SEPTEMBER AND OCTOBER 2007

COMMISSION DECISIONS AND ORDERS
09-02-2007
09-13-2007
09-13-2007
09-20-2007
09-26-2007
09-26-2007
09-27-2007
09-27-2007
09-27-2007
10-04-2007
10-04-2007
10-04-2007
10-04-2007
10-11-2007
10-31-2007

Parkstone
Vulcan Materials Company
Atlanta Sand & Supply Company, Inc.
Aggregate Industries, NE Region
Sherman Equipment Company, Inc.
Rinker Materials Western, Inc.
Oak Grove Resources, LLC.
Spartan Mining Company
The American Coal Company
Offield Mining Company
Consolidation Coal Company
Consolidation Coal Company
G. S. Materials, Inc.
Progress Coal
Hunt Martin Materials, LLC.

CENT 2007-273-M
KENT 2007-399-M
SE
2007-363-M
YORK 2007-90-M
LAKE 2007-161-M
WEST 2007-819-M
SE
2006-107
WEVA 2007-663
LAKE 2007-197
WEST 2007-804-M
WEVA2007-733
WEVA 2007-843
SE
2007-469-M
WEVA 2007-835
CENT 2008-6-M

Pg. 747
Pg. 751
Pg. 754
Pg. 757
Pg. 760
Pg. 763
Pg. 766
Pg. 769
Pg. 773
Pg. 776
Pg. 779
Pg. 782
Pg. 785
Pg. 788
Pg. 791

KENT 2007-15-D
WEST 2006-531
KENT 2006-158-RM
PENN 2007-361-R
CENT 2007-25-M
WEST 2007-892-E
SE
2006-59-R
LAKE 2006-82-R
WEST 2007-550
PENN 2002-23-C

Pg. 795
Pg.806
Pg. 815
Pg.828
Pg.835
Pg.844
Pg.862
Pg.869
Pg.892
Pg.896

ADMINISTRATIVE LAW JUDGE DECISIONS
08-30-2007
09-05-2007
09-14-2007
09-26-2007
09-27-2007
10-16-2007
10-24-2007
10-29-2007
10-29-2007
10-30-2007

Steven C. Collins v. Northfork Coal Co ..
Twentymile Coal Company
Carmeuse Lime and Stone, fuc.
R S & W Coal Company
Lattimore Materials Company, LP
Twentymile Coal Company
Drummond Company, Inc.
Mach Mining, LLC.
Evergreen Energy, Inc.
UMWA, Local 1248 v. Maple Creek Mining

i

SEPTEMBER AND OCTOBER 2007

No cases were filed in which Review was granted during the months of Swtember and October:

Review was denied in the following case during the months of Swtember and October:
Secretary of Labor, MSHA v. Speed Mining, Inc., Docket Nos. WEVA 2005-20-R, et al.
(Judge Weisberger, August 27, 2007)

11

C01\1MISSION DEOSIONS AND ORDERS

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

September 7, 2007
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2007-273-M
A.C. No. 03-01875-62140

v.
PARKSTONE

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On June 21, 2007, the Commission received from Parkstone
a letter seeking to reopen a penalty assessment that had become a final order of the Commission
pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On or about July 14, 2005, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued to Parkstone proposed penalty assessment No. 62140, which
covered approximately 12 citations. In its letter, Parkstone alleges that it failed to respond to the
penalty assessment because it mistakenly believed that the citations were dismissed as part of
other litigation involving MSHA. Parkstone also asserts that MSHA lacks jurisdiction over the
activities involved and that MSHA therefore was not entitled to issue the citations at issue. In
response, the Secretary states that she opposes reopening the proposed penalty assessment
because Parkstone failed to contest the assessment within one year after the assessment had
become a final Commission order. S. Resp. at 2-3. She further asserts that, although a reopening
request that is based on a claim of lack of jurisdiction may not be time barred by the one-year
requirement, Parkstone's jurisdictional claim is not meritorious. Id. at 3.

29 FMSHRC 747

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105{a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.1 (b) (''the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787.
Under Rule 60(b)(1 ), 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). Here, Parkstone has requested reopening the proposed
assessment nearly two years after the assessment became a final Commission order and thus
would generally be time barred under Rule 60(b). Nevertheless, Parkstone's additional claim
that the final order is void due to lack of Mine Act jurisdiction is not time barred. Unlike other
motions under Rule 60(b)~ there is no time limit with regard to requests to reopen void judgments
on the basis oflack of jurisdiction. Sea-Land Serv., Inc. v. Ceramica Europa IL Inc., 160 F.3d
849, 852 (1st Cir. 1998); Orner v. Shala/a, 30 F.3d 1307, 1310 (10th Cir. 1994). Although the
Secretary asserts that Parkstone has not asserted a colorable claim of lack of jurisdiction, we are
unable to discern from the record before us whether, and to what extent, Parkstone's activities
bring it within the jurisdiction of the Mine Act.

29 FMSHRC 748

Accordingly, in the interests of justice, we remand this matter to the Chief Administrative
Law Judge for a determination of whether Parkstone is subject to the jurisdiction of the Mine Act
with respect to the subject citations. Taking into account the circumstances of each citation, to
the extent it is determined that Parkstone is subject to Mine Act jurisdiction, we instruct the
judge to deny Parkstone's request to reopen the assessment as to those citations, as such
reopening is time barred under Rule 60(b). Alternatively, to the extent it is determined that
Parkstone is not subject to Mine Act jurisdiction, this pro_ceeding must be reopened and the
assessment vacated as to those citations that MSHA lacked jurisdiction to issue.

29 FMSHRC 749

·-

Distribution
Carl E. Parks, President
Parkstone
196 Saint Elizabeth Road
Morrilton, AR 72110
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

29 FMSHRC 750

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

September 13, 2007
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. KENT 2007-399-M
A.C. No. 15-00087-112716

VULCAN MATERIALS COMPANY

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) (''Mine Act"). On August l, 2007, the Commission received from
Vulcan Materials Company ("Vulcan") a letter seeking to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On January 9, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Citation No. 6110605 to Vulcan. MSHA subsequently sent a proposed penalty
assessment covering that citation to Vulcan. Vulcan states that it inadvertently paid the proposed
penalty. The Secretary does not oppose the request to reopen the proposed penalty assessment.

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) (".!WR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) under
which, for example, a party could be entitled to relief from a final order of the Commission on
29 FMSHRC 751

the basis of inadvertence or mistake. See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges
shall be guided so far as practicable by the Federal Rules of Civil Procedure"); JWR, 15
FMSHRC at 787. We have also observed that default is a harsh remedy and that, ifthe
defaulting party can make a showing of good cause for a failure to timely respond, the case may
be reopened and appropriate proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17
.
FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Vulcan's request, in the interests of justice, we remand this matter to the
Chief Administrative Law Judge for a determination of whether good cause exists for Vulcan's
failure to timely contest the penalty proposal and whether relief from the final order should be
granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the
Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

~fl.~~:S

Michaeman

29 FMSHRC 752

Distribution
Marty Tubbs, Safety Representative
Vulcan Materials Company
947 U.S. Hwy 62
Grand Rivers, KY 42045
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suit_e 9500
Washington, D.C. 20001-2021

29 FMSHRC 753

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

September 13, 2007
SECRETARY OF LABOR,
MlNE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2007-363-M
A.C. No. 09-00264-117708

V.

ATLANTA SAND AND
SUPPLY COMPANY, INC.

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On August 10, 2007, the Commission received from Atlanta
Sand and Supply Company ("Atlanta Sand") a motion by counsel seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On May 10, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA'') issued Proposed Assessment No. 000117708 for twelve citations issued to Atlanta
Sand in March 2007. Atlanta Sand states that it intended to contest the proposed penalty
assessment and retained legal counsel. The operator explains, however, that it inadvertently
omitted the proposed assessment in the records that it transferred to counsel. In response, the
Secretary states that she does not oppose reopening the proposed penalty assessment.

29 FMSHRC 754

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR."). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F .R.
§ 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure''); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, ifthe defaulting party can make a showing of good cause for a failure to
.timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Atlanta Sand's request, in the interests of justice, we remand this matter
to the Chief Administrative Law Judge for a determination of whether good cause exists for
Atlanta Sand's failure to timely contest the penalty proposal and whether relief from the final
order should be granted. Ifit is determined that such relief is appropriate, this case shall proceed
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

29 FMSHRC 755

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
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

29 FMSHRC 756

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

September 20, 2007
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. YORK 2007-90-M
A.C. No. 19-00040-104183

v.
AGGREGATE INDUSTRIES,
NORTHEAST REGION

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On August 8, 2007, the Commission received from
Aggregate Industries, Northeast Region ("Aggregate Industries") a motion made by counsel to
reopen a penalty assessment that had become a final order of the Commission pursuant to section
105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On August 29 and 30, 2006, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued Citation Nos. 6042056 and 6042063, respectively, to
Aggregate Industries. Aggregate Industries timely contested the citations in Docket Nos. YORK
2006-99-RM and 2006-100-RM. MSHA subsequently issued to Aggregate Industries a proposed
penalty assessment relating to the citations. In its motion, Aggregate Industries explains that the
personnel responsible for reviewing proposed penalties "overlooked" its contest of the citations
and inadvertently authorized payment of the proposed penalties. The operator further states that
its failure to timely file its contest of the proposed penalty assessment was the result of
inadvertence or a mistake and miscommunication within its operation.

29 FMSHRC 757

In her response to the motion to reopen, the Secretary states that Aggregate Industries'
statement that the civil penalty proceeding should be reopened because payment of the penalties
was inadvertent is only a conclusory statement that provides no explanation as to why its failure
to contest the penalty proceeding should be excused. The Secretary requests that the
Commission remand the matter to the judge to provide the operator an opportunity to satisfy the
requirements for reopening.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR''). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.1 (b) (''the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR., 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs.,
17 FMSHRC 1529, 1530 (Sept. 1995).

Inc.,

Having reviewed Aggregate Industries' motion and the Secretary's response thereto, in
the interests of justice, we remand this matter to the Chief Administrative Law Judge for a
determination of whether good cause exists for Aggregate Industries' failure to timely contest the
penalty proposals and whether relief from the final order should be granted. If it is determined
that such relief is appropriate, this case shall proceed pursuant to the Mine Act and the
Commission's Procedural Rules, 29 C.F.R. Part 2700.

)

29 FMSHRC 758

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

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, ~.W., Suite 9500
Washington, D.C. 20001-2021

29 FMSHRC 759

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

September 26, 2007
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. LAKE 2007-161-M
A.C. No. 33-02518-103814 PlOO

v.
SHERMAN EQUIPMENT COMPANY, INC.

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On August 8, 2007, the Commission received a letter from
Sherman Equipment Company, Inc. ("Sherman") requesting that the Commission reopen a
penalty assessment that had become a final order of the Commission pursuant to section 105(a)
of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On May 24, 2006, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Citation No. 6167377 to Sherman. In its letter, the operator states that it
believed that ''this matter was closed a year ago," and that, until it received a collection letter, it
had "no idea" that there was an outstanding penalty. In response, the Secretary requests that the
Commission direct the operator to provide an adequate explanation of why it did not contest the
proposed assessment in a timely manner, particularly why it had "no idea" that it had an
outstanding penalty. The Secretary explains that a proposed penalty assessment was sent to the
operator's correct address on November 21, 2006, but that the proposed assessment was later
returned "unclaimed." The Secretary further states that in April 2007, MSHA sent a notification
to the operator's correct address that the proposed penalty had become delinquent.

29 FMSHRC 760

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). Jn evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.1 (b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedtire"); JWR., 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Sherman's letter, we agree with the Secretary that Sherman must
provide an explanation as to why reopening this matter is warranted. Accordingly, in the
interests of justice, we remand this matter to the Chief Administrative Law Judge for a
determination of whether good cause exists for Sherman's failure to timely contest the penalty
proposal and whether reli~f from the final order should be granted. If it is determined that such
relief is appropriate, this case shall proceed pursuant to the Mine Act and the Commission's
Procedural Rules, 29 C.F.R. Part 2700.

29FMSHRC 761

Distribution
Gary M. Sherman
Sherman Equipment Co., Inc.
P.0.Box208
Lincoln Park, MI 48146
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

29 FMSHRC 762

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

September 26, 2007
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 2007-819-M
A.C. No. 02-00722-121668

v.
RINKER MATERIALS WESTERN, INC.

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On September 5, 2007, the Commission received from
Rinker Materials W estem, Inc. ("Rinker") a motion made by counsel to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On July 10, 2007, the Department of Labor's Mine Safety and Health Administration
issued assessment No. 000121668 to Rinker, proposing penalties for 12 citations and one order
that previously had been issued to Rinker. Rinker states that its safety director was away on
business during most of July and August, and thus it was not until August 27, 2007, that he
realized the proposed assessment had been received. Rinker soon thereafter moved to reopen the
assessment to contest all of the proposed penalties. The Secretary states that she does not oppose
Rinker' s request to reopen the proposed penalty assessment.

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section IOS(a). Jim
29 FMSHRC 763

Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR''). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the ca5e may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Rinker' s motion, in the interests of justice, we remand this matter to the
Chief Administrative Law Judge for a determination of whether good cause exists for Rinker's
failure to timely contest the penalty proposal and whether relief from the final order should be
granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the
Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

29FMSHRC 764

Distribution
Katherine Shand Larkin, Esq.
Jackson Kelly PLLC
1099 18th Street, Suite 2150
Denver, CO 80202
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
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

29 FMSHRC 765

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

September 27, 2007
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. SE 2006-107
A.C. No. 01-00329-76350

v.
OAK GROVE RESOURCES, LLC

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On April 26, 2006, Chief Administrative Law Judge Robert
J. Lesnick issued to Oak Grove Resources, LLC ("Oak Grove") a show cause order for failure to
answer the Secretary of Labor's petition for assessment of civil penalty. On July 26, 2006, Chief
Judge Lesnick entered an order of default against Oak Grove.
On August 13, 2007, the Commission received a motion from Oak Grove requesting that
the Commission reopen the penalty assessment proceeding and relieve Oak Grove from the order
of default. The operator states that it did not timely respond to. the petition for assessment of
penalty issued by the Department of Labor's Mine Safety and Health Administration ("MSHA"),
the show cause order, and the default order because those documents were sent to the wrong
person and address. Oak Grove explains that the documents were sent to Mike McLaughlin, Oak
Grove's General Manager, at the mine site in Adger, Alabama, rather than to its Safety Director,
Michael Blevins, at "his designated address." Mot. at 2.
The judge's jurisdiction in this matter terminated when his decision was issued on July
26, 2006. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission's procedural rules,
relief from a judge's decision may be sought by filing a petition for discretionary review within
30 days of its issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission
does not direct review within 40 days of a decision's issuance, it becomes a final decision of the
Commission. 30 U.S.C. § 823(d)(l). The judge's order became a final decision of the
Commission on Tuesday, September 5, 2006.

29 FMSHRC 766

In evaluating requests to reopen final orders, the Commission has found guidance in Rule
60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled
to relief from a final order of the Commission on the basis of inadvertence or mistake. See 29
C.F.R. § 2700.l{b) (''the Commission and its Judges shall be guided so far as practicable by the
Federal Rules of Civil Procedure"); Jim Walter Res., Inc., 15 FMSHRC 782, 787(May1993).
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 1~29, 1530 (Sept.
1995).
'

Upon review of the record, we have determined that the wording of the show cause order
did not conform with the Commission's Procedural Rules. Accordingly, 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 Oak Grove Res., LLC, 28 FMSHRC 809, 811 (Oct. 2006); Paul F.
Becker Coal Co., 28 FMSHRC 237, 238 (May2006).

29FMSHRC 767

Distribution
Robert H. Beatty, Jr., 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
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

29 FMSHRC 768

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

September 27, 2007
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos. WEYA 2007-663
WEYA 2007-664

v.
SPARTAN MINING COMPANY

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On August 15, 2007, the Commission received from Spartan
Mining Company ("Spartan") a motion made by counsel to reopen penalty assessments that had
become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815{a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission.,. 30 U.S.C. § 815(a).
A.

Docket No. WEYA2007-663

On July 11, 2006, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued proposed penalty assessment No. 000093307 to Spartan. Spartan submits that
its safety director inadvertently paid proposed penalties for approximately 27 citations listed on
that proposed penalty assessment which the operator intended to contest. 1 Spartan states that its
1

Although Spartan states that 28 proposed penalties are the subject of its motion to
reopen, Spartan only explicitly refers to 27. Mot. at 1, 2.
29 FMSHRC 769

intent to contest the proposed penalties is evidenced by its actions in timely filing contests of the
citations underlying those proposed penalties. It explains that "[i]t did not become apparent that
the assessments had been paid until the Secretary filed the Motion to Dismiss." Mot. at 3. The
operator further notes that its counsel entered into an informal agreement with MSHA stating in
part that when a Massey Energy subsidiary inadvertently pays a penalty that it intended to
contest, MSHA would not object to the operator's motion to reopen as long as the motion to
reopen is filed within a reasonable time of the operator learning of its mistake or inadvertence.
Attach. 5, at l. It maintains that the instant matter is the type of circumstance identified in the
agreement.
The Secretary opposes the operator's motion to reopen in Docket No. WEVA 2007-663
on the basis that the operator failed to file its motion to reopen within a "reasonable time" after it
learned of its mistake or inadvertence as required by Fed. R. Civ. P. 60(b). She disagrees that the
operator was unaware of the mistaken payment until her motion to dismiss was filed, which
occurred on June 29, 2007. The Secretary explains that she filed a status report on December 28,
2006, explicitly stating that 21 of the 22 proposed penalties had been paid and that the twentysecond had been neither contested nor paid. S. Resp., Attach B. On March 30, 2007, the
Secretary filed a second status report referring to the prior status report and explicitly stating that
the twenty-second proposed assessment had not been paid and had been referred to the
Department of the Treasury. Id., Attach. C. The Secretary asserts that the operator filed its
request to reopen more than seven months after it was informed that it had failed to contest the
proposed penalties, and that it has failed to explain this delay in its request to reopen. Id. at 3.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 CF.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).
The status reports appear, from the limited information provided to us, to identify 21 of
the 22 proposed penalties involved in Docket No. WEYA 2007-663 as paid, and the twentysecond as unpaid and uncontested and referred to the Department of Treasury. While the
operator has failed to explain why it did not file its motion to reopen more promptly after
receiving the status reports, we cannot determine from this record whether this constitutes
"unreasonable" delay. However, we do conclude that Spartan must provide an explanation as to
why reopening this matter is warranted in light of the status reports. Accordingly, in the interests
of justice, we remand this matter to the Chief Administrative Law Judge for a determination of

29 FMSHRC 770

whether good cause exists for Spartan' s failure to timely contest the proposed penalty assessment
and whether relief from the final order should be granted. If it is determined that such relief is
appropriate, this case shall proceed pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700.

B.

Docket No. WEVA 2007-664

Spartan also requests the Commission to reopen another proposed assessment, No.
000113330, which was issued on March 13, 2007. As in the previous docket, Spartan asserts
that its failure to timely contest the proposed assessment resulted from its safety director's
mistaken payment of the proposed penalties relating to five citations. The Secretary does not
oppose the request to reopen the penalty assessments in this docket.
In the interests ofjustice, we remand Docket No. WEVA 2007-664 to the Chief
Administrative Law Judge for a determination of whether good cause exists for Spartan's failure
to timely contest the penalty proposals and whether relief from the final order should be granted.
If it is determined that suc.h relief is appropriate, this case shall proceed pursuant to the Mine Act
and the Commission's Procedural Rules.

Accordingly, we remand Docket Nos. WEVA 2007-663 and 2007-664 for :further
proceedings as appropriate.

29 FMSHRC 771

Distribution
Carol Ann Marunic~ Esq.
Dinsmore & Shohl, LLP
215 Don Knotts Blvd., Suite 310
Morgantown, WV 26501
W. Christian Schumarm, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

29 FMSHRC 772

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

September 27, 2007
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. LAKE 2007-197
A.C. No. 11-02751-116758

v.
THE AMERICAN COAL COMPANY

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On August 23, 2007, the Commission received from
American Coal Company ("American") a motion made by counsel to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).

On April 27, 2007, the Department of Labor's Mine Safety and Health Administration
issued assessment No. 000116758 to American, proposing penalties for two citations that
previously had been issued to it. American states that it intended to contest the assessment, but
mistakenly failed to do so. American fails to provide any explanation for the mistake. However,
the Secretary responds that she does not oppose American's request to reopen the proposed
penalty assessment because of her understanding that, during the time American had to contest
the assessment, its safety director was transferred to another position and another individual was
temporarily filling that position.

29 FMSHRC 773

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R
§ 2700. l (b) (''the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure''); JWR., 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed American's motion, in the interests ofjustice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether good cause exists for
American's failure to timely contest the penalty proposal and whether relief from the final order
should be ·granted. If it is determined that such relief is appropriate, this case shall proceed
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

29 FMSHRC 774

Distribution
Noelle Holladay True, Esq.
Rajkovich, Williams, Kilpatrick & True, PLLC.
2333 Alumni Park Plaza, Suite 310
Lexington, KY 40517
W. Christian Schumani:i, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001::2021

29 FMSHRC 775

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

October 4, 2007
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 2007-804-M
A.C. No. 04-05567-117523

v.
OFFIELD MINING COMPANY

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On August 23, 2007, the Commission received from Offield
Mining Company ("Offield") a letter requesting that the Commission reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On August 29, 2006, Offield was issued 23 citations by the Department of Labor's Mine
Safety and Health Administration ("MSHA"), and on September 6, 2006, MSHA issued Offield
an additional order. Penalties were proposed on May 8, 2007, by MSHA for the order and 19 of
the citations in assessment No. 000117523. Offield states that it sent in its contest of the
assessment within 30 days, but that it was lost. The Secretary states that she does not oppose
Offield's request to reopen assessment No. 000117523. 1
1

As the Secretary points out, Offield in its reopening request also references Citation No.
6389681, which according to MSHA's public records was the subject of a separate assessment,
No. 000115107, that apparently also became a final order. Accordingly, if Offield wishes to
29 FMSHRC 776

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). Jn evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure''); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Offield's request, in the interests of justice, we remand this matter to the
Chief Administrative Law Judge for a determination of whether good cause exists for Offield's
failure to timely contest the penalty proposal and whether relief from the final order should be
granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the
Mine Act and the Commi~sion's Procedural Rules, 29 C.F.R. Part 2700.

reopen that assessment, it will need to file an additional request to reopen with the Commission.
29 FMSHRC 777

Distribution
James E. McGuire
Offield Placer Mining Company
35533 Highway 96
Hamburg, CA 96050
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
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

29 FMSHRC 778

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

October 4, 2007
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMlNISTRATION (MSHA)

Docket No. WEVA2007-733
A.C. No. 46-01433-121119

v.
CONSOLIDATION COAL COMPANY

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On August 22, 2007, the Commission received from
Consolidation Coal Company ("Consol") a motion made by counsel to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On July 5, 2007, the Department of Labor's Mine Safety and Health Administration
issued assessment No. 000121119 to Consol, proposing penalties for 27 citations and orders that
previously had been issued at Consol's Loveridge mine. Consol states that its safety supervisor
at that mine had retired in mid-June, and that his replacement was unfamiliar with the procedures
for contesting proposed penalties. According to Consol, the new safety supervisor forwarded the
assessment to Consol's headquarters after over 30 days had passed. Consol soon thereafter
sought to contest 14 of the proposed penalties. The Secretary states that she does not oppose
Consol's request to reopen the proposed penalty assessment.

29 FMSHRC 779

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). ht evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700. l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC.at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Consol's motion, in the interests of justice, we remand this matter to the
Chief Administrative Law Judge for a determination of whether good cause exists for Consol's
failure to timely contest the penalty proposal and whether relief from the final order should be
granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the
Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

29 FMSHRC 780

Distribution

R. Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center, Suite 1340
401 Liberty Avenue
Pittsburgh, PA 15222
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, ~.W., Suite 9500
Washington, D.C. 20001

29 FMSHRC 781

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

October 4, 2007
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEVA 2007-843
A.C. No. 46-01433-118871

v.
CONSOLIDATION COAL COMPANY

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On September 17, 2007, the Commission received from
Consolidation Coal Company ("Consol") a motion made by counsel to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On May 25, 2007, the Department of Labor's Mine Safety and Health Administration
issued assessment No. 000118871 to Consol, proposing a penalty for an order that previously had
been issued at Consol's Loveridge mine. Consol states that its safety supervisor at that mine,
who normally processed proposed assessments, did not process the assessment for contest before
he retired in mid-June. Instead, on June 6, 2007, the proposed assessment was forwarded to
Consol's headquarters, and Consol paid the proposed penalty. According to Consol, the safety
supervisor's replacement was unfamiliar with the procedures for contesting proposed penalties.
The replacement's failure to timely process other proposed assessments led Consol to discover
that it had failed to contest the instant assessment, as it now states that it had intended. Consol

29 FMSHRC 782

submits that its payment of the assessment was in error. The Secretary states that she does not
oppose Consol's request to reopen the proposed penalty assessment.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Consol's motion, in the interests of justice, we remand this matter to the
Chief Administrative Law_ Judge for a determination of whether good cause exists for Consol's
failure to timely contest the penalty proposal and whether relief from the final order should be
granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the
Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

29 FMSHRC 783

Distribution

R. Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center
401 Liberty Avenue, Suite 1340
Pittsburgh, PA 15222
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-

29 FMSHRC 784

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

October 4, 2007
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2007-469-M
A.C. No. 31-01990-122706

v.
G.S.l\.1ATERIALS,INC.

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On September 21, 2007, the Commission received from G.S.
Materials, Inc. ("GSM") a letter requesting reopening of a proposed penalty assessment which
GSM believes had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On July 19, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued proposed penalty assessment No. 000122706 to GSM for seven citations that
MSHA had issued to GSM during the previous month. GSM states that it did not contest the
proposed penalties until August 20, 2007, because it misplaced the papers at the mine site. The
Secretary states that case was timely contested, and she has assigned it to a Regional Solicitor's
office for hearing, so the request to reopen should be dismissed.

Having reviewed GSM's request and the Secretary's response, we conclude that the
proposed assessment at issue has not become a final order of the Commission because GSM
timely contested it. We deny GSM's motion as moot and remand this matter to the Chief
Administrative Law Judge for further proceedings as appropriate pursuant to the Mine Act and
29 FMSHRC 785

the Commission's Procedural Rules, 29 C.F.R. Part 2700. See Lehigh Cement Co., 28 FMSHRC
440, 441 (July 2006).

29 FMSHRC 786

Distribution
Jrunes Kirkpatrick
G. S. Materials, Inc.
P.O. Box 1335
Burlington, NC 27216

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001

29 FMSHRC 787

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

October 11, 2007
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEVA 2007-835
A.C. No. 46-08645-120911

v.
PROGRESS COAL

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners
ORDER
BY THE COMMISSlON:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On September 17, 2007, the Commission received from
Progress Coal ("Progress") 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).
fu early July 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued assessment No. 000120911 to Progress, proposing penalties for 23 citations
and orders that had been issued earlier in the year at Progress' Twilight MTR Surface Mine.
Progress' Safety Director states that the proposed assessment was addressed to an employee who
had left Progress in 2006, and that the signature on the Domestic Return Receipt returned to
MSHA was that of a person not known to have been employed by Progress. The Safety Director
explains that he did not learn of the proposed penalties until they were listed as delinquent in
MSHA's data retrieval system. The Secretary states that she does not oppose Progress' request
to reopen the proposed penalty assessment.

29 FMSHRC 788

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section lOS(a). Jim
· Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR''). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the ·
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure")~ JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Progress' motion, in the interests ofjustice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether good cause exists for
Progress' failure to timely contest the penalty proposal and whether relieffroin the final order
should be granted. If it is determined that such relief is appropriate, this case shall proceed
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

~~kz,L_

M~an, Cotnt?sioner

29 FMSHRC 789

Distribution
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Carol Ann Marunich, Esq.
Dinsmore & Shohl, LLP
215 Don Knotts Blvd., Suite 310
Morgantown, WV 26501
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

29 FMSHRC 790

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

October 31, 2007
SECRETARY OF LABO~
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. CENT 2008-6-M
A.C. No. 23-00765-120082

v.
HUNT MARTIN MATERIALS, LLC

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On October 2, 2007, the Commission received from Hunt
Martin Materials, LLC ("Hunt Martin") 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).
On June 12, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment to Hunt Martin covering citation No. 6239671.
In its motion, Hunt Martin states that its Human Resources Manager believed he had timely filed
a contest of the penalty but failed to do so due to mistake and inadvertence. Hunt Martin
discovered this oversight when it received correspondence from MSHA stating that the case had

29 FMSHRC 791

become a final order and that it owed an outstanding balance. 1 The Secretary states that she does
not oppose Hunt Martin's request to reopen the penalty assessment.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure tO
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

1

In that correspondence, MSHA allegedly indicated that a partial payment of the penalty
assessment had been made. Hunt Martin claims that it has not submitted any payment with
respect to the proposed penalty at issue. Mot. at 2.
29 FMSHRC 792

Having reviewed Hunt Martin's request, in the interests of justice, we remand this matter
to the Chief Administrative Law Judge for a determination of whether good cause exists for Hunt
Martin's failure to timely contest the penalty proposal and whether relief from the final order
should be granted. If it is determined that such relief is appropriate, this case shall proceed
pursuant to the Mine Act and the Commission's Proced:ural Rules, 29 C.F.R. Part 2700.

29 FMSHRC 793

Distribution
Karen L. Johnston, Esq.
Jackson Kelly PLLC
1099 18th Street, Suite 2150
Denver, CO 80202
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
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

29 FMSHRC 794

ADMINISTRATIVE LAW JUDGE DECISIONS

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

August 30, 2007
STEVEN C. COLLINS,
Complainant

DISCRlMINATION PROCEEDING
Docket No. KENT 2007-15-D

v.
NORTHFORK COAL COMPANY,
Respondent

Mine No. 4
Mine ID 15-18340

DECISION
Appearances: Daniel F. Dotson, Esq., Whitesburg, Kentucky, on behalf of the Complainant;
Melanie J. Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC,
Lexington, Kentucky, on behalf of the Respondent.
Before:

Judge Melick

This case is before me upon a complaint of discrimination filed by Mr. Steven Collins
pursuant to Section 105(c)(3) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq., the "Act", alleging that he was discharged by the Northfork Coal Company (Northfork) on
August 8, 2006, presumably in violation of Section 105(c)(l) of the Act. 1 More particularly, Mr.
Collins alleges in his complaint filed with the Department of Labor's Mine Safety and Health
Administration (MSHA) on August 9, 2006, as follows:

1

Section 105(c)(1) of the Act provides as follows:

No person shall discharge or in any manner discriminate against or cause to be discharged
or cause discrimination against or otherwise interfere with the exercise of the statutory
rights of any miner, representative of miners or applicant for employment in any coal or
other mine subject to this Act, because such miner, representative of miners or applicant
for employment has filed or made a complaint under or related to the Act, including a
complaint notifying the operator or the operator's agent, or the representative of the
miners at the coal or other mine of an alleged danger or safety or health violation in a coal
or other mine, or because such miner, representative of miners or applicant for
employment is the subject of medical evaluations and potential transfer under a standard
published pursuant to section 101 or because such miner, representative of miners or
applicant for employment has instituted or caused to be instituted any proceeding under
or related to this Act or has testified or is about to testify in any such proceeding, or
because of the exercise by such miner, representative of miners or applicant for
employment on behalf of himself or others of any statutory right afforded by this Act.
29 FMSHRC 795

I made safety complaints several weeks about a grinder that I used daily, nothing was done.
I was struck by a piece of steel on 8/8/06 from the grinder, complained again and was
discharged.
A miner alleging discrimination under the Act establishes a prima facie case of prohibited
discrimination by proving that he engaged in protected activity, that adverse action was taken by his
employer and that the adverse action was motivated in any part by that protected activity. Secretary
ofLabor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-8000 (October
1980), rev 'don other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir.
1981 ); Secretary ofLabor on behalfofRobinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18
(April 1981). For the reasons that follow, I find in this case that, while Mr. Collins did engage in
protected activity, he suffered no adverse action from Northfork. fudeed, the credible evidence
shows that Collins voluntarily resigned from his job with Northfork on August 8, 2006. 2
There is no dispute that on August 8, 2006, as well as before that date, Mr. Collins
complained about the brush portion of the grinder machine used by roofbolters to smooth the rough
edges on their steel roof bolts. There is also no dispute that the brush had been worn down and on
August 8, 2006, a piece of steel struck a can of snuff Collins had in his shirt pocket as he was using
the brush. There is also no dispute that he then almost immediately complained to supply clerk
Raymond Sturgill and shortly thereafter to mine manager Bill Robinson, about the worn brush and
the fact that he had been struck by a piece of steel while using it. 3
Collins testified that on August 8, 2006, he was working as a roof bolter. He had 11 years
prior experience as a roof bolter and had worked for Northfork for two years. Collins testified that
before entering the mine it was his practice to prepare extra "steel". On the morning at issue, he was
using the grinder to take the edge off the steel that had been cut According to Collins, all of the
bolters used the grinder to clean slag off the steel. Slag is cleaned to facilitate the insertion of the
steel into the mine roof. As he was using the brush portion of the grinder on that date, a piece of
steel hit him. According to Collins, the brush was worn and the bristles were brittle. He told clerk,
Raymond Sturgill, that a piece of steel hit him and asked Sturgill when he was going to get a new
brush. Mine superintendent Bill Robinson then passed by and Collins asked him why he did not
get a new brush. According to Collins, the following exchange then occurred:

2

There is no claim in this case that Collins' departure was based on a "constructive
discharge" theory. See Dolan v. F&E Erection Co., 22 FMSHRC 171, 176 (February 2000).
3

While it is also undisputed that Collins also complained about the safety of the worn
brush to state and federal mine inspectors, it is clear that those complaints were made after his
employment had already been discontinued (Tr. 59-60, 155-156).

29 FMSHRC 796

Q. All right. Tell me who you ran into that morning to complain about the grinder and the
brush again?
A. First I had seen Raymond, like I said, he was the guy that ordered the stuff and I asked
him, I said - - well, the piece of steel had flew up and hit me up underneath the arm and I had
a can of Skoal in my pocket and it knocked it out.
I asked him, I said, Raymond, when are you all going to get us a brush. He started cussing
and stuff and he said I told you I can't get you one.
I said well - - mid Bill come out there, just right after that.
Q. Who is Bill?
A. He's the superintendent.
Q. What is his last name?
A. Robinson.
Q. Okay. Go ahead.
A. And I asked Bill, I said, Bill, I said why don't you get us a brush, buddy. I said we've got
the have one; I said that makes two or three times that piece of steel has flew up and hit me.
I said it's wore out; somebody is going to get killed. I said it could have flew up and hit me
in the face which it probably would have if it hadn't hit me underneath the arm.
And he said what do want me to do, and which he said a bunch of bad words.
JUDGE MELICK: Well you will have to say the words that were used.
BY MR. DOTSON:
Q. We are over 18, Stevie. Tellhim what he said to you.
A. He said what do you want me to do, shit one out. I said, well, I said the only thing I want
is one. He said, well, he said I can't get one. That's the exact words he said.
Q. What happened next?
A. So then I stood in there a minute and I said, well, I'm going to talk to him, then we had
an inspector there. He was in the other - - he walked over to the other building.
JUDGE MELICK: Mr. Robinson left at that point?
THE WITNESS: Yes, he left. And so I didn't want to cause any trouble, you know, around
the inspector. I didn't want to get you know the inspector to know, you know, get him in any
kind of trouble.
So I called him outside, I said, Bill, I said why don't you go, you know, get us a brush.
JUDGE MELICK: Wait a second. Are you talking to the inspector now?
THE WITNESS: No, I'm talking to Bill.
JUDGE MELICK: Why did you say he left the scene?
THE WITNESS: Yeah, he left out the one building and walked over to the other building.
JUDGE MELICK: I see. And then you followed him?
THE WITNESS: Yeah. I followed him over there. He walked in the building. I walked over
there and I said, Bill, I said come out here a minute and let me talk to you. So he walked
outside and I said, Bill, I said all I want is a brush. I said, you know, I said I've got to work;
I've got a family to take care of.
He said I told you once I can't get no damn brush. I said, well, it's been like that for over
two months. He said, I know he said it's been like that for two damn months but he said like
I told you I can't get one.

29 FMSHRC 797

I said well - - he said furthermore he said if you don't like the way I run - - or I asked him,
I said, well, I said if you can't get me one I said give me Ross Kegans' phone number. He
wouldn't do it.
And the way he got things over there you are supposed to go to your boss, then to your
superintendent and they go to the main one which is Ross Higgins.
JUDGE MELICK: Ross Higgins, what is his position?
THE WITNESS: He was the main one over the company.
JUDGE MELICK: He was over Mr. Robinson?
THE WITNESS: Yes. yes.
JUDGE MELICK: Higher management?
THE WITNESS: Yes.
JUDGE MELICK: Do you know what his exact title was?
THE WITNESS: He's over the whole company I do believe. I'm not for sure.
MR. DOTSON: Your Honor, for the record, he's referring to a fellow by the name
of Ross Kegan. It's not Higgins.
JUDGE MELICK: Is that stipulated?
MS. KILPATRICK: How do you spell his name?
MR. DOTSON: As best I remember, Your Honor, It's K-E-G-A-N OR K-E-AG-A-N?
MS. KILPATRICK: I think it's one N and one A. K-E-G-A-N.
JUDGE MELICK: Okay. Kegan it's stipulated that his name is Ross Kegan.
THE WITNESS: And I asked him for his phone number and he said I ain't giving you his
damn phone number; you don't need it. I said, well, Bill, you know I said we've got a chain
of command I said they us [sic] whenever I got hired on here I said that's what we're
supposed to do, you know, we go to our boss first, to you, I said then if you don't satisfy our
needs then we go to Kegan.
He said, well, you are not getting his phone number. I said well. He said if you don't like
the way I run things here he said there's the damn road hit it. He said, as a matter of fact,
there's the damn road and you can hit it anyhow.
(Tr. 23-29)
Only later, under cross examination did Collins claim that Robinson also told him at this time
that "you're fired, just find yourself another job" (Tr. 58-59). Collins claims that Robinson told him
that he was fired before he talked to the state inspector (Tr. 59-60). The alleged adverse action
would also have occurred before Collins requested the telephone number for MSHA (Tr. 155-156).
William McFem, another Northfork roof bolter who also worked with Collins, testified that
he too had used the brush after cutting some steel that morning and agreed that the brush needed to
be replaced. That same morning he saw Collins after a piece of steel knocked a can of snuff out of
Collin's pocket. Contrary to the Complainant's testimony, McFem testified that Raymond Sturgill
and possibly mine manager Robinson, also told the Complainant that they had ordered a new brush
but that it had not come in yet. According to McFem, Robinson also told Collins that he just

29 FMSHRC 798

"couldn't shit one". McFem testified that, while the brush makes it easier to clean the steel, it is not
necessary to use the brush and you can use alternative methods to get the steel inserted.
Bany Honaker was also a roof bolter operator on the Complainant's shift on August 8, 2006.
He too had used the grinder and brush to clean burrs off the steel to make it easier to insert. He too
had asked Sturgill several times before that date to get a new brush. Honaker testified that Sturgill
told him that a new one had been ordered. Honaker observed that after the piece of steel struck
Collins, Collins asked Sturgill if he was going to replace the brush and Sturgill told him not to use
the "damn thing". Honaker recalled that Robinson also told Collins not to use "the damn thing".
Mine superintendent Billy Ray Robinson testified that, at the beginning of the shift on the
morning of August 8, 2006, the Complainant approached him asking for a layoff slip to take to the
employment office to draw unemployment benefits (Tr. 96). Robinson testified that he told Collins
that they were not laying off and refused to give him a layoff slip. Collins was complaining also at
that time that the third shift had not been loading the roof bolts correctly. Robinson described these
and subsequent events in the following colloquy at hearings:
A. [Robinson] I said [to Collins] I'm not going to jump on the third shift over the way they
load a roof bolter because some nights you're lucky even if they're loaded because of just
things going on on the shift. And I'm definitely not going to jump onto them about the way
they tum the bolt heads on a bolter, when they load the pinner.
Well, he went off, he got frustrated at that point and he walked off. Well a few minutes later
he come back and said - - exactly how was it he said it? He said you 're going to have to do
something about that grinder out there.
I didn't know that him and Raymond [Sturgill] had done had an interaction inside the shop.
Q. Okay.
A. And he said I got hurt on that grinder out there a minute ago. I said what do you mean
you got hurt. He said I was trying to clean my steel up, dress my steel up and he said it flew
up. He said we told you that it needs a brush put on it.
I said, Thirty-eight [Collins' nickname], we've got one ordered. That's all I can tell you; it's
ordered. The one that came in was not the proper brush for it. Earl had to - - the guy we
ordered it from, Electric Motor, Earl Booher is the salesman. I said he had to order another
brush; that brush does not work. It won't work on that grinder.
And he said, well, I got hurt on it. He said it flew up and hit me in the arm and he said - then he started going on about how I didn't know how to manage a coal mines.
He said this is the most mismanaged place that I've ever worked in I mean there is nothing
else I can do, my hands are tied. I've got the parts ordered.
But when he told me that I didn't know how to manage a coal mines, I got pretty frustrated
and I looked at him and I said, now listen, if you don't like the way I manage this coal mine,
then the best thing I can tell you is you need to find you another job. And that was my words,
if you don't like the way I manage this mines.
Q. Did you tell him that he was fired?
A. No, ma'am. That was never uttered out of my mouth. And he turned and went into the
changing room - - now I guess at that point because I had other guys coming to me and

29 FMSHRC 799

talking to me about a number of different things, so you know as far as the time frame I can't
precise chronological - - but then he came back and he handed me his - - he had his rescuer
in this hand.
I said put it in the office. He went on in- - he went on in the foreman's office while I was
talking to some else. A few minutes later he came back and he said - - no, he didn't say
nothing to me.
He went back in the changing room and I guess he talked to some of them boys over there.
I don't know. Then a few minutes later, I don't know how many minutes it was, it was
probably - - the mantrips I guess had done left at that time.
I saw him back his truck down there and he had a tote that he carried his stuff in. He kept
his stuff, a lot of guys keep a tote just like a Rubbermade tote. They keep their stuff locked
up in it rather than haul it back and forth in their vehicle.
Q. Where did they keep the tote?
A. In the changing room.
Q. At the mine?
A. Yeah. It's just a little ole trailer there where everybody changes clothes in. And then as
he was leaving, he said I'm going to get to this bottom of this. He said I'm going - - I'm
going, I'm going fo get to the bottom of this somehow.
Q. I'm sorry. What did he do with his tote?
A. He put it in the back of his truck and left.
Q. Took it out of the changing room?
A. Yeah. Put it in the back - - he backed his truck down there to the office. They normally
park up the hill. He went up and got his truck and brought it down thee and backed it in
there to load his tote in.
Well he said something to the effect I'm going to get to the bottom of this. Well during that
time I get phone calls every morning from my bosses. They want to know what the previous
day's productions were.
Q. Let me stop you and go back on something. When he gave you his self-rescuer and when
you saw him load up his tote out of the changing room, how did you interpret that action?
A. He quit. I mean normally when a guy goes and gets his rescuer and brings it and hands
it to you that's a pretty good sign that he's quit, you know.
JUDGE MELICK: Has that been done before? Have you had other employees just hand you
their self-rescuers?
THE WITNESS: Yes, I mean get their stuff, hand you the rescuer and never say nothing. I
had a guy one day just never said anything to me. He got his payroll check, went over in the
shop - - I mean over in the office got his stuff, came over and laid his rescuer on the desk and
went up the hill and never said nothing to nobody.
JUDGE MELICK: What is the practical effect of leaving your rescuer? Is that mine
property?
THE WITNESS: Yes.
JUDGE MELICK: Self rescuers?
THE WITNESS: Yes, yes. That's something we issue to the employees. Selfcontained selfrescuers.

29 FMSHRC 800

JUDGE MELICK: All right. You need that and it's required by law to take that into the
mine with you; correct?
THE WITNESS: Yes, it is. Uh-huh. Yeah.
JUDGE MELICK: And if you don't have that are - THE WITNESS: You can't go underground.
JUDGE MELICK: All right. So for all practical purposes you interpret that as what?
THE WITNESS: As he quit. He turned it in.
{Tr. 97-103)
Northfork mine clerk Raymond Sturgill testified that he, as mine clerk, was in charge of
ordering supplies. He observed the confrontation on the morning of August 8, 2006, and described
it in the following colloquy:

Q. Okay. Tell us if you would go back and tell us about your first contact with Mr. Collins
on that day?
A. On that day tha! morning I was in the shop, I was doing inventory to see what we needed
for parts that day. Mr. Collins was over there at the grinder where they grind their steel off.
I heard a loud thump. I turned around, he had grinding on his steel and he told me, he said
you all are going to have to fix this damn thing.
Q. Okay. Are those the exact words that he said?
A. That's the exact words he said.
Q. Okay. And what was your response?
A. I told him, I said, Steve, we've got the parts ordered for the grinder and you was not
supposed to be using it.
Q. Okay. Had you previously told Mr. Collins not to use the grinder?
A. I don't specifically remember ifl told him specifically but they knew.
Q. Okay. Who is they?
A. All the pinner men that use the grinder to grind their steel off.
Q. How did they know?
A. We had told them not to - - not to use it until the part come in.
Q. Okay. Had you told all of them not to use the brush - - first of all, are we just talking
about the brush side of the grinder or - A. The brush side, yes.
Q. Had you told all the pinner men not to use it?
A. To the best that I can remember, I don't know ifI told them all or not.
Q. So you say the parts had been ordered for the grinder?
A. Yes, we had ordered - - we had ordered the part prior to this and they had sent the wrong
brush and we had to send it back because it was the wrong part. It wouldn't fit the - - it
wasn't the right size.
Q. Okay. And as of August 8, 2006, the day that this happened had the new brush, the
correct brush come in yet?
A. No, it hadn't.

29 FMSHRC 801

Q. Was it still on reorder?
A. Yes, ma'am.
Q. An what happened next?
A. You know after I told him that we had the part ordered for it, they wasn't supposed to be
using it, Bill come into the shop and he started on Bill.
Q. Okay. What did he say to Bill?
A. He just told him, said he was going to have to fix the grinder, you know, and Bill told
him we had the part ordered for it.
Q. What - -what was Mr. Collins' tone of voice?
A. He was very loud.
Q. In your opinion was it an appropriate way to speak to the boss?
A. No, ma'am.
JUDGE MELICK: In what way was it inappropriate?
THE WITNESS: He just about screaming, Your Honor.
JUDGE MELICK: He was what?
THE WITNESS: He was very loud?
BY MS. KILPATRICK:
Q. And what was-Mr. Robinson's response? Do you recall exactly what Mr. Collins said
to Mr. Robinson?
A. I don't know. I walked out and went back to my office.
Q. Okay. You didn't hear any of the exchange between Mr. Collins and Mr. Robinson?
A. No.
Q. Okay. Did you see Mr. Collins again that day?
A. Yeah, it was probably about five minutes later they was out on the porch of my office.
What brought it to my attention they was real loud.
Q. Mr. Robinson and Mr. Collins were talking again?
A. Yes.
Q. Okay. And did you hear what was being said this time?
A. Mr. Collins told Bill that he didn't know how to run a mines. And Bill told him if he
didn't like the way he run the mine, you know, to find him another job.
So he just a few minutes later he come in the office where we store our self-rescuers and
threw his rescuer on the desk.
Q. Mr. Collins did?
A. Yes.
Q. Okay.
A. And then he went and got in his truck and come down to where the changing room is and
he got his belongings and he left.
Q. How did you interpret that action?
A. To me I thought he quit.
Q. Okay. Was that the last time that you saw Mr. Collins that day?
A. No, ma'am.
Q. Okay. When - - when else did you see him?

29 FMSHRC 802

A. Probably ten minutes later, maybe ten minutes later he come back down to the office
again.
Q. And what happened?
A. He come in there demanding - - he wanted the phone numbers to the president of the
company.
Q. Did he mention that person by name?
A. Ross Kegan.
Q. Okay. Who was he asking for the phone number from?
A. Bill I guess. You know, there was three or four of us still in the office.
Q. And what else did Mr. Collins say?
A. I don't know exactly- - he was asking for the MSHA's number and all this stuff. Bill
just told him that, you know, the was through talking to him.
Q. Okay.
A. And he asked me to escort him off the property.
Q. And what did you do?
A. I told Steve that he was going to have to leave. I escorted him to his truck. I told him if
he come back we :would call the law on him and have him charged with trespassing.
(Tr. 142-148)
On cross examination Sturgill testified that, during the confrontation, Collins was "loud" and
that Robinson was "normal". He noted that Collins did not request the telephone numbers of vice
president Kegan and MSHA until he had already quit, had departed, and then returned. Sturgill
denied that he had ever touched Collins but only told him that he would have to get off mine
property or that he would have to call the Sheriff's department.

Another Northfork roof bolter, Glen Sizemore, was also present during the confrontation on
the morning of August 8, 2006. He recalled that there was indeed a problem with the brush in that
it was worn. Sizemore testified that Sturgill had previously told him not to use the brush and that
he was "pretty sure" that Collins had been told this. Sizemore observed Collins using the brush that
morning and observed that he was not using it correctly and that he put the steel straight into the
brush. He noted that following the initial argument between Collins and Sturgill, mine
superintendent Robinson walked in. He observed that Collins did not proceed underground as he
did but followed Robinson into his office and spoke in a "hateful" voice which he felt was not an
appropriate way to talk to your boss.
Northfork personnel director, Richard Raleigh, testified that he heard of the incident on
August 8, 2006, and was told by vice president Kegan and safety director Cohelia, to offer Collins
his job back. Raleigh testified that his notes confirmed that he called Collins at 6:00 p.m. on August
8, 2006, and offered him his job back without any loss of pay. Collins told him that Bill and Ray
would "make it hard on him" and that he wanted their certification revoked so that they would never
work again, apparently as a condition for his return.

29 FMSHRC 803

In evaluating the evidence in this case, I conclude that the testimony ofmine superintendent,
Bill Robinson that Collins resigned and was not discharged by Northfork as the most credible. His
testimony is also corroborated in significant respects by the credible testimony of Northfork mine
clerk, Raymond Sturgill. The absence of animus toward the Complainant is also apparent :from the
willingness of both Robinson and Sturgill, later on the same day the Complainant resigned, to offer
the Complainant his job back with no loss of pay (Tr. 189). The response ofthe Complainant to this
offer also suggests that he resigned only because of his unhappiness with Robinson and Sturgill and
not for any safety concerns (Tr. 182) Collins admitted that he wanted both Robinson and Sturgill
fired, apparently as a condition of his return to Northfork (Tr. 45, 53-57).
In reaching my conclusions herein, I have not disregarded the decision of the referee in Mr.
Collins' case before the Kentucky Division ofUnemployment Insurance in which it was determined
that Collins ''was discharged for reasons other than misconduct and [was] not disqualified from
unemployment insurance benefits" (Exh. C-1 ). I am unable to give the referee's decision any weight,
however, since it is clear on the face of the decision that the referee misconstrued the sequence of
events. The Complainant himselftesti.fied under oath at the Commission hearings at bar that he was
terminated before he talk~d to the state inspector and by inference therefore, also before he had
threatened to call vice president Kegan and MSHA. It is also apparent from the decision that critical
witnesses for Northfork did not testify and that the referee had only Collins' version of events from
which to reach his conclusions. In addition, without a complete record, including a transcript of the
proceedings before the referee, the referee's decision could be given but little weight. See Pasula
2 FMSHRC at 2795.
Within the above framework of law and evidence, I conclude that Mr. Collins voluntarily
resigned his position with Northfork and, accordingly, the discrimination complaint herein must be
dismissed.

ORDER
Discrimination proceeding Docket No. KENT 2007-15-D is hereby dismissed.

I

I

jrkt\,
I

1

~

Gary
lick
Administrative Law udge
(202) 434-9977

29 FMSHRC 804

Distribution: (Certified Mail)
Daniel F. Dotson, Esq., 178 Main Street, Suite 1, Whitesburg, KY 41858
Melanie J. Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 2333 Alumni Park
Plaza, Suite 310, Lexington, KY 40517

/lb

29 FMSHRC 805

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

September 5, 2007
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 2006-531
A.C. No. 05-03836-94203

v.
Foidel Creek Mine
TWENTYMJLE COAL COMPANY,
Respondent

DECISION
Appearances:

Kristi L. Floyd, Esq., Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado, for the Secretary of Labor;
R. Henry Moore, Esq., Jackson Kelly PLLC, Pittsburgh, Pennsylvania,
for Twentymile Coal Company.

Before:

Judge Manning

This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration ("MSHA"), against
Twentymile Coal Company (''Twentymile"), 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"). An
evidentiary hearing was held in Steamboat Springs, Colorado. The parties introduced testimony
and documentary evidence, presented oral argument, and filed post-hearing briefs.

I. BACKGROUND AND FINDINGS OF FACT
This case involves the alternate escapeway in the 20 Right continuous miner development
section. The citation at issue alleges that the alternate escapeway was not being maintained in a
safe, travelable condition. The section had three entries, also called gate roads, that were being
developed for longwall mining. The No. 1 entry was the alternate escapeway and was ventilated
with return air. The No. 2 entry was the primary escapeway and was ventilated with intake air.
This entry was used as the travelway for mine vehicles. The No. 3 entry was the belt entry.
As the 20 Right section was developed, mining progressed downhill into a syncline until
the 65+00 crosscut and it proceeded back uphill with some flat areas along the way. Any water
in the area tends to flow toward the bottom of the syncline. In the 20 Right section, the lowest
point was in the No. 1 entry at the 65+00 crosscut. The mine had developed a pumping system to
handle the water. First, a series of French drains were established in the crosscuts of the No. 2
29 FMSHRC 806

entry to permit the collection of water for removal. Pumps operated with compressed air ("air
pumps") were installed to remove the water from the drains. Because there is :frequent vehicular
traffic in the No. 2 entry, the presence of water creates difficult and muddy driving conditions.
Twentymile also installed a series of electric pumps and water tanks in the No. 1 entry to remove
water. A pump at the bottom of each tank pumps water through a hose to the next outby tank for
removal from the mine. These tanks are known as "shark tanks."
Todd Croft, a fire boss, conducted the required weekly examination of the No. 1 entry on
Wednesday, March 15, 2006. He testified that he did not see any significant or hazardous
accumulations of water in the No. 1 entry during his examination. {Tr. 133-34). The area was
muddy. He also testified that water tended to collect in areas where the syncline was present in
other development panels.
On Friday, March 17, 2006, the power was turned off in the 20 Right section to advance
the section. The power center was moved in an inby direction and the auxiliary fans in the No. 1
entry were moved from 67+o0 to a point outby 72+50. The electric pumps in that entry did not
operate during the time that the power was off. As a consequence, water began to accumulate in
the No. 1 entry. In addition, the pump in the shark tank at crosscut 42+00 malfunctioned with the
result that water entering the tank overflowed and ran back down to the 65+00 crosscut.
Twentymile installed an electric pump at crosscut 65+00 on Friday evening to lower the water
level. {Tr. 127, 131, 146). The belt in the No. 3 entry was advanced about 250 feet on Saturday,
March 18.
On Sunday, March 19, MSHA Inspector Jeff Fleshman inspected the No. 1 entry. Doug
Curtis, a fire boss, accompanied the inspector. They encountered some water in the entry at
65+00. They continued walking further inby up to 7o+OO. The area at 7o+o0 was flat and water
was present there as well. Inspector Fleshman testified that the water extended a distance of 700
feet along the entry between 65+o0 and 72+50. {Tr. 24). The inspector measured the water just
outby the fans. He testified that the average depth was seven inches. He testified that the ground
under the water was uneven with tire ruts throughout the area. The inspector did not measure the
depth of the water in the ruts but Mr. Curtis estimated that the water was 13 to 15 inches in some
locations. (Tr. 25, 129). The water in the entry did not extend rib-to-rib in all locations. A
person could walk on a ''meandering cow path" and stay relatively dry. {Tr. 25). The water was
silted and murky. The inspector testified that there was "[n ]o real distinct path to travel the
escapeway in a reasonable and hasty fashion." {Tr. 28). He stated that as he approached the
auxiliary fans, he "got a big piece of No. 9 wire wrapped around [his] feet" that was under the
water and he tripped on it. Id. In addition, he stated that there were about six pieces of
ventilation tubing in the entry that were each about 10 feet long.
Inspector Fleshman issued Citation No. 7636848 under section 104(d)(l) of the Mine Act
alleging a violation of section 75.380(d)(l) as follows:

29 FMSHRC 807

The alternate escapeway (Entry 1 Return) for the 20-Right
development working section was not being maintained in a safe
travelable condition. Water accumulations, measured up to 7inches deep, from rib to rib, existed from 40 feet outby crosscut
No. 65+00 to 72+00 in Entry No. 1.
In the termination notice issued by Inspector Fleshman on March 21, 2006, he stated:
This 104(d)(l) citation is modified to include that mine examiners
should have seen this condition which expressed more than
ordinary negligence in failing to recognize the drowning hazard
which existed immediately outby the auxiliary fans on the working
section.
Inspector Fleshman determined that an injury was highly likely and that any injury could
reasonably be expected to be permanently disabling. He determined that the violation was of a
significant and substanti1d nature ("S&S") and that the negligence was high. The safety standard
provides that "[e Jach escapeway shall be maintained in a safe condition to always assure passage
of anyone, including disabled persons." The Secretary proposes a penalty of $7 ,800.00 for this
citation. Twentymile constructed two bridges over the areas of concern to Inspector Fleshman to
abate the cited condition, one over the area around 65+00 and the other around 7o+OO.

II. DISCUSSION WITH ADDITIONAL FINDINGS AND
CONCLUSIONS OF LAW
A. Brief Summary of the Ara=ument
The Secretary contends that the conditions found in the No. 1 entry would hinder miners
when trying to escape the mine in an emergency. Miners should not face tripping hazards and
should not have to find a cow path through water when there is an emergency. Miners carrying
out a disabled person would be particularly impeded by the accumulation of water. The violation
was S&S because it was reasonably likely that someone would be seriously injured in the event
of an evacuation during an emergency. She argues that the facts in this case are quite similar to
those in Maple Creek Mining, Inc., 27 FMSHRC 555 (August 2005).
The Secretary argues that Twentymile knew that water would naturally accumulate in the
syncline and that it was not doing enough to control this water. A similar citation was issued on
the 16 Right development section. In addition, in the 19 Right development section, muddy
conditions were found in the same area. As a consequence, Twentymile had notice of the
problem and knew that more needed to be done. Twentymile's failure to act amounted to an
unwarrantable failure to comply with the safety standard.

29 FMSHRC 808

Twentymile argues that the safety standard does not require an escapeway be free of
normal mining conditions. A mine floor is never smooth or free of ruts. It may contain debris
and other tripping hazards. The term "passable" means "capable of being traveled." (T. Br. 7).
A person could get out of the mine in an emergency, including disabled miners. The citation
states that the only impediment to passage was water that was up to seven inches deep. Water
that is so shallow that it does not go over the tops of miners' boots does not impede travel.
The citation does not mention ruts or other obstructions in the escapeway. In addition,
there was no evidence that muck was present under the water. There was a lifeline along the
escapeway, but the Secretary presented no evidence that water was present along the lifeline.
Twentymile argues that the testimony of its witnesses clearly establishes that the escapeway was
more than adequate for travel, including travel during an emergency for disabled persons.
In addition, Twentymile argues that the cited conditions were not S&S because Inspector
Fleshman only said that the water in the escapeway could slow egress or cause someone to
stumble. The remainder of his testimony addressed the nature of any injuries if such an event
were to occur. Consequently, the Secretary did not establish the third element of the Mathies
test. In addition, it was not reasonably likely that anyone would use the alternate escapeway in
the event of an emergency.
Finally, Twentymile contends that it did not unwarrantably fail to comply with the safety
standard. Twentymile installed drains and air pumps in the 20 Right Section as the section was
developed. It installed the system of electric pumps with shark tanks to remove any water that
was not removed by the air pumps. When water began accumulating on the evening of March
17, the company installed an additional electric pump in the lowest area. The water had not been
present in the No. 1 entry for a significant length of time and it was not deep enough to create a
hazard to miners.

B. Analysis of the Issues

1. The Violation
The safety standard requires that each escapeway be maintained in a safe condition to
always assure passage of anyone, including disabled persons. Thus, both escapeways must be in
a safe condition and must be travelable by anyone, including disabled persons, at all times.
Maple Creek, at 561. I find that the Secretary established that the alternate escapeway was not in
a safe condition and was not travelable by everyone who might need to use it in an emergency.
Although the water was not extraordinarily deep and it did not extend from rib to rib in all areas,
it would slow people down if they were trying to exit the mine using this escapeway. Any ruts
that were obscured by the water would be stumbling hazards that would also slow people down
trying to escape in the event of an emergency. Finally, the extra ventilation tubes, which are
normally hung from the roof until needed, were in the water along with some of the wire used to
hang these tubes. These obstructions would also tend to slow people down as they attempt to
29 FMSHRC 809

exit the working section. I find that the alternate escapeway was not in a safe condition and, as a
consequence, the passage of persons during an emergency could not be assured.
I reject Twentymile's argument that to "assure passage of anyone" only means that the
escapeway must be "passable" in the sense of"capable of being traveled." There is no question
that the alternate escapeway was capable of being traveled because Inspector Fleshman and Doug
Curtis walked through the cited area. It is clear from the language of the safety standard itself,
the purposes of the standard, and Commission precedent that an escapeway must be more than
just "passable." Maple Creek, at 560. Miners would "likely need to move expeditiously through
the area in order to seek safe passage away from what could be a dangerous underground
environment." Id. The water and other obstructions would likely cause the miners, especially
stretcher bearers or others assisting disabled persons, to slow their egress, to slip and fall, or to
drop the stretcher. Consequently, I find that the Secretary established a violation.

2. Sienificant and Substantial
Whether the violation was S&S is a closer question. A violation is classified as S&S "if
based upon the facts surrounding the violation, there exists a reasonable likelihood that the
hazard contributed to will result in an injury or illness of a reasonably serious nature." National
Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4
(January 1984), the Commission set out a four-part test for analyzing S&S issues. Evaluation of
the criteria is made assuming "continued normal mining operations." U.S. Steel Mining Co., 6
FMSHRC 1573, 1574 (July 1984). The question of whether a particular violation is S&S must
be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498
(April 1988). The Secretary must establish: (1) the underlying violation of the safety standard;
(2) a discrete safety hazard, a measure of danger to safety, contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of a reasonably serious nature. The Secretary is not
required to show that it is more probable than not that an injury will result from the violation.
U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June 1996).
The Secretary established the first two elements of the test. It is the third element of the
Mathies test that requires the most careful analysis. The Commission has held that judges should
ordinarily not rely on presumptions when analyzing the third element. Manalapan Mining Co.,
18 FMSHRC 1375, (Aug. 1996). Nevertheless, it would be too simplistic to hold that the
violation was not S&S because it was unlikely that there would have been an emergency
evacuation of the section or it was unlikely that the miners would need to use the alternate
escapeway in an emergency. The escapeway requirements in section 75.380 were promulgated to
make sure that both escapeways are safe and readily available in the event of an emergency
evacuation. As a consequence, I must analyze whether there was a reasonable likelihood that the
hazards contributed to by the violation would result in an injury in emergency situations.

29 FMSHRC 810

On one hand, the water was not so deep as to make the entry impassable. There is no
evidence that the inspector or Mr. Curtis became mired in muck as they walked through the
entry. Wire and ventilation tubing was present only at the extreme inby end of the alternate
escapeway just outby the auxiliary fans at 72+50. It only took a few minutes for these
obstructions to be moved to the side of the entry. The No. 1 entry is the alternate escapeway.
Miners would always use the No. 2 intake entry to evacuate the section, either in vehicles or on
foot, if that entry were available. The No. 2 intake entry was clear of water and other
obstructions. On the other hand, the No. 1 entry had ruts under the water that could not be seen.
Miners would have to meander through the entry to find those areas that were clear of water.
Inspector Fleshman tripped over some wire in the water as he inspected the entry. (Tr. 28). The
inspector saw water flowing under a stopping from the No. 2 entry into the No. 1. (Tr. 26).
I find that the preponderance of the evidence establishes that it was reasonably likely that
the hazards present in the cited areas of the No. 1 entry would contribute to an injury in the event
of an emergency evacuation. I rely on the testimony of Inspector Fleshman and Mr. Curtis in
reaching this conclusion. (Tr. 33-34, 129-30). When Inspector Fleshman was asked to discuss
the hazards that he believed were present in the escapeway, he testified:
The tripping hazards. The blocked escapeway. Basically, you
would have to move all the tubing out of the way coming out from
the section. Tripping, slipping, falls. Not being able to see where
you were walking in the muddy water if you are coming out of
there in haste. You need a clean place to take off, not just guess
where you are having to walk in the entry.
(Tr. 33). As the safety standard requires, I have taken into consideration the ability of miners to
transport an injured miner out of the No. 1 entry. The uneven footing that was hidden under the
murky water, as well as the other obstructions, would make it reasonably likely that someone
would trip and fall. Although miners may be able to mitigate the risk of injury through the
exercise of caution when exiting the mine, the ability of miners to walk cautiously through
hazardous areas in the event of an emergency is not part of the analysis under the third element of
the Mathies test. Eagle Nest, Inc., 14 FMSHRC 1119, 1123(July1992). I also find that it is
reasonably likely that any injury would be of a reasonably serious nature. The injuries would
range from a twisted ankle to broken bones. I reject Inspector Fleshman's conclusion, set forth in
the termination notice, that the conditions presented a drowning hazard. It was highly unlikely
that anyone would drown in the No. 1 entry in the event of an emergency evacuation.

3. Unwarrantable Failure
I find that the Secretary did not establish that the violation was the result ofTwentymile's
unwarrantable failure to comply with the safety standard. 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

29 FMSHRC 811

"reckless disregard," "intentional misconduct," "indifference," or the "serious lack of reasonable
care." Id. 2004-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC at 193-94. A number of
factors are relevant in determining whether a violation is the result of an operator's
unwarrantable failure, such as the extensiveness of the violation, the length of time that the
violative condition has existed, the operator's efforts to eliminate the violative condition,
whether an operator has been placed on notice that greater efforts are necessary for compliance,
the operator's knowlaj.ge of the existence of the violation, and whether the violation is obvious
or poses a high degree of danger. Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994);
Windsor Coal Co., 21 FMSHRC 997, 1000 (Sept. 1999); Consolidation Coal Co., 23 FMSHRC
588, 593 (June 2001).
Twentymile knew that the syncline presented a challenge because water tended to
accumulate in the area. When it developed the entries in each section that crossed the syncline, it
blasted a hole in the floor at a number of crosscuts and installed French drains. It removed the
water from the drains using air pumps that continue to operate even when the power is off during
a power move. Such power moves are required every three or four days when a longwall section
is being developed. Twentymile installed a series of shark tanks with electric pumps in them to
remove any water that was not being removed by the system of French drains. When excess
water was discovered in the No. 1 entry on March 17, an additional electric pump was brought in
and installed to remove the water.
The Secretary contends that the extra pump that was brought in was raised up too high
with the result that it was "sucking air" rather than removing water. The pump was not installed
in a sump, but was placed on the floor of the entry. I credit the testimony ofTwentymile's
witnesses that this electric pump was removing water from the No. 1 entry. (Tr. 93-94, 109-110,
121-22).
I find that the evidence establishes that the shark tank at 42+00 was not operating
properly. Shift Foreman Allen Meckley wrote in his notes on March 18 "Shark Tank 42 running
over - pump kicking power." (Tr. 105-06; Ex. R-2). He testified that he asked the fire boss to
check the pump out and reset the power. (Tr. 106). The improperly operating pump at 42+00
allowed water to recirculate back to the area around 65+00. The shift foreman believed that the
problem with the shark tank had been corrected.
I find that Twentymile' s conduct amounted to ordinary negligence rather than aggravated
conduct. It was not ignoring the water problem created by the syncline and it was not indifferent
to the problem. It had taken several measures to remove the water from the mine, as described
above. If the shark tank pump at 42+00 had not continued to kick out, it is likely that most if not
all of the water would not have been present on March 19. In looking at the factors set forth in
Mullins & Sons Coal, I find that the evidence establishes that the condition only existed for about
two days. (Tr. 97, 121, 127-28, 155). Twentymile had knowledge of the cited condition and had
been taking steps to remove the water, as described above. On direct examination, Inspector
Fleshman testified that there was water present from 'just outby crosscut 65 to just outby
29 FMSHRC 812

crosscut 72+50" for a distance of700 feet. (Tr. 24; Ex. J-2). The evidence establishes, however,
that water was mostly present around 65 and outby the auxiliary fans. (Tr. 54, 122-23). The No.
1 entry between these two locations was dry with water in some locations. Inspector Fleshman
did not measure the depth of the water in these areas. As a consequence, I find that the violative
condition was not particularly extensive. As described above, Twentymile had undertaken
several initiatives to eliminate or reduce the water problem in the area of the syncline.
The Secretary contends that Twentymile had been put on notice that greater efforts were
necessary for compliance. I disagree. The Secretary points to a citation that had been issued two
years earlier when there was 16 inches of water in the No. 1 entry of the 16 Right development
section. (Ex. G-3). Twentymile upgraded its pumping systems after that citation was issued.
She also relies on the discussion between Inspector Fleshman and the mine's safety director at
the onset of the instant inspection during which he informed the company that escapeways were
going to be given "heightened scrutiny" during MSHA inspections. (Tr. 17-18, 154-55). The
inspector started his inspection two to three days before he issued the citation. This notice did
not put Twentymile on notice that greater efforts were needed to comply with the standard.
Inspector Fleshman simply told Twentymile that MSHA would be looking more closely at
escapeways as a result of the Sago accident. Finally, the Secretary relies on muddy conditions
that the inspector observed in the 19 Right gate road earlier in the inspection. (Tr. 18-19). He
advised the company's safety director at that time that mud can impede passage during an
emergency evacuation. Again, the muddy conditions and the inspector's statement did not put
Twentymile on notice that greater efforts were necessary in the 20 Right section.
Although the violation was present for anyone to see, mine management genuinely
believed that it had taken steps to eliminate the hazard. Although I determined that the violation
was S&S, it did not pose a high degree of danger to miners. Violations of the standard often
involve situations in which 16 inches or more of water is present or there is a blockage in the
escapeway. In this instance, there was an S&S violation of the standard, but I do not find that the
facts presented "reckless disregard," "intentional misconduct," "indifference," or a "serious lack
of reasonable care" on the part ofTwentymile management.

III. APPROPRIATE CIVIL PENALTY
Section l lO(i) of the Mine Act sets out six criteria to be considered in determining an
appropriate civil penalty for a violation. The parties stipulated that Twentymile is a large
operator. MSHA issued about 271 citations and orders at the Foidel Creek Mine in the two years
preceding March 19, 2006. The violation was abated in good faith. The penalty assessed in this
decision will not have an adverse effect on Twentymile's ability to continue in business. My
findings on gravity and negligence are discussed above. The penalty was reduced because I
determined that the violation was the result ofTwentymile's moderate negligence rather than its
unwarrantable failure to comply with the safety standard. In addition, as discussed above, I find
that the violation was not quite as serious as Inspector Fleshman believed it to be.

29 FMSHRC 813

IV. ORDER
Based on the criteria in section l IO{i) of the Mine Act, 30 U.S.C. § 820(i), I assess a
penalty of$3,000.00 for this violation. Accordingly, Citation No. 7636848 is MODIFIED to a
section 104(a) significant and substantial citation with moderate negligence. Twentymile Coal
Company is ORDERED TO PAY the Secretary of Labor the sum of $3,000.00 within 30 days
of the date of this decfaion.

Richard W. Manning
Administrative Law Judge

Distribution:

Kristi L. Floyd, Esq., Office of the Solicitor, U.S. Department ofLabor,1999 Broadway, Suite
1600, Denver, CO 80202-5710 (Certified Mail)

R. Henry Moore, Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1340, 401 Liberty
Avenue, Pittsburgh, PA 15222 (Certified Mail)

RWM

29FMSHRC 814

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

September 14, 2007
CARMEUSE LIME AND STONE, INC.,
Contestant

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

CONTEST PROCEEDINGS
Docket No. KENT 2006-158-RM
Citation No. 6108736; 01/31/2006
Docket No. KENT 2006-159-RM
Citation No. 6108738; 02/01/2006
Docket No. KENT 2006-186-RM
Order No. 6108751; 0211512006
Docket No. KENT 2006-206-RM
Citation No. 6108752; 02/15/2006
Docket No. KENT 2006-253-RM
Citation No. 6108779; 04/1712006
Plant Black River Operation
Mine ID 15-05484
Docket No. KENT 2006-254-RM
Citation No. 6109486; 04/12/2006
Docket No. KENT 2006-255-RM
Citation No. 6109487; 04/12/2006
Docket No. KENT 2006-256-RM
Citation No. 6109488; 04/12/2006
Underground Black River Operation
Mine ID 15-00062

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

CNIL PENALTY PROCEEDING
Docket No. KENT 2006-318-M
A. C. No. 15-05484-87032

v.

29FMSHRC 815

CARMEUSE LIME & STONE, INC.,
Respondent

Docket No. KENT 2006-396-M
A. C. No. 15-05484-89897
Plant Black River Operation
Docket No. KENT 2006-397-M
A. C. No. 15-00062-89894
Underground Black River Operation

DECISION
Appearances: Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for Petitioner;
R. Henry Moore, Esq., Jackson Kelly, PLLC, Pittsburgh, Pennsylvania, for
Respondent.
Before:

Judge Hodgdon

These consolidated cases are before me on Notices of Contest and Petitions for
Assessment of Civil Penalty brought by Carmeuse Lime & Stone, Inc., against the Secretary of
Labor, and by the Secretary of Labor, acting through her Mine Safety and Health Administration
(MSHA), against Carmeuse Lime & Stone, pursuant to section 105 of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 815. The company contests the issuance of two orders
alleging violations of the Act and six citations alleging violations of the Secretary's mandatory
health and safety standards. The petitions allege one violation of the Act and six violations of the
Secretary's mandatory health and safety standards and seek penalties of$3,674.00. A trial was
held in Covington, Kentucky. For the reasons set forth below, I vacate one order and three
citations, modify one order and one citation, affirm two citations and assess penalties of $511.00.

Settled Matters
At the beginning of the trial, the parties announced that they had settled one of the orders
and four of the citations. (Tr. 9-10.) The Respondent agreed to pay the $291.00 penalty
proposed for Citation No. 6108752, in Docket Nos. KENT 2006-206-RM and KENT 2006-318M, which was issued in connection with "imminent danger'' Order No. 6108751, issued under
section 107(a) of the Act, 30 U.S.C. § 817(a), and contested in Docket No. KENT 2006-186-RM.
(Tr. 9.) Order No. 6108751 will be vacated. 1 Citation No. 6108736, in Docket Nos. KENT
2006-158-RM and KENT 2006-396-M, will be modified by deleting the "significant and
substantial" designation and reducing the penalty from $247.00 to $60.00. (Tr. 10.) The

1

Although it is not clear from the transcript, Counsel for the Secretary has confirmed in a
September 12, 2007, letter that vacation of this 107(a) order was part of the settlement.
29 FMSHRC 816

Respondent agreed to pay the $60.00 penalty proposed for Citation No. 6108779, in Docket Nos.
KENT 2006-253-RM and KENT 2006-396-M. (Tr. 10.) Finally, the Secretary agreed that
Citation No. 6109488 in Docket Nos. KENT 2006-256-RM and KENT 2006-397-M will be
vacated. (Tr. 10.) The terms of the agreement will be carried out in the order atthe close of this
decision.

Back1round
Canneuse Lime & Stone operates the Black River underground limestone mine and plant
on the Ohio River, south of Cincinnati, in Pendleton County, Kentucky. Limestone is extracted
from the mine, using the room and pillar method, and processed into chemical lime at the plant.
It is a large operation, covering about 100 acres. The underground mine has ceilings 25 feet tall
and headings 50 feet wide. About 90 miners work in the underground mine and approximately
120 miners work at the plant.
MSHA Inspector Richard L. Jones was inspecting the plant on February 1, 2006, when he
observed seven employees of A&T Industrial Services on the site. A&T had been contracted by
Canneuse to do clean-up work at various locations around the plant, using a vacuum truck to do
the work. The A&T employees provided Jones with MSHA Forms 5000-23, "Certificate of
Training," when he requested them. However, he did not recognize the name of the person who
had signed the forms as having given the training or the location where the training had been
given. The inspector called the person who had given the training and determined that the
training had been given under Part 46 of the regulations, 30 C.F.R. § 46.1 et seq., rather than Part
48, 30 C.F.R. § 48.1 et seq., and that the instructor had not been certified by MSHA. 2
Consequently, he issued an order under section 104(g)(l) of the Act,3 30 U.S.C. § 814(g)(l), to
A&T. He also issued Citation No. 6108738, under section 104(a), 30 U.S.C. § 814(a), to

2

Part 46 governs "Training and Retraining of Miners Engaged in Shell Dredging or
Employed at Sand, Gravel, Surface Stone, Surface Clay, Colloidal Phosphate, or Surface
Limestone Mines." Part 48, "Training and Retraining of Miners," governs all other miners
whether working in underground mines, surface mines, or surface areas of underground mines. It
is not disputed that A&T's employees should have been trained under Part 48.
3

Section 104(g) provides that:

(1) If, upon any inspection or investigation ... the Secretary or an
authorized representative shall find employed at a coal or other mine a miner who
has not received the requisite safety training .. ., the Secretary ... shall issue an
order under this section which declares such miner to be a hazard to himself and
to others, and requiring that such miner be immediately withdrawn from the coal
or other mine, and be prohibited from entering such mine until an authorized
representative of the Secretary determines that such miner has received the
training required ....
29 FMSHRC 817

Carmeuse. On March 2, 2006, the citation was modified to a 104(g)(l) order.
The basic facts.with regard to the two remaining citations are not in dispute and the
parties have stipulated to most of them. At approximately 6:00 a.m. on Monday, April 10, 2006,
a crew of 12 Carmeuse hourly employees, a supervisor, Shane Tuel, and an engineer proceeded
underground by way of the slope car. They were close to the bottom of the slope when they
smelled an odor. They noticed soot in the travelway of the slope. Without investigating further,
they decided to leave the mine and reached the surface about 6: I 0 a.m.
Once on the surface, Tuel contacted Greg Black, the Mine Production Superintendent, at
his home. Black in turn contacted Gary Greene, the Mine Maintenance Superintendent, at his
home and they agreed to proceed to the mine. They arrived at approximately 7 :30 a.m.
At about 8:00 a.m., Black, Danny Willis and Trevor Tallent, all members of the Black
River mine rescue team, checked the quality of the air exiting the mine at the slope portal and
proceeded underground. They were not wearing mine rescue breathing apparatus. They took air
quality readings at the bottom of the slope. They then traveled by tractor to the 7N transformer
were they again took air quality readings. The only difference in the three air quality readings
was that the reading for CO had increased from 5 parts per million (ppm) at the portal and the
foot of the slope to 12 ppm at the transformer. They returned to the surface at approximately
9:00 a.m.
The mine rescue team consisting of Greg Black, Nick Brewer, Jerry Butler, Danny Willis
and Garland Case then organized to go underground. A command base was set up on the surface
at 9:15 a.m. The team proceeded underground at 9:20 a.m. wearing mine rescue apparatus.
Alane Preston, the Safety and Loss Prevention Manager, called MSHA to advise them
what was occurring at 9:33 a.m. At 10:00 a.m., Don Ratliff, the MSHA Field Office SuperV:isor,
called the mine and issued a verbal 103(k) order requiring the withdrawal of the rescue team
from underground. 4 The team exited the mine after issuance of the order.
MSHA Inspector Thomas Galbreath was sent to the mine to investigate the situation,
arriving at about 1:00 p.m. There, he met with Inspector Jones, who was already at the mine
conducting an inspection, and Carmeuse officials. A mine exploration plan was drawn-up by
Carmeuse and the mine rescue team again proceeded underground at 2:40 p.m. At about 3:30
p.m., the team reached the area of the P-19 conveyor where there had been a fire. The belt on the
conveyor had burned and several small areas of material were still smoldering and were put out
by fire extinguishers.
4

Section 103(k), 30 U.S.C. § 813(k), provides, in pertinent part, that: "In the event of
any accident occurring in a coal or other mine, an authorized representative of the Secretary,
when present, may issue such orders as he deems appropriate to insure the safety of any person in
the coal or other mine .... "
29 FMSHRC 818

The last crew in the mine prior to April 10, 2006, at 6:00 a.m., was a maintenance crew
which left the mine at 4:00 a.m. on Sunday, April 9. They were welding a belt structure and
sparks from the welding apparently ignited the belt, although there was no evidence of fire when
the maintenance crew left the area.

As a result of this incident, Inspector Galbreath issued Citation Nos. 6109486 and
6109487 to Carmeuse under section 104(a) of the Act. They, along with Citation No. 6108738,
were contested at the trial. The citations will be discussed in the order that they were issued.
Findin2s of Fact and Conclusions of Law
Citation No. 6108738
This citation alleges a violation of section 48.25 of the Secretary's regulations, 30 C.F.R.
§ 48.25, in that:
Seven untrained contractor employees were allowed to
work on this property because the operator did not conduct a
complete search to assure the required training had been
completed. The operator had no effective system in place to
research the validity and completeness of the training that is
required before allowing contractor employees to work. These
contractor employees had been hired to perform cleanup work in
the plant. The contractor employees produced 5000-23 training
records, but the person that had conducted the training was not an
MSHA certified trainer, and the training plan used was 30 C.F.R.
Part 46 type.
(Govt. Ex. 1.) Section 48.25 requires that: "Each new miner shall receive no less than 24 hours
of training as prescribed in this section. Except as prescribed in this paragraph, new miners shall
receive this training before they are assigned to work duties."

As a threshold matter, the operator argues that the violation was properly issued under
section 104(a) of the Act, and should not have been modified to allege a violation under section
104{g). The Commission has held that a 104(g) order must name the miners affected by the
order so that it can later be determined whether the named miners had received the proper
training to allow them to re-enter the mine and it must be issued "on the spot during or
immediately following the inspection and provide for immediate withdrawal of the miners in
question." Twentymile Coal Co., 26 FMSHRC 666, 674 (Aug. 2004), rev'd on other grounds
411F.3d256 (D.C. Cir. 2005). Here the order meets neither of these requirements. Thus, it
appears the operator is correct. Apparently recognizing this, the Petitioner stated in her brief
that: "The Secretary would not oppose a modification of the violation to a 104(a) citation."
(Sec. Br. at 9.) Consequently, I will modify the order back to a 104(a) citation.
29 FMSHRC 819

It is undisputed that the seven A&T employees had not been trained as required under
section 48.25. Nevertheless, the Respondent asserts that it should not be charged with this
violation because it had "a more than adequate system in place to assure that its contractors had
the MSHA-required training under 30 CFR. Part 48." (Resp. Br. at6.)

Gary Pelech, a Canneuse maintenance planner, met with Todd Tallon, A&T President, on
November 16, 2005, to discuss the work to be done and advised him that the workers had to be
trained under Part 48. ·(Tr. 47-48.) In addition, Pelech gave Tallon a written document setting
out the work to be done and that the workers be Part 48 trained. (Resp. Ex. 12.) On January 11,
2006, Pelech provided site-specific training to six of the A&T employees and required them to
show him their MSHA 5000-23 forms showing their previous training. (Tr. 49-52.) The seventh
employee was trained in the same manner on February 1, 2006. (Tr. 53.) When the seven
employees signed in at the mine on February 1, they signified by a check mark on the sign-in
sheet that they had been site-specific trained and MSHA Part 48 trained. (Resp. Ex. 13.)
It appears that Canneuse had taken reasonable steps to insure that A&T's employees were
properly trained. However, the fact remains that they were not. The Act imposes strict liability
on mine operators for violations regardless of fault, even if the violation was committed by an
independent contractor, such as A&T. Intern. Union, United Mine Workers v. FMSHRC, 840
F.2d 77, 83-84 (D.C. Cir. 1988); Extra Energy, Inc., 20 FMSHRC 1, 5-6 (Jan. 1997); Bulk
Transportation Services, Inc., 13FMSHRC1354, 1359 (Sept. 1991). Moreover, it is within the
Secretary's discretion whether or not to cite the independent contractor, the operator, or both for
the violation. Secretary ofLabor v. Twentymile Coal Co., 456 F.3d 151 (D.C. Cir. 2006.)
Finally, operators have the overall compliance responsibility for insuring that independent
contractors comply with the standards and regulations applicable to the work being performed by
them in the operator's mine. Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 538 (D.C.
Cir. 1986); Mingo Logan Coal Co., 19 FMSHRC 246, 250 (Feb. 1997). Accordingly, I conclude
that the Respondent violated the regulation as alleged.

Significant and Substantial
The inspector found this violation to be "significant and substantial." A "significant and
substantial" (S&S) violation is described in section 104(d)(l) of the Act, 30 U.S.C. § 814(d)(l),
as a violation "of any mandatory health or safety standard ... 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 Division, National Gypsum
Co., 3 FMSHRC 822, 825 (Apr. 1981)
I find that the "significant and substantial" designation is not applicable to this violation.
As section 104(d)( 1) plainly states, only violations of a "mandatory health or safety standard" can
be S&S. Section 3(1) of the Act, 30 U.S.C. § 802(1), defines "mandatory health or safety
29 FMSHRC 820

standard" as ''the interim mandatory health or safety standards established by titles II or ill of the
Act, and the standards promulgated pursuant to title I of this Act." Training and retraining of
miners is not included in either title II or ill of the Act, nor is it included in the Secretary's
mandatory health and safety standards promulgated pursuant to title I of the Act.
The mandatory health and safety standards are set out in Parts 56, 57, 58, 62, 70, 71, 72,
75, 77 and 90 of the regulations and are clearly identified as such. 5 In contrast, section 48.21, 30
C.F.R. § 48.21, states: "'The provisions of this subpart B set forth the mandatory requirements
for submitting and obtaining approval of programs for training and retraining miners working at
surface mines and surface areas of underground mines."
The U.S. Court of Appeals for the District of Columbia Circuit has held that the Act
"does not authorize the FMSHA to designate as 'significant and substantial' a violation of a
regulation such as 50.l l{b) that is not a mandatory health or safety standard." Cyprus Emerald
Resources v. FMSHRC, 195 F.3d 42, 45 (D.C. Cir. 1999). Section 48.25 is a regulation such as
section 50.ll(b), 30 C.F.R. § 50.ll{b), that is not a mandatory health or safety standard.
Accordingly, I conclude t4at the violation was not "significant and substantial" and will modify
the citation.
Citation No. 6109486
This citation alleges a violation of section 50.10, 30 C.F.R. § 50. l 0, because:
The mine operator did not immediately contact MSHA
when evidence of a mine fire was discovered and the mine was
evacuated. The supervisor and the day shift maintenance crew
traveled down the slope at approximately 0600 on 4/10/2006. The
supervisor immediately evacuated the crew from the mine, upon
evidence of a fire, at approximately 50 foot from the bottom of the
slope. MSHA was not notified until a phone call was made to Don
Ratliff, Field Office Supervisor, in Lexington, Ky. at 0933. The
mine had been evacuated at approximately 0615.
5

30 C.F.R. § 56. l ("This part 56 sets forth mandatory safety and health standards for each
surface metal or nonmetal mine .... "); 30 C.F.R. § 57.l; 30 C.F.R. § 58.l ("The health
standards in this part apply to all metal and nonmetal mines."); 30 C.F .R. § 62.100 ("This part
sets forth mandatory health standards for each surface and underground metal, nonmetal, and
coal mine ...."); 30 C.F~R. § 70.l; 30 C.F.R. § 71.1; 30 C.F.R. § 72.1 ("The health standards in
this part apply to all coal mines."); 30 C.F.R. § 75.1 ("This part 75 sets forth safety standards
compliance with which is mandatory in each underground coal mine ...."); 30 C.F.R. § 77.1; 30
C.F.R. § 90.l ("This Part 90 is promulgated pursuant to section 101 of the Act .... "). Where the
introductory language of a Part is not set out, it is essentially the same as the language in the Part
preceding it.
29 FMSHRC 821

{Govt. Ex. 10.) Section 50.10 requires, in pertinent part, that: "If an accident occurs, an operator
shall immediately contact the MSHA District Office having jurisdiction over the mine.... The
operator shall contact MSHA as described at once without delay and within 15 minutes." For the
purposes of this violation, section 50.2{h){6), 30 C.F.R. § 50.2{h){6), defines "accident" as: "An
unplanned mine fire not extinguished within 30 minutes of discovery."
At approximately 6:00 a.m. on Monday, April I 0, 2006, Shane Tuel and his crew went
underground in the slope car. {Jt. Ex. l, Stip. 30.) They were close to the bottom of the slope
when they smelled an odor and noticed soot in the travelway of the slope. {Jt. Ex. l, Stip. 31.)
As a result, they went back out of the mine.
Inspector Thomas Galbreath testified that he issued Citation No. 6109486 because:
[T]he evidence of a fire was discovered at approximately 6 a.m. by
[the] maintenance crew going in, and at that time the maintenance
supervisor evacuated the mine, and at that time there was evidence
of fire, unplanned fire, and it became reportable. And it was not
reported in the proper length of time. If he had got to the surface at
6:15 - an unplanned fire, you would have 30 minutes to extinguish
it. If he had that time to extinguish it, it would have been 6:30
which, 15 minutes to report it, which would have been 6:45, and
our Lexington field office was not called with the information until
approximately 9:33.
{Tr. 110-11.)
The evidence in this case does not support a violation of section 50.10. The regulation
requires that a fire be discovered, not be extinguished within 30 minutes and MSHA not be
notified of the fire within 15 minutes of it not being extinguished. None of these occurred. A
fire was not discovered at the time the inspector concluded that it had been. The operator was
investigating the cause of the odor and soot, when MSHA ordered that the mine be evacuated.
And when the fire was finally discovered, it was extinguished within 30 minutes.
The term "mine fire" is not defined in the regulations. "Fire" is defined as "the
phenomenon of combustion as manifested in light, flame, and heat and in heating, destroying and
altering effects." Webster's Third New International Dictionary (Unabridged) 854 {2002 ed.). It
has been defined in another case involving this regulation as "a rapid, persistent chemical change
that releases heat and light and is accompanied by flame, especially the exothermic oxidation of a
combustible substance. American Heritage Dictionary ofthe English Language, 62 {4th ed.
2006)." Phelps Dodge Tyrone, Inc., 29 FMSHRC---> slip op. at 6, No. CENT 2006-212-RM
{July 25, 2007) {ALJ). "Mine," of course, is defined in section 3{h){l) of the Act, 30 U.S.C.
§ 802{h){l ), and for the purposes of this decision is not in issue.

29 FMSHRC 822

Significantly, neither definition of "fire" includes an "odor" or "soot." Clearly, Tuel did
not "discover'' a "fire," with light, flame and heat, before he decided to return to the surface with
his crew. While his actions were certainly prudent, all that his information provided the operator
was that there might be a problem in the mine that needed to be investigated. Among the
possibilities that the company management considered before going back into the mine were that
a piece of diesel equipment may have been left on in the mine, as had happened previously, or
there was some sort of fire. (Tr. 187.)
The Commission has held with regard to this regulation that:
Although the regulation requires operators to report
immediately certain "accidents" as defined in section 50.2(h), it
must contemplate that operators first determine whether particular
events constitute reportable "accidents" within that definition.
Section 50. l 0 therefore necessarily accords operators a reasonable
opportunity for investigation into an event prior to reporting to
MSHA. Such internal investigation, however, must be carried out
by operators in good faith without delay and in light of the
regulation's command of prompt, vigorous action. The
immediateness of an operator's notification under section 50.10
must be evaluated on a case-by-case basis, taking into account the
nature of the accident and all relevant variables affecting reaction
and reporting.

Consolidation Coal Co., 11FMSHRC1935, 1938 (Oct. 1989).
The citation in this case was issued during a period when an emergency temporary
standard (ETS) had been issued by the Secretary. 71 Fed. Reg. 12252 (March 9, 2006). Among
the changes made was the addition of a definition of "immediately'' to section 50.10 as being "at
once without delay and within 15 minutes." Id. at 12269. In the preamble to the regulation,
MSHA essentially adopted the Commission's holding above, when it stated:
The ETS does not change the basic interpretation of
§ 50.10. By the terms of the provision, an operator is required to
notify MSHA only after determining whether an "accident" as
defined in existing paragraph 50.2(h) has occurred. This affords
operators a reasonable opportunity to investigate an event prior to
notifying MSHA. That is, mine operators may make reasonable
investigative efforts to expeditiously reach a determination.

Id. at 12260.
In conformance with these guidelines, Black, Willis and Tallent went into the mine to
29 FMSHRC 823

investigate the situation. Prior to entering the mine they checked the air coming from the slope
portal; nothing indicated that a fire was occurring. (Jt. Ex. 1, Stip. 35.) When they reached the
shop to see if any of the diesel equipment was running, the air quality readings were normal. (Jt.
Ex. l, Stip. 36, Tr. 196.) Not finding any equipment running, they continued on. When they
reached the 7 North transformer they got a CO reading of 12 ppm. (Jt. Ex. Stip. 36.) They were
not sure what this meant, so they headed to the fresh air side of the mine. (Tr. 198.) At that
point, Black decided that since a mine rescue team exercise had already been planned for that
day, it would be good training to complete the search of the mine as a mine rescue team training
exercise and they returned to the surface. (Tr. 199.)
The five man mine rescue team entered the mine at 9:20 a.m., wearing mine rescue
apparatus. (Jt Ex. 1, Stip. 39.) Meanwhile, "to be cautious/' Alane Preston called the MSHA
District Office at 9:33 a.m. and spoke to Don Ratliff, telling him that they" were being
conservative about it," that they ''had not found a fire or anything," but "had some kind of soot in
the air" and ''were investigating" it. (Jt. Ex. 1, Stip. 41, Tr. 250-51.) Shortly thereafter, Ratliff
called back and issued a "K" order, ordering the mine to be evacuated.
Under the guidance of MSHA Inspectors Galbreath and Jones, the mine was explored in
the afternoon in accordance with a plan required by MSHA. At about 3:30 p.m., the team
reached the P-19 conveyor where it was apparent that the 120 foot conveyor belt had burned.
There were three areas of smoldering material which were immediately extinguished with fire
extinguishers. It was believed that the belt was ignited by slag from cutting and welding
operations in the area that ended about 3:00 a.m. on Sunday morning. (Tr. 212.)
Clearly, there was no evidence of a mine fire when Tuel left the mine. Black and his men
were properly investigating the cause of the soot and odor when they left the mine to bring in the
mine rescue team. The mine rescue team was properly investigating the situation when they
were ordered to leave the mine. Nor does it appear that the company was not expeditiously
trying to discover what the cause of the soot and odor were. Further, the air readings that they
were taking did not indicate that anything serious was occurring. Lastly, when the cause of the
soot and odor was finally discovered, what little fire there was, was putout in significantly fewer
than 30 minutes. Accordingly, I conclude that the Respondent did not violate section 50.10 and
the citation will be vacated.
Citation No. 6109487
This citation alleges a violation of section 57.4362, 30 C.F.R. § 57.4362, in that:
Following evacuation of the mine at approximately 0615 on
04/10/2006, because of a fire emergency, three mine rescue
members entered the mine at approximately 0800 to explore the
mine. These miners were not wearing any form of mine rescue
apparatus and were in advance of the fresh air base. This mine has

29 FMSHRC 824

three means of exhaust and only one exhaust (mine portal) was
tested for atmospheric conditions. They were underground until
approximately 0900. Mine rescue members were exposed to the
possibility of toxic gases by not knowing the conditions
underground. This hazard could cause a fatal accident. This mine
has a fully equipped mine rescue team that is trained in all aspects
of mine exploration.
(Govt. Ex. 11.) Section 57.4362 provides that: "Following evacuation of a mine in a fire
emergency, only persons wearing and trained in the use of mine rescue apparatus shall participate
in rescue and firefighting operations in advance of the fresh air base."
The Secretary has failed to establish this violation. While there may have been an
evacuation of the mine, it did not occur in a "fire emergency," no persons were participating "in
rescue and firefighting operations," and no one was "in advance of the fresh air base."
"Fire emergency" is not defined in the regulations. However, it stands to reason that for
there to be a fire emergency, there must be a fire. As has already been seen in the discussion of
the previous citation, when Black and the others entered the mine at 8:00 a.m., there was no fire.
Indeed, fire was only one of several possibilities that they considered, when they entered the
mine to investigate the cause of the soot and odor.
Further, in the preamble to this regulation, MSHA stated that: "[O]nce a fire emergency
has been declared and a fresh-air base has been established, mine rescue apparatus must be worn
as a protection against smoke, fumes, and toxic products of fire." 50 Fed. Reg. 4,022, 4,028
(1985) (emphasis added). As the Commission has observed, the preamble and the regulation
envision a formal procedure of declaring a fire emergency and establishing a fresh air base.
Gouverneur Talc Co., 20 FMSHRC 129, 135 (Feb. 1998). Here, no fire emergency had been
declared.
Next, it is plain from the facts of this case that the three men were not participating in
rescue and firefighting operations when they went into the mine to investigate the situation.
Finally, no fresh air base had been established, so no miner could have been in advance of
it. The Secretary grounds its claim that a fresh air base had been established on the conclusion of
Inspector Galbreath that the fresh air base was located "at the hoist house." (Tr. 121.) Galbreath
offered no other evidence as to how he concluded that a fresh air base was ever established, let
alone that one was set-up prior to the three men entering the mine at 8:00 a.m. On the other
hand, Sammy Linville, a Carmeuse kiln operator and rescue team member, testified, as a witness
for the Secretary, that ''when the three guys came out and we was in a room, we said that the
hoist house would be considered the fresh air base," which indicates that if one were established,
it was not until after the three men came out of the mine. (Tr. 160.) Black testified that a fresh
air base was not "established any time on April 10." (Tr. 217.) That Black was correct is

29 FMSHRC 825

supported by the fact that the parties stipulated that a "command base" was set up on the surface
at 9:15 a.m. (Jt. Ex. 1, Stip. 40.)
Certainly, a fresh air base, as commonly understood, was not established. A "fresh air
base" is defined as: "An underground station, located in the intake airway, that is used by rescue
teams during underground fires and rescue operations. The base should be as close to the fire as
safety will permit, adequately ventilated, and in constant touch with the surface by telephone."
Am. Geological Institute, Dictionary ofMining, Mineral, and Related Terms, 223 (2d ed. 1997).
As Commissioner Jordan pointed out in her concurring opinion in Gouverneur Talc, "[a]ccording
to this definition, therefore, the regulation contemplates the formal establishment of a properly
ventilated underground area to demarcate the boundary beyond which apparatus must be used."
20 FMSHRC at 137 (footnote omitted). Obviously, nothing like that was established here.
In conclusion, at least three of the four elements of this regulation were not proven by the
Secretary. Accordingly, I conclude that the company did not violate section 57.4362 and will
vacate the citation.

Civil Penalty Assessment
The Secretary has proposed a penalty of$1,769.00 for Citation No. 6108738. However,
it is the judge's independent responsibility to determine the appropriate amount of penalty in
accordance with the six penalty criteria set out in section 11 O(i) of the Act, 30 U.S.C. § 820(i).
Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151 (7th Cir. 1984); Wallace Brothers, Inc.,
18 FMSHRC 481, 483-84 (Apr. 1996).
In connection with the penalty criteria, the parties have stipulated that Black River Plant
employed approximately 120 people who worked 247,291 hours in 2005. (Jt. Ex. 1, Stips. 3 and
4.) From this, I find that the operator is a medium to large size business. The parties also
stipulated that the penalties will not affect Carmeuse's ability to remain in business, and I so find.
(Jt. Ex. 1, Stip. 14.) From the Assessed History Violation Report and the allied papers, I find that
the operator has a slightly lower than average history of previous violations. (Govt. Ex. 14.) I
further find from the citation that the company demonstrated good faith in abating the violation.
With regard to gravity, I agree with the inspector that the failure to insure that contract
employees are properly trained could have serious consequences. However, in this case it did not
because the employees had received site specific training, had received Part 46 training and were
not working in or around Carmeuse employees, but were cleaning up lime dust around the plant
area. Therefore, I find that the violation was not very serious.
Finally, I do not agree with the inspector that the operator was moderately negligent in
connection with this violation. The company had made reasonable, although not exhaustive,
efforts to insure that the A&T employees were properly trained. Consequently, I find the
operator's level of negligence for this violation was low and will modify the citation accordingly.

29 FMSHRC 826

Talcing all of these factors into consideration, I conclude that a penalty of $100.00 is
appropriate for Citation No. 6108738. I further find that the penalties agreed to for the settled
citations are appropriate under the penalty criteria.

Order
ht view of the above, Citation No. 6108736, in Docket Nos. KENT 2006-158-RM and
KENT 2006..396-M, is ·MODIFIED, as agreed by the parties, by deleting the "significant and
substantial" designation and is AFFIRMED AS MODIFIED; Order No. 6108738, in Docket
Nos. KENT 2006-159-RM and KENT 2006-396-M, is MODIFIED from a 104(g) order to a
104(a) citation and by deleting the "significant and substantial" designation and is AFFIRMED
AS MODIFIED; Order No. 6108751, in Docket No. KENT 2006-186-RM, is VACATED, as
agreed by the parties; Citation No. 6108752, in Docket Nos. KENT 2006-206-RM and KENT
2006-318-M, is AFFIRMED, as agreed by the parties; Citation No. 6108779, in Docket Nos.
KENT 2006-253-RM and KENT 2006-396-M, is AFFIRMED, as agreed by the parties; Citation
No. 6109486, in Docket Nos. KENT 2006-254-RM and KENT 2006-397-M, is VACATED;
Citation No. 6109487, in Docket Nos. KENT 2006-255-RM anCi KENT 2006-397-M, is
VACATED; and Citation No. 6109488, in Docket Nos. KENT 2006-256-RM and KENT 2006397-M~ is VACATED, as agreed by the parties.
Canneuse Lime and Stone, Inc., is ORDERED TO PAY a civil penalty of $511.00
within 30 days of the date of this order.

d~K~
T. Todd Ho{g;:r,,_
Administrative Law Judge
Distribution:
R. Henry Moore, Esq., Jackson Kelly, PLLC, Gateway Center, Suite 401 Liberty Ave.,
Pittsburgh, PA 15222

Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219

/sr

29 FMSHRC 827

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

September 26, 2007
RS & W COAL COMPANY,
Contestant

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

CONTEST PROCEEDINGS
Docket No. PENN 2007-361-R
Order No. 7010193; 09/13/2007
Docket No. PENN 2007-362-R
Order No. 7010194; 09/13/2007
Docket No. PENN 2007-363-R
Citation No. 7010195; 09/13/2007
RS & WDrift
Mine ID 36'-01818

DECISION
Appearances: Adam F. Welsh, Esq., U.S. Department of Labor, Philadelphia, Pennsylvania,
on behalf of the Respondent
Adele L. Abrams, Esq., Diana R. Schroeher, Esq., Beltsville, Maryland, on
behalf of the Contestant
Before:

Judge Barbour

In these contest proceedings brought pursuant to section 105(d) of the Federal Mine
Safety and Health Act of 1977 (30 U.S.C. § 815(d)) (the "Mine Act" or "Act"), RS&W Coal
Company ("RS&W" or "the company") challenges the validity of two orders of withdrawal and
one citation issued on September 13, 2007, at its RS&W Drift Mine. 1 Because its mine was

1

The company contests Section 104(b) Order No. 7010193, which charges the company with
a failure to timely abate a violation of30 C.F.R. § 75.370(a)(l) (Docket No. PENN 2007-361-R);
Section 104(b) Order No. 7010194, which charges the company with a failure to timely abate a
violation of Section 75.364(b)(4) as cited in section 104(a) Citation No. 7009620 (Docket No.
PENN 2007-363-R); and section 104(a) Citation No. 7010195, which charges the company with a
failure to comply with Section 103(a) of the Act, 30 U.S.C. § 813(a) (Docket No. PENN 2007-363R). As noted in the decision, the company effectively withdrew its contest of Order No. 7010193
when MSHA vacated the order. The citation underlying the order (Citation No. 7008854) remains
extant, and Docket No. PENN 2007-361-R is therefore stayed pending either the abatement of the
citation or the issuance of an order of withdrawal for the company's failure to timely abate the
violation of Section 75.370(a)(l) alleged in the citation. Tr._; Screen 44-46of1,000 (e-mail
29 FMSHRC 828

closed by the orders, the company sought and was granted an expedited hearing, which was
convened on Tuesday, September 18, 2007, in Washington, D.C. At the close of the hearing, and
with the concurrence of counsels, I entered a decision on the record. Except for editorial
changes, the decision is reproduced verbatim herein.2
In these contest proceedings brought pursuant to Section
105(d) of the ... Act ... RS&W Coal Company is contestmg two
orders issued pursuant to Section 104(b) of the [A]ct and one
citation issued pursuant to Section 104(a). Prior to going on the
record, the conte[ st] regarding the validity of one of the orders,
Order No. 7010193, was resolved for the time being when the time
for compliance with the standard allegedly violated in the citation
underlying the order was extended, and the order was effectively
terminated .... [T]he parties and I agree... [a] proper way to
proceed ... is to keep Docket No. PENN 2007-361-R open as a
viable case pending resolution of the underlying citation. Should
another order be issued, it will be filed under this document
number and proceedings will then ... follow according to the
Commission's rules.
[T]he remaining cases, Docket[s] No. PENN 2007-362-R
and PENN 2007-363-R, have been heard today in the
Commission's offices in ... [Washington, D.C.]. Because Order
No. 7010194 had the effect of closing the underground portion of
RS& W's mine, the hearing was conducted on an expedited basis.
I am issuing this bench decision following the receipt of all of the
evidence and after hearing counsels' closing arguments. The
decision will not be final and appealable to the Commission until
it has been reduced to writing, and that cannot take place until the
transcript is received. Upon issuance of the written decision, it
will be sent by fax to counsel.

*

*

*

version of the transcript).
2

Because I doubted the hearing process was the best way to reach a result that adequately
accounted for the technological and fiscal considerations involved in resolving the parties' remaining
outstanding issues, before entering the bench decision, I expressed my hope the parties would
redouble their efforts to resolve the remaining issues short of another expedited hearing. Tr. _;
Screen 967-970 of 1,000 (e-mail version oftranscript). As the reader will note, the hope is reiterated
in the bench decision.
29 FMSHRC 829

Order No. 7010194 [Docket No. PENN2007-362-R]
charges RS&W with a violation of30 C.F.R. (§] 75.364(b)(4), a
mandatory safety standard requiring in pertinent part at least every
seven days [that] a certified person examine for hazardous
conditions at each seal along a return or bleeder air course.(3]
RS&W is cited for failing to make the required examination at the
mine's east side worked out area seals. The underlying citation,
Citation No. 7009620, gave RS&W a week to abate the alleged
violation. The contested order was issued eight days later when ..
. [the inspector] determined ... the condition had not been
corrected.
There are [three] primary issues. Was RS&W in violation
of Section 75.364(b)(4)(?] [I]f so, was it given a reasonable time
to abate? And was it reasonable not to further extend the time for
abatement?
I find RS&W violated Section 75.364(b)(4). First, I conclude from
the testimony of Inspector Dudash that there were at least two seals that, if
inspection is required, should have been inspected. It is true when
Inspector Dudash issued the citation and Inspector Mehalchick issued the
order, that neither inspector personally observed the seals. Nonetheless, I
accept the testimony of Inspector Dudash that he saw the seals in May
[2007], and there is no indication the nature of the seals changed between
May and September. In fact, the only change would have been their
progressive deterioration, something that is inevitable over time and
something that, if anything, would warrant their inspection.
In reaching ... [a] conclusion ... the two seals existed, I
note further Inspector Dudash's unrefuted testimony ... he
carefully checked with his supervisor to make sure, in view of ...

3

Section 75.364(b)(4) states:

At least every 7 days, an examination for hazardous conditions at the following
locations shall be made ... :

* * *
(4) At each seal along return and bleeder air courses and at each seal along
intake air courses not examined under§ 75.360(b)(5).

29 FMSHRC 830

[an] [existing] petition for modification [(discussed below)],
which seals, if any, ... [were] "covered" by the standard, and that
the two seals were among those indicated to him [to be covered].
Having found the seals existed, I also find ... they were not
inspected every seven days as required by the ... [cited standard].
There really isn't any dispute about this point.
RS&W would have me find a [granted] petition for
modification entered into the record as Contestant's Exhibit 1
removed ... [the company's] obligation to inspect the seals. This
I cannot do.
First, and most obviously, the petition modifies the
application of Section 75.332(b)(l) and Section 75.332(b)(2) [not
Section 77.364(b)(4)].
Moreover, in my opinion, the company never satisfactorily
explained how the modification of standards that deal with the
ventilation of working sections and working places relieve it from
the duty to weekly examine seals in return and bleeder air courses.
And I further find, as [the company's witness] Mr. Randy
Rothermel testified, that the area in question was a bleeder.

In reaching these findings, I am mindful of the company's
assertion ... compliance will force it to send an examiner into a
dangerous area [,but for me t]o focus ... on the hazards posed ...
[to] the examiner, ... [would require] me to ignore other [legal
and readily available] options ... namely, and as the inspectors
repeatedly testified, to danger off the area or to rehabilitate it.
I understand there may be detrimental economic
consequences to these altemative[s], but the economic feasibility
of abatement has, in my view, only been argued, not proven, and I
am not in a position to decide the issue on the record ifl believed
it relevant to abatement, which [in any event] I do not.

As for the greater hazard defense the company has raised,
that is to say, [if the standard applies] ... compliance poses a
diminution of safety for the examiner, ... that [i]s an issue for a
petition for modification of a cited standard, not as argued here[,]
a defense to the violation.

29 FMSHRC 831

Having found the violation existed, I further find the time
granted to abate it was reasonable. It [i]s clear [to me] from the
testimony had RS&W begun abatement efforts, perhaps even
begun ... discussion of such efforts [with MSHA], the time for
compliance would have been extended. It is the operator's
responsibility to comply, which means the operator must take the
initiative in compliance efforts. Here I find RS&W did not take
that initiative. [Rather, the company did nothing.]

In upholding the citation and order, I further find the
violation was not serious. The danger, as explained by the
inspectors, was that explosive or noxious gases might build up
behind the seals and leak into the mine atmosphere. Given the
lack of significant methane [ever accumulating] at the mine and
given the lack of evidence of other dangerous gases accumulating,
I find such a hazard was unlikely to occur.
Moreover, even if there had been a more immediate hazard,
one would assume MSHA would have cited it long before [it
issued the underlying citation on] September 5th, which leads me
to a discussion ofRS&W's negligence.
I conclude that it was low. As counsel for the operator
pointed out and as the testimony establishes, the mine was
inspected at least several times prior to September 5th ... [Y]et [,]
a violation of Section 75.364(b)(4) was not cited at those times.
I further find, as the company's witnesses testified, that
management officials genuinely, albeit mistakenly, believe
compliance was not required.
Moving on to the alleged violation of Section 103(a) of the
[A]ct [Docket No. PENN 2007-363-R], I find the violation
existed as charged.[4 ] I accept the testimony of Inspector
Mehalchick, who ... was there, that when Mr. [Randy] Rothermel
was asked [by MSHA] to let MSHA officials look at the [mine's]
books, he denied the request. This violated the cited section of
the [A]ct because the MSHA officials were at the mine as part of

4

Section 103(a}, 30 U.S.C. § 813(s), states in pertinent part:

Authorized representatives of the Secretary . . . shall make
frequent inspections and investigations in coal ... mines each year[.]
29 FMSHRC 832

an ongoing inspection and, therefore, [they] had the right to see
the books.
I have no doubt Mr Rothermel was [,as he testified,] angry.
I have no doubt he felt [ill] [as he also testified] [and that] ... he
was on medication that made him sleepy, but bis excuse that he
did not authorize MSHA to look at the books because he thought
the mine ... was closed [by the previously issued Section 104(b)
Order] ... rings hollow to me. The order which he was given
specifically restricted closure to the underground areas of the mine
and [did] not affect the mine office where everyone involved had
gathered.
The parties agree ... the violation was unlikely to cause an
injury or illness, and I concur. The parties disagree as to RS&W's
negligence, and here on balance, I find the evidence favors a lower
level of negligence than [that] found by the inspector.
The fact Mr. Rothermel was ill may well have temporarily
clouded his judgment and triggered the response that he made
[denying MSHA permission to see the books].
Therefore, [in these cases] and in view of ... the
extenuating circumstances, while I will uphold the contested
enforcement actions, I will modify the inspectors' negligence
findings.
Accordingly, Citation No. 7009620, Order No. 7010194
and Citation No. 7010195 are affirmed, except to the extent that
Citation No. 7009620 and Citation No. 7010195 are modified to
reflect RS&W's low negligence.
Finally, Docket No. [PENN 2007-] 361-R remains a viable
case, subject to resolution of the pending citation.
This means MSHA is closing the underground portion of
[RS&W's] mine for a non-S&S, non-serious violation caused by
low negligence. Is it legal? Yes. Is it the best use ofMSHA's
authority? I leave that [question] for others to ponder, but what
seems certain is that it would benefit all involved to try to work
together in a cooperative rather than a confrontational spirit. The
present situation obviously helps neither party[;] nor for that

29 FMSHRC 833

matter does it assist [those of] the public [who rely on the mine's
anthracite coal.].

*

*

*

Tr. _; Screen 970-998 of 1,000 (e-mail version of transcript).

r.

_j)/144(/ ~~~
David F. Barbour
Administrative Law Judge
(202) 434-9980

Distribution: (by Certified Mail and by Facsimile)
Adam F. Welsh, Esq., U.S. Department of Labor, Office of the Solicitor, The Curtis Center, Suite
630 East, 170 S. Independence Mall West, Philadelphia, PA 19106-3306
Randy Rothermel, R S & W Coal Company, 207 Creek Road, Klingerstown, PA 17941
Adele L. Abrams, Esq., CMSP, Law Office of Adele L. Abrams, P.C., 4740 Corridor Place, Suite
D, Beltsville, MD 20705

/ej

29 FMSHRC 834

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

September 27, 2007

CIVIL PENALTY PROCEEDING

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

Docket No. CENT 2007-25-M
A.C. No. 41-01118-99184

v.
LATTIMORE MATERIALS COMPANY, LP,:
Respondent

Ambrose Sand Plant

DECISION
Appearances: Amy S. Hairston, Esq., and Michael D. Schoen, Esq., Office of the Solicitor, U.S.
Department of Labor, Dallas, Texas, on behalf of the Petitioner;
Charles C. High, Jr., Esq., Kemp Smith, LLP, El Paso, Texas, on behalf of the
Respondent.
Judge Melick

Before:

This case is before me upon a petition for civil penalty filed by the Secretary of Labor
pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq. (2000), the "Act," charging Lattimore Materials Company, LP (Lattimore) with violations of
mandatory standards and proposing civil penalties of $37,450.00, for the violations. The general
issue before me is whether Lattimore violated the cited standards and, if so, what is the appropriate
civil penalty to be assessed in accordance with Section 11 O(i) ofthe Act. Additional specific issues
are also addressed as noted.
As amended, Citation No. 6262905, issued pursuant to Section 104(d)(l) of the Act, charges
a "significant and substantial" violation of the standard at 30 C.F.R. § 56.16009 and, alternatively,
the standard at 30 C.F.R. § 56.9201. 1 2 The citation alleges as follows:

1

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

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 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

29 FMSHRC 835

Three miners were seriously injured when a suspended shaker deck slipped and pinned two
of the miners against a pipe and knocked the third miner down into the belly of the sand
screen. Three other miners narrowly avoided serious injury by the swinging screen deck.
The Plant Manager was directing the crew and was one ofthe miners pinned against the pipe.
The crew was working directly in front of the suspended shaker deck. The plant manager
engaged in aggravated conduct by allowing the crew, while under his direction, to work in
the path ofthe suspended deck. This is an unwarrantable failure to comply with a mandatory
standard.
The standard at 30 C.F.R. § 56.16009 provides that "[p]ersons shall stay clear of suspended
loads." For the reasons that follow, I find that the Secretary has sustained her burden of proving a
violation of the cited standard.
It is undisputed that three employees ofLattimore, Bradley Rader, Ricky Pittman, and Robert
Fondren, were seriously injured around 8:20 a.m. on January 12, 2006, while helping to install a
replacement deck on a shaker at the Ambrose processing plant. A crane operated by co-worker Jerry
Hicks was used to maneuver the deck frame at a 20 degree angle into the shaker. The 4,200 pound
replacement deck was approximately eight feet wide, 20 feet long and four feet high. When the deck
had been partially inserted into the shaker screen housing, it became stuck. At that point, the four
hoisting straps were slackened by the crane operator and the two front straps removed. Just before
the straps were released from the crane, Rader, Pittman and Fondren, were pulling on the
replacement deck with two hoists and a "come-along". The deck then suddenly slid into place
striking Rader, Pittman and Fondren. Rader and Pittman were standing between the deck frame and
the bottom chute in front of a cross-member pipe and both employees were struck in the pelvic area.

Crane operator Jerry Hicks witnessed the incident from the crane cab. Hicks testified that
he had, on at least six prior occasions, used a crane to insert a replacement deck into a shaker and
he discussed the procedures to be followed that day with his supervisor, Ricky Avery. Four hoisting
straps were rigged so that the deck was at a 20 degree angle- - the angle at which the insertion was

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 ofthe Secretary finds
another violation of any mandatory health or safety standard and finds such violation to be
also caused by an unwarrantable failure of such operator to so comply, he shall forthwith
issue an order requiring the operator to cause all persons in the area affected by such
violation, except those 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

In light of my fmdings herein that the Secretary has sustained her burden of proving a
violation of the standard at 30 C.F.R. § 56.16009, there is no need to address the alternative
charges. The issue is moot.
29 FMSHRC 836

to take place. Two of the four hoisting straps were attached about six feet from the front of the deck
and the other two were attached at the rear (Dol. Exh. No. 31 ). Hicks testified that, as he raised the
deck to about 30 feet, employees grabbed the sides of the deck to feed it into the slot. The front
hoisting straps were removed after the shaker deck was inserted up to the point where those straps
had been attached to the deck. Hicks testified that he lowered the position of the crane to provide
enough slack to enable removal of the front straps. At the same time, the rear straps were also
slackened. Hicks testified that the rear straps had "quite a bit of slack" and that he was not given any
signal to resume tension on the straps. He was following the hand signals of his supervisor, Randy
Brazier, who was standing on a platform on the shaker. Hicks testified that he then saw the deck
suddenly start sliding into the shaker without warning. The crane was not then holding the deck.
There was no tension on the straps. When the deck slid in, it had been inserted about halfway "more
or less". Hicks noted that once the straps were slackened, he had no control over the deck. It was
about five minutes later when he learned ofthe injuries and he assisted in hoisting the injured miners
down by stretcher. He observed that all of the injured were talking but he did not know how serious
they were injured.
Ambrose plant m~ager, Bradley Rader, also testified. Ricky Avery, Lattimore' s area
supervisor was his supervisor. Rader was in charge of the deck installation. He had never been
trained by Lattimore on deck installations nor about safe installation procedures. He had only twice
before installed such decks. On this occasion, as the deck was being installed, he was in the shaker
"possum belly" with Pittman and Fondren (Dol. Exh. No. 6). Rader testified that they were using
two five-ton hoists and a one-and-a-half-ton "come-along" to pull the deck inside. They were
pulling the deck in only about one-quarter to one-half inch at a time and it had been pulled about
half way in when it became stuck. Rader testified that he added the "come along" and was trying
to rehook the hoist when the deck suddenly came sliding in pinning him. The deck was moved to
free him and he was transported to a stretcher by the crane to the ground. He felt bruised, and
intermittently hot and cold. He was taken to Parkland Hospital by helicopter where his spleen and
one kidney were removed.
On cross examination Rader testified that he had never before seen a deck slide in as it did
on this occasion. It had to be pulled in with hoists and "come-alongs" an inch at a time. Later at the
hospital, Mark Clark, the Vice President of Aggregates Operations, visited him. Rader said that he
did not know anything about his condition. His surgery was not completed until after 6:00 p.m. that
day.
Another eyewitness, Robert Fondren, the Ambrose plant operator, testified that he was
working for Brad Rader in the ''possum-belly'' of the shaker. He recalled that it took about one hour
to move the replacement deck about half way in. It then took off, pinning him. Fondren credibly
testified that he wanted to use the one-and-one-half ton "come-along" as a brake to hold the deck but
he could not get it hooked up. "Brad stopped me from hooking it up". Fondren opined that the
"come-along" should have been used as a brake to prevent the deck from sliding into the miners.
Eyewitness Ricky Pittman was also in the "possum-belly'' helping to install the deck.

29 FMSHRC 837

Pittman recalled that he was working a "come-along" pulling the deck into the housing as Rader was
working another "come-along". The deck was half way into the shaker when it stopped. Suddenly
the deck slipped and he saw that Rader was trapped. Pittman testified that "Rader didn't look good".
Pittman testified that the emergency medical technicians (EMT's) never told him what was wrong
with him. He arrived at the hospital around mid morning but did not go to the emergency room until
5:00 p.m. that day.
Within the framework of the above essentially undisputed eyewitness testimony, it is clear
that the replacement deck remained at least partially suspended from the crane as it was inserted into
the shaker and up to the point at which the front two harnesses, located approximately six feet from
the front of the deck, were slackened and removed and when the two rear harnesses were also
slackened. There is no dispute that the three man crew under the direction of plant manager Bradley
Rader were working directly in the path of the replacement deck as it was suspended from the
harnesses attached to the crane until that point in time. This clearly constitutes a violation of the
standard at 30 C.F.R. § 56.16009. It is also clear, however, that at this point in time the deck
continued to be suspended by the shaker frame itself. Indeed, the eyewitness testimony of crane
operator Jerry Hicks that the deck then ''was hung in the shaker frame" is undisputed (Tr. II p. 76).
Shortly thereafter, demonstrating that it was capable of free movement, the deck slid into the shaker
frame injuring Mssrs. Rader, Pittman and Fondren. Under these circumstances there was also a
violation of the cited standard.
In reaching these conclusions I have not disregarded Lattimore' s argument that the meaning
of the cited standard should be controlled by the heading of the subpart of the Secretary's regulation
in which it appears, i.e. "Materials Storage and Handling". Lattimore contends that the shaker deck
was not a "material" and that the cited standard is therefore inapplicable hereto. When considering
analogous arguments regarding the rules of statutory construction however, the dominant legal
authority is that, when interpreting statutes, where the text of the section is clear, the section's
heading does not limit or alter its text. See Brotherhood of Railroad Trainmen v. Baltimore & Ohio
R. Co., 331 U.S. 519, 528-29 (1947); Francisco v. Stolt Achievement Mt., 293 F.3d 270, 275 (5th
Cir. 2002); and Samirah v. O'Connell, 335 F. 3d 545, 548-549 (7th Cir. 2003). I find therefore that
Lattimore's argument herein is not only without legal support but contrary to analogous legal
authority.
I further find 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). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission explained:
In order to establish that a violation of a mandatory standard is significant and substantial
under National Gypsum the Secretary must prove: (1) the underlying violation of a
mandatory safety standard, (2) a discrete safety hazard - - that is, a measure of danger to
safety - - contributed to by the violation, (3) a reasonable likelihood that the injury in
29FMSHRC 838

question will be of a reasonably serious nature.
See also Austin Power Inc. v. Secretary, 861F.2d99, 103-04 (5th Cir. 1988), affg
9 FMSHRC 2015, 2021(December1987) (approving Mathies criteria).
The third element of the Mathies formula requires that the Secretary establish a reasonable
likelihood that the hazard contributed to will result in an event in which there is an injury. 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., 6 FMSHRC
1573, 1574 (July 1984); See also Halfway, Inc., 8 FMSHRC 8, 12 (January 1986) and Southern Ohio
Coal Co., 13 FMSHRC 912, 916-917 (June 1991).
In this case there was a clear danger to safety created by the violation i.e. the danger ofbeing
crushed by a deck weighing 4,200 pounds. Injuries, which of course actually occurred, were also
reasonably likely. At the time ofthe incident there was nothing except friction to hold the deck from
sliding into the shaker frame at a 20 degree angle and crushing millers working in its path. Indeed
Mr. Fondren testified that he wanted to use a "come-along" to serve as a "brake" for the deck but
was prevented from doing so by his Plant Manager Rader. It was also highly likely for injuries to
be serious because of the weight of the deck. Indeed, as a result of the violation, Mr. Rader lost his
spleen and a kidney and continues to suffer from brain trauma, Mr. Pittman suffered a broken pelvis
and was unable to return to work for almost a year and Mr. Fondren suffered a fractured arm.
The violation was also clearly the result ofLattimore's "unwarrantable failure" to comply
with the cited standard. Unwarrantable failure is "aggravated 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 (December 1987). Unwarrantable failure is characterized by such conduct
as "reckless disregard," "intentional misconduct," "indifference," or a "serious lack of reasonable
care." Id. at2002-03;Rochester&PittsburghCoal Co., 13FMSHRC189, 193-94(February1991);
see also Rock of Ages Corp. v. Secretary of Labor, 170 F.3d 148, 157 (2d Cir. 1999); Buck Creek
Coal, Inc. v. MSHA, 52 F.3d 133, 136 (7thCir. 1995) (approving Commission's unwarrantable
failure test). Moreover, the Commission has examined the conduct of supervisory personnel in
determining unwarrantable failure and recognized that a heightened standard of care is required of
such individuals. See Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011 (December 1987)
(section foreman held to demanding standard of care in safety matters); S&H Mining, Inc., 17
FMSHRC 1918, 1923 (November 1995) (heightened standard of care required of section foreman
and mine superintendent).
Several factors stand out in this regard. I find that indeed the violative condition was obvious
and posed a high degree of danger. The evidence establishes that a deck weighing 4,200 pounds,
was pointed at a downward angle of about 20 degrees, was restrained only by friction and that three
employees working in a confined area were in its direct path. At least one of these employees,
Robert Fondren, also clearly recognized the obvious danger ofthe situation when he requested to use
a "come-along" to serve as a ''brake" and indeed had used a "come-along" in this manner during a

29 FMSHRC 839

preVious installation of a deck into the same shaker. The operator's agent, Plant Manager Bradley
Rader vetoed Fondren's request with the tragic consequences that followed. Thus, the hazard was
not only obvious but was also pointed out to the operator's agent who vetoed remedial action. The
serious injuries suffered by Rader, Pittman, and Fondren further confirm the high degree of danger
presented by the violative condition. These factors also establish that the operator was highly
negligent in committing the violation.
Citation Nos. 6262903 and 6262904
Citation No. 6262903 alleges a violation of the mandatory standard at 30 C.F.R. § 50. l 0 and
charges as follows:
The mine operator failed to notify MSHA of a serious accident when three miners were
injured on 1/12/06 while attempting to install a shaker screen deck. After losing control of
the suspended deck two of them were pinned inside the belly of the sand screen. The deck
knocked down the third miner as it swung into the belly. The accident occurred on 1112/06
around 8:00 a.m...MSHA was notified of the accident on 1113/06 around 10:00 a.m. by a
"courtesy call" from Scott Homer, Manager ofES&H.
The cited standard, 30 C.F.R. § 50.10, provides as follows:
Ifan accident occurs, an operator shall immediately contact the MSHA District Office having
jurisdiction over its mine. If an operator cannot contact the appropriate MSHA District
Office, it shall immediately contact the MSHA Headquarters Office in Arlington, Virginia
by telephone, at (800) 746-1553.

Citation No. 6262904 alleges a violation of the standard at 30 C.F.R. § 50.12 and charges as
follows:
The mine operator altered the site of an accident prior to notifying MSHA that a serious
accident had occurred and after the recovery of injured miners. The mine operator took
pictures of the accident scene and talked to miners at the site. The mine operator failed to
preserve the accident scene and resumed work on the sand screen on 1113/06 prior to
notifying MSHA of the accident.
The cited standard, 30 C.F.R. § 50.12, provides as follows:
Unless granted permission by a MSHA District Manager, no operator may alter an accident
site or an accident related area until completion of all investigations pertaining to the
accident except to the extent necessary to rescue or recover an individual, prevent or
eliminate an imminent danger, or prevent destruction of mining equipment.

29 FMSHRC 840

As noted, the cited regulatory provisions are triggered only by the occurrence of an
"accident" within the meaning of the Secretary's regulations. The term "accident" is de.fined in 30
C.F.R. § 50.2(h)(2) to include"[ a]n injury to an individual at a mine which has a reasonable potential
to cause death.... " The issue to be decided then, is whether any of the injuries to the three miners in
this case had a "reasonable potential to cause death".
I find that, indeed, even before the injured miners were transported by ambulance and
helicopter to area hospitals, there was evidence available to agents of Lattimore that the injuries had
a reasonable potential to cause death. It was clear, or should have been clear, to Lattimore's agents
who where present at, and immediately after, the accident that three miners had suffered crushing
injuries from the shifting movement of a 4,200 pound replacement deck for the shaker screen. At
least one of the viCtims, Plant Manager Brad Rader, told paramedic Deborah Sarrao, in the presence
of other Lattimore employees, that he was in severe pain. Both Rader and Pittman were placed on
backboards to protect them from spinal cord injuries. Rader was, according to Ms. Sarrao, also
showing signs of shock. His skin was pale, he was sweating profusely and was disoriented. Rader
and Pittman were also sent by helicopter to the Parkland Hospital, the nearest "level one trauma
center"- - the highest level trauma center. 3
Michael Bose, then a Lattimore vice president, was at the plant at the time of the accident but
was not at the immediate scene. He heard commotion and was able to talk to the victims as they laid
on stretchers. Rader told Bose that he was in pain and Bose observed that Rader was disoriented.
Pittman also told Bose that he was in severe pain. Bose acknowledged that he knew that
disorientation was a sign of shock. He was also aware that helicopters picked up the victims and
took them to Parkland Hospital. Bose, who acknowledged having had first aid training for about
the previous 15 years and that he kept his training current, therefore had almost immediate
knowledge that the three victims had suffered crushing injuries, that at least one was in severe pain,
that they had been placed on backboards, (a practice he should have known is used to protect against
spinal injuries), that one miner was showing signs of disorientation which were known to Bose as
evidence of shock (a condition he knew or should have known may in itself cause death), and that
the two injured miners were being sent by helicopter to what he should have known was a "level
one" trauma center. Having had first aid training, Bose should also have known that crushing
injuries often cause unseen internal injuries. Indeed, he should have been aware, as was Scott
Homer, Lattimores' manager of environmental safety and health and Mark Clark, vice president of
aggregate operations, that a year and a half earlier at another Lattimore facility, a miner had also
suffered crushing injuries and died as a result (See Exh. Doi. 14).
Under the circumstances, I conclude that indeed Lattimore's agents should have known
almost immediately after the incident that the injuries sustained by at least two ofthe injured miners
had a reasonable potential to cause death and that, accordingly, the incident qualified as a "accident"
3

While there is no evidence that paramedic Sarrao conveyed her medical opinion to any
agent of Lattimore, her observations of the victims corroborate what was observable to those
agents.
29 FMSHRC 841

within the meaning of30 C.F.R. § 50.2(h)(2). Since MSHAwas not contacted for more than 24
hours after the accident i.e. not until January 13th, at approximately 10:00 a.m., I do not find that
such notification was "immediate" within the meaning of 30 C.F.R. § 50.10. Accordingly, the
violation charged in Citation No. 6262903 is affirmed. The Secretary has found that gravity was low
and I have no reason to disagree with that assessment. The Secretary has also found, however, that
negligence was the result of the operator's ''reckless disregard". I find the operator chargeable,
however, with only moderate negligence in light of the ambiguities in the definition of"accident"
in the cited standard, the fact that there was no evidence of any intentional cover-up or concealment
after the accident, that there was no evidence that the delay impeded the investigation, that notice
was actually provided to MSHA within 26 hours and that the violation was admittedly oflow gravity
and, in effect, presented no danger. See Secretary v. Cougar Coal Company, et. al., 25 FMSHRC
513, 521-522 (September 2003), wherein the Commission stated that "it would benefit the mining
community if the Secretary would clarify when it is urgent to notify MSHA, and when it is not".
Trenton Scott Homer, Lattimore' s manager of environmental safety and health, testified that
he authorized work to be resumed at the accident site around 4:30 or 5:00 pm. on the date of the
accident. Homer acknowledged that thereafter the work crew moved the crane, removed rigging that
was used for the deck installation and reinstalled guardrails that had been removed during the
installation process. Walter DeLoach an inspector for the Department of Labor's Mine Safety and
Health Administration (MSHA) arrived at the mine around 1:30 p.m. on January 13, 2006; DeLoach
testified that the rigging used to lift the deck was rolled up in the bed of the crane and miners were
observed adding parts to the shaker screen. The shaker deck had also been mounted. Under the
circumstances, I find that the accident site was indeed also altered following the "accident". The
Secretary has again alleged low gravity and I have no reason to dispute that finding. The Secretary
has also found the operator chargeable with ''reckless disregard". I find no evidence of any attempt
to cover-up or conceal the accident, there is no evidence that the altered scene was relevant to or
impeded MSHA' s accident investigation and the violation was admittedly of low gravity and, in
effect, presented no danger. For these and for the additional reasons stated above, I find the operator
chargeable with but moderate negligence.
Civil Penalties
Under section 11 O(i) of the Act, the Commission and its judges must consider the following
factors in assessing a civil penalty: the history of violations, the negligence of the operator in
committing the violation, the size of the operator, the gravity of the violation, whether the violation
was abated in good faith and whether the penalties would affect the operator's ability to continue in
business. The record shows that Lattimore is a relatively small mine and has a modest history of
violations (four violations for 19 inspection days). The gravity and negligence findings have
previously been discussed. There is no dispute that the violations were abated in a timely and good
faith manner and there is no evidence that the penalties would affect the operator's ability to continue
in business. Under the circumstances, I find that penalties of $75.00, $75.00, and $36,800.00 for
Citations No. 6262903, 6262904 and 6262905 respectively, are appropriate.

29 FMSHRC 842

ORDER
Citations No. 6262903, 6262904 and 6262905 are affirmed and Lattimore Materials
Company, LP, is directed to pay civil penalties of $36,950.00 for the violations charged therein
within 40 days of the date of this decision.

Distribution: (Certified Mail)
Amy Sanders Hairston, Esq., Office of the Solicitor, U.S. Department of Labor, 525 Griffin Street,
Suite 501, Dallas, TX 75202
Charles C. High, Jr., Esq., Kemp Smith, LLP, 221 North Kansas Street, Suite 1900, El Paso, TX
79901
/lh

29 FMSHRC 843

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #2.80
DENVER, CO 80204-3582 .
303-844-3577/FAX 303-844-5268

October 16, 2007
EMERGENCY RESPONSE PLAN
DISPUTE PROCEEDING

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

Docket No. WEST 2007-892-E
Citation No. 7284469; 9/18/2007

v.
Mine ID 05-03836
Foidel Creek Mine

TWENTYMILE COAL COMPANY,
Respondent

DECISION
Appearances:

Stephen Turow, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia, and John Rainwater, Esq., Office of the Solicitor, U.S.
Department of Labor, Denver, Colorado, for Petitioner;
R. Henry Moore, Esq., Jackson Kelly, PLLC, Pittsburgh, Pennsylvania,
for Respondent.

Before:

Judge Manning

This case is before me on a Referral of Emergency Response Plan Dispute, by the
Secretary of Labor ("Secretary"), pursuant to section 316(b)(2)(G) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 876(b)(2)(G) ("Mine Act"). At issue is a citation issued on
September 18, 2007, charging Twentymile Coal Company with a violation of the Act by failing
to adopt an emergency response plan that provided for a refuge area about halfway between the
mine portal and the 6 Main North ("6 MN'') intake air shaft. 1 An evidentiary hearing was held
in the Commission's courtroom in Denver, Colorado, on October 2, 2007. The parties filed posthearing briefs.

I. BACKGROUND WITH FINDINGS OF FACT
Congress enacted the Mine Improvement and New Emergency Response Act of 2006
("MINER Act") in response to recent fatal accidents at underground coal mines. The MINER
Act amended section 316 of the Mine Act to require, inter alia, that each underground coal mine

1

I use the term "refuge area" in this decision to refer to an area where emergency
supplies of breathable air must be provided under an emergency response plan. The map at Joint
Exhibit 7 ("JE-7"), shows the configuration of the mine portal, the 6 MN, and the main entries
between these two points.
29 FMSHRC 844

operator develop and adopt an Emergency Response Plan ("ERP") and submit it to the
Department of Labor's Mine Safety and Health Administration ("MSHA") for approval and
periodic review. The MINER Act became effective on June 15, 2006.
Twentymile developed an ERP and, after discussions with MSHA, submitted several
revisions of the plan to MSHA. The final revised plan was submitted on August 7, 2007.
Section 3 l 6(b)(2)(E)(iii) of the Mine Act, as amended by the MINER Act, includes the following
language: "The plan shall provide for emergency supplies of breathable air for individuals
trapped underground sufficient to maintain such individuals for a sustained period of time." It is
the portion ofTwentymile's ERP dealing with this requirement in the outby area of the mine that
is in dispute in this proceeding.
Rather than engaging in rulemaking, the Secretary elected to provide guidance to the
underground coal mining community with respect the development of ERPs through a series of
three Program Policy Letters ("PPLs") and a Program Information Bulletin (''PIB"). MSHA's
first PPL, PPL 06-V-8, merely stated that an operator's ERP must address the requirement to
establish an emergency supply of breathable air and it indicated that MSHA is evaluating
alternatives to meet this requirement and is soliciting further information on the requirement.
(Stip. 13; Ex. R-50). 2 On August 4, 2006, MSHA issued PPL 06-V-9 which indicated that the
agency needed more time to gather information on the issues of post-accident breathable air.
(Stip. 14; Ex. R-52).
On October 24, 2006, MSHA published Program Policy Letter PPL 06-V- l 0 which states
in part:
For an ERP to be approved, it must specifically address the type,
amount, and location of post-accident breathable air necessary to
maintain individuals trapped underground for a sustained period of
time. Oxygen, compressed air, or other alternatives may be used to
meet this requirement.
,
On August 30, 2006, MSHA published a Request for Information
(RFI) in the Federal Register seeking further information from the
mining community on ''topics related to post-accident breathable
air that would be sufficient to maintain miners trapped
underground for a sustained period of time." Once MSHA is able
to review the information received, the Agency will provide
additional guidance. In the meantime, however, mine operators
shall gather information from available resources and provide for
emergency supplies of breathable air.

2

The parties submitted 44 Stipulations, which are referred to as "Stip."
29 FMSHRC 845

(Stip. 16; Bxs. R-53, R-54).
Twentymile submitted its initial ERP on August 11, 2006. (Stip. 1O; Ex. R-1 ). In
October and November 2006, MSHA responded to Twentymile's initial ERP and a meeting was
held at MSHA's Coal Mine Safety and Health District 9 headquarters ("District 9") to discuss the
plan. (Stips. 17 & 18; Ex. R-2). Twentymile submitted a revised plan on February 1, 2007.
(Stip. 19; Ex. R-3).
On February 8, 2007, MSHA issued Program Information Bulletin P07-03 which
provided operators, for the first time, with specific, detailed guidance concerning MSHA' s
understanding of various ways in which operators could provide breathable air for individuals
who may be trapped underground. (Stip. 20; Ex. R-55). MSHA subsequently developed three
additional guidance documents and made them attachments to the PIB. (Stip. 20; Bxs. R-57, R58, R-59). The PIB required all operators to submit revised ERPs for MSHA's review by March
12, 2007.3 (Stip. 21).
On March 2, 2007, MSHA responded to Twentymile's ERP submission of February 1,
2007. (Stip. 23; Ex. R-4). MSHA addressed the issue of post-accident breathable air, in part, as
follows:
(I) Emergency supplies of breathable air for individuals trapped underground.

In accordance with Program Policy Letter No. P06-V-10 and PIB
P07-03, the type, amount and location of oxygen must be specified
for the ERP to be approved. Relevant variables used in your mine
specific analysis should be identified. If an approach other than
boreholes or protected airlines that include sufficient volume of air
for both breathing and purging is used, the approach for scrubbing
carbon dioxide is necessary. Please include the parameters (e.g.,
number of persons, length of time, amount of oxygen per person
per unit time, type of generation, delivery/conservation system,
etc.) that were used to determine the quantity of breathable air.
Air, food and water are to be provided for periods represented in
one of the options presented in PIB P07-03 for the expected
number of miners on the section; and, for sections using hotseating during shift changes, the provisions should be doubled.

3

The PIB was challenged as improper rulemaking in the United States District Court for
the District of Columbia, No. 07-1068. The challenge was resolved on August 22, 2007,
pursuant to a settlement in which the National Mining Association withdrew its claim and
MSHA re-affirmed that the PIB was a non-binding guidance document. (Stip. 22; Ex. R-56).
29 FMSHRC 846

Id. On March 12, 2007, Twentymile submitted a revised ERP that contained a statement
detailing the manner in which it intended to provide breathable air for trapped miners. (Stip. 25;
Ex. R-5). On March 22, 2007, District 9 Manager Allyn Davis, responded to this revised plan
and stated that it does not meet MINER Act requirements regarding the provision of breathable
air for trapped miners. (Stip. 26; Ex. R-6). The letter sought additional clarification on this
issue.
On March 28, 2007, Twentymile submitted a revised ERP. (Stip. 28; Ex. R-7). With
respect to providing breathable air in outby areas, the plan provided under the heading
"Additional possibilities outby the section":
The recently completed intake ventilation shaft can be easily
isolated from the main air courses with equipment doors and is
accessible. This location is currently outfitted with emergency
food supplies and water. The greater area can be quickly isolated
with anothel'. installed open equipment door. Page phone
communication to the surface is available. Additional utility pipes
are installed at this location that can be utilized in an emergency.

Id. In its response of April 13, 2007, District Manager Davis asked "how the breathable air
requirements will be met for outby personnel." (Stip. 29; Ex. R-8). On April 23, 2007,
Twentymile submitted a revised ERP that, with respect to Mr. Davis's inquiry, stated:
Personnel working in outby areas can readily access the recently
completed intake ventilation shaft should escape from the mine be
impossible.
This shaft will be outfitted with an emergency escape hoist later
this year.
Personnel working outby the working sections, either inby or outby
the shaft, will have access to the shaft or access to one of the two
intake escapeways to the portal.
Other means of escape are available to outby personnel, depending
on their location, including the 18 Right intake bleeder shaft.
(Stip. 31; Ex. R-9).

In late May, a representative from Twentymile discussed the issue of outby personnel
with Hillary Smith ofMSHA's District 9. Twentymile pressed Ms. Smith to explain why its
ERP has not been approved when MSHA District 2 has approved ERPs at several mines that
have provisions that are quite similar to Twentymile's proposed ERP with respect to breathable

29 FMSHRC 847

air in outby areas. Ms. Smith raised differences that she perceived between the situation at the
Foidel Creek Mine and the mines in District 2. (Stip. 32). She advised Twentymile that, given
the responses that MSHA provided in the Questions and Answers attached to PIB 07-03, she did
not think that District Manager Davis would accept an ERP from Twentymile that failed to
provide breathable air in the main entries at Foidel Creek for travel distances exceeding 15,000
feet. (Stip. 32; Ex. R-57). The representative for Twentymile told Ms. Smith that he did not
believe that MSHA's position was correct. (Stip. 32).
On June 14, 2007, Twentymile submitted another revised ERP which provided in relevant
part:
Personnel working in outby areas can readily access the recently
completed intake ventilation shaft should escape from the mine be
impossible. Currently, the eighteen foot intake shaft is regulated
through a pair of equipment doors leading from the shaft bottom,
providing additional intake air to continuous miner sections
through one of the intake splits/primary escapeways from the
portal. If necessary, the shaft bottom can be isolated by closing the
equipment door regulators. The return entries around this shaft
area are separated from the intake entries with Kennedy
panel/Tekseal near zero leakage stoppings. In case of emergency
barricading in this location, the intake pressure should minimize
leakage of mine gasses into the area. If necessary, the drain pipe
can be outfitted to provide additional air to the bottom of the shaft.
The greater area at the shaft bottom (approximately 100,000 cubic
feet of space) can be closed off by closing and sealing a single
equipment door. This area contains four cased drill holes from the
surface. A mine page phone at the bottom is connected to a page
phone on the surface and could be used for communications if this
area is isolated off. One hole in this location is used for supplying
aggregate material to the mine. Another is used for and connected
to the mine compressed air system. These boreholes could be
utilized to provide additional emergency supplies, including
breathable air if necessary.
The intake shaft will be outfitted with an emergency escape hoist
later this year. The equipment procurement and permitting are in
progress and installation should be completed by late August 2007.
Once in place, personnel could be removed from the mine at a rate
of six persons every ten minutes. If necessary to provide additional
breathable air to miners at the bottom, SCSRs delivered to the top

29 FMSHRC 848

from the warehouse could be delivered to the bottom in the hoist
cage.
Personnel working outby the working sections, either inby or outby
the shaft, will have access to the shaft or access to one of the two
intake escapeways to the portal. Personnel working in these areas
will at no time be more than 10,000 feet from either the portal or
the 6 Main North intake shaft. The main entries are outfitted with
two separate intake escapeways, each travelable with diesel pickup
mantrips, each containing caches sufficiently spaced for
individuals walking and for the number of personnel working inby
that point.
Other means of escape are available to outby personnel, depending
on their location, including the 18 Right intake bleeder shaft. The
cage is capable of handling four individuals at a time [and] a round
trip from the surface to the bottom and back is less than 30
minutes. Two crews of twelve persons could be recovered to the
top in less than three hours. If necessary to provide additional
breathable air to miners at the bottom, SCSRs delivered to the top
from the warehouse could be delivered to the bottom in the hoist
cage.
(Stip. 33; Ex. R-10).
On June 22, 2007, MSHA responded by letter to Twentymile's revised plan. The letter
states, in part:
The post-accident breathable air portion of the ERP that you have
submitted does not meet the MINER Act requirements regarding
the provision of breathable air for trapped miners. Given the
conditions at the Foidel Creek Mine, the current version of the
ERP cannot assure quantities of breathable air sufficient to
maintain individuals trapped in the mine, unless it contains
provisions that:
Post-accident breathable air needs to be addressed
in the main entries an approximate distance of
10,000 to 15,000 feet from the portal. The distance
from the portal to the intake shaft is too great a
distance not to maintain some sort of post accident
breathable air, and two isolated intake escapeways

29 FMSHRC 849

to the same portal locations do not provide the same
amount of protection as breathable air.
(Stip. 34; Ex. R-11).
On June 28, 2007, Dick Conkle, the Safety Director with Twentymile, informed Bill
Reitze of MSHA that the revised ERP plan that Twentymile would be "submitting would not
include refuge chambers in the mains entries and indicated that miners could not be trapped in
this area because of multiple ways out of the mine." (Stip. 36). Twentymile submitted this
revised plan that, as relevant here, was substantially similar to the plan submitted on June 14,
2007. (Stip. 37; JE-1).
On July 31, 2007, Mr. Davis advised Twentymile that its ERP was approved, except for
the part dealing with breathable air for outby miners. (Stip. 38). With respect to that portion of
the plan, Mr. Davis stated:
Specifically, we cannot approve an ERP in full for the Foidel
Creek Mine unless post-accident breathable air is provided at some
point in the main entries at a distance of between 10,000 to 15,000
feet from the portal. Breathable air is necessary within this area to
maintain miners who are traveling or performing maintenance/
examination activities in the main entries and who could be
trapped within the approximately 20,000-foot, and often
significantly sloped, expanse between the portal and the intake air
shaft, if an event (e.g., fire or explosion) compromises the intake
escapeways and the intake air shaft. In such an instance,
breathable-air would be necessary in the area that we have
identified to permit miners to survive for a sustained period of time
prior to rescue.
(Stip. 38; JE-2).

On August 7, 2007, Twentymile submitted the revised ERP that is the subject of the
dispute in this case. The cover letter to the plan states:
We consider the Twentymile Mine configuration unique in that
multiple directions are available for personnel working
underground to use if an event required evacuation from the mine.
We feel the requirement of a rescue chamber for the area in
question, from the portal to the intake shaft, is not applicable
because of the multiple directions available as described above and
in the body of the Emergency Response Plan. Wording changes
have been made to the Post-Accident Breathable Air, Outby the

29 FMSHRC 850

section, page 3, fourth paragraph concerning personnel working
outby the working sections. Added are the two sentences;
"Therefore, these individuals would not be trapped by an event
occurring in the mine. If changes are made to the mining plan that
alters this configuration in a fashion that could result in
entrapment, this plan will be modified to address those changes
and provide the necessary facilities."
(Stip. 40; JE-3). With respect to breathable air for outby areas, the plan submitted on August 7
was the same as the plan submitted on June 14 except for the changes highlighted in the above
letter, some minor wording changes, and provisions that Twentymile will supply foam packs for
ensuring a good seal around equipment doors in the area of the 6 MN shaft as well as food,
water, first-aid kits, blankets, and emergency light sources in that area. (JE-4).
On September 10, 2007, District Manager Davis responded to Twentymile's submission
by stating, in part, that if Twentymile continues to refuse to establish a refuge area between the
portal and the 6 MN intake air shaft, the Secretary will "conclude that the parties are at an
impasse and will initiate proceedings pursuant to section 316(b)(2)(G) of the Mine Act to resolve
the dispute." (Stip. 41; JE-5). Twentymile responded to Mr. Davis's letter by reiterating that the
Foidel Creek Mine has a configuration that is "unique in that multiple directions are available for
personnel working underground to use if an event required evacuation from the mine" with the
result that "the requirement of a refuge chamber for the area in question, from the portal to the
intake shaft, is not applicable.... " (Stip. 42; JE-6). The letter further states that "[i]f changes
are made to the mining plan that alters this configuration in a fashion that could result in
entrapment, this plan will be modified to address those changes and provide the necessary
facilities." Id.
On September 18, 2007, Hillary Smith of MSHA issued Citation No. 7284469 under
section 104(a) of the Mine Act, alleging the following violation:

The Foidel Creek Mine violated§ 316(b)(2) of the [Mine Act] by
failing to develop, adopt, and submit to MSHA an emergency
response plan ... that effectively provides for the maintenance of
individuals trapped underground for a sustained period of time.
Specifically, the August 7, 2007, emergency response plan (ERP)
does not provide materials and equipment necessary to supply
breathable air for miners who may be trapped in the main entries of
the mine in the approximately 20,000 foot distance between the
portal and the intake air shaft near the 6 MN section.
The citation summarizes the negotiations that occurred and states that MSHA ''notified the
operator of its obligation to make the specific modification to the ERP in order to come into
compliance with§ 316(b)(2) of the Mine Act." The citation then states that this "modification

29 FMSHRC 851

would require the installation of an established refuge area/rescue chamber at a midpoint between
the portal and the intake air shaft, which has the capability to maintain the maximum number of
persons who may be trapped in this area for a period of at least 72 hours."
The Secretary filed her referral of an ERP dispute with the Commission on September 20,
2007, in accordance with 29 C.F.R. § 2700.24(a). Twentymile timely responded to the referral
and requested a hearing.

II. DISCUSSION WITH FURTHER FINDINGS
AND CONCLUSIONS OF LAW
Twentymile describes the issue in this case as whether the citation should be vacated as
improperly issued because Twentymile' s ERP should have been approved without a requirement
of a supply of post-accident breathable air, other than SCSRs, in the main entries between the
mine portals and the 6 MN intake air shaft. The Secretary agrees with this description of the
issue with the caveat that the citation must be affirmed ifMSHA's decision to reject the disputed
provision of the ERP wa.S-not arbitrary or capricious.

A.

Summary of the Parties' Ar1:uments
1.

Secretary of Labor

The Secretary contends that the district manager did not act in an arbitrary or capricious
manner when he refused to fully approve Twentymile's ERP without including a provision for
post-accident breathable air for miners who may be trapped underground in the mine's main
entries. The Secretary takes the position that, in the event of a fire in the belt entry or a fire
associated with diesel equipment, or in the event of another incident produced by a confluence of
unforeseeable events, miners may be prevented from escaping through the mine portal and may
be driven deeper into the mine. Although the Secretary recognizes that miners may be able to
travel the three and a half miles to the 6 MN air shaft and escape, some miners may not be able to
reach that air shaft due to factors such as exhaustion, injury or disorientation from smoke and
gasses.
She argues that the MINER Act does not limit the scope of protection by mandating the
establishment of refuge areas only in areas where miners are "likely" to be trapped. Rather, the
Act recognizes the possibility that miners may be trapped at any underground coal mine and
requires each operator to provide breathable air sufficient to maintain miners who may be trapped
underground. The evidence presented at the hearing establishes that there is a reasonable
possibility that miners may be trapped in the main entries at the Foidel Creek Mine and may need
a refuge area capable of providing breathable air to maintain them until they can be rescued. The
district manager considered two specific scenarios when he determined that a refuge area was
required: the possibility of a belt fire or an equipment fire. Because the evidence presented at

29 FMSHRC 852

the hearing established that such events were reasonably possible, the district manager's
determination was neither arbitrary nor capricious and the citation should be affirmed. While the
Secretary recognizes that Twentymile has a number of measures in place that are designed to
prevent or contain a fire in the mains, such measures are not fool-proof.

2.

Twentymile

Twentymile contends that the Secretary's case rests on the "reasonable possibility'' that a
belt fire, equipment fire, or explosion would block miners working in the mains from escaping to
the mine portal. With respect to emergency supplies of breathable air for miners trapped
underground, the Senate Report states that ''with regard to entrapment, the act requires that
emergency plans analyze the likely risks to determine if breathable air beyond increased stores of
SCSRs is necessary ...." (Ex. R-60. p. 6) (emphasis added). As a consequence, Twentymile
contends that the provision in the MINER Act requiring the provision of supplies of breathable
air is not triggered by a mere "reasonable possibility'' that miners could be trapped. An ERP
must consider possible risks and provide for supplies of breathable air for risks that are "likely."
This approach is consistent with the "reasonably prudent person" test used by the Commission to
avoid due process problems. {T. Br. 16).
Twentymile also contends that the Secretary failed to establish that there was a
"reasonable possibility'' that anyone would become trapped in the mains at the Foidel Creek mine
and would thereby need to seek refuge. Twentymile argues that the record in this case makes
clear that the risk of miners becoming entrapped in the mains at the mine is extremely unlikely.
Indeed, the Secretary admitted in her opening statement that it was unlikely that anyone would be
trapped in that part of the mine. As a consequence, MSHA' s district manager was required to
approve Twentymile's ERP as a matter oflaw.
Although Twentymile does not believe that the use of an "abuse of discretion" or
"arbitrary and capricious" standard is appropriate, application of such standard to the facts in this
case must result in a finding that the decision of the district manager was arbitrary and
capricious. Congress clearly required the Secretary to review each plan taking into consideration
the "specific physical characteristics of the mine." (§ 316(b)(2)(C)(iii)). The district manager
failed to recognize that there are multiple ways out of the mine that would preclude entrapment
in the mains. In addition, he failed to recognize that, unlike most mines, Twentymile provides
two isolated intake escapeways with air from different sources. He also failed to recognize that a
miner could move easily from one intake escapeway to another without entering belt entries. He
failed to recognize that miners working in the mains have vehicles and that they could drive to a
mine exit. He also failed to take into consideration the enhancements with respect to fire
protection that Twentymile had in place.
The district manager's rejection of the disputed provision of the ERP was made on an ad
hoc basis rather than in accordance with "ascertainable standards." Such decision-making is
itself arbitrary and capricious. The district manager failed to examine the relevant data and

29 FMSHRC 853

articulate a satisfactory explanation for his action that sets forth a rational connection between
the facts and the choice made. (T. Br. 19-20) (citations omitted). The district manager's
decision was also internally inconsistent. The approved portion of the plan does not require a
supply of breathable air for the longwall section because there were two isolated escapeways
available. (Tr. 60; JE-4). The same logic applies to the mains because there are two isolated
intake air escapeways in the mains in the direction of the mine portal. (Tr. 61; Ex. S-2). In
addition, there were other escapeways in the direction of the portal, including the belt entry.
Miners could also escape by traveling inby to the 6 MN intake air shaft where there is a hoist for
use to escape during an emergency. Finally, Twentymile outfitted the 6 MN intake air shaft area
with a refuge area that can be barricaded. Miners could barricade themselves and have
breathable air supplied through boreholes from the surface.
It is clear from William Reitze's testimony that the district manager was concerned that
the intake escapeways would become blocked near the mine portal in the event of a fire or
explosion. Even if such a blockage occurred, which is highly unlikely, miners in the mains could
drive or walk to the 6 MN intake air shaft and exit the mine. This route is primarily downhill.
These facts undercut the district manager's rejection of the plan and the Secretary's argument
that a refuge area is necessary in the vicinity of the 3 MN. Twentymile also notes that there are
over 1,500 SCSRs stored in caches in the mains that are spaced no more than one half hour travel
time apart. (JE-4; JE-7).

B.

Summary of the Evidence

William Reitze, an MSHA supervisory mining engineer in District 9, reviewed
emergency response plans for the district manager. (Tr. 25). Hillary Smith, who works for Mr.
Reitze, was the point person in the review process. (Tr. 58-59). Reitze testified that ''we felt that
the distance between the portals and the 6 Main North ... intake shaft escape facility was too far
to allow either exhausted individuals or injured individuals to escape should there be an incident
that occurs just inby the portals in the First Main North, Second Main North area." (Tr. 26). As
a consequence, the district manager wanted a refuge area "somewhere roughly haliWay between
the main portals and the Six Main North intake escapeway," which would place it in the 3 MN
area. Id. The district manager was seeking a facility that was "prebuilt" rather than having
materials present that miners could use to barricade themselves. (Tr. 27, 59).
Reitze testified that an accident just inside the portal area may create a situation where a
refuge area may be needed. Specifically, he testified that if miners cannot escape through the
mine portal, they would have to travel, by one means or another, to the 6 MN escape shaft. (Tr.
28, 49). If there were an equipment fire and miners worked to try to put the fire out, they might
become extremely exhausted and just might not be able to travel the over three mile distance to
the 6 MN shaft. Id. He admitted that it would be a better practice to fight a fire near the portal
from on outby direction and did not know whether the miners were so trained. (Tr. 66).

29 FMSHRC 854

Reitze testified that an equipment fire could generate a significant amount of smoke and
contaminate the air. Hydraulic fluid or diesel fuel could help propagate a fire. (Tr. 52-54). He
admitted, however, that all underground vehicles were equipped with automatic fire suppression
systems and fire extinguishers. (Tr. 71-72). Frictional heating from a belt moving against the
metal frame could ignite float coal dust, coal dust, belt string, or loose coal. {Tr. 44-48, 68-69).
Such a fire, if it became hot enough, could compromise stoppings separating the belt entry from
one of the intake escapeways. Id. Reitze admitted that Twentymile has carbon monoxide
("CO") sensors along the belt entry. (Tr. 67). MSHA's requirement for a refuge area in the 3
MN is predicated on the assumption that both intake escapeways are contaminated with smoke.
{Tr. 48). Although unlikely, Reitze testified that it is possible to have an explosion in the mains
near the portal. He testified that for an explosion to occur "you would have to have float coal
dust in the right proportions in suspension in the air stream and then subject that to some sort of
ignition source or fire ...." {Tr. 55, 69-71). He said a hot fire can cause a roof fall which in
turn can put float coal dust into suspension. Id. An explosion could damage stoppings or other
ventilation structures that separate the air courses. {Tr. 56).
Reitze acknowledged that these events were not likely to occur. He stated:
This mine is a fairly progressive mine in many ways, so the
likelihood would be very unlikely that [such events] could occur.
But there is a reasonable possibility that they could occur.
{Tr. 30, 48, 57). He stated that this "reasonable possibility" was based on the fact that:
you cannot say that any type of incident will never happen. The
history of the mining industry over the years over many hundreds
of years has shown that you cannot rule out anything.

Id. He also testified that MSHA's conclusion was based on specific factors in the mains at the
Foidel Creek Mine. {Tr. 57-58). If the emergency event were to occur near the portals and
miners could not exit the mine at the portals, they would have to travel about three and a half
miles. Most of the travel distance would be downhill, but the grade in some places would be 15
to 17 percent. (JE-7). These steep grades could hinder travel for injured miners, especially if
they were wearing a SCSR and the entries were filled with smoke. {Tr. 50).
The entries in the mains are about 18 feet wide and 8 feet high. {Tr. 32, 160). As stated
above, the mains are on a downhill grade as one travels from the portals to the 6 MN intake air
shaft, except that the entries go up again at an 8 percent grade close to the 6 MN air shaft. {Tr.
162). The grades are shown on the map submitted as part of the ERP, and range between 0 and
17 percent. (Tr. 34, 162; JE-7). These grades were taken into consideration when establishing
the distance between SCSR caches for the ERP in the mains. There are five to eight parallel
entries in the mains, including two intake air escapeways and a belt entry. The air for the No. 2
intake entry and the No. 5 intake entry originate from two distinct points outside. {Tr. 61). The

29 FMSHRC 855

belt entry, which is between these two intake entries, was constructed with overcasts and
undercasts to allow miners to travel from the No. 2 entry to the No. 5 entry without traveling
through the belt entry. (Tr. 65, 165-66). Diesel pickup trucks and other equipment are usedto
transport miners through the mains. Twentymile has about 140 pieces of mobile diesel
equipment for use underground. (Tr. 40; Ex. S-31 ).
Derrick Tjernlund, a senior fire protection engineer at MSHA's approval and certification
center in Triadelphia, West Virginia, was the fire investigator for MSHA with respect to the
January 2006 belt fire at the Aracoma Alma Mine. (Tr. 121; Ex. S-32). He testified in this
proceeding, as an expert witness, about how belt fires and equipment fires can start and
propagate in an underground coal mine and about explosions in underground coal mines. (Tr.
123-52). He was present during Mr. Reitze's testimony, but he has never been to the Foidel
Creek Mine. He testified that, based on his own expertise and the testimony ofReitze, he
believes that it is "probably not that likely" that a fire or explosion in the mains between the
portal and the 6 MN intake air shaft would trap miners or prohibit them from escaping from the
mine. (Tr. 142-43). He went on to testify that "if you do get a belt fire, the potential for a serious
fire is definitely there." Id. He does not question the wisdom of requiring a refuge area in the 3
MN because the scenarios described by Reitze are "credible event[s]." ld. 4
Robert Johnson, the technical safety coordinator for Twentymile, testified that he was
involved in the submission of the ERPs by Twentymile. (Tr. 156-57; Ex. R-18). He testified
that miners would not get trapped in the mains at the mine because of"the multiple ways that
[miners] can [use] to get out of the mine" and the "multiple directions they could go." (Tr. 158,
165). If there were a problem "outby, they could go inby and escape from one of the escape
facilities; or if the incident [were] inby, they could go to the portal." Id. On the inby side, the
mine has the 6 MN air shaft ''which is now equipped with an automatic hoist - you get in and
push the button and evacuate the mine." Id. This shaft has a diameter of 18 feet. (Tr. 163).
There are also two other intake shafts further inby that can also be used for escape. One contains
an automatic elevator and the other an escape capsule. (Tr. 158-59). Johnson concluded that, in
order to have miners trapped in the cited area, there would have to be multiple "incidents inby
and outby the individuals' location." (Tr. 169).
During a typical shift, there are about five miners shoveling along the belts, two miners
rock dusting, two or three miners performing belt maintenance, and two fire bosses preforming
the preshift. These miners generally have pickup trucks at their disposal. (Tr. 161). He testified
that in most instances, miners working in the outby areas of the mine would exit the mine in an
emergency using a pickup truck or other vehicle. (Tr. 162). Johnson admitted that it would be
difficult to drive through the intake entries if they were filled with smoke. (Tr. 168).

4

MSHA Inspector Donald Gibson also testified for the Secretary. He testified
concerning citations that have been issued at the Foidel Creek Mine alleging that there were
accumulations of loose coal, coal dust and float coal dust along the belt entry and openings in
ventilation controls. (Tr, 93- 116; Exs. S-10, S-11, S-12, S-14, S-16, S-21, S-34, and S-35).
29 FMSHRC 856

The area around the 6 MN air shaft is also outfitted with emergency supplies of food,
water and sealant. (Tr. 62, 165). Jn addition, there are other bore holes that can be used to
supply fresh air to miners who have barricaded themselves in that area. (Tr. 163-65; Ex. R-20).

R. Lincoln Derick, an owner of Derick Mining & Safety, was the safety manager and
technical safety coordinator with Twentymile for about 15 years. (Tr. 173; Ex. R-17). He has
extensive experience and expertise in mine safety, mine fires, and mine rescue. {Tr. 173-77; Ex.
R-17). He testified about the extra measures that have been taken at the Foidel Creek Mine to
enhance the safety and health of miners. These additional measures include protections that are
not required under MSHA's standards and are generally not found in other underground coal
mines. The mine has two intake escapeways to the portal, for example, that provide outside air
from different sources. {Tr. 178). The mine also has several other ways to escape the mine,
other than through the portal, that are on intake air, including the 6 MN shaft, the 18 Right intake
shaft, and the 9 Right intake shaft. {Tr. 178-79). The mine is equipped with an atmospheric
monitoring system that measures the mine atmosphere at numerous locations for methane and
CO levels. (Tr. 179-80). Derick testified that Twentymile has more CO sensors along the belt
entry than most mines. Jn addition, the mine has installed tachometers and other devices along
the belt that will shut down the belt in the event it is slipping against a drive. (Tr. 180-83). The
belts are equipped with other safety features, which are not typically found in underground coal
mines, that will shut down the belts if everything is not operating correctly. Id. Finally, the
sprinklers along the belt are high-pressure, high-flow sprinklers that will flood the area to put out
a fire. (Tr. 184-86). The sprinkler lines are under pressure at all times and will activate
automatically in the event of a fire. Id. Jn addition, the mine has a fully equipped fire brigade
that would fight any fire in the mine from the outby side. (Tr. 186-87).
Mr. Derick testified that because of the safety features in use at the mine, set forth above,
the scenarios described by Messrs. Reitze and Tjernlund for a belt fire, equipment fire, or an
explosion are highly unlikely. {Tr. 188-189). Although one can imagine "simultaneous events
that are ... improbable," the likelihood of people being trapped is very low because there is
"fresh air'' available to escaping miners in either direction. (Tr. 196). He opined that having a
refuge area in the 3 MN is putting a "dangerous carrot" out there. Id. He believes that people
should get themselves to the 6 MN intake shaft and that any injury that would slow them down
getting to this air shaft would also slow them down getting to the refuge area. (Tr. 199).

C.

Analysis of the Issues

I agree with the Secretary that the issue here is whether her decision to require the
construction of a refuge area along the mains near the midpoint between the portal and the 6 MN
intake air shaft was arbitrary and capricious. Twentymile argues that section 3 l 6{b)(2) is
unconstitutionally vague, that the Secretary's use of PPLs and the PIB to evaluate ERPs is
contrary to law because they were not subject to notice and comment rulemaking, and the
Secretary's refusal to approve the ERP was contrary to law. These general legal issues were also

29 FMSHRC 857

raised by the Respondents in Emerald Resources/Cumberland Coal Resources, 29 FMSHRC
542, 550 (June 2007). Commission Procedural Rule 24(e)(2)(iii) specifies that the "scope of [a
hearing on an ERP dispute] is limited to the disputed plan provision ...." This rule implemented
the requirement in the MINER Act for expeditious resolution of disputes concerning the contents
of plans so that the "benefits of the Act could be realized by miners." Id. I agree with Judge
Zielinski's analysis of the general legal issues set forth in his decision in Emerald
Resources/Cumberland Coal Resources. Id. at 550-52. See also C. W. Mining Co., 18 FMSHRC
1740, 1746 (Oct. 1996); Monterey Coal Co., 5 FMSHRC 1010, 1019 (June 1983). As discussed
below, I also reject Twentymile's argument that the arbitrary and capricious standard is not
applicable because the Secretary clearly violated the MINER Act when she required Twentymile
to install a refuge area where it is unlikely that miners will be trapped.
The Secretary bears the burden of proving that her refusal to accept Twentymile' s plan
provision concerning breathable air in the mains in favor of her requirement for a refuge area was
not arbitrary and capricious. I credit the testimony of Reitze and Tjernlund and I find that the
Secretary met her burden of proof.
--

It is about four miles between the portal to the 6 MN air shaft. Twentymile focuses on
the fact that it was not likely that miners would ever become trapped in the outby areas of the
mine. Twentyrnile is correct when it argues that it is unlikely that a refuge area in the outby area
of the Foidel Creek Mine will ever need to be used. It must be kept in mind, however, that it is
unlikely that refuge areas in any underground coal mine will ever need to be used. Although the
events at the Sago Mine in January 2006 generated a great deal of publicity, there have actually
been very few instances since the Mine Act became law in which miners needed to barricade
themselves underground because they were unable to exit the mine in an emergency. Escape
from the mine is always the most desirable outcome and the MINER Act addresses that issue.
Thus, although the legislative history indicates that a plan must evaluate the "likely risks," the
MINER Act cannot be interpreted to require the Secretary to prove that the use of a particular
refuge area is likely, that the catastrophic events that could lead to its use are likely, or that
escape from the mine is unlikely in order to legally include the refuge area in an ERP. The vast
majority of refuge areas that are being established under the MINER Act will never be used
because either the catastrophic events that could necessitate their use will never occur or because
the affected miners will be able to escape the mine. Although it may be less likely that anyone
would be trapped in the outby areas of this mine than in active workings in an underground coal
mine, it was not unreasonable for the district manager to be concerned and require the inclusion
of an outby refuge area. 5

5

The Secretary argues that the requirement for refuge areas in underground coal mines is
similar to the provision for oxygen masks on commercial airplanes. Although it is highly
unlikely that anyone, including frequent flyers, will ever have to use an oxygen mask, every
commercial airline must equip its planes with oxygen masks for all passengers and must instruct
passengers on their use.
29 FMSHRC 858

It is important to understand that Twentymile is an exemplary underground coal mine
operator. Twentymile's management is obviously very interested in the safety ofits employees
and the company has committed a considerable amount of its resources to provide a safe working
environment. Many of the safety initiatives instituted at the Foidel Creek Mine, as described by
Robert Johnson and Lincoln Derick, provide a higher level of safety than is required by the Mine
Act and the Secretary's safety standards. I credit their testimony. Indeed, Reitze referred to
Twentymile as a ''progressive" operator. It cannot be denied that the presence of these safety
initiatives makes it less likely that the refuge area will need to be used in an emergency.
Nevertheless, I find that the Secretary established that there is a "reasonable possibility'' that a
major accident or multiple accidents could trap miners, especially injured miners, between the
portal and the 6 MN air shaft. In such an instance, miners may need to use the refuge area that
the Secretary is seeking to include in the plan.
Twentymile argues that the district manager failed to consider the mine specific
conditions when he rejected its proposal for miners working in outby area. This argument is not
compelling because it is clear that the district manager did consider the specific conditions. He
evaluated the need for a refuge area taking into consideration the distances involved and the
possibility of a belt fire, an equipment fire, or another unexpected event near the portal. These
types of events have occurred in mines, as evidenced by the belt fire at the Aracoma Alma Mine,
for example. I do not have the authority to substitute my judgment on this issue for that of the
district manager. I find that the district manager considered the specific conditions present in the
outby areas of the mine when he reached his decision to reject the proposed language in the plan
dealing with breathable air in outby areas. The fact that District Manager Davis reached a
different conclusion than Twentymile on this issue does not establish that he failed to consider
the facts.
Twentymile also relies on the fact that the district manager approved a similar provision
for the active longwall section. A refuge area for the longwall section was not required to be
included in the plan because there are two distinct escape routes out of that area. The evidence
establishes that the district manager did not require a refuge area for the longwall because that
section receives intake air from two independent sources. (Tr. 87). The intake air in the
longwall comes from opposite directions while the air in the mains travels down parallel intake
entries. 6 (Tr. 61, 87-88). The Secretary believes that a single event could contaminate both
intake airways in the mains but that a single event could not contaminate both air courses in the
longwall section. The intake air courses in the mains are parallel to one another and are
separated by the belt entry and ventilation controls. These ventilation controls could be damaged
in the event of a major accident. Thus, it was reasonable for the district manager to accept
Twentymile's proposal for breathable air on the longwall section and reject its proposal for the
mains .. The ERP does require a refuge area for the conventional mining sections.

6

The fresh air from the 6 MN shaft is used to ventilate active mining areas, not the
mains. The air in the intake entries in the mains enters the mine at the portals.

29 FMSHRC 859

Twentymile sought to introduce evidence at the hearing to show that other MSHA district
managers approved ERPs for other mine operators that contained provisions that were similar to
Twentymile's proposed ERP with respect to breathable air in outby areas. The Secretary filed a
motion in limine to exclude such evidence. Twentymile opposed the motion and the parties
provided further argument on this issue at the hearing. (Tr. 72-82). I granted the Secretary's
motion at the hearing. Id. I determined that the scope of this proceeding is limited to whether
the Secretary's rejection of the disputed plan provision was arbitrary and capricious. I held that
the evidence Twentyniile sought to introduce would be of little probative value. (Tr. 80-81). It is
unlikely that two underground coal mines would present exactly the same factual situation. Even
if two mines were similar, the only issue in the present case would be whether District Manager
Davis acted reasonably. Twentymile's evidence on this issue really concerns its larger argument
that the Secretary's process of using PPLs and the Pm to evaluate ERPs was unlawfully ad hoc
and produced inconsistent results. I permitted Twentymile to make an offer of proof on this
issue. (Tr. 82; Exs. R-70 through R-75).

It is worth noting that the subject of refuge areas in outby sections of a mine was
addressed by the Secretary in the "Breathable Air Questions and Answers" that was attached to
Pm P07-03. The attachment provides:
As with air provided to miners at the working section, breathable
air should be provided to outby miners working in established
work positions within an inflatable chamber, barricade or other
alternative that isolates miners from contaminated environments.
Air may be provided through compressed air or oxygen canisters,
chemical oxygen generator, a bore hole, or compressed air lines.
To increase the chances that outby miners could reach breathable
air supplies after an accident, District Managers generally will be
looking for breathable air locations to be located not more than one
hour travel distance from each other. This will help assure that
miners would not need to travel more than 30 minutes in either
direction to reach a refuge area.
(Ex. R-57). The district manager's insistence on the establishment of a refuge area in the mains
between the portal and 6 MN is consistent with this guideline. If miners were working inby the
portal and an accident prevented them from exiting the mine at the portals, they could be required
to travel as much as three and a half miles to the 6 MN intake air escapeway. I find that the
Secretary established that, in such an instance, there is a reasonable possibility that miners will
need to seek refuge before they can reach the intake air shaft. The district manager took into
consideration all of the safety features described above as well as the presence of caches of
SCSRs located along the intake entries and the availability of vehicles in the entries.
To summarize, I find that the Secretary carried her burden of proving that her refusal to
accept Twentymile's proposal on breathable air in the outby area of the Foidel Creek Mine was

29 FMSHRC 860

not arbitrary and capricious. The record demonstrates that the Secretary engaged in substantial
negotiations with Twentymile over the course of many months. The record also establishes that
the district m~ager's position on this issue was made in good faith and is reasonable.

III. ORDER
Citation No. 7284469 is AFFIRMED. Twentymile must include a provision for postaccident breathable air in the main entries somewhere near the 3 MN as required by the
Secretary. Further negotiations between the parties will be necessary to map out the details.

Richard W. Manning
Administrative Law Judge

Distribution:

Stephen Turow, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22nd
Floor, Arlington, VA 22209-2296 (Fax and Certified Mail)
John Rainwater, Esq., Office of the Solicitor, U.S. Department ofLabor,1999 Broadway, Suite
1600, Denver, CO 80202-5710 (Fax and First Class Mail)
R. Henry Moore, Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1340, 401 Liberty
Avenue, Pittsburgh, PA 15222 (Fax and Certified Mail)

RWM

29 FMSHRC 861

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

October 24, 2007
CONTEST PROCEEDINGS

DRUMMOND COMPANY, INC.,
Contestant

Docket No. SE 2006-59-R
Order No. 7681973; 12/01/2005

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

Docket No. SE 2006-60-R
Order No. 7681974; 12/01/2005

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

CIVIL PENALTY PROCEEDING

Mine ID: 01-02901

Docket No. SE 2006-280
A. C. No. 01-02901-83883

v.
DRUMMOND COMPANY, INC.,
Respondent

Shoal Creek Mine

DECISION
Appearances: Marybeth Zamer Bemui, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for Petitioner;
Noelle Holladay True, Esq., and Marco M. Rajkovich, Jr., Esq., Rajkovich,
Williams, Kilpatrick & True, PLLC, Lexington, Kentucky; for Respondent.
Before:

Judge Hodgdon

These consolidated cases are before me on Notices of Contest and a Petition for
Assessment of Civil Penalty brought by Drummond Company, Inc., against the Secretary of
Labor and by the Secretary of Labor, acting through her Mine Safety and Health Administration
(MSHA), against Drummond Company, Inc., pursuant to section 105 of the Federal Mine Safety
and Health Act of 1977, as amended, 30 U.S.C. § 815. The company contests the issuance to it
of two citations alleging violations of the Secretary's mandatory health and safety standards. The
petition alleges the same two violations of the Secretary's mandatory standards and seeks a
penalty of $120.00. A hearing was held in Birmingham, Alabama. For the reasons set forth
below, I vacate the citations.
29 FMSHRC 862

Drummond Company operates the Shoal Creek Mine, a large, underground coal mine
near Birmingham, in Jefferson County, Alabama. fu November and December 2005, the mine
had one active longwall section, one longwall section that was being moved, one longwall set-up
section and four continuous miner sections, all served by five ventilating main mine fans and two
functioning bleeder systems. The mine operated three shifts per day and had nearly 700
underground employees.
Between 2:30 a.m. and 3:00 a.m. on November 30, 2005, James Glynn, the Assistant
Mine Foreman on the owl shift, was notified by the communications officer that a fan alarm had
been activated and the water gauge on the No. 6 fan had gone down an inch, indicating a
reduction in air pressure. Glynn, who was already underground, set out to find the problem. He
discovered that the No. 9 North Main stopping had been blown out, creating a 12 foot by 16 foot
hole in the stopping.
Glynn, along with the Mine Foreman and the communications officer, who was located
on the surface, then contacted each of the working sections and asked that they take air readings
to determine the effect of the hole in the stopping on ventilation. The only change of significance
was reported by the foreman of the G-5 longwall section, who informed that the airflow
measured about 65,000 cubic feet per minute (c:fm). Normal airflow at that location was about
85,000 c:fm and had been measured at 86,179 cfm during the preshift inspection conducted prior
to the start of the shift. The mine's ventilation plan called for a minimum of 45,000 cfm at that
section.
Glynn ordered materials to repair the s~opping and work began between 5 :00 a.m. and
6:00 a.m. Although none was being mined at the time, Glynn directed that no coal be produced
until the stopping had been fixed and the sections were notified that it was all right. 1 fu addition
all sections were instructed to continue to take air readings every 30 minutes and to report any
changes. At no time during the repairs was a reading under 65,000 c:fm obtained.
Repair of the stopping had not been completed by the beginning of the day shift. At
around 8:00 a.m., Johnny Calhoun, supervisor of the ventilation department at the local MSHA
field office, received a call from a miner stating that there had been a stopping failure on the
previous shift and asking if miners could be sent underground while the stopping was being
repaired. Calhoun replied that ''when the stopping came out, it was an unintentional change that
occurred; that, however, once they started building that stopping back, that they had to comply
with 324, 75.324, meaning that it became an intentional change to the ventilation system once
they started doing repair on that stopping." (Tr. 23.)

1

The owl shift is primarily a maintenance shift where power sources are moved, belt lines
extended and repairs are performed to make sure that the day shifts are ready to operate.
29 FMSHRC 863

Don Hendrickson, the Mine Manager, arrived at the mine around 5:30 a.m. He learned
during the morning shift change that there was a complaint about miners being in the mine while
the stopping was repaired. He attended a meeting in the mine office with the union safety
committee, someone from the company's safety department, the mine foreman and MSHA
Inspector John Church, who happened to be at the mine for an inspection, to discuss the
situation. Church left during the meeting and apparently called Calhoun. When he returned, he
said that the company had to comply with section 75.324, if it applied. Hendrickson and the
other supervisors concluded that it did not apply.
The miner called Calhoun back to say that the company did not agree that section 75.324
applied and that someone from the company would be calling him. Shortly thereafter, Ed
Sartain, a member of Drummond's Safety Department, called Calhoun to ask about the situation.
Calhoun, who knew no more than that a stopping had been blown out and was being repaired,
told Sartain that if Drummond felt that section 74.324 applied to the situation, they should
comply with its requirements.
The miner called Calhoun back a third time to advise that miners had been sent into the
mine. He also said that the repair of the stopping was almost completed. Calhoun told him that
he would send someone to the mine to investigate the complaint the next day.. The repair to the
stopping was completed between 9:30 a.m. and 10:00 a.m. The preshift air reading taken on the
G-5 section after the repair measured 82,940 c:fin.
MSHA Inspector David Allen went to the mine on December 1, 2005, to investigate the
complaint. As a result of his investigation, he issued Citation Nos. 7681973 and 7681974, which
are the subject of this proceeding.

Findina:s of Fact and Conclusions of Law
Citation No. 7681973 alleges a violation of section 75.324(b){l), 30 C.F.R.
§ 75.324(b)(l), because: "The operator did not remove power from the affected area [G-5
Longwall Section (MMU 007-0)] during an intentional change in the ventilation system
conducted during the owl and day shifts on 11/30/05." (Govt. Ex. 5.) Citation No. 7681974
charges a violation of section 75.324(b)(2), 30 C.F.R. § 75.324(b)(2), in that: "An intentional
change was made in the ventilation system on the owl and day shifts on 11/30/05 and the
operator allowed persons who were not involved in this change to remain in the mine while the
change was being made." (Govt. Ex. 4.) Both citations were originally charged as 104(d)(2)
orders, 30 U.S.C. § 814(d)(2), but were modified on December 19, 2005, to 104(a) citations, 30
U.S.C. § 814(a).
The Secretary asserts that the language of the regulation is clear. She argues that when
Drummond intentionally repaired the stopping, which changed the air on the G-5 longwall
section by more than 9,000 cfin (from 65,000 cfm to 82,940 cfin), the operator made an
intentional ventilation change. Therefore, she concludes that the company violated the regulation

29 FMSHRC 864

by not removing electric power and shutting off mechanized equipment in the affected areas and
removing all miners but the repairers from the mine. On the other hand, while agreeing that the
language of the regulation is clear, the operator contends that it does not apply because there was
not a intentional change to its ventilation system. In fact, while the meaning of the regulation, as
explained by MSHA when the rule was adopted, is indeed clear, it is apparent that the Secretary
has misinterpreted it in this situation.
Section 75.324, 30 C.F.R. § 75.324, is entitled "Intentional changes in the ventilation
system" and provides, in pertinent part, that:
(a) A person designated by the operator shall supervise any
intentional change in ventilation that (1) Alters the main air current or any split of the main air
current in a manner that could materially affect the safety or health
of persons in the mine, or
(2) Affects section ventilation by 9,000 cubic feet per
minute of air or more in bituminous or lignite mines ....
(b) Intentional changes shall be made only under the
following conditions:
(1) Electric power shall be removed from areas affected by
the ventilation change and mechanized equipment in those areas
shall be shut off before the ventilation change begins.
(2) Only persons making the change to ventilation shall be
in the mine.
Until 1992, changes in ventilation were governed by section 75.322 of the regulations. 2
Section 75.322 was a restatement of section 303(u) of the Act, 30 U.S.C. § 863(u), which
requires that:
Changes in ventilation which materially affect the main air
current or any split thereof and which may affect the safety of
persons in the coal mine shall be made only when the mine is idle.
Only those persons engaged in making such changes shall be
permitted in the mine during the change. Power shall be removed
from the areas affected by the change before work starts to make
the change and shall not be restored until the effect of the change
has been ascertained and the affected areas determined to be safe
by a certified person.

2

The rules governing ventilation were revised and recodified in 1992. Safety Standards
for Underground Coal Mine Ventilation, 57 Fed. Reg. 20868(May15, 1992).
29 FMSHRC 865

This same standard had been in effect since at least section 303(u) of the Federal Coal Mine
Health and Safety Act of 1969.
On first reading, it appears that the inspector's interpretation of the rule may be correct.
Drummond intended to repair the stopping, thus intentionally (making a ventilation change)
increasing air flow at the G-5 section from 65,000 c:fin to about 85,000 cfin. This is clearly more
than 9,000 cfin. However, this is not in accord with MSHA's explanation of the rule when it was
adopted. In announcing the new rule in 1992, MSHA stated:
This section revises existing§ 75.322. It requires certain
precautions when a change is made to increase or decrease
ventilation on a working section or when a ventilation change
alters the main air current of the mine or any split of the main air
current in a manner that could materially affect the health and
safety of miners under ground.
57 Fed. Reg. at 20879. MSHA went on to state that: "Section 75.324 sets an action level of
9,000 cfm for ventilation changes on working sections .... " Id. at 20880. Finally, MSHA
stated:
MSHA recognizes that in some large mines a ventilation
change of9,000 cfm ... in the main air current of the mine or an
individual split of the main air current may not necessarily be
significant. . . . Accordingly, these limits in the final role do not
apply to main air currents or to splits ofthe main air currents.
Instead, the final rule specifies that the prescribed precautions must
be taken when the ventilation change is one that "alters the main
air current in a manner that could materially affect the safety or
health of persons in the mine."
Id. (emphasis added).

It is apparent from this that since 1992 there have been two kinds of ventilation changes
that bring section 75.324 into play. The first is a change in the main air current or any split of the
main air current and involves the regulation if the change "could materially affect the safety or
health of persons in the mine." The second is a change in air on a working section and involves
the regulation ifthe change "affects section ventilation by 9,000" cfm or more. In effect, the new
rule included the old rule and added a new one for changes to increase or decrease ventilation on
working sections. 3

3

It is obvious that the regulation, as it is currently written, is subject to misinterpretation
since it can easily be read, as it was in this case, to be in effect whenever there is a change to the
main air current or any split of the main air current that materially affects the safety or health of
29 FMSHRC 866

In this case, the repair to the stopping was on the No. 9 North Main roadway, clearly a
main air current or split of a main air current. How~ver, the Secretary has based these allegations
solely on the basis that the alleged ventilation change affected ventilation on the G-5 section by
more than 9,000 cfm, not that it materially affected the safety or health ofminers.4 (Tr. 126, Sec.
Br. at 10.) There was no change made to ventilation air on the G-5 section; the change was made
to the main air current or split of main air current on the No. 9 North Main. Accordingly, I
conclude that the Respondent's repair of the stopping was not a violation of the regulation and
will vacate the citations.
Order

In view of the above, Citation Nos. 7681973 and 7681974 are VACATED and it is
ORDERED that these cases are DISMISSED.

~1:1~
Administrative Law Judge

miners or affects section ventilation by 9,000 cfm. However, if such an interpretation were
correct, than the statement that the 9,000 cfm limit does not apply to main air currents or splits of
main air currents would be meaningless.
4

MSHA revised the ventilation rules again in 1996. Safety Standards for Underground
Coal Mine Ventilation, 61 Fed. Reg. 9764 (March 11, 1996). Section 75.324 was not revised.
However, in a discussion of the rule, MSHA stated that the phrase "materially affect the safety or
health of persons in the mine" is "important in that it identifies those ventilation changes that
require approval of the MSHA district manager under§ 75.370(c)." Id. at 9779. The discussion
went on to provide the following examples of intentional changes that would materially affect the
safety or health of miners:
[A]dding a new shaft; bringing a new fan on line; changing the
direction of air in an air course; changing the direction of air in a
bleeder system; shutting down one fan in a multiple fan system;
starting a new operating system with ventilating quantities
redistributed from other sections of the mine; changing entries
from intakes to returns and vice versa; and any change that affects
the information required by§ 75.371, Mine ventilation plan;
contents.
Id. While these examples are clearly not meant to be exclusive, it does not appear that the repair
of a stopping, assuming argu,endo that a stopping repair is a ventilation change, is the type of
change covered by section 75.324.
29 FMSHRC 867

Distribution:

Mary Beth Zam.er Bemui, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church
Street, Suite 230, Nashville, 1N 37219
Noelle Holladay True, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 2333 Alumni Park
Plaza, Suite 310, Lexington, KY 40513
/sr

29 FMSHRC 868

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

October 29, 2007
MACH MINING, LLC,
Contestant

CONTEST PROCEEDINGS
Docket No. LAKE 2006-82-R
Citation No. 7582682; 03/02/2006

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

Docket No. LAKE 2006-83-R
Citation No. 7582683; 03/06/2006
Docket No. LAKE 2006-84-R
Citation No. 7583684; 03/06/2006
Docket No. LAKE 2006-85-R
Citation No. 7582685; 03/06/2006
Mach#l Mine
Mine ID 11-03141

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

MACH MINING, LLC,
Respondent

CNIL PENALTY PROCEEDINGS
Docket No. LAKE 2006-146
A.C. No. 11-03141-92222
Docket No. LAKE 2006-149
A.C. No. 11-03141-94581
Mach#! Mine

DECISION
Appearances: Christine M. Kassak-Smith, Esq., Office of the Solicitor, U.S. Department of
Labor, Chicago, IL, for the Secretary of Labor
David J. Hardy, Esq., Spilman, Thomas & Battle, PLLC, Charleston, WV, for
Mach Mining
Before:

Judge Barbour

29 FMSHRC 869

These are consolidated contest and civil penalty proceedings brought pursuant to sections
105 and 110 of the Federal Mine Safety and Health Act of 1977 ("Mine Act or Act") (30 U.S.C.
§§ 815, 820). In the contest proceedings, Mach Mining, LLC challenges the validity of four
citations issued pursuant to sections 104(a) and 104(d)(l) of the Act (30 U.S.C. §§ 814,
814(d)(l)). In the civil penalty proceedings, the Secretary of Labor, on behalf of her Mine Safety
and Health Administration (MSHA), petitions for the assessment of civil penalties for the
violations of mandatory safety standards alleged in the contested citations and for the assessment
of a civil penalty for an additional alleged violation.
The contested citations issued as the result of two roof fall accidents at Mach's No. 1
Mine, a bituminous coal mine in Williamson County, Illinois. The falls occurred in the mine's
slope on February 24 and February 25, 2006. 1 The Secretary investigated, and on March 6, 2006
issued the citations. In the citations, the Secretary asserts the company violated mandatory safety
standard 30 C.F.R. 77.1900-1, which requires an operator to "adopt and comply'' with its shaft
and slope sinking plan once the plan has been approved by the MSHA district manager. 2 The
Secretary further charges the alleged violations constituted significant and substantial
contributions to mine safety hazards ("S&S"), that one of the violations was caused by Mach
Mining's unwarrantable failure to comply with the company's plan and that the other alleged
violations were caused by the company's moderate negligence.
Mach Mining denies it violated section 77 .1900-1. It also denies the S&S and negligence
allegations. The company further argues the penalties proposed by the Secretary for the alleged

violations are inappropriate. The matter was heard in Carbondale, Illinois. 3

1

A "slope" is in part defined as, "An entrance to a mine driven down through an inclined
coal seam." U.S. Department of the Interior, A Dictionary ofMining, Mineral, and Related
Terms 1988 at 1029 ("DMMRT").
2

30 C.F.R. § 77.1900(a) states in pertinent part, "[e)ach operator of a coal mine shall
prepare and submit for approval by the Coal Mine Health and Safety District Manager ... a plan
providing for the safety of workmen in each slop or shaft that is commenced or extended after
June 30, 1971." Section 77.1900-1 states, "[u]pon approval by the Coal Mine Health and Safety
District Manager of a slope or shaft sinking plan, the operator shall adopt and comply with such
plan." Initially, the subject enforcement actions charged violations of30 C.F.R. §77.1900(a).
Prior to the hearing, counsel for the Secretary's motion to amend the citations to charge
violations of 30 CFR §77 .1900-1 was granted. See Order Granting Motion to Amend Citations
(June 5, 2007).
3

The Secretary and the company settled one of the contest proceedings and one of the
civil penalty proceedings. Counsel for the Secretary explained the settlement on the record, and I
dismissed the settled proceedings (Docket No. LAKE 06-82-R and Docket No. LAKE 06-146).
29 FMSHRC 870

STIPULATIONS
The parties stipulated as follows:
I. The ... Commission has jurisdiction over [the]
proceedings.

2. Mach Mining's operations affect interstate
commerce.
3. At all times relevant ... Mach Mining [o]perated
the Mach [No.] I Mine.
4. The Mach [No.] I Mine extracts bituminous coal.

5. The Mach [No.] I Mine began its slope development
in October[,] 2005.
6. The subject citations were properly served by a
duly authorized representative of the Department of
Labor upon an agent for Mach Mining on or about
the date and at the place indicated therein.
7. On February 24, 2006, Mach [No.] 1 Mine had a roof
fall in its slope development area.
8. On February 25, 2006, there was a more extensive
roof fall in the same area.
Joint Exh. 1.

THE LEADUP TO THE CITATIONS
AND
THE SLOPE SINKING PLAN
Michael D. Rennie is an underground mine inspector in MSHA's Benton, Illinois field

Tr. 10-11.

29 FMSHRC 871

office and the primary accident investigator in MSHA's Vincennes District, the district
encompassing the Benton field office. Tr. 18-19. Rennie has worked for MSHA since 1991.
According to Rennie, during the winter of 2006, the company was in the process of developing
the No. 1 Mine. One of the first things it had to do was drive the slope, which when completed
would lead to the mine's active workings and be used daily by miners to access and exit the
nnne.
On February 24, Rennie was in Benton when he received a telephone call informing him
of a roof fall in the slope. Rennie was familiar with the mine as he had been there twice before,
most recently on February 21. Tr. 24. Rennie was assigned to investigate the accident. Tr. 25.
Before going to the mine, Rennie contacted Mach's president, Pete Hendrick, and orally
issued an order pursuant to section 103(k) of the Act (30 U.S.C. § 813(k)) to ensure miners'
safety and to preserve the accident scene.4 The order, which was later reduced to writing,
required the fall area to be barricaded so no person could travel into it. Gov't Exh. 1; Tr. 25.
Rennie reviewed the mine's approved slope sinking plan ("the Plan"). 5 Tr. 25. The Plan
had been submitted to the-MSHA district manager, in September 2005. Following exchanges of
letters between MSHA roof control specialist Mark Odum and Mach officials, MSHA approved
the Plan on February 8, 2006. See Gov't Exh. 2. 6 Odum was responsible for reviewing and
recommending for approval slope plans in the Vincennes District. Tr. 110-111.
Robert "Mickey'' Gauldin, the mine manager, in great part drafted the Plan. Gauldin used
copies of other mines' slope plans as models. Tr. 260. Under the Plan, the roof was required to
be supported with 96 inch roof bolts. Tr. 34; Gov't Exh. 2 at 8. Rennie described the bolts as the
roofs "primary'' means of support. Tr. 34, see also Tr. 174-176. Secondary support was required

4

Section 103(k) provides an inspector with authority "[i]n the even of any accident ... to
issue such orders as he [or she] deems appropriate to insure the safety of any person in the .. .
mine." 30 U.S.C. §813(k).
5

As Rennie explained, a slope sinking plan in general, "spells out how ... [an operator]
is going to sink the slope ... and what steps ... [the operator is] going to take to protect the
health and safety of ... [its] workers as they [develop the slope]." Tr. 28. Such a plan is mine
specific.
6

Gov't Exh. 2 consists of the body of the Plan (pages 6-18), cover and submission letters
(pages 4-5), a letter of conditional approval on behalf of the District Manager to the company
(page 3), a letter from the company to the District Manager requesting final approval of the
conditionally approved plan (page 2), and a letter on behalf of the District Manager to the
company approving the Plan (page 1).
29 FMSHRC 872

to be provided by steel arches (also referred to as steel "sets") and lagging.7 Gov't Exh. 2 at 8.,
Tr. 35. The sets had to be installed on four to five foot spacing and, if wooden lagging was used,
the lagging had to be a minimum of three inches thick. Id.; see also Tr. 36. In general, the
distance between the floor and the underside of the top of a set was approximately 11 Yz feet. Tr.
40. The slope was 27 feet wide and the distance between the inside of the legs of a set was "just
under 25 feet." 8 Tr. 40.
The Plan also required lagging to consist of"a minimum of20 gauge corrugated decking
or a hardwood block (minimum 3 inches thick)." Gov't Exh. 2 at 8. The Plan further stated the
"[b]locking of the arches will be performed following the manufacturers recommendations." Id.;
37. In Rennie's view, the "manufacturer's recommendations" were shown in an attachment to
the plan entitled "Attachment #3- Steel Arches." Tr. 101; Gov't. Exh.2 at 13. In addition to a
structural drawing depicting a raised arch, Attachment 3 listed specifications for arch parts.
Rennie agreed nothing in the Plan specifically referenced manufacturer's recommendations for
blocking and there was no attachment or diagram showing how or where lagging was to be
installed. Tr. 101, 133. Further, Rennie acknowledged that although lagging could be used on
both the tops of arches ("top lagging") and along their sides ("side lagging"), the Plan just
referred to "lagging"in general. 9 Tr. 134:
Although no blocking was represented in the attachment, a tension rod was shown. The
rod stretched between the top of the legs of the arch. Rennie testified the rod served the same
purpose as blocking in that it stabilized the arch. See Tr. 38; Gov't Exh. 2 at 13. Because the
tension rod was shown in the drawing Rennie believed a rod was required to be installed at the
top of each arch in the slope. Tr. 135.
Hendrick, on the other hand, believed manufacturers recommended the use of either
blocking or tension rods, and if an arch was blocked, a tension rod was not needed. Tr. 195-196,
199. Hendrick noted a drawing Mach received from American Commercial (a manufacturer)
after the falls showed blocks, but did not show a tension rod. Tr. 197, 199-200; Op. Exh. 6 at 2.

7

"Lagging" is defined as material whose purpose is to "[wedge] and [secure] the roof and
sides behind the main timber or steel supports in a mine and provide early resistence to pressure"
(DMMRT at 302) and as "[p]lanks, slabs, or small timbers" whose purpose is "not to carry the
main weight, but to form a ceiling or a wall, preventing fragments of rock from falling through."
Id.
8

In parts of the roof where shale was encountered, wire mesh was affixed to the roof
bolts to provide protection "from small rock and things." Tr. 34, see also Tr. 175-176. The mesh
was an additional precaution, one not required by the Plan. Tr. 149.
9

After the roof falls, MSHA insisted the Plan be changed "to clarify the lagging
requirements" and to specifically require top lagging and side lagging. Tr. 134-135; see also Tr.
101-102.
29 FMSHRC 873

In Hendrick's opinion, blocking was preferable because it made an arch stronger. Tr. 201.
("[B]locking's better than the tension rod." Tr. 241.) Hendrick agreed at the time of the roof
falls, none of the arches in the slope had tension rods and side blocking was missing. Tr. 242.
Hendrick also maintained blocking and lagging were not required until all of the arches
were installed to the end of the slope. Tr. 190, 232-233. This was because once the slope
reached the bottom concrete would be poured to cover the ribs of the slope. Tr. 181. The
concrete was especially needed at the comer of each arch. Hendrick called it the "magic comer."
Id. It was the area of the arch that ''ha[d] to have the most support." Id. However, the concrete
could not be poured until the floor was "concreted" because the weight of the arches would cause
their legs to sink into the soft ''unpaved" floor. 10 Id. According to Hendrick, "[e]veryone
[including MSHA] understood" blocking and lagging would not be completed until the slope was
finished. However, Hendrick contended the roof falls changed the way MSHA viewed the Plan.
Tr. 235.
Hendrick testified Oduril came to the mine on January 23, 2006, and walked the slope.
At that time, the slope had advanced about 1800 feet. Tr. 185, see also Tr. 269-270. Hendrick
testified he told Odum the floor would be surfaced with concrete after the slope was driven and
then concrete would be applied to the sides and to the comers of the arches. Tr. 185. The side
lagging would serve as a form for the concrete. Hendrick believed Odum understood what Mach
intended to do and did not have a problem with it. Tr. 186.
Hendrick also testified when Rennie was at the mine on February 21, Hendrick told
Rennie the company planned to concrete the slope floor after the slope reached its lowest point.
Tr. 144. Rennie did not object. The company had tried to pour concrete as mining progressed,
and the process had not worked well. In fact, Gauldin described it as a "nightmare." Tr. 264.
Gauldin believed the concrete "absolutely" was needed to properly anchor and support the steel
arches. Tr. 265. As important to Mach, once the concrete was in place, the slope could be used
for the next twenty years. Tr. 180.
When Rennie was at the mine on February 21, he issued one citation, for a loose screw on
a piece of equipment (Tr. 114) and told Hendrick "everything looked good." Tr. 115. The lack of
any questions about compliance with the Plan on February 21 was not unusual. Gauldin testified
when MSHA officials were at the mine in January, none of the agency's officials voiced any
objections to the way in which the slope was being constructed. Approximately 450 steel arches
were then in place, none with tension rods. Further, side lagging was missing. Moreover,
although Gauldin recalled a ''big portion" of the arches exhibited top lagging, not all
did. Tr. 271-272.

In addition to the Plan's statements about "steel sets and lagging," the Plan contained

10

The floor was so soft it was difficult for equipment to traverse. Concrete also would
correct this problem. Tr. 177-178, see also Tr. 179-180; Op's Exhs. 3, 4.
29 FMSHRC 874

another provision destined to be the center of a dispute. The Plan stated: "The language of 30
C.F.R. §§75.209-211 addressing temporary roof support installation procedures shall be adopted
for purposes of this plan." 11 Gov't Exh. 2 at 8. According to Gauldin, the same language
regarding sections 7 5 .209-7 5 .211 had been in the slope plans of other operators, and it was
purposefully included in those plans to allow companies to erect temporary roof supports. 12
Tr. 278- 279. In Gauldin's opinion, because of the language, Mach's miners could proceed up to
five feet beyond permanent roof supports when erecting temporary roof supports. After the roof
falls, MSHA disagreed~

THE FEBRUARY 24 INSPECTION
On February 24, Rennie went to the mine (Tr. 26) where he met with Hendrick and
Gauldin. The slope had advanced approximately 2,200 feet. The roof fall occurred at
approximately 2000 feet. Tr. 27, Tr. 152. Rennie proceeded underground with Hendrick. The
party traveled to the fall area. Rennie determined there was no methane present, and he took
photographs of the roof fall and surrounding mine areas.
The roof leading to the edge of the fall area was supported by roof bolts and steel arches
The steel legs of each arch were snug against the slope ribs. Between the rock of the roof and the
top of the steel arches was wire mesh netting and below the netting was lagging in the form of
wooden beams. The lagging rested on top of the steel arches. See Gov't Exh. 4. There was no
side lagging. See Tr. 54-58.
Rennie could see the fall was large in size. Hendrick stated it extended for about 25 to 30
feet down the slope entry. Tr. 202. The fall had covered a scoop. Id.; Tr. 148. Rennie took a
photograph while standing ''just outby the last good arch on the left side of the [slope] entry." Tr.
60. The photograph showed four destroyed arches inbythe good arch and the fall extending
toward the left side of the slope entry. Tr. 61, 64; Gov't Exh. 5. In Rennie's opinion, most of the
fall originated above the roof bolt anchors. Tr. 65-66. The photograph also showed two roof

11

Section 75.209 concerns "Automated Temporary Roof Support ... systems." Section
75.210 concerns, "Manual installation of temporary support." Section 75.211 involves "Roof
testing and scaling."
12

Section 75.210(b) states:
When manually installing temporary supports, the first
temporary support shall be set no more than 5 feet
from a permanent roof support and the rib. All
temporary support shall be set so that the person
installing the support remains between the temporary
support and two other supports which shall be no
more than 5 feet from the support being installed.
29 FMSHRC 875

bolts, one of which was still "in tact" with its bearing plate against the roo£ Tr. 62; Gov't Exh. 5.
The other roof bolt had part of its shaft exposed. Rennie assumed the roof had fallen around it.
Id. Rennie testified he did not see any other roof bolts further inby on the left. Tr. 63. Rennie
believed most had "[come] down with the roof" Tr. 65.
Having viewed the fall, Rennie returned to the surface where he discussed with Hendrick
how the fall would be cleaned up and the roof supported. Tr. 69. Rennie testified Hendrick told
him the company was going to use a scoop to remove the debris. In addition, miners would set
arch spans on top of the arch legs that were not moved or damaged by the fall. Rennie
maintained Hendrick assured him miners would never be under unsupported roof while the work
took place. Tr. 42.
Rennie asked Hendrick to put the cleanup plan in writing, which Hendrick did. Id.; see
also Tr. 202. Rennie said the plan should be submitted to the MSHA district office for approval,
and Hendrick had it "faxed" to Vincennes. Tr. 45, 70; Gov't Exh. 3 at 2. Anticipating approval,
Rennie modified the section 103(k) order to allow the proposed cleanup to proceed. 13 Tr. 45-46;
Gov't Exh. 3 at 1. MSHA maintained the cleanup plan, once approved became part of the
original Plan. 14 Tr. 47-48: The cleanup plan stated, "No one to proceed out from unsupported
roof" Gov't Exh. 3 at 2. In Rennie's view, this was substantively the same prohibition as that in
the Plan stating, "no persons at any time will be allowed to travel under unsupported top." Tr. 48;
Gov't Exh. 2 at 8. When Rennie left the mine, he understood, given the prohibitions on

13

The modification states:
The investigation has begun. The miners
have been instructed by mine management
about procedures to be followed for the
roof fall clean up. A supplemental plan has
been submitted to the District Manager outlining the procedures to be followed while
the roof fall is cleaned up, and how the roof
will be supported. No mining is to take
place until the additional support is installed.
Gov't Exh. 3 at 1.

14

Counsel stated, "The Secretary's position has always been that the [cleanup] plan as
modified becomes the [P]lan." Tr. 75. Although Mach sent the cleanup plan by fax to the MSHA
district office and although the assistant district manager who reviewed it told Rennie he would
approve it and to modify the section 104(k) order to allow the cleanup to proceed, nothing in
writing was sent to Mach stating the cleanup plan was approved and/or was considered to be part
of the Plan. Tr. 163-164.
29 FMSHRC 876

proceeding out from under supported roof, during the clean up miners would work from under
the arch supports that were left standing after the fall. Tr. 52.

THE CLEANUP
AND
THE SECOND ROOF FALL
According to Hendrick, cleanup of the fall started on the night of February 24 and
continued on February 25. Tr. 202. Mach set one or two additional arches under supported roof.
Tr. 240. After the arches were set, miners began working from under them removing rock from
the first roof fall and hand-loading it on the conveyor belt. Shortly thereafter, a rock fell from the
roof. The rock landed on the fallen material, slid down the debris, and passed between two
miners. Tr. 205, 242. Management's plan was to retrieve the scoop first and then remove the
fallen rock (Tr. 283), however, Hendrick feared other rocks might fall. The roof was loose and
layered (Tr. 206-207), and Hendrick decided a crib was necessary to further support it until the
miners "got the cleanup plan implemented." 15 Tr. 124; see also Tr. 276.

In Hendrick's opinion, using a crib was the safest way to provide the needed additional
support. Tr. 208. Jacks or posts would not work because their maximum length was eight feet,
and the height of the roof was more. Id. In addition, and as Gauldin explained, a crib was
stronger than a jack or post. Moreover, a crib would "[tell] you what's going on" by visually or
audibly indicating when it was taking weight. Tr. 282. Hendrick believed the Plan allowed him
to "build a crib ... five feet inby the last permanent roof support." Tr. 205.
Hendrick testified he, Gauldin, and a few other miners proceeded to construct the crib and
that during the process, none of them traveled or worked more than five feet inby the last
permanent roof support, which in this case was the last arch before the fall area. Tr. 221-222; see
also Tr. 82-83. He was sure because he "eyeballed" the distance. Tr. 228. Gauldin, speaking for
himself, testified he too stayed within the five feet limit. Tr. 276-277.
First, the miners removed debris and leveled the area where they planned to erect the crib.
Then, according to Hendrick, he, Gauldin, and one other miner moved out from under supported
roof. They stacked the crib timbers and wedged the crib in place. Tr. 208. As Hendrick recalled,
the job took between five and seven minutes. Tr. 209. Everything went smoothly. Tr. 211.
Rennie took issue with the way Hendrick and the others constructed the crib. Rennie
believed the crib should have been built by going no more than "[a]n arm's length" under
unsupported roof He stated, ''you set support as you go and gradually progress out." Tr. 50.
However, Rennie knew of no written statement of this "arm's-length" rule. Tr. 154. He agreed
although the language of the Plan prohibited persons from proceeding beyond supported roof, the

15

The crib was to be "temporary" because it partly blocked the entry and because rock on
which it was built eventually had to be removed. Tr. 131.
29 FMSHRC 877

Plan also stated, "The language of 30 C.F.R. § 75.209-211 addressing temporary roof support
installation procedures shall be adopted for purposes of this plan." Gov't Exh. 2 at 8. He further
agreed the language including sections 75.209, 75.210 and 75.211 in the Plan was not changed
after the fall. Tr. 153.
According to Hendrick, the crib was finished around 10:00 a.m on February 25. About an
hour and a half later, the foreman told Hendrick the crib timbers began creaking. The noise was
the result of the wood being subjected to increasing pressure. Tr. 213. Miners were working in
the area. Id. The foreman ordered the entire crew to move into a nearby crosscut. After they did,
the roof fell. Tr. 123. Because the miners were in the cross cut, no one was injured. Id., see also
Tr. 284.
The second fall was more massive than the first. Hendrick described it as originating 12
or more feet above the first fall. Tr. 212; see also Tr. 71. In fact, the fall originated so high in the
roof Gauldin stated the only way to support the roof above the fall was to fill the cavity with
concrete, which is what Mach did. Tr. 267-268. Of the second fall Gauldin said, "I've never,
never seen anything like it." Tr. 268.

RENNIE'S FEBRUARY 27 MINE VISIT
Rennie returned to the mine on February 27, along with Mark Odum. Once there, Rennie
was told about the second roof fall. Tr. 69, 71. Rennie then met with Hendrick and Odum. Tr.
70. While the second fall was larger than the first, it encompassed much of the same area: Tr. 71.
Rennie testified he learned miners had been working in the area just before the fall. Tr. 72. In
addition to building the crib, miners had cleaned up ten feet of the debris from the first fall and
they had erected two new steel arches on existing legs to support the roof above the cleaned area.
Id.
Rennie believed the arches were erected by miners getting "up onto the rock, and ...
bolt[ing] ... [the arches] to the legs." 16 Tr. 70, see also Tr. 72. This is not how Rennie thought
the company planned the cleanup. Rennie recalled Hendrick telling him the company was going
to use a scoop with a gin pole (a pole that supports hoisting tackle) to raise the arch spans. Using
the pole would have allowed all miners to remain under supported roof. Id. However, in
Rennie's opinion, manhandling the arch spans into position for bolting meant miners had to
proceed beyond supported roof and have "an exposed cavity directly over ... [their] head[s]." Tr.
73. This violated the cleanup plan because, in Rennie's view, the plan "plainly states that no one
at any time would be out from under unsupported roof." Id.
Hendrick, on the other hand, maintained the roof above the arches was permanently
supported with roof bolts. He testified the gin pole was not used because when the arches were

16

Rennie used the term ''manhandle" to describe how the arches were placed in position.
See e.g., Tr. 72.
29 FMSHRC 878

raised, the miners were under roof support. Tr. 247.
After talking to Hendrick, Rennie proceeded to the area of the fall. On viewing the
second fall, Rennie noticed pieces of wooden cribbing 12 feet outby the last supported roof. Tr.
78-80; Gov't Exh. 8; Tr. 119. The material was on top of the fall. Id. Rennie asked Hendrick
how the material got to where he saw it. Hendrick said it was due to forces generated by the fall.
Tr. 120. Although Rennie agreed this could have happened {Tr. 80), he nonetheless maintained
the crib had been built ~·out from under unsupported top." Tr. 127.

RENNIE'S MARCH MINE VISITS
AND

THE CITATIONS
Rennie left the mine, but returned on March 1 and again on March 2. On March 1,
Rennie was accompanied by MSHA District Manager, James Oakes. The two men met with
Hendrick and reviewed how steel arches were installed in the slope. Tr. 85. On March 2, Rennie,
along with Odum, brought members ofMSHA's technical support team to the mine to observe
how the arches were erected in the roof fall area. Tr. 85-86.
Following his March visits, Rennie consulted with members of the technical support
team and with his supervisor. On March 6, he issued Citation No. 7582683 to Mach. Gov't
Exh. l 0. The citation alleges Mach violated section 77 .1900-1 by failing to comply with its slope
sinking plan. The citation states "[e]vidence ... indicated ... work had been performed beyond
permanent roof support." Gov. Exh. 10; See also Tr. 91. Rennie testified the alleged violation
was based on the fact Hendrick told Rennie that Hendrick and Gauldin went up on top of the roof
fall, under unsupported roof, to erect the crib and that miners set arches by "manhandling" them
"out onto the rock" from under unsupported roof. Tr. 91. In Rennie's opinion, proceeding under
unsupported roof violated the part of the Plan that states, ''No persons at any time will be allowed
to travel under unsupported top." Gov't Exh. 2 at 8; Tr. 91-92. In addition, proceeding under
unsupported roof violated the clean up plan, which specifically prohibits the practice. 17 Tr. 92;
Gov't Exh. 3 at 2.

17

Rennie acknowledged mandatory safety standard 30 C.F.R. §75.210{b), which states in
part, "When manually installing temporary supports, the first temporary support shall be set no
more than five feet from a permanent roof support and the rib," allows miners to proceed up to
five feet inby permanent roof support when setting temporary roof support. Tr. 129. He also
acknowledged the standard was incorporated into the Plan. Tr. 129. However, he did not
consider a crib to be a temporary support, even though he agreed the subject crib was of a
temporary nature because the rock under and around it was going to be removed. Tr. 131.
Hendrick's view of the question as to whether the crib was temporary roof support was more
simple. He stated, "If it's not permanent, it has to be temporary." Tr. 210; see also Tr. 286.
29 FMSHRC 879

In Rennie's opinion, the violation created a ''very high chance" that an accident would
occur and a miner would be killed. Tr. 93, 95. He pointed out that when the crib was erected,
the roof already had fallen once. Tr. 94. In addition, Rennie found the alleged violation to be
S&S, because Hendrick told him miners had, in fact, proceeded under unsupported top, albeit not
more than five feet under. Tr. 94. Further, because Hendrick knew miners had gone beyond
supported top Rennie found the violation was the result of Mach's unwarrantable failure to
comply with the Plan. Tr. 94.
In addition to Citation No. 7582683, Rennie issued two other citations at issue. In
Citation No. 7582684, Rennie charged lagging was not installed in the slope according to the
Plan and in violation of section 77.1900-1. Gov't Exh.11, see also Gov't Exh. 4. Rennie
believed the Plan required the installation of lagging above the arches, and some of this lagging
was missing. Tr. 96, 97; see Gov't Exh. 4. He also testified the Plan required the lagging to be
three inches thick, and he saw lagging that was two inches thick. Id.; Gov't Exh. 2 at 8. The
place where the lagging was too thin was above the tripper. 18 Tr. 146. Further, Rennie
identified a ''whole side" that was not lagged (Tr. 97-98; Gov't Exh. 4), as well as "other
isolated areas throughout the slope" where lagging was missing. Tr. 98.
Rennie feared a miner would be hit by rock falling from areas where lagging was
inadequate or missing (Tr. 99), but Hendrick viewed this as unlikely. Hendrick estimated, at the
time of the roof fall, 90 percent or more of the required lagging was installed. Tr. 222, 225-226.
Rennie found the condition was caused by Mach's negligence.
Finally, in Citation No. 7582685, Rennie charged several of the arches were not blocked
properly from the top of the slope to about 2000 feet into the slope and none of the arches had
tension rods. 19 Gov't Exh. 2 at 13. fu Rennie's opinion, the lack of adequate blocking and of
tension rods was highly likely to cause permanently disabling injuries to miners. Two falls had
occurred, and the lack of proper blocking "[took] away a lot of the [archs'] strength." Tr. 102.
He further maintained the conditions were caused by Mach's negligence. Tr. 105-106

THE ALLEGED VIOLATIONS
LAKE 2006-82-R
LAKE 2006-146

18

After the roof falls, MSHA insisted the Plan be changed "to clarify the lagging
requirements" and to specifically require top lagging and side lagging. Tr. 134-135; see also Tr.
101-102.
19

Rennie explained to strengthen the arches' crosspieces, blocks should have been
wedged at the top of each leg of the arches between the ribs and the ends of the curved
crosspieces. Tr. 103.
29 FMSHRC 880

Citation No.
7582682

Date
312106

30 C.F.R. §
77.1900-1

Proposed Assessment
$135

As previously noted, counsel for the Secretary moved to vacate the citation, dismiss the
contest proceeding, and dismiss the civil penalty proceeding as it related to the citation. The
motion was granted. See n.2 infra.
LAKE 2006-83-R
LAKE 2006-149
Citation No.
7582683

Date
316106

30C.F.R. §
77.1900-1

Proposed Assessment
$3800

THE CITATION
Citation No. 7582683 states:
The operafor[']s approved slope sinking plan was
not being complied with. Evidence observed during
the investigation of a roof fall accident in the slope
which is under development indicated that work had
been performed beyond permanent roof support.
Cribbing materials had been placed under unsupported
roof on top of fallen rock approximately 12 feet beyond
the last permanent roof support. The approved slope
sinking plan states that ''No person[s] at any time will be
allowed to travel under unsupported top[.]"
Gov. Exh. 10.

THE VIOLATION
The framework for analyzing a violation of section 77 .1900-1 is identical to that for other
"plan" standards (e.g., 30 C.F.R. § 75.220(a)(l) (mandatory roof control plan); 30 C.F.R. §
75.370 (mandatory ventilation plan)). When asserting a violation of a submitted and approved
plan, the Secretary:
must first establish that the provision allegedly
violated is part of the approved and adopted plan.
Jim Walter Resources, Inc., 9 FMSHRC 903, 907
(May 1987). She must then prove that the cited
condition or practice violated the provision. Id.
When a plan provision is ambiguous, the Secretary may establish the meaning intended by the
29 FMSHRC 881

parties by presenting credible evidence as to the
history and purpose of the provision, or evidence
of consistent enforcement. Id.

Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1280 (Dec. 1998).
Standards such as section 77.1900-1 recognize due process entitles an operator to fair
notice of the Secretary's interpretation of a plan's provision. Energy West Mining Co., 17
FMSHRC 1313, 1317-18 {Aug. 1995). "The ultimate goal of the [plan] approval and adoption
process is a mine-specific plan with provisions understood by both the Secretary and the operator
and with which they are in full accord .... '[A]fter a plan has been implemented ... it should
not be presumed lightly that terms in the plan do not have an agreed upon meaning.' "Jim
Walter, 9 FMSHRC at 907 (quoting Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981).
The Secretary charges Mach Mining violated the provision of its Plan that states: ''No
persons at any time will be allowed to travel under unsupported top." As noted above, the
provision appears in the section of the Plan titled "Safeguards for Prevention of Caving During
Excavation." Gov't Exh. 2 at 8. Therefore, the Secretary has born the first part of her burden by
establishing the provision allegedly violated is part of the approved and adopted plan. However,
as Harlan, infra, instructs, the Secretary must do more. The Secretary also must prove that the
cited condition or practice violated the provision {20 FMSHRC at 1280), and it is here her
allegations of a violation come a cropper.
First, the Secretary maintains miners were beyond permanent roof support because
"Evidence observed during the investigation ... indicated that work had.been performed beyond
permanent roof support." Gov't. Exh. 10. The "evidence" is described in the citation as
"[c]ribbing materials ... placed under unsupported roof on top of fallen rock approximately 12
feet beyond the last permanent roof support." Id. In fact, the testimony establishes a crib was
built beyond permanent roof support, but not 12 feet beyond, as the citation implies and as
Rennie suspected. See e.g. Tr. 80. The Secretary provided no evidence to establish Rennie's
suspicion as a fact, and at the hearing Rennie agreed the material could have been pushed or
propelled to where he saw it by forces generated by the roof fall. Tr. 80.
What the record makes evident, and what Mach readily concedes, is that prior to the
second roof fall, its miners constructed a crib in the fall area to provide temporary support so
miners could start cleaning up the fallen roof material. Rennie stated Hendrick told him miners
did not go more than 5 feet beyond supported room when they build the crib, and Hendrick
repeatedly testified this was the case. Tr. 205, 209, 221-222, 240-241. In additional Gauldin,
who helped build the crib, testified at all times he was within five feet of permanent roof support.
He was sure because he "eyeballed" the distance. Tr. 228, 276-277.
Rennie was not present when the crib was built, and the Secretary did not present any
convincing evidence the crib was constructed in a fashion other than that described by Hendrick
and Gauldin, both of whom were present. Therefore, I find miners went beyond supported roof
29 FMSHRC 882

to build the crib in question, but in so doing they did not go more than five feet beyond
perm.anent roof support.·
I further find the crib was temporary in nature as its purpose was to provide temporary
roof support. Gauldin explained the crib was built to allow miners to remove debris and to
retrieve the covered scoop. Once the scoop was removed, the crib would have been taken down.
Tr. 283. Indeed, the crib had to be removed because the material on which it rested ultimately
was going to be removed and because the crib blocked part of the entry. Thus, the crib's function
was to provide roof support for a limited time. The crib was in every sense of the word,
''temporary." Certainly, there are other kinds of temporary support; posts and jacks, for example,
but the fact other types of less than perm.anent support exist does not deprive the subject crib of
its temporary status.
It seems clear to me that building the crib did not violate the Plan, which by incoiporating
section 75.210(b) allowed miners to proceed five feet, but no more, beyond permanent roof
support when installing temporary roof supports. In other words, with regard to building the crib,
I find the Plan allowed Mach's miners to do exactly what they did, and for these reasons, I
conclude Mach did not violate the Plan with regard to building the crib after the first roof fall.
Another aspect of the alleged violation, although one not specified in the citation, is
Rennie's belief that miners proceeded under unsupported roof to erect arches prior to cleaning up
the first fall. Tr. 73. Hendrick countered Rennie's testimony by maintaining the roof under
which the miners worked to erect the arches was supported. Tr. 247.
There are two reasons why this particular allegation does not warrant a finding of
violation. First, the allegation is not set forth in the citation and the citation was never amended
to include it. Second, I recognize the citation states, "evidence observed during the investigation
... indicate[ s] that work had been performed beyond perm.anent roof support," but even ifl
found the phrase inclusive of the unspecified allegation miners worked beyond perm.anent
support to erect several arches, the Secretary has not met her burden of proof. Rennie maintained
the roof was not supported. Hendrick maintained it was. Neither witness was patently
incredible. Hendrick was there. Rennie was not. The evidence is at best in equipoise, which
means the Secretary did not prove the alleged violation by a preponderance of the evidence.
Keystone Coal Mining Corporation, 17 FMSHRC 1819, 1838 (November 1995).

LAKE 2006-84-R
LAKE 2006-146
Citation No.
7582684

Date
316106

30 C.F.R. §
77.1900-1
29 FMSHRC 883

Proposed Assessment
$107

THE CITATION
Citation No. 7582684 states:
The operator ... has not complied with the approved
slope sinking plan. Lagging is missing or has not
been installed in the top and sides of the arches at
several locations from the top of the slope to about
the 2000 foot mark down the slope.
Also, hardwood blocks measuring 3/4 to 2 inches thick
were used as lagging in the tops and sides of the arches
in several areas in the slope from the top of the slope to
about the 2000 foot mark down the slope. The approved
slope sinking plan requires on Page 3 that "Arches will
be installed on 4-5 foot spacing and lagging with a
minimum of 20 gauge corrugated decking or a hardwood block (minimum 3 inches thick)."
Gov't Exh 11-1.

THE VIOLATION
There are two aspects to the alleged violation. First, the Secretary alleges lagging did not
exist where it was required on the top and along the sides of the arches at "several locations from
the top of the slope to about the 2000 foot mark down the slope." Gov't Exh. 11-1. Second, she
alleges wooden blocks used as lagging on the top and sides of the arches were not of the required
thickness in several areas from the start of the slope inby approximately 2,000 feet. Id.
After describing the primary and permanent roof support used in constructing the slope,
the Plan described secondary and additional roof support. The Plan states: "Secondary support
will be provided using arches or steel sets and lagging from the beginning of the cutting zone to
the coal bed. . . . Arches will be installed on 4-5 foot spacing and lagged with a minimum of 20
gauge corrugated decking or a hardwood block (minimum 3 inches thick)." Gov't Exh. 2 at 8.
The Plan thus requires the use of both arches and lagging. Materials required to be used for
lagging must be either corrugated decking or hardwood block, and the decking must be 20 gauge
while the block must be a "minimum [of] three inches thick." Gov't Exh. 2 at 8.
The word "lagging" has two connotations. It can mean material used primarily for a
support function. It also can mean material used primarily for a protective function. See
DMMRT at 302. Does the word as used in the Plan mean material that ''wedges and secures the
roof and sides behind the main timber or steel supports and provides early resistance to
pressure;" or, does it mean material used "not to carry the main weight but to form a ceiling or a
29 FMSHRC 884

wall, preventing fragments or rock from falling through"? Id. The Plan is poorly drafted and
imprecise, but I conclude the word is used primarily in its protective :function and that lagging
under the Plan is to be used to protect against rock falling from the roof or sloughing from the
ribs.
There is no doubt Mach failed to achieve full compliance in this regard. While Mach
erected the steel arches required by the plan, the testimony establishes the company did not
provide "lagging from the beginning of the cutting zone to the coal bed." Gov't Exh. 2 at 8.
Hendrick testified some side lagging had been installed prior to the first roof fall (Tr. 194), but,
as Gauldin testified, there was not much of it. Tr. 272. I find under the Plan, protective side
lagging should have been installed as the mining advanced, and Mach's failure to do so violated
the Plan as alleged in the citation. 20
Citation No. 7582684 further alleges the lagging used on the top and the sides of the
arches in several areas was of an inadequate dimension. As the citation notes, the Plan required
if hardwood block were used lagging should be a "minimum of3 inches thick." Gov't Exh. 2 at
8. The record supports finding top lagging was less than completely installed from the slope
entry to the point where the roof fell. Rennie testified to this effect (Tr. 96, 97), and Gauldin
agreed the tops of the arches were not all lagged. Tr. 272. In addition to missing top lagging,
some of the lagging installed was not of the thickness required. Rennie identified, and Mach did
not dispute, an area where Mach used two inch thick wooden top lagging. Tr. 97-98, Gov't Exh.
4. Hendrick responded that the company intended to eventually replace the two inch lagging
with larger lagging. Tr. 146-147. However, this had not yet been done and, as I indicated, I read
the Plan to have required on-going compliance on Mach's part. Therefore, I find the Secretary
established Mach violated the Plan regarding the required thickness of the top lagging in the area
depicted in Gov~t Exh. 4, as well as the missing top lagging in areas of the slope as testified to by
Rennie. 21

20

Although Hendrick testified "everyone understood" side lagging was not required as
mining advanced {Tr. 235; see also Tr. 181) the Plan stated, "Secondary support will be
provided." (Gov't Exh. 2 at 8 (emphasis supplied)), and it is more reasonable to read the Plan as
requiring implementation to take place as the slope developed, not after the slope was completed.
This is because one of the Plan's primary goals was to protect miners during development, and
side and top lagging played roles in meeting that goal by protecting miners from rib sloughage
and roof fall. Thus, I conclude systematic and on going installation of side and top lagging was
required. It is true following the roof falls the Plan was amended to contain more specific
requirements about lagging, but the post-falls amendment of the Plan does not vitiate the original
requirement. Tr. 138.
21

It is true Hendrick estimated top lagging was installed over 90 percent of the slope
from the fall area outby, but even if this was so, all of the required top lagging was not installed,
and the Plan was violated. Tr. 225-226.

29 FMSHRC 885

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

Finally, the S&S nature of a violation and the gravity of a violation are not synonymous.
The Commission has pointed out that the "focus of the seriousness of the violation is not
necessarily on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry,
but rather on the effect of the hazard if it occurs." Consolidation Coal Co., 18 FMSHRC 1541,
1550(September1996).
Here, the Secretary established a violation of the Plan. She also established a safety
hazard contributed to by the violation. The side and top lagging provided protection from rib
sloughage and falling roof material. The fact the ribs were likely to slough into the slope was
attested to, among other things, by the fact Mach believed it was necessary to surface them with
concrete to prevent their deterioration and keep them in tact. Tr. 193. The fact roof material was
prone to fall in some areas of the slope was attested by the two falls that occurred and by the
additional protective feature - i.e., the steel mesh - Mach chose to install. Tr. 34, 149, 175-176.
Side and top lagging would have offered degrees of protection from rib bursts, sloughage, or roof
falls. The fact the ribs and roof were subject to sloughage and falls and the fact miners used the
slope on a daily basis meant the lack of required lagging and the use of inadequate lagging was
reasonably likely to result in injuries to miners as mining continued. Moreover, because such
injuries were the result of sloughing and/or falling rock, they were likely to be serious. For these
reasons, I conclude the violation was S&S. Moreover, the nature of the likely injuries also meant
the violation was serious.

29 FMSHRC 886

NEGLIGENCE
fuspector Rennie found the violation was due to Mach's "moderate" negligence. Gov't
Exh. 11-1 ; Tr. 99. I conclude he was correct. The company drafted the Plan and was solely
responsible for compliance. While Hendrick believed "everyone," including MSHA, understood
lagging could await application of concrete to the floor and sides (Tr. 235), a reasonably prudent
operator would have read the Plan - as I have found - to require on-going compliance during the
slope's development. A major purpose of the Plan, if not the major purpose, was to protect
miners while they were engaged in the slope's development, and contemporaneous compliance
furthered the purpose.
I am of the belief, however, the Secretary was complicit in the violation. At the time
Rennie cited the violation, the lack oflagging as required by the Plan was not a recent
phenomenon. The conditions were not cited until Rennie's roof fall-related inspection, even
though they existed when Rennie and other MSHA personnel, including MSHA's district
manager, were in the slope prior to the first fall. During those visits, no one from MSHA
commented on the existing deficiencies in side and overhead lagging, let alone cited a violation
of section 77.1900-1. Tr.185, 271; see also Tr. 115.
Given the fact both Mach and MSHA did not focus upon the Plan's lagging requirements
prior to the first roof fall, and given the fact the record reveals no imminent hazards that would
have alerted the company to the immediate need for such lagging, I conclude the company's
exhibited an ordinary lack of reasonable care.

LAKE 2006-146
Citation No.
7582685

30 C.F.R. §
77.1900-1

Date
316106

Proposed Assessment
$135

THE CITATION
Citation No. 7582685 states in part:
The operator ... has not complied with the approved
slope sinking plan. Arches installed in the slope have
not been blocked properly. No blocking was installed
on the sides of the arches in several locations and top
blocking was missing in several locations from the top
of the slope to about the 2000 foot mark down the slope,
nor were the tension rods installed across any of the
arches in the slope.
The approved slope sinking plan requires on Page 3 that
"Arches will be installed on 4-5 foot spacing and lagging
29 FMSHRC 887

with a minimum of 20 gauge corrugated decking or a hardwood block (minimum 3 inches thick)." Blocking of the
arches will be performed following the manufacturer[']s
recommendation. American Commercial Inc.['s]
([m]anufacturer) recommendations are that the arches
be blocked or a tension rod installed across the arches.
Gov't Exh 12 atl-2.

THE VIOLATION
There are two aspects to the alleged violation. First, the Secretary alleges arches were not
side blocked and top blocked at "several locations from the top of the slope to about the 2000
foot mark down the slope." Gov't Exh. 12-1. Second, she alleges none of the arches had tension
rods. Id.
After specifying the primary roof support to be used in constructing the slope, the Plan
describes secondary support that is authorized, including the arches. fu setting forth how the
arches are to be installed, the Plan states in part, "Blocking of the arches will be performed
following the manufacturer's recommendations. fucluded (Attachment #3- Steel Arches) is the
manufacture's steel set drawings and calculations." Gov't Exh. 2 at 8. As I read this statement, it
does not require blocking, rather it means if there is blocking it must be carried out according to
the manufacturer's recommendations. Further, the logical implication of the phrase "Included
{Attachment #3- Steel Arches) is the manufacture's steel set drawings and calculations" (Gov't
Exh.2 at 8) is that Attachment 3 contains the applicable "manufacturer's recommendations."
Gov't Exh. 2 at 13; Tr. 101.
Attachment 3 includes no reference to "blocking." In fact, as the following exchange
between the Secretary's counsel and Inspector Rennie shows, there was nothing in the Plan
setting forth the manufacturer's recommendations for blocking. Rather, such recommendations
were included in an amendment to the Plan that was prepared, submitted, and approved after the
subject citation was issued.

Q. [Secretary's counsel]: Is there anything in this
plan that shows manufacturer's recommendations for blocking?
A. [Inspector Rennie]: Not in this plan, no.
Q. [Secretary's counsel]: Okay. In a later plan?
A. In a later plan, there was, yes.
Q. But not in effect at the time?
29 FMSHRC 888

A. Not in this plan, no.
Tr. 101-102.
Therefore, I conclude the Secretary has not established, and in fact cannot establish under
the specific wording of the Plan, that "[a]rches installed in the slope have not been blocked
properly." Gov't Exh. 12-1.
I further find she cannot establish a failure to install tension rods on the arches violated
the Plan. The pmpose of using wood blocks to hold an arch in place and to help bear the weight
of the roof may be similar to the pmpose of a tension rod in that they both can stabilize an arch
and support the weight above and around it. However, they are two very different means of
achieving the pmpose, and there is nothing in the Plan that states tension rods shall be installed
following the manufacturer's recommendation. Rather it is "[b]locking," if used, that must ''be
performed following the manufacturer's recommendations" (Gov't Exh. 2 at 13), and as Rennie
testified, there is nothing in the Plan regarding blocking recommendations. Tr. 101-102. It is not
enough to include in the Plan a schematic drawing of an arch showing a tension rod and insist
this means the rod must be included on all arches when there is no reference to tension rods in
the written portion of the Plan. 22

For these reasons I conclude the Secretary has not established the conditions set forth in
Citation No. 7582685 violated section 77.1900-1.

22

Indeed, the Plan as approved was written in such an imprecise and convoluted manner
misunderstandings as to its meaning were almost certain to occur. The agency owes it to those
whom it is charged to protect to make sure any plan she approves states what she and the
company actually intend. Approval of a verbal mish mash fosters the safety of no one.

29 FMSHRC 889

REMAINING CIVIL PENALTY CRITERIA
IDSTORY OF PREVIOUS VIOLATIONS
·As counsel for the Secretary explained, because the mine was being developed at the time
the citations were issued, there is "basically no history of previous violations." Tr. 9.
Accordingly, the history of previous violations criteria will have no bearing on the penalties
assessed.

fu proposing penalties for the alleged violations, the Secretary, perhaps due in part to the

fact production had yet to commence, indicated Mach was Sll1all in size. See Petitions for
Assessment of Civil Penalty, Exhibits A. I find this to have been the case.
GOOD FAITH ABATEMENT
No allegation was made by the Secretary that Mach failed to exhibit good faith in abating
the violation of section 77.1900-1 set forth in Citation No. 7582684. Therefore, I conclude
Mach's abatement efforts were timely and effective.
ABILITY TO CONTINUE IN BUSINESS
No evidence was offered that any penalty assessed will affect Mach's ability to continue
in business, and I find it will not.
CIVIL PENALTY ASSESSMENT
Citation No.
7582684

Date
316106

30 C.F.R. §
77.1900-1

Proposed Assessment
$107

I have found the violation was serious. I also have found the company's negligence was
moderate. Given these findings and the other civil penalty criteria, I conclude a civil penalty of
$250 is appropriate.

29 FMSHRC 890

ORDER
The Secretary has failed to prove the violations of section 77 .1900-1 alleged in Citations
No. 7582683 and 7582685, and the citations ARE VACATED. The Secretary has proven the
violation of section 77.1900-1 alleged in Citation No. 7582684, and Mach SHALL PAY a civil
penalty of$250 for the violation within 40 days of the date of this decision. Upon payment of
the penalty, these proceedings ARE DISMISSED.

j)w;a'/.'~
David F. Barbour
Administrative Law Judge

Distribution:
Christine M. Kassak Smith, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S.
Dearborn St., 8th Floor, Chicago, IL 60604
David J. Hardy, Esq., Spilman, Thomas & Battle, PLLC, 300 Kanawha Blvd. East, P.O. Box 273,
Charleston, WV 25321
/sf

29 FMSHRC 891

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

October 29, 2007
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 2007-550
A.C. No. 48-01248-117512

v.
KFX Plant LLC
EVERGREEN ENERGY, INC.,
Respondent

DECISION ASSESSING A CIVIL PENALTY
BASED ON THE PARTIES' JOINT MOTION FOR SUMMARY DECISION
Before:

Judge Manning

This case is before me upon a petition for assessment of civil penalty under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the "Act").
The parties filed a "Joint Motion for Administrative Law Judge to Assess Appropriate Penalty
and Parties' Stipulation of Facts." I construe this motion as a joint motion for summary decision
under Rule 67 of the Commission's Procedural Rules. 29 C.F.R. § 2700.67.

I. STIPULATIONS OF THE PARTIES
The case involves Order No. 7610463 issued by the Department of Labor's Mine Safety
and Health Administration ("MSHA") on January 25, 2007, under section 104(d)(l) of the Act.
The order alleges that Evergreen Energy ("Evergreen") failed to record the results of the on-shift
examinations as required by section 77.1713(c). The order states, in pertinent part:
On 12/30/2006 day shift and 12/31/2006 day shift, no examination
for the KFX plant was recorded. Rick Friesen, shift supervisor,
was responsible for conducting the examination for the days
affected. This constitutes more than ordinary negligence in that he
was aware of the requirements of the standard for documenting
hazards to minimize the dangers.
The parties entered into the following stipulations, as corrected for minor errors:
1. Attached is the correct violation history for the 24month period preceding the date of the inspection.
29 FMSHRC 892

2. Respondent stipulates to the facts and findings that are
set forth in the order at issue in this case (No. 7610463), including
but not limited to the findings regarding the nature of the violation
and gravity.
3. If this citation had been regularly assessed according to
the regular assessment formula that was in effect on the date the
citation was issued (January 25, 2007), the proposed penalty would
have been $306.00.
4. Respondent is subject to the jurisdiction of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et. seq. (the
"Act").

5. The Administrative Law Judge has jurisdiction in this
matter.
6. The operator demonstrated good faith in abating the
violation.
7. Respondent operates a coal mine. The mine produced
87,263 tons of coal during calendar year 2006. The controlling
entity produced a total of 606,962 tons of coal during calendar year
2006. (See 30 C.F.R. 100.3(b) (2006)).
8. Respondent's payment of the penalty proposed by
MSHA ($3,500.00) would not impair Respondent's ability to
continue in business.

In the motion, the Secretary set forth her position, as follows:
It is the Secretary of Labor's position that violations of
section 77.l 713(c) should be treated seriously because the purpose
of the recording requirement is to ensure that any hazards found
during inspections are timely abated. See 30 C.F.R. 77.l 713(d). It
is the Secretary of Labor's position that under all the
circumstances, the proposed penalty is appropriate.

Evergreen provides the following argument:
Attached hereto is Respondent's letter explaining why
Respondent believes that the proposed penalty is too high. As

29 FMSHRC 893

noted in the letter, the violation is not significant and substantial.
It is Respondent's position that the violation was the result of a
paperwork error, in that the inspection was not recorded. It is
Respondent's position that the violation should not have been
specially assessed and that the proposed penalty is excessive.
Respondent's letter attached to the motion makes the same arguments and stresses that
the penalty should be reduced because the inspector did not mark the order as significant and
substantial. The letter also states that although "the inspection was conducted and not recorded,
this failure to record the inspection does not necessarily endanger miners in their work place."

II. ASSESSMENT OF A CML PENALTY
As a general rule, Commission judges are accorded broad discretion in assessing civil
penalties under the Act. Such penalties must reflect proper consideration of the six penalty
criteria set forth in section l lO(i) and the deterrent pwposes of the Act. Sellersburg Stone Co., 5
FMSHRC 287, 290-95 (1\1arch 1983), ajf'd 736 F.2d 1147 (7th Cir. 1984). If a judge significantly
changes the penalty from that proposed by MSHA, he must provide "sufficient explanation" for
the penalty assessed. Sellersburg, at 293; Cantera Green, 22 FMSHRC 616, 620-21 (May 2000).

The record shows that Evergreen operates a small to medium-sized mine. The controlling
entity is small. The record shows that Evergreen has paid penalties for 13 violations in the
previous two years. Eleven of these citations were designated as non-significant and substantial.
It received a section 104(d)( 1) citation on December 22, 2006, for an alleged violation of section
48.25(a), but a penalty has not yet been assessed for the citation. Evergreen has a relatively low
history of previous violations taking into consideration the size of the mine. The negligence of
the operator was high and the violation was a result of Evergreen's unwarrantable failure to
comply with the safety standard. The inspector determined that it was unlikely that the violation
would lead to an injury and that the violation was not of a significant and substantial nature. He
also determined that if an accident were to occur as a result of this violation, it could result in a
fatality. A penalty up to the amount of MSHA's proposed penalty will not affect Evergreen's
ability to continue in business. The violation was rapidly abated in good faith.
I agree with the Secretary that failing to record pre-shift and on-shift examinations has the
potential to allow a hazardous condition to continue unabated. On the other hand, if a condition
that is hazardous is detected during an on-shift examination, the mine operator has the duty to
correct it. As stated in section 77.l 713(a), a certified person must conduct the examinations and
requires that "any hazardous conditions noted during such examinations shall be reported to the
operator and shall be corrected by the operator." (emphasis added). There is no allegation in
this case that Evergreen failed to correct any hazardous conditions found by Mr. Friesen, the shift
supervisor, during his examinations on the dates in question. Thus, the violation was not
especially serious. The record shows, however, that Evergreen previously violated section
29 FMSHRC 894

77 .1713(c) on December 13, 2005. This helps to substantiate the Secretary's high negligence
determination.
The Secretary proposed the penalty under her special assessment regulations at 30 C.F.R.
§ 100.5. As a consequence, it is difficult to determine exactly how sµe arrived at the $3,500.00
proposed penalty. As stated above, the MSHA inspector determined that it was unlikely that the
violation would lead to an injury and he marked the violation as non-significant and substantial.
In the ''Narrative Findings for a Special Assessment," however, the Secretary states that the
"gravity of the violation was considered serious." Although the parties stipulated to the "facts
and findings" set forth in the citation, including the inspector's "findings regarding the nature of
the violation and gravity," they did not stipulate to the narrative special assessment findings. In
assessing a civil penalty, I rely on the inspector's determinations, as marked on the_ citation,
rather than on the conclusions set forth in the Secretary's narrative special assessment findings.
Based on the above and the criteria in section l lO(i) of the Mine Act, 30 U.S.C. § 820(i}, I find
that a penalty of $2,000.00 is appropriate.

III. ORDER.
For the reasons set forth above, Order No. 7610463 is AFFIRMED and Evergreen
Energy, Inc., is ORDERED TO PAY the Secretary of Labor the sum of $2,000.00 within 30
days of the date of this decision. Payment should be sent to MSHA's new address: U.S.
Department of Labor, Mine Safety and Health Administration, P.O. Box 790390, St. Louis, MO
63179-0390.

Richard W. Manning
Administrative Law Judge

Distribution:
Edward Falkowski, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway,
Suite 1600, Denver, CO 80202 (Certified Mail)
Mike Carolus, Safety Manager, Evergreen Energy, Inc., P.O. Box 2008, Gillette, WY 82717
(Certified Mail)

RWM ..

29 FMSHRC 895

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

October 30, 2007
UNITED MINE WORKERS OF
AMERICA, LOCAL 1248,
Complainant

COMPENSATION PROCEEDING
Docket No. PENN 2002-23-C

v.
MAPLE CREEK MINING, INC.,
Respondent

Maple Creek Mine
Mine ID 36-00970

ORDER OF DISMISSAL
This case is before me on remand pursuant to the July 13, 2007, Decision of the
Commission. UMWA, Local 1248 v. Maple Creek Mining, Inc., 29 FMSHRC 583 (July 2007).
The Commission vacated orders denying Respondent's motion for summary decision and motion
for reconsideration, conclusively establishing that the claim for up to one week's compensation
under the third sentence of section 111 of the Act must be rejected. The case was remanded
because the Commission was unable to ascertain whether there is any other valid claim for
compensation under the other provisions of section 111.
Complainant was directed to file a status report identifying any issues remaining to be
resolved under its Complaint for Compensation, as amended. Complainant reported that it had
identified some miners who had not received compensation pursuant to the first two sentences of
the subject section, and that the names of the miners and the amounts owing had been forwarded
to Respondent. Subsequently, the parties filed a Joint Motion to Dismiss the action, representing
that all outstanding claims for compensation had been satisfied.
Based upon the foregoing, the motion to dismiss is granted, and this case is hereby
DISMISSED.

29 FMSHRC 896

Distribution:
Judith Rivlin, Esq., United Mine Workers of America, 8315 Lee Highway, Fairfax, VA 22031
Melanie J. Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 2333 Alumni Park
Plaza, Suite 310, Lexington, KY 40517
Edward P. Claire, Esq., Associate Solicitor for Mine Safety and Health, U.S. Department of
Labor, Suite 2222, 1100 Wilson Blvd., Arlington, VA 22209-2296
/mh

29 FMSHRC 897

29 FMSHRC 898

G:l)r U.S. GOVERNMENT PRINTING OFFICE: 2007--340-005153305