 820(i).

In keeping with this statutory requirement, the Commission has held that "findings of
fact on the statutory penalty criteria must be made" by its judges. Sellersburg Stone Co., 5
FMSHRC 287, 292 (Mar. 1983), ajf'd, 736 F.2d 1147 (7th Cir. 1984). Once findings on the
statutory criteria have been made, a judge's penalty assessment for a particular violation is an
exercise of discretion, which is bounded by proper consideration of the statutory criteria and the
deterrent purposes of the Act. Id. at 294; Cantera Green, 22 FMSHRC 616, 620 (May 2000).

As to Citation.No. 6403648, I accept the stipulations of the parties that the penalty
proposed will not affect the Respondent's ability to continue in business and that the violations
were abated in good faith. The history shows a number of electrical violations in the twenty-four
months preceding this violation. I agree that the violation demonstrates moderate negligence.
Further, I find that the Secretary has established the gravity as described in the citation and
discussed above. I assess a penalty of $500.00 for this citation.

III. ORDER
Based on the criteria in section l lO(i)ofthe Mine Act, 30 U.S.C. § 820(i), I VACATE
Citation No. 6403641, and AFFIRM Citation No. 6403648 and assess a penalty of$500.00.
Prior to hearing, the parties reached a settlement as to the four remaining violations in this
docket resulting in a $200.00 penalty. The motion to approve settlement is GRANTED. Cargill

32 FMSHRC Page 1857

Deicing Technology is hereby ORDERED TO PAY the Secretary of Labor the swn of $700.00
within 30 days of the date of this decision.

Distribution: (U.S. Certified Mail}
Patrick DePace, Esq., Office of the Solicitor, U.S. Dept. of Labor, 881 Federal Office Building,
1240 East Ninth Street, Cleveland, OH 44199. ·
Mark Savit, Esq., Donna Pryor, Esq., Patton Boggs LLP, Suite 4900, 1801 California Street,
Denver, CO 80202

.,

32 FMSHRC Page 1858

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

December 16, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, {MSHA),
Petitioner

v.

HIGHLAND MINING CO., LLC,
Respondent

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 2008-1083
A:C.No. 15-02709-150056-01
Docket No. KENT 2008-1084
A.C. No. 15-02709-150056-02

Highland No. 9 Mine

DECISION
Appearances: Jennifer Booth, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville,
Tennessee, on behalf of the Petitioner;
Michael Cimino, Esq., and Brad Oakley, Esq., Jackson Kelly, Charleston, West
Virginia, on behalf of behalf of the Respondent.
Before:

Judge Melick ·

These cases are before me upon the petitions for civil penalties filed by the Secretary of
Labor pursuant to section 105{d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq., {the "A.ct;') charging Highland Mining Co., LLC {"Highland") with 39 violations of
mandatory standards and seeking civil penalties for those violations~ The general issue before
me is whether Highland violated the cited standards as charged and, if so, what is the appropriate
civil penalty to be assessed for those violations. Additional specific issues are addressed as noted.
At hearings, the parties proffered that a partial settlement had been reached regarding 36
of the charging documents at issue herein. A formal motion for settlement of those charging
documents was submitted post hearing proposing civil penalties of$78,340.00 for the violations ·
charged therein. I have reviewed the documentation and representation$ submitted and find that
the proposed settlement is acceptable under the criteria set forth in section 11 O(i) of the Act.
Accordingly, an order directing payment of those penalties will be incorporated in this decision.
As a preliminary matter at hearings, and by subsequent post hearing motion, the Secretary
modified Order Number 6695564, issued on November 27, 2007, from an order issued pursuant to

32 FMSHRC Page 1859

section 104(d)(2) of the Act to a citation issued pursuant to sectionl04(a) of the Act. 1 The
Secretary also modified Order Number 6695579 from an order issued under sectfon 104(d){2) of
the Act to one issued under section 104(d)( 1) of the Act.
Citation Number 6695769

This citation alleges a ·~significant and substantial" violation of the standard at 30 C.F.R
§75.1725(a) and charges as follows:
The beltline on 064 MMU was not being maintained in safe operating
condition. A belt roller top chair had broken loose from the belt frame and
was lodged between the top and bottom belts. Smoke from the top chair
rubbing the belts was in the air and the top chair was hot .to touch. The
company stopped the belt and removed the top chair from between the top
and bottom belts.
The cited standard provides that "mobile and stationary machinery and equipment shall
1

Sectionl04(d) provides as follows:

(1) If, upon any inspection of a coal or other mine, an authorized representative of the Secretary

finds that there has been a violation of any mandatory health or safety standard, and if he also finds
that, while the conditions created by such violation do not cause imminent dariger, such violation
is of such nature as could significantly and substantially contribute to the cause and effect of a coal
or other mine safety or health hazard, and ifhe finds such violation to be cause<;t by an unwarrantable
failure of such operator to comply with such mandatory health or safety standards; he shall include
such finding in any citation given to the operator under this Act. If, during the samejnspection or
any subsequent inspection of such mine within 90 days after the issuance of such citation, an
authorized representative of the Secretary finds another violation of any mandatory health or safety
standafd and finds such violation to be also caused by an unwarrantable failure of such operator to
so comply, he shall forthwith issue an order requiring the operator to cause all persons in the area
affected by ~uch violation, except those person referred to in subsection (c) to be withdrawn from,.
and to be prohibited from entering, such area until an authorized representative of the Secretary
detefmines that such violation has been abated.
(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 ofviolatio~s similar
to those that resulted in the issuance of the withdrawal order under paragraph (1) l.llltil 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
mme.

32 FMSHRC Page 1860

be maintained in· safe operating condition.. Machinery or equipment in unsafe condition shall be
removed from service immediately."
Jeffrey Winders, an inspector for the Department of Labor's Mine Safety and Health
Administration ("MSHA''),.was inspecting the Highland No. 9 mine on April 12, 2008 when he
smelled smoke from what he recognized as burning rubber. He tracked the smoke to the belt
where a belt roller top chair had broken loose from the belt frame and was lodged between the
top and bottom belt. He observed smoke emanating from the top' chair which was rubbing
against the belt. He also noted that the top chair was hot to the touch. To remedy the problem,
the company representative stopped the belt and removed the top chair from between the top and
bottom belts.·· Within this framework of undisputed evidence, it is clear that the violation is
proven as charged.
The Secretary also maintains that the violation was "significant and substantial." A
violation is properly designated as "significant and substantial" if, based on the particular facts
surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature. Cement Division, National Gypsum
Co., 3 FMSHRC 822, 825 (April 1981). fu Mathies Coal Co., 6FMSHRC 1, 3-4 (January
1984), the Commission explained:

fu order to establish that a violation of a mandatory standard is significant and
substantial under National Gypsum, .the Secretary must prove: (1) the underlying
violation of a mandatory safety standard, (2) a discrete safety hazard - that is, a
measure of danger to safety- contributed to by the violation, (3) a reasonable
likelihood that the hazard contributed to will result in injury and (4) a reasonable
likelihood that the injury in question will be of a reasonably serious nature. See
also Austin Power Co. v Sec'y ofLabor, 861 F.2d 99, 103-04 (5th Cir. 1988),
aff'g 9 FMSHRC 2015, 2021(Dec.1987) (approving Mathies criteria).
The third element of the Mathies formula requires that the Secretary establish a
reasonable likelihood that the hazard contributed to will result in an event in which there is an
injury, US. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984), and also that the
likelihood of injury be evaluated in terms of continued normal mining operations. U.S. Steel
Mining Co., Inc., 6 FMSHRC 1573, 1574(July1984). See also Halfway, Inc., 8 FMSHRC 8, 12
(January 1986); Southern Ohio CoalCo., l3 FMSHRC 912, 916-917(June1991).
In this regard, Inspector Winders opined that, under continued normal mining operations,
the cited condition would worsen and result in a fire. According to Winders' credible testimony,
there was coal inside the belt framing. It may reasonably be inferred that, under continued
mining operations, it is reasonably likely that hot pieces of belt would ignite such coal. Should a
fire occur, it is reasonably likely that bums or smoke inhalation would result causing injuries to
persons working on the return side, i.e. two roof bolters, a miner operator and a miner operator
helper. Within this framework of credible evidence, I conclude that indeed the violation was

32 FMSHRC Page 1861

"significant and substantial." In reaching this conclusion, I have not disregarded the inspector's·
acknowledgment that he found no methane in the area nor coal accumulations in contact with the
rollers. He further acknowledged that he did not see any belt shavings on the ground and did not
detect any carbon monoxide. However, not only did he observe smoke emanating from the belt
in contact with the top chair, but I find his conclusion credible that, under normal continued
mining operations, that condition would likely result in additional smoke and fire.
Based on fuspector Winders' acknowledgment, however, that the condition could have
existed only moments before his discovery and that he did not believe that the condition was
recognized by anyone, I conclude that the Secretary has failed to sustain her burden of proving
the existence of negligence. This factor is taken into consideration in reducing the Secretary's .
proposed penalty for this violation.
Citation Number 6695564
This citation, originally issued as a "section 104(d)(2)" order, was.modified, as previously
noted, to a citation issued pursuant to section 104(d)(l) of the Act and alleges a"significant and
substantial" violation of the standard at 30 C.F.R §75.203(b). The citation charges as follows:
The No. 1 and No. 2 entries on the No. 4 (064-0) MMU. were driven together in
the last open crosscut at spad 11 +07. The entries were driven together due to not
having a proper sight line installed, to project the direction of mining in the
crosscut between the No. 2 and No. I entries one crosscut outby the last open
crosscut,and one properly installed to turn the right crosscut to pick up the No. 1
entry. The No. 1 entry cut into the No. 2 entry on the second cut leaving an 8 inch
pillar on the inby side.
The dted standard provides that "[a] sight line or other method of directional control
shall be used to maintain the projected direction of mining in entries, rooms, crosscuts and pillar
splits."
MSHA fuspector Archie Coburn, Jr. testified that he wa5 at the subject mine on
November 27, 2007 when he observed that the No. 1 and No. 2 entries on the No. 4 unit were
driven together in the last open crosscut at spad 11+07. Coburn was not present when the entries
were cut, but nevertheless concluded that the entries were driven together due to not having a ·
proper sight line installed to project the direction of mining.
Coburn also claimed that the continuous miner operator at the scene told him thatthere
had been no sight line but rather the rib line was used in cutting the crosscut. Coburn also
alleged that Jeffery Wilkens, the section foreman, admitted that he made a mistake and had not
installed sight lines. Coburn also testified that it was "obvious" to him that the angle ofthe
crosscut was wrong.
Section Foreman Wilkens testified affirmatively that he did not tell mine fuspector
32 FMSHRC Page 1862

Coburn that he did not use sight lines. Wilkens testified that he used fluorescent orange paint to
make a sight line but admitted that his calculations in locating the sight line were incorrect
thereby leading to the misdirection of the crosscut.
Allen Rigney, the miner operator who cut the cited crosscut, is a member of the United
Mine Workers of America. He testified that he in fact used a sight line to make the subject cut
and that the sightline was made with reddish-orange fluorescent paint on the roof Rigney
testified that Wilkens was·his foreman and that Wilkens had never asked him to cut without sight
lines. Rigney also observed that sight lines can become obliterated by the swing duster. Indeed,
Inspector Coburn himself also acknowledged that sight lines can be obliterated by water sprays,
rock dusting or by cutting with a continuous miner. Rigney also testified that he did not notice
that the angle of the cut was misdirected and that ifhe had he would have stopped mining and
notified his boss. Rigney testified that the sight line drawn by Wilkens was eight to ten feet long
and three inches to four inches wide.
Randy Johnson, Highland's safety supervisor, accompanied Inspector Coburn on his
April 27, 2007 inspection. Johnson testified that he indeed saw the sight line in fluorescent
orange paint in the subject area. Since Coburn, while underground, never told Johnson that he
was going to write an order for the absence of a sight line, Johnson did not consider it necessary
to show Coburn the sight line that was present.
In resolving the conflicting testimony,· I note that the inspector had not previously
disclosed the pmported admissions in his deposition, nor did he,report these purported
admissions of Wilkens and Rigney in his notes. Considering the cross corroboration of the .·
credible testimony of Wilkens, Rigney and Johnson, I can only conclude thatthe inspector's·
recollection of events that had occurred nearly three years before trial must have been mistaken.
Under the circumstances, I find that, indeed, sight lines had properly been painted on the mine
roof as required ·by the cited standard. Citation Number 6695564 must accordingly be vacate&

Order Number 6695579
This order, as modified to a "section 104(d)(l)" order, alleges a "significant and
substantial" violation of the standard at 30 C.F,R §75.370(a)(l) and charges as follows:
The approved ventilation, methane and dust control plan in affect [sic] at this time
was not being complied with on the 4-C belt and supply road. The following
conditions were present 1. The required 3,000 CFM was not present in the
supply road at crosscut 15 where the company No. 38 Diesel 2 man personnel
carrier was operating. The Supply Getman requiring 6, 000 CFM was also
operating in the supply road at crosscut 8 out by this area. When measured, with a
chemical smoke tube zero air movement was measured. 2. The air was not
moving in the proper direction on the belt line from crosscut 15 to 234. The air
was moving out by along the belt line. This belt line uses a heat point fire
detection system. The preshift report show that the air was moving out by from
32 FMSHRC Page 1863

the backup curtains outby through the unit air locks. This condition was reported
to the mines ventilation supervisor. The preshift was signed by the Section
Foreman and Mine Foreman prior to the start of the shift. When check the air was
still moving outby from the backup curtains through the air locks. The No. 4
section was in full production when the conditions were present.
The cited standard provides in relevant part that "the operator shall develop and follow a
ventilation plan approved by the district manager:"
It is noted that the order·at issue actually charges two violations i.e. (1) insufficient air in
the supply road and (2) air moving in the wrong direction on the beltline. Highland admits to the
violations but maintains that they were neither "significant and substantial" nor the result of its
unwarrantable failt1re.
Inspector Coburn testified that around 7:00 a.m. on December 5, 2007, he read the preshift examination book and saw the statement, "unitpre.,.shifted from outby low framing to faces
air traveling outby from backup through airlocks outby, reported to Troy Cowan." ( Ex. G-12).
Coburn did not travel to the unit to inspect the reported condition butrather gave the operator an
opportunity to correct it. When Coburn later arriv~d at the unit around 9:00 a.m;, he found that
the ribbons in the neutral were not moving. Coburn observed that the air was moving from the
face outby through the unit airlocks and moving backwards down the belt line and supply road.
Coburn testified that the air moving down the belt line and supply road was not being dumped
into the return regulator at the unit airlock (Ex. G-9). Coburn further testified that the air should
have been moving inby towards the low framing and that the incorrect air movement was a
violation of the operator's ventilation plan. (Ex. G-10).
Coburn initially attempted to use an anemometer to determine the air movement, but
since, there was insufficient air movement he had to use a smoke tube. Coburn thereby
determined that the air was moving away from the unit outby. Inspector Coburn also observed
that a two-man personnel carrier was situated just outby the unit airlocks and had a minimal
amount of air movement around it. He further testified that the two-man carrier required 3000
cubic feet per minute (c.f.m.) of air designated on the equipment's .air measurement tag... Coburn
also observed a Getman supply diesel in the supply road and noted that there was insufficient air
for the Getman to operate in the supply road. The Getman diesel requires 7000 c.f.m. (Ex. G-9).
Inspector Coburn opined thatinsufficient air movement over the two-man personnel carrier and
the Getman supply diesel exposed the miners on the unit to carbon monoxide fumes produced by
this equipment.
After observing the condition, Inspector Coburn spoke with Ventilation Supervisor, Troy
Cowan, about the air moving outby, in violation of the ventilation plan. Cowan stated that he had
hung a curtain, shut the belt off and restarted it, and assumed that if they were working on the
problem then they could continue to run. Additionally, Coburn spoke with Section Foreman
Eddie Barber and asked him why the unit was still tunning with the air going backwards. Barber
responded that because the beltwas running when he arrived he assumed the condition.had been
32 FMSHRC Page 1864

corrected. Barber admitted, however, that he did not check to ensure that the condition had been
corrected.
The Secretary maintains that the admitted violation was "significant and substantial." In
this regard, fuspector Coburn indicated that the cited condition wa8 reasonably likely to
contribute to a discrete safety hazard, i.e. a belt fire and diesel fumes. He opined that if a fire
were to occur on the belt line the personnel on the unit would not know or have any warning that
there was a fire outby
because the air was moving away rather than toward them. He further opined that this condition
would affect all ten·persons on the un:it. I find that Cobum's expert testimony is credible and
provides ample proof that the cited violation was indeed "significant and substantial" and of high
gravity. fu reaching this conclusion, I have not disregarded Respondent's argument that there
was no evidence in this case of any accumulations, heat source or ignition source for a belt fire.
However, this argument fails to recognize continued mining operations as required in any
"significant and substantial" analysis. It also fails to 'recognize the hazard of carbon monoxide
from diesel emissions.
·
The Secretary maintains that the violation was also the result of Highland's
'\mwarrantable failure." This Commission has defined unwarrantable failure as "aggravated
conduct, constituting more thari. ordinary negligence, by a mine operator in relation to a violation
of the Act" and has indicated thatan unwarrantable failure implies indifference, wilful intent, a
knowing violator, or a serions lack of reasonable care. Emery Mining Corporation 9 FMSHRC
1997, 2004 (Dec. 1987). The Commission has considered· a number of factors to be relevant
when determining whether a violation is the result of unwarrantable failure, stating as follows:
We examine various factors in determining whether a violation is
unwarrantable, including the extent of a violative condition, the length of
time that it has existed, whether the violation is obvious or poses a high
degree of danger, whether the operafor has been placed on notice that
greater efforts are necessary for compliance, and the operator's compliance
efforts made prior tothe issuance of the citation or order.(Citations
omitted). Repeated similar violations may be relevant to an unwarrantable
failure determination to the extent that they serve to put an operator on
notice that greater efforts are necessary for compliance with a standard.

Amax Coal Co., 19 FMSHRC 846, 851(May1997).
Further, this Commission has found that because a supervisor is held to a high standard of
care, evidence of a supervisor's involvement in the violation is an important factor supporting an
unwarrantable finding. See Lafarge Constr. Materials, 20 FMSHRC 1140, l 145-1 l48 (Oct.
19~~
.
fu this regard, Coburn testified that the violative condition was a result of the operator's
high negligence and unwarrantable failure because Mine Foreman Danny Thorpe, Ventilation
32 FMSHRC Page 1865

Supervisor Troy Cowan and Section Foreman Eddie Barber had all signed off on the fire boss
report that listed the violative condition. According to Coburn, those agents of the operator,
therefore knew of that condition and failed to correct it before running coal. Coburn further
noted that he gave the operator at least two hours to correct the violative condition and the
operator nevertheless still failed. to correct it. I find that three agents of the operator (the !hree
supervisors) demonstrated a serious lack of reasonable care and indifference to the safety of the
miners on the unit when they allowed
production to continue without correcting the violative condition. fudeed, the ventilation
supervisor
and sect~on foreman were on the unit and aware of the violative condition yet failed to verify that
it had been corrected before producing coal. Under all the circumstances, I find that the .
Secretary has clearly met her burden of pr()ving that the violation herein was• Uie result of
Highland's unwarrantable failure and high negligence.
fu reaching this conclusion, I have not disregarded the Respondent's argwnent that the
language in the preshift report did not place its agents on notice of the precise violative
conditions cited herein. I find however, that whether or not the same precise violative
conditions were set forth in the preshift report, the report provided sufficient notice of the cited
ventilation problems to Respondent's agents so tha.t they were thereby placed on notice.
Moreover, aside from the notice provided by the prespift report, it is cleat: that Respondent's
ventilation supervisor and section foreman had actual knowledge of the violative condition but
failedto verify that it had been corrected before running coal. Their failure to correct those
problems was therefore the result of high negligence ~d unwarrantable failure.
Civil Penalties

Under Section 11 O(i) of the Act, the Commission and its judges must consider the
following fa,ctors in assessing a civil penalty: the history of violations, the negligence of the
operator in committing the violation, the size of the operator, the gravity of the violation, whether
the violation was abated in good faith ~d whether the penalties would affect the operator's
ability to continue in business. It is also noted that Section l 10(a)(3) of the Act qualifies and
may supercede the provisions of section 11 O(i) by imposing mandatory minimum penalties for
"section I 04(d)" violations.
The operator is large in size and has a significant history of violations (from within
twenty-four months of the violations at issue) .. There is no evidence that the penalties imposed
herein would affect the operator's ability to stay in business. There is no dispute that the
violations were abated in good faith. The gravity and negligence of the violations have previously
been evaluated.

ORDER
Citation No. 6695564 is hereby vacated'. Citation No. 6695769 is affirmed with a civil
penalty of $1,500.00. Citation No._ 6695579 is affirmed with a civil penalty of $38,500.00.
32 FMSHRC Page 1866

Highland Mining Co., LLC, is directed to pay the above civil penalties within 40 days of the date
of this decision. Further, pursuant to the motion for partial settlement filed herein, Highland
Mining Co., LLC, is directed to pay additiona:i civil penalties of$78, 340.00 within 40 days of
the date of this decision.

·

k

~ ' ..

~li~~

-~

Administrative Law Judge · .
202-434-9977

Distribution: (Certified Mail)
Jennifer D. Booth, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
·
Suite 230, Nashville, TN 37219-2456
Michael T. Cimino, Esq., and Brad Oakley, Esq., Jackson Kelly, PLC, 1600 Laidley Tower, P.O.
Box 553, Charleston, WV 25322
Ito

32 FMSHRC Page 1867

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, NW, Suite 9500
Washington, DC 20001-2021
Telephone No.: 202-434-9950
TelecopierNo.: 202-434-9954

December 16, 2010
SECRETARY OF LABOR, MSHA, on
DISCRIMINATION PROCEEDING
behalf of OKEY SARTIN,
Complainant
Docket No. WEVA 2010-1004-D
HOPE CD 2010-04
v.

KIAH CREEK TRANSPORT, LLC,
Respondent

Mine ID 46-07809
Kiah Creek Preparation Plant

DECISION
Appearances:

Karen Bare.field, Esq'., Office.of the Sohcitor, US. Department of Labor,
Arlington, Virginia, for Complainant.
.
.
.
Mark E. Heath, Esq., Spilman, Thomas, Battle, PLLC, Charleston, West
Virginia, for Respondent.

Before:

Judge Zielinski

This case is before me on a complaint of discrimination filed by the Secretary of Labor,
on behalf of Okey Sartin, pursuant to section 105(c)(2) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 815(c)(2). 1 The Secretary alleges that Kiah Creek Transport, LLC,
unlawfully discriminated against Sartin by terminating him in retaliation for his complaints about
safety. A hearing was held in Charleston, West Virginia, and the parties filed briefs following
receipt of the transcript. For the reasons set forth ~elow, I find that the Secretary has failed to
prove that Sartin was discriminated against in violation of the Act.
Findings of Fact
Argus Energy WV, LLC, operates a large surface and sub-surface coal mine in Wayne
County, West Virginia. Kiah Creek Transport is a trucking company that contracted with Argus
Energy to transport coal from stockpiles to a tipple at the mine, known as the Kiah Creek
1

Pursuant to section 105(c)(2) of the Act, a miner may submit a complaint of
discrimination to the Secretary of Labor, who must conduct an investigation and file a complaint
with the Commission if she determines that the Act has been violated. If the Secretary finds that
the complaint ''was not :frivolously brought," she may also seek an order temporarily reinstating
the miner. 30 U.S.C. § 815(c)(2). The Secretary filed a Temporary Reinstatement Proceeding on
behalf of Sartin. Sec '.Y ofLabor on behalf ofSartin v. Kiah Creek Transport, LLC., Docket No.
WEVA 2010-771-D. Pursuant to agreement of the parties, an order was entered on April 5,
2010, economically reinstating Sartin effective March 31, 2010.
32 FMSHRC Page 1868

Preparation Plant. Large tractor-trailer trucks, typically carrying 60 tons, are used to transp0rt the
coal. Kiah Creek operated approximately 20 trucks, loaders and other equipment, and its
operations were based in a shop building on the mine site, where maintenance and repairs were
done. Truck drivers worked on two shifts, six days a week. Generally, eight truck drivers would
work on the second shift, from 5:00 p.m. to 5:00 a.m., Monday through Friday, and every other
Saturday. Ricky Vance was the second shift supervisor. Kevin Fields was the superintendent of
Kiah Creek's trucking operations, which included the off-road mine site work and an operation
transporting coal to river docks in Kenova; Wisconsin. Shane Farley was the truck boss at Kiah
Creek, and worked under Vance.

In March of 2009, Sartin was unemployed because of chronic medical problems. Tr. 19;
He hadpreviouslyworked in underground coal mines. While he had not operated large trucks in
some time, he was familiar with them because his father worked with heavy equipment and ·
trucks. Ex. P-4. One of Sartin's friends happened to work with Vance's wife, and mentioned
Sartin's situation to her. Vance's wife talked to him, recommending that Kiah Creek consider
Sartin. Vance suggested to Fields that they hire Sartin and give him a chance to "get back on his
feet." Tr. 158. Sartin submitted an application to Kiah Creek, was interviewed by Fields, and
was hired as a second shift haul truck driver on March 13, 2009. Tr. 20, 210; Ex. R-1. ·
The employment agreement signed by Sartin provided that, after a probationary period,
his employment could be terminated as part of a progressive disciplinary process, or without
prior disciplinary action if his actions, in the Company's judgment, warranted immediate
termination. Examples of actions that could result in termination without prior disciplinary
action included: absence without approved leave, disorderly conduct, and excessive absenteeism
or tardiness. Ex. R-1.
-Vance and Farley were very supportive of Sartin, who was living out of his vehicle.
Vance occasionally gave him rides to and from work, brought him food, and gave him money to
buy gasoline. Tr. 22, 70, 159; Ex. P-5. Later, when Sartin experienced health problems, Vance
transported him home from the hospital. Tr. 159; Ex. P-5. Farley also occasionally provided
transportation for Sartin to and from work, and gave him gasoline and food. Tr. 197. Sartin
agreed that the company bent over backwards to help him out in the spring of 2009. Tr. 71.
After Sartin started receiving paychecks, he acquired a small trailer. Although he may have had a
disagreement with one co-worker, Sartin's relationships with co-workers and supervisors were
unremarkable. Tr. 72. Sartin and Vance agreed that they got along well. Tr. 71, 80, 159. Farley
also got along well with Sartin, and wentfishing with him a couple of times. Tr. 83, 197.
For the first several months of his employment, Sartin performed very well. Tr. 160, 198.
Around June or July, he was victimized in an internet scam. He was tricked into sending money ·
to a woman who would supposedly come to the United States and live with or many him; He
lost about $2,600.00 before he realized that he was being taken. Sartin testified that the incident
did not affect his work performance. Tr. 24; However, his supervisors noticed that his attitude
began to change. Tr. 160-61, 21 l-12. Vance reported that Sartin started missing work and didn't

32 FMSHRC Page 1869

seem to care about anything. Ex. P-5. ·
Beginning in July2009, Sartin experienced serious health problems, mainly related to
high blood pressure. He was taken from mine property in an ambulance a few times, and
suffered a minor stroke while on mine property. Argus Energy's human resources and payroll
administrator, Rebecca Hall, compiled a list ofSartin's absences from July l; 2009, through
February 6, 2010, along with a statement of reasons, or excuses, claimed for such absences.2
Ex .. p.,.1, .The list is inaccurate in several respects. 3 The period beginning on Monday, December
14, 2009, through Tuesday, January 12, 2010, is the more critical time. Sartin was absent 14 of
the 22 work days. He was hospitalized on four of those days, although it is unclear whether
Respondent was aware of that. 4 He submitted an excuse for five days, admitted thathe had no
excuse for absences on January 5 and 8, and claimed that Fields· had told him to take Friday the
9th off and that he was suspended beginning on Monday the 11th. Tr. 34-35.
Fields testified that he was running out of patience with Sartin's poor attendance. He.and
Vance had talked to Sartin about the problem. Tr. 228. Following Sartin's absence on January 8,
Fields told.Sartin that heneeded to have a doctor's excuse before he couldcome back to work..·
Tr. 226, 230. When Sartin advised that he could not produce an excuse, Fields told him that he .
was going to be suspended for four days. Tr. 230.

2

The concept of an "excused" absence is somewhat misleading. Aside from vacation
days, for which they were paid in a lump sum in July, miners, like Sartin, were not paid for days
they did not work, regardless of the reason. Miners who worked all assigned days in a month
received a $150 attendance bonus. Any day missed, except for a vacation day, voided the bonus. ·
Tr. 147. Excuses, apparently were relevant only as in indication of an employee's reliability, and
to provide an opportunity to manage work schedules and seek possible replacements. If a driver
simply failed to show up, Fields explained that his truck sat, production was disrupted, and the
driver's performance was adversely affected. Tr. 216.
3

Sartin's time sheet for December 4 through 20, shows that he did not work on six of
the 10 week days, whereas,· the list shows that he was absent on only four days. Ex. P-1, P-13 at
11. The time sheet for December 21 through January3, bears a notation "Had [Dr?] excuse for
all days off," whereas Argus's list does not note an excuse for five absences in that time period.
Ex. P-1, P-13 at 12. Argus's list shows that Sartin was absent on January 6 and 7. Sartin
testified that he worked on January 6 and 7, and histime sheet appears to confirm his claim. Tr.
34, 52; :µx. P-13 at 13.
·
4

The Secretary introduced medical records establishing that Sartin was hospitalized
from December 15 thrQugh 18. Ex. P-12. The hospitalization apparently was not reflected in
Argus's payrol1 records, and is not reflected on Argus's list of absences.

32FMSHRCPage1870

On January 13, Sartin was called in, was counseled by Vance and Fields about excessive
absenteeism, and was suspended for four days. 5 A form signed by all parties memorializes that
Sartin was counseled about "missing too much work no excuses," and notes that "any other
infraction(s) of company rules or policies could lead to [his] suspension and or ... termination."
Ex. R-3. Sartin was told to come back on January 18, a Monday, at which time he would have to
sign a "last chance agreement.•'6 Ex. R.,.3. On January 18, Sartin reported for work, and signed
an agreement, reflecting that he had received one written and three verbal warnings regarding his
"work performance or attendance," and was requesting a "Last Chance" to improve. Ex. R-4.
Following his suspension, and when working under the last chance agreement, Sartin was
essentially on probation, and could be terminated for any violation of work rules or regulations.
Tr. 168; Ex. R-3, R-4. Sartin understood that, having signed the agreement, he could be
terminated for any breach of company rules, or further absences. Tr. 37, 68, 72.
From January 18 through February 4 there were no significant problems with Sartin's '
attendance or work performance. 7 On February 5, he reported for work and was told by the day
shift driver and others that his assigned truck, truck #6, had been leaning when dumping. He
checked potential·causes when he did his pre-operational checks, but did not find anything
wrong. Vance had overheard the first shift driver's report about the truck leaning. Tr. 170.'
There was also mention that the leaning might be attributable to uneven loading as a result of
frozen coal. Tr. 170. Vance also checked the truck's tires,. springs, frame.and dump chutes:
things that might cause leaning. He found no problems. Tr. 171. Vance told Sartin to "lightload" the truck. He also told Farley, who was operating the loader at the stockpile, to light-load
the truck until they figured out what was wrong with it. Tr. 173. The truck was loaded with 4045 tons of coal, as opposed to a normal load of 60 tons or more. It leaned some when dumping,
but was within acceptable limits for the first five loads. Tr. 200. Sartin did not feel that the truck
was unsafe to operate. 8 Tr. 76. Farley, felt that the fifth load leaned a little more, so he loaded

5

The suspension ran from January 13 through January 16. January 16 was a
Saturday. It is not clear whether Sartin was scheduled to work that Saturday, because he had
been scheduled to work the previous Saturday, January 9. The list of absences prepared by Argus
does not show him absent or on suspension on January 16. Ex. R-2.
6

Fields explained that a last chance agreement is used when they have worked with
an employee to try and save
job, but are ready to terminate him. The agreement affords the
employee one last opportunity keep his job. Tr. 217.

his

7

Vance testified that Sartin's attendance was good. He was tardy a couple of times,
but he called in and was on the property. Tr. 169.
·
8

Sartin testified that he told Vance, over the radio, that the truck was leaning after
the fifth load, and that Vance told him to haul coal. Tr. 76. Vance testified that he did not hear
from Sartin before he brought thetruck back to the shop; Tr. 174. As noted above, Sartin did
not feel that the truck was unsafe to operate at that time.
32 FMSHRC Page 1871

the sixth load more toward the back of the trailer to make it easier to dump. Tr. 201. However,
the trailer leaned badly when dumping the sixth load, and Tony, the loader operator at the tipple,
told Sartin to take the truck back to the shop because it was too dangerous to keep operating.
Tr.43.
Sartin drove the truck to the shop about l :30 a.m. or 2:00 a.m., on February 6, 2010, and
stopped outside because all three shop bays were full. He approached Vance, who was on an
elevated platform greasing jack pins on a loader. Farley, who had been operating the loader at
the stockpile, had brought it in for greasing when the belt shut down. He was standing on the
ground, handing things to Vance. Sartin walked up next to Farley, and a critical conversation
ensued.
Sartin testified that he told Vance that the truck just about 'fOlled over and that Tony (the
loader operator at the tipple) said to bring it to the shop and not to bring it back until they found
out what was wrong with it.- Tr. 43. Vance replied thatthere was nothing wrong with the truck
and instructed, Sartin to haul coal. Tr. 44. Sartin responded that the truck just about turned over,
and Vance asked whether Sartin told Tony that Vance had looked at it. Sartin replied that he
had, and that Tony said not to bring it back down .there. After three to four minutes, Vance told
Sartin.to park the truck and that he could "go on unemployment." Tr: 44. Sartin felt that Vance
was "threatening" his job and replied "do it," meaning fire me. Tr. 44. Vance replied, "you get
smart with me and I'll fire you now." Tr. 44. Sartin said ''you f-king fire me then," and Vance
fired him. Tr. 44.
Vance testified that Sartin told him that the loader man at the tipple told him that the
truck was leaning too bad and to bring itto the shop; ·v ance told him to park it, and looked at
Farley and Sartin, "winked," and said "the way things [are] going we all [are] going to be on
unemployment.•"> Tr. 178. Sartin started cussing and said "I don't f-king care, you can go ahead
and f-king fire me." Tr. 178. Farley said that Vance was just joking, and Sartin said "f-king fire
me." Tr. 178. Vance then fired Sartin.
The only mat_erial differences in the parties' respective versions of these events is whether
Vance's comment about unemployment compensation was made in a joking manner, or whether
it was a genuine threat to fire Sartin, and whether Farley made a comment to the effect "he's
joking."10 There is general agreement on other aspects of the interchange, including that Sartin
was loud and cursed at Vance. Sartin admitted that he was loud; and that he cursed at Vance in
an angry voice. Tr. 44, 82. Vance and Farley also testified that Sartin spoke in a loud, angry
voice and cursed. Tr. 178-79, 189, 203-04.

9

There were typically eight trucks operating on the second shift. That evening, there
were seven, and loss of Sartin' s truck would have taken that number down to six.
10

Vance and Farley testified that Farley interjected with the "he's just joking''
comment. Tr. 178, 203. Sartin denied that Farley made such a statement. Tr. 44.
32 FMSHRC Page 1872

Vance made a note of what happened, and he and Farley signed it. Exh. R-6. Vance
filled out an "Employee Termination Form," reporting that Sartin had been terminated "for
having no respect for his job and going off on me." Exh. R-5. Vance called Fields about
5:00 a.m., and told him he had to let Sartin go. He explained what happened, and told Fields that
the termination form was· on his desk. .Fields signed the form whep. he came in. Sartin called
Fields that day, told him that he had gotten into it with Vance, and inquired whether he had lost
his job. Fields replied that he had been fired. Sartin said that he had been fired over a safety
issue, and Fields told him "no ... you were fired for cussing your boss out." Tr. 222. Sartin
offered to drop everything, if he could have his job back. Fields replied that he was going to·
honor Vance's decision, to which Sartin responded: "you've got a fight on your hands." Tr. 222.
Sartin' s testimony describing this conversation was essentially the same. Tr. 47.
On February.8, 2010, Sartin appeared at the MSHA field office in Mt. Hope, West
Virginia, and filed a discrimination complaint. The complaint was assigned to MSHA·special
investigator James Humphrey, who visited Sartin at his residence, and-obtained a statement from
him. Exh. P-4. Humphrey also visited Kiah.Creek's shop, interviewed Vance and Fields, and
obtained statements from them. Ex. P-5, P-6. Humphrey did not interview Farley, because until
his deposition was taken, he was not aware that Farley was standing right next to Sartin and
Vance, and witnessed the critical conversation. Tr. 130. Humphrey testified that he specifically
inquired of Sartin whether there were witnesses to the conversation, and that Sartin did not tell
him that Farley was present. Tr. 132.
Humphrey did not examine the trailer on his first visit to the site. Kiah Creek was going
to send the trailer to the manufacturer to correct whatever deficiencies were causing it to lean. It
voluntarily kept the trailer on site until Humphrey could examine it. About two weeks later,
Humphrey examined the trailer, including the upper end of the lift/dump mechanism, which was
accessed by removing a cover plate high on the trailer's front side; He found that a pin attached
to the end of the hydraulic lift piston was badly worn and bent, as was the eye bracket, and that
several bolts were missing from brackets mounted on the trailer into which the ends of the pin fit.
Tr. 114-16. Those conditions, which are depicted in pictures taken by Humphrey, were the
apparent cause of the leaning problem. Ex. P-8, P~9. ·Humphrey knew that a number of things
can cause leaning, and was disappointed that Kiah Creek had not gone furtherin its efforts to
find the cause. Tr. 118. However, Fields noted that all of those defective parts were replaced,
and that after $16,700.00 was spent on repairs, the trailer still had a tendency to lean. Tr. 224-25.
After Humphrey's initial investigation, the Secretary concluded that Sartin' s complaint
was nqt frivolous, and filed the aforementioned temporary reinstatement proceeding. At the
conclusion of the investigation, the Secretary filed the instant Complaint of Discrimination,
seeking permanent relief on behalf of Sartin and the imposition of a civil penalty in the amount
of $10,000.00 against Kiah Creek for its alleged violation of the Act.

32 FMSHRC Page 1873.

The Discrimination Claim
A complainant alleging discri:mination underthe Act typically establishes aprimafacie
case by presenting evidence sufficient to support a conclusion that he engaged in protected
activity and suffered adverse action motivated in any part by that activity. See Driessen v.
Nevada Goldfields, Inc., 20 FMSHRC 324, 328 (Apr. 1998); Sec'y ofLabor on behalf of Pasula
v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev'd on other grounds sub nom.
Consolidation Coal C-o. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Sec'y ofLabor on behalfof
Robinette v. United Castle Coal Co., 3 FMSHRC .803, 817-18 (Apr. 1981). The operator may
rebut the prima facie case by showing either that no .protected activity occurred or that the
adverse action was in no way motivated by protected activity. See Robinette, 3 FMSHR.C at 818,
n. 20. If the operator cannot rebut the primafacie case in this manner it, nevertheless, may
defend affirmatively by proving that it was also motivated by the miner's unprotected activity
and would have taken the adverse action for the unprotected activity alone. Id. at 817-18;
Pasula, 2 FMSHRC at 2799-800; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F2d 639,
642-43 (4th Cir. 1987)(applying Pasula-Robinettetest).
While the operator must bear the burden of persuasion on its affirmative defense, the
ultimate burden of persuasion remains with the complainant. ,Pasula, 2 FMSHRC at 2800;
Schulte v. Lizza, 6 FMSHRC 8, 16(Jan. 1984).
Prima Facie Case
Section 105(c)( 1) of the Act prohibits discrimination against any miner who complains to
an operator or its agent about "an alleged danger or safety or health violation.'' 30 u~s.c.
§ 815(c)(l). Sartin's report of the problem with the #6truck related to safety and was an activity
protected under the Act. He suffered adverse action when he was terminated.
The principle issue as to Sartin' s prima facie case is whether the adverse action was
motivated in any part by his protected activity. Even though there is no direct evidence of
unlawful motivation, the Commission has recognized that such evidence seldom exists and that
discrimination often must be proven through circumstantial evidence. Sec '.Y ofLabor on behalf
ofGarcia v. Colorado Lava, Inc., 24 FMSHRC 350~ 354 (April 2002), citing Sec'y ofLabor on
behalfof Chacon v. PhelpsDodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev'd on other:
grounds, 709 F.2d 86 (D.C.Cir. 1983). Circumstantial evidence of unlawful motivation may
include an operator's knowledge of the protected activity, hostility toward the protected activity,
coincidence in time between the protected activity and the adverse action, and disparate treatment
of the complainant. Id.
Here the adverse action immediately followed the protected activity, a coincidence in
time sufficient to raise an inference that it was the result of Sartin's protected activity, at least in
part. Vance had examined the truck and found nothing wrong with it. He was concerned that
another truck being taken out of service would further reduce his fleet of available trucks on that

32 FMSHRC Page 1874

shift, which would adversely affect production. It would be permissible to infer that his decision ·
to terminate Sartin was motivated, in part, by the report of a safety problem.
While drawing such an inference would be permissible, it is not compelled, and I decline
to do so. As explained in the discussionofRespondent's affirmative defense, I find that Vance's
decision to terminate Sartin was motivated solely by Sartin' s angry reaction to an innocuous
comment about unemployment compensation. While Sartin's actions with respect to the truck
related to a safety issue, he was not the initiator of the complaint. The initial reports that the
trailer was leaning when dumping a load came, not from Sartin, but from the first shift driver,
and were overheard by Vance. Vance examined the truck and instructed Sartin and Farley to
light-load it. Sartin agreed that that was the proper approach to the problem. Tr. 74.
When the trailer leaned badly while dumping the sixth load, the loader man at the tipple
told Sartin to bring the truck to the shop because it was too dangerous to operate. Sartin took the
truck to the shop· and reported the loader operator's instruction/suggestion to Vance. ·Again,
Sartin was not the initiator of the safety related message. He had taken the truck to the shop at
the instance of the tipple operator, and he did not refuse to drive the truck. While he was the
bearer of news that would have an adverse effect on production, there was little reason for Vance
to have focused a negative reaction on Sartin, especially to the extent of terminating his···
employment. The truck was carrying limited loads; and there were only about three hours left in
the shift. Several persons had reported the leaning problem, and Vance knew that it had to be'
dealt with.
I find that Vance's statement about unemployment was a joking commentary on the
problems that he was experiencing with haul trucks that evening. 11 That is how Farley
understood·it, and he tried to calm Sartin when he reacted angrily and started cursing. Sartin may
have miss.,.perceived the comment as a ''threat" to his job - but not, apparently, that he was being
fired. ·As the Secretary notes, in her brief, Sartin was discharged "almost immediately after"
Vance's reference to unemployment. Sec'y. Br. at 6. The discharge occurred seconds later
because when Vance told Sartin that further abusive conduct would result in termination, Sartin,
in a loud, angry cursing voice, specifically invited Vance to fire him, and Vance then fired him.
The Secretary attempts to limit Sartin's culpability by reference to Sartin's testimony that ·
the use of"salty'' language was normal conversation for miners at Kiah Creek. Tr. 23. Vance
agreed that profanity was often used in the general discourse on the job. Tr. 188. However, that
is an entirely different matter than personally directed comments made in anger. Farley stated

11

Telling an employee to sign up for unemployment would be an unusual way to fire
him. Persons terminated for cause typically are not eligible for unemployment benefits, at least
initially. Kiah Creek "fought" the unemployment claim that Sartin made following his
termination. Tr. 49. While it might be presumed that a fired employee would seek
unemployment benefits,·it strikes me as highly unlikely that Vance would have couched any
decision to terminate Sartin in terms of his seeking unemployment benefits.
32 FMSHRC Page 1875

that cursing,· if made in a non-joking way, should be punished, and could result in termination if
one was on a last chance agreement. Tr. 205. In his mind, there was no question that Sartin was
angry.
I find thatVance's decision to terminate Sartin's employment was motivated entirely by
Sartin's angry, cursing behavior, and not, in any part, by Sartin's protected activity.
Consequently, the Secretary failed to establish a primafacie case of discrimination against
Sartin.

In reaching this conclusion I have found facts that are adverse to the interests of the
Secretary and Sartin. Those determinations have been based upon my favorable evaluation of the
credibility of Vance, Fields and Farley, and a less favorable evaluation of Sartin's credibility.
Two of the considerations that weighed on Sartin's credibility were his testimony about a drug
test incident, and his failure to advise Humphrey that Farley was present and participated .in the
exchange that lead to his termination. The drug test issue was unremarkable, except for Sartin' s
inconsistent testimony about it. Sartin testified that he talked to Fields shortly after taking a
random drug test in July, and reported that he was going to fail it because he had taken a pain pill
given to him by another employee that ''was not prescribed to [him]." Tr. 48. Sartin later
testified that he had a prescription for the drug when he took it. Tr. 58~59. The drug test came ·
up negative, and Sartin was never required to show a prescription to Fields. Sartin never
explained why he was concerned about the test, if he had a prescription for the drug..12
R~spondent's Affirmative Defense
'~ :-

,·

While I have rejected the Secretary's argument on causation, that decision is not yet final;
Assuming, for purposes of argument, that Sartin's termination was in some part the result of his
protected activity, Respondent's affirmative defense will be considered.. Kiah Creek contends
that Sartin's termination was based upon his unprotected conduct; and that it would have taken
the same action whether or not Sartin had engaged in protected activity.

In Secy. ofLabor on behalfofBernardyn v. Reading Anthracite Co. 22 FMSHRC 298,
302 (Mar. 2000) (Bemardyn I), the Commission reiterated the general principles for evaluating
an operator's affirmative defense:
[T]he operator must prove that it would have disciplined the miner anyway for the
unprotected activity alone. Ordinarily, an operator can attempt to demonstrate this ·

12

. Sartin also testified that drivers were required to report all prescription medications
to th~ company. Tr. 58. But, when questioned about why the prescription he claimed to have
had had not been reported, he stated that only prescriptions that bore a red label warning against
operation of heavy equipment needed to be reported. Tr. 85. Respondent's actual policy on
reporting of prescription drugs is unknown. If Sartin's initial statement were correct, it might
explain why he was concerned about the test, even ifhe had a prescription.

32 FMSHRC Page 1876

by showing, for example, past discipline consistent with that meted out to the
alleged discriminatee, the miner's unsatisfactory past work record, prior warnings
to the miner, or personnel .rules or practices forbidding the conduct in question.
Our function is not to pass on the wisdom or fairness of such asserted business
justifications, but rather only to determine whether they are credible and, if so,
whether they would have motivated the particular operator as claimed.

quoting from Bradley v. Belva Coal Co., 4 FMSHRC 982, 993 (June 1982). As specifically as
applied in cases involving the use of profanity, the Commission cited Secy. ofLabor on behalf
of Cooley v. Ottawa Silica Co., 6 FMSHRC 516, 521 (Mar. 1984), and noted factors to be
considered include whether the operator·had prior difficulties with the complainant's profanity,
whether the operator had a policy prohibiting swearing, and the operator's treatment of other
miners who had cursed or used threats.
There is no question that Sartin's relationship with Kiah Creek had become quite strained
in the months leading up to his termination. While Argus's listing of absences fails to note
excuses for some days that should have been so recorded, it is apparent that Sartin missed a lot of
work days from mid-December up to the date of his suspension. His absences on January 5, 8, 9,
11 and 12 were not excused. lfind, as Fields testified, that he was not aware of any excuses for
those days, and that he did not suspend Sartin prior to January 13. Tr. 218. Kiah Creek
documented steps in its disciplinary process. The form memorializing the suspension and the
fact that Sartin would have to sign a last chance agreement upon his return to work on January
18, documented the disciplinary action that was taken. It is possible that Sartinmisunderstood
Fields's statements about the suspension. Nevertheless, as of January 13, Sartin had been absent
for several days and had tendered no excuse for his absences.
There is no evidence that Sartin had used profanity in the past, except possibly in general .·
casual conversation. Tr. 187. But, Sartin had clearly established an unsatisfactory work record ·
due to absences and tardiness. The tension that Sartin' s absences caused with Vance and Fields
was not attributable to protected activity, nor was the fact that Sartin was subject to termination
for any breach of Kiah Creek's rules.
While Respondent did not have a written policy defining insubordination, its work
agreement specifically prohibited disorderly conduct, and cited it as an example of CQIJ,duct that
could lead to immediate termination. Tr. 188; Ex. R-1. From the limited evidence ofrecord, it
appears that Sartin's termination was consistent with its written policy andprevious disciplinary
actions. Vance testified, in response to a leading question, that an employee could not talk to a
supervisor like Sartin had and retain his job. Tr. 223. Farley testified that an employee engaging
in conduct like Sartin's should be punished and could.be terminated ifhe was on a last chance
agreement. Tr. 205.
Evidence of disparate treatment can be highly probative of unlawful motive,just ·as
evidence ofconsistent treatment can indicate the lack thereof. Sec y ofLabor on behalfof

32 FMSHRC Page 1877

Bernardyn v. Reading Anthracite Co., 23 FMSHRC .924, 929 (Sept. 2001) (Bernardyn II). Here,
the Secretary introduced.no evidence that there were other sllnilarly situated miners that were
treated more favorably in the disciplinary process. Respondent presented limited evidence on
that issue. Fields testified that an employee at the Kenova job had also been terminated for
cursing his supervisor. Tr. 225 ..
Sartin understood his precarious employment situation. That understanding did not
influence him to control his behavior. He was openly hostile and insubordinate to his supervisor
in the presence of at least one other employee. His conduct was grounds for termination under
his original employment agreement, and almost certainly would have occurred even if he had not
been working under a last chance agreement. In his status as of February 6, 2010, his tennination
was virtually inevitable.
Upon consideration of all of these factors, I find that Kiah Creek's termination of Sartin
was ,the result of his unprotected activity and that it would have taken that disciplinary action as a
result of Sartin' s unprotected activity alone.
The Secretary argues that Sartin' s outburst was provoked by Vance's reaction to his
report of the safety problem such that his .conduct cannot be used as a justification for adverse
action. In Bernardyn I, the Commission held that even where all elements of an affirmative
defense have been established, the defense maynevertheless fail because the offensive conduct
was provoked by an operator's response to protected activity. 22 FMSHRC at 305-06. ·A.s noted
above, Vance did not provoke Sartin. He made an offhand comment about everyone going on
unemployment.. While Vance's statement was occasioned bySartin's message about a safety
problem with the truck, it was not provocative and Sartin's reaction was completely beyond any
leeway for impulsive behavior to which an employee might be entitled. Sartin was openly
abusive and insubordinate in his language and demeanor, and persisted in his conduct despite
Farley's attempt to calm him. Respondent is not precluded from relying on Sartin's conduct as a
justification for his termination. 13 ·

13

The Secretary does not argue that Sartin's reaction was prompted by a
misunderstanding of Vance's comment. Had she done so, I would find that as a matter of fact it
was not, especialiy in light of Farley's intervention. However, I need not reach that issue,
because the argument is unavailing. In a related context, an employee's refusal to perform work
he mistakenly perceives to be unsafe can be protected if he held a good faith, reasonable belief
that it was hazardous. Dykhojfv. U.S. Borax, Inc., 22 FMSHRC 1194, 1198-99 (Oct. 2000).
Any argument that S~in' s reaction to Vance was protected because he perceived Vance's
comment to be a p:r:ovocative reaction to his safety message would fail because any such
perception would have been unreasonable.
32 FMSHRC Page 1878

ORDER
For the reasons stated above, I find that Kiah Creek's decision to terminate Sartin was not
motivated in any part by Sartin's protected activity. Rather, it was based solely upon his abusive
and insubordinate conduct toward his supervisor. It was a justifiable continuation of the
disciplinary process, and would have beenjustifiable as an initial disciplinary action. In the
alternative, I find that Kiah Creek would have taken the disciplinary action as a result ofSartin's
unprotected activities alone. Accordingly, the Discrimination Complaint is hereby DISMISSED.

Distribution (Certified Mail):
Karen Barefield, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
22nd Floor West, Arlington, VA 22209-2247
Mark R Heath, Esq., Spilman, Thomas, Battle, PLLC, 300 Kanawha Blvd., P.O. Box 273,
Charleston, WV 25321-0273

R. Jill Webb, Esq., Kiah Creek Transport, LLC, 107 Dennis Drive, Lexington, KY 40503
Okey Sartin, P.Q. Box 44, Dingess, WV 25671

32 FMSHRC Page 1879

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021
Telephone: (202) 434-9917
Fax: (202) 434-9949

December 23, 2010
CONTEST PROCEEDINGS

CLINTWOOD ELKHORN MINING
COMPANY, INC.,
· Contestant,

Docket No. KENT 2011-53-R
Order No. 8247767;10/15/2010

v.
Docket No. KENT 2011-54-R
Citation No. 8247767;10/15/2010

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

Docket No. KENT 2011-40-R
OrderNo. 8247761;10/15/2010
Docket No. KENT 2011-41-R
Citation No. 6660595;10/15/2010
Mine: Clintwood Elkhorn Mining Co.
Mine ID 15-16734
DECISION

Appearances: Matt S. Shepherd, Esq., and Jennifer Booth, Esq., Office of the Solicitor, U.S.
Department of Labor, Nashville, TN, on behalf of the Secretary of Labor;
Melanie J. Kilpatrick and Marco M. Rajkovich ofRajkovich, Williams, Kilpatrick
& True, PLLC of Lexington, KY, on behalf of Clintwood Elkhorn Mining Co.,
fuc.
Before:

Judge Gill
Procedural Histoiy

This case was tried on October 19, 2010, in Pikeville, KY. The trial was expedited in
response to the Respondent's request under 29 C.F.R. § 2700.52. The following cases were
consolidated for expedited resolution: KENT 2011-0053-R, KENT 2011-0054-R, KENT
2011-0040-R, and KENT 2011-0041-R. The Respondents, MSHA and the Secretary of Labor,
were represented by Matt S. Shepherd and Jennifer Booth of the U.S. Department of Labor,
Office of the Solicitor, Nashville, TN. The Contestant, Clintwood Elkhorn Mining Co., fuc was
represented by Melanie J. Kilpatrick and Marco M. Rajkovich ofRajkovich, Williams, Kilpatrick
& True, PLLC of Lexington, KY. Testimonial and exhibit evidence was taken from James
Holbrook, Robert H. Bellamy, and Shane Bishop.
During a pre-trial telephone conference on October 18, 2010, the parties agreed that,
although the motion to expedite the case came from the Contestant, it would be best for clarity of
the record and ease of presentation of the evidence if the Respondent presented its evidence first.
32 FMSHRC Page 1880

(Tr. 6:1-7) 1 At the conclusion of the Respondent's direct case, the Contestant moved for
dismissal of the citations. Contestant's motion to dismiss was granted, obviating the need for it
to present any evidence.
Rule 52(c)Motion
At the close ofthe Secretary's case, the Contestant moved for dismissal of the citations
and orders in this case, arguing that as a matter of law and fact the Secretary had failed to
produce evidence to support the issuance of the citations and orders. I granted the Contestant's
motion and spoke my ruling onto the record as a bench decision.
The Commission's Rules of Procedure, the Administrative Procedure Act, and the Mine
Act are silent regarding the standards that apply to motions to dismiss at the close of an opposing
party's case-in-chief. It is appropriate under these circumstances to consult the Federal Rules of
Civil Procedure for guidance. Sec'y ofLabor v. Basic Refractories, 13 FMSHRC 2554, 2558
(1981). The Federal Rules of Civil Procedure allow, at the judge's discretion, the dismissal.of a ·
matter when a party fails to prove by the preponderance of the evidence a key element of their
case. Fed. R. Civ. P. 52(c) (''Rule52(c)") provides:

If a party has been fully heard on an issue during a nonjury trial and the court finds
against the party on that issue, the court may enter judgement against the party on a
claim or defense .that, under the controlling law, can be maintained or defeated only
with a favorable finding on that issue. The court may, however, decline to render any
judgment until the close of the evidence. A judgment on partial :findings must be .
supported by findings of fact and conclusions of law as required by Rule 52(a).
Fed. R. Civ. P. 52(c)
During & nonjury trial, Rule 52(c) authorizes the court to enter judgment at any time that
it can appropriately make a dispositive finding of fact on the evidence. In Clifford Meek v. .
Essroc Corporation, the Commission found that a ruling on a motion for involuntary dismissal
under Rule 52(c) was at the judge's discretion and found "no error by the judge and affirm[ed]
his procedural determinations." Clifford Meek v. Essroc Corporation, 15 FMSHRC 606, 614
(April 1993). In Sec'y ofLabor v. Martin County Coal Corporation and GEO I Environmental,
the Commission found that a judgment on a partial finding was .appropriate because the judge
had heard the Secretary's entire case. Secy ofLabor v. Martin County Coal Corporation and
GEO I Environmental, 28 FMSHRC 247 (May 2006). In addition, the Commission found in
Marijn County Coal that the judge does not need to address every point of evidence. Id.. The

1

Transcript references consist of a starting page and line number, a dash, and a closing page and
line number. If the closing page is the same as the opening page, the closing page number is omitted, as
in this example: (Tr. 6: 1-7). If the closing page number is different, the reference looks like this
example: (Tr. 6:1-8:14), which designates the passage starting at page 6, line 1 through page 8, line 14.

32FMSHRC Page 1881

judge must only include findings and conclusions on "material issues of fact [and] law." Id.
citing Fed. R. Civ. P. 52(c) .
As discussed below, the Secretary failed to put on evidence to prove the key factual
elements for her case, i.e., that the truck involved in this roll-over incident was overloaded or that
overloading played a significant role. MSHA' s investigators chose to make overloading the
focus of their enforcement action in such a way and with such unbending resolve as to make their
actions arbitrary and capricious. For these reasons, the motion to dismiss granted at the close of
the Secretary's case must stand. 2

SummaiyofFacts and Issues
This case results from a coal truck run-away incident that happened on October 6, 2010,
at the Clintwood Elkhorn prep plant dump site in Pike County, KY. The players are Clintwood ·,
Elkhorn, the:contestant and operator of the prep plant, Tattoo Trucking, the employer of the ·
driver of the truck, Hubble Mining Co., the company contracted to mine the coal hauled by the
truck, and MSHA employees James Holbrook, the :first.:.Iine inspector, and Robert H. ''Hank"
Bellamy, the investigation supervisor.
Tattoo Trucking employee, Shane Bishop, was driving a Mack 800, three axle; ten wheel
coal haul truck between the Hubble, No. 2 deep mine and the Clintwood Elkhorn prep plant on
October 6, 201 O; when the brakes failed. Bishop tried, but was unable to stop the run-away
truck. !trolled approximately 100- 150 feet down the steep haul road section it was on, jumped
up the benn at the bottom of the haul road, shearing off a utility pole neat the berm in the
process, and rolled onto its passenger side, where it came to rest with its front axle and wheels
hanging over a high wall drop-off. Bishop was not injured.
Clintwood Elkhorn notified James Holbrook ofMSHA's local office of the incident.
investigation and
Holbrook issued a verbal 103(j) order over the phone to secure the site
evidence purposes and to ensure the safety of anyone working at the site. Holbrook then went to
the site and'started his investigation into what happened. He modified the verbal 103 (j) order to
a 103(k) order when he arrived on the scene. ·

for

Starting that day, Clintwood Elkhorn and MSHA officials began the process of
negotiating an "action plan" to address what MSHA concluded had caused the incident and to
prevent a recurrence. Over the span of the next several days,· Clintwood Elkhorn presented at
least two proposed action plans that entailed the po.sting of signs cautioning drivers of the steep
2

1t is obvious that the driver here lost control of his truck. 30 C.F.R. § 77.1607(b) establishes a
standard that makes it a violation if the operator of moveable equipment loses control of the equipment.
Mine operators are strictly liable for violations such as this. The way in whiCh MSHA prepared this case
for immediate adjudication under the Commission's expedited hearing rule resulted in the vacation of all
citations and orders relating to this incident, as is explained below. The facts and law may support
further action under Sec. I 05 if properly framed.
32 FMSHRC Page 1882

grade, providing gravel to build a run-away ramp on that section of the haul road, and the
implementation of a "no shift" policy, meaning that drivers would be prohibited from shifting
gears once they had started coming down the section of the haul road where the incident
happened.
Clintwood Elkhorn and MSHA officials agreed on these items. They were unable to
agree on an additional item that MSHA wanted in the action plan. MSHA wanted Clintwood
Elkhorn to obtain the gross vehicle weight rating (GVWR) for every truck that hauled coal to the
prep plant and to either put the GVWR on the weigh ticket for each· load or otherwise make it
available to the drivers at the prep plant scale house. 3 Clintwood Elkhorn balked at this ·
requirement. MSHA insisted on having the GVWR data. An impasse ensued, which led MSHA
to issue additional orders under the Mine Act, including a 104(b) citation which shut down the
prep plant. Clintwood Elkhorn immediately asked for an expedited hearing to resolve the
impasse.
· Summary of Decision
The central ·points of contention between the parties were: (1) whether MSHA had
authority to require Clintwood Elkhorn to gather and use GVWR data to address overloading of
coal haul trucks; and (2) whether the Secretary proved by a preponderance of the evidence that
overloading had occurred. For the reasons stated below, I find and conclude that MSHA did not
have authority to regulate truck load limits in this manner and that attempting to do so in the
manner re:fleeted here was arbitrary and capricious. I further find that the Secretary failed to
present evidence to prove that the alleged overloading underlying all citations and orders
occurred. As a result, all orders and citations issued in this case are vacated as written.
Findings of Fact

1.

On October 6, 2010, Shane Bishop, an employee of Tattoo Trucking, was driving a Mack ·
800 coal haul truck from the Hubble No. 2 deep mine to the Clintwood Elkhorn prep
plant in Pike County, KY, when the brakes failed causing the truck to run away and roll
over.

2.

Bishop had hauled several loads of coal from the Hubble mine to the prep plant earlier
that day using the same truck.

3.

Just before Bishop lost control of the truck, he was coming down the haul road leading to
the prep plant and had to stop to allow other equipment using the same road to clear the
area. He applied his brakes and left the engine running as he waited at the side of the
haul road.

3

This case is the first instance known to Holbrook or Bellamy where MSHA attempted to
regulate load limits by requiring reference to and use of GVWR data. (Tr. 166: 14-167: 12)

32 FMSHRC Page 1883

4.

When the other equipment cleared, Bishop continued down the haul road toward the prep
plant dumping area. He tried to apply his brakes again, but they failed.

5.

The truck engine was running, and the truck was in gear. As the truck accelerated, the
engine revved until it stopped completely.

6.

As long as the-engine was running, the engine compression held the truck back
somewhat, but as soon as the engine stopped, there was 11othing Bishop could do or use to
hold the truck speed under control. He tried to restart the engine at least once. He could
not get the engine to restart.

7.

Bishop testified that the .transmission came out of gear at about the time the engine .
stopped. He tried to re-engage the transmission to no avail.

8.

Bishop tried, but was unable to stop the run-away truck. It rolled approximately 100 150 feet down the steep haul road section it was on, jumped up the berm at the bottom of
the haul road, shearing off a utility pole near the berm in the process, and rolled onto its
passenger side, where it came to rest with its front axle and wheels hanging over a high
wall drop-off.

9.

Bishop was not injured. He was taken to a hospital emergency_room as a precautionary
measure where he was checked for injuries by a doctor f;llld r,eleased without any
treatment.

10.

Bishop was able, wanted, and asked to return to work the same day.

11.

The-roll-over incident was caused by brake failure.

12.

Clintwood Elkhorn is the operator of1he prep plant where the roll-over occurred.

13.

The prep plant comprises, among other features not relevant to this decision, a truck scale
station, several coal truck dump locations, and appurtenant haul truck and end loader
maneuvering areas.

14.

Tattoo Trucking, Inc. is Bishop's employer. It is contracted with Hubble Mining
Company, LLC., to haul coal from the Hubble No. 2 <le~ mine to the Clintwood
Elkhorn prep plant.

15.

Hubble Mining Company is contracted with Clintwood Elkhorn to mine the coal from the
Hubble No. 2 deep mine.

16.

James Holbrook is an employee ofMSHA. He was the first-line inspector in this case.

32 FMSHRC Page 1884

17.

Robert H. "Hank" Bellamy is an employee of MSHA. He was the investigation
supervisor in this case.

18.

Homer Sullivan, Mine Superintendent at Clintwood Elkhorn, informed James Holbrook
about the truck runaway incident shortly after it happened on October 6, 2010; Sullivan
told Holbrook that a truck had run away, run through a berm, and tipped onto its side at
the Clintwood Elkhorn prep plant. Holbrook issued a verbal 103(j) order over the phone,
which was later reduced to writing. (Exhibit 1)

19.

Holbrook went immediately to the prep plant site where he spoke with Sullivan. At that
time, Holbrook explained to Sullivan thathe was converting the 103(j) citationto a
103(k) citation and why he was doing so.

20.

Holbrook characterized this incident as a "non-injury" incident in the 103(k) citation.
(Exhibit 1)

21.

Holbrook investigated the scene and took photos of what he found. (Exhibits 2, 3, 4, 5,
and6)

22.

Keith McCoy, is the director of the Clintwood Elkhorn safety department.

23.

Between October 6, 2010, and October 15,2010, Holbrook and Bellamy of the Mine
Saftey and Health Administration (MSHA), who work out of MSHA's District 6 office in
· Pikesville, KY, conferred with each other and with Sullivan and McCoy of Clintwood
Elkhorn to create an "action plan" to address what MSHA concluded had caused the
incident and to prevent a recurrence.

24.

Between October 6 and October 15, 2010, Clintwood Elkhorn presented at least two
proposed action plans (Exhibits 13 and 14) which proposed, in pertinent part, the posting
of signs cautioning drivers of the steep grade, providing gravel, to build a run-away ramp
on the relevant section of the haul road, and the implementation of a ''no shift" policy,
meaning that drivers would be prohibited from shifting gears once they had started
coming down the section of the haul road where the incident happened. Clintwood
Elkhorn and MSHA officials -Holbrook and/or Bellamy- agreed on these items. 4

25.

MSHA and Clintwood Elkhorn were unable to agree on an additional item that MSHA
wanted in the action plan. MSHA concluded that the truck in question had been
overloaded and focused on overloading as they dealt with Clintwood Elkhorn on the
action plan to resolve the citations and orders issued in response to the roll-over incident.

4

When the acronym MSHA is used, it refers to either Holbrook or Bellamy, or both.

32 FMSHRC Page 1885

26.

MSHA wanted Clintwood Elkhorn to obtain the gross vehicle weight rating (GVWR) for
every truck that hauled coal to the prep plant and to either put the GVWR ·on the weigh
ticket for each load or otherwise make it available to the drivers at the prep plant scale
house.

27;

Clintwood Elkhorn balked at the GVWR requirement. MSHA insisted on having the
GVWR data. An impasse ensued, which led MSHA to issue additional orders illlder the
Mine Act, including a 104(d), a 104(a), and a 104(b) citation, which shut the prep plant
down.

28.

On October 14, 2010, at 11:00 AM, Bellamy issued a 104(d)(l) citation, No. 6660595,
which was served on McCoy for Clintwood Elkhorn. (Exhibit 12) It alleges a safety
violation and references 30 CFR § 77.1607(b). It sets a termination date and time of
October 15, 2010 at 8:AM.

29.

On October 15, 2010, at 9:18 AM, Holbrook issued a 104(a) citation, No. 8247768,
which was served on McCoy for Clintwood Elkhorn. (Exhibit 9) It alleged that
Clintwood Elkhorn· had failed to provide weigh ticket records, requested-by MSHA and
pertinent to this investigation. It stated that failure to provide the weigh tickets would
result in a daily fine of $7,500.00.

30.

On October 15, 2010, at 9:15 AM, Holbrook issued a 104(b) order, No. 8247767, which
was served on McCoy for Clintwood Elkhorn; (Exhibit 8) It alleged that Clintwood
Elkhorn had ample time to prevent overloaded coal trucks from coming into the prep
· plant and that overloaded trucks were continuing to come '.into the facility. It ordered that
all coal haulage to the prep plant cease innnediately,

31.

As MSHA and Clintwood Elkhorn dispute~ the inclusion of the GVWR data in the action
plan, Clintwood challenged whether MSHA could site to.: any regulatory authority creating
a right on the part ofMSHA to regulate the load weight of trucks used to haul coaL
MSHA did not cite any such authority.

32.

At trial, the court asked MSHA to provide a citation to any such regulatory authority.
MSHAwas unable to do so.

33.

Clintwood Elkhorn proposed that the issue of alleged overloading be dealt with in the
action plan (Exhibit 13) by making reference to Kentucky state statutes that regulate truck
loads on public roads, although the haul road where this incident occurred is not a
Kentucky state public road. MSHA would not agree to this proposal.

34.

Anticipating that MSHA would not relent on its requirement that the action plan include
reference to GVWR data as a means to regulate the load weights, Clintwood Elkhorn
verbally communicated to Bellamy, in reference to its action plan of October 13, 2010,
32 FMSHRC Page 1886

(Exhibit 14), that MSHA issue a "technical.violation" that it could use as a basis to
request an expedited hearing. (Exhibit 10)
·
35.

Holbrook concluded that overloading was a contributing factor in this incident.

36.

Holbrook interviewed Bishop and learned that the brakes had failed;

37.

Bellamy's notes (Exhibit 10) are silent about brake failure being a factor in this incident.

38.

Bellamy did not mention brake failure during his testimony at trial.

39.

Both Bellamy and Holbrook concluded that MSHA did not have specific authority to
regulate coal haul truck load limits.

40.

Clintwood Elkhorn did not have the GVWR data MSHA required and would have to go
to a third party to obtain it.

41.

GVWR is too generic and nebulous to serve as a poirit of reference because the GVWR is
based on model specifications rather than the individual configuration of individual and
unique trucks.

42.

GVWR data cannot be relied upon or even calculated when after-market alterations, as
insignificant as changing tires, are made to trucks.
Discussion and Conclusions of Law

The issue of whether overloading of trucks occurred and contributed to this roll-over
incident is central to this case. Holbrook and Bellamy insisted that Clintwood Elkhorn obtain
and use GVWR data as a means to regulate perceived truck overloading.5 Clintwood Elkhorn
resisted being required to obtain and use GVWR data and asked the MSHA representatives to

5

The impasse over whether MSHA could require Clintwood Elkhorn to gather and use GVWR
data in order to regulate load limits arose from consultations aimed at reaching consensus about what
would be necessary to lift, the 104(b) closure order. This ·consultation process is referred to by the
parties and in this decision as an ''action plan." Elsewhere in the Mine Act, in a section dealing more
specifically witl1 large scale mine safety plans such as ventilation plans, there are regulations defining the
actual formal aCtion plan process. See 30 C.F.R. 75.372. It appears that MSHA borrowed from and
adapted the formal action plan process in addressing this roll-over incident. Much of the regulatory and
decisional language relating to action plans inapposite here, however the key principle governing
MSHA' s ability to force an operator to accept elements of an action plan as to which there is no
consensus informs this decision. Both in the formal action plan setting and in this informal instance,
MSHA 's actions must not be found to be arbitrary or capricious, in bad faith; or an abuse of its
regulatory discretion. See Sec '.Y ofLabor v. Twenty Mile Coal Comp., 30 FMSHRC 736, (Aug. 2008)
and Sec '.Y ofLabor v. C. W Mining Comp., 18 FMSHRC 1740 (Oct. 1996).

is

32 FMSHRC Page 1887

provide authority showing that MSHA is given regulatory authority to regulate truck loading in
any way. Although several citations and orders were used to get this case in a posture to be
resolved with an expedited hearing, the focus of this case remains on the overarching issue of
whether MSHA had authority to require Clintwood Elkhorn to obtain and use GVWR data as a
condition precedent to allowing operations at the prep plant to resume and whether it was proper
to shut down the prep plant to force Clintwood Elkhorn to agree to obtain and use the GVWR
data. I conclude that MSHA acted arbitrarily and exceeded its authority and that it was improper
for it to condition reopening the prep plant on the GVWR issue.
The Secretary failed to prove that Truck-292 was overloaded.
All citations and orders used by MSHA in this case require proof of overloading in order
to be sustained. In order for the Secretary to prevail, she must satisfy her burden to prove by a
preponderance of the evidence that Truck 292 was in fact overloaded and that overloading was
either the cause of or a contributing factorin the roll-over incident.
The Secretary failed to prove that the truck in this case was overloaded. The evidence
admitted at trail shows that Truck 292 hauled eight loads earlier in thedayranging from
approximately 39 tons to approximately 47.5 tons. (Exhibit 7) However, since Truck 292 spilled
its load when it rolled over, there was apparently no way to assess the weight of the load in
question. (Tr. 80:3-12) The Secretary did not prove that Truck 292 was overloaded when it
rolled over; The court is unwilling and unable to infer from these meager facts that overloading
occurred.
The Secretary failed to prove that overloading was either the cause of or a contributing factor in
the roll-over.
MSHA's actions regarding the impasse over the GVWR data were predicated on its
conclusion that Truck 292 was overloaded and that overloading was at least a contributing factor
in the roll-over. MSHA failed to prove that Truck 292 was, in fact, overloaded. Furthermore, in
light of the strong evidence that brake failure caused the roll-over, it is surprising that Bellamy
was silent about brake failure, both during his testimony and in his transaction notes. (Exhibit 10)
Bellamy's silence is doubly puzzling considering that his office mate and investigating colleague,
Holbrook, was aware of the brake issue from his interview with Bishop. Bishop told Holbrook
what happened with the brakes and engine and that Bishop himself concluded that brake failure
caused the incident. (Tr. 65: 11-66:3)6 I credit Bishop's testimony because ofhis involvement in
the incident and the lack of any reason to question his motive. In the face of these facts, it
appears that the two MSHA investigators did not cpmmunicate very well as to what caused the
roll-over. Furthermore, a look at the action plans (Exhibits 13 and 14) shows that the brake

----

.

--···--·--·-----

6

Holbrook speculated at trial that overloading could be a factor in brake failure, but his
speculation is far too tenuous to support a conclusion that overloading existed and played a causal role in
this incident. (Tr. 65:20-66:3)
32 FMSHRC Page· 1888

failure issuewas never mentioned. Overloading was clearly the focus of the action plans to the
exclusion of much more compelling evidence of the alternate cause. The citations and orders
used by MSHA to carry out its purpose are all predicated on a conclusion that overloading was
the cause of the incident, despite strong and convincing evidence that brake failure caused it..
Applying these findings .to the sequence of citations and orders in this case results in the
conclusion that the 104(a), 104(b) and 104(d) citations must fail as written. They are all
premised on the conclusion that Truck 292 was overloaded.
The 104(d)(l) Citation
MSHA issued a 104(d)(l) citation. (Exhibit 12) A 104(d)(l) citation is used to charge an
operator with ''unwarrantable failure" to remedy an alleged violation of any mandatory health or
safety standard. The 104(d)(l) citation requires the following: (1) a finding of a violation of any
health or safety standard; (2) which does not cause an imminent danger; and (3) a finding that the
violation is of such a nature as to significantly and substantially (S&S) contribute to the cause
and effect of a mine safety or health hazard; and (4) that the 104(d)( 1) violation is caused by an
unwarrantable failure to comply with the underlying health and safety standard. 29 U.S.C. § '814.

In this case, the 104(d)(l) citation was used as if it were in the context of an "inspection"
rather than an "investigation." The distinction is important. The legislative history of Sec.
103(a) and Sec. 103(h) is instructive. It explains that an "investigation" is an inquiry into causes,
whereas an "inspection" is defined as "a close or strict examination or survey to determine
compliance." Sen.Rep. No. 95-461, 95th Cong., 1st Sess. 48 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong.2d Sess., Legislative
History of the Federal Mine Safety and Health Act of 1977 at 615. (Leg. Hist., 1977 Act). There
is no question that this case involves an "investigation" rather than an "inspection." The
legislative history uses Sec. 104(d)(2) as an example to illustrate the intended used of a Sec. I 04
citation, but the same rationale applies to a Sec. 104(d)(l) citation as well. Id. ''Section
104(d)(l), however, is confined to violations found 'upon any inspection."' Mining Company v. ·
Sec'y ofLabor, 9 FMSHRC 1541, 1564 (Sept. 1987); quoting Leg. Hist., 1977 Act. This
provision read together with Sec. I 04(d)(2) provides for immediate withdrawal authority without
regard to abatement efforts for violations deemed to result from the operator's unwarrantable
failure to comply. Id. This is a significant extension of regulatory authority and by using the term
'inspection' alone, Congress reserved and confined this authority to current existing violations
which, because of their gravity or the operator's underlying failure to correct them require
prophylactic mine closure. Id. Congress did not intend this authority to be used as a post hoc
sanction for violations no longer extant or previously abated but later "found" during
after-the-fact "investigations" as to their causes." Id.

32 FMSHRC Page 1889

The same distinction must be recognized in the context of this 104(d)(l) citation. First,
the language of 104(d)(l) clearly restricts its application only to an "inspection."7 29 U.S.C. §
814. Second, since this is an investigation or an ''inquiry into causes" rather than "a close .or
strict examination or survey to determine compliance," the extended regulatory authority
reserved to inspections does not pertain, and the use of the 104(d)(l) citation in this setting is
inappropriate. Id. This is not a situation involving current existing violations which, because of
their gravity or the operator's underlying failure to correct them, require a prophylactic closure.
This is an investigation into the cause of a roll-over incident. The use ofthe J 04(d)(l) citation
here is a good example of an inappropriate "post hoc sanction for violations no longer extant or
previously abated but later 'found' during after-the-fact 'investigations' as to their causes," so
prominently cited in the legislative history above. Id. Bellamy issued the 104(d)(l) order because
he could not come to terms with McCoy of Clintwood Elkhorn on including GVWR data in the
action plan, not because Clintwood Elkhorn had failed to abate a "current existing violation." Id.
Irrespective of whether the 104(d)( 1) citation was the proper procedure to bring the
disagreement in this case to a head, the underlying alleged violation is overloading oftrucks. 8 · ·It
is clear that in the broader context of the 104(d)(l) citation it is the overloading issue that is
alleged to cause and effect a mine safety hazard. The roll-over itself was a resulting incident
which, absent reference to the overloading issue, has no prospect of being a future or continuing
condition warranting a 104(d)( 1) citation. The only way to make sense of a 104(d)( 1) citation
under these facts is to conclude that the alleged overloading is the condition which contributes to
the cause and effect of a-mine safety or health hazard, i.e., the hazard effected by the alleged
overloading is the potential for a roll-over incident such as this one. It is equally clear that the
reason MSHA issued the 104(d)(l) citation - as weU as the 104(a) aild 104(b) citations - is
because Clintwood Elkhorn challenged MSHA's authority to regulate load limits by requiring
reference to the GVWR data.
The,l04(d)(l) citation must be vacated.for three reasons: (1) the Secretary failed to prove
that overloading existed, as a matter of fact; (2) the 104(d)( 1) citation is predicated on the
unproved allegation that overloading existed; and (3) the 104(d)(l) citation is an inappropriate
post hoc sanction for violations no longer extant.
The 103Ci}and (k) Orders
There was no "accident" for purposes of th~ 103(j) and J03(k) orders. ·In the Mine Act, it
is clear that in order for either Section 103(j} or I 03(k) to apply, an "accident" must have

7

"(d)( 1) If, upon any inspection of a coal or other mine [... ],

8

[Emphasis added.]

MSHA refers to the loss of control described in 30 C.F.R. § 77.1607(b) in the 104(d)(l) citation
(Exhibit 12), however it is clear that the gravamen of the investigation and subsequent actions is the
alleged overloading of trucks.

32 FMSHRC Page 1890

occurred. 9 29 U.S.C. § 813. The term "accident" has a specific technical definition under the
Mine Act and its related regulations. Under 30 C.F.R. § 50.2 (h)(2) "accident" means an injury
to an individual at a mine which has a reasonable potential to cause death. 30 C.F.R. § 50.2
(h)(2). The term "injury'' has a specific technical definition under the Act as well. Under 30
C.F.R. § 50.2 (e) the definition of"injury'' is satisfied only if medical treatment is administered,
death or loss of consciousness occurs, or the miner is unable to perform all job duties after the
event. 30 C.F.R. § 50.2 (e). Mr. Bishop was not injured. He received no medical treatment, and
he remained able to perform all of his job duties on the day of the incident and beyond. (Tr.
192:10-'23; 193:23-194:11; 94:12-25; 195:1-10; and 195:21-196:6) The plain meaning of these
regulatory sections, applied to these facts, leads to the conclusion that there was no injury, thus
no accident, thus no basis for either the 103(j) or 103(k) citations. The 103(j) and 103(k)
citations must be vacated.
The 104(a) Citation
The 104(a) citation (Exhibit 9) was issued on October 15, 2010, after MSHA and
Clintwood Elkhorn had discussed the action plans relating to the October 6, 2010, roll-over
incident and reached an impasse on whether Clintwood Elkhorn would have to use GVWRdata
to limit load weight. Clintwood had, according to the testimony and evidence in Bellamy's notes
(Exhibit 10), requested that MSHA proceed to issue whatever citations and orders it needed to
bring the impasse to hearing under the Commission's expedited hearing authority, 29 C.F;R. §
2700.52. On its face, the 104(a) citation refers to Clintwood Elkhorn's failure to provide weigh
ticket data requested by MSHA. Significantly, it is not based on any specific alleged health or
safety violation, but cites only to Sec.103(a) as its authority. Sec. 103(a) establishes MSHA's
general investigation and inspection- authority, but does not in itself form a basis for citations or
orders in this context. 10 As in the case ofthe related I 04(d)( 1) citation, the gravamen of the
investigation and subsequent actions is the alleged overloading of trucks. Also, as with the
104(b)( 1) citation, the Secretary has failed to prove the underlying overloading existed.
9

The language of both Sec. 1030) and 103(k) is identical regarding this point: "Jn the event of
any accident occurring in any coal or other mine,[ ...]." [Emphasis added.]
'°Assuming arguehdo that MSHA should have cited to Sec. 103(h) instead of Sec·. 103(a) in order
to trigger an obligation to turn over documents, the arbitrary nature ofMSHA's enforcement actions
nullifies the obligation. Sec. 103(a) gives the Secretary a general right of entry for investigation
purposes. Sec. 103(h), however, can require that an operator turn over documents requested during an .
investigation: "Jn addition to such records as are specifically required by the Mine 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[. . .] may reasonably require from time to time to enable [her] to perform
[her] functions under this act." 30 U.S.C. § 813 (emphasis added) As explained elsewhere in this
decision, MSHA's enforcement actions were arbitrary and capricious, including conditioning the
reopening of the prep plant on Clintwood Elkhom's turning over the requested GVWR data. The
document requeststemrning from this arbitrary enforcement action is inherently unreasonable. It deals
with the same GVWR data which are the sine qua non for the enforcement action, and it derives from the
same errors.

32 FMSHRC Page 1891

Accordingly, the 104(a) citation, as written, fails to cite to an alleged violation that is supported
by the evidence.
The 104(b) Order
The 104(b) order (Exhibit 8) was issued on October 15, 2010, as well. It too, was
prepared and served with the understanding that MSHA would issue whatever citations and
orders it needed to bring the impasseto hearing as quickly as possible. The language of Sec.
104(b) makes it clear that its authority arises only in reference to a situation that has generated a
prior 104(a) citation. 11 It follows then that if the underlying 104(a) citation is faulty for failtire of
proof, the derivative 104(b) order must fail as well. On its face, the 104(b) order speaks of
Clintwood Elkhorn' s failure to abate the alleged overloading issue, and nothing else. The 104(b)
order must be vacated because the Secretary failed to prove that overloading occurred. The
104(b) order was issued on the basis that the overloading on which the 104(a) citation was based
had not been abated. Since there was no proof of overloading to support the 104(a) citation, the
104(b) order fails because there is no valid underlying citation issue that had not been abated.
MSHA had no specific authority to regulate truck load weight limits;
The central issue in this case is whether MSHA appropriately ordered operations at the
Clintwood Elkhorn prep plant to stop because Clintwood Elkhorn refused to obtain and use
GVWR data to address the issue of truck overloading. I have already found that the. Secretary did
not prove that overloading existed or that it played a roll in this incident. It is also clear that
MSHA chose to focus on the overloading issue even though brake failure was the obvious cause
of the incident. Whether Clintwood Elkhorn's refusal to comply was reasonable and justified
depends in large part on whether MSHA has the authority to regulate load limits in the first
place. During the period between October 6, and October 15, 2010, as the parties conferred and
negotiated the terms of the action plan, Clintwood Elkhorn pressed MSHA to show where the ·
authority to regulate load limits originated. (Tr. 166:6-13) MSHA was not able to cite to any
clear authority. (Tr. 85:21-86.:12; 48:22-49:12; 166:6-13) At the trial on October 19, 2010,
Holbrook and Bellamy testified ~at they were aware of no MSHA authority to regulate load
limits. (Tr. 86: 13-18; 158:5-23; 176:23-168: 15) The evidence is clear that MSHA not only did
not cite to any authority to regulate load limits, but that it acted with knowledge that it did not
have authority to do so..
MSHA abused its discretion and acted arbitrarily when itconditioned thereopening of the prey
plant on the use of GVWR data to regulate truck load weight limits.
--··--····

·-··~·

-- ... -----

Sec. l 04. ''(b) u: upon any follow-up inspection of a coal or other mine, and authorized
representative of the Secretary finds (I) 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,
[...}." 30 U.S.C. § 814 (emphasis added).
11

32 FMSHRC Page 1892

The cascade of events that led to the expedited hearing in this case started with the rollover incident and the issuance of a 103(j) and {k) order. I have elsewhere ruled that due to the
peculiar and fortuitous fact that the driver of the Mack 800 truck was not injured at all, the I 03
orders should not have been used as a means to attempt to regulate truck load limits. Here I
address the manner in which the 103 orders were used in light of the law governing regulatory
abuse of discretion and arbitrary and capricious actions. 12
Section 103{k) of the act is to be given broad discretion. "Section 103{k) provides that it
is MSHA, not the operator, who is ln charge of the investigation." Rockhouse Energy Mining
Co., 26 FMSHRC 599, 602 {July 2004) (ALJ). The Act gives MSHA plenary power to make
post-accident orders for the purpose of protection and safety of all persons. Miller Mining
Company, Inc. v. FMSHRC, 713 F.2d 487, 490 {9th Cir. 1983). MSHA has broad authority to
issue 103(k) orders to effectuate this purpose. Buck Mountain Coal Co., 15 FMSHRC 539 (Mar.
1993) {ALJ); West Ridge Resources, Inc.; 31 FMSHRC 287 {Feb. 2009) (ALJ). This broad grant
of authority is recognized in the legislative history:
[t]he unpredictability of accidents in mines and uncertainty as to the circumstances
surrounding them requires that the Secretary or his authorized representative be
permitted to exercise broad discretion in order to protect the life or to insure the
safety of any person. The grant of authority under section [103(k)] to take
appropriate actions and ... to issue orders is intended to provide the Secretary with
flexibility in responding to accident situations, including the issuance of
withdrawal orders.
S. Rep. No. 95-181, at 29 (1977), reprinted in Senate Subcomm. on Labor; Comm. on Human
Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 617 (1978).
Given the broad discretion afforded the Secretary, her issuance of a 103(k) order, or
subsequent modification, is reviewable for an abuse of discretion. The Secretary must show that
''the MSHA investigation team leader did not act in·an arbitrary and capricious manner in
deciding to issue the 103(k) order and subject modification." Secy ofLabor v. Peabody Coal
Co., 18 FMSHRC 686, 690 (Mayl996), qffd 1. 111F.3d963 {D.C. Cir. 1997). The
Commission in Twentymile Coal applied the following guidance in determining if the actions of
a district manager were arbitrary and capricious:
The scope of review under the "arbitrary and capricious" standard is narrow and a
court is not to substitute its judgment for that of the agency. Nevertheless, the
agency must examine the relevant data and articulate a satisfactory explanation for
- - - - · - - - · ·-· -·-··-----12

The analysis of abuse of discretion and arbitrary and capricious action is not restricted only to
citations and orders under Sec. 103. This analysis is broad enough to pertain to the other citations and
orders issued by MSHA in this case.

32 FMSHRC Page 1893

its action including a "rational connection between the facts found and the choice
made." In reviewing the explanation; we must "consider whether the decision was
based ona consideration of the relevant factors and whether there has been a clear
error ofjudgment." Normally, an agency rule would be arbitrary and capricious if
the agency has relied on factors which Congress has not·intended it to consider,
entirely failed to consider an important aspect of the problem, offered an
explanation for its decision that runs cowiter to the evidence before the agency, or
is so implausible that it could not be ascribed to a difference in view or the product
of agency expe{tise.

Twentymile Coal, 30 FMSHRC at 754-155,.quoting Motor Vehicle Mfr's Ass'n v. State Farm
Mut. Auto. Ins. Co., 463U.S. 29, 43 (198~).
Bellamy and Holbrook's conclusion that overloading was either the cause of or a
contributing factor in the roll-over incident in this case is factually wisupportable. That in itself ·
is not a sufficient basis to conclude that their enforcement actions were arbitrary and capricious. .
However, the way in which MSHA dealt with the evidence of brake failure in order to promote
the theory of overloading and its acknowledgment that it lacked authority to regulate load limits
do support a conclusion that their actions were arbitrary and capricious.
First, the only evidence available to the MSHA investigators about potential overloading
is the weight data for Truck 292 and others at the pr~ plant on the day of the incident, October 6,
20 I 0, (Exhibit 7) and Holbrook's visual observation of another truck being weighed on October
15, 2010. {Tr. 86:19-89:1) 13 These data are meaningless without some relevant point of
reference from which one can determine whether overloading is happening. It is clear that
MSHA wanted to use the GVWR data to establish this point of reference, but no evidence was .
presented showing that GVWR data do or even can serve this purpose. The evidence at trial
indicated that the GVWR is too generic and nebulous to serve as a point of reference because the
GVWR is based on model specifications rather than the actual configuration of individual and
unique trucks. (Tr. 71 :2-72:20) Also, MSHA could not show how GVWR data can be relied on
or even calculated when after-market alterations as insignificant as changing tires are made to
trucks. (Tr. 79:3-15) Without more evidence it is impossible to determille what relevance
GVWR data have to the issue of wisafe overloading. Without a point of relevant reference, it is
impossible to determine if Truck 292 .. , .or any other truck - was overloaded, and it is impossible
to make a meaningful judgment about whether overloading caused or played any role at all in this
incident. It is difficult to reconcile MSHA's devot~on to the importance of using GVWR data as
a means of assessing overloading in light of this. Without evidence that would ·make the use of

13

0n cross examination, Holbrook testified that he only observed one truck being weighed on
October 15, 2010, the day he enforced the 104(b) abatement order. He detennined that the basis for the
104(a) citation, i.e., overloading, was still happening and that a 104(b) order for failure to abate was
appropriate. (Tr. 89:2-91 :20)

32 FMSHRC Page 1894

GVWR data meaningful as a point ofreference, MSHA's choice to rely solely on the GVWR as
it did is not rationally connected to the facts available to them.
Second, MSHA either ignored the clear and reliable evidence of brake failure or deemed
it so unlikely as to not warrant mention in either the action plans (Exhibits 13 and 14), any of the
citations and orders, or in Bellamy's transaction notes. (Exhibit 10}14 This is clearly relevant
information which requires the articulation of a satisfactory reason why it was omitted. MSHA
failed entirely to consider:tllls evidence in any way that is apparent on the record. There is no
explanation why MSHA did not consider this evidence or factor it into its enforcement actions.
Omission of the brake failure evidence impacts the assessment of the requirement that there be a
rational connection between the facts found and the choices made. MSHA' s decisions were not
based on a consideration of the obvious relevant factor of brake system failure. This constitutes
an unexplained and arbitrary failure to consider an important aspect of the problem.
Finally, MSHA conditioned the abatement of its orders on a single issue - the gathering
and use of GVWR data to regulate load limits - knowing that there was no specific regulatory
authority to regulate load limits at all. (Tr. 166:6-13) 15 In conjunction with the other factors
discussed above, this fact tends to show that MSHA had a preconceived plan to use GVWR data
as a means to regulate load limits and wanted to use this case to test its theory. 16 It is arbitrary to
ignore facts that do not support an enforcement theory. It is arbitrary to push forward with an
enforcement theory without establishing facts to support it. It is arbitrary to insist on compliance
with an enforcement plan that is not supported by regulatory authority or facts:
The evidence leads to the conclusion that MSHA did not establish a "rational connection
between the facts found and the choice made." MSHA's decisions and actions were not "based ·
on a consideration of the relevant factors" in light of the evidence m~ntioned above. MSHA's ·
actions and decisions were the result of a clear error of judgment. I conclude that MSHA' s
actions were arbitrary and capricious and an abuse of discretion. All citations and orders
conditioned on use of GVWR data are invalid and must be vacated•..

14

MSHA' s failure to factor brake failure into their enforcement actions causes concern in light of
the fact that Holbrook knew the details of the brake failure evidence from his interview with Bishop and
then conducted a brake test on Truck 292 after it was put back on its wheels. He also testified that,
irrespective of the load a truck is hauling, if the brakes fail in the manner described by Bishop, the truck
will lose control. (Tr. 65:11-68:25)
15

Clintwood Elkhorn attempted to comply with the GVWR request in a manner that could bring
some clarity to the issue, i.e., by proposing to abide by the GVWR regulations created by Kentucky state
statues. (Exhibit 13) MSHA would not agree to this.
1

6There were two accidents on the same day where the drivers lost control of their trucks. MSHA
required the other company, Frasure Creek Mining, to put the GVWR data on the weigh tickets, and
Frasure Creek agreed. This lifted the 103(k) order for that case. These cases were the first time that
Bellamy required the GVWR data as part of an action plan. (Tr. 166:14-167:12)

32 FMSHRC _Page 1895

All citations and orders covered by the discussion herein are vacated and set aside.

L. Zane Gill
· Administrative Law Judge

Distribution:
Jennifer D. Booth, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219-2456
Matt Shepherd, Esq., OfficeoftheSolicitor,U.S. DepartmentofLabor, 618 Church Street, Suite
230, Nashville, TN 37219-2456
Melanie J. Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True"PLLC, 3151 Beaumont
Centre Circle, Suite 375, Lexington , KY 40513
led

32 FMSHRC Page 1896

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

December 27, 2010
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 2008-1592-M
A.C. No. 15-04469-159947

v.

MINE: Kosmos Cement Co.
CEMEX, INC.,
Respondent

DECISION
Appearances: Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, TN, on behalf of the Secretary of Labor;
Gayl~ R. Harrison, Safety Mananger, Cemex, Inc., 15301 Dixie Highway,
Louisville, KY 40272, on behalf of Cemex, Inc.
Before:

Judge Rae

This case comes before me on a Petition for Assessment of Civil Penalties filed ~
accordance with Section 105 (c) of the Federal Mine Safety and Health Act of 1977, the "Act,"
30 U.S.C. §§ 801, et seq. In contest is one §104(d)(l) citationissued in violation of 30C.F.R.
§56.18002(a) of the Act by an Mine Safety and Health Administration ("MSHA) inspector. The
case was heard,.as proposed by the parties, via telephone on November 4, 2010.
At hearing, the parties proffered that a partial settlement had been reached regarding four
additional citations numbered 7750727, 7750728, 7754413 and 7754428. A formal motion for
settlement of those charging documents was submitted post hearing proposing civil penalties of
$17 ,400 for the violations charged therein. I have reviewed the documentation and
representations submitted and find that the proposed settlement is acceptable under the criteria
set forth insection l lO(i) of the Act. Accordingly, an orderdirecting payment of those penalties
has been signed and will also be incorporated in this decision.

Findings ofFacts..;·Conclusions of Law
Cemex is a metal/nonmetal cement plant operating full time with four crews, or 155
miners in total. It is characterized as a relatively large mine with annual hours worked between
300,000 and 500,000. TR 17 and Gov. Ex 1. On March 17, 2008, Citation 7750542 was issued
to Cemex, Inc. ("Cemex") for failure by the operator to conduct adequate on-shift examin.ations
32 FMSHRC Page 1897

evidenced by a number of violations issued during an inspection conducted the week of March 3,
2008. This citation was issued several days after the inspection by MSHA certified inspector
Handshoe who was present during the inspection. He did not testify to having written any of the
citations issued during the inspection itself.
The Citation
Citation No. 7750542 reads as follows:
Persons designated by the operator to examine each working place for conditions
affecting safety or health were not observing and reporting obvious hazards.
Hazards found during the inspection which were also cited during the past 2 years
included: 56.1101, cited 22 times; 56.12018, cited 10 times; 56.20003, cited 15
times. The mine operator has engaged in aggravated conduct constituting more
than ordinary negligence by not ensuring an adequate examination was conducted
for obvious and apparent hazards. This violation is an unwarrantable failure to
comply with a mandatory standard.
Gov. Ex. 1.
The gravity of the violation was assessed as reasonably likely to resultin a fatal injury
and as significant and substantial. 1 It was also written as a Section 104(d) (1) violation, an
unwarrantable failure to comply with a mandatory standard.2 The operator's negligence level
was assessed as high and the proposed fine is $10,437. Gov. Ex. 2.
The Citation was later amended on March 28, 2008 by removing the words "Persons
designated by the operator to examine each working place for conditions affecting safety or
health were not observing and reporting obvious hazards." The sentence was replaced with the
words, "Persons conducting the workplace examinations were not reporting obvious hazards and
the operator failed to initiate prompt corrective action."
The Standard
30 C.F.R. §56.2008(a) provides:
1

A violation is properly designated significant and substantial, "if, based upon the particular
facts· surrounding that violation, there exists a reasonable likelihood that the hazard contributed
to will result in an injury or illness of a reasonably serious nature." Cement Div., Nat'! Gypsum
Co., 3 FMSHRC 822, 825 (April 1981 ). The question of whether a violation is S&S must be
based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (April
1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC.2007(December 1987).
2

An unwarrantable faihrre is aggravated conduct beyond ordinary negligence characterized by
such conduct as "reckless disregard," ''intentional misconduct," "indifference," or a "serious lack ·
ofreasonable care." See Emery Mining Corp., 9FMSHRC1997 (Dec~ 1987) at 2003-04;
Rochester & Pittsburgh Coal Co. , 13 FMSHRC 189, 194 (Feb.1991); and Buck Creek Coal Inc.
v. MSHA, 52 F. 3d 133, 136 (7th Cir. 1995)(approving Commission's unwarrantable failure test).

32 FMSHRC Page 1898

(a) A competent person designated by the operator shall examine each working place at
least once each shift for conditions which may adversely affect safety or health. The
operator shall promptly initiate appropriate action to correct such conditions.

(b) A record. that such examinations were conducted shall be kept by the operator for a
period of one Year, and shall be made available for review by the Secretary or his
·
authorized representative.
(c) In addition, .conditions that may present an imminent danger which are noted by the
person conducting the examination shall be brought to the immediate attention ofthe
operator who shall withdraw all persons from the area affected (except persons referred to
in section 104(c) of the Federal Mine Safety and Health Act of 1977) until the danger is
abated.
The Evidence
Inspector Handshoe, a certified MSHA metal/nonmental inspector, testified that during
the week of March 3, 2008, he was one of several inspectors Who conducted a week-long ·
inspection of Cemex' s Kosmos Cement Plartt. Because he was recovering from knee surgery, he
remained on the ground near the office and did not make the physical inspection of the areas
requiring climbing or traveling. TR 17. The inspectors held a pre-inspection conference with
mine representatives during which they revie~ed the on-shift examination reports. These onshift examination reports are for the purpose of identifying and reporting hazards so that they can
be timely corrected.The reports are kept for a period of one year. Handshoe testified that the
reports were being made by competent people, as far as he could recall. TR 18-22.
Following the completion of the inspection, the inspectors involved met to discuss their
findings and determined that issuing the instant citation was appropriate based upon the nature of
the violations issued during the inspection, 3 It was also determined that the citation was
appropriate based upon the purported past history of 22 citations for safe access, 10 citations for
electrical violations and 15 citations for housekeeping issues over some period oftiine.4 TR 28
Handshoe testified that "some violations" were i$sued for hazards not reported on the onshift examination reports. He explained the nature of the violations as some being for
"spillage", ''safe access," "electrical" and "housekeeping issues" that were obvious, in his
opinion. TR 22. He described the location of the spillage violations in more detail as follows:
"At work platforms, on walkways, elevated walkways, tunnels, just different locations ..
And without my,.- the citations, I couldn't give you exact locations. But spills can occur
3

The Secretary did not introduce any of the citations issued during the March 3-7, 2008
inspection into evidence or the inspectors' notes.
4

The Secretary did not introduce a mine history report for the time period prior to March 2008.

32 FMSHRC Page 1899

at any place, any time, and that needs to be addressed and found during \VOrkplace ·
examination. (Sic.). That way, it can be reported and corrected."
TR23.
When questioned concerning his belief that the spillage at "some locations" was obvious
and not corrected during the shift in which they occurred, he said it was based upon ''the amount
of spillage at some of the locations .. .it was obvious that some of the spillage had taken place
over a period oftime ... maybe a couple of days, two or three days." In support ofhis belief that
the condition existed for more than one shift, he stated that there were footprints in some of the
areas where spillage was found. He was unsure of whether the areas in question were traveled
regularly but concluded that generally at "any given time, any place in the plant could be
accessed at any time" for some purpose. This was sufficient in his mind to determi:h.e what
exposure to miners this condition posed. TR 23-24. Other violations Handshoe described as the
"main issue" were related to safe access and housekeeping located in ''tunnels" or .on "elevated
walkways" of which there are many in a mine of this size. TR 29. In "some places" there was a
danger ofrocks falling off the raised platforms. TR 32. The exposure to such hazards was
quantified as being that "anybody could walk anywhere at any given time ... so anybody could
walk anywhere during any time that day or shift, the weekend shift." TR 31.
The type of injury Handshoe anticipated from the spillage; safe access and housekeeping
violations found during the inspection would be a.sprained ankle orbroken wrist.. He felt it was
reasonably likely to occur because "it was more reasonably likely than not for them to cause an
injury than not to cause an injury." TR 34. He said he marked the gravity on the "bulk" of the
citations issued, as well on this instant citation, as "fatal'' based upon the fact that "usually, when
I mark 'fatal' on something like this, the majority of the citations that were issued that could have
been found with a workplace examination are more likely than not to cause a fatal injury than
not." When asked, "would that be related to some of the electrical violations that you found?'.'
he answered, "correct." TR 34. He assessed the negligence level of the operator for the instant
citation as "high" because the hazards cited during the inspection were obvious and should have
been recorded and reported in a timely manner. TR 35. The basis for his belief that management
had notice of the inadequate inspections was 'just the numerous obvious hazards that were
detected or observed during this inspection." TR 37. Handshoe stated the inspectors "didn't turn
over no rocks" (sic) to find the violations for which they issued citations. TR 26-27~
On cross-examination, Handshoe could not recall whether there were three or· four
inspectors present and he had not reviewed his notes and did not have other inspectors' notes to
refresh his recollection. When asked to indicate where in the standard the adequacy of an
inspection is mentioned, he responded that the citation was modified to state that persons
conducting the examinations were not reporting obvious hazards and not initiating prompt
corrective action. TR 46. Finally, he acknowledged that the standard does not determine the
adequacy of the examination. TR 47. When asked if Cemex was repofting hazards in their onshift examination reports, the following exchange took place:
·

Q; But they had been reporting hazards, though, right?
32 FMSHRC Page 1900

A. You know.. and I'm sure I made copies, and I don't have those copies in front
of me, Gayle, so I can't really ....
Q. But if you did not find any hazards listed ... hazards listed, or if you did not find
,any record that even the inspection had been ... had been completed, you would
have reacted, though, to that, would you not?
A. I probably would have.
Q. And what would have been your reaction?
A. But I don't have anything in front of me, so I can't ...
Q. Well, what would have been your reaction had you found out?
A. Had I found out what now?
Q. Had you found that they had not been completed, nothing listed; in other
words, it was a blank sheet of paper.
A. Well, then, if it was a blank sheet of paper, then I would have written a
citation for not completing workplace examination. (Sic) .
Q. And understandably so. But you didn't find that, because we had done that,
right?
A. Okay. Evidently, yes.
TR48-49.
Jesse McCoy, a processor for Cemex who is responsible for making safety rounds in the
mine, testified that he records all safety hazards that he finds when doing his on-shift
examinations. TR 63.
Discussion
The Secretary's evidence in this case fails to meet the requisite burden of proof to support
this citation.. There is a fatal paucity of evidence present upon which to find that any hazards
existed at the time the on-shift examinations were conducted. The mere fact that conditions
existed at the time of the inspection is insufficient 'evidence from which to infer the conditions
existed at the time of the· on'.'"shift examination or that the operator kriew or showd have known of
their existence. ·
·
Inspector Handshoe was neither the issuing inspector nor did he have the issuing
inspector's notes or citations when testifying.· His hearsay testimony lacked specificity as to what
standards were violated, where the violations occurred. His only description was in various
''tunnels," or "elevated walkways' of which there were many at this mine. He indicated there
were "some" violations of a "housekeeping" nature and "some" electrical and safe access issues.
32 FMSHRC Page 1901

He referred very vaguely to spillage. that existed at the time of the inspection that he believed
existed for at least one shift because of its depth and the fact that there were footprints in it.
However, there were no specific facts provided with regard to who cited it, where it was located,
whether measurements were taken of the spillage, what type of material it wa8, what sort of work
had been done in that area and when in order to determine when the material might have spilled,
when management knew or should have known about it, what discrete safety hazard it posed or
how many miners were exposed to it or when corrective action was initiated. There was no
evidence of whether it was in an active part of the mine or how many, or how often, any miners
had been in that area. The same lack of evi<;lence exists for the remainder of the alleged
conditions underlying the issuance of this citation. While it might be inferred that the spillage on
an elevated walkway was the basis for housekeeping as well as safe access violations, there was
no evidence presented on what electrical violations were found which Handshoe testified were
the basis for a fatal injury. Furthermore, the on-shift exaniination reports were not submitted
pertaining to the areas in question to prove that these conditions were unreported as alleged.
Because none of the underlying violations issued during the March 3, 2008 inspection
were adjudicated at the hearing, and are still unsettled, there is no basis to conclude that there
were standards violated or whether the operator knew or should have known of any violations
prior to the inspection. 5
The alleged past history of violations provides no greater support for the Secretary's
theory that the discovery of obvious violations in March in any way served to put the operator on
notice that they were conducting inadequate on-shift inspections in support of this section
56.18002(a) citation. The Secretary did not introduce the mine history of violations prior to
March 2008. Inspector Handshoe testified that the mine had received a number of citations for
housekeeping, safe access and electrical violations in the past. These categories are so broad and
can relate to so many different situations that the numbers alone have no useful evidentiary value.
For instance, there is no evidence that any past violations were for the same sort of spillages, or
for repeatedly failing to maintain toe boards on elevated walkways. There is no evidence that
any prior violations were for failure to recognize or report obvious hazards or for failure to
initiate corrective action on any prior violation. B~cause the testimony was sparse as to the exact
nature and location of the violations found during the March inspection, and no information
regarding the specifics of the past violations was provided, it cannot be determined that they were
of a similar nature or occurred under similar circumstances. Furthermore, the. prior violations
presumably were abated in a tiinely manner and therefore the operator would have just cause to
believe their remedial steps eliminated those prior conditions. There was no evidence that any
failure to report a hazard. was discussed with the e>perator in the past to put them on notice their
on-shift examinations needed greater attention. The qualifications of the examining employee
were not questioned and Handshoe admitted that Cemex was conducting the inspections.
Therefore, no greater notice for failure to report obvious hazards can be imposed upon Cemex
based upon a past history of individual violations in this case.
5

The violations settled by the parties addressed herein were issued at an inspection conducted
·
four months later.

32 FMSHRC Page 1902

It is unclear from the record whether the Secretary sought to support the assessment of an
unwarrantable failure with the past history of violations. However, for the same reasons as
discussed above, that assessment is unsupported by the record. In order to find an unwamµited
failure there must be sufficient evidence of aggravated conduct beyond mere negligence such as
reckless disregard or intentional misconduct. Emery Mining Cor.p., supra. The relevant factors in
determining whether a violation is unwarrantable are the extent of the violative condition, the
length of time that it existed, the operator's efforts at abating the condition, whether the operator
has been placed on notice·that greater efforts are needed for compliance, the operator's
knowledge of the existence of the violation, whether the violation is obvious and whether the
violation poses a high degree of danger. Consolidation Coal Co., 23 FMSHR.C 588, 593 (June
2001); San Juan Coal Co., 29 FMSHRC 125 (March 2007). Assuming that Cemex was failing
to report obvious hazards on their examinations, and assuming the "adequacy" of the
examination is contemplated by the standard, there is no evidence as to the length of time this
failure existed, what actions the operator took to correct the condition, whether the operator has
ever been cited for a failure to report hazards before, or whether the issue has ever been discussed
with the operator in the past to put them on notice of a need to take greater care in performing the
examinations. Thus, I find that even ifthe inadequacy ~fthe examinations violated§ 56.18002(a)
in this case, the assessment of an unwarrantable failure is not substantiated.

I find, however, case law and the Secretary's Program Policy Manual further undermine
the Secretary's position that the inadequacy of the examination alone justifies the§ 56.18002(a)
citation. As Judge Manning stated in a case essentially identical to this one, "that fact that five
citations were issued citing visible safety problems is too slender a reed on which to hang a
violation of section 56.18002(a)." Dumbarton Quarry Association v. SOL, SOL v. Dumbarton, ·
21FMSHRCI132 (Oct. 1999). Judge Manning further referred to the Secretary's Program
Policy Manual concerning §56. 18002 which states "although the presence of hazards covered by
other standards may indicate a failure to comply with this standard, MSHA does not intend to
cite § 56.18002 ,automatically when the Agency finds as imminent danger or a violation of
another standard." Program Policy Manual, Volume N, Subpart Q,
<(http://www.msha.gov/reg/complain/ppm/pmvol4e.htm#77).
fu another similar case involving the issuance of alleged obvious safety violations as the
basis for a § 56.18002 citation, Judge Hodgdon found that the standard is violated only if
examinations are not being conducted or corrective action is not being taken as neither the
regulation nor the Program Manuai mentions "adequacy" in the language. SOL v. Lopke
Quarries, Inc., 22 FMSHRC 899 (July 2000). Acknowledging '\vhile there may be cases where
the violations are so obvious and so egregious that a finding that §56.18002(a) was violated is
appropriate" citations for unsafe access, electrical issues and fire extinguisher problems did not
present such egregious violations. Judge Weisbeger interpreted the language of the standard in
the same way as Judge Hodgdon in SOL v. TX! Port Costa Plant, 22 FMSHRC 1301 (Nov. 2000)
in a case involving a 6" deep accumulation of material with no evidence presented regarding who
traveled in the area or how frequently so as to make the safe access violation an appropriate basis
for issuing at§ 56.18002(a) citation.

32 FMSHR.C Page 1903

I agree with my colleagues.' ·There may be situations .in which a hazard or danger is so
patently obvious and so egregious that the failure to report it is tantamount to a failure to conduc1
an on-shift examination. Finding such a situation could justifiably trigger a § 56.18002(a)
violation for inadequate examinations as contemplated by the Program Policy Manual. In this
ca8e, however, there is no evidence from which to infer the violations, which are ·so vaguely
described by the inspector, are of such an egregio~s nature.

Order
Based upon the foregoing, Citation No 7750542 is hereby vacated. Pursuant to the motior
for partial settlement filed herein, Cemex, Inc. is directed to pay additional civil penalties of
$17,400 within 40 days ofthe date of this decision on Citation Nos. 7750727, 7750728, 7754413
·
and 7754428. 6

Priscilla M. Rae
Administrative Law Judge
Distribution:
Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church St Suite
230, Nashville, TN 37219.
Gayle R. Harrison, Safety Mariager, Cemex, Inc., 15301 Dixie Highway, Louisville, KY 40272.

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.

32 FMSHRC Page 1904

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE N.W., SUITE 9500
WASHINGTON, D.C. 20001
. . (202) 434-9950

December 29, 2010
CIVIL PENALTY· PROCEEDING

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

Docket No. LAKE 2009-36
A.C. No. 12-02010-162898

v.
BLACK BEAUTY COAL COMPANY,
Respondent

Mine: AirQuality#l Mine

DECISION
Appearances: Barbara M. Villalobos, Esq., Office of the Solicitor, U.S. Department of Labor,
Chicago, Illinois, for the Petitioner
Arthur Wolfson, Esq., Jackson Kelly PLLC, Pittsburgh, Pennsylvania, for the
Respondent
Before:

Judge Weisberger

Statement of the Case
This case is before me 1 based upon a petition for assessment of civil penalty filed by the
Secretary of Labor ("Secretary") alleging violations by Black Beauty Coal Company ("Black
Beauty''), ofvaiious mandatory standards set forth in Title 30 of the Code of Federal
Regulations. The parties reached a settlenientregarding five citations at issue, and a hearing was
held in Si. Louis, Missouri, on two orders issued under Section 104(d) of the Federal Mine
Safety and Health Act of 1977 ('"the Act"). 2
Subsequent to the hearing, Respondent filed proposed filings of fact and a brief. The
Secretary filed a brief. Respondent filed a reply brief. To date, the Secretary has not filed either
objections or a reply brief.
.

1

This case was originally assigned to Judge Paez and was reassigned to me.

2

The parties stipulated that the citations underlying these orders are ''paid and final
violation[s]." (Joint Stipulations,"Pars. 9-12).

32 FMSHRC Page 1905

I.

Citation numbers 6672417. 6672495. 6678086. 6678088. and 6681014

The Secretary filed a motion, and an amended motion, to approve settlement of these
citations. The original assessment for these citations was $79,886.00 and the parties reached a
settlement in the amount of $14, 153 .00. I have considered the representations and
documentation submitted. Most significant are the Secretary's representations that ''upon
review" the levels of negligence, and gravity were reduced respectively in two citations,· and one
citation was changed to ''non S&S". Also significant is the Secretary's representation that ''upon
information learned in preparation of this case for hearing, and a further review by the Agency,
the Agency hereby vacates [two] citations (sic)."

I conclude that the proffered settlement is appropriate under the criteria set.forth in
Section 11 O(i) of the Act. Therefore, the motion for approval of settlement is GRANTED.

II.

Order No. 6671205 (violation of 30 CFR §77 .1103(d)3)
· A.

The Secretazy' s testimony

On October 15, 2007, JohnnyL. Moore, anMSHA inspector, inspected Black Beauty's
containment area. The containment area was made out of concrete slab$, approximately nine
inches high, and covered an area of approximately fifteen by twenty-five feet. Moore indicated
that the purpose of the area was to catch spills from three cylindrical storage tanks. Two tanks,
five feet long and three and one-half feet in diameter, had a capacity of 400 gallons and
contained waste oil. A third tank, five feet in diameter and ten feet long, contained diesel fuel. It
had a capacity of one thousand gallons. All the tanks were in a horizontal position.
Moore indicated that he observed cellophane, plastic items, gloves, and other trash
hanging over the edge of the containment area. He indicated that the containment area was a
"slurry of mixed oil and fuel" (Tr. 23), and that he could see dried oil caked on the tanks. He ·
also observed trash through some grating that was on top of the containment area. In addition,
after the liquid in the containment had been pumped out to abate the violation, Moore observed
jugs, cardboard, paper, cracked leather, cans of soda, plastic soda bottles, lids to five gallon
plastic buckets, and pieces of six by six wooden crib ties that were eight to eleven inches long.
According to Moore, these items "had become saturated and fully sunk." '(Tr. 29). Moore
indicated that a hazard was created because combustible material was near flammable storage
tanks. He found the violative condition not to be significant and substantial because the gravity
was ''unlikely'' in that there were not any ignition sources present. He indicated that if an
accident should occur there would be resultant burns, smoke or inhalation injuries to one person

3

Section 77 .1103(d) provides as follows: "~eas surrounding flammable liquid storage

tanks and electrical substations and transformers shall. be kept free from grass (dry), weeds,
underbrush, and other combustible materials such as trash, rubbish, leaves and paper for at least
25 feet in all directions."
32 FMSHRC Page 1906 ·

who would probably be able to get away from the area. Moore issued an order under Section
104 (d) of the Act alleging a violation of 30 CFR §77.1103(d).
According to Moore, the violation was the result of the operator's unwarrantable failure
because the trash was very obvious, and extensive. He indicated that the cited area was in a
"high traffic area" as persons traveled by it to go to and .from a training center, an underground
portal, and a storage warehouse. Also, he indicated that Jim Streepy, Respondent's plant
manager, observed the condition with him along with another MSHA employee, Quintin
Hastings, and they both said that it was a "shame and uncalled for ... [it] to be in this
condition." (Tr. 32).
The inspector opined that, based on the way the condition looked, it had been in
existence for "at least a couple of weeks to three weeks." (Tr: 35-36). Moore testified that he
was told that it took thirty-four man-hours to abate the violative condition. Moore indicated that
the items he cited were extensive.
Moore testified that, after he cited the operator, he met with Guy Campbell, the
underground mine manager, and asked him who was responsible for the cited area. According to
Moore, Campbell told him that the containment was Alan Pancake's responsibility, but he was
on vacation. Moore said that Streepy said he (Streepy) was not responsible for the containment
area; Streepy was not sure who was. According to Moore, after talking to Streepy and Campbell
for approximately two hours, the latter told him that ,"[he would], take responsibility for it ...we
are going to tum it over to the surface, but Alan hasn't made it back o:ffvacation to do that yet
(sic)." (Tr. 34-35).

B.

Respondent's testimony

John A. Burke, a yardman who loaded and unloaded trucks at the site in issue in October
2007, testified that he works around the containment area, and therefore he saw it daily. He
indicated that it was common· for the containment area to contain liquid from rain and/or·
spillage. According to Burke; the company gets rid of the liquid by pumping it out. 1n addition,
it hired Kentucky Petroleum to remove the liquid from the containment area: "as needed'', (Tr.
71 ). Burke indicated that after liquid is pumped out of the area ''we would have to shovel the
extraneous material into barrels." (Tr. 73). He indicated that he would do it immediately after
the pumping "ifl was told to do it." (Tr. 74). According to Burke, Kentucky Petroleum had
removed oil and water from the area on October 11, 2007.
Jim Streepy, was the plant manager at Respondent's Wheatland site4 in October 2007.
He was with the inspector on October 15. He indicated that there was liquid in the containment
area which was mostly water butthere was "some oil on top ofit." (Tr; 90).
Alan Pancake was· the plant supervisor of the preparation plant at issue. He testified that
he was on vacation on October 15, but came to the mine after he was called by Hastings who
4

This site is approximately seven miles from the cited area.
32 FMSHRC Page 1907

infonned him that an inspector was at the site. Pancake indicated that his. area of responsibilities
did not include the containment area.
C.

Discussion
1.

·Violation of section 77.1103(d). supra

Section 77.1103(d), supra, requires, in pertinent part, as follows: "areas
surrounding flammable liquid storage tanks and electric substations and transformers shall be
kept free from grass (dry), weeds, underbrush, and other combustible materials such as trash,
rubbish, leaves and paper for at least 25ft in all directions." 30 CFR §77.l 103(d).
It is Respondent's position that it did not violate section 77 .1103(d), supra, arguing that:
( 1) the containment was part of the storage tank itselfand not covered under section 77.1103(d)
supra, and (2) that the cited material was not combustible.
a.

The containment as subject to section 77.l 103(d). supra

Respondent maintains that the cited containment area is part of the storage area itself and
thus is not subject to section 77.1103(d), supra. Respondent argues as follows:
The containment.itself acts as a type of storage facility for waste oil and kerosene.
It is designed to catch waste ;oil spillage and retain the liquid until it can be
pumped and properly disposed of. It is not the area surrounding the flanimable
liquid storage tanks, but is part of the storage tank facility itself. The containment
is therefore a flammable storage unit and not subject to the above standard.
(Respondent's Post Hearing Br. 3) (citations omitted).
I have considered this argument, but find that it is not persuasive, as it is contrary to the
plain meaning ofsection 77.1103(d), supra. The mandatory requirements of this section apply

to "areas surrounding flammable liquid storage tanks". 5 Thus, storage tanks themselves are not
within the scope of section 77 .1103(d), supra, but the surrounding areas are. Since the cited
containment is adjacent to three storage tanks, (Exs. R-1 (a)(c)(e)(f), and (g)), it clearly faJls
within the purview of section 77.1103(d), supra.
b.

The cited materials as being combustible

The Respondent further argues that it has not been established by the Secretary that the
material cited was combustible, and hence there was not any violation,, In support of its
argument, Respondent cites Marty Corp., 7 FMSHRC 50 (January 1985) (ALl). In Marty,
supra, the judge found that because the cited bales of straw were thoroughly soaked, they may
5

A "storage tank" is a "circular steel tank." Dictionary o(Mining Minerals and Related
Terms ("DMMRT'').

32 FMSHRC Page 1908

not have been combustible andtherefore there was not any violation of section 77.1103(d),
supra. I note, initially, that Marty, supra was decided by' a fellow commission judge and hence I
am not bound by it. Also, the case at bar is factually distinguished from Marty, supra; in Marty,
the bales of hay were soaked in water, not oil, and therefore the bales may not have been
combustible. In contrast, in the case at bar, I note that Respondent did not either impeach or
contradict the testimony of Moore, that the plastic and leather items that he cited were in a
"slurry of mixed oil and fuel" (Tr. 23}6 (emphasis added).
Further, it is significant to note thatMoore testified that the lids that he cited were
combustible as "[t]he plastic will bum." (Tr. 39). Respondent did not impeach or contradict this
testimony.
Moreover, "trash" is one of the specifically enumerated "combustible materials" set forth
in section 77.I 103(d), supra. fu this context, I note the existence of plastic lids, cans, and leather
items observed in the containment area, as well as the following items observed after it had been
pumped out: pieces of a wooden crib ties, cardboard, rubber, and Saran wrap. These items were
clearly ''trash," as that term is commonly understood, i.e., junk, rubbish. See Webster's Third
New International Dictionary (1993 Edition).
For all the above reasons, I conclude that it has been established that Respondent violated
section 77.l 103(d,) supra.
2.

Unwarrantable Failure.

The unwarrantable failure terminology is taken from section 104(d).ofthe 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.
Unwarrantable failure is characterized by such conduct as "reckless' disregard," "intentional
misconduct," "indifference," or a "serious lack ofreasonable care." Id. at 2003-04; Rochester &
Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991 ); see also Buck Creek Coal, Inc.
MSHA, 52 F.3d 133, 136 (7th Cir. 1995)(approving Commission's unwarrantable failtire test}.

v:

The Commission has recognized that whether conduct is "aggravated" in the context of
unwarrantable failure is determined by considering the facts and circumstances of each case to
determine if any aggravating or mitigating circumstances exist. Aggravating factors include the
length of time that the violation has existed, the extent of the violative condition, whether the
operator has been place 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 10.
Coal 31 FMSHRC 1346 (Dec. 2009) Consolidation Coal Co., 22 FMSHRC 340, 252 (Mar.
2000) ("Consol"}; Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev'd on
6

Indeed even Respondent's witness, Streepy, who indicated that the area "was mostly
water," testified further as follows: "There was some oil on top ofit." (Tr. 90).
32 FMSHRC Page 1909

other grounds, 195 F .3d 42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30, 34 (Jan.
1997); Mullins & Sons Coal Co., 16.FMSHRC192, 195 (Feb. 1994); PeabodyCoal Co., 14
FMSHRC 1258, 1261(Aug.1992); BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug.
1992); Quin/and Coals, Inc., 10 FMSHRC 705, 709(June1988).
a.

Aggravating factors

The Secretary argues, in essence, that no one was assigned the responsibility of ensuring
the containment area was kept clean. The Secretary concludes that this fact should be
c.onsidered an aggravating factor for the purpose of determining unwarrantable failure. I note
that the Secretary's argument finds support in the testimony of Moore that neither Streepy,
Pancake, nor Campbell was responsible for the containment area. This testimony was not
impeached or contradicted, nor did Respondent adduce any evidence to establish who was
responsible for the cited area. As such, the lack ofresponsibility for the containment was an .
aggravating factor.
b.

Extent

According to Moore, the containment area was approximately fifteen feet by twenty feet.
He said that when he looked through the cracks in the grating that was on it, he saw trash
"wherever you looked hard enough." (Tr. 25). After the area was pumped, he observed more
trash. These observations were not impeached or contradicted.
He further testified that it took thirty-four man-hours to abate the violative condition.
This testimony was not impeached or rebutted.
Based on all the above, I conclude the violation was extensive.
c.

The length of time that the violative condition existed

I note the Secretary's argument that the cited conditions had existed for a significant
period of time "as evidenced. by the trash discovered at the bottom of the containment area,
saturated with oil." (Secretary's Post Trial Br. at 12). In this connection Moore testified that
after the cited area had been pumped, he observed various items that "had become saturated and
fully sunk (sic)." (Tr. 29). The inspector opined that "based on the way it looked" (Tr. 36), the
conditions had existed for two to three weeks. The inspector did not set forth in detail the basis
for his opinion. There was not any evidence adduced as to the length of time for the cited
materials to have become "saturated." Also, there was not any evidence adduced, aside from his
opinion, regarding the length of time for these items to have "fully sunk" in a "slurry'' of oil and
·
water. (Tr.23).

32 FMSHRC Page 1910

I therefore find that it has not been established that the violation had existed for a
significant period of time. 7

d.

Whether the operator was on notice that greater efforts
were necessary for compliance

There is not any evidence that MSHA had any discussions with the operator, prior to the
issuance of the citation at issue concerning a problem with combustible materials in the
containment area, or in other areas covered by section 77 .1103(d), supra, i.e., those surrounding
flammable liquid storage tanks, electric substations, and.transformers. Nor is there any evidence
that the operator had actual knowledge of the violative conditions. Therefore, I conclude that it
has not been established that the operator was on notice that greater efforts were necessary for
compliance.
e.

Whether the violation posed a high degree of danger

The inspector indicated that a hazard was created because of the presence of combustible
material near flammable storage tanks. The inspector therefore indicated that the violation of
§77.1103(d) created some degree of danger. However, as set forth in IO Coal Co., supra, "the
Commission has relied on.the high degree of danger posed by a violation to support an
unwarrantable finding." See BethEnergy Mines, Inc., 14 FMSHRC at 1243-1244 (emphasis
added). In this context, I note that it is.significant that the inspector found the violative
conditions not to be significant and substantial due to the absence of an ignition source. I thus
find that there was not a high degree of danger.

f.

The operator's efforts in abating the violative condition

The Commission, discussing this factor in IO Coal, supra, indicated that "[t]he focus on
the operator's abatement efforts is on those efforts made prior to the citation or order. Id.
(emphasis added). 1n· this connection, the inspector indicated that when he arrived on the site he
did not observe any workers cleaning up the combustible materials before he orally advised
Black Beauty that he was going to issue a citation. · On the other hand, Burke indicated that
usually, if he observes bad conditions in the containment area, he will tell management to call
Kentucky Petroleum, who is regularly called by the company to remove oil and water. Indeed,
Kentucky Petroleum removed "oily water'' from the area four days prior to its being cited. (Ex.
R-2). It would appear that the company made some efforts to abate the violative conditions prior
to the issuance of the order.
g.

Obviousness of the cited conditions

7

Indeed, based on Moore's observation of trash being blown from a nearby dumpster
towards the cited area, it might be inferred that some of the trash in the containment area might ·.
have been of recent origin.
32 FMSHRC Page 1911

According to the inspector; when he approached the area, he observed cellophane·
hanging over the edge, lids sticking out of the sludge, as well as gloves and other trash. He saw
trash through the cracks in the grating on the containment area. This testimony was not
impeached or contradicted. Therefore, I find that these materials were obvious. However,
according to Moore, some of the materials he cited consisted also of trash revealed after the area
was pumped. I find that this trash was not obvious.

h.

Conclusion

Weighing all the above, and placing significant weight on the lack of notice of the
necessity for greater compliance, the lack of proof of the length of time the conditions had
existed, the lack of a high degree of danger posed by the violative condition, and the lackof
obviousness of some of the materials, I find that the existence of the cited conditions were not as
a result of the operators' aggravated conduct, and thus did not constitute an unwarrantable
failure. See, Emery, supra.
3.

Penalty

In determining the amount of the penalty to be assessed, I must consider the folloWing
factors: the operator's history of previous violations, the size of the. operator's business, any
negligence on the part of the, operator, the effect on the operator's ability to continue in business,
the gravity of the violation, and the demonstrated good faith of the operatorin abating the
violative condition. Section 11 O(i} of the Act.
I find that the operator acted in good faith in abating the violative condition. Neither

party adduced· any evicience that justifies. either an increase or decrease in penalty based on the
operator's size or history of violations. The parties stipulated that the proposed penalty will not
affectBlack Beauty's ability to continue in business. For the reasons set forth above (Il)(C)(2),
infra, I find that the operator's negligence was moderate, but that it did not reachthe level of
aggravated conduct. I find the evidence establishes the presence of combustible material, i.e.,
plastic and leather items near flammable storage tanks. Should these items have ignited, it is·
possible a fire could have resulted which could have led to injuries. I find that the level of
gravity to have been moderate.
Based on all the above, I find that a penalty of$500 is appropriate for the violation of
section 77.1103(d), supra.
ill.

Order No. 6672696 (violation of 30 CFR §75.400. 8 )

8

Section 75.400 provides as follows: "coal dust, including float coal dust deposited on
rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not
permitted to accumulate in active workings, or on diesel-powered and electric equipment
therein."
32 FMSHRC Page 1912

A.

The Secretary's testimony

On May l, 2008, Sylvester Di Lorenzo, an MSHA inspector, inspected the No. 2
underground unit, along with Tom Burnett, mine manager for Black Beauty. According to Di
Lorenzo, he observed combustible material on four different parts of the No. 18 roof bolter. He
indicated that oil and oil soaked coal to an estimated depth of one-half to three inches, covered
the entire area of the following locations: the surface of the right boom, (approximately two feet
by fourteen inches); the hydraulic pump motor compartment, (approximately three feet by three
feet); the floor of the operator's compartment, (approximately three feet by three feet); and the
center section area, (two feet by three feet). Di Lorenzo indicated that the material could ignite
if an ignition source was present. He found that the gravity was unlikely; if an accident would
occur it would result, at a minimum, in lost workdays due to smoke inhalation, carbon monoxide
inhalation or bums, and would affect a minimum of one person. Based on all the above,
Di Lorenzo issued an order under Section 104(d)(2) of the Act alleging a violation of30 CFR §
75.400.
Di Lorenzo opined that the violative conditions resulted from the operator's
unwarrantable failure. (Tr. 127-128). He indicated that the "extensive" accumulations
were"... obvious to the most casual observer ... you could just walk by it and see them." Di
Lorenzo opined that the accumulations had existed for at least four to six shifts. He concluded
that the section foreman should have been aware ofthe violative conditions. Di Lorenzo noted
that when he first arrived on the section, he did not observe any work being perfonned to remove
the accumulations.
Further, Di Lorenzo indicated that he had put the operator on notice of the need for
further efforts regarding accumulations. He testified that on March 31, 2008, he had met with
the general mine manager, Burt Hall, and told him that the mine ''was put on notice for 75.400
accumulations of combustible materials on equipment, belt lines, and inby the loading points."
(Tr. 131 ). According to Di Lorenzo, he also told Hall that it had received 319 of such citations
in the last two years, and 46 citations in the quarter ending March 31, 2008. Di Lorenzo stated
that he. told Hall that improvement would have to be seen, or the level of negligence would be
increased on the citations.
'
According to Di Lorenzo, on April 1, 2008, he met with Ron Madlem, the safety director
and told him that what he had told Hall the previous day. On April 8, 2008, Di Lorenzo told
Rick Carey, the mine manager, the same thing that he had told the other managers previously.
On April 15, 2008, he spoke with Madlem again and Dave Wininger and told them of the
severity of the section 75.400 conditions, and that negligence will be " ratcheted up" if there is
not any improvement. (Tr. 137).
On April .16, 2008, Di Lorenzo met with Bill Schaefer, a mine manager, and told him that
they had to start improving and that ''we weren't seeing any signs of improvement. .. on the
accumulation issues inby the loading points and on equipment." (Tr. 138).
According to Di Lorenzo, on April 22, 2008, he spoke with Terry Courtney, Mine
32 FMSHRC Page 1913

Manager, and told him that MSHA has not seen improvement and that the operator has to start to
take action regarding cleanup "on all three areas." (Tr. 139). ·On April 25, 2008, Di Lorenzo
spoke with Gary Campbell, a superintendent, regarding the problems with section 75.400, and
told him that MSHA was not seeing improvement regarding equipment, belt lines, "and inby the
loading point." (Tr. 140).
B.

The Respondent's·testimony

Randall Lee Hammond was the section foreman of the. section at issue when it was cited,
but he was not at work that day. Instead, an hourly employee had filled in for him as foreman.
Hammond indicated that he (Hammond) was responsible for each of the three shifts. He
indicated that each shift (A, B, and C) was responsible for cleaning different equipment once a
week. The C shift (midnight shift) was responsible for cleaning the bolters. He indicated that
the floor of the bolter cab was "supposed" to be monitored on a daily basis and was washed "as
needed." (Tr. 171 ).
The Section Foreman's Report for the C shift, dated April 24, 2008, indicates as follows:
''washed. 18rb." According to Hammond, the notation "18 rb" refers to the bolter at issue.
Acc{.)rding to Hammond, Black Beauty reviewed its data base of citations and orders. it
had received for the period of January 1, 2008 through April 30, 2008. He indicated that in
January equipment was cited eight times, and in February nine times. However, in March and
April, Black Beauty received only two and three citations/orders, respectively, for section 75.400
violations on equipment.
C.

Discussion
1.

Violation of section 75.400, supra

Section 75.400, supra, provides in pertinent part, as follows: "coal dust, including float·
coal dust ... and other combustible materials, shall be cleaned up and not permitted to· accumulate
in active workings, or on diesel-powered and electric equipment therein.''
It is Respondent's position, in essence, that operators are provided a reasonable time to
clean up spillage which is a result of normal mining, and not considered an accumulation. 9
9

The clear language of Section 75.400, supra, does not allow for any reasonable time to
clean up "spillage." In Utah Power and Light, 951F.2d292 (10th Cir. 1991) the court rejected
such an argument as follows: "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 deaned
up with reasonable promptness, with all convenient speed." (Id at 295, Fn 11 ); see also Old Ben
Coal Co., 1 FMSHRC 1954, 1958 (Dec. 1979) (recognizing that some spillage may be·
inevitable, but holding that whether it is an accumulation is a question at least in part of size and
amount. It was held that the vast spillage cited by the inspector, which was not disputed by the
32 FMSHRC Page 1914

Respondent asserts the bolter at issue had been washed· on the midnight shift on April 24, a week
before it was cited. According to Hammond, the C shift "was responsible" for washing it once a
week. (Tr. 170). Hence, it is argued that "in the normal course of business, it would have been
washed close to the time when the order was issued." (Respondent's Post-Hearing Br:·at 14)

I do not find much merit in Respondent's position. Respondent did not adduce the
testimony of any person with personal knowledge of the washing on April 24. Thus, in the
absence of such evidence there is not any basis in the record to conclude that the washing was
done effectively, i.e., that it removed all combustible materials that had accumulated. Further, it
is mere conjecture to conclude that the bolter ''would" have been washed on April 1 based only
upon testimony that the "C" shift was responsible for washing at that time. There is clearly a
lack ofreasonable probability that it actually would have been done on time and effectively. I
thus find Respondent's evidence to be insufficient weight to rebut the detailed testimony of
Di Lorenzo, which was not impeached or contradicted, regarding his observations of
accumulations of oil and oil soaked coal on four areas of the roof bolter.
Further, since Respondent did not adduce any evidence, based on personal knowledge,
that all the cited materials had been cleaned prior to the inspection, I find that Di Lorenzo's
opinion that the cited materials had existed for four to six shifts has not been effectively
rebutted.
Based on all the above, especially Lorenzo's uncontradicted testimony regarding the
extent of the cited materials, I find that a preponderance of the evidence establishes the existence
of accumulations of combustible oil and oil soaked coal. Accordingly, I find that it has been
established that Respondent violated section 75.400, supra.
2.

Unwarrantable Failure.

As discussed above; (II)(C)(2}, infra, for the purposes of determining unwarrantable
failure, aggravating factors include the length of time that the violation has existed, the extent of
the violative condition, whether the operator has been place 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, e.g., JO. Coal, 31FMSHRC1346.
a.

Extent of the violative· condition and the length of time it had
existed
··I.

Extensive

Di Lorenzo opined that the accumulations were extensive. In this connection, he testified
that they were between one-half to three inches deep, and covered the entire area of the
following locations on the bolter: the right front boom, (two feet by fourteen inches); the
operator's witness, constituted an accumulation.)
32 FMSHRC Page 1915

hydraulic motor compartment, (three feet by three feet); the floor of the operator's compartment,
(three feet by three feet); and the center section (two feet by three feet). This testimony was not
impeached. 10 Nor. did Black Beauty adduce any evidence to contradict Di Lorenzo's testimony
regarding the dimensions of the areas covered by the accumulations, and the range of their depth.
I therefore find that the accumulations were extensive.
u.

Length of th~ time

According to the testimony of Di Lorenzo, based on his experience, the.accumulations
had lasted four to six shifts. This testimony was not impeached on cross-examination.
I take cognition of Respondent's argument that the cited c.ortdition was not extensive or
of long duration. Respondent relies on Hammond's testimony that the "C" shift ''is responsible"
for washing the entire bolter, (Tr. 170), and that the floor of the cab is.monitored on a daily basis
and washed "as needed." (Tr. 171 ). Further, Respondent did not adduce any testimony by any
persons having personal knowledge that the subject bolter was actually cleaned or washed the
previous four to six shifts prior to Di Lorenzo's inspection, and that such cleaning had removed
all accumulations.
Within this framework and for the reasons set forth above in (III)(c)(1 ), infra, I find,
based on Di Lorenzo's testimony that the cited accumulations had existed for approximately four
to six shifts.
b.

Whether the operator was placed on notice that
greater efforts were necessary for compliance

It appears to be the argument of Respondent that a finding of unwarrantable failure
should not be based on a history of violations of Section 75.400 without breaking it down to
violations .similar to those at issue, i.e., equipment inby the loading point. 11 The Commission
has considered and rejected such an .argument. See Enlow Fork Mining Co., 19 FMSHRC 1, 5
(Jan. 1997); Peabody Coal Co., 14 FMSHRC 1258 (Aug. 1992) (Commission did not confirm
the operator's contention that commission precedent reveals that only past citations of the same
standard in the same area may be considered in determining whether a violation is
unwarrantable); IO Coal, 31 FMSHRC at 1354 (citing, San Juan Coal Co., 29 FMSHRC 125,
10

On cross-examination, Di Lorenzo admitted that he did not know how much of the
material was three inches deep.
11

Respondent relies on data from its own mine data bank which indicates only eight
citations for accumulations on equipment in January 2008, nine in February 2008, only two in
March 2008, and three in April 2008. Respondent argues that it has shown "significant
improvement in rectifying issues with accumulations on equipment" (Respondent's Post-Hearing
Br. at 19) I note that Respondent did not introduce any evidence of specific improvements· it
made to reduce accumulations on equipment. Hence not much weight was accorded this
argument.
32FMSHRC Page 1916

131-132); Co~solidation Coal, 23 FMSHRC 588 (June 2001).
.

.

Further, it is most significant to note that on seven occasions in the approximate 30~y
period prior to the issuance of the order at issue on May 1, 2008, the inspector met with various
mine officials and expressed concern about ( 1) "[section] 75.400 accumulations on the belt lines,
equipment, and inby the loading points" (Tr. 134) (emphasis added), and (2) the fact that MSHA
had not seen improvement. The Commission has recognized that such discussions serve to put
an operator on heightened scrutiny that it must increase its efforts to comply with section 75.400,
supra. (San Juan, 29 FMSHRC at 131; Consolidation Coal, 23 FMSHRC at 6).
For all of these reasons, I find that Respondent had been put on notice that greater efforts
were necessary for compliance.
c.

Whether the violation posed a high degree of danger

Di Lorenzo testified, in essence, that in the presence of ignition sources the
accumulations could bum, producing the hazard of smoke inhalation, or bums affecting ·only one
person, and causing, at a minimum, loss of work days. He conceded that there were not any
ignition sources present. For all these reasons I find that although a hazard was created, there
was not "high" degree of danger posed by the violation.
d.
condition

The operator's effort in abating the violative

According to Di Lorenzo, in spite of numerous conversations with management, there
was not increased compliance with section 75.400. Black Beauty adduced evidence that its
records indicate that in the four months immediately preceding Di Lorenzo's inspection, it
received only eight citations in January 2008, and nine in February in 2008 for 75.400 violations
on equipment, out only two in March and three in April. Thus it is argued that Black Beauty
made significant efforts in abating the violative condition prior to its being cited by Di Lorenzo.
However, Respondent did not adduce evidence of any specific efforts it had taken prior to the
May 1 inspection to reduce or eliminate accumulations, i.e., to abate the violative conditions.
See IO. Coal, 31FMSHRC1346;EnlowFork, 14FMSHRC l;New Warwick Mining Co., 18
FMSHRC 1568, 1574 (Sept. 1996).
Foran these reasons, I find that there is not sufficient evidence adduced by Black Beauty
to establish any additional specific actions it took to improve its compliance with section 75.400,
supra. Thus, I find the Respondent has not established that it made any significant efforts to
abate the violative condition.
e.

The operator's knowledge of the existence of the violation and
whether the violation was obvious

According to Di Lorenzo, the cited accumulations were obvious and would have been
readily apparent to anyone walking by. In this connection I note that the bolter is used on an
32 FMSHRC Page 1917

active working section. Respondent did not impeach this testimony. Nor did it adduce
testimony or other evidence to contradict Di Lorenzo's testimony that the accumulations were
obvious. Further, Respondent did not present the testimony of any persons regarding lack of
knowledge of their existence nor did it establish that it reasonably could not have known of the
existence of the accumulations.
·
Based on all the above, along with the extent of the cited accumulations, I find that Black
Beauty should have reasonably known of their existence.

f.

Conclusion

Talcing into account all of the above, and placing significant weight on the operator's
prior notice of the need for greater efforts for compliance, I find that it has been established that
the violation wa.S as a result of its aggravated conduct and hence, constituted an unwarrantable
failure.
3.

Penalty

.

.

For the reasons set forth above, I find that the operator's negligence reached the level of
aggravated conduct. I find that the gravity was moderate. After the conditions were cited, they
were abated by the operator in good faith. The remaining factors set forth in Section 11 O(i) of
L!e Act were discussed above, (II)(C)(3), infra.
Within the above context, and based on Section l 10(a)(3)(B) of the Act, I find that a
penalty of $4,000 is required, as the violation was the result of the operator's ''unwarrantable
failure."

ORDER
It is ordered that, within 30 days of this decision, Respondent shall pay a total civil
penalty of $18,653.00.

~b~.
Administrative Law Judge

Distribution (Via Certified Mail Returned Receipt Requested):
Barbara M. Villalobos, Esq., Office of the Solicitor, U.S. Department of Labor, Chicago, Illinois
60601
'
'
Arthur Wolfson, Esq., Jackson Kelly PLLC, 3 Gateway Center, Suite 1340, 401 Liberty Avenue,
·
Pittsburgh, PA 15222-1000
/cmj
32 FMSHRC Page 1918

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, N.W. Suite 9500
Washington, D.C. 20001-2021 ·
Telephone: (202) 577 6809
Facsimile: (202) 434-9949

November 24, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA2009-1421
A.C. No. 000184518

v.
MARFORK COAL CO., INC.,
Respondent

Mine: Brushy Eagle

ORDER DENYING MOTION FOR SETTLEMENT
The Secretary, through its Conference and Litigation Representative, ("CLR"), has filed a
motion for approval of settlement in this matter . The motion relates that the single citation in
issue, Citation Number 9968576, involves a violation of30 C.F.R. § 70.101, pertaining to
respirable dust. It notes that the average concentration of respirable dust, based on five ·Valid
samples collected by the operator, exceeded the maximum limit for such dust by nearly three ·
times that level. 1 It also reports thatthe.citation was determined to be significant and substantial,
highly likely to result in lost workdays or restricted duty, of moderate negligence and affecting
ten persons. Motion at 2.
The motion then continues with a recitation of the Respondent's contentions, in which it
argues that: only four persons would actually have been exposed; that its negligence should be
viewed as "low" and that it took reasonable steps to "prevent or limit exposure to excess dust or
gases." The motion relates absolutely no basis for the support of the claim that the number
exposed would be four, nor does it identify the "reasonable steps" Respondenttook to prevent or
limit exposure.
The motion then advises that the Respondent would argue that it was in compliance with
the approved ventilation and dust control plan. This is an interesting contention, given that the ·
Respondent is admitting that it was exceeding the respirable dust limit by nearly three times the
upper limit of allowable exposure. The motion then contends that it is Respondent's position
that "dust conditions are transitory in nature and not entirely preventable."· That argument is
intriguing as well, as it implies that the upper limit is not "entirely preventable," though one
would think that the upper limit establishes a contrary presumption.

1

The motion states that the applicable limit is 0.6 mg/m3 and that the results recorded the.
level as 1. 723 mg/m3 •
32 FMSHRC Page 1919

Continuing with its scattershot defense to the admitted violation, the Respondent, the
Motion relates, would also contend that the "condition could have arisen due to geological
conditions or because the continuous miner operator moved out of proper operating position
unbeknownst to mine management, among other unpredictable reasons." Id. As with the other
claims, there is nothing to support these assertion~ either.
The Motion then relates that the Respondent would also argue that case law supports a
finding of low negligence here. To establish that, the Motion cites Costain Coal, Inc., 19
FMSHRC 1653, 1997 WL 640692, (October 1997) ("Costain"), a decision issued by an
administrative law judge after conducting a hearing. The Secretary relates that the "Costain
Court explained: "[r]espirable dust concentrations vary from shift to shift and are affected by the
level of coal production as well as varying factors such as temperature and humidity. Unlike
most mine hazards caused by violated conditions, excessive respirable dust concentrations
ordinarily cannot be observed." Motion at 2-3.
As pertinent here, the Motion then asserts that "[d]ue to the vagaries of litigation and in
the interest of settlement, the parties have agreed that the Secretary will modify the nwnber of
personsaffected·from ten to four." Motion at 3.
The Court cannot approve this motion. The motion is merely a recitation of the defenses
the Respondent may claim. at a hearing. As noted, there are problems with these claims and the
Secretary seemingly accepts them at face value. The motion sheds no light as to the Secretary's
stance to these. various claims, it merely recites them and then announces that the ''the vagaries ()f
litigation and [] the interest of settlement," justify the "half-off sale" presented. A motion must
do more than present a one-sided expression of contentions that may be raised at a hearing; it
must advise and react to those assertions. 2
Additional comment is warranted. First, it must be stated what is otherwise well-known:
another administrative law judge's opinion has no precedential effect and accordingly other
administrative law judges are not obligated to afford such an opinion any deference except
insofar as the rationale contained within it may be persuasive.
In Costain, the case cited with apparent acceptance by the Secretary, three respirable dust
samples exceeded the there applicable 2.0 mg/m3 upperJimitby 2.2, 3.4and4.4 and it was
undisputed that those exceedances were properly characterized as significant and substantial.
Instead, the mine operator disputed the nwnber of persons affected and the degree of negligence
involved. The administrative law judge in Costain noted that ill Consolidation Coal, 8
2

For example, it would seem that the Secretary would have an obligation to consult with
the inspector who issued the citation and obtain input as to the claim that four persons, not ten
were affected. Any change in the nwnber of persons affected should advise how such a new
number impacts the penalty computation under the penalty policy.
32 FMSHRC Page 1920

FMSHRC 890, 895 (June 1986), the Commission observed that some departure from normal
enforcement considerations was justified because exposure to respirable dust has fundamental
differences with a "typical" safety hazard. However, this reference was not intended to ease
enforcement at all. Rather, the Commission was speaking to the insidious nature ofrespirable
dust exposure and that it was Congress' intent that the full "panoply of the Act's enforcement
mechanisms" were to be used to effectuate the goal of preventing that disease, a conclusion with
which the D.C. Circuit agreed. See, 824 F. 2d 1071 (D.C. Cir. 1987) , affirming the
Commission's interpretation.
Further, the administrative law judge in Costain noted that "[i]n the final analysis, who, if
not the [mine] operator, is responsible for ensuring that miners are not exposed to excessive
respirable dust?" That judge then added: "Mine operators must ensure that the maximum levels
of permissible respirable dust concentrations are not exceeded [and consequently] [a]n operator's
failure to do so, regardless offault, warrants the imposition of meaningful civil penalties."
Costain at 5 (emphasis added). 3 Thus, this Court has a different take on the import of Costain in
respirable dust cases. Further distinguishing that case from the present matter, the cited standard
here is 30 C.F.R. § 70.101, which is the respirable dust standard where quartz is present. As
MSHA has pointed out, "[ q]uartz particles are 20 times more toxic to the lungs than coal dust
alone." MSHA Health Hazard Information Sheet 4 7. The same Information Sheet advises that a
"miner exposed to high levels of quartz can develop silicosis in as little as three years."
The Court is not stating that a reduction in a proposed penalty can never be approved.
Rather, the point is that the motion must be more than a mere echo of the mine operator's
contentions. Apart from the serious environment in which miners work on a daily basis, the risk
of Black Lung disease has long been recognized by Congress as a matter of prime importance.
Settlements must reflect the seriousness of this subject as well and penalty reductions must be
fully supportable.

3

0ther particular facts in Costain should be noted as well. One citation involved a
relatively new mechanized mining unit with no history of previous violations; another had no
history of previous violations for the unit in issue and a third had a history of similar violations
but then five compliant bimonthly samples intervened before the latest violation. That judge
took that information to justify his conclusion that the operator's history was not a factor
warranting a "significant impact'' on the civil penalty liability. Again, it must be noted such a
conclusion is of no precedential impact for other administrative law judge's consideration.
32 FMSHRC Page 1921

Accordingly, the Secretary's Motion is DENIED. The motion should be re-submitted
with appropriate supportive information, if it exists, .or in the agency's discretion transferred to
an attorney in the Solicitor's Office for further review.

William B. Moran
Administrative Law Judge

Distribution:
Linda fuovatic, Cotiference & Litigation Representative
·
Mine Safety and Health Administration
100 Bluestone Road
Mt Hope, WV 25880-1000

Sarah Korwan, Esquire
Dinsmore & Shohl, LLP
P.O. Box 11887
Charleston, WV 25339-1887

32.FMSHRC Page 1922

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19th STREET, SUITE 443
DENVER, CO 80202-2500
303-844-5266/FAX 303-844-5268

December 8, 20 I 0
DISCRIMINATION PROCEEDING

CHARLES SCOTT HOWARD,
Complainant

Docket No. KENT 2008-736-D
BARB CD 2007-11

v.

CUMBERLAND RIVER COAL COMPANY,
Respondent

Mine ID: 15-18705
Mine: Band Mill No. 2

ORDER APPROVING SETTLEMENT
This matter is before me on Complainant's request for attorneys fees following a favorable
decision issued on August 13, 2010 in accordance with the provisions of section 105(c) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq. (Mine Act) and 29 C.F.R.
2700.50 et seq. The parties have filed a joint motion to approve settlement.
I accept the representations and the agreements of the parties as set forth in the motion to
approve settlement. I have considered the representations and documentation submitted, find
that the proposed settlement is appropriate under the Act. The motion to approve settlement is
GRANTED, and Cumberland River Coal Company is hereby ORDERED to pay, within 40 days
of the date of this decision, on behalf of Respondent, Charles Scott Howard, one check in the
amount of$124,l 74.00 made payable to Tony Oppegard and one check in the amount of
$31,221.00 made payable to Appalachian Citizens Law Center at the addresses listed in the
motion. All other terms of the settlement agreement are hereby incorporated into this order.

32 FMSHRC Page 1923

Distribution: (U.S. First Class Mail)
Wes Addington, Esq., Appalachian Citizens Law Center, 317 Main St., Whitesburg, KY 41858
Timothy M. Biddle, Esq. and Willa B. Perlmutter, Esq., Crowell & Moring, LLP, 1001
Pennsylvania Ave., NW, Washington, D.C. 20004-2595
Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522

32 FMSHRC Page 1924

2010- YEAR END INDEX

COMMISSION DECISIONS AND ORDERS
06-23-2010 7/11 Materials, Inc.
06-23-2010 Aggregates USA LLC.
04.;26-2010 .· A.l.M., LLC.
01-13-2010 Allgeier Martin & Associates, Inc.
08-26-2010 Ainerikohl Mining, Inc.
01-12-2010 Apex Energy, Inc.
12-14-2010 Appalachian Stone Company
10-22-2010 Aracoma Coal Company, Inc.
12-16-2010 Aracoma Coal Company - order
12-16-2010 Aracoma Coal Company - Amended decision
09-01-2010 · ·Arizona Materials
08-26-2010 Ardaman & Associates, Inc.
06-23-2010 Asarco, LLC.
09-'14-2010 Austin Powder Company
12-16-2010 B & S Trucking Company, Inc.
12-15-2010 B & W Resources, Inc.
01-27-2010 Banner Blue Coal Company
08-31-2010 Barrick Goldstrike Mines, Inc.
08-30-2010 Barrick Turquoise Ridge, Inc.
04-27-2010 Barton Mines Company, LLC.
07-29-2010 Basic Materials Corporation
09-28-2010 Bill Smith Sand and Gravel
09-09-2010 Black Energy, Inc.
08-24-2010 Blue Haven Energy, Inc.
07-27-2010 BMC Aggregates, LC
08-31-2010 Bonita Steel Builders, Inc.
06-23-2010 Bo\Vie Resources, LLC.
06-30-2010 Brody Mining, LLC.
02-22-2010 Brooks Run Mining Company, LLC.
08-30-2010 Brooks Run Mining Company, LLC.
06-10-2010 C & P Sand & Gravel, Inc.
08-30-2010 Carbo Ceramics, Inc.
09-14-2010 Casella Construction Inc.
04-26-2010 Cedar Creek Coal, LLC.
01-25-2010 Cedar Lake Sand & Gravel Co.
06-03-2010 Cemex, Inc.
06-23-2010 City Stone, LLC.
09-14-2010 Climax Molybdenum Company
11-26-2010 Coal Country Mining, Inc.
04-27-2010 Coal Haulers, Inc.
2010 Index 1

WEST 2010-393-M
Pg. 515
SE. 2010-258-M
Pg. 504
WEVA 2009-1892 · Pg. 261
·pg, 23
CENT 2010-50-M
PENN 2010-108
·Pg. 840
·pg.
5
KENT 2009-1507
SE
2010-852-M
Pg. 1604
WEVA 2010-267
Pg. 1249
· WEVA 2006-654
Pg. 1634
WEVA 2006-654
Pg. 1639
WEST 2010-671 ..M
Pg. 1091
SE 2010-178-M
Pg. 837
WEST 2009-1124-M Pg. 508
CENT 2010-316-M
Pg. 1128
KENT 2011-161
Pg. 1631
KENT 2010-1080
Pg. 1627
VA
2009-438
Pg. 68
WEST 2010-637-M
Pg. 881
WEST 2010-696-M
Pg. 853
YORK 2010-159M
Pg. 293
CENT 2010-392-M
Pg; 794
LAKE 2010-501-M
Pg. 1162
KENT 2010-1197
Pg.1106
WEVA 2010-904
Pg. · 834
CENT 2010-390-M
Pg. 784
WEST 2010-542-M
Pg. 878
WEST 2009-1203
Pg. 512
WEVA 2009-1445
Pg. 537
WEVA 2009-1880
Pg. 116
WEVA 2010-1152
Pg. 860
CENT 2010-435-M
Pg. 470
SE 2010-151-M
Pg. 849
YORK 2010~118-M
Pg. 1134
VA 2009-378
Pg. 257
LAKE 2009-265-M
Pg. 49
SE
2010-426-M · Pg. 458
LAKE 2010-301-M
Pg; 497
WEST 2010-1072-M
1137
WEVA 2010-918 ·
Pg. 1566
WEVA 2009-1673
Pg. 268

Pg.

Coal River Mining, LLC.
Craig's Operated Equipment
Crawford Lime and Material, fuc.
C. S. & S. Coal Corporation
Culp & Son, LP
Cumberland Coal Resources, LP
Custom Crushing fudustries, Inc.
D & H Quarry, Inc.
Dix River Stone·
Dittrich Mechanical & Fabrication, Inc.
DJ Drilling and Blasting, fuc.
Dodge Hill Mining Company, LLC.
Dodge Hill Mining Company, LLC.
Dolezal Sand & Gravel
09~15-2010
Double Bonus Coal Company
12-14-2010 DMC Mining Services
01-25-2010 · Drum Sand & Gravel, fuc.
07-22-2010 Dunlap Stone, fuc.
09-28-2010 Dynamic Energy, Inc.
12-15-2010 East Tennessee Zinc Company
10-13-2010 Eastern Associated Coal Corp.
06'."30-2010 Elcon Construction, Inc.
12-10-2010 Elk Run Coal Company
12-14-2010 Elk Run Coal Company
06-30-2010 · Enterprise Mining Company, LLC.
08.Jl-2010 E.S. Stone and Structure, fuc.
09-14-2010 Essroc Cement·Corporation
01-28-2010 F & G Resources, LLC.
01-25-2010 .· Frasure Creek Mining, LLC.
12-02-2010 Freedom Energy Mining Company
09-09-2010 Frost Crushed Stone Company
06-30-2010 General Chemical (Soda Ash) Partners
07-22-2010 Genesis, fuc.
11;..22-2010 Giant Cement Holding Company
04-27-2010 Glacier Stone Supply, LLC.
06-10-2010 Hanson Aggregates Arizona, Inc.
10-2202010 Harvey Trucking, Inc.
09-07-2010 Hawaiian Cement Maui/Concrete & Agg. Div.
01-20-2010 Higgins Stone Company, Inc.
03-05-2010 Highland Mining Company
12-17-2010 Highland Mining Company
12-17-2010 Highland Mining Company
05-05-2010 Imerys Clay, fuc.
08-24-2010 James Hamilton Construction
01-12-2010 J. S.Redpath Corporation
02-02-2010
04-26-2010
08-03-2010
07-14-2010
11-16-2010
05-06-2010
11-24-2010
12-14-2010
04-27-2010
12-14-2010
06-30-2010
07-14-2010
12-14-2010
07-29-2010

2010 Index. 2

WEVA 2006-125-R Pg. 8
WEST 2009-1273-M Pg. 26
CENT 2010-177-M
Pg. 80
Pg. 75
VA 2010-51
.CENT2011-16-M
Pg. 154
PENN 2008-51-R
Pg. 44
WEST 2011-98-M
Pg. 156
SE
2010'."1223-M Pg. 160
KENT 2009-1299-M Pg. 30
LAKE 2010-407-M
Pg. 159
SE 2009-807-M
Pg. 52
KENT 2010-197
Pg. 75
KENT2010-197
Pg. 159.
Pg.· 79
CENT 2010-138-M
WEVA 2009-1759
Pg. 115.
WEST 2010-1888-M Pg. 161.
CENT 2009-833-M
Pg. 3'
SE 2009-750-M
Pg. 77·
WEVA 2007-448-R Pg. 116:
SE
2001-177-M Pg. 162'.
WEVA 2007-335·
Pg. 118~
WEST 2009-1204-M Pg. 53•
WEVA 2009-1738
Pg. 158'
WEVA 2009-511·
Pg. l61l
KENT 2009-1409
Pg. 52:
WEST 2010-149-M .Pg. 87,
LAKE 2010-598-M
Pg. 112~
Pg. 7(
KENT 2009-1076
Pg. 5~
WEVA2010-90
KENT 2010-174
Pg. 157~
CENT 2010-105-M
Pg. 110~
WEST 2009-1201-M Pg. 531
WEST 2009-1098-M Pg. 77(
· SE 2009-65-M
Pg. 155~
WEST 2010-630-M Pg. 29C
WEST 2010-573-M Pg.. 483
WEVA2010-225
Pg. 1245
WEST 2010-496-M Pg. 1102
CENT 2009-179-M
Pg. 33
WEV A 2009-688
Pg. 251
WEVA 2009-688
Pg. 1659
WEVA 2009•689
Pg. 1664
SE
2009-717-M
Pg. 435
CENT 2010-150-M
Pg. 826
WEST 2010-93-M
Pg. 15

Pg. 807
WEST 2010-516-M
J. S. Redpath Corporation
Pg. 493
.
·
LAKE
2010-242-M
06:..23-2010 John S. Olynick, Inc.
Pg. 1181
CENT 2009-602
10-06-2010 Joshua Coal Company
Pg. 64
VA
2009"'.269
01-27-2010 Keokee Mining, LLC.
PENN
2010-172-M
Pg. 1140
Keystone
Cement
Company
09-14-2010
CENT 2010-291-M
Pg. 490
06-23-2010 Knife River Midwest LLC.
WEVA
2009-1038
Pg.
285
Operations,
LLC.
KWV
04-27-2010
LAKE 2010-332-M
Pg. 525
06-30-2010 L & S Construction Corporation
WEST
2011-97-M
Pg. 1560
11-24-2010 Lamb Rock
PENN 201 O-J.55
Pg. 1581
12-03-2010 Lany D. Baumgardner Coal Co.
CENT 2010"'.673-M
Pg. 1224
10.:.21-2010 · L.G. Everist, Inc.
Pg. 745
07-02-2010 Lawrence Pendley, Sec. Labor, MSHA on behalf KENT 2007-265-D
of v. Highland Mining Company
PENN 2010-256-M
Pg. 473
Lehigh
Cement Company
06-10-2010
CENT 2010.:.346-M .Pg. 866
08-30-2010 Lone Star Aggregates Acquisition, LLC.
WEVA
2009-1982
Pg. 19
01-12-2010 Long Branch Energy
WEVA 2010-992
Pg. 1220
10-21-2010 Long Branch Energy
WEVA 2010-992
Pg. 1690
12-29-2010 Long Branch Energy
SE 2010-744-M
Pg. 1144
09-15-2010 M & M Clays, Inc.
LAKE 2010-714
Pg. 870
08-31-2010 Mach Mining, LLC.
CENT 2009"'.757-M
Pg. 761
07-22-2010 Mainline Rock and Ballast, Inc.
WEVA 2010-196
Pg. 1185
10-06-2010 Marfork Coal Company
SE
2010-394-M
Pg. 278
Martin
Marietta
Materials,
Inc.
04-27-2010
. VA 2010-338-M
Pg. 781
07-27-2010 Martin Marietta Materials, Inc.
WEST 2010-989-M
Pg. 1165
09-28-2010 · Maybell Enterprises, Inc.
WEST 2010-465-M
Pg. 480
06-10-2010 Miles Sand & Gravel Company
WEVA 2009-1107
Pg. 109
02-18-2010 Mingo Logan Coal Company
SE 2010-712-M
Pg. 1095
09-01-2010 Mosaic Fertilizer, LLC.
CENT 2010-1226-M Pg. 1592
12-14-2010 Mosaic Potash Carlsbad Inc.
PENN 2004-152
Pg. 1257
10-28-2010 Musser Engineering, Inc. &PBS Coals, Inc.
WEST 2010-1389-M Pg. 857
08-30-2010 Naselle Rock & Asphalt Company
LAKE 12010-158-M Pg. 767
07-22-2010 National Lime and Stone Company
CENT 2009-663-M
09-03-2010 Nelson Quarries, Inc.
Pg. 1098
WEVA 2010-590
04-27-2010 Newtown Energy, Inc.
Pg. 287
10-28-2010 Oak Grove Resources, LLC.
SE · 2009-812
Pg. 1253
SE 2010~788
09-14-2010 Oak Grove· Resources, LLC.
Pg. 1147
08-30-2010 Ohio County Coal Company
KENT 2010-1122
Pg. 846
04-27-2010 The Olen Corporation
LAKE 2010-322-M
Pg. 281
08-26-2010 Onsite Krushing Company
WEST 2010-698-M
Pg. 843
05-11-2010 Orchard Coal Company, et al.
PENN 2010-339-E
Pg~ 454
12-01-2010 Pacific Power & Light Company
WEST 2010-1625:..M Pg. 1570
07-27-2010 Pan American Electric, Inc.
Pg. 778 ·
CENT 2010-151-M
11-16-2010 Parker-Northwest Paving Co.
WEST 2010-1074-M Pg. 1550
.Pg. 30
01-19-2010 Paulson Rock Products
LAKE 2010-72-M
01-27-2010 Performance Coal Company
WEV A 2009-370
Pg. 72
08~13-2010

2010 Index3

06-04-2010 Performance Coal Company
08-17-2010 Performance Coal Company
10-20-2010 Performance Coal Company
09-09-2010 Petra Materials
06-23-2010 Phillips Companies
01-12-2010 Pinky's Aggregates, Inc.
07-29-2010 Pinky's Aggregates, Inc.
11-10-2010 Pinky's Aggregates, Inc.
Q6..;16-2010 Pritchard Mining Company, Inc.
12-14-2010 Quality Sand & Gravel
07-29-2010 · Quikrete Companies, Inc.
01-26-2010 R & K Coal Company; Inc~
06-30-2010 Ray County Stone Producers, LLC.
09-14-2010 Richard C. Budine
02-18-2010 Rockhouse Creek Development, LLC.
06-03-2010 Rockh:ouse Creek Development LLC.
12-01-2010 Rockspring Development
06-10-2010 Rocky Point Rock, lnc.
08-24-2010 Rogers Group, fuc.
01-12-2010 Rogers Group, Inc.
08..;30-2010 ··Rome Construction, Inc.
12-03-2010 Sandpoint Sand & Gravel, Inc.
01-12-2010 Seymour Stone
09-15-2010 Sheiwin Alumina, LP
09-14-2010 Sierra Rock Products
01-25-2010 Specialty Rock Products, Inc.
09-30-2010 Sumitomo Metal Mining Pogo, LLC.
05-06-2010 Swinson Materials, Inc.
04-27-2010 , Table Rock Asphalt Construction, Inc.
04-01-2010 Tarmac America, LLC.
07-:-27-2010 Town Of Bethel
10-20-2010 Trivette Trucking
07-19-2010 United Rock Products Corp.
09-24-2010 United Salt Corporation
07-22-2010 Vulcan Construction Materials, LP
09-10-2010 Vulcan Construction Materials, LP
11-24-2010 Washington Rock Quarries, Inc.
04-27-2010 Wendling Quarries, Inc.
02-18-2010 West Virginia Mine Power, Inc.
02-18-2010 White Buck Coal Company
04-27-2010 White County Coal, LLC.
01-25-2010 Williams & Sons Slate & Tile, lnc.
01-25-2010 WKJ Contrator' s Inc.
10-21-2010 Wolf Run Mining Company
12-22-2010 Wolf Run Mining Company
2010IndexA

Pg.. 466
WEVA 2010-195
WEVA 2010-1190-R Pg. 811
WEVA 2007-460
Pg. 1212
CENT 2008-735-M
Pg. 1113
LAKE 2010-478-M
Pg. 501
CENT 2009-848-M
Pg.
1
Pg. 790
CENT 2009-848-M
CENT 2009-848-M
Pg. 1543
WEVA 2009-1708
Pg. 486
·WEST 2010-1646-M Pg. 1611
CENT 2010-448-M
Pg. 801
.. Pg. 61
PENN 2008-290
CENT 2010-88-M
Pg. 518
YORK2010-225-M
Pg. 1122
WEVA 2009-516
Pg. 101
WEVA2010-648
Pg. 462
WEVA 2010-865
Pg. 1573
SE
2010-396-M
Pg. 476
KENT 2010-274
Pg. 830
KENT 2009-1552
Pg.
8
YORK 2010-71-M
Pg. 863
WEST 2010-766-M
Pg. 1584
PENN 2010-51-M
Pg. 12
CENT 2009-760-M .·Pg. 1150
WEST 2010-1052-M Pg. 1131
KENT 2009-1289-M Pg. 41
WEST 2010-940-M
Pg. 1178
LAKE 201().;.355~M
Pg. 438
CENT 2010-444-M
Pg. 297
SE 2010-538-M
Pg. 254
YORK 2010-226-M Pg. 787
Pg. 1209
KENT 2010-1062
WEST 2010-308-M
Pg. 757
CENT 2010-635-M
Pg. 1159
SE 2010-173-M
Pg. 764
SE 2010-819-M
Pg. 11 lS
WEST 2010-1706-M Pg. 1551
CENT 2009'" 743-M
Pg. 271
WEVA 2009-527
Pg. 10~
WEVA 2009-1314
Pg. 112
LAKE 2009-588
Pg. 27~
PENN 2006-75'-M
Pg. 5'i
KENT 2010-73 '
Pg. 4~
WEVA 2009-804
Pg. 122~
WEVA 2006-853
Pg. 166S

01-13-2010

WEVA 2008-1783

XMV, Inc.

Pg.

27

ADMINISTRATIVE LAW JUDGE DECISIONS
05-04~2010

09-28-2010
03-23-2010
05-14-2010
08-10-2010
08-26-2010
03-25-2010
06-18-2010
12-29-2010
01-20-2010
05-14-2010
10-18-2010
11-12~2010

12-10-2010
12-27-2010
08-13-2010
05-18-2010
03-09-2010
12-23-2010
06-18-2010
05-13-2010
07-23-2010
08-16-2010
11-19-2010
07-02-2010
07-19-2010
07-21-2010
12-02-2010
07-22-2010
09-14-2010
02-18-2010
11-19-2010
12-16-2010
06-17-2010
11-18-2010
02-22-2010

Abundance Coal, Inc.
American Coal Company
Amex Construction, Inc.
Arch of Wyoming, LLC.
Baker Rock Crushing Company
Big Ridge, Inc.
Black Beauty Coal Company
Black Beauty Coal Company
Black Beauty Coal Company
Black Castle Mining Co.
Blue Diamond Coal Company
Blue Mountain Production Company
Caballo Coal Company, LLC.
Cargill Deicing Technology
Cemex, Inc.
Charles Scott Howard v.
Cumberland River Coal Company
Christopher Abeyta, Sec. Labor o/b/o
v. San Juan Coal Company & its successors
Claysville Quany
Clintwood Elkhorn Mining Company
Coal River Mining, LLC. (On remand)
Consol Pennsylvania Coal Company
Consolidation Coal Company
Consolidation Coal Company
Dix River Stone, Inc.
Douglas Pilon, Sec. Labor, o/b/o
v. ISP Minerals, Inc.
Eugene Badonie v. Peabody Western Coal Co.
Eureka Rock, LLC.
Freedom Energy Mining Company
General Drilling, Div. Of GE
German Alvarez v. Loudoun Quarries, et al.
Gilbert Development Corporation
Granite Rock Company
Highland Mining Company
Independence Coal Company, Inc.
Jeppesen Gravel
Jose Chaparro. Sec. Labor o/b/o v.
Comunidad Agricola Bianchi, Inc.
2010 Index 5

EAJ 2010-01
LAKE 2010-408-R
WEST 2009-693-M
WEST 2008-1585
WEST 2008-936-M
LAKE 2009-377
LAKE 2009-477
LAKE 2009-223
LAKE 2009-36
WEVA 2006-891-R
KENT 2008-14
SE 2009-68-M ·
WEST 2009-536
LAKE 2009-675-M
KENT 2008-1592-M

Pg. 541
Pg. 1387
Pg. 347
Pg. 568
Pg. 968
Pg. 1020
. Pg. 356
Pg. 673
Pg. 1905
Pg. 132
Pg. 581
Pg. 1464
Pg. 1736
Pg. 1848
Pg. 1897

KENT 2008-736-D

Pg. 983

CENT 2010-584-D
SE 2009-71-M
KENT 2011-53-R
WEVA 2006-125-R
PENN 2007-151
WEVA 2009-371
VA 2010-489-E
KENT 2009-397-M
LAKE 2010-766-D

Pg. 594
Pg.· 321
Pg.1880
Pg. 685
Pg. 545
Pg. 930
Pg. 995
Pg. 1779
Pg. 885

WEST 2009-1342-D
WEST 2009-137-M
KENT 2007-433-R
KENT 2007-508
VA 2010-266-DM
WEST 2008-201-M
WEST 2008-979-M
KENT 2008-1083
WEVA 2009-1067
CENT 2009-438-M

Pg. 917
Pg. 922
Pg. 1809
Pg. 927
Pg. 1346
Pg. 185
Pg. 1792
Pg. 1859
Pg. 654
Pg. 1749

SE

Pg. 206

2010-295-DM

03-10-2010
09-14-2010
07-07-2010
11-17-2010
09·09-2010
12-08-2010
03-02-2010
08-12-2010
09 ..03-2010
08-04-2010
Ol.;28-2010
02-24-2010
03-10-2010
06-30-2010
09-27-2010
09-28-2010
09-29-2010
10-07-2010
04-14-2010
11 ..08-2010
02-12-2010
02-25"."2010
il-18-2010
12-16-2010
04.;01-2010
09-29-2010
02-25-2010
07-06-2010
09-17-2010
11-22-2010
05-21-2010
04-21-2010
06-01-2010
06-03-2010
06-11-2010
03-05-2010
09-28-2010
01-05-2010
09·-21-2010

Kevin Baird,'Sec. Labor o/b/o
v. PCS Phosphate Company, Inc.
Khani Company, Inc.
Knife River Corporation, Northwest
Knight Hawk Coal, LLC.
Knox Creek Coal Corporation
LaFarge Midwest, Inc.
Lakeview Rock Products,
Lawrence Pendley, Sec. Labor o/b/o
v. Highland Mining Company
Lehigh Cement Company, Inc.
Little Buck Coal Company
Mach Mining, LLC.
Mach Mining, LLC.
Mach Mining; LLC.
Manalapan Mining Co., Inc.
Mach Mining, LLC.
Michael R. Lee v. Genesis, Inc.
Mountainside Coal Company
Nelson Quarries, Inc.
Newmont USA Limited
Newtown Energy, Inc.
Oak Grove Resources, LLC.
Ohio County Coal Company, LLC.
Oil-Dri Production Company
Okey Sartin, Sec. Labor o/b/o
v. Kiah Creek Transport, LLC.
Orchard Coal Company, et al.
Parkstone
PC Sand & Gravel
Peabody Midwest Mining, LLC.
Performance Coal Company
Performance Coal Company
Prairie State Generating Co.
Reading Anthracite Company
Rickey Joe Strattis, Sec. Labor o/b/o
v. ICG Beckley, LLC.
Rickey foe Strattis, Sec. Labor o/b/o
v. ICG Beckley, LLC. (Amended).
Rickey Lee Campbell, Sec. Labor o/b/o
v. Marfork Coal Company, Inc.
R S & W Coal Company, Inc.
R S & W Coal Company
SCP Investments, LLC. (on remand)
Sequoia Energy, LLC.

me.

2010 Index 6

SE 2010-74-DM
CENT 2009-444-M
WEST 2010-1319-RM
LAKE 2009-523
VA 2008-400
CENT 2009-344-M
WEST 2009-858-M

Pg. 32.
Pg. 133'
Pg .91:
Pg. 174.
Pg.130
Pg. 183:
Pg. 30.

Pg. 98
KENT 2007-265-D
Pg. 130.
SE 2009-991-M
PENN 2009-12
Pg. 961
Pg. 14!
LAKE 2010-1-R
LAKE 2009-323-R
Pg. 21:
Pg. 32:
LAKE 2008-184
KENT 2008-737
Pg. 691
LAKE 2009-324-R
Pg. 137:
WEST 2009-1063-DM Pg. 139'.
Pg. 140~
SE 2008-356
CENT 2009-663-M
Pg. 142:
WEST 2007-743-RM Pg. 39:
WEVA 2009-173
Pg. 1731
2010-350-R
Pg. 16~
SE
KENT 2007-273
Pg. 221
SE 2009-293-M
Pg. 176:
WEVA 2010-1004-D
PENN 2010-339-E
CENT 2007-273-M
YORK2008-104-M
LAKE 2010-769-E
WEVA 2010-1190-R
WEVA 2008-1825
LAKE 2009-711-R
PENN 2007-171

Pg. 1861
Pg. 37:
Pg. 140<
Pg. 23!
Pg. 89~
Pg. 135~
Pg. 179~
Pg. 60~
Pg. 39~

WEVA2010-991-D

Pg. 61.!

WEVA 2010-991-D

Pg. 61S

· WEVA 2010-1030-D
PENN 2010-259-R
PENN 2010-523-R
SE
2009-148-M
KENT 2009-1059

Pg. 621
Pg. 311
Pg. 1403
Pg. llS
Pg. 1361

06-29-2010
06-17-2010
06-23-2010
10-06-2010
08-31-2010
10-25-2010
07;.26-2010
06-17-2010
10-18-2010
01-26-2010
11-03-2010
11-08-2010
09-13-2010

Shelton Brothers Enterprises (amended DAS)
Spencer Quarries; Inc.
Spencer Quarries, Inc. (Correcting Order)
Sumitomo Metal Mining Pogo, LLC.
Thomas Bewak v. Alaska Mechanical Inc.
Three Way Portable Crushing, Inc.
Timothy S .. Sheffer v. Advent Mining, LLC.
Twentymile Coal Company
Twentymile Coal Company
United Taconite, LLC.
U.S. Silica Company
William Metz v. Carmeuse Lime, Inc.
Wolf Run Mining Company

KENT 2008-1407
CENT 2009-334-M
CENT 2009-334-M
WEST 2010-429-RM
WEST 2008-161-DM
WEST 2008-1138-M
KENT 2010-15-D
WEST 2008-787-R
WEST 2008-788-R
LAKE 2008-93-RM
SE 2009-712-M
PENN 2009-541-DM
WEVA 2007-600

Pg. 688
Pg. 644
Pg. 652
Pg. 1420
Pg. 1044
Pg. 1486
Pg. 951
Pg. 628
Pg. 1431
Pg. 146
Pg. 1699
Pg. 1710
Pg. 1317

EAJ 2010-01
WEST 2008-1582-M
WEVA 2007-742
LAKE 2010-128-M
LAKE 2010-128-M
KENT 2009-302-D
LAKE 2008-327
KENT 2008-592
WEVA 2009-1445
KENT 2009-949-M

Pg. 415
Pg. 738
Pg. 419
Pg. 421
Pg. 707
Pg. 239
Pg. 714
Pg. 1511
Pg. 718
Pg. 1509

KENT 2008-736-D
SE
2008-71-M
PENN 2009-803
YORK 2009-89-M
KENT 2010-1352-R

Pg. 1923
Pg. 242
Pg. 1071
Pg. 728
Pg. 1495

WEVA 2009-1526-D
SE 2008-124-R

Pg. 1515
Pg. 428

SE

2010-295-DM

Pg. 721

SE 2010-434-DM
WEST 2010-18-DM
WEST 2010-464-DM
VA
2009-81-R
VA 2008-400
WEVA 2009-1440

Pg. 1517
Pg. 1061
Pg. 1520
Pg. 245
Pg. 1074
Pg. 726

ADMINISTRATIVE LAW JUDGE ORDERS
03-10-2010
06-30-2010
03-17-2010
04-06-2010
05-07-2010
01-22-2010
06-07-2010
09-17-2010
06-13-2010
09-13-2010
12-08-2010
01-29-2010
07-12-2010
06-28-2010
09-01-2010
10-27-2010
04-14-2010
06-15-2010
10-15-2010
07-02-2010
10-27-2010
02-12-2010
07-13-2010
06/15/2010

Abundance Coal, Inc.
Alaska Mechanical Inc.
Alex Energy, Inc.
Bill Simola emp. by United Taconite LLC.
Bill Simola emp. by United Taconite LLC.
Billy Brannon v. Panther Mining, LLC.
Black Beauty Coal Company
Blue Diamond Coal Company
Brody Mining, LLC.
Carmeuse Lime & Stone
Charles Scott Howard v.
·Cumberland River Coal Company
Claysville Quarry
Consol Pennsylvania Coal Co.
DJB Welding Corporation
Freedom Energy Mining Company
Harry Lee Beckman, Sec. Labor o/b/o
v. Mettiki Coal (WV), LLC.
Jim Walter Resources, Inc.
Jose A. Chaparro, Sec. Labor o/b/o .
v. Comunidad Agricola Bianchi, Inc.
Jose A. Chaparro, Sec. Labor o/b/o
v. Comunidad Agricola Bianchi, Inc.
Justin Nagel v. Newmont USA Limited
Justin Nagel v. Newmont USA Limited
Knox Creek Coal Corporation
Knox Creek Coal Corporation
Maple Coal Company

2010 Index 7

11-24-2010
08-19~2010

()4..15-2010
05·26-2010
06-02-2010
07~19-2010

04·09-2010

Marfork Coal Company
Oak Giove Resources, LLC.
Orchard Coal Company, et al.
Orica USA, Inc.
· Performance Coal Company
Pinnacle Mining Company, LLC
Spartan Mining Company

2010 Irtdex 8
G:O' U.S. GOVERNMENT PRINTING OFFICE: 2011-386-038/83806

WEVA 2009-1421
2009-261-R
PENN 2010-339-E
YORK 2007-74-RM
WEVA 2007-460
WEVA2009-1123
WEVA 2007-517-R

SE

Pg.1919
Pg. 1081
Pg. 431
Pg. 709
Pg. 742
Pg. 1079

Pg. ·425