SEPTEMBER AND OCTOBER 2009

COMMISSION DECISIONS AND ORDERS
09-09-2009
09-14-2009
09-14-2009
09-17-2009
09-20-2009
09-23-2009
09-23-2009
09-23-2009
09-24-2009
09-24-2009
09-29-2009
09-30-2009
09-30-2009
10-08-2009
10-08-2009
10-08-2009
10-08-2009
10-13-2009
10-08-2009
10-13-2009
10-13-2009
10-13-2009
10-22-2009
10-22-2009
10-22-2009
10-26-2009
10-28-2009
10-28-2009
10-29-2009
10-30-2009
10-30-2009
10-30-2009
10-30-2009
10-30-2009
10-30-2009

Peter J. Phillips v. A & S Construction Co.
Hanson Aggregates Midwest, Inc.
Heritage Coal & Natural Resources, LLC.
Barrick Goldstrike Mines, Inc.
Pitlick & Wick, Inc.
Darby Sanders, formerly employed by
Natural Materials, LLC.
Luminant Mining Company, LLC.
Bucyrus Field Services, fuc.
August Winter & Sons, Inc.
Old Dominion Energy, fuc.
A Mining Group, LLC.
Northern Lakes Concrete fuc.
The Banner Company, LLC.
Sec. Labor o/b/o Robert Gatlin v.
KenAmerican Resources, Inc.
Clean Energy Mining Company
Taft Production Company
Knife River
Riverton Investment Corporation
Big River Mining, LLC.
KenAmerican Resources, fuc.
Knox Creek Coal Corporation
Jacob Mining Company, LLC.
Sec. Labor o/b/o Lige Williamson v.
CAM Mining, LLC.
Holcim (US), Inc.
Westside Trucking
National Cement Co. Of California
Oldcastle Stone Products
B & H Transfer Company
Cessford Construction Company
Liggett Mining, LLC
Hoover, fuc.
Moltan Company
Consolidation Coal Company
U.S. Silver-Idaho, Inc.
Pine Ridge Coal Company, LLC.

i

WEST 2008-1057-DM
KENT 2009-376-M
YORK.2009-143
WEST 2009-932-M
LAKE 2008-345-M

Pg. 975
Pg. 1006
Pg.1009
Pg. 1013
Pg. 1016

CENT 2009-420-M
CENT 2009-155
CENT 2009-433
LAKE 2009-447-M
VA
2009-270
2009-505-M
SE
LAKE 2009-349-M
VA
2009-90

Pg. 1022
Pg. 1026 ..
Pg.1039
Pg. 1032
Pg. 1036
Pg. 1040
Pg. 1043
Pg. 1046

KENT 2009-1418-D
KENT 2009--925
WEST 2009-567-M ·,.
WEST 2009-1083-M
WEVA 2008-1449-M
WEVA 2009-1669
KENT 2009-1060
VA
2009-354
WEVA 2009-1348

Pg. 1050
.Pg. 1058
Pg. 1061
Pg. 1064
Pg. 1067
Pg. 1070
Pg. 1074
Pg.1078
Pg. 1081

KENT 2009-1428-D
2009-472-M
SE
WEST 2009-650-M
WEST 2004-182-RM
SE
2009-173-M
SE
2009-802-M
CENT 2009-787-M
KENT 2010-1
SE
2009-600-M
SE
2009-601-M
VA
2009-314
WEST 2009-1216
WEVA 2009-1592

Pg. 1085
Pg. 1094
Pg. 1097
Pg. 1100
Pg. 1103
Pg. 1107
Pg. 1110
Pg. 1113
Pg. 1117
Pg. 1120
Pg. 1123
Pg. 1127
Pg. 1131

ADMINISTRATIVE LAW JUDGE DECISIONS
09-04-2009
09-08-2009
09-09-2009
09-17-2009
09-19-2009
09-24-2009
09-30-2009
09-30-2009
10-08-2009
10-08-2009
10-16-2009
10-26-2009
10-29-2009
10-26-2009

Sec. Labor o/b/o Charles Scott Howard v.
Cumberland River Coal Co., Inc.
North Fork Coal Corporation
Cumberland Coal Resources, LP
Sec. Labor o/b/o Mark Gray v.
North Fork Coal Corporation
Weatherton Contracting Co., Inc.
Nichols Construction, Inc.
Jayson Turner v. National Cement Co.
·Of California
Sec. Labor o/b/o Lige Williamson v.
CAM Mining, LLC.
Sidney Coal Company
Jim Walter Resources, Inc.
Mountain Coal Company, LLC.
Abundance Coal, Inc.
Johnson Paving Company, et al.
Sec. Labor o/b/o Lige_ Williamson v.
CAM·Mining, LLC~ (on remand)

KENT 2009-1427-D
KENT 2009-1429-D
PENN 2009-189

Pg. 1135
Pg. 1143
Pg. 1147

KENT 2009-1429-D
CENT 2008-153-M
2007-17-R
VA

Pg. 1167
Pg. 1169
Pg. 1172

WEST 2006-568-DM ·

Pg. 1179

KENT 2009-1428-D
KENT 2007-217-R
SE
2007-264
WEST 2007-409-R
KENT 2010-5-R
2007-128-M
SE

Pg. 1187
Pg. 1197
Pg. 1208
Pg. 1220
Pg. 1241
Pg. 1246

KENT 2009-1428-D

Pg. 1270

SE
2006-148-M
KENT 2009-302-D

Pg. 1273
Pg. 1277

ADMINISTRATIVE LAW JUDGE ORDERS
09-01-2009
09-10-2009

SCP Investments, LLC.
Billy Brannon v. Panther Mining, Inc.

ii

CO:MMISSION DEOSIONS AND ORDERS

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

September 9, 20009

PETER J. PHILLIPS
v.

Docket No. WEST 2008-1057-DM

A&S CONSTRUCTION COMPANY

BEFORE: Jordan, Chairman; Duffy, Y olIDg, and Cohen, Commissioners
DECISION
BY THE COMMISSION:
This temporary reinstatement proceeding arises under the Federal Mine Safety and Health.
Act of 1977, 30 U.S.C. § 801 et seq. (2006) ("Mine Act" or "Act"). The case raises the question
of whether an order of temporary reinstatement remains in effect after the Secretary of Labor has
made a determination that facts revealed from an investigation by the Mine Safety and Health
Administration ("MSHA") regarding a miner's discrimination complaint do not constitute a
violation of section 105(c) of the Act. 1 Administrative Law Judge David Barbour concluded that

1

Section 105(c) provides in part:

(c)(l) 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 tights of any miner ... because such miner ... has
filed or made a complaint lll.der or related to this Act ....
(2) Any miner ... who believes that he has been discharged, interfered
with, or otherwise discriminated against by any person in violation of this
subsection may, within 60 days after such violation occurs, file a complaint with
the Secretary alleging such discrimination. Upon receipt of such complaint, the
Secretary shall forward a copy of the complaint to the respondent and shall cause
such investigation to be made as he deems appropriate. Such investigation shall
commence within 15 days of the Secretary's receipt of the complaint, and ifthe
Secretary finds that such complaint was not frivolously brought, the Commission,
on an expedited basis upon application of the Secretary, shall order the immediate
31FMSHRC975

such an order does not remain in effect after MSHA's determination that no discrimination
occurred. Accordingly, he dissolved his earlier order temporanly reinstating Peter J. Phillips, an
employee of A&S Construction Company ("A&S"), and dismissed the temporary reinstatement
proceeding. 30 FMSHRC 1119, 1123 (Nov. 2008) (ALJ). Mr. Phillips filed a petition for
discretionary review, challenging the judge's determination, which the Commission granted. For
the reasons that follow, the judge's determination stands as if affirmed.
I.

Factual and Procedural Background
No factual record has been developed in this case. The procedural background of the case,·
is set forth in the judge's decision and is briefly summarized here. Mr. Phillips was discharged
by A&S on September 13, 2007. Id. at 1119. On February 11, 2008, Mr. Phillips filed a

reinstatement of the miner pending final order on the complaint. If upon such
investigation, the-Secretary determines that the provisions of this subsection have
been violated, he shall immediately file a complaint with the Commission, with
service upon the alleged violator and the miner ... alleging such discrimination or
interference. and propose an order granting appropriate relief. The Commission
. shall afford ·mi opportunity for a heanng . . . and thereafter shall issue an order,
based upon findings of fact, affirming, modifying, or vacating the Secretary's
proposed order, or directing other appropriate relief. Such order shall become
final 30 days after its issuance. The Commission shall have authority in such
proceedings to require a person committing a violation ofthis subsection to take
such affirmative action to abate the violation as the Commission deems
appropriate, including, but not limited to, the rehiring or reinstatement of the
miner to his former position with back pay and interest. ...
(3) Within 90 days of the receipt of a complaint filed under paragraph (2),
the Secretary shall notify, in writing, the miner ... of his determination whether a
violation has occurred. If the Secretary, upon investigation, determines that the
provisions of this subsection have not been violated, the complainant shall have
the right, within 30 days notice of the Secretary's determination, to file an action
in his own behalf before the Commission, charging discrimination or interference
in violation of paragraph (1 ). The Commission shall afford an opportunity for a
hearing . . . and thereafter shall issue an order, based upon findings of fact,
dismissing or sustaining the complainant's charges and, ifthe charges are
sustained, granting such relief as it deems appropriate, including, but not limited
to, an order requiring the rehiring or reinstatement of the miner of his former
position with back pay and interest or such remedy as may be appropriate. Such
order shall become final 30 days after its issuance ....
30 U.S.C. § 815(c).
31FMSHRC976

_,

.·"

complaint with MSHA alleging that his discharge was motivated by protected safety complaints
in violation of section 105(c)(1) of the Mine Act. Id. MSHA conducted a preliminary special
investigation of the complaint and determined that it was not frivolous. Id. The Secretary filed
an application with the Commission seeking the temporary reinstatement of Mr. Phillips. Id.
The parties agreed that a hearing on the Secretary's application was unnecessary and that Mr.
Phillips should be economically reinstated. 2 Id. On June 6, 2008, the judge ordered Mr. Phillips'
economic reinstatement. Id.
As part of the economic reinstatement, the judge ordered the Secretary to report on July 2,
and August 1, 2008, regarding the status of her determination as to whether to bring a
discrimination complaint on Mr. Phillips' behalf. Unpublished Order dated June 6, 2008. On
·each of those aates,. counsel for the Secretary stated that the determination had not yet. been · ~·. ·. ·
made. 30 FMSHRC at 1120.

. , , ·· ·

Approximately three months later, on November 10, 2008, the Commission received a·
notice that the Secretary did not intend to proceed under section 105(c)(2) of the Mine Act on
Mr. Phillips' behalf. Id. Counsel for the Secretary stated that it was the Secretary's position that
the order of temporary economic reinstatement must remain in effect until there is a final order of
the Commission disposing of Mr. Phillips' case, including if Mr. Phillips decided to proce~d on·
his· own behalf under section. 105(c)(3). Id.·. Attached to the Secretary's notice was a
.'~ ~o'Vember 3, 2008, .letter to Mr, Phillips from MSHA stating that MSHA,had "determined that_ ·,,
. ·. facts diselosed during the investigation do not constitute a violation ofSection 105(c)" and that
"[t]herefore, discrimination, within the confines of the Mine Act, did not occur." Id. (citations
omitted).
I

On November 10, the Commission also received from A&S a motion to schedule a
hearing to determine whether the order of temporary reinstatement should be rescinded in light of
the Secretary's determination. Id. The judge scheduled the matter for oral argument.
Following oral argument, the judge determined that an order of temporary reinstatement
is no longer viable after the Secretary has determined that the facts underlying a miner's
complaint do not constitute a violation of section 105(c). Id. at 1121-23. The judge noted that
the authority to issue an order ofreinstatement arises under section 105(c)(2), which provides
that such an order remains in effect "pending final order on the complaint." Id. at 1121. He
explained that the complaint referred to is the miner's complaint that is investigated by the
Secretary, and that a final order on the complaint is made when the Secretary determines that the
facts alleged in the miner's complaint do not constitute a violation of section 105(c). Id. The
judge reasoned that if a miner wishes to proceed under section 105(c)(3), the miner must file a
new complaint, which is separate from the Secretary's application for temporary reinstatement.

2

The parties agreed that Mr. Phillips should receive the same pay and benefits he would
have received prior to his discharge, as ifhe were still working. Unpublished Order dated
June 6, 2008.
31 FMSHRC 977

j'

.·

Id. at 1121-22. Accordingly, the judge dissolved the order of temporary reinstatement and
dismissed the temporary reinstatement proceeding. Id. at 1123.
On December 15, 2008, Mr. Phillips filed a petition for discretionary review challenging
the judge's order with the Commission. In addition, on that same date, Mr. Phillips filed an
action on his own behalf under section 105(c)(3), which has been docketed as WEST
2009-286-DM, and assigned to Administrative Law Judge Richard Manning. On December 23,
2008, the Commission granted Mr. Phillips' petition and stayed the judge's order dissolving the
order of temporary economic reinstatement, pending the Commission's decision. The
Commission granted the Secretary leave to participate as amicus curiae.
' · · · A&S ·argues that the Commission should affirm the judge's order dissolving the" . '. '· - ... •·: · · · .
temporary reinstatement order. A&S Br. at 5. It contends that the plain language of the Mine
Act supports the judge's determination that "pending final order on the complaint" refers to the
miner's complaint investigated by the Secretary, and that a final order on the complaint is made
when the Secretary makes a determination of no discrimination. Id. at 9-10. Drawing an analogy
to sections 105 (a) and 105(b) of the Mine Act, A&S notes that a "final order" can arise from a
notice issued by the Secretary under section 105 and need not be a final Commission order. A&S
Resp. Br. at 3-5.
·
;

. '.·

;. · : ,· Jn her amicus brief, the Secretary contends that thejudge erred in dissolving the ": t: ..
teriipdrary reinstatement order. S. Br. at 8-24. She contends that the plain meaning of section /;
105(c)(2) requires a temporary reinstatement order to remain in effect until there has been a final
Commission order on the merits of the miner's underlying discrimination complaint, regardless
of whether the complaint is litigated by the Secretary under section 105(c)(2) or by the miner
under section 105(c)(3). Id. at 10-15, 24. The Secretary asserts that such a reading is also
supported by the structure of the Mine Act, the legislative history, and the purpose of section
105(c)(2). Id. at 15-24. Finally, she states that even if section 105(c)(2) does not have a plain
meaning, the Commission should accept the Secretary's interpretation because it is reasonable
and furthers the protection to miners contemplated by section 105(c)(2). Id. at 1, 23.

II.
Disposition
A.

Analytical Framework

The question presented in this case is whether, under the provisions of section 105(c) of
the Mine Act, a temporary reinstatement order remains in effect after the Secretary has
determined that the allegations made by the miner in his or her discrimination complaint filed
with MSHA do not constitute a violation of section 105(c)( 1) of the Mine Act.

31 FMSHRC 978

ill considering this question of statutory construction, we are mindful that our first inquiry
is "whether Congress has directly spoken to the precise question at issue." Chevron US.A. Inc.
v. Natural Res. Def Council, Inc., 467 U.S. 837, 842 (1984); Thunder Basin Coal Co., 18
FMSHRC 5 82, 5 84 (Apr. 1996). If a statute is clear and unambiguous, effect must be given to its
language. See Chevron, 467 U.S. at 842-43; accord Local Union 1261, UMWA v. FMSHRC, 917
F.2d 42, 44 (D.C. Cir. 1990). Deference to an agency's interpretation of the statute may not be
applied "to alter the clearly expressed intent of Congress." K Mart Corp. v. Cartier, Inc., 486
U.S. 281, 291 (1988) (citations omitted). ill ascertaining the meaning of the statute, courts utilize
traditional tools of construction, including an examination of the "particular statutory language at
issue, as well as the language and design of the statute as a whole," to determine whether
Congress had an intention on the specific question at issue. Id.; Local Union 1261, UMWA v.
· ·FMSHRC, 917·F.2d at44; Coal Employment Project v. Dole, 889 F.2d 1127, 1131 (D.C"Cir.
1989). The examination to determine whether there is such a clear Congressional intent is
commonly referred to as a "Chevron I" analysis. See Coal Employment Project, 889 F.2d at
1131; Thunder Basin, 18 FMSHRC at 584; Keystone Coal Mining Corp., 16 FMSHRC 6, 13
(Jan. 1994).
If a statute is ambiguous or silent on a point in question, a second inquiry, commonly
referred to as a "Chevron If' analysis, is required to determine whether an agency's interpretation
.of a statute is a reasonable one. See Chevron, 467 U.S. at 843-44; Thunder Basin, 18 FMSHRC
: ':at'584 n.2; Keystone, 16 .FMSHRC at 13; ·Deferenc.e.is-accmtded.to "an agency's interpretation of
'the statute it is charged with administering when that interpretation is reasonable." -Energy West ·
Mining Co. v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994) (citing Chevron, 467 U.S. at 844).
Where the statute is silent or ambiguous, the.agency's interpretation is entitled to affirmance as
long as that interpretation is one of the permissible interpretations the agency could have
selected. See Joy Techs., Inc. v. Sec '.:Y ofLabor, 99 F .3d ·991, 995 (10th Cir. 1996) (citing
Chevron, 467 U.S. at 843), cert. denied, 520 U.S. 1209 (1997); Thunder Basin Coal Co. v.
FMSHRC, 56 F.3d 1275, 1277 (10th Cir. 1995).

The Commissioners are evenly divided regarding whether the judge correctly determined
that a temporary reinstatement order no longer remains in effect after the Secretary has made a
determination of no discrimination. Commissioners Duffy and Young would affirm in result the
judge's dissolution of the temporary reinstatement order and dismissal of the temporary
reinstatement proceeding. Chairman Jordan and Commissioner Cohen would reverse the judge's
order. The effect of a split decision is to allow the judge's order dissolving the temporary
reinstatement order and dismissing the temporary reinstatement proceeding to stand, as if
affirmed. 3 See Pennsylvania Elec. Co., 12 FMSHRC 1562, 1563-65 (Aug. 1990), aff'd on other
grounds, 969 F.2d 1501 (3d Cir. 1992). The separate opinions of the Commissioners follow.

3

Because the judge's order stands as if affirmed, we hereby lift the stay we issued on
December 23, 2008. Accordingly, the order of temporary economic reinstatement is hereby
dissolved and this temporary reinstatement proceeding is hereby dismissed.
31 FMSHRC 979

B.

Separate Opinions of the Commissioners

Commissioners Duffy and Young, in favor of affirming in result the judge's order:
1.

Statutory Language

The authoriJy to order temporary reinstatement is found in section 105(c)(2) of the Mine
Act. Under the terms of section 105(c)(2), after the Secretary has filed an application stating that
a miner's complaint of discrimination filed with MSHA was not frivolously brought, the
Commission must order the "immediate reinstatement of the miner pending final order on the
complaint." 30 U.S.C. § 815(c)(2) (emphasis added). In order to determine how long a
. temporary reinstatement order may permissibly remain in effect, we must' consider what . ·. , . ·'
Congress meant by "final order" and "complaint." We first consider what is meant by
"complaint."
Reading section 105(c)(2) in context, we conclude that the provision that a temporary
reinstatement order remains in effect "pending final order on the complaint" clearly refers to the
"complaints" filed under section 105(c)(2) and does not extend to the miner's "action" filed
under section 105(c)(3). We base this conclusion on the usage of the term "complaint" in
sections 105(c)(2) and 105(c)(3).
··
.
.
.
:·;. •,
\;

·More· specifically, section 105 (c) refers to two complaints: the miner's complaint made
to, and investigated by, the Secretary under section 105(c)(2); and the complaint filed by the
Secretary with the Commission under section 105(c)(2) if, upon investigation, the Secretary
determines that section 105(c)(1) has been violated.
The legitimacy of the miner's complaint is determined by the Secretary in a two-phased
process. First, the Secretary determines whether the miner's complaint has been "frivolously
brought" through an initial investigation. 30 U.S.C. § 815(c)(2). If the complaint is not
frivolous, the Secretary files an application with the Commission to temporarily reinstate the
miner. Id. The standard of the initial determination, which requires only that a miner's
complaint must appear to have merit, is set low so that a miner may be reinstated while the
Secretary conducts a more thorough investigation. Sec'y ofLabor on behalf ofBussanich v.
Centralia Nlining Co., 22 FMSHRC 153, 157 (Feb. 2000) ("The Mine Act's legislative history
defines the 'not frivolously brought' standard as indicating that a miner's 'complaint appears to
have merit."') (citation omitted). Second, if, after further investigation, the Secretary determines
that a violation of section 105(c) has occurred, the Secretary files a complaint with the
Commission on the miner's behalf, which validates the initial finding of non-frivolousness and
the miner's initial complaint of discrimination. In such circumstances, the Secretary is acting on
the miner's complaint, which has merged with the Secretary's complaint. Temporary
reinstatement continues until there is a final order on the miner's complaint as advanced by the
Secretary in the section 105(c)(2) proceeding.

31 FMSHRC 980

This contrasts with the terms of section 105(c)(3). Under that section, if the Secretary,
upon investigation, determines that section 105(c)(1) has not been violated, the miner has the
right to file a new, separate "action" charging discrimination with the Commission. Section
105(c)(3) also describes the time within which the Secretary must notify the miner of that
negative detennination as being within 90 days after the receipt "of a complaint filed under
paragraph (2)." 30 U.S.C. § 815(c)(3). We conclude that Congress's reference to the documents
filed under section 105(c)(2) as "complaints" and to the filing of an "action" under section
105(c)(3) was intentional. 1 See Russello v. United States, 464 U.S. 16, 23 (1983) (providing that
where Congress uses a particular phrase in one section but omits it in another, the difference in
language is presumed to be intentional). Therefore, based on the plain language of sections
105(c)(2) and (c)(3), a temporary reinstatement order remains in effect pending final order on the
miner's complaint as advanced by the-Secretary under section 105(c)(2), but does not extend to·
the pendency of an action under section 105(c)(3).
We next consider what is meant by the term "final order" in section 105(c)(2). The term
"order" is used in section 105(c) to refer to action by the Commission in terms of issuing an
order of temporary reinstatement; issuing an order affirming, modifying, or vacating the proposed
order set forth in the Secretary's complaint; or issuing an order dismissing or sustaining a miner's
charges under section 105(c)(3). fu contrast, sections 105(c)(2) and 105(c)(3) consistently refer
to the Secretary's conclusion regarding whether a violation of section 105(c)(1) had occurred as ·a .·
"determination." ·Thus, the. Secretary's· conclusion regarding whether her investigation revealed . .
·discrimination iS a "determination,'·' not an order. fu addition, although the Secretary may .
include a proposed order for the Commission's consideration in her complaint filed under section
105(c)(2), only the Commission inay issue an "order" under section 105(c). 2
Furthermore, we find it instructive that section 105(c) describes when a Commission
order becomes "final." Sections 105(c)(2) and 105(c)(3) explicitly provide that the "order"
issued by the Commission becomes ''final 30 days after its issuance." 30 U.S.C. §§ 815(c)(2) &
(c)(3) (emphasis added). Thus, it is clear from the language of the Act that "final order" in
section 105(c)(2) refers to a final Commission order.

1

We note that section 105(c)(3) refers to a "complainant." We conclude that the term is
used in section 105(c)(3) as a matter of convenience, in order to avoid repetition of the lengthy
description of the filing party- that is, any "miner, representative of miners or applicant for
employment" whose complaint to the Secretary may have resulted in an investigation under
section 105(c)(2). 30 U.S.C. §§ 815(c)(l) & (c)(2).
2

We reject the operator's analogy to sections 105(a) and 105(b) to support its argument
that a "final order" may arise from a notice issued by the Secretary under section 105 and need
not be a final Commission order. A&S Resp. Br. at 3-5. Sections 105(a) and 105(b) are not
analogous because they explicitly provide that a notice "shall be deemed a final order of the
Commission." 30 U.S.C. § 815(a) and (b). No such language is set forth in section 105(c).
31 FMSHRC 981

Considering the language discussed above regarding what is meant by "complaint," with
the language regarding what is meant by "final order," we condude that a temporary
reinstatement order remains effective pending the final order of the Commission on a complaint
filed under section 105(c)(2). Therefore, ifthe Secretary determines that there has been no
discrimination, the temporary reinstatement order would cease to be effective, and the judge
should issue an order dissolving the temporary reinstatement and dismissing the temporary
reinstatement proceeding. 3 If the Secretary determines that there has been discrimination and
files a complaint
the miner's behalf, the temporary reinstatement order would remain in effect
until the judge's decision disposing of the merits of the complaint, or the Commission's decision
or court's decision, in the event of appeal, becomes final by the passage of 30 days.

on

,., ' :·1

·:Chairman Jordan argues that the terms ofsection'105(<>)(2) mandate that temporary.
reinstatement remains in effect until there has been a final Commission order on the complaint
the miner filed with the Secretary, and that such an order cannot issue in the temporary
reinstatement proceeding. Slip op. at 17-18. We cannot agree with such reasoning as it proves
too much. While the miner is, as Chairman Jordan states, "entitled" to file an action pursuant to
section 105(c)(3) when the Secretary refuses to file a 105(c)(2) discrimination claim on his
behalf, the miner is by no-means required to do so, and may chose not to file such an action.
Nevertheless, under Chairman Jordan's reading of the statute, if temporary reinstatement had
been previously ordered, it could not b.~ dissolved when a miner ·chooses not to proceed under
seCtion 105 (c)(3) because there was and never will be .a Corninission "final order' 1 on the r,niner' s
discrimination complaint filed with MSHA:' We cannot agree.that Congress intended·sucha
result, and thus we reject that interpretation in favor of an one much more in keeping with how
temporary reinstatement under section 105(c)(2) has worked in practice - it remains in place only
as long as the Secretary is investigating and pursuing the miner's claim of discrirnination. 4
We are not troubled by concluding that a final order issued by the judge dissolving
temporary reinstatement rests on a determination by the Secretary that there has been no violation
of section 105(c), ratherthan on the judge's findings of fact developed from a record during a
hearing. The Secretary was given authority by Congress to determine as an initial matter whether
a violation of section 105(c)(1) has occurred, as is evident by statutory language that (1) requires
the miner to file his or her complaint with the Secretary, and not with the Commission,

3

This was, in fact, Commission procedure for more than 27 years. See n.8, infra.

4

We cannot ignore the significance under section 105(c)(2) of the Secretary's refusal to
file her complaint with the Commission, as such a complaint is an absolute prerequisite to further
Commission action, including of course the issuance of any "final order" in the proceeding,
under that standard. Because the Secretary's refusal to go forward and file such a complaint
prevents the Commission from acting on a discrimination complaint under section 105(c)(2), it
only makes sense to view an order dissolving temporary reinstatement under section 105(c)(2) as
the "final order" referenced in that provision.
31 FMSHRC 982

,.

(2) requires the Secretary to investigate that complaint "as [she] deems appropriate,"5 and
(3) requires the Secretary to file with the Commission a complaint on behalf of the complaining
miner, applicant for employment or representative of miners alleging discrimination and
proposing an order "[i]fupon such investigation, the Secretary determines that the provisions of
this subsection have been violated." 30 U.S.C. § 815(c)(2). If, however, the Secretary
determines that no violation has occurred after administrative investigation and evaluation, the
miner is still entitled to seek a hearing in a section 105(c)(3) proceeding.
In fact, the language of section 105(c)(2) makes clear that the Commission is required to
afford the opportunity for a hearing and issue an order based on findings of fact regarding the
allegations of discrimination only in circumstances in which the Secretary has determined, upon
·. ·. 'futtherinvestigation, that a violation of section 105(c) has=.occurted.; 'Under section 105(c)(2), the·,
Commission must "afford an opportunity for a hearing ... and thereafter ... issue an order,
based upon findings of fact, affirming, modifying, or vacating the Secretary's proposed order, or
directing other appropriate relief." 30 U.S.C. § 815(c)(2) (emphasis added). The Secretary's
proposed order is only before the Commission in circumstances in which the Secretary has filed a
complaint after determining that her investigation reveals a violation of section 105(c).
Thus, it is apparent from the language ofthe statute that Congress intended a two-track
.·' system for discrimination complaints .under the ,Mine Act. . Under Section 105(c)(2), th~
,, '·
: ·.'·b0inplaintto the Secretaryismerged into; and subsumed:by, the Secretary's own complaint;for
· redress ofthe· alleged discrimination. A complainant is required to bring the issue to the
Secretary and may not initiate an action with the Commission. In the event the Secretary finds
that the Act may have been violated, it is her obligation to file.a complaint with the Commission.
There is clear continuity of action, and the "complaint" upon which the order for temporary
reinstatement is based is the same "complaint" submitted by the Secretary. 6 The Secretary in that
instance is the advocate for both the miner's private rights and the public interest.
Conversely, ifthe Secretary finds that the Act was not violated, she has made a
determination with legal effect and consequences. As the Act makes clear, a person whose

5

The investigation by the Secretary is critical to vindicating public interest in whether
the Mine Act has been violated. See Hatfield v. Colquest Energy, Inc., 13 FMSHRC 544, 545
(April 1991) ("[T]he statutory scheme provides to miners a full administrative investigation and
evaluation of an allegation of discrimination.").
6

We note that while the Commission is required to issue an order "affirming, modifying,
or vacating the Secretary's proposed order" under section 105(c)(2), the Commission is required
under section 105(c)(3) to issue "an order, based upon findings of fact, dismissing or sustaining
the complainant's charges." 30 U.S.C. §§ 815(c)(2) & (c)(3). The separate grounds that must
serve as the basis for the Commission's orders under sections 105(c)(2) and 105(c)(3) do not
support the Secretary's contention that the miner's discrimination complaint filed with MSHA is
the basis for the Commission's order under both sections. S. Br. at 12, 24.
31 FMSHRC 983

complaint is investigated and found to be unsupported may proceed, but by "fil[ing] an action in
his own behalfbefore the Commission." 30 U.S.C. § 815(c)(3) (emphasis added). This is
necessary because once the Secretary has determined that a violation has not occurred, the
original complaint - which was made to the Secretary, and not to the Commission - has no
continuing legal status. A person wishing to bring the issues contained therein before the
Commission must therefore initiate a new action.

· .·

In that context; it is notable that section 105(c)(2) expressly provides for temporary
reinstatement, while section 105(c)(3) does not. We agree with the judge's determination that
the inclusion of this remedy in one subsection and omission in the other is presumptively
intentional. See Russello v. United States, 464 U.S. at 23, While temporary reinstatement may
have been imposed on a finding that the· complaint was notfrivolouslymade, it is important to,·,·
remember that this early determination is made before the Secretary has conducted the
investigation commanded by the Mine Act. At the conclusion of the investigation, the Secretary
must decide whether or not the Act has been violated. We rightly presume that the Secretary has
faithfully performed her duty and, while that does not preclude the possibility that a violation of
the Act may yet be found, it certainly stands in sharp contrast to the circumstances present when
the initial complaint is filed, before there has been any exposition of the issue.

......__ ·::.:··

;
. ., . ,

·"

I:

2 ..

Legislative History and Statutory Structure. ,
·~

I,

••

'.

: I

• :

The rationale for temporary reinstatement is evident from changes made to the antidiscrimination provisions of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C.
§ 801 et seq. (1976) (amended 1977) ("Coal Act"). Under the Coal Act, a minerwas responsible
for pursuing his own discrimination case and filed the case at his own expense with his own
counsel. See 30 U.S.C. § 820(b)(2) (1976) (amended 1977). Temporary reinstatement was not
provided for under the Coal Act. Under section 105(c)(2) of the Mine Act, however, the
Secretary has the exclusive duty to conduct the initial investigation, and retains effective legal
control over the issues when she brings an action on a miner's behalf. Notwithstanding that the
Secretary is directed in the Mine Act to complete her investigation within 90 days, Congress
feared that a prolonged investigation under section 105(c)(2) of the Mine Act would impose an
economic hardship on the miner since, unlike under the Coal Act, the miner was not in charge of
his or her own case. To rectify the problem, Congress developed the remedy of temporary
reinstatement in order to protect the miner from bureaucratic delay.
Such reasons justifying temporary reinstatement do not apply in a section 105(c)(3)
proceeding under the Mine Act. In a section 105(c)(3) proceeding, the miner brings his own
action at his own expense and is in charge of his case. Miners proceeding under section
105(c)(3) of the Mine Act are in much the same position they were in under the Coal Act. Under
those circumstances, the need to account for harm caused by any bureaucratic delay does not
exist.

31 FMSHRC 984

This readmg of the statutory language is supported by the Conference Report pertaining
to section 105(c) of the Mine Act. The Conference Report provides in part:
To protect miners from the adverse and chilling effect of
loss of employment while such matters are being investigated, the
Senate bill provided that ifthe Secretary determined that any such
complaint was not frivolously brought, the Secretary seek
teinporary reinstatement of the complaining miner pending final
outcome of the investigation and the Commission order such
reinstatement, after expedited proceedings. The House amendment
contained no such provision.
. -";

'l·.

· ...•I·', ..

.

.·

~

The Senate bill provided that upon completion of the
investigation, if the Secretary found that there had been such
discrimination, he immediately file a complaint with the
Commission, with copies to the complaining party and the violator.
The Commission, after affording the parties an opportunity for a
hearing, could order appropriate relief ....

Under the Senate bill, a complaining party could,-within 30
days of an adverse determination by the Secretary, file an action
with the Commission on his own behalf....

The conference substitute conforms to the Senate bill ....
S. Conf. Rep. No. 95-461, at 52-53 (1977), reprinted in Legislative History of the Federal Mine
Safety and Health Act of 1977 ("Legis. Hist."), at 1330-31 (emphases added). Thus, the
Conference Report reveals that temporaiy reinstatement was a remedy fashioned to protect
miners from the adverse effect of loss of employment during the Secretary's investigation. In
addition, the Conference Report distinguishes between the initiating documents in section
105(c)(2) as "complaints," and the initiating document under section 105(c)(3) as an "action."
As the judge reasoned, the remedial provisions of sections 105(c)(2) and 105(c)(3)
represent a balancing of interests by Congress. 30 FMSHRC at 1122. By providing temporary
reinstatement under section 105(c)(2), Congress determined that operators should bear the greater
economic burden during her investigation, and continuing once the Secretary has concluded that
a miner's discrimination complaint has merit. However, ifthe Secretary determines that the
miner's discrimination complaint does not have merit, i.e., that a violation of the Act has not

31 FMSHRC 985

occurred, the balance would tip in favor of the operator's interest in controlling its workforce. 7
As noted by the judge, the Eleventh Circuit stated that deprivation of an employer's right to
control the makeup of its workforce is only a "temporary one that can be rectified by the
Secretary's decision not to bring a formal complaint or a decision on the merits in the employer's
favor." Jim Walter Res. v. FMSHRC, 920 F.2d 738, 748 n.11 (I Ith Cir. 1990) (emphasis in
original).

··

Our reading of.the Mine Act is also consistent with the Commission's historic reading of
the statute, as embodied in its former procedural rule pertaining to temporary reinstatement.
Rule 45(g) formerly provided that, "If, following an order of temporary reinstatement, the
Secretary determines that the provisions of section 105(c)(1 ), 30 U.S.C. 815(c)(1 ), have not been
· violated, the Judge shall be so notified and shall enter· an· order dissolving the order of , .. ,
reinstatement." 29 C.F.R. § 2700.45(g) (2005). The sentence requiring the judge to dissolve the
order of reinstatement was in place from the inception of the Commission's rule implementing
the temporary reinstatement provisions of the Mine Act in 1979 and remained unchanged until
the Commission's rulemaking in 2006. 8 In the absence of any compelling contrary argument, we
are reluctant to overturn an interpretation which existed without challenge for almost 30 years.

':~ •' ·,

7

We note that section I 05(c)(3) proceedings can be lengthy in duration. See, e.g., Price
v. Monterey Coal Co., 12 FMSHRC 1505 (Aug. 1990) (passage of approximately four-and-a-half
years between the filing of an action by miner under section 105(c)(3) and issuance of the
Commission decision). The duration can be increased by procedural delays ifthe miner is
proceeding without benefit of counsel. See, e.g., Jaxun v. Asarco, LLC, 29 FMSHRC 616,
617-21 (Aug. 2007); 31 FMSHRC 631 (May 2009) (ALJ) (passage of approximately three years
between the filing of a 105(c)(3) action by an unrepresented miner and the issuance of the
Commission decision disposing of merits). As a practical matter, if a miner remains temporarily
reinstated dming a section 105(c)(3) proceeding, there is little incentive for the miner to advance
the proceeding expeditiously.
8

On June 29, 1979, the Commission adopted final procedural rnles that included Rule
44(b), entitled, "Dissolution of order," which provided in part, "If, following an order of
reinstatement, the Secretary determines that the provisions of section 105(c)(1) have not been
violated, the Judge shall be so notified and shall enter an order dissolving the order of
reinstatement." 44 Fed. Reg. 38226, 38231(June29, 1979). The provisions of Rule 44(b) were
later set forth in Rule 45(g), 29 C.F.R. § 2700.45(g). In August 2006, the Commission revised
Rule 45(g) to delete the requirement that the judge dissolve the order of temporary reinstatement
after the Secretary has made a determination of no discrimination. 71 Fed. Reg. 44190, 4419899 (Aug. 4, 2006). In the preamble, the Commission explained that the deletion "leaves open for
litigation the issue of whether an order for temporary reinstatement remains in effect pending a
miner's discrimination complaint under section 105(c)(3)." Id. at 44199.
31 FMSHRC 986

3.

Conclusion

In sum, we conclude that the language of sections 105(c)(2) and 105(c)(3) and relevant
legislative history demonstrate that Congress directly spoke to the issue in this case: a temporary
reinstatement order may not remain in effect after the Secretary has made a determination that no
discrimination has occurred, and a temporary reinstatement order may not remain in effect during
a section 105(c)(3) proceeding.

· :,. ·

Even if the Act were silent or ambiguous on the question at issue, however, we would
reach the same conclusion. The Secretary (S. Br. at 23), along with Commissioner Cohen, would
have us defer to the Secretary's interpretation of the Mine Act, but we fail to see how the
· Seeretary is owed deference on the question of whether temporary reinstatementshould,eontinue
after the Secretary has made a determination of no discrimination. Deference under Chevron II is
owed to an agency's interpretation when the statutory provision being interpreted is one the
agency is "charged with administering." Energy West, 40 F.3d at 460 (D.C. Cir. 1994) (citing
Chevron, 467 U.S. at 844). The Secretary, by declining to pursue a miner's claim of
discrimination, essentially removes herself from the case.
Once that occurs in future cases, 9 it will certainly not be the Secretary that is
. ·"administering" the Mine Act. The question of whether th~ miner was discriminated l;lgait)st can
then only ta1ce place in a section 105(c)(3) proceeding, a proceeding that is essentiallyµ. pcivate.
right of action. If any agency will be said to be "administering" the Mine Act at that point, it
would be this Commission, which, among other things, will be charged with interpreting the
discrimination provisions of section 105(c) to determine whether disc1imination occurred, the
Secretary's determination notwithstanding. Consequently, we look not to the Secretary's
interpretation of section 105(c) to see whether the temporary reinstatement protections in section
105(c)(2) carry forward into section 105(c)(3) proceedings, but rather our own. 10

9

In this case the Secretary has chosen to appear as an amicus to give her views on the
legal question this case presents. Once the issue is resolved, we highly doubt the Secretary will
be making appearances as an amicus in other section 105(c)(3) proceedings, given that such
proceedings ta1ce place only after the Secretary has determined that there was no discrimination.

°

1

Commissioner Cohen would nevertheless have the Commission defer to the
Secretary's interpretation of section 105(c), because the Secretary administers the overall Mine
Act statutory scheme. Slip op. at 28. We cannot agree, because according such deference would
run counter to the plain meaning of section 105(c). First, under the terms of that section, the
Secretruy discharges her responsibility when she determines that no discrimination occurred.
Second, while the Secretary is free to interpret section 105(c)(1) to conclude under section
105(c)(2) that an operator's action did not constitute discrimination, the very fact that Congress
provided in section 105(c)(3) that the Commission could come to the opposite conclusion, and
that the operator would be then subject to penalties for engaging in discrimination, suggests that,

31 FMSHRC 987

Commissioner Cohen asserts that we have mischaracte1ized the Secretary's role in this
case. However, his description of the procedure under section 105(c), slip op. at 29-30, misstates
the process by which the Secretary relinquishes her involvement in the case and simplifies the
problem before us by assuming away the issue. Commissioner Cohen says that "[t]he fact that
the Secretary has determined that a miner has not demonstrated discrimination in a particular
case does not change the Secretary's interest in ensuring that miners who file section 105(c)(3)
actions are entitled, as a class, to continue temporary reinstatement until a final order of the
Commission." Id. at 29 (emphasis added). First of all, it is not the miner's responsibility to
"demonstrate discrimination." Rather, it is the Secretary's duty to initiate an appropriate
investigation to determine whether discdmination has occurred. 30 U.S.C. § 815(c)(2). Second,
when the Secretary has made a determination that there has been no discrimination, there is no
· 1·•· · ·
• basis;for her faterest in continuing temporary reinstatement. . The presumption of discrimination· .. ,
that underlies temporary reinstatement cannot exist in a section 105(c)(3) proceeding because the
fact of violation is the ultimate issue we are called upon to decide. Third, Commissioner
Cohen's assumption runs counter to the procedural posture of every section 105(c)(3) case
brought before us. In that regard, we note that the end result of the investigation required by
section 105(c)(2) is a finding by the Secretary either that (1) a violation of the law has occurred,
in which case the procedure and her duty are outlined in the subsection, or (2) a violation has not
· occurred, in which case the Secretary, through her own actions and determination, is no longer a
· .·,•party in the case .. Thus, the Secretary must initiate an investigation and must pursue the miner'.s
-complaint if.she believes the anti-"discrimination provisions of the Act have been violated an4.
··may only elect, in her sole discretion as the "enforcer of the Act,':~ .not to pursue the Miner's
complaint when she has determined that the provisions of the Act have not been violated.
In sum, the mere fact that the Secretary appears before us as an amicus does not
determine the weight we afford her view; rather, it is the fact that she attained that status through
what we must presume to be a scrupulous and diligent exercise of her authority, leading to a
finding that the operator did not discriminate against the complainant and that it would therefore
be inappropdate to continue with a public prosecution of the complaint. The cases cited by
Commissioner Cohen, slip op. at 30 n.4, conferring deference or weight to an agency's
interpretation, even as a nonp'arty, do not involve the agency's deliberate, negative determination
on the question at issue and are therefore distinguishable.

Finally, even if we were to consider deferring to the Secretary's interpretation of sections
105(c)(2) and 105(c)(3), we would conclude that her interpretation is unreasonable because it is
inconsistent with the statutory language, relevant legislative history, and the Commission's own
experience with section 105(c)(3) cases, as discussed above. See Lancashire Coal Co. v. Sec '.Y of
Labor, 968 F.2d 388, 393 (3d Cir. 1992) ("[W]e cannot conclude that the Secretary's
interpretation is reasonable in this case insofar as it conflicts with the language of the statute.");
cf Sec'y ofLabor v. FMSHRC, 111 F.3d 913, 920 (D.C. Cir. 1997) (finding Secretary's

in the area of discrimination proceedings, the Commission is not obligated to defer to the
Secretary.
31 FMSHRC 988

interpretation reasonable where it was consistent with the statutory language, legislative history
and legislative purpose).
For the reasons discussed above, we would affirm in result the judge's dissolution of the
order of temporary economic reinstatement and his dismissal of the temporary reinstatement
proceeding.

,.

...

31 FMSHRC 989

Chairman Jordan, in favor ofreversing the Judge's order:
Under the Mine Act, a miner's temporary reinstatement remains in effect "pending final
order on the complaint." 30 U.S.C. § 815(c)(2). Because the plain language of the statute
mandates that temporary reinstatement continue until the Commission issues a final order
regarding the merits of the miner's allegations of discriminatory conduct, I would reverse the
judge's order dissolving the miner's temporary reinstatement in this case.
A miner who alleges an illegal discharge may obtain temporary reinstatement in
accordance with section 105(c), which provides in relevant part:
[a]ny miner ... who believes that he has been discharged,
interfered with, or otherwise discriminated against by any person in
violation of this subsection may ... file a complaint with the
Secretary alleging such discrimination. Upon receipt of such
complaint, the Secretary shall ... cause such investigation to be
made as he deems appropriate. Such investigation shall commence
within 15 days of the Secretary's receipt of the complaint, and if
the Secretary finds that such complaint was not frivolously
brought, the Commission, on an. expedited basis upon application
of the Secretary, shall order the immediate reinstatement of th~
miner pending final order on the complaint..
30 U.S.C. § 815(c)(2) (emphasis added).
Upon completion of her investigation, the Secretary makes a determination as to whether
discrimination occurred. If the Secretary determines that the Act was violated, she must
"immediately file a complaint with the Commission." Id. If the Secretary concludes that no
violation occurred, she must notify the miner of that fact and the miner, pursuant to section
105(c)(3), has the right to "file an action in his own behalf before the Commission, charging
discrimination or interference in violation of paragraph (l)." 30 U.S.C. § 815(c)(3). The issue in
this case is whether the temporary reinstatement remains in effect while the miner proceeds on
his own behalf to litigate his or her discrimination claim before the Commission.
As in other cases involving statutory interpretation, we must determine "whether
Congress has directly spoken to the precise question at issue." Chevron U.S.A. Inc. v. Natural
Res. Def Council, Inc., 467 U.S. 837, 842 (1984). The Supreme Court emphasized in Chevron
that, "[i]fthe intent of Congress is clear, that is the end of the matter; for the court, as well as the
agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842-43. As
demonstrated below, Congress intended the temporary reinstatement of a miner to continue until
there is a final Commission order on the merits of the miner's claim that he or she was
discriminated against because of safety activity.

31 FMSHRC 990

Section 105(c)(2) provides for temporary reinstatement "pending final order on the
complaint." The Secretary's decision not to go forward on the miner's discrimination case is not
a final order on the complaint. On this point I agree with my affirming colleagues, who state that
"only the Commission may issue an 'order' under section 105(c). " Slip op. at 7. Pursuant to the
split enforcement scheme envisioned by Congress, it is the Secretary who investigates miners'
complaints of discrimination and issues proposed orders, but it is only the adjudicatory body the Commission~ that issues final orders pertaining to the litigation. See 30 U.S.C. § 815(c)(2)
and (c)(3). The word "order" appears in section 105(c) nine times, always referring to a
Commission order (either an order granting temporary reinstatement, an order disposing of a
complaint filed by the Secretary on behalf of a miner under section 105(c)(2), or an order
disposing of an action filed by a miner under section 105(c)(3)). As my colleagues correctly
· " • ·
point out, "the Secretary's conclusion regarding whether her investigation revealed , .;· · 1.
discrimination is a 'determination,' not an order." Slip op. at 7.
The Mine Act sets forth the method by which the Commission issues a final order in a
discrimination proceeding. If, after conducting her investigation, the Secretary decides that the
Act has been violated, pursuant to section 105(c)(2) she is required to file a complaint with the
Commission and to "propose an order granting appropriate relief." 30 U.S.C. § 815(c)(2). The
Commission, after affording an opportunity for a hearing, is required to "issue an order, based
. upon findings of fact, affirming, modifying, or vacating the. Secretary's proposed ord<:fr, or, .._:,
, directing other appropriate relief'' Id. The Commission's order 'ibecome[s] final 30 .days after '.
itsissuance." Id.
.. .
If the Secretary notifies the miner of her determination that no violation of section
105(c)(l) occurred, "the complainant," pursuant to section 105(c)(3), is entitled to "file an action
in his own behalf before the Commission." 30 U.S.C. § 815(c)(3). The Commission is required
to afford an opportunity for a hearing and to "issue an order based upon findings of fact,
dismissing or sustaining the complainant's charges and, ifthe charges are sustained, granting
such relief as it deems appropriate.... " Id. This Commission order "become[s] final 30 days
after its issuance." Id.

Thus, in accordance with the plain meaning of the statute, there is no "final order on the
complaint" until the Commission issues an order which either affirms, modifies, or vacates the
Secretary's proposed order in accordance with section 105(c)(2), or dismisses or sustains the
complainant's charges in accordance with section 105(c)(3). It is clear that a final order in either
case must be based on the Commission's findings of fact and the Commission's determination of
whether discriminatory conduct in violation of section 105(c)(1) occurred. 1

1

My affirming colleagues contend that ifthe miner does not choose to go forward under
section 105(c)(3), under my view of the statutory language there would never be a Commission
final order on the discrimination complaint. Slip op. at 8. Since temporary reinstatement
remains in effect "pending a final order on the complaint," the temporary reinstatement could
never be dissolved. My colleagues claim this is not what Congress intended. I agree. A
31FMSHRC991

A miner who has been granted temporary reinstatement is entitled to remain in that status
"pending final order on the complaint." 30 U.S.C. § 815(c)(2). There has been no final
Commission order on Mr. Phillips' complaint, and, therefore, the statutory prerequisite that
would justify dissolution of Mr. Phillips' temporary reinstatement order is lacking. Although my
affirming colleagues appear to treat it as such, the judge's November 26, 2008 order dissolving
Mr. Phillips' temporary reinstatement cannot constitute the prerequisite "final order on the
complaint." To consider it in this manner would amount to a ruling that the final order on the
complaint, necessary to dissolve the temporary reinstatement, is the order dissolving the
temporary reinstatement.
The judge did not dissolve Mr. Phillips' temporary reinstatement because of a final
Commission order. The judge never considered the merits of Mr: 1Phillips.' claim; The sole basis
of the judge's decision was the Secretary's determination that a violation of section 105(c) had
not occurred, and her notification that she would not be filing a complaint on Mr. Phillips'
behalf. According to the judge: "A final order on the miner's complaint is reached when the
Secretary advises the miner, as she has done in this proceeding, that '[y]our complaint of
discrimination under Section 105(c) has been investigated ... [and] MSHAhas determined that
facts disclosed during the-investigation ... do not constitute a violation of section 105(c). "' 30
FMSHRC 1119, 1121 (Nov. 2008) (ALJ).
'·)

. :'.Having agreed thatthe Secretary's deterinination regarding the results of her investigation
does not constitute a final order under section 105(c), ("the Secretary's conclusion ... is a
'determination' not an order," slip op. at 7), my affirming colleagues nevertheless proceed to
make the duration of the temporary reinstatement contingent on just this determination. Ignoring
the statute's plain language, they conclude: "[I]fthe Secretary determines that there has been no
discrimination, the temporary reinstatement order would cease to be effective, and the judge
should issue an order dissolving the temporary reinstatement and dismissing the temporary
reinstatement proceeding." Slip op. at 8. The statute requires a fmal order from the
Commission, not a determination from the Secretary, in order to dissolve a grant of temporary
reinstatement. My colleagues fail to realize that the judge lacked the necessary statutory
prerequisite for dissolving the temporary reinstatement because no final order had been issued on
Mr. Phillips' complaint.

reinstatement that can never be dissolved can hardly be considered temporary. The requirement
that temporary reinstatement remain in effect "pending final order on the complaint" necessarily
implies that there is a possibility of obtaining a Commission final order on the discrimination
complaint under section 105(c)(2) or 105(c)(3). In the event the miner foregoes that possibility,
obviously the temporary reinstatement provision would no longer be applicable.
31 FMSHRC 992

My colleagues have been led astray by their narrow focus on section 105(c)(3)' s reference
to the complainant's right to file an "action" in his own behalf before the Commission.2 They
consider the reference to filing an "action" under section 105(c)(3) as an indication that there no
longer exists a complaint that can be the subject of a Commission order. Since temporary
reinstatement stays in effect pending the Commission's "final order on the complaint," initiating
an "action" under section 105(c)(3) must, in their view, extinguish the miner's temporary
reinstatement. My colleagues' position is untenable in light of the pertinent statutory language
and the Commission case law.
Much as my colleagues would like to erect an impenetrable analytical barrier between the
miner's initial filing of a discrimination complaint to the Secretary and the miner's subsequent
· action;before the Commission, neither•the statutory language northe Commission case:law
.... 1 '
permit them to do so. Although section 105(c)(3) refers to an "action" before the Commission,
the person who files this action is referred to as the "complainant." 30 U.S.C. § 815(c)(3)
(emphasis added). Thereafter, the Commission is instructed to afford an opportunity for a
hearing and to "issue an order based upon :findings of fact, dismissing or sustaining "the
complainant's" charges." Id. (emphasis added). The reference to "complainant" is an
acknowledgment that the proceeding under section 105(c)(3) involves the same alleged
discriminatory conduct that prompted the miner's complaint to the Secretary under section
105(c)(2). The statute does not direct the miner to file a complaint under section 105(c)(3)
,.
because the miner has already filed a complaint. That is why the miner is referred to in section ·· ,, , .. , ,
· 105(c)(3) as the "complainant."
Commission rulings have made that fact clear. In Hatfield v. Co/quest Energy, Inc., 13
FMSHRC 544 (Apr. 1991), the operator argued that the complainant's amended filing pursuant
to section 105(c)(3) differed too substantially from his complaint filed with the Secretary. The
Commission agreed that the proceeding under section 105(c)(3) must be based on the matter
initially investigated by the Secretary under section 105(c)(2) or else "the statutory prerequisites
for a complaint pursuant to§ 105(c)(3) have not been met." Id. at 546 (emphasis added). Accord
Sec'y ofLabor on behalf ofDixon v. Pontiki Coal Corp., 19 FMSHRC 1009 (June 1997). The
Commission's reference to the section 105(c)(3) proceeding as a "complaint" in Hatfield was not
an isolated occurrence. In Roland v. Sec'y ofLabor, 7 FMSHRC 630 (May 1985), the
Commission pointed out that "[s]hould the Secretary determine that no discrimination has
occurred, the miner, pursuant to section 105(c)(3) ... may file a discrimination complaint on his
own behalf before the Commission." 7 FMSHRC at 635 (emphasis added).
Resort to the legislative history of the Mine Act merely underscores the strained nature of
my colleagues' reading of the statute. Citing the Conference Report language that "[u]nder the
Senate bill, a complaining party could, within 30 days of an adverse determination by the

2

Section 105(c)(3) states that "the complainant shall have the right, within 30 days of
notice of the Secretary's determination, to file an action in his own behalf before the
Commission." 30 U.S.C. § 815(c)(3).
31FMSHRC993

Secretary file an action with the Commission on his own behalf," slip op. at 11 (emphasis
added), my colleagues omit the sentence that follows, which states that:
The Commission must afford an opportunity for a hearing, and
thereafter, issue an order, based upon findings of fact, dismissing
or sustaining the complaint, and granting such relief as may be
appropriate. If the complainant prevailed in an action which he
brought himself after the Secretary's determination, the
Commission order would require that the violator pay all expenses
reasonably incurred by the complainant in bringing the action.

·.:. . '· ·.. ·.; ·· ·s. Conf.'Rep. No;·95-461, at 52-53 (1977), reprinted in Senate Subcortnn. onLabor, Comm. on·.
Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 1330
(1978) ("Legis. Hist.") (emphases added).
The Commission's Procedural Rules also demonstrate that the significance my colleagues
place on the use of the word "action" in section 105(c)(3) (as opposed to the word "complaint" in
section 105(c)(2)) is misplaced. Our rule clearly contemplates that a miner filing a claim under
section 105(c)(3) does so by filing a "complaint." Procedural Rule 40(b), 29 C.F.R.
·§:2700.40(b), states:
.,

~

'

:

..

:. ··.~ '.

A discrimination complaint under section 105(c)(3) of the Act, 30
U.S.C. 815(c)(3), may be filed by the complaining miner,
representative of miners, or applicant for employment if the
Secretary, after investigation, has determined that the provisions of .
section 105(c)(l) of the Act, 30 U.S.C. 815(c)(l), have not been
violated.
Additional language in the Mine Act refutes the contention that Congress considered
claims brought under section 105(c)(2) and (c)(3) to be such entirely separate proceedings, that
they deemed it appropriate to provide temporary reinstatement pursuant to only one of them.
Section 105(c)(3) states that "[p ]roceedings under this section shall be expedited by the Secretary
and the Commission." 30 U.S.C. § 815(c)(3). This mandate, however, undeniably applies to
section 105(c)(2) actions as well (otherwise the reference to the Secretary makes no sense).
Indeed, the Commission has interpreted it in this manner. See Sec '.Y ofLabor on behalf ofNoe v.
J & C Mining, LLC, 22 FMSHRC 705, 706 (June 2000) (stating, in a section 105(c)(2) case, that
"the Commission will be expediting these proceedings as it is statutorily required to do").
Likewise, section 105(c)(3) refers to Commission orders issued "under this paragraph" being
"subject to judicial review in accordance with section 106." 30 U.S.C. § 815(c)(3). Clearly,
however, a Commission order issued under section 105(c)(2) is also subject to judicial review.
My affirming colleagues contend that temporary reinstatement is designed to protect
miners "from the adverse effect of loss of employment during the Secretary's investigation."
31 FMSHRC 994

Slip op. at 11. Not only is this position contrary to the statutory language (which provides for
temporary reinstatement pending final order on the complaint, riot pending the resolution of the
Secretary's investigation), the literal application of this principle would result in the dissolution
of the temporary reinstatement order upon conclusion of the Secretary's investigation, even ifthe
Secretary determines that section 105(c)(1) was violated. That the temporary reinstatement
provision was hardly viewed in the cramped fashion suggested by my colleagues is evidenced by
the Senate Report, wherein the drafters explained that:

• ~ ·r .

The Committee feels that this temporary reinstatement is an
essential protection for complaining miners who may not be in the
financial position to suffer even.a short period of unemployment or
· ·· reduced income pending the resolution ofthe.discrimination
complaint.

.

S. Rep. No. 95-181, at 37, Legis. Hist. at 625.
Because, under section 105(c)(3), a miner "brings his own action at his own expense and
is in charge of his case," slip op. at 10, my affirming colleagues have concluded that the need to
account for harm due to "bureaucratic delay'' does not exist. Id. Underlying this statement is the
. unsubstantiated notion that somehow a miner in a section 105(c)(3). proceeding will be ,able to
· · control how quickly his or her case is resolved. , Their ,own reference to a section 105(c)(3 )'case
that took four-and-a-half years to decide belies.this contention. Slip.op. at 11-12 n.7 (citingPrice
v. Monterey Coal Co., 12 FMSHRC 1505 (Aug. 1990)). My affirming colleagues are concerned
that, "if a miner remains temporarily reinstated during a section 105(c)(3) proceeding there is
little incentive for the miner to advance the proceeding expeditiously." Slip op. at 12 n.7. Of
course, the corollary to this concern is that when the complainant miner is not temporarily
reinstated, there is every incentive for the respondent mine operator to delay the section 105(c)(3)
proceeding. While both scenarios are problematic, the appropriate question for us to consider is,
which one caused Congress greater concern?
By making temporary reinstatement dependent on a determination that the miner's
discrimination claim is "not frivolously brought," 30 U.S.C. § 815(c)(2), Congress "clearly
intended that employers should bear a disproportionately greater burden of the risk of an
erroneous decision in a temporary reinstatement proceeding." Jim Walter Res., Inc. v. FMSHRC,
920 F.2d 738, 748 n.11 (11th Cir. 1990).3 While the employer's loss of its ability to control its
3

My colleagues invoke the Court's observation that "deprivation of an employer's right
to control the makeup of its workforce is only a "temporary one that can be rectified by the
Secretary's decision not to bring a formal complaintor by a decision on the merits in the
employer's favor." Slip op. at 12 (citing Jim Walter, 920 F .2d at 748 n.11 (emphasis in
original)). However, it appears the Court's comment was prompted by prior Commission Rule
44(f), 29 C.F.R. § 2700.44(f) (subsequently re-numbered as Commission Rule 45(g), 29 C.F.R.
§ 2700.45(g)), id. at 741, rather than by an independent interpretation of the statute.
31 FMSHRC 995

workforce is not to be taken lightly, the legislative history of the Mine Act indicates that section
105(c)' s prohibition against discrimination is to be "construed expansively to assure that miners
will not be inhibited in any way in exercising any rights afforded by the legislation." S. Rep. No.
95-181, at 36, Legis. Hist. at 624. Recognizing the important role that individual miners play in
ensuring a safe and healthy working environment, Congress was also acutely aware that "mining
often takes place in remote sections of the country where work in the mines offers the only real
employment opportunity." S. Rep. No. 95-181, at 35, Legis. Hist. at 623. The temporary
reinstatement provision was viewed as "an essential protection" for miners who might not be
able "to suffer even a short period of unemployment." S. Rep. No. 95-181, at 37, Legis. Hist. at
625. This Congressional balancing of equities applies equally to a section 105(c)(2) case brought
by the Secretary, and to a section 105(c)(3) claim, brought by the miner on his own behalf after
· ·· . >. ,,,..• ;,·, ., ·
. ·. , ,, ···
the Secretary declines to go forward.· ·

''·

Temporary reinstatement is imposed pursuant to a Commission order that the miner's
discrimination claim was not frivolously made. The Secretary's decision not to proceed with the
discrimination complaint does not transform that complaint into a frivolous action. To hold
otherwise would require us to conclude that Congress implemented a statutory provision (section
105(c)(3) of the Mine Act) devoted to the litigation of frivolous claims. To the contrary, not only
does the Secretary's negative determination not reduce the c0mplaint to a frivolous claim, the
.Commission has explicitly acknowledged that it "may find discrimination where the. Secr.etary.
has nof~. and that "the Secretary's determination· riot to .prosecute [aJdiscrimination case· ..·. : is ·
not probative of whether [the operator] discriminated against the miners." Fort Scott FertilizerCullor, Inc., 17 FMSHRC 1112, 1117(July1995). fudeed, there have been numerous cases in
which the Secretary declined to file a complaint and the miner successfully proceeded on his own
behalf. See, e.g., Ross v. Shamrock Coal Co., 15 FMSHRC 972, 974-76 (June 1993); Meekv.
Essroc Corp., 15 FMSHRC 606, 612-13 (Apr. 1993)); Womackv. Graymont Western US, Inc.,
25 FMSHRC 235, 261-63 (May 2003) (ALJ); Adldns v. Ronnie Long Trucking, 21 FMSHRC
171, 176-77(Feb.1999)(ALJ); Paulv.NewmontGoldCo., 18FMSHRC 181, 191 (Feb.1996)
(ALJ).
Consequently, since the Secretary's decision not to go forward on Mr. Phillips' behalf
does not vitiate the previous non-frivolous finding regarding his complaint, the temporary
reinstatement, which is based on that nonfrivolous finding, must remain in effect "pending final
order on the complaint."4 Balancing the equities does not require the opposite conclusion.
Requiring the temporary reinstatement to remain in effect pending the miner's litigation under
section 105(c)(3) is no more inequitable than the Commission's determination that a temporary
reinstatement order remains in effect pending appeal to the Commission, notwithstanding the fact
that a Commission judge concluded, subsequent to a hearing on the merits, that no discrimination

4

fu Jim Walter, the Eleventh Circuit explained that the basis for a temporary
reinstatement order and the underlying merits of a miner's claim are "conceptually different," and
it ruled that the temporary reinstatement order was a collateral order completely separate from
the merits of the action. 920 F.2d at 744.
31 FMSHRC 996

occurred. See Sec ·'.Y ofLabor on behalf ofBernardyn v. Reading Anthracite Co., 21 FMSHRC
947, 949 (Sept. 1999). In Bernardyn, the Commission recognized that the statutory language,
providing for temporary reinstatement "pending final determination on the merits of the
complaint," required this result. 21 FMSHRC at 950. 5

In conclusion, in passing the Mine Act, Congress created two different mechanisms for
bringing discrimination complaints, under which either the Secretary or the claimant may
prosecute the case. Under either procedure, the same underlying complaint (filed initially with
MSHA) is at issue. The statute clearly states that a temporary reinstatement order remains in
effect pending a final Commission order on this complaint. Here, there has been no such final
order on the miner's complaint. Accordingly, I would reverse the judge's decision.

~.£~

{,fl/Ljiordan,~------

"j

..

!

•

5

I recognize that in Bernardyn, the Commission refers to prior Procedural Rule 45(g), 29
C.F.R. § 2700.45(g) (1999), which provided for dissolution of a temporary reinstatement order if
the Secretary determined that discrimination did not occur, as a "gap filling provision designed to
deal with a situation not addressed by the statute - the status of a temporary reinstatement order
following a determination by the Secretary that there has been no violation of section 105(c)." 21
FMSHRC at 950. I believe this comment, which is dictum, to be incorrect since I have
concluded that the referenced situation is addressed by the statutory language "pending final
order on the complaint" and requires the maintenance of temporary reinstatement until there is a
final determination by the Commission on the merits of the miner's claim of discrimination.

31 FMSHRC 997

Commissioner Cohen, in favor of reversing the Judge's order:
This case presents the question of whether a temporary reinstatement order remains in
effect after the Secretary determines that the anti-discrimination provisions of the Mine Act, 30
U.S.C. § 815(c), have not been violated. The relevant Mine Act language states that, after a
determination that a discrimination complaint was not "frivolously brought," the Commission
"shall order the_ immediate reinstatement of the miner pending final order on the complaint." 30
U.S.C. § 815(c)(2). The resolution of this issue involves identifying the proper interpretation of
"final order" and "complaint" in this section of the statute. Although I agree with my colleague,
Chairman Jordan, that a temporary reinstatement order stays in effect pending resolution of a
discrimination complaint filed with the Mine Safety and Health Administration ("MSHA"), I
reach this conclusion by way of a different analysis, and therefore write separately, as I.find that
the statutory language at issue is ambiguous.
The first inquiry in statutory construction is ''whether Congress has directly spoken to the
precise question at issue." Chevron U.S.A. Inc. v. Natural Res. Def Council, 467 U.S. 837, 842
(1984); Thunder Basin Coal Co., 18 FMSHRC 582, 584 (Apr. 1996). If a statute is clear and
unambiguous, effect must be given to its language. See Chevron, 467 U.S. at 842-43; accord
Local Union No. 1261, UMWA v. FMSHRC, 917F.2d42, 44 (D.C. Cir. 1990). 1 If, however, the
statute is ambiguous or silent on a point in question, a second inquiry, commonly referred to as a
,· ·:chevron IF' analysis, is required to determine whether an agency's interpretation of a .statute is a
reasonable one. See Chevron, 467 U.S. at 843-44; ThunderBasin, 18 FMSHRC at 584 n.2;
Keystone, 16 FMSHRC at 13. Under Chevron II, deference is accorded to "an agency's
interpretation of the statute it is charged with administering when that interpretation is _·
reasonable." Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994) (citing
Chevron, 467 U.S. at 844). The agency's interpretation of the statute is entitled to affinnance as
long as that interpretation is one of the permissible interpretations the agency could have
selected. See Joy Technologies, Inc. v. Secretary ofLabor, 99 F.3d 991, 995 (10th Cir. 1996),
cert. denied, 520 U.S. 1209 (1997) (citin$ Chevron, 467 U.S. at 843); Thunder Basin Coal Co. v.
FMSHRC, 56 F.3d 1275, 1277 (10th Cir. 1995).
The operator contends that the plain meaning of the Mine Act requires that the temporary
reinstatement order be dissolved if the Secretary does not file a complaint on behalf of the miner.
A & S Br. at 7. My colleagues Commissioners Duffy and Young agree with the operator. On the
other hand, the Secretary asserts that the plain meaning of the statute mandates that a temporary
reinstatement order remain in effect until the Commission issues a final order on the merits of the
miner's underlying discrimination complaint. S. Br. at 10. My colleague Chairman Jordan
agrees with the Secretary. The parties' insistence that the statutory language is clear, coupled

1

The examination to determine whether there is such a clear Congressional intent is
commonly referred to as a "Chevron F' analysis. See Thunder Basin, 18 FMSHRC at 584;
Keystone Coal Mining Corp., 16 FMSHRC 6, 13 (Jan. 1994).
31 FMSHRC 998

with their equally emphatic contentions proposing contradictory interpretations of that language,
suggests that the Mine Act is actually ambiguous on this question. 2
In order to determine whether Congress' intention as to the question at issue can be
gleaned from the "plain meaning" of the statutory language, we employ the "traditional tools of
statutory construction." Natural Res. Def Council, Inc. v. Browner, 57 F.3d 1122, 1125 (D.C.
Cir. 1995) (quoting Chevron, 467 U.S. at 843 n.9). These include examination of the statute's
text, legislative history, and structure, as well as its purpose. See Bell Atlantic Telephone
Companies v. FCC, 131F.3d1044, 1047 (D.C. Cir. 1997). As the D.C. Circuit recognized in
Bell Atlantic, a court utilizes the text, history, and purpose of a statute to determine whether they
convey a plain meaning that requires a certain interpretation. Id. at 1049 (emphasis in original).
.

.

.·,

~

·.

I;.,,,

,1

••

Statutory language is considered ambiguous if reasonable minds may differ as to its
meaning, and when, as in this case, it is open to two or more constructions. 73 Am. Jur. 2d
Statutes § 114. Consequently, we must determine "whether the language of [the] statute is
susceptible to more than one natural meaning." Taing v. Napolitano, 567 F.3d 19, 23 (1st Cir.

2

As one federal court judge declared, when wrestling with the meaning of a term in
environmental law:
·, . . ;:
(·.

· Despite the fact that both parties argue that the meaning of
"toxicity'' is clear, they come to different conclusions as to whether
[a particular chemical] meets the definition.... What emerges
clearly from this dialogue between the parties is not the meaning of
"toxicity," but that its meaning is both ambiguous and ill-defined.

The Fertilizer Institute v. Browner, No. CN. A. 98-1067 (GK) 1999 WL 33521297, at *3
(D.D.C. Apr. 15, 1999); see also Pugliese v. Pukka Dev., Inc., 550 F.3d 1299, 1304 (11th Cir.
2008) (ruling that although both parties agreed that statutory language was plain and
unambiguous, and argued that plain meaning supported their different interpretations, this
indicated ambiguity); Toomer v. City Cab, 443 F.3d 1191, 1194-95 (10th Cir. 2006) (holding
that when both parties argued that a statutory term was unambiguous and urge different meanings
that are clear from the statute's plain language, the statute was ambiguous with respect to that
term); Harris v. Sims Registry, No. 00 C 3028, 2001 WL 78448, at *3 (N.D. Ill. Jan. 29, 2001)
(finding that when both parties asserted that a statutory text was not ambiguous but their
interpretations differed, the term created ambiguity). But see Symposium, "Pernicious Ambiguity
in Contracts and Statutes," 79 Chicago-Kent L. Rev. 859, 867 (2004) (citing Justice Thomas'
view that "[a] mere disagreement among litigants over the meaning of a statute does not prove
ambiguity; it usually means that one of the litigants is simply wrong" (citation omitted)); John v.
United States, 247 F .3d 1032, 1041 (9th Cir. 2001) (stating that "statutory ambiguity cannot be
determined by referring to the parties' interpretations of the statute. Of course their
interpretations differ. That is why they are in court.").

31 FMSHRC 999

2009) (citation omitted). Here, the parties differ strenuously as to the "plain meaning" of the
statute's text, its structure, its legislative history, and its purpose.
As to the text, the parties disagree about the plain meaning of the words "final order" and
"complaint" in the phrase "immediate reinstatement of the miner pending final order on the
complaint" in section 105(c)(2), and offer several competing interpretations. The Secretary
argues that the words refer to the Commission's final order on the miner's underlying complaint
of discrimination. S. Br. at 10-15. A&S, echoing the judge, 30 FMSHRC at 1121, contends that
the "final order" occurs when the Secretary's involvement ends, after the investigatory findings
do not show a violation of section 105(c)(1 ). In its reply brief, A&S argues that a "final order" of
the Commission can arise out of the Secretary's investigatory determination, just as a final order
can arise out of an operator's failure to timely contest a proposed assessment by the Secretary
under sections 105(a) and (b). A&S R. Br. at 3-5. A&S also states that the judge's order
dismissing the case when the Secretary chose not to proceed constitutes a final order of the
Commission. Id. at 4.
Likewise, my colleagues disagree as to the "plain meaning" of the text. Commissioners
Duffy and Young assert that the textual language means that the temporary reinstatement order
remains effective pending the Commission's final order on the miner's discrimination complaint
to the Secretary.under section 105(c)(2), and that this final order occurs when the judge, upon,
notification by the Secretary of a determination of no discrimination .under section 105(c)(1);.
issues an order dissolving temporary reinstatement and dismissing the temporary reinstatement
proceeding. Slip. op. at 8. On the other hand, Chairman Jordan agrees with the Secretary that
the textual language refers to the Commission's final order disposing of the miner's complaint of
discrimination to MSHA. Chairman Jordan disputes Commissioners Duffy and Young, arguing
that the fmal order on which the dissolution of temporary reinstatement is predicated cannot be
the order which itself dissolves temporary reinstatement. Slip op. at 18.
This brief summary of the different "plain meanings" which have been advanced in this
case for the statutory text "reinstatement of the miner pending final order on the complaint" most of which have at least some justification - illustrates that the text actually does not have a
plain meaning.
Differences also emerge when the parties and my colleagues examine the structure of the
statute. The Secretary argues that a finding that the complaint was not fii.volously brought, which
triggers temporary reinstatement under section 105(c)(2), is different from a determination that
the substantive discrimination provisions of section 105(c)(1) were not violated. The
determination that a substantive violation has not occurred must be made by the Commission, not
the Secretary, and case law establishes that a violation may have occurred even though the
Secretary declined to file a complaint. The Secretary further asserts that 105(c)(2) and 105(c)(3)
actions before the Commission have the same relationship to the miner's underlying
discrimination complaint. S. Br. at 15-21. However, following the reasoning of the judge, 30
FMSHRC at 1121-22, A&S argues that section 105(c)(2) and section 105(c)(3) embody different

31 FMSHRC 1000

kinds of complaints and procedures. Temporary reinstatement only occurs in the context of
section 105(c)(2). Moreover, a miner does not face lengthy delays in a complaint under section
105(c)(3), which the statute requires to be "expedited." A&S Br. at 7-11. Similarly,
Commissioners Duffy and Young describe a two-track system where the miner's "complaint" in
section 105(c)(2) is distinctly different from the miner's "action" in section 105(c)(3).
Temporary reinstatement applies in section 105(c)(2) but not in section 105(c)(3). Their opinion
concludes that if the Secretary makes a determination of no discrimination, the miner's original
complaint has no legal status, and the miner must initiate a new "action," distinct from his
original "complaint." Slip op. at 6-7. However, Chairman Jordan contends that the section
105(c)(3) "action" is not inherently different from the section 105(c)(2) "complaint," because the
statute describes the party bringing the section 105(c)(3) "action" as the "complainant,;~which
refers ·back to the miner's ,complaint under-section 105(c)(2). She .points out that the :, " '· ' i ., . '· . . , , ,
Commission's Procedural Rule 40(b), 29 C.F .R. § 2700.40(b), refers to the "action" filed by a
miner under section 105(c)(3) as a "discrimination complaint." Chairman Jordan also cites case
law in which the Commission has held that the requirement in section 105(c)(3) that the
proceedings be "expedited" also applies to cases before the Commission under section 105(c)(2).
Slip op. at 20.
The' parties and my colleagues also have different interpretations of the legislative history
of the temporary reinstatement provision. The Secretary cites the Senate Report, which states
>that Congress intended that section 105(c) ''be construed expansively to assure that miners will ,
· ·" not be inhibited in any way in exercising any rights afforded by the legislation." S. Rep. No.· ·95181, at 36 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legi,slative
History of the Federal Mine Safety and Health Act of1977, at 624 ("Legis. Hist."). The
Secretary quotes the same report to the effect that upon determining that the complaint was not
frivolously brought, she shall seek "an order of the Commission temporarily reinstating the
complaining miner pending.final outcome of the investigation and complaint ... [as] an
essential protection for complaining miners who may not be in the financial position to suffer
even a short period of unemployment or reduced income pending the resolution of the
discrimination complaint." S. Br. at 21-23 (citing S. Rep. No. 95-181, at 37, Legi,s. Hist. at 625
(emphasis in Secretary's brief)). In contrast, Commissioners Duffy and Young cite the
Conference Report, which states that the Conference Committee adopts the Senate version of the
provision, which, according to the Conference Committee, provides that if the complaint was not
frivolously brought, the Secretary shall "seek temporary reinstatement of the complaining miner
pending the.final outcome of the investigation." Slip op. at 11 (citing S. Conf. Rep. No. 95-461,
at 52-53 (1977), reprinted inLegis. Hist. at 1330-31 (emphasis added)). Thus, the Conference
Report referred to temporary reinstatement until completion of the investigation (if the Secretary
did not find discrimination), while the Senate Report spoke of temporary reinstatement until the
resolution of the entire complaint. The legislative history can be interpreted quite differently
depending on which report is quoted.
The parties and my colleagues also interpret the purpose of the temporary reinstatement
provision differently. The Secretary, S. Br. at 21-23, and Chairman Jordan, slip op. at 21-22,
31FMSHRC1001

,1

emphasize the need to fully protect the miner who is unemployed because of alleged
discrimination, and conclude that a viable allegation of discrimination continues past an adverse
finding by the Secretary and until the conclusion of proceedings by the Commission. However,
A&S, Br. at 8-9, and Commissioners Duffy and Young, slip op. at 11-12, echoing the decision of
the judge, 30 FMSHRC at 1122-23, emphasize a balancing of the interests of the miner and the
operator, which is best accomplished by limiting temporary reinstatement to the period of the
Secretary's investigation ifthe investigation does not result in a finding of discrimination.
fu view of these different and contrary interpretations of the statute's text, its structure, its

legislative history, and its purpose, all set forth as having a "plain meaning" and all containing at
least some plausibility, I have to conclude that in terms of the Chevron I analysis, the statute is
: ambiguous. . ·. /
. : ... "
.... . . .
;• c\: ;, •'
I also note that former Commission Procedural Rule 45(g), 29 C.F.R. § 2700.45(g)
(1999), permitted the dissolution of a temporary reinstatement order upon the Secretary's
decision not to proceed on the complaint. The Commission has described this as "a 'gap filling'
provision designed to deal with a situation not addressed by the statute - the status of a
temporary reinstatement order following a determination by the Secretary that there has been no
violation of section 105(c)." Sec '.Y ofLabor on behalf ofBernardyn v. Reading Anthracite Co.,
·. 21FMSHRC947, 949-50 (Sept 1999) (emphasis,added): I fail to see how the statutory
·· ; ' langua:ge can be considered plain when we have · aeknowledged that it pertained to a situati~n.
· that Congress did not address.
·· ·
Since the relevant statutory language is ambiguous, it is necessary under Chevron II to
determine whether the Secretary's interpretation is reasonable and should be accorded deference.
As demonstrated by the analysis of Chairman Jordan, I find that the Secretary's interpretation that a temporary reinstatement order must remain in effect until there is a final Commission order
on the miner's underlying discrimination complaint (whether it is litigated by the Secretary
pursuant to section 105(c)(2) or by the miner under section 105(c)(3))- is reasonable, and
therefore it is entitled to deference. See Secy ofLabor v. Excel Mining, LLC, 334 F.3d 1, 6
(D.C. Cir. 2003).
My other colleagues claim that deference to the Secretary's policy position is not
appropriate in this case. They base this assertion on their view that the Secretary is not "charged
with administering" section 105(c) after she makes a determination of no discrimination. Slip
op. at 13. According to them, once the Secretary has made such a determination, "there is no
basis for her interest in continuing temporary reinstatement." Id. at 14. This is due to the
"presumption of discrimination that underlies temporary reinstatement [that] cannot exist in a
section 105(c)(3) proceeding." Id. This position misapprehends the role of temporary
reinstatement under the Mine Act, and the Secretary's interest in implementing it.
Commissioners Duffy and Young state that Chevron deference is owed to an agency
interpretation "when the statutory provision being interpreted is one the agency is charged with
31FMSHRC1002

administering," slip op. at 13 (citing Energy West, 40 F.3d at 460) (emphasis added), which in
tum cited to Chevron, 467 U.S. at 844. However, both the D.c: Circuit inEnergy West and the
Supreme Court in Chevron, did not parse an agency's statutory authority provision by provision
when articulating the general principles underlying the deference doctrine, but instead spoke of
"an agency's interpretation of the statute it is charged with administering," Energy West, 40 F.3d
at 460 (emphasis added), and "an agency's construction of the statute which it administers," and
the weight to be accorded to "an executive department's construction of a statutory scheme,
Chevron, 467 U.S. 842,.844 (emphases added).
Moreover, my colleagues' are incorrect in stating that temporary reinstatement is
predicated on a "presumption of discrimination." The statutory language does not, in any way,
describe a "'presumption of discrimination" as the basis for temporary reinstatement. Rather,·
temporary reinstatement is based on a finding by the Secretary that the discrimination claim was
not ":frivolously brought." The fact that the Secretary may later find that discrimination did not
occur does not alter or diminish her finding that the complaint was not "frivolously brought."
Since the Secretary was the entity who made the determination that the complaint was not
frivolously brought, which triggers temporary reinstatement in the first place, it makes no sense
to say that the Secretary is not "charged with administering" the temporary reinstatement
provision of the Act.
......
v~-;
Additkmally, my colleagues' basis for refusing to accord.deference to the Secretary is an
unnecessarily restrictive view of the Secretary's role under the Mine Act. The fact that the
Secretary has determined that a miner has not demonstrated discrimination in a particular case
does not change the Secretary's interest in ensuring that miners who file section 105(c)(3) actions
are entitled, as a class, to continued temporary reinstatement until a final order of the
Commission. Because "enforcement of the [Mine] Act is the sole responsibility of the
Secretary," Sec'y ofLabor v. Twentymile Coal Co., 456 F.3d 151, 161 (D.C. Cir. 2006), she has
an interest in ensuring that section 105(c) is interpreted in an expansive manner, as vigorous
protection for miners who make safety complaints (such as the complaint in this case, regarding
miners operating equipment while under the influence of alcohol, S. Br. at 3). As the Secretary
noted herein, "Congress . . . recognized the important role that individual miners play under the
Mine Act in ensuring a safe and healthy working environment." S. Br. at 21 (quoting S. Rep.
No. 95-181, at 35, Legis. Hist. at 623). The unfettered right of miners to complain about safety
issues without fear of economic penalty strengthens the Secretary's ability to effectively enforce
the Act.
The Secretary has recognized Congress' concern that "temporary reinstatement is an
essential protection for complaining miners who may not be in the financial position to suffer
even a short period of unemployment. .... " S. Br. at 22 (quoting S. Rep. No. 95-181, at 37,
Legis. Hist. at 625). Anything that could potentially diminish some miners' willingness to do

31FMSHRC1003

so -including the prospect of being fired in retaliation and not having the right to temporary
reinstatement- thwarts the Secretary's overarching mission to make our nation's mines safer. 3
Thus, the fact that the Secretary has determined that there has been no violation of section
105 (c)( 1) in a particular case does not decrease her interest in guaranteeing that miners may make
health or safety complaints free of economic coercion. Consequently, the Secretary has real
interest in ensuring that her view of the Mine Act's temporary reinstatement provision prevails.4

•·

Finally, by invoking the Secretary's "negative determination on the question at issue" to
deny her deference, my colleagues confuse the issue at hand. Although the Secretary indeed
declined to continue to represent Phillips in his discrimination claim, the "question at issue" here
is whether temporary reinstatement should be continued notwithstanding that determination - a
·questionto which the Seeretaryhas responded with-a resounding "yes."
... , .. ' ,
Accordingly, I would reverse the order of the judge.

. ~::
t~
.

. .

. .·~

.
.. .
. ·.

.

·.. '

Robert F. Cohen, Jr., Commissioner
; .
·, .i

3

As the Eleventh Circuit pointed out in Smith v. Bel/south Telecommunications, Inc.,
273 F.3d 1303 (11th Cir. 2001), a case involving the private right of action created for employees
under the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. ("FMLA"), "[i]f
former employees like Smith knew they would have no remedy if their former employers
retaliated against them for their past use ofFMLA leave, it would tend to chill employees'
willingness to exercise their protected leave rights and would work against the purpose of the
FMLA." 273 F.3d at 1313.
·

4

My colleagues also err in their assertion that Secretary should not be accorded
deference because she is not a party to the section 105(c)(3) case and has chosen to participate as
amicus. Slip op. at 13. See Community Bank ofArizona v. G. V.M Trust, 366 F.3d 982, 987 (9th
Cir. 2004) (recognizing that interpretations of the Office of the Comptroller of Currency
("OCC") of the National Bank Consolidation and Merger Act contained in amicus briefs were
entitled to "great weight" if those interpretations were reasonable); see also Bank ofAmerica v.
City & County of San Francisco, 309 F.3d 551, 563 (9th Cir. 2002) (stating that "that the OCC's
construction of the National Bank Act comes to us in the form of an amicus brief does not make
it 'unworthy of deference."' (citation omitted)).
31 FMSHRC 1004

Distribution:
Jason P. Kane,Esq.
Ranson & Kane, P.C.
34 Briargate Blvd., Suite 201
Colorado Springs, CO 80920
Peter J. Phillips
P.O. Box41
Florence, CO 81226
.;

John Paul Ary, Owner
A& S Construction Co.
P.O. Box 566
Canon City, CO 80212
Darrell Fisher, Superintendent
A & S Construction Co.
P.O. Box 566
Canon City, CO 80212
Robin Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2296
Administrative Law Judge David F. Barbour
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 1005

. '.

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

September 14, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 2009-376-M
A.C. No. 15-00049-164776

v.
HANSON AGGREGATES
MIDWEST, INCORPORATED

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On December 9, 2008, the Commission received from
Hanson Aggregates Midwest, fuc. ("Hanson") a letter seeking to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). fu evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F .R. § 2700. l (b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
31FMSHRC1006

The record -revealed that the operator misplaced the proposed penalty assessment and
promptly sought re-opening when it discovered the assessment. The Secretary states that she
does not oppose the reopening of the proposed penalty assessment.
Having reviewed Hanson's request and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC I 007

Distribution:
Todd Ernst, ESH Mngr.
Hanson Aggregates Midwest, Inc.
7000 Dry Fork Rd.
Cleves, OH 45902
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC1008

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

September 14, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. YORK2009-143
A.C. No. 18-00781-178016

v.
HERITAGE COAL & NATURAL
RESOURCES, LLC

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (''Mine Act"). On June 15, 2009, the Commission received a request to
reopen a penalty assessment issued to Heritage Coal & Natural Resources, LLC ("Heritage") that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
31FMSHRC1009

for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
On March 3, 2009, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Assessment No. 000178016 to Heritage, proposing penalties for two citations
and two orders MSHA had previously issued to the operator. Heritage, which neither paid nor
contested the penalties, states that it would like to reopen the assessment because it had requested
but never received a conference with MSHA on the citations and orders and the operator's
alleged negligence.
The Secretary opposes Heritage's request to reopen. She states that MSHA has no record
of a request for a conference by Heritage, and that in any event a request for a conference does
not toll the 30 days an operator has in which to contest proposed penalties.

31FMSHRC1010

Having reviewed Heritage's request and the Secretary's response, we conclude that
Heritage has failed to provide an adequate explanation for its failure to timely contest Proposed
Assessment No. 000178016. Accordingly, we deny without prejudice Heritage's request to
reopen. The words ''without prejudice" mean Heritage may submit another request to reopen so
that it can contest the citations, orders, and penalty assessments. 1

Robert F. Cohen, Jr., Commissioner

1

If Heritage submits another request to reopen, it must establish good cause for not
contesting the citations, orders, and proposed penalties within 30 days from the date it received
the proposed penalty assessments from MSHA. Under Rule 60(b) of the Federal Rules of Civil
Procedure, the existence of "good cause" may be shown by a number of different factors
including mistake, inadvertence, surprise, or excusable neglect on the part of the party seeking
relief Heritage sh9uld include a full description of the facts supporting its claim of "good
cause," including how the mistake or other problem involving a conference request prevented it
from responding within the time limits provided in the Mine Act, as part of its request to reopen
the case. In addition, Heritage should submit copies of supporting documents with its request to
reopen the case.

31FMSHRC1011

Distribution:
Melissa Whipkey, Office Mngr.
Heritage Coal & Natural Resources, LLC
208 West Mud Pike Rd.
Rockwood, PA 15557
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC1012

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

September 17, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2009-932-M
A.C. No. 26-02246-162985

v.
BARRICK GOLDSTRIK.E MINES, INC.

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.:
§ 801 et seq. (2006) ("Mine Act"). On May 28, 2009, the Commission received from Barrick
Goldstrike Mines, Inc. ("Barrick") 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).
However, we have held that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become fmal Commission orders lmder 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 fmal order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Se-rvs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

31FMSHRC1013

On September 17, 2008, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued Proposed Assessment No. 000162985 for nine citations issued
to Barrick in July 2008. In its motion, Barrick states that the nine citations arose from an
inspection that resulted in the issuance of 29 citations. The operator states that 20 of the 29
citations were assigned to a different case. Barrick explains that it faxed the forms for both
cases, along with the forms for seven other cases, to its counsel for the filing of contests. It
further states that, although it received notification that the facsimile transmissions had been
successful, the form for Proposed Assessment No. 000162985 had not been successfully
transmitted. The operator asserts that it did not learn of the error until it received a notice of
collection action from the Department of Treasury. The Secretary states that she does not oppose
·
the reopening of the proposed penalty assessment.
Having reviewed Barrick' s request and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

31FMSHRC1014

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

31FMSHRC1015

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

September 20, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. LAKE 2008-345-M
A.C. No. 47-02043-140232
Docket No. LAKE 2008-346-M
A.C. No. 47-02940-140235

v.
Docket No. LAKE 2008-347-M
A.C. No. 47-03245-140241
Docket No. LAKE 2008-348-M
A.C. No. 47-03367-140245

PITLICK & WICK, INC.

BEFORE: Jordan, Chairman; Duffy, Young, and Coheri, Commis$ioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On April 14, 2008, and November 21, 2008, the Commission
received from Pitlick & Wick, Inc. ("Pitlick") motions from counsel seeking to reopen four
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).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
31FMSHRC1016

by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
On November 7, 2008, the Commission denied without prejudice Pitlick's request on the
basis that the operator had failed to provide "a sufficiently detailed explanation for its failure to
timely contest the proposed penalty assessments." Pitlick & Wick, Inc., 30 FMSHRC 1006, 1008
(Nov. 2008). On November 21, Pitlick promptly filed a second motion to reopen the penalty
assessments with an affidavit that more fully explained the reason for its delay in contesting the
a~sessments. The Secretary has not opposed the requests to reopen.
Having reviewed Pitlick's request and the Secretary's response, in the interest of justice,
we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner·

31FMSHRC1017

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

31FMSHRC1018

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

September 22, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. SE 2009-171
A.C. No. 01-00851-161298 A

WAYNE RAY, employed by
OAK GROVE RESOURCES

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

§ 801 et seq. (2006) (''Mine Act"). On December 12, 2008, the Commission received from
Wayne Ray a motion by counsel in which Mr. Ray seeks to reopen a penalty assessment under
section llO(c) of the Mine Act, 30 U.S.C. § 820(c), that had allegedly become a final order of the
Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under the Commission's Procedural Rules, an individual charged under section 1 lO(c)
has 30 days following receipt of the proposed penalty assessment within which to notify the
Secretary of Labor that he or she wishes to contest the penalty. 29 C.F.R. § 2700.26. If the
individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order
of the Commission. 29 C.F.R. § 2700.27.
On August 27, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 00161298A. Mr. Ray states that he did not learn of
the proposed assessment until his counsel received a delinquency notice dated November 28,
2008, indicating that the assessment had become a final order of the Commission. The Secretary
confirms that the proposed assessment was never received by Mr. Ray and was returned to
MSHA because delivery was refused by the law firm representing him. The Secretary submits
that the assessment was addressed solely to Mr. Ray at the street address of the law firm and that
delivery was refused "because the address did not indicate that the assessment was meant to be
delivered to the law firm or to Mr. Ray's attorney."

31FMSHRC1019

Having reviewed Mr. Ray's request and the Secretary's response, we find the request to
reopen to be moot because Mr. Ray never properly received the assessment and the proposed
assessment has not become a final order of the Commission. 1 Since Mr. Ray is now aware of the
proposed penalty assessment, he has 30 days from the date of this order to either contest or pay
the proposed penalty. If the proposed penalty is timely contested by Mr. Ray, this case shall
proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

Robert F. Cohen, Jr., Commissioner

1

The Commission has previously stated that, in a section 110(c) proceeding, MSHA
should send the proposed assessment to the individual at his home address or "in care of' counsel
at counsel's address. E.g., Stech, employed by Eighty-Four Mining Co., 27 FMSHRC 891, 892,
n.1 (Dec. 2005).
31 FMSHRC 1020

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

31FMSHRC1021

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

September 23, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMIN1STRATION (MSHA)

v.

Docket No. CENT 2008-420-M

DARBY SANDERS, Formerly Employed by
NATURAL MATERIALS, LLC

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

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On November 4, 2008, Chief Administrative Law Judge
Robert J. Lesnick issued to Darby Sanders, formerly employed by Natural Materials, LLC
(''Natural Materials"), an Order to Show Cause for failure to answer the Secretary of Labor's
petition for assessment of civil penalty against him. The case was subsequently assigned to
Administrative Law Judge Gary Melick and, on February 6, 2009, Judge Melick entered an Order
of Default against
Mr. Sanders.
On May 14, 2009, the Commission received a motion from Mr. Sanders requesting that
the Commission reopen the penalty assessment proceeding and relieve him from the order of
default. Mr. Sanders states that he was employed by Natural Materials from May 2005 until
December 2007, when the company filed for bankruptcy, and that he remained in contact with
the company throughout the first half of 2008. Mr. Sanders submits that he told Natural
Materials that he had requested a hearing, and that the operator assured him that it would handle
everything including setting a hearing date. Mr. Sanders explains that he moved from the area
for work and had difficulty communicating with the operator because his letters were returned
and the operator's phones were disconnected. Mr. Sanders later contacted former Natural
Materials management officials and discovered that the operator was not, in fact, acting on his
behalf. The Secretary did not respond to the request to reopen.

31FMSHRC1022

The judge's jurisdiction in this matter terminated when his decision was issued on
February 6, 2009. 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); 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 March 18, 2009.
In evaluating requests to reopen final orders, the Commission has found guidance in Rule
60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled
to relief from a final order of the Commission on the basis of mistake, inadvertence, or excusable
neglect. See 29 C.F.R. § 2700.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,
786-89(May1993) ("JWR"). 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).

31 FMSHRC 1023

Upon review of the record, it appears that Mr. Sanders may not have received the show
cause order in a manner that permitted his timely response. Accordingly, in the interest of
justice, we hereby vacate the Order of Default and remand this matter to Administrative Law
Judge Gary Melick for further appropriate proceedings. See generally Oak Grove Res., LLC, 29
FMSHRC 766, 767 (Sept. 2007) (vacating default when show cause order provided inadequate
notice).

omnuss1oner

RoHert F. Cohen, Jr., CommissiM.er

31 FMSHRC 1024

Distribution:
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209~2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
· U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Darby J. Sanders
4 71 Pin Oak Drive
Ida Grove, Iowa 51445
Nick Kinser
1439 KAvenue
Red Oak, IA 51566
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Com.mission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 1025

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

September 23, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No CENT 2009-155
A.C. No. 41-03658-168100

LUMINANT MINING COMPANY, LLC

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On December 22, 2008, the Commission received from
Luminant Mining Company, LLC ("Luminant") a motion by counsel seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
31 FMSHRC 1026

Luminant's safety coordinator states that he discussed the proposed assessment with his
supervisor, the safety director, and that he believed the proposed assessment would be forwarded
to Luminant's counsel for filing a contest. However, it was apparently not forwarded to counsel.
Lumiriant states that, because of this "internal miscommunication," it failed to timely request a
hearing on the penalty.
The Secretary opposes reopening the proposed penalty assessment because, among other
things, she believes that Luminant' s excuse for failing to timely file a contest to the proposed
penalty is "conclusory."
Having reviewed Luminant's request and the Secretary's response, in the interests of
justice, we remand this matter to the Chief Administrative Law Judge for a determination of
whether good cause exists for Luminant' s failure to timely contest the penalty and whether relief
from the final order should be granted. If it is determined that relief from the final order is
appropriate, this case shall proceed pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R.§ 2700.

Robert F. Cohen, Jr., Commissioner

31FMSHRC1027

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

31 FMSHRC 1028

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

September 23, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2009-433
A.C. No. 41-04586-180077 Z8T

v.
BUCYRUS FIELD SERVICES, INC.

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On May 18, 2009, the Commission received from Bucyrus
Field Services, Inc. ("Bucyrus") a motion by counsel to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

31 FMSHRC 1029

The record indicates that the operator submitted its contest of the proposed penalty for
Citation No. 8455328 two days late due to confusion about the due date. 1 The Secretary states
that she does not oppose reopening the proposed penalty assessment.
Having reviewed Bucyrus' request and the Secretary's response, in the interests of justice,
we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty with respect to Citation No. 8455328 within 45 days of the date of this order. See 29
C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

1

The operator submits that its contest of the proposed penalty assessment was timely
because the time for response was extended by five days under Commission Procedural Rule
8(b). 29 C.F.R. § 2700.8(b) (providing in part that "[w]hen a party serves a pleading by a
method of delivery other than same-day service, the due date for party action in response is
extended 5 additional calendar days"). We reject the argument. Section 105(a) of the Mine Act
requires that an operator notify the Secretary of a penalty contest "within 30 days from the receipt
of the notification issued by the Secretary." 30 U.S.C. § 815(a). Similarly, the Secretary's
regulations, 30 C.F.R. § 100.7(c), and the Commission's regulations, 29 C.F.R. § 2700.27, both
plainly provide that to be timely, an operator's notice of contest must be submitted within 30
days of receipt of the proposed penalty assessment. The extension allowed under Rule 8(b)
applies to responsive pleadings and, as the Secretary asserts, a proposed penalty assessment is not
a pleading. Moreover, since the 30-day time period for responding to a proposed assessment
begins to run upon receipt by the operator, the method of service chosen by MSHA for delivering
the proposed assessment does not reduce the operator's 30-day period.
31 FMSHRC 1030

Distribution:
Christopher A. Brumley, Esq.
Flaherty, Sensabaugh & Bonasso, PLLC
200 Capitol Street
P.O. Box 3843
Charleston, WV 25338-:3843
M. Scott Meachum, Esq.
Flaherty, Sensabaugh & Bonasso, PLLC
200 Capitol Street
P.O. Box 3843
Charleston, WV 25338-3843
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC1031

:

.

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

September 24, 2009
SECRETARY _OF L~OR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 2009-447-M
A.C. No. 47-02918-175141Wl78

v.
AUGUST WINTER & SONS, INC.

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On May 1, 2009, the Commission received from
August Winter & Sons, fuc. ("Winter") a letter seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (".!WR"). fu evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); .!WR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
31 FMSHRC 1032

On January 21, 2009, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Penalty Assessment No. 000175141 to Winter, proposing a civil
penalty for one citation. The operator's safety director states that he was not notified of the
citation until April 24, 2009, "[d]ue to clerical issues" and, as a result of the delay, the operator
was unable to timely contest the citation and proposed penalty. The Secretary opposes the
request to reopen on the ground that the operator's statement that it failed to timely contest the
proposed assessment due to "clerical issues" does not demonstrate circumstances that warrant
reopenmg.

31 FMSHRC 1033

Having reviewed Winter's request to reopen and the Secretary's response, we agree with
the Secretary that Winter has failed to provide a sufficiently detailed explanation for its failure to
timely contest the proposed penalty assessment. Winter's conclusory statement that it failed to
timely contest because of clerical issues does not provide the Commission with an adequate basis
to reopen. Accordingly, we deny without prejudice Winter's request. See, e.g., BRS Inc., 30
FMSHRC 626, 628 (July 2008); Eastern Associated Coal, LLC, 30 FMSHRC 392, 394 (May
2008). The words "without prejudice" mean Winter may submit another request to reopen the
case SO that it can contest the citation and penalty assessment. 1

Robert F. Cohen, Jr., Commissioner

1

If Winter submits another request to reopen the case, it must establish good cause for
not contesting the citation and proposed assessment within 30 days from the date it received the
proposed penalty assessment from MSHA. Under Rule 60(b) of the Federal Rules of Civil
Procedure, the existence of "good cause" may be shown by a number of different factors
including mistake, inadvertence, surprise, or excusable neglect on the part of the party seeking
relief, or the discovery of new evidence, or fraud, misrepresentation, or other misconduct by the
adverse party. Winter should include a full description of the facts supporting its claim of"good
cause," including how the mistake or other problem prevented Winter from responding within
the time limits provided in the Mine Act, as part of its request to reopen the case. Winter should
submit copies of supporting .documents with its request to reopen the case.

31 FMSHRC 1034

Distribution:
Gary Winter, Safety Dir.
August Winter & Sons, Inc.
2323 Roemer Rd.
P.O. Box 1896
Appleton, WI 54911
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC1035

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

September 24, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. VA 2009-270
A.C. No. 44-07074-169050

OLD DOMINION ENERGY, INC.

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

§ 801 et seq. (2006) ("Mine Act"). On May 8, 2009, the Commission received from Old·
Dominion Energy, Inc. ("Old Dominion") a motion by counsel seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700. l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

31 FMSHRC 1036

On November 13, 2008, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued Proposed Assessment No. 000169050 to Old Dominion, which
proposed civil penalties for 24 citations. Old Dominion states that it intended to contest the
penalties for Citation Nos. 6641802, 6641805, 6641806, 6641807, 6641808, 6641816, 6641817,
and 6638021 and to pay the remaining penalties. 1 It further states that on November 25, 2008, it
submitted its contest of the eight penalties to MSHA's Civil Penalty Compliance Office, and on
December 10, 20_08, sent a check to MSHA for the remaining penalties. The operator submits
that it became aware that the penalties had not been contested when it received a notice of
delinquency from MSHA. It explains that funds from the payment it made were misapplied to
some of the citations which it intended to contest, and other penalties which it intended to pay are
shown as .delinquent.
The Secretary states that she does not oppose the reopening of the proposed penalty
assessment. She notes, however, that while the payment was received at MSHA's payment
processing center, there is no record that the penalty contest form was received by MSHA' s Civil
Penalty Compliance Office.

1

The operator's counsel has confirmed that the operator intended to contest the penalties
associated with these citations, as the citation numbers are listed in the proposed assessment
attached to Old Dominion's motion to reopen. Some of the citation numbers set forth in the
motion were transposed.
31FMSHRC1037

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

Robert F. Cohen, Jr., Commissioner

31FMSHRC1038

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

31FMSHRC1039

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

September 29, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2009-505-M
A.C. No. 08-01340-159339

v.
A MINING GROUP, LLC

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (''Mine Act"). On May 11, 2009, the Commission received from A Mining
Group, LLC ("AMG") a motion by counsel seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700. l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

31 FMSHRC 1040

In an affidavit, the operator states that on May 21, 2008, it received Citation No. 7751269
and that it timely contested the citation. In November 2008, it received a delinquency notice
from the Department of Labor's Mine Safety and Health Administration ("MSHA"). AMG
states that it attempted on numerous occasions to contact MSHA about the matter but was
unsuccessful. The operator's counsel investigated the matter and determined that the operator
had failed to contest Proposed Assessment No. 000159339, which proposed a civil penalty for
Citation No. 7751269. AMG contends that it has no record of having received the proposed
assessment. The Secretary does not oppose reopening the proposed assessment but notes that
FedEx records indicate that the proposed assessment was received on August 13, 2008.
Having reviewed AMG's request and the Secretary's response, in the interests of justice,
we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file .a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

31FMSHRC1041

Distribution:
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P .C.
4740 Corridor Place, Suite D
Beltsville, MD. 20705
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson.Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
C~ef Adminjstrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 1042

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

September 30, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. LAKE 2008-349-M
A.C. No. 47-03165-140238
Docket No. LAKE 2008-350-M
A.C. No. 47-03191-140239

v.
NORTHERN LAKES CONCRETE, INC.

Docket No. LAKE 2008-351-M
A.C. No. 47-03330-140242

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On April 14, 2008, and November 21, 2008, the Commission
received from Northern Lakes Concrete, Inc. ("Northern Lakes") motions by counsel seeking to
reopen three 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).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
31 FMSHRC 1043

On November 7, 2008, the Commission denied without prejudice Northern Lake's
request on the basis that the operator had failed to provide "a sufficiently detailed explanation for
its failure to timely contest the proposed penalty assessments." Northern Lakes Concrete, Inc.,
30 FMSHRC 1010, 1011(Nov.2008). On November 21, 2008, Northern Lakes promptly filed a
second motion to reopen the penalty assessments with an affidavit that more fully explained the
reason for its delay in contesting the assessments. The Secretary has not opposed the requests to
reopen.
Having reviewed Northern Lake's requests and the Secretary's response, in the interest of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 1044

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

31FMSHRC1045

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

September 30, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. VA 2009-90
A.C. No. 44-07181-159712

v.
THE BANNER COMPANY, LLC

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On December 5, 2008, the Commission received from The
Banner Company, LLC ("Banner") a motion by counsel to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

31 FMSHRC 1046

The record indicates that the operator submitted its contest to the proposed penalty
assessment one day late due to confusion about the due date. 1 The Secretary states that she does
not oppose reopening the proposed penalty assessment.

1

The operator submits that its contest of the proposed penalty assessment was timely
because the time for response was extended by five days under Commission Procedural Rule
8(b). 29 C.F.R. § 2700.S(b) (providing in part that "[w]hen a party serves a pleading by a
method of delivery other than same-day service, the due date for party action in response is
extended 5 additional calendar days"). We reject the argument. Section 105(a) of the Mine Act
requires that an operator notify the Secretary of a penalty contest "within 30 days from the receipt
of the notification issued by the Secretary." 30 U.S.C. § 815(a). Similarly, the Secretary's
regulations, 30 C.F.R. § 100.7(c), and the Commission's regulations, 29 C.F.R. § 2700.27, both
plainly provide that to be timely, an operator's notice of contest must be submitted within 30
days of receipt of the proposed penalty assessment. The extension allowed under Rule 8(b)
applies to responsive pleadings and, as the Secretary asserts, a proposed penalty assessment is not
a pleading. Moreover, since the 30-day time period for responding to a proposed assessment
begins to run upon receipt by the operator, the method of service chosen by MSHA for delivering
the proposed assessment does not reduce the operator's 30-day period.
31FMSHRC1047

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

Micha

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 1048

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

31 FMSHRC 1049

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

October 8, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of ROBERT GATLIN
Docket No. KENT 2009-1418-D

v.
KENAMERICAN RESOURCES, INC.

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
DECISION
BY THE COMMISSION:
This discrimination proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (2006) ("Mine Act"). On August 31, 2009, Administrative Law
Judge Margaret Miller issued an order temporarily reinstating Robert Gatlin to employment with
KenAmerican Resources, Inc. ("KeriAmerican") pursuant to section 105(c)(2) of the Mine Act,
30 U.S.C. § 815(c)(2). On September 18, 2009, the Judge issued an order clarifying and adding
to the temporary reinstatement order. KenAmerican filed a petition with the Commission
seeking review of the Judge's September 18 order. In the petition, KenAmerican also moves the
Commission to stay the effect of the September 18 order pending the Commission's review and
decision. For the reasons that follow, we grant the petition, deny the motion for stay, vacate the
September 18 order, and remand the matter to the Judge for further proceedings.

I.
Factual and Procedural Background
The facts of this case are set forth in detail in the Judge's August 31 order. Mr. Gatlin
was employed with KenAmerican from February 2009 until he was discharged on June 7, 2009.
Mr. Gatlin was discharged on June 7 after he refused to work in a section ofKenAmerican's
Paradise No. 9 Mine, which he believed to be unsafe. Mr. Gatlin filed a complaint with the
Department of Labor's Mine Safety and Health Administration ("MSHA") alleging that the
31 FMSHRC 1050

discharge amounted to discrimination in violation of section 105(c) of the Mine Act. The
Secretary filed an Application for Temporary Reinstatement on August 3~ 2009, and the Judge
held a hearing on the application on August 20, 2009.
The Judge concluded that the Secretary had made a sufficient showing of the elements of
a prima facie discrimination case and that she met her burden of establishing that Mr. Gatlin's
discrimination complaint had not been frivolously brought. 1 Aug. 31 Order at 8. More
specifically, the Judge determined that the Secretary had presented evidence that Mr. Gatlin
refused to work on June 7 because he had a good faith belief that the section he was assigned to
was unsafe, and that Mr. Gatlin had expressed his concern to KenAmerican management. Id. at
6. The Judge further found that there was sufficient evidence that KenAmerican did not address
Mr. Gailin's concerns and terminated Mr. Gatlin for his work refusal. Id. at 7-8. Accordingly,
the Judge ordered KenAmerican to temporarily reinstate Mr. Gatlin to his former po_sition
effective as of the date of the order, noting that the operator could economically reinstate Mr.
Gatlin if it chose to do so. Id. at 8.
On September 11, 2009, the Secretary filed a Motion to Enforce Order of Temporary
Reinstatement with the Judge. The Secretary stated in the motion that although KenAmerican
had been ordered on August 31, 2009 to temporarily reinstate Mr. Gatlin, the operator had failed
to do so, and was contending that Mr. Gatlin's position had been eliminated in a layoff. Mot. at.
1. The Secretary asserted that KenAmerican had an obligation to reinstate Mr. Gatlin regardless
of whether it was economically beneficial for it to do so. Id. at 2. The Secretary requested that:
the Judge immediately reinstate Mr. Gatlin to his former position pending the final hearing and
disposition of the case. Id.
On September 15, KenAmerican filed an opposition to the Secretary's motion with the
Judge. The operator asserted that it had not failed to reinstate Mr. Gatlin, and that it considers
Mr. Gatlin reinstated as of August 31. KA Resp. to Mot. to Enforce ("KA Resp.") at 1, 2. It
explained that, as it had indicated in a teleconference with the Judge and the Secretary on
September 3, KenAmerican intended to offer economic reinstatement to Mr. Gatlin. Id. at 1.
The operator stated that while it was in the process of finalizing a Joint Motion to Approve
Economic Reinstatement Agreement with the Secretary, an independent management decision
was made to idle KenAmerican operations with a massive workforce reduction, and that counsel
learned of the decision on September 10, 2009. Id. at 1-2. As of September 14, 2009, 290 of370
employees were laid off because the Paradise mine was idled due to adverse mining conditions.
Id. at 2. The operator states that Mr. Gatlin was among the employees subject to the layoff, and
that his selection was made solely on the basis of skill level, performance, and years of service as
related to operational needs. Id. KenAmerican contended that a bona fide economic
retrenchment bars reinstatement, and that the reinstatement order should not be enforced because

1

The scope of a hearing on an application for temporary reinstatement is limited to a
determination of whether the miner's complaint was frivolously brought. 29 C.F.R.
§ 2700.45(d).
31FMSHRC1051

·., ·· ..

there is no job to which Mr. Gatlin could be reinstated, and it would be inequitable for Mr. Gatlin
to be paid while other, more senior, miners are out of work. Id. at 3-4. KenAmerican states that
it made an offer to the Secretary to pay Mr. Gatlin from August 31 to September 18, the last pay
date for laid-off employees. 2 Id. at 2. KenAmerican attached to its opposition an affidavit
supporting its factual allegations.
On September 18, the Judge issued an order clarifying and adding to the August 31
temporary reinstatement order ("Sept. 18 Order"). 3 The Judge concluded that Mr. Gatlin must be
reinstated to his former position, at least temporarily, until the layoff can be reviewed with other
aspects of the case. Sept. 18 Order at 2. She explained that "A temporary reinstatement order,
such as the one issued here, requires the complaining miner to be re-employed, under any .
circumstance, including changing circumstances at the mine:" Id. ·The Judge reasoned that to ··
determine otherwise would be to undermine the purpose of the temporary reinstat~ment and to
grant the mine operator a defense that was not raised during the temporary reinstatement hearing.
Id. Accordingly, the Judge ordered that the operator begin the economic reinstatement of Mr.
Gatlin immediately without the need for further agreement or order. Id.

In its petition, KeJJAmerican states that the Judge's Sept. 18 Order is contrary to law and
is not supported by substantial evidence. Pet. at 3. KenAmerican maintains that the Secretary
;·.. has ndt disputed its submission.that due to economic reasons precipitated by adverse mining;,
conditions, the Paradise Mine was idled, which necessitated a massive workforce reduction,.·. .
including Mr. Gatlin, whose selection was based solely on skill level, performance and years, of· .
service as related to operational needs. Id. at 4. It submits, therefore, that the "undeniable facts
before the Judge are that [Mr.] Gatlin was laid off after his reinstatement as part of a massive
workforce reduction and would have been in the same situation had there never been a prior
termination or reinstatement." Id. at 5 (emphasis omitted). KenAmerican states that a change in
circumstances does, in fact, make a difference in terms of whether a reinstatement is enforceable.
Id. at 6. It explains that a miner cannot be reinstated to a position that no longer exists, and that
it could not have raised such a defense at the temporary reinstatement hearing because the

2

KenAmerican's counsel states that after learning of the layoff decision, he contacted
counsel for the Secretary to verbally relay information about the layoff and to inform the
Secretary that KenAmerican would pay Mr. Gatlin until the day of the workforce reduction.
Rather than determining unilaterally that the workforce reduction justified terminating Mr.
Gatlin's reinstatement, KenAmerican should have moved the Judge to modify the August 31
Order. See Consolidation Coal Co., 14 FMSHRC 956, 970 (June 1992) ("[N]o operator is free
to take the law into its own hands by deciding for itself what the law means and how it can best
be applied.").
3

The Judge stated that she lacks authority to enforce her own orders, and that if the
Secretary believes that the temporary reinstatement order is not being fully enforced, the
Secretary's remedy is to seek injunctive or other appropriate relief from a United States District
Court. Sept. 18 Order at 1. She interpreted the Secretary's motion to be one for clarification. Id.
31 FMSHRC 1052

circumstances surrounding the layoff occurred one month after the hearing. Id. Accordingly,
KenAmerican requests that the Judge's order be reversed and moves the Commission to stay the
effect of the order pending its review and decision. Id. at 1, 8.
The Secretary responds that KenAmerican has not established that changed circumstances
warrant relief from the Judge's temporary reinstatement order. S. Resp. at 9-11. First, she
argues that KenAmerican is estopped from arguing that changed circumstances warrant relief.
Id. at 11-12. The Secretary explains that parties may be estopped from taking inconsistent
positions in the same litigation. Id. at 11. She asserts that because KenAmerican chose to pay
Mr. Gatlin money without receiving job services from him, it cannot now take the inconsistent
position that it should be relieved from paying him because a layoff eliminated his job. Id. Ne:xt,
the Secretaryargues inthe alternative that ifKenAmerican·is not estopped, the Commission,: ··
should remand the case to the Judge in order to give KenAmerican an opportunity to prove that
changed circumstances warrant relief from the temporary reinstatement order. Id. at 12-16. The
Secretary acknowledges that under Commission precedent, an operator may be able to convince a
Judge that changed circumstances make compliance with a temporary reinstatement order
impossible. Id. at 12. She states that the affidavit submitted by the operator is inadequate but
that it should be provided an opportunity to make such a showing. Id. at 12-14. Finally, she
asserts that the Commission should deny KenAmerican' s motion to stay because the operator .
failed to adequately brief the issue and because it failed to establish the extraordinary
,, ... ·
circt.unstanceswarranting a stay. Id. at 16-19.
,,,
' '

II.
Disposition
Under section 105(c)(2) of the Mine Act, "if the Secretary finds that [a discrimination]
complaint was not frivolously brought, the Commission, on an expedited basis upon application
of the Secretary, shall order the immediate reinstatement of the miner pending final order on the
complaint." 30 U.S.C. § 815(c)(2). The Commission has repeatedly recognized that the "scope
of a temporary reinstatement hearing is narrow, being limited to a determination by the judge as
to whether a miner's discrimination complaint is :frivolously brought." See Sec'y ofLabor on
behalf ofPrice v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), ajf'd sub nom. Jim
Walter Res., Inc. v. FMSHRC, 920 F.2d 738 (11th Cir. 1990). It is "not the judge's duty, nor is it
the Commission's, to resolve the conflict in testimony at this preliminary stage of the
proceedings." Sec'y ofLabor on behalf ofAlbu v. Chicopee Coal Co., 21FMSHRC717, 719
(July 1999).
Here, KenAmerican has not challenged the Judge's determination that Mr. Gatlin's
discrimination complaint was not frivolously brought. Rather, KenAmerican challenges the
period of time for which it must economically reinstate Mr. Gatlin. fu such circumstances, the
Commission reviews a ''judge's remedial order for abuse of discretion and to ensure that it
effectuates the purposes of the Mine Act." Sec'y ofLabor on behalfofRieke v. Akzo Nobel Salt,

31FMSHRC1053

Inc., 19 FMSHRC 1254, 1258 (July 1997). Abuse of discretion may be found when "'there is no
evidence to support the decision or if the decision is based on an improper understanding of the
law.'" Id. at 1258 n.3 (citations omitted).
We conclude that the Judge's decision is based on an improper understanding of the law. 4
The Judge abused her discretion when she determined that a temporary reinstatement order
requires a miner to be employed under any circumstance, regardless of changes that occur at the
mine after issuance of the temporary reinstatement order. Sept. 18 Order at 2.
The Commission has recognized that the occurrence of certain events, such as a layoff for
economic reasons, may toll an operator's reinstatement obligation or the time for which an
·operator is required to pay back pay to a· discriminatee. 'See Simpson v. Kenta Energy, Inc., 11
FMSHRC 1638, 1639 (Sept. 1989) (holding that back pay is due to a discriminatee from the date
of the unlawful discharge until the time of reinstatement or "the occurrence of an event tolling
the reinstatement obligation"); Wiggins v. E. Assoc. Coal Corp., 7 FMSHRC 1766, 1772-73
(Nov. 1985) (concluding that back pay award ended upon date oflayoff). As a Commission
Judge reasoned, "if business conditions result in a reduction in the work force the right to back
pay is tolled because a discriminatee is entitled to back pay only for the period during which he
would have worked but for the unlawful discrimination." Casebolt v. Falcon Coal Co., Inc., 6
FMSHRC 485, 499 (Feb.1984) (ALJ) (citations omitted); see also NLRB v. Federal Bearings ;,
Co., .109 F.2d 945 (2d Cir. 1940) (concluding that an employer should not be held in contempt
for failing to reinstate a wrongfully discharged employee when depressed business conditions
required a reduction in force).
Thus, as noted by both parties (Pet. at 5; S. Resp. at 12), Commission precedent
recognizes that a change in circumstances may be relevant to tolling economic reinstatement in a
temporary reinstatement proceeding. See generally Sec '.Y ofLabor on behalf ofShepherd v.
Sovereign Mining Co., 15 FMSHRC 2450 (Dec. 1993) (remanding to Judge to determine effect
of operator's layoff on Judge's temporary reinstatement order). We therefore hold that the Judge
erred in concluding that a miner must remain temporarily reinstated notwithstanding changing
circumstances at the mine.
The Commission has also recognized in remedial contexts that an operator has the burden
of establishing '"facts which would negative the existence of [back pay] liability to a given
employee or which would mitigate that liability.'" See Simpson v. Kenta Energy, Inc., 11
FMSHRC 770, 779 (May 1989) (citations omitted). The Commission has stated that,
"[s]pecifically, the burden of showing that work was not available for a discriminatee, whether
through layoff, business contractions, or similar conditions, lies with the employer as an

4

We reject the Secretary's estoppel argument. We see no significant inconsistency
between KenAmerican's agreement to economically reinstate Mr. Gatlin and its position that the
operator's reinstatement obligation was subsequently tolled when Mr. Gatlin's job was
eliminated.
31 FMSHRC 1054

affirmative defense to reinstatement and backpay." Id. fu such circumstances, the operator must
make such a showing by a preponderance of the evidence. Id.
Given this precedent, we vacate the Judge's Sept. 18 Order and remand for further
proceedings. On remand, the Judge, upon request, shall expeditiously take further evidence and
provide an opportunity for discovery, if appropriate, to determine whether the duration of
temporary reinstatement set forth in the August 31 Order should be modified. More specifically,
the Judge should-determine whether KenAmerican has proven by a preponderance of the
evidence that the occurrence of the layoff is a legitimate reason for tolling Mr. Gatlin's economic
reinstatement. Factors to be considered by the Judge include whether the layoff was unrelated to
the August 31 Order and whether the layoff properly included Mr. Gatlin. 5 fu sum, in order to
justify termination of economic reinstatement, XenAmerican must prove by a preponderance of ,
the evidence that Mr. Gatlin's inclusion in the layoff was entirely unrelated to his protected
activities.
Furthermore, we denyKenAmerican's motion to stay the effect of the Sept. 18 Order.
The motion is moot given our vacating of that order. Because the terms of the August 31 Order
remain in effect until such time, if any, that the period of reinstatement is modified by the Judge,
Mr. Gatlin shall continue to receive economic reinstatement until such modification, if any.
Thus, KenAmerican must continue to comply with the terms of the August 31 Order and pay Mr.
Gatlin until the matter is resolved by the Judge,. ; ·

5

We note that although KenAmerican stated that it considered four factors (mining
experience, skill level, performance, and years of service) in making the workforce reductions, it
only asserted that three of these factors (excluding mining experience) were relevant to Mr.
Gatlin's inclusion in the layoff. Pet. at 4; KA Resp. at 2. Moreover, in its submissions to the
Judge and in the Petition to the Commission, KenAmerican has described only the fact that Mr.
Gatlin had been its employee "shortly over six months." Pet. at 4; KA Resp. at 2. On remand,
KenAmerican should explain how all of the factors it considered were applied to Mr. Gatlin or
why any factor not applied was deemed irrelevant.
31 FMSHRC 1055

ID.

Conclusion
For these reasons, we grant KenAmerican's petition, vacate the Judge's September 18
order, deny the motion for stay, and remand for further proceedings consistent with this decision.

Robert F. Cohen, Jr., Conlliussioner

31 FMSHRC 1056

Distribution
Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2247
Marco M. Rajkovich, Esq.
Rajkovich, Williams, Kilpatrick & True, PLLC
2333 Alumni Park Plaza, Suite 310
Lexington, KY 40517
Administrative Law Judge Margaret A. Miller
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1244 Speer Blvd., Suite 280
Denver, CO 80204

31 FMSHRC 1057

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

October 8, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 2009-925
A.C. No. 15-10753-170921

v.
CLEAN ENERGY MINING COMPANY

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On April 16, 2009, the Commission received from Clean
Energy Mining Company ("Clean Energy'') a motion by counsel seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has fmmd guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

31 FMSHRC 1058

On Deceniber 10, 2008, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued Proposed Assessment No. 000170921. However, both the
operator and the Secretary now agree that the proposed assessment was not received by Clean
Energy and was returned to MSHA undelivered. The Secretary states that she "will mail the
proposed assessment to ... the operator" again and that "Clean Energy will then have 30 days
after receipt of the proposed assessment to either pay or contest the penalty."
Having reviewed Clean Energy's request and the Secretary's response, we find the
request to reopen to be moot because Clean Energy never properly received the proposed
assessment and therefore it did not become a final order of the Commission. As stated above,
once the Secretary mails the proposed assessment, Clean Energy will have 30 days from the date
ofits receipt to either contest or pay the proposed penalty. If the proposed penalty is timely
contested by Clean Energy, this case shall proceed pursuant to the Mine Act and the
Commission's Procedural Rules, 29 C.F.R. Part 2700.
-

·ssioner

Robert F. Cohen, Jr., Commissioner

31FMSHRC1059

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

31 FMSHRC I 060

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

October 8, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMJNISTRATION (MSHA)
Docket No. WEST 2009-567-M
A.C. No. 04-02964-161991

v.
TAFT PRODUCTION COMPANY

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On February 27, 2009, the Commission received from Taft
Production Company ("Taft") a request to reopen a penalty assessment that had become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) (".!WR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
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).

31FMSHRC1061

Proposed Assessment No. 000161991 was issued by MSHA on September 9, 2008. Taft
asserts that it has no record of having receiving the proposed assessment, and paid the proposed
penalties in error when it received a notice of "outstanding balance" on another proposed
assessment after Assessment No. 000161991 had become a final order.
The Secretary states that she does not oppose the reopening of the proposed penalty
assessment. However, she produced a FedEx Tracking Report indicating that the penalty
assessment was received by the operator on September 15, 2008, and signed for by S. Brandon.
Having reviewed Taft's request and the Secretary's response, in the interests of justice,
we remand this matter to the Chief Administrative Law Judge for a determination of whether
gciod cause exists for Taft's failure to timely contest the penalties arid whether relief from the
final order should be granted. The Chief Administrative Law Judge should determine whether
the operator actually received the proposed assessment on September 15, 2008 and, if so,
whether the operator's failure to contest the assessment resulted from mistake, inadvertence, or
excusable neglect.
If it is determined that relief from the final order is appropriate, this case shall proceed
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 1062

Distribution:
Larry R. Evans
Corporate Safety Mngr.
Taft Production Co.
P.O. Box 380
Georgia Hwy., 3 North .
Ochlocknee, GA 31773
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 1063

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

October 8, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. WEST 2009-1083-M
A.C. No. 35-03321-181085

KNIFE RIVER

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

§ 801 et seq. (2006) ("Mine Act"). On July 7, 2009, the Commission received from Knife River
a motion by counsel seeking to reopen a penalty assessment that had become a final order of the
Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105 (a) of the Mine Act, an operator who wishes to contest a proposed ·
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

31 FMSHRC 1064

Knife River states that it misunderstood the instructions on the assessment form and
mailed the contest of the proposed penalties to the Commission~ rather than to the Department of
Labor's Mine Safety and Health Administration ("MSHA"). Knife River further states that it
was unaware of its error until it received a delinquency notice from MSHA and then immediately
called MSHA and learned that it had sent the contest to the wrong address.
The Secretary does not oppose Knife River's motion to reopen.
Having reviewed Knife River's request and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700 .. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 1065

Distribution:
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
47 40 Corridor Place, Suite D
Beltsville, MD _ 20705
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 1066

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

October 13, 2009
SECRETARY OF LABOR,
MlNE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. WEVA2008-1449-M
A.C. No. 46-00007-122557

RIVERTON INVESTMENT CORP.

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

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On July 9, 2008, the Commission received from Riverton
Investment Corp. ("Riverton") 1 a motion by counsel seeking to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
On September 8, 2009, the Commission received a letter from counsel for the Secretary
stating that Riverton had paid the penalty assessment at issue in full and requesting that
Riverton' s pending request to- reopen the assessment be denied as moot.

1

Riverton is identified on the legal identity report as the name of the operator of Essroc
Cement, the mine involved with this proceeding.
31FMSHRC1067

Having reviewed Riverton's request and the Secretary's responses, we hereby deny
Riverton's request to reopen as moot.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 1068

Distribution:
R. Brian Hendrix, Esq.
Patton Boggs, LLP
2550 M Street NW
Washington, DC 2003 7
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 1069

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

October 8, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. WEVA 2009-1669
A.C. No. 46-09136-184534

BIG RIVER MINING, LLC

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

§ 801 et seq. (2006) ("Mine Act"). On July 6, 2009, the Commission received from Big River
Mining, LLC ("Big River") a motion by counsel seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Se-rvs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

31FMSHRC1070

Big River states that, when it received the proposed penalty assessment, its safety
director, who is responsible for reviewing proposed penalties, was absent from the office for
training and personal reasons. Big River further states that, after the safety director returned to
the office, for some unknown reason, he never received the proposed penalty assessment. Big
River states that the safety director learned of the penalties only when he received another
assessment and saw the penalties listed.
The Secretary opposes reopening the proposed penalty assessment. The Secretary argues
that Big River has made no showing of exceptional circumstances warranting reopening and that
an operator's inadequate or umeliable internal processing procedures should not constitute an
adequate justification. The Secretary also notes that Big River failed to timely contest
assessments in two other dockets in which it sought to reopen final orders because proposed
assessments were not in its files.

31FMSHRC1071

Having reviewed Big River's request and the SecretaI)'' s response, in the interests of
justice, we remand this matter to the Chief Administrative Law Judge for a determination of
whether good cause exists for Big River's failure to timely contest the penalty and whether relief
from the final order should be granted. 1 If it is determined that relief from the final order is
appropriate, this case shall proceed pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R.§ 2700.

Robert F. Cohen, Jr., Commissioner

1

Oh remand, the judge should consider whether Big River has met the standard for relief
in light of its prior failures to adequately track assessments after delivery to its office and
warnings from the Secretary that she would oppose future motions to reopen ifBig River did not
establish adequate procedures to ensure that assessments were timely contested.
31 FMSHRC 1072

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

31 FMSHRC 1073

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

October 13, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 2009-1060
A.C. No. 15-17741-170925

v.
KENAMERICAN RESOURCES, INC.

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On May 15, 2009, the Commission received from
KenAmerican Resources, Inc. ("KenAmerican") a motion by counsel to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
However, 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 mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

31FMSHRC1074

KenAmerican states that, according to information obtained from the Civil Penalty
Compliance Office of the Department of Labor's Mine Safety and Health Administration
("MSHA"), Proposed Assessment No. 0001790925 was delivered to KenAmerican on
December 18, 2008. The operator states that the employee who apparently received the delivery
never forwarded the proposed assessment to any of her supervisors and then resigned on
February 26, 2009. A mine foreman (and former Manager of Health and Safety) for
KenAmerican explains in an affidavit that he became aware of the proposed assessment only
after he received a delinquency notice from MSHA on March 12, 2009, and investigated the
matter.
The Secretary opposes KenAmerican's request to reopen. She asserts that the operator
has made no showing of the exceptional circumstances that warrant reopening but rather an
instance of inadequate or unreliable internal distribution procedures, and that the op~rator has
failed to identify facts that, if proven on reopening, would establish a meritorious defense.

31FMSHRC1075

Having reviewed KenAmerican' s request and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. This appears to be an isolated instance of an inadvertent error involving an employee
who is no longer employed by KenAmerican rather than an indication of inadequate or unreliable
internal distribution procedures. Upon discovering the delinquency, KenAmerican investigated
the matter, filed its request to reopen within a reasonable time, and provided the Commission
with a sufficiently detailed explanation for its failure to timely contest the proposed assessment
which was supported by reliable documentation. Accordingly, consistent with Rule 28, the
Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R. § 2700.28.·

Robert F. Cohen, Jr., Commissioner

31FMSHRC1076

Distribution:
Noelle Holladay True, Esq.
Rajkovich, Williams, Kilpatrick & True, PLLC
2333 Alumni Park Plaza, Suite 310
Lexington, KY 40517
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra Jam es, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 1077

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

October 13, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. VA 2009-354
A.C. No. 44-06804-179669

KNOX CREEK COAL CORPORATION

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On July 6, 2009, the Commission received from Knox Creek
Coal Corporation ("Knox Creek") a request to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

31 FMSHRC 1078

Knox Creek states that it returned the assessment form to MSHA with the citations that it
desired to contest noted on the form. Shortly after Knox Creek received a delinquency letter
from MSHA, it submitted its request to reopen to the Commission.
The Secretary does not oppose reopening the proposed penalty assessment but states that
there is no record of the penalty contest form having been received by MSHA's Civil Penalty
Compliance Office. The Secretary acknowledges receiving payment in this penalty assessment
in an amount which, when subtracted from the total proposed assessment, leaves a balance which
is the amount of money that Knox Creek claims to have contested.
Having reviewed·Knox Creek's request and the Secretary's response, in the interests of
·justice, we remand this matter to the Chief Administrative Law Judge for a determillation of
whether good cause exists for Knox Creek's failure to timely contest the penalty and whether
relief from the final order should be granted. If it is determined that relief from the final order is
appropriate, this case shall proceed pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. § 2700.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 1079

Distribution:
Sue Mullins, HR Manager
Knox Creek Coal Corp.
P.O. Box 519
Raven, VA 2463 9
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
11 oo· Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lespick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 1080

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

October 13, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEVA 2009-1348
A.C. No. 46-05978-176931
Docket No. WEVA 2009-1349
A.C. No. 46-05978-177402
Docket No. WEVA 2009-1350
A.C. No. 46-05978-171680
Docket No. WEVA 2009-1351
A.C. No. 46-05978-168598

v.

Docket No. WEVA 2009-1352
A.C. No. 46-05978-165760

JACOB MINING COMPANY, LLC

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (2006) ("Mine Act"). On May 1, 2009, the Commission received from Jacob Mining
Company, LLC ("Jacob") a letter seeking 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). 1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers WEVA 2009-1348, WEVA 2009-1349, WEVA 2009-1350, WEVA
2009-1351, and WEVA 2009-1352, all captioned Jacob Mining Company, LLC, and involving
the same procedural issues. 29 C.F.R. § 2700.12. Although Jacob also sought reopening of
Assessment No. 000182191, the Secretary indicated in her response that she will treat that
proposed assessment as being timely contested and proceed accordingly.
31FMSHRC1081

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). 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 mistake, inadvertence, or excusable neglect. See
29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by
the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that
· default is a harsh remedy and that, if the defaulting party can make a showing of good cause for a
failure to timely respond, the case may be reopened and appropriate proceedings on_ the merits
permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
The operator asserts that it failed to contest the proposed assessments in a timely manner
because it "was unaware that [it] could contest the fine amounts." It also states that it is unable to
pay the proposed penalties· and requests reopening so that the penalty amounts may be lowered.
Ip response, the Secretary states. that the operator has failed to .make a showing of
exceptional circumstances that warrant reopening. She asserts that Jacob has been in business
since 2005, and that the proposed assessment forms set forth the procedure for contesting
proposed penalties. The Secretary contends that, in any event, ignorance of the rules and law and
inability to pay a penalty are not grounds for reopening a proposed penalty that has become final.
She also notes that, if the operator wishes to set up a payment plan, it should contact MSHA' s
Civil Penalty Compliance Office.

31 FMSHRC 1082

Having reviewed Jacob's request to reopen and the Secretary's response, we conclude that
Jacob has not provided a sufficiently detailed explanation for its failure to timely contest the
proposed penalty assessments. Jacob's conclusory statement that it was ''unaware that [it] could
contest the fine amounts" (even though the assessment forms set forth contest procedures) does
not provide the Commission with an adequate basis to reopen. In addition, Jacob's statement that
it is unable to pay the full penalty amounts does not address the question of why it failed to timely
contest the propos_ed assessments. Accordingly, we hereby deny the request for relief without
prejudice. See FKZ Coal Inc., 29 FMSHRC 177, 178 (Apr. 2007). The words "without
prejudice" mean that Jacob may submit another request to reopen Assessment Nos. 000176931,
000174402, 000171680, 000168598, and 000165760 so that it can contest the proposed penalties. 2

Robert F. Cohen, Jr., Commissioner

2

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

31 FMSHRC 1083

Distribution:
Jeff Wolford
Jacob Mining Co., LLC
P.O. Box 54
Naugatuck, WV-25685
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Ffoor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 1084

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

October 22, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMJNISTRATION (MSHA),
on behalf of LIGE WILLIAMSON
Docket No. KENT 2009-1428-D
v.
CAM MINING, LLC

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
DECISION
BY THE COMMISSION:
This temporary reinstatement proceeding arises under the Federal Mine Safety .and Health
Act of 1977, 30 U.S.C. § 801 et seq. (2006) ("Mine Act"). On September 30, 2009,
Administrative Law Judge Jerold Feldman issued a decision denying temporary reinstatement to
Lige Williamson with CAM Mining, LLC ("CAM Mining") pursuant to section 105(c)(2) of the
Mine Act, 30 U.S.C. § 815(c)(2). 31 FMSHRC _,slip op. at 9, 10, No. KENT 2009-1428-D
(Sept. 30, 2009) ("Slip op."). On October 7, 2009, the Secretary of Labor filed a petition with the
Commission seeking review of the judge's decision. CAM Mining filed a response to the
Secretary's petition on October 15, 2009. For the reasons that follow, we grant the petition,
reverse the judge's decision, and order the immediate reinstatement of Lige Williamson effective
as of September 30, 2009.

I.
Factual and Procedural Background
The facts of this case are set forth in detail in the judge's September 30 decision and the
parties' pleadings. A summary of the most significant facts follows. Lige Williamson was
employed at CAM Mining's Mine #28 from August 2007 until the day of his termination on May
15, 2009. Slip op. at 2; Tr. 25. Williamson worked as a "floater" or utility man, performing
tasks related to ventilation, until he was transferred to operate a shuttle car on or about April 27,
31 FMSHRC 1085

2009. Slip op. at 2, 3; Tr. 25, 39. Williamson began working on the 001 Section around the
middle of April 2009 under the supervision of McArthur Swiney, section foreman. Slip op. at 3.
The 001 Section was a "walking supersection," which meant that two continuous miners ran
alternatively among the different entries on the face with a single split of air. Slip op. at 3; Tr.
26-27. Previously, Williamson worked on the 002 Section, a "supersection," which had two
continuous miners operating simultaneously with double splits of air. Slip op. at 3; Tr. 26.
On or about April 20 or 21, Williamson noticed that both left-side and right-side shuttle
cars were returning from the face with loads of coal at the same time. Slip op. at 3. He believed
that both continuous miners were cutting coal at the same time, which was not permissible with
the section's current ventilation. Id. He spoke with Swiney about the simultaneous operation of
the miners, but Swiney did not respond. Id. Swiney later denied that Williamson made this
complaint. Id. at 4. After this incident, Williamson alleges that Swiney began "do_gging" him
and assigning him more onerous tasks. Id. at 3-4. Williamson, who has a history of heart
trouble, testified that he began suffering chest pain that he attributed to the stress caused by
Swiney's "dogging." Id. at 3. Williamson also testified that he visited a doctor for his chest pain
on April 23 and was off work until he returned on April 27, as per his doctor's instructions. Id.
When Williamson returned to work, he was transferred to operate the right-side shuttle car. Id.
Williamson claims that Swiney began calling him "asshole" and gave him job assignments that
were different from, and more difficult than, the assignments given to other shuttle car operators.
Id. at 3-4; Tr. 39-40, 63-64, 67, 158, 160. Swiney testified that he never called Williamson
"asshole" and denied dogging Williamson. Slip op. at 4.
On May 5, 2009, MSHA issued Citation No. 8227386 to CAM Mining for a violation of
section 75.370(a)(l), 30 C.F.R. § 75.3701(a)(l), which requires a mine operator to follow an
approved ventilation plan. Id. The citation was issued because the 001 Section was operating on
a single, rather than two distinct splits of air, as provided in the existing approved ventilation
plan. Id. The citation was terminated on May 7, 2009, after CAM Mining submitted an updated
ventilation plan conforming with its single split of air operation. Id.
On May 13, 2009, Williamson was driving his shuttle car around a corner when he struck
a dip in the floor and skidded across the intersection, hitting and cutting the water line and
pinching the continuous miner power cable. Id. Williamson said that as he was attempting to
reposition the shuttle car, Swiney approached him and began chastising him. Id. at 4-5.
Williamson testified that Swiney had his finger in his face, swearing and calling me a
"[g]oddamn dumbass." Id. at 5. Williamson rose from his seat in the shuttle car, approached
Swiney, and began swearing and yelling at him. Id. Swiney claimed that Williamson pushed
him against the rib. Id. Williamson denied touching Swiney. Id. Swiney called Danny Conn,
mine foreman, to "come get" Williamson. Id.; Tr. 279. Swiney drove Williamson on the
mantrip to the end of the track and waited for Conn. Slip op. at 5; Tr. 97-99, 102. When Conn
arrived, Swiney told him he wanted Williamson off his section, that he didn't care what Conn did
with him, and that Williamson had pushed him against the rib. Tr. 103, 279-80; CM Ex. 1.

31FMSHRC1086

Conn drove Williamson outside and told him to come back to the mine the next day to speak
with Frank Smith, mine superintendent. Slip op. at 5.
On May 14, Williamson met with Smith, who told him that he was being suspended for
three days "with intent." Id. at 6. Williamson next heard from the company in the form of a
termination letter dated May 15, 2009, and delivered to his home via certified mail on May 16.
Id. The letter stajed that Williamson was discharged for insubordination. Id.
Williamson filed a section 105(c) complaint with MSHA on May 29, 2009. The
Secretary filed an application for temporary reinstatement on August 12, 2009. A hearing was
held on September 2, 2009.
In his decision, the judge found that Williamson's complaint was frivolously_ brought. Id.
at 2, 9. The judge assumed that Williamson engaged in protected activity when he complained to
Swiney about the improper simultaneous operation of the continuous miners, and that
Williamson was the subject of adverse action when he was discharged on May 15. Id. at 2, 7.
However, the judge determined that there was "no reasonable cause to believe there is a nexus"
between the two events. Id: at 2. The judge based his determination on his finding that the
Secretary failed to present any evidence that the operator was discriminatorily motivated when it
terminated Williamson. Id. at 7. The judge relied on Williamson's admissions that he "cussed"
Swiney on May 13 and believed that he would lose his job for doing so, to support the co11.clusion
that there was no nexus between the protected activity and the adverse action. Id. at 8.
Accordingly, the judge denied the Secretary's application for temporary reinstatement. Id. at 2,
9.
In her petition, the Secretary argues that the judge committed a series of legal errors that
misconstrue the nature of temporary reinstatement proceedings. Pet. at 1. The Secretary asserts
that the judge erred in finding that there was no evidence of retaliatory action by CAM Mining in
response to Williamson's protected activity. Id. at 17-18. The Secretary explains that the judge's
analysis is erroneous for several reasons: (1) the judge ignored his own factual findings
pertaining to the operator's hostility or animus toward the protected activity; (2) the judge failed
to find close proximity in time between the protected activity and the adverse action; (3) the
judge placed improper weight on his finding that upper management had no knowledge of
Williamson's safety complaint; and (4) the judge improperly analyzed the May 13 incident as
part of the Secretary's prima facie case. Id. at 18, 20-29. The Secretary states that, under a
correct application of the legal standard for temporary reinstatement, the record compels the
conclusion that the miner's complaint was not frivolous, and she requests that the Commission
vacate the judge's denial of temporary reinstatement and grant her application. Id. at 29-30.
CAM Mining responds that the judge correctly determined that the Secretary's case was
frivolously brought and that substantial evidence in the record supports the judge's decision.
Resp. at 1. CAM Mining agrees with the judge that Williamson's complaint was too remote in
time from his discharge. Id. at 26-29. CAM Mining asserts that the evidence supports the

31 FMSHRC 1087

judge's finding that Williamson's discharge was a justified business decision. Id. at 29. CAM
Mining argues that the final decision makers had no knowledge of Williamson's alleged
protected activity. Id. at 29-30. CAM Mining rejects the Secretary's reliance on circumstantial
evidence to establish an unlawful motive in the face of direct substantial evidence establishing
that Williamson was discharged for non-discriminatory reasons. Id. at 30-32. In sum, CAM
Mining states that the judge correctly denied the Secretary's application for temporary
reinstatement and asserts that the Commission should deny the Secretary's petition. Id. at 35.

II.
Disposition
Under section 105(c)(2) of the Mine Act, "ifthe Secretary finds that [a disc]im.ination]
complaint was not frivolously brought, the Commission, on an expedited basis upon application
of the Secretary, shall order the reinstatement of the miner pending final order on the complaint."
30 U.S.C. § 815(c)(2). The Commission has repeatedly recognized that the "scope of a
temporary reinstatement hearing is narrow, being limited to a determination by the judge as to
whether a miner's discri:rriination complaint is frivolously brought." See Secy ofLabor on
behalf ofPrice v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff'd, 920 F.2d 738
(1 Ith Cir. 1990). It is "not the judge's duty, nor is. itthe Comniission's, to resolve the confli~t in·
testimony at this preliminary stage of the proceedings." Sec '.Y ofLabor on behalf ofAlbu v.
Chicopee Coal Co., 21FMSHRC717, 719(July1999). In reviewing ajudge's temporary
reinstatement order, the Commission has applied the substantial evidence standard. 1 See id. at
719; Secy ofLabor on behalf ofPeters v. Thunder Basin Coal Co., 15 FMSHRC 2425, 2426
(Dec. 1993).
While an applicant for temporary reinstatement need not prove a prima facie case of
discrimination, it is useful to review the elements of a discrimination claim in order to assess
whether the evidence at this stage of the proceedings meets the non-frivolous test. In order to
establish a prima facie case of discrimination under section 105(c) of the Act, a complaining
miner bears the burden of establishing (1) that he engaged in protected activity and (2) that the
adverse action complained of was motivated in any part by that activity. Secy ofLabor on
behalf ofPasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev'd on other
grounds, 663 F.2d 1211 (3rd Cir. 1981); Secy ofLabor on behalf ofRobinette v. United Castle
Coal Co., 3 FMSHRC 803 (April 1981).

1

When reviewing an administrative law judge's factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means "'such relevant evidence as a reasonable
mind might accept as adequate to support [the judge's] conclusion."' Rochester & Pittsburgh
Coal Co., 11FMSHRC2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)).
31 FMSHRC 1088

We conclude that the judge made a number of errors in determining that Williamson's
complaint was frivolously brought. Although the judge correctiy stated the legal standard to be
applied in a temporary reinstatement proceeding, he applied an unduly restrictive standard in
reviewing evidence pertaining to the Secretary's application. fustead oflimiting the scope of the
proceeding to a determination of whether the miner's complaint was frivolously brought, the
judge ignored relevant evidence, resolved conflicts in the testimony, and made credibility
determinations in evaluating the Secretary's prima facie case, which he clearly should not have
done at this stage in the proceeding. Chicopee Coal Co., 21 FMSHRC at 719. Rather, the judge
should have evaluated the evidence of the Secretary's prima facie case and determined whether
the miner's complaint of discrimination "appear[ed] to have merit." Jim Walter Res., 920 F.2d at
747.
We first address the issues of Williamson's alleged protected activity and adverse action.
We conclude that substantial evidence supports the judge's findings that Williamson engaged in
protected activity and suffered adverse action. Slip op. at 3, 6-7. As to protected activity,
Williamson testified that he informed his supervisor, Swiney, of his concern about the
simultaneous operation of the two continuous miners on the section. Tr. 35-36, 153. Swiney
testified that Williamson never made a safety complaint to him. Tr. 285. Although there is a
conflict in the testimony, it need not be resolved at this stage of the proceedings. Chicopee Coal
Co., 21 FMSHRC at 719. Rather, Williamson's 'testimony is.sufficient evidence to support the
·judge's firiding.2 Substantial evidence also supports the finding that Williamson suffered adverse
action when he was discharged on May 15, 2009.
The heart of the issue is the judge's finding that the Secretary failed to carry her burden in
demonstrating a nexus between the protected activity and the adverse action. In so concluding,
the judge erred.
The Commission has recognized that direct evidence of motivation is rarely encountered;
more often, the only available evidence is indirect. Sec '.Y ofLabor on behalfof Chacon v. Phelps
Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev'd on other grounds, 709 F.2d 86 (D.C.
Cir. 1983). The Commission_has identified several circumstantial indicia of discriminatory
intent: (i) hostility or animus toward the protected activity; (ii) knowledge of the protected
activity, and (iii) coincidence in time between the protected activity and adverse action. Id.
The judge ignored circumstantial evidence of motivation which the Secretary presented.
The record contains evidence of Swiney' s alleged hostility or animus towards Williamson and

2

In its response to the Secretary's petition, CAM Mining makes much of Williamson's
inconsistent testimony about the details of his safety complaint and the fact that Williamson
never raised his complaint to other management officials prior to his discharge. Resp. at 3-21.
We find these arguments to be of no avail as to whether Williamson engaged in protected
activity. Whether Williamson was correct in his belief that the continuous miners were operating
simultaneously is irrelevant to whether he made the safety complaint to his supervisor.
31 FMSHRC 1089

disparate treatment of Williamson as compared to the other shuttle car operators. Williamson
testified that Swiney "dogged" him, swore at him, and assigned him more difficult and onerous
tasks as compared to other shuttle car operators, and that all this occurred after Williamson made
the alleged complaint regarding the two continuous miners to Swiney. Tr. 35, 39, 40-43, 63-64,
67-68, 158, 160. Although Swiney denied these allegations (Tr. 306, 310, 314-16),3 and despite
Williamson's admission that the tasks in question were within his job description (Tr. 40), the
judge need not resolve these disputes at this stage nor make credibility determinations. Chicopee
Coal Co., 21 FMSHRC at 719.
The judge also erroneously relied on upper management's lack of knowledge regarding
Williamson's protected activity. First, Commission case law states that the Secretary need not
prove that the operator has knowledge of the complainant's protected activity in a temporary
reinstatement proceeding, only that there is a non-frivolous issue as to knowledge._ Chicopee
Coal Co., 21 FMSHRC at 718. Second, the operator's alleged basis for Williamson's discharge
was Williamson's altercation with Swiney, the individual who allegedly showed Williamson
hostility, animus, and disparate treatment. Swiney allegedly had knowledge of Williamson's
protected activity because Williamson testified that he made the safety complaint to Swiney.
Moreover, the decision to terminate Williamson was based on Swiney's allegations of
Williamson's misconduct. Swiney's incident report and notes stated that Williamson struck him
and that Swiney did not want Williamson on his section. Slip op. at.5; CM Ex. 1, 2. ·Thus, there·
may be a meritorious basis for imputing Swiney's.knowledge to the operator. See Wigl;ins v.
Eastern Associated Coal Corp., 7 FMSHRC 1766, 1771 (Nov. 1985) ("[A]n operator cannot
escape liability by pleading ignorance due to the division of company personnel functions."')
(quoting Metric Constructors, Inc., 6 FMSHRC 226, 230 n.4 (Feb. 1984)).
The judge also erred in failing to find proximity in time between the protected activity
and adverse action, despite the span being a mere three weeks. Commission case law supports
the position that the timing between the protected activity (Williamson's complaint to Swiney
about the continuous miners on April 20 or 21) and the adverse action (Williamson's discharge
on May 15) was sufficiently close. A three-week span can be sufficiently close in time given the
evidence of intervening acts of hostility, animus, and disparate treatment. Secy ofLabor on
behalf ofHyles v. All American Asphalt, 21 FMSHRC 34, 37-38, 43-44 (Jan. 1999) (finding
temporal proximity despite 16-month gap between miners' contact with MSHA and the failure to
recall miners from layoff where only a month had passed from MSHA's issuance of penalty as a
result of the miners' notification of the violations). Moreover, the judge ignored the proximity in
time between the alleged protected activity and the alleged disparate treatment and hostility by
Swiney, which Williamson said began soon after he complained to Swiney about the ventilation
plan issue. Slip op. at 3.

3

Even so, Swiney testified that during the May 13 incident, Williamson stated to him
that Swiney had been on his "case for 2 or 3 days." Tr. 277.
31 FMSHRC 1090

Finally, the judge erred in his consideration of the evidence regarding the May 13
incident. The judge based his conclusion that there was no nexus between Williamson's
protected activity and the adverse action on his finding that Williamson was discharged for
insubordination for the events of May 13. In doing so, the judge found no evidence of
intervening retaliation, which, as previously stated, was erroneous, and relied in part on
Williamson's statement that he believed he could lose his job for "cussing" out his foreman. Slip
op. at 8. Contrary to the judge's characterization, Williamson's statement of his own belief does
not establish the operator's motivation. Moreover, as the Secretary argues, Williamson's
testimony is consistent with a theory that Swiney would use the May 13 exchange as a pretext for
Williamson's discharge. Pet. at 28 n.22.
Furthermore, we note that evidence that Williamson was discharged for unprotected
activity relates to the operator's rebuttal or affirmative defense. In essence, the judg~ weighed
the operator's rebuttal or affirmative defense evidence against the Secretary's evidence of a
prima facie case. In doing so, the judge erred by assigning a greater burden of proof than is
required. In a temporary reinstatement proceeding, the Secretary need not establish a prima facie
case of discrimination by a preponderance of the evidence. Rather, the Secretary was required to
prove only that a non-frivolous issue exists as to whether Williamson's discharge was motivated
in part by his protected activity. Chicopee Coal Co., 21 FMSHRC at 719. Given Williamson's
testimony of the hostility and animus he was shown by Swiney, we con9lude that there is cl~arly
· a non-frivolous issue as to motivation.
In sum, we thus conclude that substantial evidence supports that the Secretary's
discrimination complaint is not frivolous. We intimate no view as to the ultimate merits of this
case.

31FMSHRC1091

III.
Conclusion
For the foregoing reasons, we grant the Secretary's petition, reverse the judge's decision,
and order the retroactive reinstatement of Lige Williamson effective as of September 30, the date
of the judge's decision.

Robert F. Cohen, Jr., Commissioner

31FMSHRC1092

Distribution:
Mary Sue Taylor, Esq.
Office of the Solicitor
U.S. Department of Labor
618 Church Street, Suite 230
Nashville, TN 37219-2456
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
C.T. Corporation System
Agent for Service for Cam Mining, LLC
4169 Westport Rd.
Louisville, KY 40207
Mark E. Heath, Esq.
Spilman, Thomas & Battle, PLLC
300 Kanawha Blvd. East
P.O. Box273
Charleston, WV 25321

..·!

Administrative Law Judge Jerold Feldman
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 1093

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

October 22, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2009-472-M
A.C. No. 01-02343-173958-03

v.
HOLCIM (US), INC.

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On April 24, 2009, the Commission received from Holcim
(US), Inc. ("Holcim") a motion by counsel seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. §
815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105 (a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
31 FMSHRC 1094

merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
The operator states that it intended to contest the proposed penalties for 24 citations in
two assessments - 23 in one assessment and one penalty in the other assessment. It further
states, however, that because of a misunderstanding between it and its counsel the single penalty
in the second assessment was not contested on a timely basis. When the operator realized the
mistake, it promptly sought reopening. The Secretary does not oppose the reopening of the
proposed penalty:
Having reviewed Holcim's request and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2100. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.
-

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 1095

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

31 FMSHRC 1096

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

October 22, 2009
SECRETARY OF LABOR,
MINE SAFETY AND. HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. WEST 2009-650-M
A.C. No. 45-03551-172177

WESTSIDE TRUCKING

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On March 26, 2009, the Commission received from Westside
Trucking ("Westside") a letter requesting to reopen a penalty assessment that had become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

31 FMSHRC 1097

Westside' s owner states, among other things, that the employee who was responsible for
handling all the company's paperwork suddenly left the company, leaving him unaware of the
citations. He also states that the company is in dire financial circumstances. The Secretary states
that Westside's assertions are "conclusory," but that Westside should be given an opportunity to
respond further and show whether it is entitled to a reopening of the penalty assessment.
Having r:eviewed Westside's request and the Secretary's response, in the interests of
justice, we remand this· matter to the Chief Administrative Law Judge for a determination of
whether good cause exists for Westside's failure to timely contest the proposed assessment and
whether relief from the final order should be granted. Specifically, the Judge should ascertain
why Westside failed to return the proposed assessment form within 30 days of receiving it and.
· which citations it wanted to contest. If it is determined that relief from the final order is
appropriate, this case shall proceed pursuant to the Mine Act and the Commission'~ Procedural
Rules, 29 C.F.R. Part 2700.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 1098

Distribution:
John Bredfield
Westside Trucking
10050 Barnes Drive
Castle Rock, WA 98611
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 1099

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

October 26, 2009

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

v.
Docket No. WEST 2004-182-RM

NATIONAL CEMENT COMPANY
OF CALIFORNIA, INC.
and
TEJON RANCHCORP

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). Previously, the Commission had rejected the interpretation
the Secretary of Labor proffered on remand of the definition of "private ways and roads
appurtenant" to areas of land from which minerals are extracted, as that term appears in section
3(h)(l) of the Mine Act, 30 U.S.C. § 802(h)(l). However, in Sec'y ofLabor v. National Cement
Co. of California, 573 F.3d 788 (D.C. Cir. 2009), the court upheld the Secretary's interpretation
as reasonable.

31FMSHRC1100

The court vacated the Commission's decision and remanded the case to the Commission
for further proceedings in accordance with the court's opinion. ·573 F.3d at 797. Accordingly,
this proceeding is remanded to Administrative Law Judge Jerold Feldman for proceedings on the
merits of the citation.

.;:!:-."
1',-i.-.·

Robert F. Cohen, Jr., Commissio er

31FMSHRC1101

Distribution:
Robin Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Margaret S. Lopez, Esq.
Ogletree, Deakins, Nash,
Smoak & Stewart, P.C.
2400 N Street NW, 5th Floor
Washington, DC 20037
Thomas C. Means, Esq.
Crowell & Moring LLP
1001 Pennsylvania Avenue NW
Washington, DC 20004-2595
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939Administrative Law Judge Jerold Feldman
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 1102

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

October 28, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. SE 2009-173-M
A.C. No. 31-01125-164541

OLDCASTLESTONEPRODUCTS

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On December 18, 2008, the Commission received from
Oldcastle Stone Products ("Oldcastle") a motion by counsel seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the-Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 270_0.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).
31FMSHRC1103

On October 2, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment for 29 violations totaling $32,026 to Oldcastle.
Oldcastle states that the violations at issue in the proposed penalty assessment it seeks to reopen
were issued between August 5 and August 14, 2008, and that it provided its counsel with a copy
of the violations on September 3, 2008. Counsel filed a Notice of Contest of Citation No.
6105371, which has been docketed as SE 2008-992-RM and stayed before the Commission.
Oldcastle claims that it received the proposed assessment on October 10, 2008, but that it did not
realize that it needed to forward the assessment form to its counsel for a contest. It further
explains that counsel became aware of the proposed assessment on December 11, 2008, when a
state inspection revealed that the penalties were overdue.

The Secretary opposes reopening the proposed penalty assessment, maintaining that
Oldcastle has failed to establish the existence of"exceptional circumstances." Sp~cifically, the
Secretary contends that ignorance of the law and MSHA's and the Commission's procedural
rules is not a permissible ground for reopening.
Oldcastle timely contested Citation No. 6105371, and the case has been docketed and
stayed before a Commission administrative law judge pending issuance of the proposed penalty
assessment by MSHA. Given these circumstances, it seems clear that Oldcastle intended to
contest the proposed penalty for that citation. As to the remaining violations contained in the
proposed assessment, the operator has neither demonstrated an intent to challenge those penalties
nor provided an explanation for its failure to timely contest the proposed assessment, other than
its general assertion of ignorance of the procedure. 1 Oldcastle' s failure to explain the delay in
contesting the proposed penalties does not provide the Commission with an adequate basis to
reopen the remaining penalties in the proposed assessment. See, e.g., Petra Materials, 31
FMSHRC 47, 49 (Jan. 2009).

1

Oldcastle's motion to reopen states at one point that "[a]ll underlying citations/orders
captioned above have been contested." Mot. at 2. However, in her opposition, the Secretary
questions this statement and claims that "[t]he operator has furnished a copy of, and the Secretary
is aware of, only one contest - the contest pertaining to Citation No. 6105371." Opp'n at 3, n.l.
31FMSHRC1104

Having reviewed Oldcastle's request and the Secretary's response, in the interests of
justice, we hereby reopen the penalty assessed for Citation No. 6105371 and remand the matter
to the Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission's Procedural Rules, 29 C.F.R. Part 2700. Consistent with Rule 28, the Secretary
shall file a petition for assessment of penalty within 45 days of the date of this order. See 29
C.F.R. § 2700.28. As to the remaining 28 penalties in Assessment No. 000164541, we deny
without prejudice Oldcastle's request to reopen.

Robert F. Cohen, Jr., Commissioner

31FMSHRC1105

Distribution:
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD _20705
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief·
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC1106

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

October 28, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. SE 2009-802-M
A.C. No. 09-00472-183080 PEU

v.

Docket No. SE 2009-803-M
A.C. No. 09-00959-183082 PEU

B & H TRANSFER COMPANY

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On August 10, 2009, the Commission received from B & H
Transfer Company ("B & H") a letter seeking to reopen penalty assessments that may have
become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a). 1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become fmal 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 fmal order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers SE 2009-802-M and SE 2009-803-M, both captioned B & H
Transfer Co., and both involving similar procedural issues. 29 C.F.R. § 2700.12.
31 FMSHRC 1107

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).
With respect to Proposed Assessment No. 000183080 PEU, both the operator and the
Secretary now ~gree that the proposed assessment was timely contested. The Secretary asserts
that MSHA misfiled the contest form and, as a result, the case was not processed properly. The
Secretary submits that the error has been corrected and the contest is being considered timely and
will follow the normal course of proceeding. As to Proposed Assessment No. 000183082 PEU,
the Secretary states that the penalty contained therein was assessed against B & H in error and
will be removed from its account.
Having reviewed B & H's requests and the Secretary's response, we find tlie requests to
reopen to be moot. B & H has properly contested Proposed Assessment No. 000183080 PEU,
and therefore it did not become a final order of the Commission. This case shall proceed
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. With
respect to Proposed Assessment No. 000183082 PEU, we also find the request to reopen to be
moot because the penalty contained therein was assessed in error and has been or will be
removed from the operator's account.

~>~~~
F.~, cmn1lli88i()llet'•

Michael

Robert F. Cohen, Jr., Co;;:unissioner

31FMSHRC1108

Distribution:
Tommy Cauthen
Dir. Of Safety
B& H Transfer Co.
750 Sparta Rd. _
Sandersville, GA 31082.
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 251h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC1109

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

October 29, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2009-787-M
A.C. No. 13-02360-178617

v.
CESSFORD CONSTRUCTION
COMPANY

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On August 27, 2009, the Commission received from
Cessford Construction Company ("Cessford") a letter seeking to reopen a penalty assessment that
may have become a final order of the Commission pursuant to section lOS(a) of the Mine Act, 30
U.S.C.§ 815(a).
Under section lOS(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
The Secretary submits that upon reviewing the records in this proceeding, she has
discovered that the proposed penalty was timely contested and is the subject of an active civil
penalty proceeding (Docket No. CENT 2009-339-M). In that proceeding, the Secretary has filed
a penalty petition, and the operator has filed an answer.

31FMSHRC1110

Having reviewed Cessford' s request and the Secretary's response, we find the request to
reopen to be moot. Cessford has properly contested the proposed penalty assessment and
therefore it did not become a final order of the Commission. This case shall proceed pursuant to
the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 1111

Distribution
Donald W. Smith, Safety Director
Cessford Construction Company
3808 Old Highway 61
Burlington, IA 52601
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939

31FMSHRC1112

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

October 30, 2009
Docket No. KENT 2010-1
A.C. No. 15-18687-188524
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. KENT 2010-2
A.C. No. 15-18854-188526

v.

Docket No. KENT 2010-3
A.C. No. 15-19080-188530

LIGGETT MINING, LLC
Docket No. KENT 2010-4
A.C. No. 15-19234-188533
BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On October 2, 2009, the Commission received from Liggett
Mining, LLC ("Liggett") motions to reopen four penalty assessments that may have become final
orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR'l In evaluating requests to

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers KENT 2010-1, KENT 2010-2, KENT 2010-3, and KENT 2010-4,
all captioned Liggett Mining, LLC, and all involving similar procedural issues. 29 C.F.R.
§ 2700.12.
31FMSHRC1113

reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Each of the four assessments was dated June 18, 2009, and received by Liggett.
According to the motions, Liggett' s representative marked each of the assessments indicating
· which penalties the operator was contesting and mailed the four notices separately, on June 27,
2009, using certified mail. According to copies of the on-line records of delivery ~ubmitted by
Liggett with its motions, the four envelopes were received by the Department of Labor's Mine
Safety and Health Administration two days later. Nevertheless, Liggett received delinquency
notices for the assessments dated September 10, 2009, which caused it to promptly file its
motions to reopen.
The Secretary of Labor states that, while she has no record of receiving the notices of
contest, given the information provided by Liggett, she will accept the copies of the notices of
contest included with Liggett's motions. The Secretary states in her letters dated October 9,
2009, that she will file penalty petitions within 45 days of that date.

31FMSHRC1114

Having reviewed Liggett' s motions and the Secretary's responses, we find the requests to
reopen to be moot. These cases shall proceed pursuant to the Mine Act and the Commission's
Procedural Rules, 29 C.F .R. Part 2700, and, per her statements, the Secretary's penalty petitions
shall be filed no later than November 23, 2009.

Robert F. Cohen, Jr., Commissi~ner

31FMSHRC1115

Distribution:
Jam.es Bowman,
Liggett Mining, LLC,
P.O. Box 99,
Midway, WV 25878
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC1116

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

October 30, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2009-600-M
.A.C. No. 40-03012-171882

v.
HOOVER, INC.

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On June 11, 2009, the Commission received from Hoover,
Inc., ("Hoover") a motion by counsel to reopen a penalty assessment that had become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held 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"). ill evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

31FMSHRC1117

On December 21, 2008, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued Proposed Assessment No. 000171882 to Hoover, proposing
penalties for six citations that had been issued to Hoover in October and November 2008. After
receiving no response, MSHA sent Hoover a delinquency notice on or around March 19, 2009.
Hoover promptly notified MSHA that it had no record of receiving the assessment and that the
individual MSHA identified from the Federal Express records as having signed for the delivery,
Jerry Rogers, had been on long-term medical leave since early December 2008. Hoover explains
in its motion, which is supported by an affidavit, that it investigated the matter but never located
the FedEx package or determined who signed for the delivery. Hoover had previously indicated
to MSHA its intent to contest all six of the proposed penalties.

The Secretary does not oppose Hoover's request to reopen the assessment, and includes
with her response a signature page for the delivery which does not match the Federal Express
record stating that the delivery was signed for by Rogers.
Having reviewed Hoover's request and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 1118

Distribution:
G. Summer, R. Bouldin, Jr., Esq.
Bouldin & Bouldin, PLC
122 North Church St.
P.O. Box 811
Murfreesboro, TN 77133
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 251h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC1119

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

October 30, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2009-601-M
AC. No. 40-02968-179454

v.
MOLTAN COMPANY

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

§ 801 et seq. (2006) ("Mine Act"). On June 12, 2009, the Commission received from Moltan
Company ("Moltan") a request to reopen a penalty assessment that had become a final order of
the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 3 0 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786~89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

31 FMSHRC 1120

On March 17, 2009, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000179454 to Moltan, proposing penalties for 38
citations and orders that had been issued to Moltan the previous month. Moltan explains that it
did not respond to the assessment until May 27, 2009, because shortly after the assessment was
received, the company's founder died, and new management assumed leadership. The employee
who had received the assessment immediately left the company without informing anyone of the
time sensitive nature of the assessment. Moltan states that, after company officials found the
assessment in a pile of papers in the employee's former office, it promptly mailed the contest to
MSHA, indicating its intent to contest 12 of the proposed penalties. MSHA rejected the filing as
untimely, and Moltan promptly filed this request to reopen. The Secretary states that she does
not oppose Moltan's request to reopen the assessment.
'Having reviewed Moltan's request and the Secretary's response, in the interests of justice,
we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

31FMSHRC1121

Distribution:
Cheryl Followell
Moltan Co., LP
7125 Riverdale Bend Rd.
Memphis, TN 38125-4442
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC1122

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

October 30, 2009
· SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. VA 2009-314
A.C. No. 44-04856-162333

v.
CONSOLIDATION COAL COMPANY

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

§ 801 et seq. (2006) ("Mine Act"). On June 8, 2009, the Commission received a motion by
counsel for Consolidation Coal Company ("Consol") 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 September 10, 2008, the Department ofLabor's Mine Safety and Health
Administration ("MSHA") issued Proposed Assessment No. 000162333 to Consol, proposing
civil penalties for 107 citations issued to the operator at its Buchanan Mine over the course of the
preceding three months. Consol states that MSHA's records show that Consol received the
package containing the assessment, but that the operator otherwise has no record of what
happened to the assessment after that. Consol explains that the individual to whom the form was
addressed, and to whom it would have been forwarded after its receipt, stopped working at the
mine in November 2008. Consol further notes that the individual who was ultimately
responsible for processing assessments at the time in question has no record or recollection of
receiving the form.

31FMSHRC1123

The Secretary opposes Consol's request to reopen the proposed assessment. She argues
that Consol's inadequate or unreliable internal distribution procedures do not constitute the
exceptional circumstances required for reopening. The Secretary also states that the penalty
assessment became a final Commission order on October 17, 2008, and that on December 10,
2008, MSHA sent a delinquency notice to Consol informing the operator that it had failed to
timely contest the proposed penalties. The Secretary asserts that Consol has failed to explain
why it did not file its motion for reopening until nearly an additional six months had passed.
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 mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
We do not ·agree with the Secretary that this one instance necessarily establishes that ·
Consol's internal distribution procedures are inadequate or unreliable. However, in considering
whether an operator has unreasonably delayed in filing a motion to reopen a final Commission
order, we find relevant the amount of time that has passed between an operator's receipt of a
delinquency notice and the operator's filing of its motion to reopen. See, e.g., Left Fork Mining
Co., 31 FMSHRC 8, 11 (Jan. 2009). Although the Secretary's response raised the issue that
Consol failed to explain why, after it was informed of the delinquency, it took as long as it did to
request reopening, the operator did not file a reply providing an explanation. 1

1

We encourage parties seeking reopening to provide further information in response to
pertinent questions raised in the Secretary's response. See, e.g., Climax Molybdenum Co., 30
FMSHRC 439, 440 n.1 (June 2008). Accordingly, where the Secretary raises the issue of the
delay between receipt of a delinquency letter and the filing of the request to reopen, an operator
who does not explain why, after it was informed of a delinquency, it took as long as it did to
request reopening, does so at its peril.
31 FMSHRC 1124

Having reviewed Consol's request and the Secretary's response, we conclude that Consol
has failed to explain the delay in responding to the delinquency notice and therefore has not
provided the Commission with an adequate basis to reopen. See, e.g., Petra Materials, 31
FMSHRC 47, 49 (Jan. 2009). Accordingly, we deny without prejudice Consol's request to
reopen.

Robert F. Cohen, Jr., Commissioner

31FMSHRC1125

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

31FMSHRC1126

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

October 30, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2009-1216
A.C. No. 01-00082-187443 1

v.
U.S. SILVER-IDAHO, INC.

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On August 7, 2009, the Commission received from U.S.
Silver-Idaho, Inc. ("U.S. Silver") a motion seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR."). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700. l(b) ("the Commission and its Judges shall be guided so far as practicable

1

The Assessment Case Number has been corrected to accurately reflect the Proposed
Penalty Assessment at issue.
31FMSHRC1127

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).
U.S. Silver states that it sent its contest form to the Department of Labor's Mine Safety
and Health Administration ("MSHA") approximately one week after the 30-day deadline. The
affidavit of U.S. Silver's safety superintendent indicates that, although the company has an
established procedure for processing proposed assessments, he neglected to send the contest form
to a company administrative assistant for mailing to MSHA until the deadline had passed. The
. affidavit also notes that the company has now revised its procedure to more acclirately calendar
assessments in an effort to avoid the same circumstance in the future. 2 When MSHA informed it
of the mistake, U.S. Silver promptly filed a motion to reopen. Contests had already been filed for
two of the citations at issue.
The Secretary does not oppose the reopening of the proposed penalties.

2

The revised procedure places deadlines to contest all MSHA assessments, detailed by
mine name and case number, on both the paper and electronic calendars of both the safety
superintendent and the administrative assistant.
31 FMSHRC 1128

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

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 1129

Distribution:
Mark N. Savit, Esq.
Patton Boggs LLP
1801 California Street
Suite 4900
Denver, CO 80202
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC1130

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

October 30, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2009-1592
A.C. No. 46-07908-179891

v.
PINE RIDGE COAL COMPANY, LLC

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (''Mine Act"). On September 9, 2009, the Commission received from Pine
Ridge Coal Company, LLC ("Pine Ridge") a renewed motion by counsel to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order ofthe~Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). 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 mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
31FMSHRC1131

On March 19, 2009, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000179891 to Pine Ridge for 22 citations MSHA
had issued to the operator over the previous two months. However, the operator did not file a
timely notice of contest. In its first motion to reopen, filed on June 22, 2009, Pine Ridge stated
that it had intended to contest 12 of the proposed penalties, but because of a "clerical error" it
failed to return the contest form to MSHA. The Secretary of Labor opposed reopening on the
ground that the proffered ground for reopening did not rise to the level of exceptional
circumstances. The Commission subsequently denied the request to reopen without prejudice
because of Pine Ridge's failure to provide a sufficiently detailed explanation for its failure to file
a timely contest. See Pine Ridge Coal Co., 31 FMSHRC _ , slip op. at 2, Docket No. WEVA
2009-1592 (Aug. 26, 2009).
· The renewed request to reopen from Pine Ridge includes an affidavit from its safety
manager, who explains that the assessment was not processed as it normally would have been
because it was misfiled in a stack of documents on his desk after he had marked it to indicate
which penalties he wished to contest. The Secretary has not responded to Pine Ridge's renewed
motion.
Having reviewed Pine Ridge's requests, in the interests of justice, we hereby reopen this
matter and remand it to the Chief Administrative Law Judge for further proceedings pursuant to
the.Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. Accordingly,
consistent with Rule 28, the Secretary shall file a petition for assessment of penalty within 45
days of the date of this order. See 29 C.F.R. § 2700.28.

31FMSHRC1132

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

31 FMSHRC 1133

31 FMSHRC 1134

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

September 4, 2009
SECRETARY OF LABOR, MINE SAFETY
AND HEALTH ADMINISTRATION,
on behalf of CHARLES SCOTT HOWARD
Complainant

v.
CUMBERLAND RNER COAL COMPANY, INC., :
Respondent

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. KENT 2009-1427-D
BARB CD 2009-11
Mine ID 15-18705
Band Mill No. 2

DECISION
AND
ORDER OF TEMPORARY REINSTATEMENT

Appearances: Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for Complainant, Secretary of Labor,
Tony Oppegard, Esq., Lexington, Kentucky, and Wes Addington, Esq.,
Appalachian. Citizens Law Center, Whitesburg, Kentucky, for Charles Scott
Howard,
Willa B. Permutter, Esq., and Thomas P. Gies, Esq., Crowell & Moring, LLP,
Washington, D.C., for Respondent.
Before:

Judge Zielinski

This matter is before me on an Application for Temporary Reinstatement filed by the
Secretary on behalf of Charles Scott Howard pursuant to section 105 (c)(2) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2). Howard filed a complaint with the
Secretary's Mine Safety and Health Administration (MSHA) alleging that his May 14, 2009,
layoff was motivated by his protected activity. The Secretary contends that Howard's complaint
is not :frivolous, and seeks an order requiring Respondent, Cumberland River Coal Company,
Inc., to reinstate Howard as an employee, pending completion of a formal investigation and final
decision on the merits of the discrimination complaint. A hearing on the application was held in
Whitesburg, Kentucky, on August 26 and 27, 2009. 1 For the reasons set forth below, I grant the
application and order Howard's temporary reinstatement.
1

A malfunction in the· court reporter's tape recorder during the first day of the hearing
resulted in the loss of approximately 15 pages of transcript. Tr. 59. The malfunction occurred
during the testimony of Valarie Lee, Cumberland's manager of human resources. As noted in the
body of this Decision, Lee's testimony was informative, but not particularly critical to the central
issues in the case. The missing portion of the transcript has not compromised the fair and
impartial disposition of this proceeding, and no party has so contended ..
31 FMSHRC 1135

Summary of the Evidence
Howard was hired by Cumberland on March 21, 2005, and worked as an underground
miner in a position classified as "Face." That job classification encompasses a variety of duties,
including, continuous miner operator, ram car operator, scoop operator, roof bolter, and general
laborer. Beginning in 2007, Howard engaged in a number of safety-related activities, and
exercised other rights under the Mine Act. A listing of his claimed protected activities was
submitted into evidence. Exhibit G-10. While Cumberland challenges the characterization of
several of the claimed activities, it acknowledges that Howard engaged in numerous activities
protected under the Act, including the filing of two discrimination actions with MSHA and the
Commission, making safety complaints and testifying on safety issues before the United States
Congress and MSHA. Tr. 322-23. Moreover, key management decision makers were well.aware ·
ofHoward's protected activities at all times pertinent to this proceeding. Tr. 311-~4, 322-47,
465-67.
The general downturn in the economy that began in 2008 resulted in reduced coal sales
which, in turn, prompted Arch Coal, Inc., to reduce coal production at its subsidiary,
Cumberland. Contract operations were curtailed and hours were reduced. However,
Cumberland's coal inventory continued to grow, swelling in early 2009 to 224,000 tons, as
compared to a normal inventory of 80,000 tons. Tr. 236-38. Gaither Frazier, Cumberland:',s
·general manager, was instructed to reduce production to brihg'.it into line with projected sales.
He instructed Cumberland's production manager Ricky Johnson, to develop plans to reduce
Cumberland's production by 50,000 to 60,000 tons per month. Tr. 239.
Johnson considered several options for restructuring Cumberland's operations to meet the
production goal. He eventually proposed, and Frazier approved, a plan that called for closing one
mine and reducing operations at several other facilities, which necessitated laying off both hourly
and salaried personnel. Frazier's overriding concern was to achieve the production targets.
While he was interested in keeping as many employees as possible, he was not concerned with
keeping or eliminating a particular number of jobs or laying off a specific number of employees,
and he did not give Johnson any instructions in that regard. Tr. 251, 433-34, 450. The final
restructuring plan prepared by Johnson specified the various facilities that would continue to
operate, and the numbers and types of positions that would be filled for each shift. Tr. 251, 450.
Frazier approved the restructuring plan and the specific staffing levels proposed by Johnson.
Tr. 298, 450. Manypositions were eliminated. However, some vacant positions at operations
that were to continue were filled. As Johnson described it, there was a lot of fine tuning and a
few extra positions were factored in. Tr. 450, 456.
The next step in the process was to identify the specific employees who would fill the
positions that were to remain, and those who were to be laid off. The collective bargaining
agreement ("CBA") between Cumberland and the Scotia Employees Association ("union")
specified that three factors were to be considered in any reduction of the working force. They
were, in order; a) ability and individual skill to perform the essential functions of the job; b)
company seniority; and c) experience and efficient service related to the qualifications of the job.
31FMSHRC1136

.

'

Ex. G-4 at 8-9. An employee's qualifications for the first factor were determined by his job
classification and/or whether he had performed a job under company supervision within the past
seven years. Id. The CBA specified only two non-trainee job classifications for underground
miners, "Maintenance," which required electrical certification, and "Face," which included
virtually all other jobs associated with the production of coal. Ex. G-4, App. C. Other
classifications are specified for different operations. Cumberland maintained a list of employees,
by seniority, on which each employee was assigned a seniority number. Ex. G-3. Johnson and
Valarie Lee, Cumberland's manager of human resources, examined the job classifications and
qualifications of Cumberland's hourly employees, and their length of seniority, and wrote the
names of employees who would fill the post-restructuring staffing plan into blank spaces on the
plan. Ex. G-2. It was not necessary to consider the third factor, because no two persons in a
·gi.venjob classification had the same length of seniority.· Tr. ,147-49, 452;
...
Frazier had done rough estimates early in the process that reflected that 63 hourly
employees might be laid off. Tr. 240-47; ex. G-11, G-12. When Johnson and Lee finished
inserting employee names into the restructured operations staffing plan, there were 66 hourly and
19 salaried employees for whom no positions existed, and who had to be laid-off. Employees
were notified of the restructuring on Thursday, May 14, 2009. Friday was an idle day, and
production resumed on Monday, May 18, 2009. Howard, whose seniority number was 125, was
the most senior employee in the underground "Face" job classification to be laid off, and would ...
·be the first to. he recalled in the event an underground,face positionwas filled. Eddie Bently, the.·
president of the union, was given a copy of the layoff notices. The following week, he brought
several errors to Cumberland's attention. Essentially, they consisted of individuals who qualified
for a different job and had more seniority than a person who had been retained in that
classification.2 Those "errors' were corrected, and the previously retained employees were
"bumped," i.e., laid off.
Two or three underground face employees left Cumberland's employment subsequent to
the layoffs. However, Cumberland has determined not to fill those positions. The most recent
vacancy occurred during the week of the hearing, and Cumberland advised, through counsel, that
the position would not be filled on a permanent basis. 3 Howard has not been recalled.

2

One such employee, James Cress, Jr., testified at the hearing. He was carried on
Cumberland's records as an underground face employee, and his seniority number was 179. He
received a layoff notice on May 14, 2009. However, he was a certified electrician in the State of
Kentucky, and had been working in a higher-paid "Maintenance" position for months prior to the
layoff. Because he had more seniority than another maintenance employee who had been
retained, he was placed into that maintenance position.
3

Cumberland's witnesses offered several reasons why a particular position may not be
filled. Positions vacated temporarily because a worker is injured are not typically filled.
Cumberland also had built in some "extra" positions in the post-restructuring staffing plan, and
expected one or two people who had been out on worker's compensation to return shortly.
31FMSHRC1137

. ,,

On July 11, 2009, Howard filed a complaint of discrimination with MSHA, claiming that
he had been laid off in retaliation for having engaged in protected activity. On August 4, 2009,
the Secretary filed the instant Application for Temporary Reinstatement on his behalf.
Findings of Fact and Conclusions of Law
SectionJ05(c)(2) of the Act, 30 U.S.C. § 815(c)(2), provides, in pertinent part, that the
Secretary shall investigate a discrimination complaint "and if the Secretary finds that such
complaint was not frivolously brought, the Commission, on an expedited basis upon application
of the Secretary, shall order the immediate reinstatement of the miner pending final order on the
complaint." The Commission has established a procedure for making this determination.
Commission Rule 45(d), 29 C.F .R. § 2700A5(d); states:· · · ' .. ·

... ·:

The scope of a hearing on an application for temporary reinstatement is
limited to a determination as to whether the miner's complaint was frivolously
brought. The burden of proof shall be upon the Secretary to establish that the
complaint was not frivolously brought. In support of [her] application for
temporary reinstatement, the Secretary may limit [her] presentation to the
testimony of the complainant.. The respondent shall have an opportunity to crossexamine any witnesses called by the Secretary and may present testimony and.
documentary evidence in support of its position:.that.the complaint was frivolously
·brought.
.
.: ·

"The scope of a temporary reinstatement hearing is narrow, being limited to a determination by
the judge as to whether a miner's discrimination complaint is frivolously brought." Secy of
Labor on behalf ofPrice v. Jim Walter Resources, Inc., 9 FMSHRC 1305, 1306 (Aug. 1987),
aff'd sub nom. Jim Walter Resources, Inc. v. FMSHRC, 920 F.2d 738 (11th Cir. 1990).

In adopting section 105(c), Congress indicated that a complaint is not frivolously brought,
if it "appears to have merit." S. Rep. No. 181, 95th Cong., 1st Sess. 36-37 (1977), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong. 2nd Sess.,
Legislative History of the Federal Mine Safety and Health Act of 1977, at 624-25 (1978). The
"not frivolously brought" standard has been equated to the "reasonable cause to believe" standard
applicable in other contexts. Jim Walter Resources, Inc., 920 F.2d at 747; Secy ofLabor on
behalfofBussanich v. Centralia Mining Company, 22 FMSHRC 153, 157 (Feb. 2000).
While an applicant for temporary reinstatement need not prove a prima facie case of
discrimination, it is useful to review the elements of a discrimination claim in order to assess
whether the evidence at this stage of the proceedings meets the non-frivolous test. In order to
establish a prima facie case of discrimination under Section 105 (c) of the Act, a complaining
miner bears the burden of establishing (1) that he engaged in protected activity and (2) that the
adverse action complained of was motivated in any part by that activity. Secy ofLabor on
behalf ofPasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev'd on other
grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secy of

31FMSHRC1138

Labor on behalf ofRobinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981 ); Secy of
Labor on behalf ofJenkins v. Hecla-Day Mines Corp., 6 FMSBR.C 1842 (Aug. 1984); Sec '.Y of
Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (1981 ), rev'd on other
grounds sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983).
Howard has engaged in numerous activities protected under the Act, including making
safety complaints and filing discrimination actions with MSHA and the Commission, two of
which are currently pending. Howard's protected activity was well-known to virtually all
management officials at Cumberland. fu fact, when Lee realized that Howard's name appeared
on the list of hourly employees to be laid-off, she expressed surprise. Tr. 179. She, Johnson and
Frazier recognized that Howard, who had several "court cases" pending against Cumberland,
would likely initiate proceedings to challenge his layoff.. •· Frazier called Bob Shanks, Aroh. :
Coal's president of eastern operations, and advised him of the situation. Shanks recommended
that Frazier let things fall where they were going to, i.e., that no "special consideration" should
be given to Howard, and Frazier decided to allow the reduction in force to proceed as planned.
Tr. 311-14, 349-50, 400, 413. It is not disputed that Howard suffered adverse action, having lost
his job on May 14, 2009, pursuant to the reduction in force. Whether the Secretary has proven,
by a preponderance of the evidence, that Howard's claim of discrimination is not frivolous turns
on whether there is evidence that the adverse action was motivated, at least in part, by Howard's
•:protected activity.
. ., ·
The Commission has frequently acknowledged that it is very difficult to establish "a
motivational nexus between protected activity and the adverse action that is the subject of the
complaint." Sec '.Y ofLabor on behalf ofBaier v. Durango Gravel, 21 FMSHRC 953, 957 (Sept.
1999). Consequently, the Commission has held that "(1) knowledge of the protected activity;
(2) hostility or animus towards the protected activity; and (3) coincidence in time between the
protected activity and the adverse action" are all circumstantial indications of discriminatory
intent. 4 Id.
Cumberland argues that there was a nine-month gap between Howard's last protected
activity and the layoff, which is "surely insufficient coincidence in time to support a reasonable
inference of impermissible motivation." Resp. Br. At 21-22. However, Howard engaged in
protected activity much closer in time to the layoff. On January 21, 2009, Howard exercised his
right under section 105 (c)(3) of the Act, to file a discrimination complaint with the Commission.
30 U.S.C. § 815(c)(3). The filing of "any proceeding under or related to this Act" is specifically
4

Cumberland argues that there is no evidence of hostility toward Howard's protected
activities. The Secretary contends that statements made by Frazier that he didn't like seeing a
video that Howard had taken in Cumberland's mine and shown during an MSHA hearing, and a
.purported refusal of Howard's request for a copy of the seniority list evidence such hostility.
I place little weight on that factor, because there are reasonable explanations for both of the
actions. The Secretary also contends that Cumberland's failure to recall Howard to fill positions
vacated subsequent to his layoff further evidences improper motive. Little weight has been
placed on that evidence, for the same reason.
31 FMSHRC 1139

identified as protected activity. 30 U.S.C. § 815(c)(l). Cumberland's attempt to dismiss that
protected action as simply a continuation of his original complaint of discrimination to MSHA is
unavailing. Howard also claims protected activities in January and March of2009, including the
communication of a safety complaint by his attorney, the initiation of a grievance regarding that
complaint, and the initiation of grievances regarding changes to Cumberland's safety policy.
Cumberland challenges the characterization of those activities, and disputes that the attorney's
communication constitutes protected activity by Howard. I find that the fact that the safety
complaint was communicated through counsel does not alter its status as protected activity by
Howard. Howard's filing of grievances regarding the incident and changes to the safety policy
also appear to constitute activities protected by the Act.
' ·· More importantly, Howard's·protected activities werernimerous and have extended over
a considerable period of time. Two discrimination actions that he filed are currently pending
before the Commission. Cumberland's managers were well aware of the bulk of Ills activities,
and anticipated that he would freely raise safety issues, and institute discrimination complaints as
to any suspected retaliatory conduct. His status as a miner who engaged in protected activity
was, in essence, continuing in nature, such that it could be said that the layoff was almost
contemporaneous with his protected activities.
Cumberland further argues that no reasonable inference of improper motivation could,be
drawn because the undisputed evidence establishes that the number of hourly miners laid off was ·
· arrived at without reference to their identities, and that personnel were placed into the available
slots by "mechanically applying" the terms of the CBA. Resp. Br. at 16. I have little problem
with the assertion that, once the post-restructuring positions were established, proper application
of the CBA resulted in Howard's layoff. Nor, apparently, does Howard. 5 However, it is not at
all clear that the process by which those positions were established was as squeaky clean as
Cumberland asserts.
While there is no direct evidence to counter testimony that identities of miners were not
considered in determining the positions that would be kept following the restructuring, there is
circumstantial evidence that could give rise to a contrary inference and that Howard's layoff was
motivated, in part, by his protected activity. Johnson developed the post-restructuring staffing
plan, i.e., determined the numbers and classifications of positions that would be used to conduct
each of the remaining operations. He had considerable discretion in performing that task. As
5

There was a good deal of evidence introduced as to the interpretation and application
of the CBA. While counsel for the Secretary and Howard repeatedly questioned the explanations
offered by Lee, Howard's counsel eventually stated that Howard was not contending that there
had been a mistake in application of the contract. Tr. 423. Lee had explained that because a
previous reduction in force had resulted in the retention of union members with less seniority
than those laid off, the contract had been modified to base retention largely on seniority in broad
job classifications, relegating more subjective criteria to essentially tie-breaker status. Tr. 18289; ex. G-4, R-1. There is no evidence that the union has taken issue with Cumberland's
interpretation of the agreement.
31FMSHRC1140

previously noted, he testified that there was a lot of fine tuning of the staffing plan and some
extra positions were factored in. Frazier explained that there was no specified number of
personnel required to be kept, or let go, and Cumberland could have terminated fewer hourly
miners, preserving Howard's job. Tr. 412.
Johnson testified that identities of miners were not considered in establishing the postrestructuring staffing plan. However, information as to miners' identities and their rank on the
seniority list was readily available to him. While the process of determining exactly where the
cut-off line for a given number of layoffs would fall on the seniority list can be complicated, it
would have been feasible to arrive at a staffing plan that would dictate that Howard would not be
retained. 6 Frazier had made preliminary estimates that 63 hourly miners might be laid off.
· ' Johnson~s staffing charts ·dictated that 66 miners be let go; There is no detailed explanation ·bf ..
how the preliminary estimates of 63 were arrived at, or exactly how they differed from the
eventual number of 66. 7 Johnson did not preserve drafts, notes, or other paperwork he generated
in arriving at the staffing plan. Tr. 454.
Cumberland appears to overstate the Secretary's burden. It argues that "[t]o justify an
order of temporary reinstatement ... the Secretary and Howard must ... show that the adverse
action complained of was motivated in any part by [the protected] activity," citing Sec '.Y ofLabor
on behalf ofPendley v Highland Mining Company, LLC. Resp. Br. at 15 ~ Highland Mining
involved a claim of discrimination, and the quoted language addressed the complainanf s burden ·
to establish aprima facie case. In this temporary reinstatement proceeding, however, theSecretary need not establish a prima facie case of discrimination in order to prove that the
complaint was not frivolously brought. It is sufficient that the evidence establish that a .. ·
nonfrivolous issue exists as to whether Howard's layoff was motivated in part by his protected
activity. Sec'y on behalf ofAlbu v. Chicopee Coal Company, 21FMSHRC717, 719(July1999).
The record is not devoid of evidence from which it could be inferred that Howard's layoff
was motivated, in part, by his protected activity. It is not necessary, or appropriate in this
proceeding, to decide whether or not to draw such an inference. I find that the evidence
discussed above establishes a nonfrivolous issue as to improper motivation.

6

The process is complicated by potential movement between job classifications. Cress,
who may have been erroneously classified on Cumberland's records, moved into a maintenance
position, and avoided being laid off from an underground face position. Similarly, a maintenance
worker whose position might be eliminated, and who was also qualified to be an underground
face miner, could move to that job classification and "bump" a less senior face miner.
7

Cumberland offers an explanation in its brief, pointing out that the pre- and postrestructuring staffing plans show that three additional electricians were retained at the Blue Ridge
Mine. Ex. G-1, G-2. Resp. Br. at 17. However, it would seem that the retention of an additional
three miners would have reduced the number affected, i.e., changed it from 63 to 60, not
increased it.
31FMSHRC1141

I find that there is reasonable cause to believe that Howard may have been discriminated
against as alleged in his complaint, and conclude that the Application for Temporary
Reinstatement has not been frivolously brought.

ORDER
The Application for Temporary Reinstatement is GRANTED. Cumberland River Coal
Company is ORDERED TO REINSTATE Howard to the position that he held prior to
May 14, 2009, or to a similar position, at the same rate of pay and benefits, IMMEDIATELY
ON RECEIPT OF THIS DECISION.
· •.. ··1

• • • . • • :.

,\,.

· Distribution:(Electronic and First Class Mail)· : .·
Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suit~ 230, Nashville, TN 37219-2456
Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522
Wes Addington, Esq., Appalachian Citizens Law Center, 317 Main Street, Whitesburg, KY
41858
Willa B. Perlmutter, Esq., Growell & Moring, LLP, 1001 Pennsylvania Ave., N.W. Washington,
D.C. 20004-2595

31 FMSHRC 1142

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

September 8, 2009
TEMPORARY REINSTATEMENT
PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
on behalf of MARK GRAY,
Complainant

Docket No. KENT 2009-1429-D
BARB CD 2009-13

v.
NORTH FORK COAL CORPORATION,
Respondent

. Mine ID 15-18340
No. 4Mine

DECISION AND ORDER GRANTING APPLICATION FOR
- TEMPORARYREINSTATEMENT
Appearances: Derek Baxter, Esq,, and Matthew Babington, Esq., Office of the Solicitor, U.S.
·.Department of Labor, Arlington, Virginia, on behalf of the Secretary;
Tony Oppegard, Esq., Lexington, Kentucky, and Wes Addington, Esq., Appalachian
Citizens Law Center, Whitesburg, Kentucky, on behalf of Mark Gray;
StevenM. Hodges, Esq., Penn, Stuart & Eskridge, Abingdon, Virginia, on behalf of
the Respondent.

Before:

Judge Melick

This case is before me pursuant to Section 105 (c)(2) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801: et seq., the "Act". North Fork Coal Corporation (North Fork) has
requested a hearing on the Secretary's application for temporary reinstatement of Mark Gray filed
August 13, 2009, pursuant to Commission Rule 45, 29 C:f.R. § 2700.45. Expedited hearings were
thereafter held in Wise, Virginia.
Commission Rule 45(d), 29 C.F.R. § 2700.45(d) limits the scope of these proceedings as
follows:
The scope of a hearing on ail application for temporary reinstatement is limited to a
determination as to whether the miner's complaint was :frivolously brought. The burden of
proof shall be upon the Secretary to establish that the complaint was not frivolously brought.
In support of his application for temporary reinstatement, the Secretary may limit his
presentation to the testimony of the complainant. The respondent shall have an opportunity
31FMSHRC1143

to cross-examine any witnesses called by the Secretary and may present testimony and
documentary evidence in support of its position that the complaint was frivolously brought.
The Commission has further held that it is "not the judge's duty ... to resolve ... conflict[s]
in testimony at this preliminary stage of proceedings." Secretary of Labor on behalf of Albu v.
Chicopee Coal_ Co., Inc., 21FMSHRC717, 719(July1999). At a temporaryreinstatementhearing
the judge must determine whether the evidence mustered by the miner to date establishes that his
complaint is non:frivolous, not whether there is sufficient evidence of discrimination to justify
permanent reinstatement. Jim Walter Resources Inc. 920 F.2d 738 at 744 (11th Cir. 1990). The
Circuit Court further stated that the "not frivolously brought" standard is indistinguishable from the
"reasonable cause to believe" standard under the whistleblower provisions of the Surfa,ce_
Transportation Assistance Act. In addition, it is equated with a criteria of "not insubstantial or
:frivolous" and "not clearly without merit." Jim Walter Resources Inc., 920 F.2d at 745.
In his report to the Department of Labor's Mine Safety and Health Administration (MSHA)
filed June 15, 2009, Mr. Gray stated as follows:
I feel I was terminated because I refused to roof bolt an entire cut-through of about 60 feet
plus in depth. I also made safety complaints. I want my job back plus all benefits due m~.
At hearings Mr. Gray testified that he has been a miner since 1981 and a roof bolter operator
for 16 or 17 years. He began working for North Fork in 2007 as a roof bolter. He worked with a
partner, Chris Sheeks, on a double headed Fletcher roof bolter. Sheeks would work one side of the
bolter while Gray operated the other. In a statement to MSHA investigator Guy Fain, Jr., on July
31, 2009, Gray explained that section foreman Tom Cornett had arrived at the mine only about two
months before his discharge on May 15, 2009. Before that, his foreman, lmown _as "Moondog", had
complained to Gray that the mine ventilation curtains were not being hung by Gray. According to
Gray, Moondog would tell Gray to shut down the roof bolter and hang curtains. After Cornett took
over as foreman, he "seemed to get mad" when Gray shut down the bolter to hang ventilation
curtains.
Gray explained that, while working on the roof bolter he would often find methane readings
in the .9% to 1% range and would therefore stop roof bolting and hang ventilation curtains,
presumably to reduce the methane concentrations. According to Gray, Foreman Cornett, when
observing this activity, expressed his dissatisfaction with Gray (presumably for holding up
production by not working on the roof bolter) by just walking off "like he was upset" and by no
longer talking to him (Tr. 28).
Gray also testified at hearings that sometime in April 2009, he was roof bolting in the 01
31 FMSHRC 1144

section where normal cuts were 30 feet deep. His foreman, Tom Cornett, then asked him to bolt a
deep cut of about 55 feet and he did. After bolting the deep cut he told Cornett that he would not
bolt another one like that. Gray testified that it was illegal to take such deep cuts as it was not
permitted in the roof control plan and that it was not safe. It had a "raggedy " top with mixed
sandstone and slate which would not bond together. "It would fall out on me". According to Gray,
three days later he was asked to take another deep cut of about 55 feet and he refused. Gray testified
that it was not safe to do so with the "raggedy" top and that it was in violation of the mine roof
control plan. According to Gray, after this exchange with Cornett their interactions changed and
Cornett "wouldn't talk to me like he used to, or anything".
·According to Gray, about a week later, on May 15, 2009, he was fired by second.shift'
supervisor, Robert Estevez. Estevez purportedly told him only that he had been "complained about"
and when asked who reported on him, Estevez replied only ''well it don't matter, you know, I'm
gonna believe my section foreman before I would you". Gray testified that Estevez gave him no
written notice nor any further explanation as to why he was discharged. Gray maintained that no one
in management had ever complained about his work and that he had never received any verbal or
written warnings.
Consideririg the testimony and statements ofMr. Gray it is apparent' that he engaged in•
protected activity when he told his foremen that he had to hang ventilation curtains and that he made
protected safety complaints and engaged in a protected work refusal in refusing to roof bolt what he·
perceived to have been a dangerous deep cut, one which was well in excess of the 40-foot cuts
permitted by the mine's roof control plan. A work refusal is protected under the Act under
conditions the miner reasonably and in good faith believes to be hazardous. See Miller v. FMSHRC,
687 F.2d 194, 195-196 (71h Cir. 1982). It is also apparent from the testimony of Mr. Gray that he
communicated his reasons for the work refusal to his foreman. Gray's discharge on May 15, 2009,
was the adverse action. fu addition there is evidence that the adverse action was motivated by the
protected activity. There is evidence that Gray's foreman had knowledge of the protected activity
and that he showed hostility towards the protected activity by demonstrating anger about that
activity. fu addition, these was close proximity in time- -only one week and two weeks- -between
the protected activity and the adverse action. Finally, there is evidence that Gray was given no
reason for his discharge. See Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508(November1981);
rev'd on other grounds sub. nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983).

While the Respondent presented a number of witnesses and witness statements to contradict
the testimony of Mr. Gray and which could at a trial on the merits reflect upon the credibility ofhis
testimony, as previously noted, it is not the judge's position to resolve conflicts in testimony at this
preliminary stage ofproceedings. At a temporary reinstatement proceeding the judge must determine
only "whether the evidence mustered" by the miner to date establishes that his complaint is nonfrivolous," not whether there is sufficient evidence of discrimination to justify permanent
31FMSHRC1145

·... ·

reinstatement. Jim Walter Resources Inc., 920 F.2d at 744.
Under the circumstances, and within this framework of law, I have no difficulty in
concluding that the complaint of Mark Gray in this case was not :frivolously brought. Whether the
Secretary can establish a prima facie case of discrimination and whether the Respondent could
affirmatively defend such a case are questions to be d~ferred for trial on the merits of any subsequent
discrimination case.

ORDER
·North Fork Coal Corporation is hereby ordered forthwith to temporarily reinstate
Complainant Mark Gray to the position he held as ofthe date prior to his discharge on May 15, 2009,
(or to an equivalent position) at the same rate of pay, with the same hours and with the same benefits
as he had as of the date prior to his discharge.

Distribution: (By Certified Mail and Facsimile or E-Mail)
Derek J. Baxter, Esq., and Matthew Babington, Esq.,Office of the Solicitor, U.S. Department of
Labor, 1100 Wilson Blvd., 22nd, Floor West, Arlington, VA 22209-2247
Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522
Wes Addington, Esq., Appalachian Citizens Law Center, 317 Main Street, Whitesburg, KY
41858
Stephen Hodges, Esq., Penn, Stuart, & Eskridge, 208 E. Main St., Drawer 2288, Abingdon, VA
24210
/lh

31FMSHRC1146

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 .NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON, DC 20001-2021
TELEPHONE: 202-434-9964 /FAX: 202-434-9949

September 9, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner
v.
CUMBERLAND COAL RESOURCES LP,
Respondent

CIVIL PENALTY PROCEEDING
Docket No. PENN 2008-189
A.C. No. 36-05018-136171
Cumberland Mine

DECISION
Appearances: Paul A. Marone, Esq., Office of the Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, for the Petitioner;
R. Henry Moore, Esq., Jackson Kelly, PLLC, Pittsburgh, Pennsylvania, for the
Respondent.
Before:

Judge Weisberger

Statement of the Case
This case is before me based upon a Petition for Assessment of a Civil Penalty filed by
the Secretary of Labor ("Secretary"), seeking the imposition of a civil penalty for the alleged
violation by Cumberland Coal Resources, LP ("Cumberland") of 30 C.F.R. § 75.380(d)(7)(iv),
at four separate locations. 1 Subsequent to notice, this case was heard in Pittsburgh, Pennsylvania.
Following the hearing, each party filed proposed findings of fact, a brief, and a reply brief.

I.

Stipulations

The parties stipulated as follows:

1.

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

1

The petition also seeks the imposition of penalties for the alleged violation of various
other standards. These citations were settled by the parties prior to the hearing (See III) (F),
infra)
31FMSHRC1147

2.

Operations of Cumberland were issued in this
proceeding are subject to the jurisdiction of the Mine
Act.

3.

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

4.

At all material times involved in this case, the
products of the subject Mine, or the operations or
products thereof, affected commerce, within the ·
meaning and scope of Section 4 of the Mine Act, 30_
u.s.c. § 804.

5.

The individual whose signature appears in Block 22
of the citations at issue in this proceeding was acting
in his official capacity as an authorized representative
of the Secretary of Labor when Citation Nos.
7019884, 7019885, 7019887 and 7019889 were
issued.

6.

Payment of the total proposed penalty of $39,161.00
for the subject Citations will not affect Cumberland's
ability to continue in business.

7.

The Citations Nos. 7019884, 7019885, 7019887 and
7019889 are authentic copies of the subject Citations,
with all appropriate modifications or abatements, if
any, and may be admitted into evidence for the
purpose of establishing their issuance.

8.

The Cumberland Mine (the "Mine") mined a total of
7,515,984 tons of coal in 2006.

9.

Affiliated companies to Cumberland produced
71,492,892 tons of coal in 2006.

10.

Cumberland was assessed 224 violations over 676
inspection days during the 15 months preceding the
issuance of the subject Citations.

11.

The Assessed Violation History Report reflecting the
31FMSHRC1148

history of violations of Cumberland is an authentic
copy and may be admitted as a business record of the
Mine Safety and Health Administration.
12.

True copies of the citations that are at issue in this
proceeding were served
on Cumberland as required by the Mine Act.

13.

Citation No. 7019884 was issued on December 6,
2007, for an alleged violation of 30 C.F.R. §
75.380(d)(7)(iv), and alleged as follows:
The lifeline provided in the #1 entry (belt), secondary
escapeway for the 5 Butt East Longwall (011-0)
working section was not maintained in a usable
condition for the entire length of the escapeway. The
lifeline was hung from the mine roof with J hooks and
could not be reached by a miner or pulled down in
most areas. The lifeline was also hung above cables
in several areas and could not be pulled down for use.

14.

Citation No. 7019885 was issued on December 7,
2007, for an alleged violation of 30 C.F.R. §
75.380(d)(7)(iv), and alleged as follows:

The lifeline provided in the #2 track entry, primary escapeway
for the 5 Butt East Longwall (011-0) working section was not
located in such a manner for miners to use effectively to
escape in the event of an emergency. The lifeline was hung
from the mine roof directly over the longwall mule train,
supply cars and mantrips for a distance of approximately 450
feet. Cables and hoses were also hung under the lifeline at
several locations.
15.

Citation No. 7019887 was issued on December 10,
2007, for an alleged violation of 30 C.F.R. §
75.380(d)(7)(iv), and alleged as follows:

The lifeline provided in the #2 track entry, primary escapeway
for the 8 Butt East (027-0) working section was not located in
such a manner for miners to use effectively to escape. The
lifeline was hung directly over top of 5 supply cars, rail car,
and a personnel carrier from the end of the track outby for a
31FMSHRC1149

distance of approximately 120 feet. There was also no means
provided to get on a lifeline where miners could enter the
escapeway at man doors. The lifeline was hung 8 feet from
the mine floor and could not be reached. Water line was hung
under the lifeline at the #3 5 crosscut. This is the third citation
issued for this condition this quarter.
16.

Citation No. 7019889 was issued on December 11,
2007 for an alleged violation of 30 C.F.R. §
75.380(d)(7)(iv) and alleged as follows:

The lifeline provided in· the #2 track entry the primary
escapeway for the 15 Butt East (029-0) working section was_
not installed in such a manner for miners to use effectively to
escape. The lifeline was hung from the mine roof directly
overtop of a rail truck, 8 supply cars and a mantrip. The
distance of approximately 300 feet from the end of the track.
17.

At all relevant times herein, the average width of the
belt and track entries in the Mine was sixteen (16)
feet.

18.

At all relevant times herein, the average height of the
mine roof in the belt and track entries in the Mine was
seven and one-half (7Yz) feet.

19.

The 5 Butt East section of the Mine on December 6,
2007 was a retreating longwall section.

20.

On December 6, 2007, portions of the lifeline in the
#1 belt entry secondary escapeway for the 5 Butt East
Longwall (011-0) working section of the Mine was
hung from the mine roof with "J" hooks and high
voltage hangers.

21.

The secondary escapeway for the 5 Butt East
Longwall is the belt entry in a set of three entries
which comprise the longwall headgate. Each entry is
isolated by stoppings from the other entries. The belt
entry contains a CO monitoring system which will
detect low levels of carbon monoxides and provide
alerts and alarms at 5 and 10 ppm of CO above
ambient respectively.

31FMSHRC1150

22.

The belt entry was ventilated with intake air that had
not ventilated the longwall face.

23.

On December 7, 2007, the lifeline in the #2 track
entry primary escapeway for the 5 Butt East Longwall
(011-0) working section of the Mine was hung from
the mine roof with Hilti fasteners. The fasteners are
plastic and the tip at the end of the fasteners bends
down when pressure is applied.

24.

The track entry of the 5 Butt East Longwall headgate
was isolated from the belt by stoppings.

25.

The track entry of the 5 Butt East Longwall headgate
contained intake air that had not ventilated the
working section and was traveling in an inby
direction.

26.

On December 10, 2007, the lifeline in the #2 track
entry primary escapeway for the 8 Butt East section of
the Mine was hung from the mine roof with Hilti
fasteners. The fasteners are plastic and the tip at the
end of the fasteners bends down when pressure is
applied.

27.

The 8 Butt East section was a three entry longwall
development section. Each entry was isolated by
stoppings from the other entries.

28.

The track entry of the 8 Butt East section was isolated
from the belt and No. 3 entries by stoppings. It
contained intake air that had not ventilated the
working section and was traveling in an inby
direction.

29.

On December 11, 2007, the lifeline in the #2 track
entry primary escapeway for the 15 Butt East section
of the Mine was hung from the mine roof with Hilti
fasteners. The fasteners are plastic and the tip at the
end of the fasteners bends down when pressure is
applied.

30.

The 15 Butt East section was a three entry longwall
development section. Each entry was isolated by
31FMSHRC1151

stoppings from the other entries:
31.

The track entry of the 15 Butt East section was
isolated from the belt and No. 3 entries by stoppings.
It contained intake air that had not ventilated the
working section and was traveling in an inby
direction.

32.

Requirements for lifelines in escapeways were first
established as part of an emergency temporary
standard issued on March 9, 2006, published at 71
Fed. Reg. 12252. A copy of the rule and preamble are
offered into evidence as Government Exhibit 20.
Cumberland does not object to the admission ofthisexhibit.

33.

The requirement for lifelines in escapeways became a
final rule on December 8, 2006, and was published at
71 Fed. Reg. 71430. A copy of the rule and preamble
are offered into evidence as Government Exhibit 21.
Cumberland does not object to the admission of this
exhibit.

34.

MSHA addressed policy issues with respect to
lifelines in "Training Questions for Emergency Mine
Evacuation, Emergency Standard Compliance Guide."
A copy of such questions and answers are offered into
evidence as Government Exhibit 22. Cumberland
does not object to the admission of this exhibit.

.'

35.

36.

~·

MSHA also addressed policy issues with respect to
lifelines in "Emergency Mine Evacuation, Emergency
Standard Compliance Guide, Volume 2," dated April
7, 2006. A copy of such questions and answers are
offered into evidence as Government Exhibit 23.
Cumberland does not object to the admission of this
exhibit.
MSHA also addressed policy issues with respect to
lifelines in "Emergency Mine Evacuation, Emergency
Standard Compliance Guide, Volume 3," dated June
16, 2006. A copy of such questions and answers are
offered into evidence as Government Exhibit 24.

31FMSHRC1152

Cumberland does not object to the admission of this
exhibit.

II.

37.

MSHA addressed policy issues with respect to
lifelines in "Emergency Mine Evacuation Final Rule
Questions and Answers, May 3, 2007." A copy of
such questions and answers are offered into evidence
as Government Exhibit 25. Cumberland does not
object to the admission of this exhibit.

38.

A diagram of a sample portion of the # 1 belt entry,
secondary escapeway of the 5 Butt East section, with
approximate distances, is offered into evidence as
demonstrative evidence as Joint Exhibit 1.

39.

A diagram of a sample portion of the# 2 track entry,
primary escapeway of the 5 Butt East section, with
approximate distances, is offered into evidence as
demonstrative evidence as Joint Exhibit 2.

40.

A diagram of a sample portion of the #·.2 track entry,
primary escapeway of the 8 Butt East section, with
approximate distances, is offered into evidence as
demonstrative evidence as Joint Exhibit 3.

41.

A diagram of a sample portion of the # 2 track entry,
primary escapeway of the 15 Butt East section, with
approximate distances, is offered into evidence as
demonstrative evidence as Joint Exhibit 4.

Findings of Fact and Discussion
A.

Interpretation of Section 75.380(d)(7)(iv)

Section 75.380(d)(7)(iv), provides as follows:
(d) Each escapeway shall be-

* *

*

(7) Provided with a continuous, durable directional linfeline
or equivalent device that shall be-

* * *

(iv) Located in such a manner for miners to use effectively to
escape;
31FMSHRC1153

Thus, the regulation requires, as pertinent, that an excapeway shall be (1)
provided with (2) a continuous durable directional lifeline or equivalent device
that shall be (a) located in such a manner for miners to use (b) effectively to
escape.
Established Commission case law regarding the interpretation of a regulatory term was
set forth in Phelps Dodge Tyrone, Inc, 30 FMSHRC 646, 651-52 (Aug. 2008) as follows:
Where the language of a regulatory provision is clear, the
terms ofthat provision must be enforced as they are written unless the
regulator clearly intended the words to have a different meaning or
unless such a meaning would lead to absurd results. Dyer v. United
States, 832 F.2d 1062, 1066 (9th Cir. 1987) (citations omitted); se~
also Utah Power &Light Co., 11FMSHRC1926, 1930 (Oct. 1989)
(citations omitted); Consolidation Coal Co., 15FMSHRC1555, 1557
(Aug. 1993). If, however, a standard is ambiguous, courts have
deferred to the Secretary's reasonable interpretation ofthe regulation.
See Energy West Mining Co. v. FMSHRC, 40 F.3d. 457, 463 (D.C.
Cir. 1994); accord Sec '.Y ofLabor v. Western Fuels-Utah, Inc., 900
F.2d 318, 321 (D.C. Cir. 1990) ("agency's interpretation... is 'of
controlling weight unless it is plainly erroneous or inconsistent with
the regulation"') (quoting Bowles v. Seminole Rock & Sand Co., 325
U.S. 410, 414 (1945) (other citations omitted)). 5
The "language of a regulation ... is the starting point for its
interpretation." Dyer, 832 F.2d at 1066 (citing Consumer Prod.
Safety Comm 'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)). In
the absence of a regulatory definition or technical usage of a word,
the Commission would normally apply the ordinary meaning of the
word. See Bluestone Coal Corp., 19 FMSHRC 1025, 1029 (June
1997); Peabody Coal Co., 18 FMSHRC 686, 690 (May 1996), aff'd,
111 F.3d 963 (D.C. Cir. 1997)(table).

5

The Secretary's interpretation of a regulation is reasonable
where it is "logically consistent with the language of the regulation []
and ... serves a permissible regulatory function." General Elec. Co.
v. EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995) (citation omitted). The
Commission's review, like the courts' review, involves an
examination of whether the Secretary's interpretation is reasonable.
Energy West, 40 F.3d at 463 (citing Secy of Labor on behalf of

31FMSHRC1154

Bushnell v. Cannelton Indus., Inc., 867 F.2d 1432, 1439 (D.C. Cir.
1989)); see also Consolidation Coal Co., 14 FMSHRC 956, 969
(June 1992) (examining whether Secretary's interpretation was
reasonable).
The terms in the standard at issue are not defined in the regulations. Thus, reliance is
placed on the common meaning of the operative term, "effectively". Webster's Third New
International Dictionary, (2002 ed.) ("Webster's") defines "[E]ffective", when used as an adverb,
as follows: "in an effective manner". "[E]ffectively" as an adjective, is defined as follows: "la:
capable of brining about an effect: productive ofresults."
In support of its position that the-Cited manner oflocation of the lifeline was in
conformity with the terms of75.380(d)(7)(iv), Cumberland argues that "the essence of the
standard is whether a lifeline would be available to aid a person to get out of the mirle in an
emergency." (Cumberland's Proposed Findings of Fact and Post-Hearing Brief, at 25)
("Cumberland's Brief'), and that the "determination of whether a violation exist depends upon
whether the lifeline is located in a fashion that would permit miners to use it during escape."
(Cumberland's Brief, at 26).
On the other hand, the Secretary argues, in essence, that the regulatory standard, which
requires that lifelines be located in a manner to use effectively to escape, is.not complied with if
the lifelines location would have substantially hindered or impeded miners from using the lifeline
quickly to escape in the event of an emergency. (See Secretary of Labor's Proposed Findings of
Fact, Conclusions of Law, and Memorandum in Support, at 22. ("Secretary's Brief). I find the
Secretary's argument to be reasonable, as it is supported by the regulatory scheme of the
requirement for lifelines, its regulatory history, the regulatory context, and the sentence structure
of the standard at issue.

The sentence structure of the regulatory phrase at issue, the location of lifelines "in such a
manner for miners to use effectively to escape;" Section 75.380 (d)(7)(iv), clearly indicates that
the word "effectively," between the phrase "to use" and the phrase "to escape" is meant to
modify the latter phrase. Thus, based on the common meaning of the term "effectively" as set
forth above, I find that the clear meaning of the standard at issue is that the location of a lifeline
shall be in such a manner for miners to use it to escape in "an effective manner."
Further, it is significant to note that the requirements for lifelines and the manner of their
location, Section 75,380(d)(7)(iv), are placed under Section 75.380, which sets forth the
regulatory mandate for the provision of escapeways and all their requirements, including
lifelines. Thus, any interpretation of the requirement relating to the manner of the location of
lifelines must be consistent with Section 75.380 as a whole, and must be in harmony with and not
in conflict with the objective of Section 75.380. (See American Coal Company, 29 FMSHRC
941, 948 (Dec. 2007); Lodestar Energy, Inc., 24 FMSHRC 689, 692 (July 2002) (quoting Emery
Mining Corp. v. Secretary ofLabor, 744 F.2d 1411, 1414 (10th Cir. 1984)).
31FMSHRC1155

fu American Coal Company, the Commission held that an operator violates Section
75 .3 80(b)( 1)' s requirement to "provide" escapeways when its miners are "substantially hindered
or impeded from accessing designated escapeways." 29 FMSHRC at 948 .. fu reaching this
conclusion, the Commission set forth the following regarding the purpose and legislative history
of escapeways which is equally applicable to the case as bar:
There is no disputing that escapeways are needed for miners
to quickly exit an underground mine and that impediments to a
designated escapewaymaypreventminers from being able to do so.
The legislative history of the escapeway standard state that the
purpose of requiring escapeways is 'to allow persons to escape
quickly to the surface in the event of an emergency.' S; Rep. No. 91411, at 83, Legis. Hist., at 209 (1975)." 29 FMSHRC at 948
"
(emphasis added.)

Based on the regulatory scheme and legislative history it is manifest that (1) the purpose
of escapeways is to allow miners to quickly escape, and (2) the requirements of lifelines are
included in the same standard that mandates the provision of escapeways. Thus, it is not logical
to accept an interpretation of Section 7 5 .3 80(d)(7)(iv) that would permit lifelines to be located in
a manner that would not similarly achieve the purpose of allowing miners to escape quickly.
Further, I take cognizance of the regulatory history of the requirements for lifelines.
Section 75.380(d)(7)(iv) was first promulgated in an Emergency Temporary Standard ("ETS") 71
Fed. Reg. 12252, (Mar. 9, 2006). The SUMMARY of the ETS recognized "the grave danger
that [miners] face when they evacuate a mine after an emergency occurs." Id. The summary sets
forth the following regarding the utility of the proper positioning and location oflifelines: "the
proper positioning of the lifeline regarding height, accessibility, and location as determined by
the mining conditions improves the ability of miners to effectively use lifelines to escape during
emergency situations." (Id. at 12261)(emphasis added) This language is reiterated in the
preamble to the final rule 7l Fed. Reg. 71430, 71437, Dec. 8, 2006, which promulgated Section
75.380(d)(7)(iv), with the same wording as was set forth in the ETS.
Accordingly, it is clear from the regulatory history of Section 75.380(d)(7)(iv), that the
manner of the location of lifeline for miners "to use effectively to escape" is intended to mean a
location which "improves the ability of miners to effectively use lifelines to escape during
emergency situations." As set forth above, in such circumstances the need is for miners to escape
quickly (see American Coal, 29 FMSHRC at 941 (Dec. 2007). I thus find, based on all the
above, that the clear wording of75.380(d)(7)(iv), requires that lifelines must be located in a
manner for miners to use "effectively" to escape, i.e., to achieve the results of a quick escape in
an emergency.

31FMSHRC1156

B.

The Citations at Issue
1.

Citation No. 7019884

On December 6, 2007, MSHA special investigator, Thomas H. Whitehair II inspected the
No. 1 belt entry, the secondary escapeway for the longwall section. He inspected the escapeway,
outby from the number 44 crosscut to the number 7 crosscut, a distance of approximately 6,650
feet. A lifeline, not under tension, was suspended from the roof. The height of the lifeline
throughout the escapeway from the number 44 crosscut to the number seven crosscut was
approximately seven feet eight inches. At more than two locations between the number 24
crosscut and the number seven crosscut, the lifeline was located above cables that ran
·perpendicular to the lifeline.
Also, portions of the lifeline were suspended by four-inch long hooks shaped like the
letter J ("J hooks").3 The J hooks were approximately 50 feet apart. The hooks, which were
attached to the roof at the top, were open-sided and curved upward at the bottom to hold the
lifeline. They were not pointed in the same direction throughout the escapeway.
Whitehair, upon observing these conditions, issued Citation No. 7019884 alleging a
. .
violation of Section 75.380(d)(7)(iv).
Cumberland argues, in essence, that the location of the lifeline cited by Whitaker, i.e.
suspended along portions of its length from "J" hooks and hung at some location above cables,
did not render the lifeline "ineffective."Cumberland's Brief at 27). In this connection,
Cumberland asserts that "[i]t was possible to remove the lifeline from the J-hooks by either
grasping or removing it with any number of available tools within the mine, such as a hammer, a
cap piece, or a wedge." (sic) (Cumberland's Brief at 27). This assertion appears to be based upon
testimony elicited from Whitehair on cross examination, wherein he conceded that miners carry
tools like hammers, and they "possibly" could reach up and flip the lifeline out of the J-hooks
with one of those tools. (Tr. 158). Also, Whitehair stated on cross examination that this
"probably'' could be done with a cap piece. (Tr. 158). He was asked whether the lifeline could be
flipped out of the other hooks once it was removed from "one of the hooks"and he testified that
"I expect you could.... " (Tr. 158). However, significantly he testified as follows regarding the ·
delay in escaping resulting from the need to flip the lifeline from the J hooks:
... I believe that anything that would delay the miners' escape
by trying to flotate and flip a lifeline with a stick when you can't see
what you are even doing to get on that lifeline, to me, it's not
adequate and it can't be safely used to escape the mine.
The lifeline should be readily available for a miner to be able
to get on that lifeline and quickly escape.
3

0ther portions were suspended by various hangers or clips.
31FMSHRC1157

* * *

... I think it would take considerable doing and a considerable
amount of time to do it.
I mean, you have to bear in mind that you are totally blind.
You can't see. You have no sense of direction, you know, and all you
are trying to do is blindly try to flip this out of a hanger, ....
(Tr. 158-59).
I accord considerable weight to this opinion, as it is based upon conditions attendant upon
a fire or explosion necessitating the use of an escapeway and a lifeline, i.e., smoke and limited
visibility.
-

Cumberland also relies on the testimony of Michael A. Konosky, its Senior Safety
Representative who was with Whitaker when the citations were issued. Konosky testified that if
he came upon a cable below the lifeline he would "[l]eave it go, walk under the hose and grab it
on the other side". (Tr. 205). He also opined that he could do that in smoke "[b ]ecause I know
where its at. It ain't like you got to hunt for it. It would be right ... in the middle of [a four foot
walkway between the rib and the structure]." (Id.). I find this testimony speculative regarding the
action of miners in an emergency mine evacuation in conditions of fire and smoke.
Further, I find that the need for miners escaping during an emergency to flip the lifeline·
from the overhead open J-hooks in order to access the lifeline would certainly impede their
escape in an emergency. fu the same fashion, the presence of cables below the lifeline in the
entry at several locations prevents access to the lifeline on a "continuous" basis. Thus, miners
would be delayed by losing contact with the lifeline at the point of its intersection with the cable,
and then having to relocate it by feel would further hinder their escape especially in conditions
where vision is obscured due to the presence of smoke.
As set forth above, (see, supra. Section ill (A)), the regulatory purpose of the
requirements oflifelines and escapeways is, to allow miners to quickly escape in an emergency.
Also, applying, in this context, the plain meaning of the terms of Section 75.380(d)(7), as
discussed above, I find that the suspension of the lifeline by numerous J-hooks, and its location
above cables would not enable miners to use it "effectively" to escape. I thus find that it has
been established that the cited location of the lifeline was violative of Section 75.380(d)(7)(iv).

2.

Citation No. 7019885

On December 7, 2007, Whitehair inspected the lifeline in the No. 2 track entry of the 5
Butt East longwall section from the last outby piece of track equipment in the entry at around the
No. 38 crosscut, inby to the inby end of the lifeline, a distance of approximately 750 to 850 feet.
This entry was the primary escapeway for the longwall section. The lifeline in the escapeway
was located over various track equipment for a distance of 450 feet. The lifeline was hung in the
31FMSHRC1158

middle of the entry, and was positioned over the track equipment 12 to 24 inches from its edge
on the walkway side. The various pieces of track equipment were all at least seven feet wide and
between three and five feet high. In addition, at various locations along the cited lifeline, cables
and waterlines, located approximately seven inches down from the roof, ran perpendicular and
under the lifeline at issue. Upon observing these conditions, Whitehair issued Citation No.
7019885, alleging a violation of Section 75.380(d)(7)(iv).
Cumberland argues that the lifeline in the cited area was capable of being used
effectively. Cumberland asserts, inter alia, that the lifeline could be accessed by standing on the
track equipment, track rail, or the ballast. Also, Cumberland argues that the lifeline could be
reached more easily at the inby end, and that there were pull-downs that hung down from the
lifeline at various locations in the track entry. 4
Whitehair expressed his concerns regarding the location of the lifeline above-track
equipment as follows:

Q

What effect if any did the equipment on the track have on the
miner's abil~ty to use the lifeline in that escapeway?
A Well, I had two concerns. My first concern was, if a miner or
miners were using the lifeline in order to escape, obviously they
would be in smoke so thick that they couldn't see or they wouldn't be
using the lifeline, and the miners would get on the lifeline at the end.
It would pull down like it's designed to do and they would be hastily
trying to escape.
At some point, the lead miner is going to run right into the end piece
of equipment that is in the middle of the entry or close to the middle
of the entry, and my belief was that he could very easily be injured,
he could fall, he could rupture his breathing bag on his SCSR, and
that was one concern.
My other concern is that ifthe lifeline was pulled down on top of this
equipment, that there were areas that the lifeline could snag, become
entangled and prevent the miners from using it.
Tr. 101

4

N ot much weight was accorded this assertion in light of the fact that the record does not
establish the existence of pull-downs along the lifeline in the cited area. The only evidence on
this point consist of the testimony ofKonosky, who was with the inspector during the inspection
of the cited area. Konosky indicated that he was not sure that the pull-downs were in place at the
time of the inspection.
31FMSHRC1159

This testimony was not impeached on cross-examination, and therefore I accept it.
Based on all the above, I conclude that the location of the lifeline above track equipment
for approximately 500 feet, and water lines and cables at some points, would tend to impede or
hinder the escape of miners in an emergency. As such, I find that the location of the lifeline
herein was not positioned in such a manner for miners to use "effectively to escape." see Section
75.380(d)(7)(iv). Thus, I find that the location of the lifeline in the entry at issue was not in
conformity with Section 75.380(d)(7)(iv).

3.

Citation No. 7019887

On December 10, 2007, Whitehair inspected the lifeline in the number two track entry,
the primary escapeway for the Eight Butt East section of the mine. He examined tl).e lifeline inby
from the No. 35 crosscut to the end. He indicated that the lifeline, which was hung from the
mine roof approximately seven and a half feet above the floor, was located over various track
equipment at a point approximately one to two feet in from the outer edge of the equipment, for a
distance of approximately a hundred and twenty feet. In addition, at the No. 35 cross cut, the
lifeline was located over waterline that ran perpendicular to the lifeline. He issued a citation
alleging a violation of 30 C.F.R. § 75.380(d)(7)(iv) .

a

.- The location of the lifeline at issue herein was essentially the same, i.e. over track
· · equipment and a waterline, as the location cited in Citation No. 719885. For the reasons set foiih
above, (See, supra Section III (B)(2)), I find the location of the lifeline herein similarly to be not
in conformity with Section 75.380(d)(7)(iv). Thus, I find that the location of the lifeline violated
Section 75.380(d)(7)(iv).

4.

Citation No. 7019889

On December 11, 2007, Whitehair inspected the lifeline in the No. 2 track entry, the
primary escapeway for the Fifteen Butt East section of the mine. He indicated that the lifeline,
which was hung approximately seven and a half feet above the floor, was located above track
equipment for approximately three hundred feet. The lifeline was located at a one to two feet in
from the outer edge of the equipment. He issued a citation alleging a violation of Section
75.380(d)(7)(iv).
Since the cited condition is essentially the same as that cited in Citation No. 7019885, I
find, for the reasons set forth above, supra Section III(B)(2), that the location of the lifeline
herein violated section 75.380(d)(7)(iv).

C.

Notice

In essence, it is the position of the Cumberland that, prior to the issuance of the citations
at bar, it had not been provided with any notice that the manner in which the cited lifelines were

31FMSHRC1160

located was not i:ri conformity with the requirement of Section 75.380(d)(7)(iv). In this
connection, Cumberland cites the facts that these conditions had never before been cited in any
inspection subsequent to the promulgation of Section 75.380(d)(7)(iv), that neither the regulatory
history regarding the promulgation of Section 75.380(d)(7)(iv), nor its placement within 30
C.F.R. Part 75 Subpart Dis instructive regarding what is to be considered an "effective" location
for lifelines, and that the Secretary had failed to provide any definitive guidance regarding the
subject of the placement oflifelines, or on how Section 75.380(d)(7)(iv) is to be applied.
In evaluating whether an operator has received notice of the regulations of a mandatory
standard the Commission has adopted a reasonably prudent person test. As set forth in Lodestar
Energy, Inc., 24 FMSHRC 689, 694 (July 2002):

The appropriate test for notice is "whether a reasonably prudent
person familiar with the mining industry and the protective purposes "
of the standard would have recognized the specific prohibition or
requirement of the standard." Ideal Cement Co., 12 FMSHRC 2409,
2416 (Nov. 1990).
In Phelps Dodge Tyrone, Inc., 30 FMSHRC 646, 656, (Aug. 2008), the Commission5
reiterated the following "reasonably prudent person" standards:

· [T]he alleged violative condition is appropriately measured against
the standard ofwhether a reasonably prudent person familiar with the
factual circumstances surrounding the allegedly hazardous condition,
including any facts peculiar to the mining industry, would recognize
a hazard warranting corrective action within the purview of the
applicable regulation.

Alabama By-Products Corp., 4 FMSHRC 2128, 2129 (Dec. 1982);
see also Asarco, Inc., 14 FMSHRC 941, 948 (June 1992). As the
Commission stated in Ideal Cement Co., 12 FMSHRC 2409, 2416
(Nov. 1990), "in interpreting and applying broadlyworded standards,
the appropriate test is not whether the operator had explicit prior
notice of a specific prohibition or requirement," but whether a
reasonably prudent person would have ascertained the specific
prohibition of the standard and concluded that a hazard existed. The
reasonably prudent person is based on an "objective standard." U.S.
Steel Corp., 5 FMSHRC 3, 5 (Jan. 1983).
5

Although two of the four Commissioners filed a separate opinion regarding one of the
matters at issue, all of the Commissioners were in agreement regarding, inter alia, the decision
on the issue of notice.
31FMSHRC1161

In Lodestar, 24 FMSHRC 694-95, the Commission identified various factors that are
relevant in deciding whether a party had notice of a regulation's requirements as follows:
In deciding whether a party had adequate notice of regulatory
requirements, a wide variety of factors are relevant, including the text
of a regulation, its placement in the overall regulatory scheme, its
regulatory history, the consistency of the agency's enforcement, and
whether MSHA has published notices informing the regulated
community with ascertainable certainty of its interpretation of the
standard in question. See Island Creek Coal Co., 20 FMSHRC 14,
24-25 (Jan. 1998); Morton Int'!, Inc., 18 FMSHRC 533, 539 (Apr.
1996); See also Diamond Roofing Co. v. Occupational Safety and
Health Review Comm., 528 F.2d 645, 649 (5th Cir. 1976); United
States v. Hoechst Celanese Corp., 128 F.3d216, 224 (4th Cir. 1997).

The parties stipulated that subsequent to the promulgation of Section 75.380(d)(7)(iv),
Cumberland had not been previously cited for a violation of the standard until December 6, 2007,
when Citation No. 7019884 was issued, even though the lifeline ha4 been located in the same
manner since the promulgation of the standard. Also~ I note that the Secretary has not provided
any express written guidance with regard to the specific manner of location of the lifeline to
satisfy the requirements set forth in Section 75.380(d)(7)(iv). However, as set forth above, (See
supra, Section III (A)), I take cognizance of the regulatory history of the mandate oflifelines, the
regulatory context of the standard at issue, its sentence structure, and the common meaning of its
terms. As discussed above, (See supra, Section III (A)), the combination of all these factors
clearly establishes that the manner of the location of lifelines is to achieve the result of enabling
miners to use the lifeline "effectively to escape," i.e., a quick escape in an emergency. Within
the above context, I find that a reasonably prudent person would have recognized that the manner
of the installation of the lifelines at issue was not in conformity with Section 75.380(d)(7)(iv).
As such, Cumberland's argument regarding lack of notice is rejected.

D.

Significant and Substantial

A "significant and substantial" violation is described in section 104(d)(l) of the Mine Act
as a violation "of such nature as could significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard." 30 U.S.C. § 814(d)(l). A violation is
properly designated significant and substantial "if based upon the particular facts surrounding
that violation, there exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature." Cement Division, National Gypsum Co.,
3 FMSHRC 822, 825 (Apr. 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984), the Commission explained its
interpretation of the term "significant and substantial" as follows:

31FMSHRC1162

fu order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum, the
Secretary of Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard--that is, a
measure of danger to safety--contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in an
injury; and (4) a reasonable likelihood that the injury in question will
be of a reasonably serious nature.
fu United States Steel Mining Col!lpany, Inc, 7 FMSHRC 1125, 1129 (Aug. 1985), the
· Commission stated further as follows:
··
We have explained further that the third element of the Mathies
formula "requires that the Secretary establish a reasonable likelihood
that the hazard contributed to will result in an event in which there is
an injury." U. S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984). We have emphasized that, in accordance with the language of
section 104(d)(l ), it is the contribution of a violation to the cause and
effect of a hazard that must be significant and substantial. U.S. Steel
Mining Co., Inc., 6 FMSHRC 1866, 1868 (Al_lgust 1984); U.S. Steel
Mining Co., Inc., 6 FMSHRC 1573, 1574~75 (July 1984).
(Emphasis added)
I find that the record establishes, as set forth above, (See, suvra, Section III(B), that
Cumberland violated a mandatory standard, i.e., Section 75.380(d)(7)(iv), in four locations, and
that these violations contributed to the hazard of miners not escaping quickly in an emergency
with attendant increased risk of injuries due to a delay in escape. At issue is the third element of
Mathies, which asks whether there is a reasonable likelihood that the hazard contributed to a
violation will result in an injury, i.e., a reasonable likelihood of an injury-producing event. (See,
U.S. Steel Mining Co., 7 FMSHRC, 1125). fu other words, the question iswhether there was a
reasonable likelihood that the hazard contributed to by the violative conditions of the location of
the lifelines, i.e., a delay in the evacuation in the event, of an emergency necessitating the use of
such lifelines resulting in injury, is dependent upon the existence of a reasonable likelihood of an
injury-producing event i.e., a fire or explosion. The Secretary has failed to adduce the existence
of facts that, in normal mining operations, would have tended to establish that there was a
reasonable likelihood of a fire or explosion. fudeed, Whitehair conceded on cross-examination
that a fire or explosion that would lead to reduced visibility to the point where use of a lineline
was necessary was not reasonably likely. 6
6

The Secretary asserts, in essence, that the third element of Mathies must be "viewed in
the context of continuing mining operations and of an emergency necessitating use of the
31FMSHRC1163

Therefore, for all the above reasons, I find that the third element set forth in Mathias, 6
FMSHRC 1 has not been established and thus that it has not been established that the violations
were significant and substantial.

E.

Penalty

I find, based on the parties' stipulations, that Cumberland produced over seven and a half
million tons of coal at the subject mine, and that affiliated companies produced over 71 million
tons of coal in 2006. The Secretary acknowledged that the fact that Cumberland was assessed for
224 violations during 676 inspection days in the fifteen months prior to the violation at issue was
evidence of a low history of violations. The parties stipulated that the proposed penalties will not
affect Cumberland's ability to continue in business.· I find that the violations were abated in a .
timely fashion, and as such Cumberland exhibited good faith.
As set forth above, (See, supra, Section III (D), I found that the violations were not
significant and substantial based on the lack of evidence that an injury-producing event was
reasonably likely to have occurred. As such, an injury of a reasonably serious nature was not
reasonably likely to have occurred. However, I note Whitehair's testimony that, in the event of a
fine or explosion, due to the manner in which the lifeline was located, miners would either be
delayed or prevented from using it to escape, which could result in a fatal injury due to carbon
monoxide poisoning. (See Tr. 158) This opinion was not impeached or contradicted. Thus,
within this context, I find that the level of gravity wa:s more than ·moderate.
I take cognizance of the fact that I rejected Cumberland's claim that it did not have any
prior notice that the manner in which the lifeline was hung constituted a violation of the standard
at issue. (See supra, Section III (C)) However, this finding was made based on an application of
the objective reasonable prudent person test which requires an analysis of the following factors:
"the text of a regulation, its placement in the overall regulatory scheme, its regulatory history, the
consistency of the agency's enforcement, and whether MSHA has published notices informing
escapeway, and by analogy, the lifeline." (Secretary's Brief at 31 ). The Secretary cites the
following cases in support of its position: Twentymile Coal Co., 29 FMSHRC 806 (Sept. 2007)
(Judge Manning), Harlan Cumberland Coal Co., 19 FMSHRC 911at916-17(May1997) (Judge
Barbour), and the dissenting opinion of two Commissioners in Manalapan Mining Co. Inc., 18
FMSHRC 1375, 1386 (Aug. 1996), that ("the only logical way to evaluate the gravity or
seriousness of a fire suppression violation is to consider the effect the violation would have in the
event for its use arises)." I note that this dissenting opinion by only two Commissioners is not of
any precedential value, and thus not binding. I choose not to follow it, as it is not in harmony
with the express terms of the requirement of the third element in Mathies, 6 FMSHRC 1, as set
forth in U.S. Steel 7 FMSHRC 1125. For the same reasons, I choose not to follow Twentymile
Coal Co. 29 FMSHRC 806 and Harlan Cumberland Coal Co., 19 FMSHRC 911, also, both
decisions were issued by fellow Commission judges, and are not binding.
31FMSHRC1164

the regulated community with ascertainable certainty of its interpretation of the standard in
question." Lodestar Energy, Inc., 24 FMSHRC 689, 694-95 (July 2002).
On the other hand, the level of an operator's negligence requires, inter alia, an analysis of
the following factors: the extent of the violative condition, the length of time it had existed, the
operator's efforts at abating the violative condition, whether the operator has been placed on
notice that greater efforts are necessary for compliance, the operator's knowledge of the existence
of the violation, and whether the condition is obvious or poses a high degree of danger. (See,
Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987)).
I note that the violative location of the cited lifelines was obvious, extensive, and had
e:x:isted for a considerable period of time. Also, I note that Cumberland did not adduce evidence
that it had not been aware of the manner of their location. However, I place considerable weight
on evidence mitigating the level of Cumberland's negligence. In this connection, I note that
although the mine had been inspected on various occasions subsequent to the promulgation of
Section 75.380(d)(7)(iv), Cumberland had not been cited for the manner in which the lifeline was
located until the first citation at issue herein was issued on December 6, 2007. Of most
significance is the fact that the Secretary had not provided Cumberland with any express
guidance setting forth specifically what manner of location of lifelines would be considered to be
not in confonnity with the cited standard.
Within this context, I find that the level of Cumberland's negligence in regard to all the
citations at issue to have been low. 7

7

The Secretary conceded that the level of Cumberland's negligence relating only to the
first citation issued, No. 7019884, was low because it had previously not been cited for a
violation of this standard which had been promulgated approximately a year before. The
Secretary argues that once this first violation was cited on December 6, in essence, "Cumberland
certainly knew or should have.Imown of the hazardous conditions of the other lifelines ... [and
that its] continued failure to tcik:e any action to present, correct, or limit exposure to these hazards
at least moderate negligence." (Secretary's Brief, at 34). However, the first citation, No.
7019884, cited a violation of Section 75.380(d)(7)(iv), based on the allegation that the lifeline
was hung from J-hooks and could not be reached by a miner or pulled down. Also, in several
areas the lifeline could not be pulled down as it was hung over cables. It might be inferred that
subsequent to the issuance of this citation other lifelines that extended over cables or waterlines
(which would be considered by the issuing inspector to be violative of Section 75.380(d)(7)(iv),
were hazardous as argued by the Secretary. However, such an inference would clearly not apply
to the location oflifelines over various track equipment as alleged in Citations 7019885,
7019887 and 7019889, conditions that had never before been cited, and for which it had not
received any specific guidance from the Secretary.

31FMSHRC1165

Considering all of the above factors set forth in Section 1 lO(i) of the Mine Act, and
placing considerable weight on the low level of the operator's negligence, I find a penalty of
$3,000 is appropriate for each of the violations found herein.

F.

Citation Nos. 7025493, 7025495, 7025975, 7025976, 7025980, 7019883,
7025981 and 7025182

On April 24, 2009, the Secretary filed a motion to approve a partial settlement
relating to the above docket numbers. The motion seeks the approval of a settlement
agreement between the parties, which proposes that the total penalty for these citations be
reduced to $2,935.

·I have considered the representation of the parties and find. that the settlement is a fair
resolution and consistent with the Mine Act. I approve the settlement and grant the motion.

ORDER
It is Ordered that, within thirty days of this Decision, Cumberland pay a total civil
penalty of $14,935.00.

/(}.

~

~ger

Administrative Law Judge
202-434-9940
Distribution:
Paul A. Marone, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center,
Suite 630E, 170 S. Independence Mall West, Philadelphia, PA 19106-3306
R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty
Avenue, Pittsburgh, PA 15222

/lp

31FMSHRC1166

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

September 17, 2009
TEMPORARY REINSTATEMENT
PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
on behalf of MARK GRAY,
Complainant

Docket No. KENT 2009-1429-D
BARB CD 2009-13

v.
NORTH FORK COAL CORPORATION,
Respondent

Mine ID 15-18340
No.4Mine

AGREED SUPPLEMENTAL ORDER GRANTING ECONOMIC TEMPORARY
REINSTATEMENT

This matter is before me upon an Application for Temporary Reinstatement, filed by the
Secretary on August 13, 2009 ("tht:: Application"), pursuant to section 105(c)(2) ofthe Fe.deral Mine
Safety and Health Act of 1977, 30 U.S.C. § 815 (c)(2), for an order requiring North Fork Coal
Corporation (''North Fork") to temporarily reinstate Mark Gray to his former position as dayshift
bolter at its No. 4 Mine, or to a similar position at the same rate of pay.
North Fork requested a hearing on the Application which I conducted in Wise, Virginia on
September 2, 2009. By my Decision and Order dated September 8, 2009, I granted temporary
reinstatement.
Thereafter, the parties negotiated the terms of economic temporary reinstatement, the terms
of which have been agreed upon by the Secretary, North Fork and the miner, Mark Gray and are as
follows:
1.

North Fork shall economically reinstate Mark Gray, rather than place him back to
work. This economic reinstatement begins on September 14, 2009. North Fork shall
pay Gray the amount of $1,179.70 per week on the scheduled payday, less all
appropriate and necessary deductions. This amount is based on Gray's hourly wage
rate of $23.50 per hour, and the average of 40 hours ofregular time and 6.8 hours of
overtime that he worked per week during the three months prior to his discharge.
North Fork shall mail the paycheck to Gray's home address at P.O. Box 465, Grays
Knob, Kentucky 40829, on the same day that paychecks are issued to North Fork's
other miners.

2.

As a part of this economic temporary reinstatement, North Fork shall provide health
31FMSHRC1167

insurance to Mark Gray as an employee. North Fork also shall provide any and all
other employment benefits, including production and safety bonuses, that he would
receive or be entitled to as a North-Fork employee.

3.

Economic temporary reinstatement of Mark Gray shall continue pending final order
on any discrimination complaint which may hereafter be filed, unless otherwise
ordered upon motion of a party.

WHEREFORE, it is ORDERED that North Fork ECONOMICALLY REINSTATE Mark
Gray in accordance with this order.

__.,---··

Gary Melick
Administrative Law Judge
(202) 434-9977

Distribution: (By Certified Mail and Facsimile or E-Mail)
Derek J. Baxter, Esq., and Matthew Babington, Esq.,Office of the Solicitor, U.S. Department of
Labor, 1100 Wilson Blvd., 22nd, Floor West, Arlington, VA 22209-2247
Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522
Wes Addington, Esq.,· Appalachian Citizens Law Center, 31 7 Main Street, Whitesburg, KY
41858
Stephen Hodges, Esq., Penn, Stuart, & Eskridge, 208 E. Main St., Drawer 2288, Abingdon, VA
24210
/lh

31FMSHRC1168

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

September 19, 2008
CIVIL PENALTY PROCEEDING

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

Docket No. CENT 2007-153-M
A.C. No. 39-01401-109634

v.
Cedar Rapids Plant
WEATHERTON CONTRACTING CO., INC.,
Respondent
DECISION BASED ON THE RECORD
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 A~t of 1977, 30 U.S.C. § 801 et seq. (the Act).
Weatherton Contracting was issued two citations on September 7, 2006, by MSHA fuspector
Robert Lindeman under section 104(a) of the Act alleging violations of section 30 C.F.R. §
56.5001(a)/.5005. Citation No. 7939675 alleges that the front-end loader operator was exposed
to a shift-weighted average of2.63 mg/m3 ofrespirable silica dust. Citation No. 7939676 alleges
that the crusher operator was exposed to a shift-weighted average of3.48 mg/m3 ofrespirable
silica dust. The exposures in both citations exceeded the threshold limit value. Feasible
engineering controls were not in use to control employee dust exposure and there was no
respiratory protection program in place. Water sprays were not in use at the plant. fuspector
Lindeman designated each citation as significant and substantial ("S&S") and the Secretary
proposed a penalty of$124.00 for each citation.
During a conference call, the safety director for Weatherton Contracting stated that the
company does not dispute that the miners were overexposed to silica dust. It contends, however,
that the violations should not have been designated as S&S. Weatherton has not received any
other citations alleging an overexposure to silica dust. The parties asked me to decide this case
based on the existing record and on their arguments. I agreed to this procedure and the
previously scheduled hearing was canceled.
The Secretary states that W eatherton Contracting has four portable crushing operations in
South Dakota. Apparently complaints have been filed with the Environmental Protection
Agency and the U.S. Forest Service by citizens in the area about the amount of dust produced by
the operations. The Secretary states that Weatherton Contracting was not using water sprays to
control dust at its crusher because the clay soil turns to slick mud with the application of water.

31FMSHRC1169

The Secretary agrees that, for this reason, it is difficult for W eatherton Contracting to control
dust at its plants.
The Secretary argues that Inspector Lindeman would testify that the sampling analysis
indicated a 17% silica dust content. Both the loader and crusher operators were substantially
overexposed to silica dust. During discovery the Secretary learned that the masks worn by
employees at W eatherton Contracting are NIOSH approved but there was no indication that the
employees had been fit tested. Inspector Lindeman would testify that fit tests are essential to
ensure that the mask is working properly. He would also testify that the loader operator was not
wearing any sort of mask and that the door for the loader was open during part of the shift.
The Secretary argues that the inspector's S&S determinations should be affirmed. She
maintains that the citations should be presumed to be S&S based on the logic of the
Commission's decision in Consolidation Coal Co., 8 FMSHRC 890 (June 1986). ~Because the
miners were not wearing fit-tested personal protective equipment, it can be assumed that they
were breathing air that contained more than the permissible level of quartz dust. She also argues
that the principles I set forth in Spencer Quarries, 28 FMSHRC 1005 (Nov. 2006) are applicable
to the facts of this case. In addition, W eatherton Contracting did not have a program in place to
monitor the exposure levels of its employees and, as a consequence, it would not have any way to
determine if miners were being over-exposed to silica du~t. This fact, "in combination with-the
.. ,:µ,on-use of a dust mask by the front-end loader opf?rator and· the failure to fit test employees,
establishes that the overexposed miriers suffered a discrete health hazard and that ...· there "'as a
reasonable likelihood that the hazard contributed to by the violation would result in an illness of
a reasonably serious nature." (S. Submission at 3).
\'

'

I '

\

,

•

. ~

•

'

•

;

.

.

'

W eatherton did not submit a formal written argument but, during the conference call,
stated that the Secretary failed to establish that the violations were S&S. It asks that I modify the
citations to delete the S&S determinations.
I find that the Secretary established that the violations were S&S. Because the
Commission's Consolidation Coal decision concerned the rather unique situation of underground
coal mines, I decline to apply the S&S presumption to this case. 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). In the case of a citation alleging a violation of a health standard, the Secretary must
establish: (1) the underlying violation of the health standard; (2) a discrete health hazard, a
measure of danger to health, contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an illness; and (4) a reasonable likelihood that the illness in
31FMSHRC1170

question will be of a reasonably serious nature. The Secretary is not required to show that it is
more probable than not that an illness will result from the violation. U.S. Steel Mining Co., 18
FMSHRC 862, 865 (June 1996).
The parties do not dispute that the violations occurred. I find that the record establishes
that there was a reasonable likelihood that the hazard contributed to by the violation would result
in an illness of a reasonably serious nature. The equipment operators were significantly
overexposed to silica dust. Neither miner was wearing a fit-tested respirator. Weatherton
Contracting did not have in place a program for monitoring the silica dust exposure levels of its
employees so it had no way of knoWing whether they were being overexposed. Taking into
consideration continuing mining operations, I find that the violations were S&S and serious.
Section 1 lO(i) of the Mine Act sets out six criteria to be considered in deterrgining
appropriate civil penalties. Weatherton Contracting's plant had a history of one violation in the
two years prior to September 7, 2006. W eatherton Contracting is a small, intermittent operator
that employed about 10 people and worked about 13,000 hours in 2006. The violations were
abated in good faith. W eatherton Contracting did not establish that the penalties assessed will
have an adverse effect on its ability to continue in business. The violations were the result of the
company's moderate negligence. Based on the penalty criteria, I fmd that the Secretary's
·proposed penalty of $124.00 for each citation is appropriate.
··.··
ORDER

Accordingly, Citation Nos. 7939675 and 7939676 are AFFIRMED and Weatherton
Contracting Co., Inc., is ORDERED TO PAY the Secretary of Labor the sum of$248.00 within
40 days of the date of this decision. Payment should be sent to: U.S. Department of Labor, Mine
Safety and Health Administration, P.O. Box 790390, St. Louis, MO 63179-0390.

'

Distribution:

Richard W. Manning
Administrative Law Judge

Lydia Tzagoloff, Esq, Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
1600, Denver, CO 80202 (Certified Mail)
Anna McLaughlin, Safety Director, Weatherton Contracting Co., P.O. Box 151, Beresford, SD
57004-0151 (Certified Mail)

RWM
31FMSHRC1-171

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

September 24, 2009

NICHOLS CONSTRUCTION, INC.,
Contestant

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

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

CONTEST PROCEEDING
Docket No. VA 2007-17-R
Citation No. 7316750;11/l 7/2006

Buchanan Mine
Mine ID 44-04856 PZF

CNIL PENALTY PROCEEDING
Docket No. VA 2007-24
A.C. No. 44-04856-106332 PZF

v.
NICHOLS CONSTRUCTION, INC.,
Respondent

Buchanan Mine

DECISION
Before:

Judge Melick

This case is before me upon a Petition for Civil Penalty filed by the Secretary of Labor,
Mine Safety and Health Administration ("Secretary'') pursuant to Section 105(d) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. ("Mine Act"), charging Respondent
Nichols Construction, Inc. (''Nichols") with one violation of30 C.F.R. § 50.10 and proposing a
civil penalty of $60.00. The general issue before me is whether Nichols is an "operator" within
the meaning of 30 C.F.R. § 50.2(c) and, if so, whether it violated 30 C.F.R. § 50.10 by failing to
report the accident at issue within the specified time period. If a violation is found it will then be
necessary to determine an appropriate civil penalty under the criteria set forth in Section 11 O(i) of
the Mine Act.
On May 4, 2006, Richard Cox, an employee of Nichols, was fatally electrocuted while
clearing brush along a right-of-way beneath an electrical line at the Buchanan Mine No. 1
Preparation Plant, operated by Consolidation Coal Company ("Consol"). On November 17,
31FMSHRC1172

2006, Citation No. 7316750 was issued to Nichols for a violation of30 C.F.R. § 50.10. 1
A hearing was originally scheduled for August 13, 2009. However, on July 14, 2009, the
parties submitted a Joint Motion to Cancel Hearing and to Submit Case on Stipulated Record and
Briefs, which was granted July 17. The parties each filed their initial briefs on August 13, 2009,
and their reply briefs on August 20.
The parties stipulated to the following facts:
1.

2.
3.

4.

5.

6.

7.

8.

9.

Nichols Construction, fuc. (hereinafter ''Nichols") was a construction contractor
performing electrical work for CONSOL Energy, Inc. at the Buchanan Mine site and
property, which is a "coal or other mine["] as defined in section 102(h)(l) of the Federal
Mine Safety and Health Act, 30 U.S.C. § 802(h)(l).
Nichols was performing service or construction duties at the Buchanan Mine site and
property at which the citation at issue in this proceeding was issued.
MSHA Inspector Delmer Hess was acting in his official capacity and as an authorized
representative of the Secretary of Labor when the citation involved in this proceeding was
issued.
A true copy of the citation that is at issue in this proceeding, along with all continuation
forms and modifications, was served on Nichols Construction, Inc. or its agent as
required by the Mine Act.
An electrocution accident occurred at approximately 1:00 p.m., May 4, 2006, resulting in
fatal injuries to Richard Cox, an employee of Nichols Construction, fuc., while
performing work at the Buchanan Mine site and property.
Nichols Construction, and Mr. Cox specifically, were performing brush clearing
operations along the right of way beneath an electrical line operated by Consol. While
clearing brush Mr. Cox came in contact with a guy wire for a pole that was not properly
secured, contacted the energeized wire on the pole, and was subjected to an electrical
shock.
The accident site was located in the proximity of pole-mounted transformers providing
power to an electric motor driven pump utilized to deliver water to the Consolidation
Coal Company Buchanan Mine #1 Preparation Plant. The pump was located in a pumphouse adjacent to the pole on which the transformers were mounted. This area was a
remote and normally unoccupied location.
Shortly before 1 :00 p.m. Jason Jackson, a foreman for Nichols, made a call on a mobile
radio to Nichols' Vansant, Virginia office to report the accident and request an
ambulance.
Christopher Ratliff, a Foreman employed by Nichols, received the mobile radio call from
Jason Jackson. Ratliff telephoned "911" emergency assistance at 12:55:55 p.m.

1

An identical citation was issued to Consol for the same accident involved in the case at
bar. See Consolidation Coal Co., VA 2007-38. That citation was the subject of a previously
approved settlement agreement.
31FMSHRC1173

10.

11.

12.

13.
14.

15.

16.
17.
18.
19.

20.
21.
22.
23.
24.
25.
26.
27.

requesting an ambulance, as noted in the Buchanan Sheriffs Office Call Report.
Thereafter, Ratliff responded to the accident site.
At approximately 1 :30 p.m., Christopher Ratliff attempted to contact Mike Hom, Chief
Engineer for Consolidation Coal Company's Buchanan Operation. Hom did not answer
the telephone and Ratliff left a message on the answering machine regarding the accident.
Christopher Ratliff did not speak with Mike Hom on May 4, 2006.
At approximately 1 :55 p.m., Christopher Ratliff arrived at Clinch Valley Medical Center
(CVMC), Richlands, Virginia, in the ambulance with the victim. Mr. Ratliff was
performing CPR on the victim while he was transported.
At approximately 2:00 p.m., Christopher Ratliff contacted an electrician employed by
Consol Energy who was working at the Consol Energy Buchanan Mine #1 Preparation
Plant.
At 2:15 p.m., S. Shoursky, M.D. pronounced the death of the victim at the CVMC
Emergency Room, as stated in the Report of fuvestigation by Medical Examiner.
At 3 :30 p.m., Christopher Ratliff contacted Kim Noah, Safety Supervisor for
Consolidation Coal Company. Ratliff informed him of the accident, and requested the
numbers for the state and federal mine safety offices. Mr. Noah informed Mr. Ratliff he
(Noah) would make the notifications.
Kim Noah contacted the MSHA Vansant Virginia Field Office by telephone at 3:45 p.m.
and reported the accident to Linda Coleman, MSHA Health Department secretary,
Vansant field office, Vansant (Oakwood), Virginia.
Linda Coleman advised Kim Noah to contact Richard Salyers', Assistant District
Manager, MSHA, in Norton, Virginia.
Shortly after his conversation with Linda Coleman, Kim Noah contacted Richard Salyers,
informing him of the accident.
Neither Christopher Ratliff, Foreman, nor anyone else employed by Nichols, reported the
fatal accident directly to MSHA.
Joint Exhibit 1 is an authentic copy of Citation No. 7316750, with the abatement, and
may be admitted into evidence for the purpose of establishing its issuance and not for the
purpose of establishing the accuracy of any statements asserted therein.
The gravity of this violation is low because it was not reasonably likely to result in a
reasonably serious injury or illness, and it was not "significant and substantial."
The failure to observe the standard was due to a moderate degree of negligence on the
part of the operator.
The violation involved in this matter was abated in good faith.
The sixty dollar ($60.00) penalty proposed for this violation will not affect the ability of
Nichols to remain in business.
Nichols is a small operator.
No citations or orders were issued to Nichols in the 24 month period preceding the
accident.
This violation meets the criteria for a single penalty assessment of $60.00 pursuant to 30
C.F.R. § 100.4.
Based on the factors set forth at Section 1 lO(i) of the Act, 30 U.S.C. § 820(i), including

31FMSHRC1174

the degrees of negligence and gravity, the size of the operator, the operator's history of
violations, the operator's good faith in attempting to abate the violation, and the effect on
the operator's ability to continue in business, ifthe citation is upheld the proposed penalty
of $60.00 is reasonable and will serve the purpose of the Act in the event that a violation
is found to have occurred.
(Joint Proposed Stipulated Record).
Nichols argues in its briefs that it is not an "operator" within the definition contained in
Section 50.2(c)(1) and therefore is not subject to the reporting requirements of Section 50.10.
Nichols bases this argument on the fact that Section 50.2(c)(l)'s definition of "operator" is a
narrow definition that only applies to an entity that "operates, controls, or supervises a coal
mine," and Nichols contends that it had no degree of ownership or control over mining
operations at the Buchanan Mine.
·
Nichols also argues that, assuming arguendo that it is considered to be an "operator" and
thus subject to Section 50.10, it nonetheless met its reporting obligations under the regulation by
conferring with Consol shortly after the accident. Nichols argues that the record demonstrates
that its foreman, Christopher Ratliff ("Ratliff') attempted to contact Consol several times
immediately following the accident for the purposes of conferring and coordinating their
notification to MSHA. Once Ratliff first spoke with a Consol employee, Kim Noah,·Safety
Supervisor, Mr. Noah notified MSHA within 15 minutes of speaking with Ratliff. That, argues
Nichols, meets the notification requirement of Section 50.10.
The Secretary argues in her briefs that Nichols is an "operator" as defined in Section
50.2(c)(l) because that definition of"operator"is identical to and incorporates the definition of
"operator" contained in the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801
("Coal Act"), which includes construction contractors like Nichols. The Secretary cites to the
Fourth Circuit's decision in Bituminous Coal Operators' Association, Inc. v. Secretary of the
Interior, 547 F.2d 240 (4th Cir. 1977) to support the proposition that construction contractors,
like Nichols, can be considered "operators" within the meaning of the Coal Act ifit supervises a
specific area of a coal mine. It is the Secretary's contention that Nichols was supervising and
exercising control over the area where the accident occurred.
Furthermore, the Secretary argues, Nichols did not meet its reporting requirement as
required by Section 50.10. It is the Secretary's position that Nichols had many opp01tunities to
contact MSHA, and Nichols' delay in notification was not justified by its attempt to coordinate
its compliance efforts with Consol. Furthermore, the Secretary argues, Nichols did not have to
confer with Consol because Ratliff knew himself that it was a reportable accident. Therefore, the
Secretary maintains that a $60.00 civil penalty should be imposed.
30 C.F.R. § 50.10 states that "[t]he operator shall immediately contact MSHA at once
without delay and within 15 minutes at the toll-free number, 1-800-746-1553, once the operator
31FMSHRC1175

knows or should know that an accident has occurred." Therefore, the threshold inquiry is
whether Nichols qualifies as an "operator" within the definition contained in Section 50.2(c)(l)
and thus subject to the requirements of Section 50.10. The Part 50 definition of "operator is, "(1)
Any owner, lessee, or other person who operates, controls, or supervises a coal mine." 30 C.F.R.
§ 50.2(c)(l). There is no dispute that this is the definition to be applied. 2
It is a well-established rule of construction that when the language of a regulatory
provision is clear, the terms of that provision must be enforced as written unless the regulator
clearly intended the words to have a different meaning or unless such a meaning would lead to
absurd results. See Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir. 1987); see also Utah
Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989); Consolidation Coal Co., 15 FMSHRC
1555, 1557 (Aug. 1993).

Here, there is no evidence of contrary intent on the part of the regulator, and enforcing the
language as written would not lead to absurd results. Therefore, looking to the plain language of
the Section 50.2(c)(l), it appears that Nichols meets the definition of an "operator" because it
was exercising supervision and control over the work being done in this remote area of the mine
site. From the stipulated record, I find that Nichols was exercising supervision and control over
the work being performed at that particular area of the mine. Consol had no representative or
foreman supervising the work and, to the contrary, Nichols had its own foreman present to
supervise. Therefore, I find'that Nichols was an "operator" within the meaning of Part 50 ...
Having determined that Nichols is an "operator" as enumerated in the Part 50 definition,
the next question is whether Nichols violated the reporting requirements imposed by Section
50.10. As stated above, Section 50.10 requires mine operators to "immediately contact MSHA at
once without delay and within 15 minutes ... once the operator knows or should know that an
accident has occurred." (Emphasis added.)
An "accident" is defined as, "(1) A death of an individual at a mine; (2) An injury to an
individual at a mine which has a reasonable potential to cause death." 30 C.F.R. § 50.2(h)(l),
(2). With the benefit of hindsight, it is clear that this was an "accident" within the regulatory
definition because the incident resulted in a death. Therefore, at 2: 15pm on the day of the
incident, when Mr. Cox was pronounced dead, the incident was clearly a reportable accident
within the meaning of Section 50.2(h)(l).
However, a reportable accident could also stem from "[a]n injury to an individual at a
mine which has a reasonable potential to cause death." 30 C.F.R. § 50.2(h)(2). What exactly
constitutes an injury with a "reasonable potential to cause death" is not defined in the regulations,

2

Nichols also meets the statutory definition of "operator" contained in the Mine Act i.e.
"any owner, lessee, or other person who operates, controls, or supervises a coal or other mine or
any independent contractor performing services or construction at such mine." 30 U.S.C. §
802(d).
31FMSHRC1176

but the Commission has provided some guidance on this issue. The Commission has held that a
miners' near electrocution, combined with an 18-foot fall in which he hit his head on a hard
surface constituted a per se reasonable potential to cause death. Cougar Coal Co., 25 FMSHRC
513, 520 (Sept. 2003). Also, the Commission has held that the very fact that CPR is necessary is
sufficient to establish that a particular injury had a reasonable potential to result in death. Id.
There is evidence in the stipulated record that Ratliff was performing cardio-pulmonary
resuscitation (CPR) on Mr. Cox in the ambulance on their way to the hospital at between 12:55
p.m and 1:55 p.m. Under Cougar Coal, 25 FMSHRC at 520, the fact that CPR was performed is
per se evidence that the injury had a reasonable potential to result in death. Therefore, it is clear
that this was a reportable accident at the time that Ratliff was performing CPR on Mr. Cox.
· The regulation requires that an accident be reported "immediately ... withou! delay."
However, there is no definition of"immediately" contained within the regulations. The
Commission has interpreted the immediacy requirement of Section 50.10 to afford the operator
"a reasonable opportunity for investigation into an event prior to reporting to MSHA.... [This
investigation] must be carried out by operators in good faith without delay and in light of the
regulation's command of prompt, vigorous actions." Consolidation Coal Co., 11 FMSHRC
1935, 1938 (Oct. 1989). Furthermore, the immediateness of an operator's notification shall be
· evaluated "on a .case-by-case basis, taking into account the nature of the accident and all relevant .
variables.affecting reaction and reporting." Id.

In the case at bar, the evidence demonstrates that MSHA was not notified of the accident
until 3:45 p.m. This was almost three hours after the incident took place, and approximately two
hours from the time that this incident could first reasonably be considered an "accident" within
the meaning of Section 50.2(h)(2).

For the aforementioned reasons, I find that Nichols violated Section 50.10. The parties
have stipulated that the $60.00 proposed civil penalty is reasonable under the "Section 11 O(i)"
criteria and I agree. Therefore; Nichols is ORDERED to pay the proposed $60.00 civil penalty
within 40 days of this Order.

Gary Melick
Arlministrative T.a

(202) 434-9977

31FMSHRC1177

Distribution: (Certified Mail)
Ronald Gurkha, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22nd
Floor West, Arlington, VA 22209-2247
Thomas Benjamin Huggett, Esq., Morgan, Lewis & Bockius, LLP, 1701 Market Street,
Philadelphia, PA 19103
/eb

31FMSHRC1178

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF THE ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON, DC 20001-2021
TELEPHONE: 202-434-9958 / FAX: 202-434-9949

September 30, 2009

JAYSON TURNER,

DISCRIMINATION PROCEEDING
Complainant
Docket No. WEST 2006-568-DM

v.
NATIONAL CEMENT COMPANY
OF CALIFORNIA,
Respondent

Lebec Cement Plant
Mine ID 04-00213

DECISION
Appearances: Jayson Turner, Complainant, Pine Mountain Club, California, prose;
Francina M;-Segbefia, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C.,
Washington, DC, for Respondent.
Judge Bulluck

Before:

This proceeding is before me on a Complaint of Discrimination filed by Jayson Turner
against National Cement Company of California, Incorporated ("National Cement"or "NCC"),
under section 105(c) of the Federal Mine Safety and Health Act of 1977 ("the Act"), 30 U.S.C.
§ 815(c). The complaint alleges unlawful discharge from employment in retaliation for having
made safety complaints to National Cement.
Turner filed a Discrimination Complaint with the Mine Safety and Health Administration
("MSHA") pursuant to section 105(c)(2) of the Act, 30 U.S.C. § 815(c)(2), on July 25, 2006.
Ex. C-9 . 1 In a letter to Tumer~dated August 18, 2006, MSHA notified him that, based on its
investigation of the allegations contained in the Complaint, it had concluded that a violation of
section 105(c) had not occurred. Turner, prose, initiated this instant proceeding before the
Commission on August 31, 2006, under section 105(c)(3) of the Act, 30 U.S.C. § 815(c)(3). 2

1

Section 105(c)(2) provides, in pertinent part: "Any miner ... who believes that he has
been discharged, interfered with, or otherwise discriminated against ... by any person in
violation of this subsection may, within 60 days after such violation occurs, file a complaint with
the Secretary alleging such discrimination."
2

Section 105(c)(3) provides, in pertinent part: "If the Secretary, upon investigation,
determines that the provisions of this subsection have not been violated, the complainant shall
have the right, within 30 days of notice of the Secretary's determination, to file an action in his
31FMSHRC1179

A hearing was held in Pasadena, California. The parties presented testimony and
documentary evidence, and filed post-hearing briefs. For the reasons set forth below, I conclude
that, although Turner engaged in activity protected by the Act, he has failed to prove that his
protected activity served as the basis for his termination by National Cement; assuming,
arguendo, that it did, National Cement discharged him for reasons that are wholly unrelated to
his protected activity.

I.

Factual Background

National Cement operates the Lebec Cement Plant in Kem County, California. Jayson
Turner worked at the Lebec Plant as an electrician for 10 years and 3 months. Tr. 36. During the
period relevant to these proceedings, Turner worked the. swing shift, 2:00 p.m. to 12:30 a.m.; ·
Sunday through Wednesday. Tr. 65, 77. While employed by National Cement, Turner had a
second job with Innovative Construction Solutions ("ICS"), a contractor that provided water
treatment services to National Cement on the premises of its Lebec Plant. Tr. 32-33, 90-91,
110-11, 263. Turner's job at ICS had flexible hours, with no set schedule. Tr. 116.
On September 24, 2003, Turner did not report to his job at National Cement for "personal
reasons." Ex. R-6. On that day, however, his supervisor, chief electrician Julius Wetzel,
observed Turner at the ICS building. Tr. 528. Normally, during that time, Turner would have ·
been working his shift at National Cement, instead of working for ICS. Tr. 62. ill a letter dated .
October 1, 2003, Wetzel issued a "written verbal" reprimand to Turner, stating that on September24, he was "absent from work without consent of the Company," and warning him that if such an
incident happened again, it would result "in more severe disciplinary action, including possible
discharge." Ex. R-6. 3
On June 13, 2006, Turner informed Wetzel, orally and in writing, that he would be ta1cing
the following day off to go to a doctor's appointment. Tr. 64; Ex. R-7. The following day, June
14, from approximately 10:30 a.m. until 1:30 p.m., Turner visited the ICS building to show the
water treatment facility to his daughter, who was visiting Turner from out of town. Tr. 33-34,
68-70, 112-13. 4 While at ICS, Turner engaged in work, and "logged in some activities." Tr. 80,

own behalf before the Commission .... "
3

Turner's Personnel File (containing this document at NCC 160), Safety Committee
notes from February 2006 through June 2006, and Joseph Kowalski's Personnel File were
admitted into evidence after the hearing as ALJ Exhibit 1 (Ex. ALJ-1).
4

Turner offered conflicting testimony regarding his time of arrival at ICS. ill direct
testimony, Turner stated that he arrived at 12:30 p.m. Tr. 69. On cross examination, Turner was
shown his discovery response to National Cement, in which he stated that he arrived at ICS at
10:30 a.m. Tr. 112. When pressed, Turner admitted that he arrived at the earlier time,
10:30 a.m. Tr. 113. I discredit Turner's assertions at the hearing that he arrived at 12:30 p.m.,
and find that he arrived at 10:30 a.m.
31FMSHRC1180

114; Ex. R-4. After leaving the Lebec Plant property, Turner had lunch with his daughter and, at
4:00 p.m., went to his doctor's appointment. Tr. 69, 74-76.
On June 14, several National Cement employees informed Wetzel that "Turner was at the
ICS water treatment plant." Tr. 532; Ex. R-8. Wetzel went to the ICS building and spoke with
the supervisor there. He testified to being informed that Turner had been working:
A.

I asked the supervisor if Mr. Turner was there.

***
He said, "No, he just left."
Q.

Did you ask anything else?

A.

I asked if Mr. Turner was working.

Q.

And what was his response?

A.

. He said, "Yes."

Tr. 533. Wetzel reported his findings to his immediate supervisor, electrical manager Bill
Russell, and to plant manager Byron McMichael, in a written statement dated June 15, 2006.
Tr. 535; Ex. R-8. McMichael was ultimately responsible for deciding what disciplinary
measures, if any, National Cement would take against Turner for the June 14 incident.
Tr. 249-50. McMichael reviewed Turner's Personnel File (see Ex. ALJ-1) and, in a meeting with
Turner, Wetzel, and union representative, Neal Janousek, announced his decision to suspend
Turner "pending discharge." Tr. 282; Ex. R-1. McMichael subsequently decided to terminate
Turner's employment and by notice dated June 23, 2006, provided Turner with the company's
reason:
On Wednesday, June 14, 2006, you were on the premises of NCC working for Innovative
Construction Solutions, Inc. The same day ... you missed your entire shift (2:00 p.m.
until 12:30 a.m.) at NCC .... As a result of your working for another firm on a day that
you were absent from NCC and your less than acceptable performance, you are being
terminated effective Friday, 6-23-06.
Ex. R-2.

II.

Findings of Fact and Conclusions of Law

A complainant alleging discrimination under section 105(c) of the Act, 30 U.S.C.
§ 815(c), establishes a prima facie case of prohibited discrimination by presenting evidence
sufficient to support a conclusion that the individual engaged in protected activity and that the
31FMSHRC1181

adverse action complained of was motivated in any part by that activity. See Sec '.Y ofLabor on
behalf ofPasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev'd on other
grounds, 663 F.2d 1211 (3rd Cir. 1981); Sec '.Y ofLabor on behalf ofRobinette v. United Castle
Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981).
The operator may rebut the prima facie case by showing either that no protected activity
occurred, or that the adverse action was in no part motivated by protected activity. See Robinette,
3 FMSHRC at 818 n.20. If the operator cannot rebut the primafacie case in this manner, it,
nevertheless, may defend affirmatively by proving that it also was motivated by the miner's
unprotected activity and would have taken the adverse action for the unprotected activity alone.
See id. at 817-18; Pasula, 2 FMSHRC at 2799-800; see also Eastern Associated Coal Corp. v.
FMSHRC, 813 F.2d 639, 642-43 (4th Cir. 1987) (applying Pasula-Robinette test); Baich v. ,
FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983) (specifically approving the Commission's
Pasula-Robinette test). In determining whether a mine operator's adverse action was motivated
by the protected activity, the judge must bear in mind that "direct evidence of motivation is rarely
encountered; more typically, the only available evidence is indirect." Sec '.Y ofLabor on behalf of
Chacon v. Phelps Dodge Cory., 3 FMSHRC 2508, 2510 (Nov. 1981), rev'd on other grounds
sub nom. Donovan v. Phelps Dodge Cory., 709 F.2d 86 (D.C. Cir. 1983). "Intent is subjective
and in many cases the discrimination can be proven only by the use of circumstantial evidence."
3 FMSHRC at 2510 (citation omitted). In Chacon, the Commission listed some of the more
common circumstantial indicia of discriminatory intent: (1) knowledge of the protected activity; ..
(2) hostility or animus fowards the protected activity; (3) coincidence in time between the
protected activity and the adverse action; and (4) disparate treatment of the complainant. Id. at
2510-12; see also Hicks v. Cobra Mining, Inc., 13 FMSHRC 523, 530 (Apr. 1991). The
Commission has also held that an "operator's knowledge of the miner's protected activity is
probably the single most important aspect of a circumstantial case" and that "knowledge ... can
be proved by circumstantial evidence and reasonable inferences." Sec '.Y ofLabor on behalf of
Baier v. Durango Gravel, 21 FMSHRC 953, 957 (Sept. 1999) (citing Chacon). ill Bradley v.
Belva Coal Co., the Commission enunciated several indicia of legitimate non-discriminatory
reasons for an employer's adverse action, including evidence of the miner's unsatisfactory past
work record, prior warnings to the miner, past discipline consistent with that meted out to the
complainant, and personnel rules or practices forbidding the conduct in question. 4 FMSHRC
982, 993 (June 1982).
Before his employment was terminated, Turner repeatedly engaged in protected activity
when he brought safety concerns to the attention of his supervisors. 5 He testified that on at least

5

Section 105(c)(1) of the Act provides, in pertinent part, that a miner cannot be
discharged, discriminated against or interfered with in the exercise of his statutory rights because
he "has filed or made a complaint under or related to this Act, including a complaint ... of an
alleged danger or safety or health violation."
31FMSHRC1182

four occasions he raised such concerns. 6 He alleges that he requested that National Cement
provide him with electrically rated tactile gloves. Tr. 19-20, 105-06. National Cement's safety
manager, Randy Logsdon, testified that he told Turner that he had researched the availability of
such gloves in his equipment catalogs, but could not find any thin rubber or latex gloves that had
an electrical rating. Tr. 361-63. During January 2006, Turner complained to management that
the lack oflights on a manlift made it unsafe to operate the equipment at night. Tr. 49-50. fu
late May 2006, Turner also complained that a medium voltage disconnect, which he mistakenly
energized, was mislabeled and not properly locked and tagged out of service. Tr. 20-25; Ex. C-2.
When Turner energized this piece of equipment, it caused the entire plant to lose power.
Tr. 25-26. He was subsequently disciplined for his mistake in a written warning that was placed
in his Personnel File. Ex. C-5; ALJ-1. Lastly, on June 12, 2006, Turner complained to
management that he had been directed to troubleshoot ignition controls on Pre-Calciner·b1J01ers
in an area that was very hot and gassy, needlessly placing him at risk. Tr. 43-45.
Although Turner raised these safety concerns in the months and days preceding his
termination, he did not produce any evidence that these protected activities were in any way
related to his termination. To the contrary, McMichael credibly testified that when he decided to
terminate Turner, he knew_nothing of Turner's concerns regarding electrical gloves, lack of lights
on the manlift, or troubleshooting the Pre-Calcinerburners. Tr. 238, 272-73, 310. I also credit
. McMichael's testimony that, although he was aware of Turner having caused a plant shut down
the previous month, he considered the incident a disciplinary matter in reaching his decision to
discharge Turner, rather than an instance of Turner having raised a complaint about the safety of
equipment. Tr. 237-38, 273-74. I also credit the testimony of Wetzel that his recommendation
that Turner be discharged, was based upon Turner's "poor job performance and his activities
during the incident with the [ICS] water treatment plant," and not on any safety complaints made
by Turner. Tr. 527, 539.
Assuming, argu.endo, that Turner's various complaints served as the basis for the decision
by National Cement to discharge him, I find, nevertheless, that the company offered credible
evidence, unrebutted by Turner, clearly establishing that he was discharged for legitimate,
business-related reasons, entirely unrelated to any protected activity, and that the company would
have taken the adverse action based solely on Turner's conduct respecting his outside
employment at ICS.
Turner was fully aware that National Cement had placed limitations on his outside
employment at ICS. Tr. 32-33, 245-47. On October 1, 2003, the company warned Turner that
working for ICS in a manner that interfered with his employment at National Cement would
result in "severe disciplinary action, including possible discharge." Ex. R-6. The work that
Turner performed for ICS on June 14, 2006, occurred before he was scheduled to report for duty
at 2:00 p.m. Tr. 69. National Cement terminated him, nevertheless, because "[h]e chose to give
his services to ICS (his part-time employer) that day, rather than National Cement." Resp. Br. at
6

Turner withdrew his allegation that he made a fifth safety complaint concerning unsafe
conditions existing on a blower. Tr. 123-24; Comp. Br. at 4.
31FMSHRC1183

8 (citing Tr. 276-77, 334). McMic~ael testified that, in his opinion, Turner "could have
scheduled [his] blood pressure test some other time and interrupted [his] work with ICS ... and
provided services for [National Cement] that day." Tr. 334. He also opined that Turner could
have made "other arrangements to avoid missing work, he could have [come] to work and then
left and [run] over and had his blood pressure checked and [come] back to work." Tr. 270.
Wetzel testified that it was the company's position that Turner "could have scheduled his
doctor's appointment previous to the time he [was] supposed to be at work. . . . He had all
morning to schedule the appointment some other time where it didn't interfere with his
obligations at Nationai Cement." Tr. 484. The company's position, that it was unnecessary for
Turner to have missed his entire shift to have his blood pressure checked, was clearly conveyed
to Turner at the time ofhis suspension, pending discharge. Ex. R-1. In other words, National
Cement remains·firmly entrenched in its expectation that ifTurnerwas·going to provide his . ,
services to anyone on June 14, 2006, a regularly scheduled workday, he should have worked for
National Cement, his primary employer. See also Tr. 340-42.
One of Turner's fellow workers at the Lebec Plant, William Edminister, advanced
Turner's position that National Cement should not have discharged him for having worked at
ICS on June 14. Edminister testified that, "because this was on [his] own time before [his] shift.
. . . What you do on your own time and off the clock is none of the company's business. You
shouldn't have to answer [to] the company for what you do off the clock." Tr. 142-43, 171.
McMichael testified that requesting a full day of leave for a doctor's appointment is not .
an unusual occurrence at National Cement. Tr. 269. He explained that "the plant has what is
referred to as a no-fault attendance program. The system really doesn't care whether you're there
or you 're not there. It's like a bank account. You put money in and you take money out. ... So
it's just a way of keeping a record that it's controlled." Tr. 271. Turner, hiinself, explored
McMichael's rationale for firing him, given that he had taken the day off:
Q.

Why do you think it was necessary to fire me for - for doing what I did, for
working the same day at the - at the water treatment plant because I had taken the
day off?

A.

It was my opinion after having warned you about that prior to that, having worked
for a contractor on our site, which is annoying to me to start with. We hire people
to work for us, we want them to be there and perform their work and you deprived
us of your work that day. And to me, that was very irritating and time for a
change.

Tr. 252; see also Tr. 283-85.
Turner's poor performance - specifically, the incident involving the roller mill motor also served as a basis for his termination. Ex. R-2. This incident occurred on May 24, 2006,
when Turner energized a medium voltage disconnect that he mistakenly believed supplied power
to a particular roller mill motor that would not start. However, the equipment that Turner
31FMSHRC1184

energized was, in fact, the wrong equipment, and when he energized it, power to the entire plant
was knocked out. Tr. 20-26. Turner complained to management that his error was due to the
fact that the equipment was mislabeled and not properly locked and tagged out. Tr. 20-25; Ex.
C-2. However, Bill Russell testified convincingly that the company had trained its electrical
personnel on the power supply for the roller mill system, and opined that Turner should have
been aware that he was about to energize the wrong equipment. Tr. 190, 205-06. As Russell
explained: "The old raw mill had been out of service for at least five years when this
happened. . . . Everybody knew it was out of commission for the last five years. He shouldn't
have been over there. The starter where you go [to energize] the physical roller mill is in an
entirely different building." Tr. 205-06 (emphasis added). I credit Russell's testimony that
Turner should have known what equipment to energize and, given that the incident occurred
<21 days before the ICS incident, I conclude.thatit served as·a proper.basisfor consideratiqn in
Turner's termination.
At the hearing, Julius Wetzel testified that Turner's poor performance primarily
motivated him to recommend to McMichael that Turner be discharged for his unauthorized work
at ICS. Wetzel explained that Turner "doesn't listen. He's very hard to communicate with and
he takes a lot of things personal that shouldn't be personal." Tr. 460. Wetzel also testified that
Turner "didn't follow instructions. . . . The few other people in the shop expressed the concern
that they would not work with him. They didn't like working with him." Tr. 488. Over the two
days that this matter was tried before me, Turner repeatedly disrupted the proceedings, and
consistently exhibited a disquieting lack of self control, for which he was repeatedly admonished
on the record. See, e.g., Tr. 96, 131-32, 185-86, 435-37, 465-66, 528-30. Based on my own
observations of Turner's refusal to follow instructions and, having experienced, first hand, his
general uncooperative nature throughout the entire hearing process, I fully credit Wetzel' s
testimony.
While it is clear that Turner was afforded the right to defend his behavior prior to his
discharge, it is also evident that National Cement gave little weight to his protestation that he
understood the company's policy to only prohibit work at his outside job during his normally
scheduled shift. Tr. 82-86. The record supports a conclusion that Turner could well have
misunderstood the breadth of National Cement's policy, and that he had considered his actions
on June 16 to have been in compliance with the company's mandate that outside employment not
interfere with the primary job, considering that the prior "written verbal" generally describes the
prohibited conduct as ''being absent from work without the consent of the Company," and fails to
set forth in specific terms the violative conduct and the requirements of the policy. Ex. R-6. It is
also evident that Turner's troubles as an outside contractor to ICS are rooted in the water
treatment plant's location on the Lebec Plant's premises. It is highly probable, especially in light
of National Cement's no-fault attendance program, that had Turner conducted his business away
from the job site on his day off, none of his activities, before, during or after his shift ended,
would have been called into question. While the decision to te1minate Turner, rather than mete
out lesser discipline, may appear to have been harsh, and even unfair, my task, under the Act, is
to determine whether the adverse action was motivated in any part by Turner's protected activity.
In this regard, it is well settled that "[t]he Commission and its judges have neither the statutory
31FMSHRC1185

charter nor the specialized expertise to sit as a super grievance or arbitration board meting out
industrial equity." Chacon, 3 FMSHRC at 2516. The weight of the evidence, as well as Turner's
deportment during the hearing, compel me to conclude that Turner was a difficult employee, and
that National Cement had ample grounds, unrelated to his protected activity, upon which to
terminate his employment.
It is clear, based on the record in its entirety, that Turner's non-conformance with
National Cement's policy regarding outside employment, and his less than satisfactory
performance, motivated National Cement to terminate his employment, and that he would have
been terminated on the sole basis of his conduct respecting his work at ICS, irrespective of any
protected activity.
'

I ..

·

ORDER

Accordingly, inasmuch as Turner has failed to establish, by a preponderance of the
evidence, that he was discharged for engaging in activity protected under the Act, it is
ORDERED that the Complaint of Discrimination of Jayson Tumer against National Cement
Company of California, Incorporated, under section 105(c) of the Act, is DISMISSED.

~R~~
Administrative Law Judge

Distribution: (Certified Mail)
Margaret S. Lopez, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 2400 N St NW, Fifth
floor, Washington, DC 20037-1153
Jayson Turner, 2716 Arctic Drive, P.0; Box C, Pine Mountain, CA 93222
/mh

31FMSHRC1186

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

September 30, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
on behalf of LIGE WILLIAMSON
Complainant
v.

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. KENT 2009-1428-D
PIKE CD 2009-06

. Mine ID 15-18911
Number 28 Mine

CAM MINING, LLC,
Respondent

DECISION
Appearances:

Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for the Complainant;
Mark Heath, Esq., Spilman, Thomas & Battle, Charleston, West Virginia,
for the Respondent.

Before:

Judge Feldman

This matter, heard on September 2, 2009, in Pikeville, Kentucky, is before me based on
an application for temporary reinstatement filed by the Secretary, pursuant to section 105(c)(2)
of the Federal Mine Safety and Health Act of 1977 (the Mine Act), 30 U.S.C. § 815(c)(2), against
CAM Mining, LLC (CAM Mining) on behalf of Lige Williamson. This statutory provision
prohibits operators from discharging or otherwise discriminating against miners who have
complained about alleged safety or health violations, or who have engaged in other safety related
protected activity. Section 105(c)(2) of the Act authorizes the Secretary to apply to the
Commission for the temporary reinstatement of a miner pending the full resolution of the merits
of his discrimination complaint. The parties' briefs, filed on September 24, 2009, have been
considered.
I. Statement of the Case

This temporary reinstatement proceeding is analogous to a preliminary hearing.
Unlike a trial on the merits of a discrimination complaint brought by the Secretary where the
Secretary bears the burden of proof by the preponderance of the evidence, the scope of this
temporary reinstatement proceeding is limited by statute. Section 105(c) of the Mine Act, as well
as Commission Rule 44(c), 29 C.F .R. § 2700.44(c), limit the issue in an application for
temporary reinstatement to whether the subject discrimination complaint has been "frivolously
brought." Courts and the Commission have concluded that the "not frivolously brought"
31 FMSHRC 1187

standard in section 105(c) is satisfied when there is a "reasonable cause to believe" that the
discrimination complaint "appears to have merit." Centralia Mining Company, 22 FMSHRC
153, 157 (Feb. 2000) (citations omitted).
The Secretary contends Williamson engaged in protected activity on or about
April 20, 2009, when he allegedly communicated ventilation related complaints to his foreman,
McArthur Swiney. CAM Mining denies that the alleged ventilation complaints occurred.
Williamson's employment was terminated on May 15, 2009, following a May 13, 2009,
confrontation between Williamson and Swiney. The confrontation occurred immediately after
Swiney criticized Williamson when a shuttle car, operated by Williamson, struck and damaged a
water line and power cable.
fu view of the Secretary's minimal burden of proof, without resolving any 9redibility
issues, Williamson shall be given the benefit of the doubt that his alleged April 20, 2009,
ventilation complaint occurred. However, the Secretary has not demonstrated that Williamson
was the victim of any meaningful retaliation during the intervening period from April 20 through
the May 13, 2009, confrontation. Williamson has conceded that he was not given any job
assignments that were inconsistent with his job duties as a utility man. fu fact, Williamson
testified that, at his request, he was reassigned to lighter duty operating a shuttle car because his
knee condition limited his ability to hang curtains.

Rather, Williamson's admissions that iie "cussed" Swiney on May 13, 2009, and that he
believed he would lose his job for "cussing" his foreman out, reflect that there is no reasonable
cause to believe there is a nexus between Williamson's alleged April 20, 2009, protected activity
and his May 15, 2009, termination for insubordination. (Tr. 92). Accordingly, the Secretary's
temporary reinstatement case shall be dismissed because it does not appear to have the requisite
merit to demonstrate that it has not been frivolously brought.
II. Findings of Fact
There are two types Df continuous mining sections at the No. 28 Mine. A super section is
ventilated by a double split of air that allows the simultaneous operation of two continuous
miners in separate entries. A normal continuous mining section is ventilated by a single split
of air. fu a single split of air the continuous miners operate on an alternating basis in separate
entries.
Lige Williamson is 55 years old. Prior to Williamson's May 15, 2009, termination,
Williamson had been employed at CAM Mining's No. 28 Mine as a utility man in a continuous
mining section, for approximately 21 months. His job duties involved construction and
maintenance of ventilation controls. Specifically, he was responsible for building concrete
permanent stoppings (brattices), hanging temporary stoppings (fly pads), and maintaining the line
curtain in all of the section entries. (Tr. 28, 29, 20-25).

31FMSHRC1188

Williamson was transferred from the No. 2 super section to the No. 1 section in the
middle of April 2009. (Tr. 34). Prior to Williamson's transfer the No. 1 section had been a super
section. However, in April 2009 the section was being operated on a single split of air.
Williamson's new section foreman was McArthur Swiney. Swiney is 66 years old and he has
approximately 49 years of mining experience. (Tr. 342). When Williamson started working on
the No. 1 section, he was performing normal utility duties involving the construction and
maintenance of ventilation controls.
The No. 1 section has seven entries. The left hand continuous miner operated in the
No. 1 through 4 entries. The right hand continuous miner operated in the No. 4 through 7 entries.
Three shuttle cars loaded coal from the two miners. The left and center shuttle cars carried loads
from the left hand continuous miner. The right shuttle car carried loads from the right hand ·
continuous miner. The shuttle cars were equipped with booms that could be raised or lowered to
transfer coal from the belt on the continuous miner into the shuttle car.
~
After working a few days in the No. 1 section, Williamson reportedly noticed loaded
shuttle cars exiting from two different entries at the same time. Although Williamson could not
see or hear both the left and-right hand continuous miners at the same time, he surmised that one
continuous miner was starting operations before the other continuous miner had stopped. In such
an event, methane and dust from the first continuous miner could be transferred inby to the other
continuous miner by the same split of air sweepilig the face.
a. The Alleged April 20, 2009. Protected Activity
On or about April 20, 2009, Williamson alleges that he told Swiney that he believed that
there was overlapping operation of the continuous miners when each miner began its
advancement into its entry. Williamson stated that Swiney did not respond to Williamson's
complaint. Williamson testified, "[Swiney] didn't say nothing, just looked at me like I was
stupid." (Tr. 38-39).
Williamson testified that after he complained to Swiney he was asked to do various tasks
that required physical labor including shoveling ribs, shoveling the tail piece area, and building
brattices. However, Williamson does not claim that he was asked to perform any job duties that
were inconsistent with the duties of a utility man. In fact, Williamson testified, "I'm not going to
say [Swiney] particularly made me do things outside my job title." (Tr. 40). Williamson stated
that the stress caused by Swiney' s treatment of him caused Williamson to seek medical treatment
for chest pain. No medical documentation has been proffered.
Williamson returned to work after approximately two days of medical leave. In addition
to his stress related complaints, Williamson had a history of knee problems that were exacerbated
by the physical demands of constructing concrete stoppings. Upon Williamson's return Swiney
permitted Williamson to switch jobs with a shuttle car operator to help lessen the stress on
Williamson's knees. However, Williamson claims that before he complained about ventilation
31FMSHRC1189

Swiney called him "Lige." After his complaint Williamson alleges that Swiney referred to him
as "asshole." Significantly, Williamson has conceded that he never reported his alleged
ventilation complaint to any other CAM Mining official during the period of April 20, 2009,
when the complaint reportedly was communicated to Swiney, until May 15, 2009, when he was
terminated for insubordination. (Tr. 178, 183-84, 203-04).
Swiney tes!ifi_ed that Williamson never complained to him about ventilation. Swiney also
denies that he called Williamson "asshole." CAM Mining denies that the continuous miners in
the No. 1 section were operating simultaneously. In support of its denial CAM Mining
emphasizes that Williamson's reported belief is speculative since he did not personally .observe
both continuous miners operating at the same time. Moreover, CAM. Mining maintains that the
No. 1 section lacked the electrical capacity to operate both continuous miners simultaneously! .
On May 5, 2009, 104(a) Citation No. 8227386 was issued to CAM Mining.for a violation
of the mandatory safety standard in section 75.370(a)(l), 30 C.F.R. § 75.370l(a)(l) that requires
a mine operator to follow an approved ventilation plan. The citation was issued because the
No. 1 section was operating on a single rather than two distinct splits of air as provided in the
existing approved ventilation plan. The citation was terminated on May 7, 2009, after
CAM Mining submitted an updated ventilation plan to conform with its single split of air
operation. The violation cited in Citation 8227386 was .designated as non-significant and
substantial (non-S&S) in nature, and, the violation was attributed to a low degree of negligence.
b. The May 13. 2009. Insubordination
With the exception of whether or not Williamson pushed Swiney, the relevant events
surrounding the May 13, 2009, confrontation between Swiney and Williamson are not in dispute.
On the night of Wednesday, May 13, 2009, Swiney told Williamson to use the shuttle car to load
coal from the right side continuous miner that was operating in the No. 4 entry. Williamson
loaded the shuttle car and proceeded from the continuous miner down the last open cross cut
making a right turn into the No. 5 entry on his way to the loading dock. Williamson testified
that, upon turning in to the No. 5 entry, the shuttle car hit a wet spot in a dip in the mine floor.
The shuttle car slid through the intersection severing the water line and pinching the power cable
for the continuous miner. As a result, a fountain of water began streaming into the air.
Upon seeing the stream of water, Swiney approached the shuttle car to determine
what had happened. Swiney accused Williamson of not raising the boom to avoid contact
with the water line and cable. When Swiney approached, Williamson conceded he was
aggravated because striking the cable and water line is a mistake that is not supposed to
happen. (Tr. 163-164; 190-191). Specifically, Williamson testified:

Q. So you didn't like it when Mr. Swiney came up and told you if
you had your boom up, you wouldn't hit the water line, did you?

31FMSHRC1190

A. When Mr. Swiney came up, I was aggravated for hitting the line. A
carman does not like to make a mistake like that. You are particularly
cautious about mine cable and water line. I was aggravated before Mac
got over there.
Williamson alleges that upon arriving at the shuttle car Swiney shoved his finger in
Williamson's face and that Swiney called him a "God damn dumb ass." (Tr. 86-87, 88).
Williamson testified tliat Swiney retreated as Williamson exited the shuttle car toward Swiney.
Williamson testified, "I told him that he was going to quit his god damn dogging on me. That
he'd been dogging me for two fucking weeks and I was tired of it and it's going to fucking stop
now was my basic words to him." (Tr. 91, 93)
Swiney alleges that as Williamson jumped out of the shuttle car, Williamson pushed him
in the chest causing him to stumble backwards to within three to four feet from the rib.
Williamson denies shoving Swiney. hnmediately after their confrontation, Swiney telephoned
shift foreman Danny Conn to meet him and Williamson at the end of the track so that
Williamson could be escorted out of the mine. Swiney and Williamson used a man trip to travel
to meet Conn. When Conn arrived he could see that both Swiney and Williamson were upset.
Williamson denied Swiney's claim that he had been pushed.
· When Conn and Williamson reached the surface, Williamson asked Conn if he
was terminated. Conn told Williamson to return to the mine the next day to speak to
Mine Superintendent Frank Smith. Williamson did not tell Conn about his alleged history
of ventilation complaints because he didn't believe that was "the issue ... at that particular
moment." (Tr. 178).
At the end of the shift, Swiney completed an employee disciplinary report which stated
that "Lige cut miner cable and water line with S/C Mac talked to him and he got off S/C and
pushed Mac against rib." This report was co-signed by Frank Smith. (Resp. Ex. 2; Tr. 283).
Swiney also wrote a contemporaneous hand written statement to Frank Smith dated
May 15, 2009, stating:
Lige cut miner cable and water line I told him if he had raised his
boom he wouldn't have cut it. He jumped out of his car and started
pushing me around and said that I had been on his case for 2 or 3
days. I called out and told Danny Conn to come inside and get
him. If you want him to work, I don't need him, put him
somewhere else.
(Resp. Ex. 1).

31FMSHRC1191

Thursday, May 14, 2009, Williamson returned to the mine to discuss with Smith the
incident that had occurred on the previous night. Based on the information that had previously
been provided to Smith by Swiney, Smith informed Williamson that he was being suspended for
three days with intent. Williamson understood that to mean that he was being terminated.
Williamson asked for a termination slip, but was not given one before he left the mine.
Smith fon\'_ar~ed a request to terminate Williamson to Jack Holbrook, CAM Mining's
general manager. Holbrook signed the termination notice on May 15, 2009, citing
insubordination as the basis for the discharge. (Gov. Ex. 7). Prior to his termination,
Williamson did not inform Conn or Smith that he had complained to Swiney about ventilation,
or, that Swiney had called him an "asshole." (Tr. 182-183).
On Friday evening, May 15, 2009, Williamson telephoned Smith at home. Williamson
told Smith that if he had something to say to him he should "[have] the balls to tell him face to
face." (Tr. 185). Williamson also told Smith that any rumor that Williamson had complained to
MSHA inspectors was not true. (Tr. 195). The termination notice, sent to Williamson by
certified mail, was received on Saturday, May 16, 2009.
III. Procedural Framework
Unlike a trial on the merits in a discrimination complaint brought by the Secretary where
the Secretary bears the burden of proof by the preponderance of the evidence, the scope of this
temporary reinstatement proceeding is limited by statute. Section 105(c) of the Mine Act as well
as Commission Rule 44(c), 29 C.F.R. § 2700.44(c), limit the issue in an application for
temporary reinstatement to whether the subject discrimination complaint has been
"frivolously brought." Rule 44(c) provides:
The scope of a hearing on an application for temporary reinstatement is limited to a
determination by the Judge as to whether the miner's complaint is frivolously brought.
The burden of proof shall be upon the Secretary to establish that the complaint is not
frivolously brought. In support of [her] application for temporary reinstatement the
Secretary may limit [her] presentation to the testimony of the complainant. The
respondent shall have an opportunity to cross-examine any witnesses called by the
Secretary and may present testimony and documentary evidence in support of its position
that the complaint is frivolously brought.
In its decision in Jim Walter Resources, Inc., v. FMSHRC, 920 F.2d 738 (11th Cir. 1990),
the Court noted the "frivolously brought" standard is entirely different from the scrutiny
applicable to a trial on the merits of the underlying discrimination complaint. In this regard,
the Court stated:
The legislative history of the Act defines the 'not frivolously brought standard' as
indicating whether a miner's 'complaint appears to have merit' -- an interpretation that is
strikingly similar to a reasonable cause standard. [Citation omitted]. In a similar context
involving the propriety of agency actions seeking temporary relief, the former 5th Circuit
31 FMSHRC 1192

construed the 'reasonable cause to believe' standard as meaning whether an agency's
'theories oflaw and fact are not insubstantial or frivolous.'
920 F.2d at 747 (emphasis in original) (citations omitted).
While the Secretary is not required to present a prima facie case of discrimination to
prevail in a temporary
-reinstatement proceeding, it is helpful to review the elements of a
discrimination claim to determine ifthe evidence at this stage satisfies the "not frivolously
brought" standard. As a general proposition, to demonstrate a prima facie case of discrimination
under section 105(c) of the Mine Act, the Secretary must establish that the complainant
participated in safety related activity protected by the Act, and, that the adverse action
complained of was motivated, in some part, by that protected activity. See Secretary on behalf of
David Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (Oct. 1980) rev'd on
other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981);
Secretary on behalf of Thomas Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18
(Apr. 1981).
-

N. Disposition
As a threshold matter, the evidence in this preliminary temporary reinstatement
proceeding must be viewed in a light most favorable to the complainant because it is not the
judge's duty to resolve conflicts in testimony at this preliminary stage of the proceedings.
Secretary o/b/o Earl Charles Albu v. Chicopee Coal Company, Inc., 21 FMSHRC 717, 719
(July 1999). Thus, we start with the proposition, for the purposes of this matter, that Williamson
communicated a good faith ventilation complaint to Swiney on April 20, 2009.
Thus, assuming that Williamson engaged in protective activity on April 20, 2009,
we must determine whether there is reasonable cause to believe that Williamson's May 15, 2009,
termination was motivated, at least in part, by that protected activity. As a threshold matter, there
is no evidence that any significant retaliatory action was taken by CAM mining in response to
Williamson's alleged complaint. Even if Swiney responded to Williamson's alleged complaint
by calling him an "asshole," there is no evidence that Swiney had any retaliatory intent. In this
regard, Williamson has admitted, "I'm not going to say [Swiney] particularly made me do things
outside my job title." (Tr. 40). On the contrary, Williamson was given lighter shuttle car duty
after his alleged complaint. Similarly, given the absence of any retaliation prior to the May 13
incident with Swiney, there is no evidence that CAM mining believed Williamson had
complained to MSHA about ventilation issues. (Tr. 127).

31FMSHRC1193

Moreover, Williamson admits he never reported any concerns of disparate treatment by
Swiney to any CAM Mining official. It is only after he was terminated that Williamson
now claims his reported protected activity was a material factor in his job loss. Significantly,
Williams testified he did not tell Conn about his alleged history of complaining about ventilation
to Swiney because he did not believe that was "the issue ... at that particular moment."
(Tr. 178). Williamson also did not report his alleged ventilation complaint during his
May 14, 2009, meeting with Smith when Williamson was advised he was being "suspended
with intent."
Throughout this proceeding, the Secretary has treated the May 13, 2009, confrontation as
a trivial event. It is not mentioned in Williamson's initial safety complaint filed with MSHA on
·May 29; 2009, wherein Williamson avers that he· "was discharged for making a safety
complaint." (Gov. Ex. 1). In addition, the May 13, 2009, incident is not referred to in the
Secretary's Application for Temporary Reinstatement, nor in the affidavit by MSHA Special
fuvestigator Alan Howell filed in support of the Secretary's application. Rather, when distilled to
its core, the Secretary's case is, in essence, that CAM Mining was lying in wait after Williamson
engaged in protected activity on April 20, 2009, until it was fortuitously rewarded by
Williamson's May 13, 20U9, confrontation with Swiney, with no evidence of intervening
retaliatory action. fu other words, the Secretary argues that Williamson's May 15, 2009,
termination for insubordination is a subterfuge for Williamson's protected activity, despite no
. evidence.that Conn, Smith or Holbrook, knew ab:out Williamson's alleged complaint, or,
that Williamson was the victim of retaliation during the interim period from April 20
until his May 13, 2009, misconduct.
To determine if the evidence as presented by the Secretary reflects the subject
discrimination complaint has not been frivolously brought, we examine the events of
May 13, 2009. Williamson concedes he was upset with himself for striking the water line and
power cable with the shuttle car. Although there is no evidence that Williamson intended to hurt
Swiney, it is apparent that Swiney' s criticism was not well received. Even if physical contact did
not occur, the accounts of both Swiney and Williamson support the fact that there was a serious
verbal confrontation. In fact, Williamson admits he, in effect, threatened Swiney when he
told Swiney he was tired of Swiney "dogging" him and" it's going to fucking stop now."
(Tr. 91, 93). Williamson also recognized that he could be fired for "cussing" his foreman.
(Tr. 92). Although profanity and expressions of aggression may be excused when they are
uttered by a complainant who is provoked by a mine operator's response to his protected activity,
obviously severing a water line and damaging a trailing cable are not activities protected by
the Mine Act. Secy o/b/o Bernardyn v. Reading Anthracite Co., 22 FMSHRC 298, 305-07
(Mar. 2000) (excusing behavior that occurs in response to a mine operator's wrongful
provocation). Consequently, there are no mitigating circumstances to excuse Williamson's
aggressive response to Swiney's criticism. Thus, even a superficial analysis of the evidence
presented by the Secretary clearly reflects that, when Williamson threatened 66 year old Swiney,
he did so at the risk of his termination.

31 FMSHRC 1194

As a final matter, the Secretary apparently now concedes the May 13, 2009, incident at
least justified CAM Mining's suspension ofWilliamson. 1 However, she argues, in effect, that
termination was unjustifiably harsh and motivated by Williamson's earlier ventilation complaint.
Having conceded that suspension for Williamson's insubordination was warranted, the Secretary
has abandoned any claim that her application for temporary reinstatement is not frivolous.
Whether a miner is suspended or terminated for insubordination is within a mine operator's
discretion, absent a showing that the discipline is disproportionate to the misconduct and
motivated by discriniinatory intent. The Secretary's disparate treatment claim, based on the
assertion that other CAM Mining employees have been suspended rather than terminated for past
instances of misconduct, is unavailing. Past instances of suspension for misconduct do not
preclude future terminations for just cause.
In the final analysis, the "Commission does not sit as a super grievance board to judge the
industrial merits, fairness, reasonableness, or wisdom of an operator's employment policies
except insofar as those policies may conflict with rights granted under section 105(c) of the Act."
Delisio v. Mathies Coal Co., 12 FMSHRC 2535, 2544 (Dec. 1990) (citations omitted).
Rather, Commission judges must "analyze the merits of a mine operator's alleged business
justification for the challeng{:d adverse action." Sec'y ofLabor o/b/o Chacon v.Phelps
Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev'd on other grounds, 709 F.2d 86
(D.C. Cir. 1983).
In this preliminary proceeding, the issue to be resolved is the merits of the Secretary's
assertion that CAM Mining's justification for Williamson's termination is an implausible
attempt to hide its discriminatory motive. It is undisputed that Williamson's May 13, 2009,
confrontation constituted insubordination. Company written policy reflects that insubordination
is grounds for dismissal. (Resp. Ex. 3). The Secretary's contention that CAM Mining was also·
motivated by Williamson's earlier protected activity is frivolous because it is based only on
speculation.
Viewing the evidence in a light most favorable for the Secretary, the Secretary has failed
to satisfy her burden of demonstrating there is a reasonable cause to believe Williamson's
reported protected activity played any role in his May 15, 2009, termination. Consequently, this
case does not appear to have merit and is therefore frivolously brought.

1

At trial, without providing any details, the Secretary presented testimony that
CAM Mining previously had suspended William Gillespie for "cussing" his foreman.
(Tr. 127-29).
31FMSHRC1195

ORDER
Accordingly, IT IS ORDERED that the Secretary's application for the temporary
reinstatement of Lige Williamson IS DENIED. Consequently, IT IS FURTHER ORDERED
that this temporary reinstatement proceeding IS DISMISSED.

Jerold Feldman
Administrative Law Judge
Distribution: (Certified Mail and Facsimile)
Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219
Mark E. Heath, Esq., Spilman, Thomas & Battle, PLLC, 300 Kanawha Blvd. East, P.O. Box 273,
. Charleston, WV 25321
/rps

31FMSHRC1196

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001
202-434-9981/Tele 202-434-9949/Fax.

October 8, 2009
SIDNEY COAL COMPANY, INC.,
Contestant

CONTEST PROCEEDINGS
Docket No. KENT 2007-217-R
Order No. 6643560; 02/21/2007

v.
Docket No. KENT 2007-218-R
Order No. 6643561; 02/21/2007
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 2008-51
A.C. No. 15-18381-125442

v.
SIDNEY COAL COMPANY, INC.,
Respondent

Taylor Fork Energy

DECISION
Appearances: Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, on behalf of the Secretary of Labor;
Ramonda C. Lyons, Esq., Dinsmore & Shohl, LLP, Charleston, West Virginia,
on behalf of Sidney Coal Company, Incorporated.
Before:

Judge Zielinski

These cases are before me on Notices of Contest filed by Sidney Coal Company,
Incorporated, and a Petition for Assessment of Civil Penalties filed by the Secretary of Labor
pursuant to section 105 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815.
The Petition alleges that Sidney is liable for two significant and substantial ("S&S") violations of
the Secretary's Mandatory Safety Standards for Underground Coal Mines, and proposes the
imposition of civil penalties in the total amount of $38,000.00. A hearing was held in Pikeville,
Kentucky, and the parties filed briefs after receipt of the transcript. For the reasons set forth
below, I find that Sidney committed the violations, but that they were not S&S, and impose civil
penalties in the amount of $20,000.00.

31FMSHRC1197

Findings of Fact - Conclusions of Law
On February 21, 2007, MSHA inspector Terry Phillips, Jr., conducted an inspection of
Sidney's Taylor Fork Energy mine, which is located in Pike County, Kentucky. Phillips had
inspected the mine previously, and was familiar with its layout and operation. One of the
production operations at the mine was a "supersection," which consisted of two production
sections operating_side-by-side in seven entries, designated MMU 005 and MMU 006. Section
005 consisted of entries #1 through #4, and section 006 comprised entries #5 through #7. They
were served by intake air traveling down the #5 entry where it was split, and traveled across the
sections to the returns in entries #1 and #7. Sidney was allowed to operate a continuous miner on
each of the sections. There were ten miners working in the 005/006 sections on the second shift,
which started at 4:30 p.m. The foreman was Tim Thornbury.
Phillips went underground about 10:00 p.m., and rode on a track mantrip with Billy May,
an electrician. Upon his arrival at the mine, Phillips had indicated that he intended to inspect the
belt entry. A call was made to the underground working section to notify Thornbury that there
was an MSHA inspector on the property and that he would be inspecting the belt. While en
route, Phillips changed his mind and decided to inspect the 005/006 sections. When the mantrip
approached a switch in the track, he told May that he wanted to go to the working sections, and
they proceeded in that direction. Tr. 25. They encountered an outbound supply car, which
required that the mantrip back up past the switch to allow it to pass. Tr. 29. Phillips was
concerned that the delay would allow the production crew to be apprised of his impending
arrival. Because he wanted to "surprise them," he got off the mantrip, and continued on foot,
walking down the #4 belt entry approximately 15-20 breaks to the face. Tr. 94. When he arrived
at the feeder, he observed someone doing paperwork in the #3 entry near what he thought was the
power center. While he could not positively identify the individual, he believed that it was
Thornbury. Tr. 30-31, 94-96; Ex.G-3.
While Phillips traveled to the working section coal was moving on the belt, and he could
hear the 005 section continuous miner running. Tr. 39. However,just before he arrived at the #3
entry where the miner was located, it was shut down. Within approximately two minutes he
reached the face, and found the air thick with coal dust. No line curtain had been hung and there
was virtually no air movement in the entry inby the last open crosscut. The miner operator and a
shuttle car operator were unrolling a new roll of line curtain, apparently preparing to hang it.
When Phillips approached, one of the men said, "Too late, he's here." Tr. 33; Ex. G-3. The
mine' s approved Ventilation Plan required that line curtain be maintained no further than 44 feet
from the face and eight feet from the discharge end of the scrubber unit mounted on the rear of
the miner, and it was apparent that the face had been advanced well beyond 44 feet. He and
Thornbury later measured the distance from the face to the inby edge of the last open crosscut at
75 feet. Tr. 54-55; Ex. G-1, G-4 at 8.
Phillips could hear the 006 section continuous miner cutting coal in the #6 entry. Tr. 39.
He suspected that the same conditions existed there. However, in less than a minute, the miner

31FMSHRC1198

in the #6 entry was shut down. Tr. 34. Phillips told the men in the #3 entry to remain where they
were. He ran to the #6 entry, and discovered virtually the same conditions that he had found in
the 005 section. Tr. 35. The entry had been driven well over 44 feet (later measured at 69 feet),
no line curtain had been hung, air movement was virtually non-existent, and coal dust was thick
in the air. Miners were also in the initial stages of preparing to install line curtain.
Phillips was upset with the conditions he had found, and inquired, "Where the hell is the
boss?" He proceeded back toward the #3 entry and encountered Thornbury in the last open
crosscut. Phillips addressed him in an emotional state, asking, "What the hell are you doing?"
Thornbury indicated that he had seen Phillips in the belt entry and had tried to get up to the faces
to tell the men to get line curtain up. Tr. 49, 94-95; Ex. G-3.
Phillips and Thornbury proceeded to the #3 entry and took measurements. They
determined that the distance from the outby side of the last open crosscut to the mosf inby row of
roof bolts in the entry was 69 feet (49 feet from the inby side of the crosscut), and that the miner
had cut another 26 feet into the coal seam. Phillips attempted to measure the quantity of air
moving in the entry, but it was insufficient to register on his anemometer. They also took
measurements in the #6 entry, and found that the entry had been advanced a total of 89 feet from
the outby side of the last open crosscut, 20 feet past the last row of bolts. Thornbury, who
assisted in taking the measurements, agreed that they were accurate. Tr. 172.
Phillips issued Citation No. 6643560 and Order No. 6643561, alleging that Sidney failed
to follow its approved Ventilation Plan. Sidney timely contested the Citation and Order and the
proposed penalties.
Citation No. 6643560
Citation No. 6643560 alleges a violation of30 C.F.R. § 75.370(a)(l), which requires that
operators develop and follow a Ventilation Plan approved by the MSHA District Manager.
The violation was described in the "Condition and Practice" section of the Citation as
follows:
The section foreman was not following the approved Ventilation Plan on
the #2 section in that the left miner (005 MMU) was cutting coal in the #3 entry
face without any ventilation controls in place. The distance from the comer to the
last row of roof bolts was measured at 69 feet and the miner had already cut 26
feet for a total distance of 95' with no line curtain and no air movement. There
was no air movement in this #3 face area and suspended float coal dust was easily
seen in the air. Therefore foreman violated the plan by having no line curtain
hung and not having sufficient air in the face. Foreman Thornbury engaged in
aggravated conduct constituting more than ordinary negligence in that he allowed
this miner to cut coal in the #3 face with no ventilation controls exposing his crew
31 FMSHRC 1199

of men to an explosion hazard and breathing of coal dust and rock dust. This
violation is an unwarrantable failure to comply with a mandatory standard.
Ex. G-1.
Phillips determined that it was reasonably likely that the violation would result in a fatal
injury, that the vialatjon was S&S, that ten persons were affected, and that the operator's
negligence was high. The Citation was issued pursuant to section 104(d)(l) of the Act, and
alleged that the violation was the result of the operator's unwarrantable failure to comply with
the mandatory standard. A specially assessed civil penalty in the amount of$17,500.00 was
proposed for this violation.
Order No. 6643561
Order No. 6643561 also alleges a violation of30 C.F.R. § 75.370(a)(l), on virtually the
same facts with respect to the #6 entry in the right side of the supersection (006 MMU). Ex. G-2.
Phillips similarly determined that it was reasonably likely that the violation would result in a fatal
injury, that the violation was S&S, that ten persons were affected, and that the operator's
negligence was high. The Order was also issued pursuant to section 104(d)(l) of the Act.
A specially assessed civil penalty in the amount of $20,500.00 was proposed for this violation.
The Violations
The alleged violations are virtually identical, and the critical facts and analysis of gravity,
whether they were S&S and the result of the operator's unwarrantable failure are the same.
Accordingly, they will be considered together. Sidney concedes that it violated its approved
Ventilation Plan as alleged in the Citation and Order. Resp. Br. at 3. The #3 and #6 entries had
previously been advanced a minimum of 49 feet each, and roof bolts had been installed. They
had then been advanced another 26 and 20 feet, respectively, and no line curtain had ever been
hung. As Thornbury admitted, "as soon as they started cutting, they should have had [line
curtains] up." Tr. 191-92. Sidney challenges the S&S and unwarrantable failure designations.
Significant and Substantial

An S&S violation is described in section 104(d)(l) of the Act as a violation "of such
nature as could significantly and substantially contribute to the cause and effect of a coal or other
mine safety or health hazard." A violation is properly designated S&S "if, based upon the
particular facts surrounding that violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious nature." Cement Div.,
Nat'l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
The Commission has explained that:

31FMSHRC1200

fu order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum, the Secretary of Labor must
prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete
safety hazard--that is, a measure of danger to safety--contributed to by the
violation; (3) a reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in question will be of a
reasonably serigus nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal,
Inc. v. MSHA, 52F.3d133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary ofLabor, 861
F.2d 99, 103-04 (5th Cir. 1988), affg Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987)
(approving Mathies criteria).
fu U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Conp:nission
provided additional guidance:

We have explained further that the third element of the Mathies formula "requires
that the Secretary establish a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury." U.S. Steel Mining Co., Inc.,
6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance
with the language of section 104(d)(l ), it is the contribution of a violation to the
cause and effect of a hazard that must be significant and substantiaL U.S. Steel
Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574-75(July1984).
This evaluation is made in terms of "continued normal mining operations." U.S. Steel,
6 FMSHRC at 1574. The question of whether a particular violation is significant and substantial
must be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC
498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
The fact of the violation has been established. A measure of danger to safety was
contributed to by the failure to hang line curtains in conformance with the requirements of the
Ventilation Plan. Phillips cited the violations as S&S because he believed that it was reasonably
likely that a spark from the cutting heads of the continuous miners would ignite the suspended
coal dust, causing an explosion that would, in a "worst case scenario," result in fatal injuries to
all ten miners working on the sections. 1 Tr. 102. There is little question that an explosion would
1

Phillips also mentioned that miners inhaling the dust could contract "black lung or
silicosis." Tr. 80. However, no dust samples were taken that day, and that aspect of potential
injury was not pursued further. Tr. 129-30: Line curtain was required only as the face was
advanced beyond 44 feet. Any exposure to excessive dust attributable to the violation would
have occurred for a relatively short duration, as the faces were advanced to the next break. While
respiratory diseases associated with dust exposure are serious injuries, the evidence does not
support a finding that the violations were reasonably likely to cause a respiratory disease.
31FMSHRC1201

result in immediate fatalities to at least the miner operator, and any other miner working in the
entry. As is often the case, the primary issue in the S&S analysis is whether the violation was
reasonably likely to result in an injury causing event - here, an explosion.
Phillips testified that "four sides of the pentagon for explosion" were present- oxygen,
confinement, suspension and fuel - and that the only missing factor was an ignition source.
Tr. 62. As to that facior, he was aware that exposure levels to dust had been reduced at the mine
because of the presence of quartz or silica, an indication of the presence of sandstone, which
could cause sparks when struck by a miner's cutting head. Some 10-12 inches ofrock was being
cut in the subject headings, and Phillips posited that a spark would supply the missing element
for a disastrous explosion. Tr. 73. He did not identify any other potential ignition sources.
Tr. 82.
The Commission has provided a framework for analyzing whether a fire or explosion is
reasonably likely to occur.
When evaluating the reasonable likelihood of a fire, ignition, or explosion,
the Commission has examined whether a 'confluence of factors' was present
based on the particular facts surrounding the violation. Texasgulf, Inc., 10
FMSHRC 498, 501 (April 1988). Some of the factors include the extent of the
accumulations, possible ignition sources, the presence of methane, and the type of
equipment in the area. Utah Power & Light Co., 12 FMSHRC 965, 970-71 (May
1990) ('UP&L ');Texasgulf, 10 FMSHRC at 500-03.

Enlow Fork Mining Co., 19 FMSHRC 5, 9 (Jan. 1997).
The Secretary argues that the Enlow Fork factors were satisfied for each violation, and
relies on assertions that methane was present. She asserts that "The mine has a history of
methane," and "Four of five elements for an explosion were present in this entry: oxygen,
confinement, dust suspension, and fuel (coal, coal dust, and methane)." Sec'y Br. at 6. That
methane is highly explosive- at concentrations between 5% and 15% has been well-documented.
However, the Secretary's attempt to cast the analysis in terms of a potential methane explosion
finds virtually no support in the record.
Phillips testified that there was no methane in the subject entries, and he did not identify
the presence of methane as a factor in his description of the explosion hazard. Tr. 62-63, 106.
He also related that Sidney's continuous miners were equipped with scrubbers, whereas, those in
mines that liberated appreciable quantities of methane were not, because of the potential
explosion hazard presented by the scrubber motors. Tr. 56. The "history of methane" evidence
was elicited by the Secretary on re-direct questioning of Phillips, where he indicated that an
unspecified quantity of methane had been detected, apparently on one occasion, in bottle samples
taken at two evaluation points on a longwall panel bleeder system. Tr. 136-37. Thornbury
detected no methane during his preshift examination, which was conducted shortly before the

31 FMSHRC 1202

alleged violations. Tr. 162; Ex. R-1. He believed that the methane detected in bottle samples
taken by Phillips was the first indication of methane in the mine, and was oflow concentration.
Tr. 176-77. Had the evidence established the presence of any significant quantity of methane in
the #3 and #6 entries, there would be little question that the violations were S&S. However,
there was no methane present.
The nature of tl!_e hazard posed by coal dust suspended in air is more difficult to evaluate.
It is apparent that coal dust, in general, does not pose nearly the explosion hazard that methane
does. Moreover, if the dust posed such a hazard, it could be expected that there would have been
a number of fires or explosions occurring in the mining process. Yet, as Phillips acknowledged,
he was aware of none. Tr. 106. Nor was Thornbury. Tr. 176. The Ventilation Plan required that
line curtain be hung no more than 44 feet from the face, and eight feet from the scrubber
discharge. Presumably, the ventilation air current would be drawn back out the entry after
passing the end of the curtain. Consequently, the area in proximity to a miner's cutting head,
where the sparks postulated by Phillips would occur, would typically be filled with coal dust. If
the suspended dust posed a serious hazard, as the Secretary contends, it would seem that ignitions
at the face would not be unusual occurrences. The absence of evidence of such ignitions, raises a
serious question about the likelihood of coal dust being ignited by a spark.
.It may be that suspended coal dust, under certain circumstances, can pose an explosion
hazard comparable to that of methane. Here, however, there is no evidence of concentrations or
other characteristics that would render it a serious explosion hazard, or whether such conditions
existed in the area of the violations. Without more, the presence of coal dust in the entries, and
the possibility that a spark would be generated by the miner's cutting head, do not establish that
an injury-causing event was reasonably likely to occur.

The Commission and courts have observed that the opinion of an experienced MSHA
inspector that a violation is S&S is entitled to substantial weight. Harlan Cumberland Coal Co.,
20 FMSHRC 1275, 1278-79 (Dec. 1998); Buck Creek Coal, Inc., v. MSHA, 52 F.3d 133, 135-36
(7th Cir. 1995). Phillips certainly qualifies as an experienced MSHA inspector. However, I find
that the Secretary has failed to. carry her burden of proving that it was reasonably likely that an
injury producing event would occur, as opposed to could occur. Accordingly, I find that the
violations were not S&S. See Amax Coal Co., 18 FMSHRC 1355, 1358-59 (Aug. 1996) (to
prove S&S nature of violation Secretary must prove that it is reasonably likely that an injury
producing event will occur, not that one could occur).
Unwarrantable Failure - Negligence

InLopke Quarries, Inc., 23 FMSHRC 705, 711(July2001), the Commission reiterated
the law applicable to determining whether a violation is the result of an unwarrantable failure:
The unwarrantable failure terminology is taken from section 104(d) of the
Act, 30 U.S.C. § 814(d), and refers to more serious conduct by an operator in
31 FMSHRC 1203

connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec.
1987), the Commission determined that unwarrantable failure is aggravated
conduct constituting more than ordinary negligence. Id. at 2001. Unwarrantable
failure is characterized by such conduct as "reckless disregard," "intentional
misconduct," "indifference," or a "serious lack of reasonable care." Id. at
2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991)
("R&P"); see_p,/so Buck Creek [Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir.
1995)] (approving Commission's unwarrantable failure test).
Whether conduct is "aggravated" in the context of an unwarrantable
failure analysis is determined by looking at all the facts and circumstances of each
case to see if any aggravating factors exist, such as the length of time that the
violation has existed, the extent of the violative condition, whether the ope!ator
has been placed on notice that greater efforts are necessary for compliance, the
operator's efforts in abating the violative condition, whether the violation is
obvious or poses a high degree of danger, and the operator's knowledge of the
existence of the violation. See Consolidation Coal Co., 22 FMSHRC 340, 353
.(Mar. 2000) ... ; Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug.
1998), rev'd on other grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest Material
. Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons .Coal Co., 16 FMSHRC
192; 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261(Aug.1992);
BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243.-:-44 (Aug. 1992); Quin/and
Coals, Inc., 10 FMSHRC 705, 709 (June 1988). All of the relevant facts and
circumstances of each case must be examined to determine if an actor's conduct is
aggravated, or whether mitigating circumstances exist. Consol, 22 FMSHRC at
353. Because supervisors are held to a high standard of care, another important
factor supporting an unwarrantable failure determination is the involvement of a
supervisor in the violation. REB Enters., Inc., 20 FMSHRC 203, 225 (Mar.
1998).
The Citation was issued pursuant to section 104(d)( 1) of the Act, which requires that the
violation be both S&S and the result of an unwarrantable failure. 30 U.S.C. § 814(d)(l). The
violations alleged in the Citation and Order have been held not to have been S&S. Consequently,
it is unnecessary to decide the unwarrantable failure issue. However, it is necessary to address
the issue of Sidney's negligence, which is alleged to have been high. Because the S&S findings
herein may, or may not, become final, the issue of unwarrantable failure will be addressed for the
sake of judicial economy.
The Secretary argues that the violations were the result of Sidney's unwarrantable failure
and high negligence primarily because its agent, Thornbury, knowingly permitted the violations.
Sec'y Br. at 7. Sidney contends that Thornbury did not knowingly permit the violations, because
he discovered them shortly before Phillips arrived and instructed his miners to take corrective
action. It also argues that the violations were not extensive, had existed for only a short period of
31 FMSHRC 1204

time, were promptly abated, and it had not been put on notice that greater compliance efforts
were needed. The violations were abated promptly, and their gravity was not as serious as
charged. They were reasonably extensive in that they involved both of the entries on the
supersection in which mining was being done. They existed for only 20 minutes or so because of
Phillips' arrival. I find that, had he not traveled to the faces, they would have existed for a
considerably longer period of time, most likely until the entries had been driven up to the
location of the next crosscut. Sidney had not been put on notice by MSHA that additional
compliance efforts were needed. However, Thornbury had previously experienced problems
with the hanging of curtains in the 006 section, which should have put Sidney on notice of an
increased potential for violations in that area. Tr. 181.
Judged by the traditional factors reiterated inLopke Quarries, whether Sidney's
negligence rose to the level of unwarrantable failure would present a close question. However,
as noted therein, the involvement of an agent of the operator is an important consideration. On
the facts of this case, the issue turns on foreman Thornbury' s actions.
Some of the pertinent facts are not in dispute. Thornbury testified that he traveled to the
#3 and #6 faces, found mining being done in violation of the Ventilation Plan, and told the
miners to get line curtain up. Tr. 164. His presence at the faces immediately preceded Phillips',
because the min~rs were shut down a minute or two before Phillips arrived. Thornbury testified,
that he did not know that Phillips was on the section, that he did not know that the Ventilation
Plan was not being complied with until he arrived at the faces, and that he took immediate
corrective action. Tr. 164. Phillips believed that Thornbury saw him as he came down the belt
line, and hurried to the faces because he knew that the Ventilation Plan was not being complied
with. The evidence supports Phillips' version of those events.
When Phillips arrived at the #3 face, one of the miners preparing the line curtain said,
"Too late, he's here." Phillips' testimony in that regard is consistent with his field notes, and is
unrebutted. 2 The statement strongly indicates that the miners were not only told to erect line
curtain, but that an MSHA inspector's arrival was imminent. There is no evidence that anyone
other than Thornbury went to _the faces and communicated with the men. Consequently,
Thornbury must have been aware of Phillips' presence on the section, and his impending
discovery of Sidney's noncompliance with the Ventilation Plan. While it is possible that the
statement could have been made if Thornbury had simply passed on the fact that he knew an
inspector was on the property, I find it more consistent with Thornbury' s having actual
knowledge of Phillips' presence. Thornbury' s having seen Phillips approaching is also a
somewhat more likely explanation for the timing of his and Phillips' visits to the faces. 3

2

Thornbury testified that he did not hear the statement. Tr. 171. However, he was not
in the area at the time, having left to warn the miners in the #6 entry.
3

Thornbury testified that he traveled to the faces after completing his preshift
examination, over an hour after he had been told that an inspector was on the property.
31FMSHRC1205

Phillips testified that Thornbury told him that he saw him go past the feeder and he tried
to get up to the faces to tell the men to get their curtain up. Ti. 49. Thornbury denied making
that statement. Tr. 168. However, the statement was recorded by Phillips in the notes that he
made contemporaneously with the inspection and issuance of the Citation and Order. Tr. 48-49;
Ex. G-3. I find that Thornbury made the statement, and that he saw Phillips approaching and
hurried to the section faces because he knew that the crews were not complying with the
Ventilation Plan.
As noted above, supervisors, like foreman Thornbury, are agents of the operator and are
held to a high standard of care. Thornbury's knowing toleration of the violations easily satisfies
the Secretary's burden of proving that the operator's negligence was high, and that the violations
were the result of its unwarrantable failure.
The Appropriate Civil Penalties
Sidney is a medium-sized operator, with a medium-sized controlling entity. The
assessment data reflects that it had 271 violations over 136 inspection days during the applicable
period, a relatively high incidence of violations. Sidney does not contend that payment of the
proposed penalty will affect its ability to continue in business. The violations were abated within
minutes. Phillips used a "worst case scenario" in determining that ten persons would be <iffected
·, by the ·violations. Tr. 102. His reasoning was that, in the event of an explosion, the continuous
miner·and shuttle car operators working in the subject entry would be killed immediately, and
other personnel working on the section would become disoriented in the smoke and could
eventually succumb to the conditions as their self-contained self-rescuers exhausted their
capacity. However, he testified that he did not believe that an explosion would actually result in
ten fatalities. Tr. 102. In the event of an explosion, it is reasonable to expect that miners in the
immediate area would suffer fatal injuries. However, while others on the supersection might also
be injured, it is unlikely that all ten would suffer an injury. I find that four miners were affected
by each violation, two fatally, and two with injuries resulting in lost work days or restricted duty.
Citation No. 6643560 is affirmed. However, the gravity of the violation was found to be
less serious than alleged, including that it was not S&S. A civil penalty of $17,500.00 was
proposed by the Secretary. The lowering of the level of gravity justifies a reduction in the
proposed penalty. I impose a penalty in the amount of$10,000.00, upon consideration of the
above and the factors enumerated in section 1 lO(i) of the Act.
Order No. 6643561 is affirmed. However, the gravity of the violation was found to be
less serious than alleged, including that it was not S&S. A civil penalty of $20,500.00 was
proposed by the Secretary. The lowering of the level of gravity justifies a reduction in the
proposed penalty. I impose a penalty in the amount of $10,000.00, upon consideration of the
above and the factors enumerated in section l lO(i) of the Act.

31 FMSHRC 1206

ORDER
Citation No. 6643560 and Order No. 6643561 are AFFIRMED, as modified, and
Respondent is ORDERED to pay a civil penalty in the amount of $20,000.00, within 30 days of
this decision.

Distribution (Certified Mail):
Ramonda C. Lyons, Esq., Max L. Corley, Esq., Sarah Ghiz Korwan, Esq., Dinsmore & Shohl,
LLP, P.O. Box 11887, 900 Lee Street, Suite 600, Charleston, WV 25339
Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219-2456

31FMSHRC1207

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON, DC 20001-2021
TELEPHONE: 202-434-9964 / FAX: 202-434-9949

October 8, 2009
CNIL PENALTY PROCEEDINGS

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

Docket No. SE 2007-264
A.C. No. 01-014901-114900-01

v.
Docket No. SE 2007-271
A.C. No. 01-01401-114900-02

JIM WALTER RESOURCES, INC.,
Respondent

Mine: No. 7 Mine

DECISION
Appearances: Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for the Petitioner;
Guy W. Hensley, Esq., Jackson Kelly, PLLC, Brookwood, Alabama, for the
Respondent.
Before:

Judge Weisberger

Statement of the Case
These cases are before me based upon Petitions for Assessment of Civil Penalty filed by
the Secretary of Labor ("Secretary''), alleging violations by Jim Walter Resources, Inc. ("Jim
Walter") of various mandatory safety standards set forth in Title 30, Code of Federal
Regulations.
Pursuant to notice, the cases were duly scheduled and heard in Birmingham, Alabama on
June 10, 2009. Subsequent-to the hearing, each party filed a brief. Neither party filed a reply
brief.

I.

Docket No. SE 2007-271
A.

Citation No. 7691427
1.

Findings of Fact

On July 16, 2007, MSHA Inspector Harry Wilcox inspected Jim Walter's No. 7 Mine, an
underground coal mine. In the course of his inspection, he examined the alternate escapeway
located in the intake air entry. According to Wilcox, two parallel stoppings, constructed from
solid concrete blocks, extended from the floor to the ceiling and laterally across the entry from
31FMSHRC1208

the right rib, looking inby, to the middle of the entry. A regulator was located within the concrete
blocks, and extended from the middle of the entry to the left rib: According to Wilcox, the small
size of the regulator opening as well as pressure created by the high volume of intake air flowing
through the regulator towards the face prevented passage through the regulator. An airlock that
extended from the right rib to the middle of the entry allowed passage in either direction through
the approximately six foot gap between the two stoppings.
A lifeline was provided in the entry for miners to use to escape in the event of diminished
visibility caused by smoke resulting from a fire or explosion. The lifeline, which extended from
the roof, was secured to the inby and outby sides of the airlock, but did not continue inside the
airlock between the stoppings. Thus, when escaping outby in an emergency with diminished
visibility, miners could escape in an outby direction by following the lifeline up to the inby
airlock door. However, at that point it would be necessary to open the airlock door, and traverse
the six foot distance inside the airlock to the outby door without the benefit of a lifeline. After
opening the outby airlock door and re-entering the entry, it would be necessary to locate the
lifeline in order to continue outby to escape.
Wilcox issued a citation alleging a violation of 30 C.F.R. § 75.380(d)(7), which was
modified two days later to allege a violation of 30 C.F.R. § 75.380(d)(7)(i), which requires, as
pertinent, that each escapeway should be provided with a "continuous, ... lifeline ... that shall be(i) Installed and maintained throughout the entire length of each escapeway ... ;" (emphasis
added).

2.

Discussion

Jim Walter did not adduce any evidence contrary to the facts set forth above, nor did it
impeach the inspector's testimony in these regards.
It appears to be Jim Walter's position that the lifeline was in compliance with Section
75.380(d)(7)(i). Jim Walter relies on the testimony of Ricky Parker, a safety supervisor, that
miners travel the escapeway every ninety days, and that no one has had any problem negotiating
the lifelines through the airlock.

In addition, Jim Walter relies on an MSHA computer-generated document, RX-1, which
the inspector identified as "Q and As" (Tr. 43.), which provides that "If doors cannot be avoided,
the lifeline should be secured to the stopping on either side of the door." Jim Walter argues that
it was in compliance with the cited standard, as the lifeline was secured to the stopping on either
side of the door. However, there is not any indication that RX-1 was promulgated pursuant to
notice and comment.
Further, RX-1 is not consistent with the plain meaning of the regulation at issue, which
requires that lifelines be, inter alia, "continuous." Webster's Third New International Dictionary
(2002 ed.) ("Webster's") defines continuous as "characterized byuninterrupted extension in
31 FMSHRC 1209

space: stretching on without break or interruption." Inasmuch as the lifeline at issue did not
continue through the airlock and there was a six foot break or interruption in the lifeline, I find
that it was not "continuous" within the common meaning of that term. Accordingly, I find that
the lifeline was not in compliance with Section 75.380(d)(7)(i). 1

3.

Penalty

Parker testified, in essence, that Jim Walter secured the lifeline to stoppings on either side
· of the airlock, in reliance on the "Q and As" (RX-1), "that was given out to us for compliance
guidelines." (Tr. 52) I observed his demeanor, and find his testimony credible in this regard. I
find that the level of Jim Walter's negligence was low. Taking into account all of the factors set
. forth ih:Sectlcin l lO(i) of the Federal Mine Safety and Health Act:of 1977, 30 U.S.C § 820(i) ·
("Mine Act"), and placing most weight upon the low level of Jim Walter's negligence, I fmd that
"
a penalty of $20.00 is appropriate for this violation.

B.

Citation No. 7691428
1.

Finding of Fact and Discussion

;On January 23, 2007, Wilcox inspected the main fan area on the surface of the Jim Walter
No. 7 Mii1e; A temporary vibration sensor cable was in use to monitor the vibration of the fan

1

Jim Walter argues, based on the following testimony of Parker, that the installation of a
continuous lifeline through the airlock "presents several problems that threaten safety by
interfering with the integrity of the lifeline." Jim Walter Resource's Proposed Findings of Fact
and Conclusions of Law, at 4 ("Jim Walter's Brief'):

Q.
A.

Are there any problems with running a lifeline through an
airlock door, as Mr. Wilcox described previously?
Yes, sir. We're having problems now with the doors
constantly cutting the lifeline in two, damaging the lifeline.
We're having to replace the lifeline continuously, due to the
abrasion of the door shutting against it and the vibration
due to the enom1ous amount of air currents coursing
through that ventilation control.

(Tr. 56.)
Thus, Jim Walter's argument in defense is essentially based upon a diminution of safety
which, according to well-established Commission caselaw, has been held to not constitute a
defense in an enforcement proceeding unless the Secretary has first entered a finding of such
diminution at a modification proceeding. See Clinchfield Coal Co., 11FMSHRC2120, 2130
(Nov. 1989), citing Sewell Coal Co., 5 FMSHRC 2026 (Dec. 1983), and Penn Allegh Coal Co., 3
FMSHRC 1392 (June 1981).
31 FMSHRC 1210

shaft to ensure that it would not cause the shaft to fail. The cable entered the metal compartment
for the sensor control through a door. It did not enter through ariy fitting; the door was closed
against the cable.
Wilcox issued Citation No. 7691428, alleging a violation of30 C.F.R. § 77.505, which
requires as follows: "Cables shall enter metal frames of motors, splice boxes, and electric
compartments only through proper fittings. When insulated wires, other than cables, pass
through metal frames, the holes shall be substantially bushed with insulated bushings."
Jim Walter urges that the citation be dismissed, and cites Wilcox's testimony that the
cable had been placed inside the metal compartment only on a temporary basis, that the current
· on the cable "would be milliamps," and that he did not find any cable damage. (Tr. 75.)
Jim Walter argues, in essence, that under these circumstances, Section 77.505 does not apply.
However, the mandate of Section 77 .505 is clear and unequivocal in requiring that cables
enter metal frames of electrical components "only through proper fittings." The language of
Section 77.505 does not provide for any exceptions. Thus, to rule in favor of Jim Walter would
result in the amendment of Section 77.505, which is manifestly beyond the powers of a
Commission Judge.

··. 2.

Conclusion

I find that the record establishes that the cable entered an electric compartment through its
door and not "through proper fittings." Thus, I find that it has been established that Jim Walter
violated Section 77.505.
Considering all the factors set forth in Section 11 O(i) of the Mine Act, I find that a penalty
of $60.00 is appropriate for this violation.

C.

Citation No. 7691429

The parties stipulated that a violation of 30 C.F .R. § 77 .504 occured as alleged in Citation
No. 7691429, and that $60.00 is an appropriate penalty for this citation. Secretary's Brief and
Argument, at 1, and Jim Walter's Brief, at 2.

II.

Docket No. SE 2007-264
A.

Citation No. 7690414

1.

Findings of Fact

On September 29, 2006, MSHA inspector Russell Weekly inspected Jim Walter's truck
shop. He indicated that four overhead lights in the left comer of the ceiling on the east side of

31 FMSHRC 1211

the shop were burnt out. According to Weekly, "[t]he area that these lights would have
illuminated was not very adequately lit, even at the time of day the citation was issued, which
was 0800." (Tr. 154.)
Weekly opined that a person walking to and from supply cabinets located on the east side
of the shop could trip over an approximately 3/4 of an inch thick steel plate that was located
under the cabinets. He asserted that persons working the evening or night shifts "could very
possibly'' trip over the.steel plate since the area would be dark without the benefit of sunlight.
(Tr. 162.)
Weekly issued a citation alleging a violation of 30 C.F.R. § 77.207, which provides that
''[i]llumination sufficient to provide safe working conditions shall be provided in and on all .· · .
surface structures, ... and working areas."
According to Parker, the floor of the structure at issue was sixty to seventy feet long, and
thirty to forty feet wide. He indicated that a garage door ten to twelve feet wide and
approximately fifteen feet high was located on the east side of the shop and was normally kept
open.
Parker testified that opaque fiberglass skylights extended around the perimeter of the .
walls of the building. The skylights, which were approximately six feet high, were located "from
halfway to three quarters of the [50 foot high] wall." (Tr. 235.)
According to Parker, there were four lights in the ceiling, in addition to the four cited by
Weekly. Also, there were a total of seven wall lights located halfway up the walls, and
distributed among the four walls. Parker testified that there were two cap lights in the shop, and
"we have" tripod and hanging lights although he did not see them in the shop. (Tr. 244.)
Parker, who was the inspector during the latter's inspection, testified that "We didn't
have a problem seeing anything that we needed to see at the time." (Tr. 245.) He opined that the
illumination was sufficient..·

2.

Discussion

I take cognizance of the inspector's opinion that the illumination in the shop was not
sufficient to provide safe working conditions due to the absence of four overhead lights.
However, the weight to be accorded this opinion is diluted by considering the presence of opaque
sky lights covering a significant portion of the walls surrounding the building. Further, I note the
presence of additional ceiling and wall lights, and the availability of cap lights. I, thus, find the
record does not establish that, during the daylight shift, illumination was insufficient.

Further, since the inspection was only during daylight, it is mere conjecture that the
illumination would not have been sufficient during the evening and night shifts. There was not
31FMSHRC1212

any evidence adduced regarding the amount of illumination shed by all the operative lights
located on the walls and ceiling. Moreover, I note the presence of additional portable lights, as
well as the availability of cap lights. Also, I note that Weekly did not indicate the spatial
relationship between the inoperative overhead lights, the working areas, and the location of the
supply cabinets where the potential tripping hazard of a steel plate was located.
For all these reasons, I find that the Secretary has failed to adduce sufficient evidence to
establish, by a preponderance of evidence, that due to the lack of four ceiling lights, the
illumination remaining was not sufficient to provide safe working conditions. For these reasons,
I find that it has not been established that Jim Walter violated Section 77.207. Accordingly,
Citation No. 7690414 is Dismissed.

B.

Citation 7690415
1.

The Secretary's Case

Weekly testified that there were not any weatherproof covers over two 110-volt wall
outlets that were located inside the shop. He indicated that a Jim Walter employee told him that
the area is sprayed down and washed out daily. He opined that if water was inadvertently
sprayed into the outlets in question, which were located four feet off the floor, the person doing·
the• spraying could suffer an electrical shock due to a short circuit. Weekly issued a citation
alleging a violation of 30 C.F.R. § 77.516.
Section 77.516 provides, as pertinent, that "all wiring and electrical equipment installed
after June 30, 1971, shall meet the requirements of the national electric code in effect at the time
of the installation." In support of the violation, the Secretary proffered a 1968 edition of the
National Electric Code ("GX-10"). Jim Walter objected to the admissibilityofGX-10, and after
listening to arguments, the objection was sustained.2
2

The ruling sustaining the objection is set forth as follows, except for corrections of
matters not of a substantive nature:
Section 77 .516 imposes a duty on an operator to meet the
requirements of the National Electric Code in effect at the time of
installation.
There isn't any evidence in the record of the time of the
installation of the shop, or any of the cited items. Therefore, the
record is inadequate to establish that the 1968 edition, GXl 0, was the
edition that was applicable on the date in question, i.e., the code that
was "in effect" at the time of installation. Since it has not been
established that GX-10 is relevant, I find it is inadmissible.
(Tr. 207-208.)
31FMSHRC1213

After the Secretary rested, Jim Walter made a motion for summary decision which was
granted. The decision granting Jim Walter's motion is set forth below, with the exception of
non-substantive changes, and the addition of matters that were inadvertently omitted.

2.

Bench Decision

The Secretary_ has the burden of establishing a violation, which entails establishing all
elements of a violation. Section 75.516 requires an operator to comply with the requirements of the
National Electric Code "in effect at the time of the installation."
The Secretary has not presented any evidence withregard to the time ofthe installation, either
of the structure that is at issue or specifically with regard to the wiring and installation of the outlets
at issue. Thus, the Secretary has failed to establish which edition of the code was in effect at the time
of the installation.
·
The Secretary proferred a copy of five pages from a 1968 edition of the National Electric
Code (GX-10). 3 Jim Walter objected to its admissibility. After each party argued the merits of the
objection, the objection was sustained. As such, GX-10 is not part of the record.
Thus, ·since the Secretary did not proffer the Code that was "in effect at the time of
installation" (Section 75.516), it is clear that the Secretary has not established a violation of Section
75.516.

3

The Secretary cites GX-10, page four, paragraph 410-54, which requires that "[a]
receptacle installed in damp or wet locations to be of the waterproof type." GX-10, p. 3, defines
"wet location" as follows: "A location subject to saturation with water or other liquids; such as,
locations exposed to weather, washrooms in garages and like locations."
There was not any evidence presented that the outlets at the location cited were subject to
saturation. The inspector indicated that Mark Talbert, the truck shop foreman, stated that the
floor area was washed out. The inspector opined that an uncovered outlet located on the inside
wall of the structure four feet off the ground might, in the process of washing down the floor, be
inadvertently hit by the water, causing possible damages. Such a situation is far short of the
requirement of being subject to saturation.
There is not any evidence that the location of the outlets were subject to saturation of
water or other liquids. Further, the location cited is not similar to those that are given as
examples under the definition of wet location on page three of GX-10, such as the locations
exposed to weather, washrooms in garages, and like locations.

31 FMSHRC 1214

For these reasons, the Jim Walter's motion is granted, and Citation No. 7690415 shall be
Dismissed.

C.

Citation No. 7690728
1.

Findings of Fact

On November T, 2006, MSHA inspector Billy Johnson inspected Jim Walter's
underground mining operation. He indicated that a JOY 12-27 continuous miner ("left side
miner") was not being operated. He noticed that it did not have a rock bar (pry bar). He
indicated that when he cited it, it was located in the No. 2 entry, and "I think [it was] in the last
open crosscut." '(Tr. 284.) Johnson opined that although the miner was not being operated when
it was cited, if it was intended for the miner to be used, then a rock bar is needed.

Johnson indicated that in the operation of the continuous miner, draw rock could be
encountered in the roof which would require the rock to be pulled so it would not fall and injure
miners.
According to Johnson, he told Joe Martin, a union safety man who was with him, and
Red Morgan, a manager, to show him ''~bar" ifthere was one in the face area, and they both said
that bars were not kept in the face area; they were kept on the equipment. (Tr. 287.)
Johnson issued Citation No. 7600728 alleging a violation of Section 75.21l(d), which, as
pertinent, provides that a "a bar for talcing down loose material shall be available in the working
place or on all face equipment except haulage equipment."
Parker indicated that he spoke to some persons who had first-hand knowledge of the
operation in the area in question. These persons told Parker that MSHA allowed the practice of
removing the bar from a miner that had backed out of the face and parked, and placing it on the
miner being operated on the other side of the section.

2.

Discussion

By its clear terms, Section 75 .211 (d) provides that, in essence, an operator is in
compliance if a bar is "available in the working place or on all face equipment." Thus, since the
clear wording of Section 75.21l(d) sets forth its obligations in the alternative, an operator is in
compliance if either a bar is available in the working place, or is on all face equipment. Thus, to
establish a violation, the Secretary must establish that a bar was neither available in the working
place, nor on all face equipment. For the reasons that follow, I find that the Secretary has not met
this burden.

a.

"[A]vailable in the working place"

31FMSHRC1215

"Available" is defined in Webster's, as pertinent, as follows: "(4): that is accessible or
may be obtained." Accessible, as pertinent, is defined in Webster's as pertinent, as follows "(4):
capable of being used."
Section 75.21 l(d) does not define the phrase "working place." However, 30 C.F.R. §
7 5 .2 defines ''working place" as "the area of a coal mine inby the last open cross-cut."
When Johnson issued the citation at issue, a bar was not physically located in the working
place. However, as testified to by Johnson on cross-examination, a bar was "retrieved ... within
five minutes" of the time the citation was written. {Tr. 293.) (emphasis added) It is significant to
note that the citation was issued pursuant to the examination of the left side miner, which was
located in the last open crosscut, i.e.," ~~that open passageway connecting entries closest to the
working face." Jim Walter Resources, Inc., 11FMSHRC21, 26 (Jan. 1989). (emphasis added) I
also note that the working place" was inby the last open crosscut. Jan. 30 C.F.R. §75.211.
Accordingly, since (1) it took only five minutes to "retrieve" a bar allowing Johnson to terminate
the citation, and (2) Johnson was apparently at the location of the cited miner in the last open
crosscut, it may be concluded that, when cited, it would have taken approximately five minutes
to bring a bar to the working place, i.e., inby the last open crosscut.
Accordingly, I find that the bar was "available" in the "working place" within the
common meaning of the former term. To rule otherwise would· result in the amendment of ,
Section 75.21 l(d) by substituting the word "located" for the word "available"and deleting the
latter word. Clearly this is a function beyond the scope of the powers of a Commission Judge.

3.

Conclusion

For all the above reasons, I find that Jim Walter was in compliance with the first phrase
of Section 75.21l(d), i.e., that a bar be "available in the working place." Thus, since the clear
wording of Section 75.211(d), requires that a bar be available at the working place "or" an all
face equipment, I find that Jim Walter satisfied one of the alternate mandates of Section
75.21 l(d). Therefore Citation No. 7690728 shall be Dismissed.
D.

Citation No. 7689496

1.

Findings of Fact

On January 2, 2006, MSHA inspector Edward Nicholson inspected the track entry while
traveling the entry in a personnel carrier that rode on tracks. He observed airborne dust while
traveling in and out of the entry. He indicated that there was sufficient dust to hinder visibility
on the track.
Nicholson issued a citation alleging that Jim Walter was not in compliance with its
ventilation and dust control plan ("Plan"), and as such violated 30 C.F.R. § 75.370(a)(l).
31FMSHRC1216

Specifically, he indicated that the basis for the citation was the non-compliance with "page 3" of
paragraph E of the Plan. According to Nicholson, as a consequence of the cited conditions, a
miner could develop respiratory diseases.
Parker indicated that he travels the area frequently and that "it's virtually impossible" to
keep all dust out of intake air:
due to . ~the large amount of velocity of air we have coursed down
through that entry especially, if you have - numerous
personnel carriers that can be traveling in this one entry of the track,
where we have deposited rock dust on the roof and the ribs, it also
goes on the floor.
·'
The vibration of the machine traveling the metal tracks, the
turbulence caused by all these pieces of equipment, can cause the
rock dust to fall from the ribs or roof and even be picked up from the
sides ofthe track because of this, in conjunction with the dust that can
be on the equipment itself.
(Tr. 335-36.)

Parker traveled the cited entry with the inspector. He indicated that the cited conditions
"[did not] constitute dust under the law." He explained his opinion as follows:
[D]ue to the minute amount that was present. ... [and] due
to the amount of velocity mass in the air, the dust is there for a few
minutes; and then it's gone. It's moved rather quickly away.
Q. Are you saying that any dust that's airborne is evacuated from the
area by the mine?
A. Yes, sir. It doesn't linger in the area.
(Tr. 337-38.)

2.

Discussion

30 C.F.R. § 75.370(a)(l), as pertinent, provides as follows: "The operator shall develop
and follow a ventilation plan .. . The plan shall be designed to control methane and respirable
dust and shall be suitable to the conditions and mining system at the mine." (emphasis added)
The ventilation plan, as pertinent, provides as follows:

*

*

*

31 FMSHRC 1217

E.
BELT AND TRACK HAULAGE SYSTEM
The belt and track haulage system will follow a dust control program.
The dust control program is one or any combination of the following
items:
1.
Removing accumulations of loose, dry coal
2.
Rockdusting
Wetting with water or other wetting agent.
3.
(GX 12.)
The clear language of Section 75.370(a)(l), as pertinent, requires that an operator follow
a ventilation plan which shall be designed to control dust. fu other words, the plan shall be
followed to control dust. These requirements are unequivocal, ·and do ·not provide for any
exemption from compliance, as urged by Jim Walter, based upon an impossibility to keep all of
the dust out of the intake air due to its velocity. It is significant that Parker did not~specifically
impeach or contradict Nicholson's testimony that, when cited, dust was observed in the air which
impaired visibility. Further, I observed the witnesses' demeanors, and I find Nicholson's
testimony regarding the presence of airborne dust to be credible. I find that at the time cited, due
to the presence of dust in the air that impaired visibility, Jim Walter was not "following a dust
control program." Accordingly, I find that Jim Walter violated Section 75.370(a)(l).
According to Nicholson, Jim Walter did have a program for keeping the track wet in the
cited area. I also note Parker's testimony that if an area is deemed necessary for wetting or rock
dusting, he "would get in touch with the proper management person to get that action taken." (Tr.
334.) Also, based on Parker's testimony that was not impeached or contradicted, I take
cognizance of the difficulty to keep all dust out of the air due to the velocity of air in the entry,
and the operation of carriers on the track causing the production of dust. I thus find the level of
Jim Walter's negligence to be significantly mitigated. Considering this finding, as well as the
other factors set forth in Section l lO(i) of the Mine Act, I find that a penalty of $20.00 is
appropriate.
ORDER
It is Ordered that the following citations be Dismissed: 7690414, 6790415, and
7690728. It is further Ordered that, within 30 days of this decision, Jim Walter shall pay a total
civil penalty of $120 for the violations found herein.

&sber~
Administrative Law Judge

31FMSHRC1218

Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219
Guy W. Hensley, Esq., Jim Walters Resources, fuc., P.O. Box 133, Brookwood, AL 35444

/Ip

31FMSHRC1219

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19TH STREET, SUITE 443
DENVER, CO 80202-2500
303-844-3577/FP\X 303-844-5268

October 16, 2009
CONTEST PROCEEDING

MOUNTAIN COAL COMPANY, LLC,
Contestant

Docket No. WEST 2007-409-R
Citation No. 7291353; 3/26/2007

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

West Elk Mine
Mine Id. 05-03672

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

CNIL PENALTY PROCEEDING
Docket No. WEST 2008-129
A.C. No. 05-03672-128598

v.
West Elk Mine
MOUNTAIN COAL COMPANY, LLC,
Respondent

DECISION
Appearances:

Laura E. Beverage, Esq., and Dana M. Svendsen, Esq., Jackson
Kelly PLLC, Denver, Colorado, for Mountain Coal Company, LLC;
Mary Forrest-Doyle, Esq., and Tracy B. Agyemang, Esq., Office of
the Solicitor, U.S. Department of Labor, Arlington, Virginia,
for the Secretary of Labor.

Before:

Judge Manning

These cases are before me on a notice of contest filed by Mountain Coal Company, LLC
("Mountain Coal") and a petition for assessment of civil penalty filed by the Secretary of Labor,
acting through the Mine Safety and Health Administration ("MSHA") 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 Denver, Colorado. The parties introduced
testimony and documentary evidence and filed post-hearing briefs. For the reasons set forth
below, I find that the Secretary established a violation of the safety standard.
Mountain Coal operates the West Elk Mine, a large underground coal mine in Gunnison
County, Colorado. The mine extracts coal in panels using a longwall system. As discussed
31FMSHRC1220

below, the parties settled several of the citations prior to the hearing, so only Citation No.
7291353 was at issue at the hearing.
I. BACKGROUND

A. The Citation and Stipulations.
On March 26, 1007, Inspector Brad Allen issued Citation No. 7291353 under section
104(a) of the Mine Act, alleging a violation of30 C.F.R. § 75.l 725(a), in part, as follows:
The mine operator failed to maintain mobile and stationary
machinery and equipment in safe operating condition and
machinery and equipment that was in unsafe condition was not
removed from service immediately. Numerous hydraulic hoses on ·
the support shields in MMU 010-0 at 20 headgate had rubber
jacketing tom back and the wire braid shields were damaged with
multiple broken strands on each hose. Both high pressure feed
hoses and return line hoses were damaged along the rear walkway
of the shields. Hose sizes ranged from #6 to #16 in size and
hydraulic pressure was as high as 5000 pounds per square inch.
Thirteen miners were working in the longwall area during this shift
and the longwall was operating shearing. coal on the previous shift.
. . . Ruptured or broken high pressure hydraulic hoses can cause
fluid injection, hose whip injuries, or compromise the operation of
the support shields ....
The inspector determined than an injury was reasonably likely and that a fatal accident
could occur. He determined that the violation was of a significant and substantial nature
("S&S") and that the company's negligence was moderate. Section 75.l 725(a) provides that
"[m ]obile and stationary machinery and equipment shall be maintained in safe operating
condition and machinery or equipment in unsafe condition shall be removed from service
immediately." The Secretary proposes a penalty of $5,300.00 for this citation.
The parties filed joint stipulations, in which they agreed that the mine is subject to the
Mine Act and that the Commission has jurisdiction to hear the case. Other facts were also
stipulated to, including the following:
6. The 13 cited hoses are included within the meaning of
the term "equipment" as used in§ 75.1725(a).
7. Between November 2006 and the time the [citation] was
issued in March 2007, Mountain Coal was operating one longwall
section, Panel 20, which was approximately 1,000 feet wide.
31 FMSHRC 1221

12. Typically, a longwall crew at West Elk consisted of
five miners and one supervisor, including a hea:dgate operator, a
headgate shearer operator, a tailgate shearer operator, two shield
movers and a production supervisor. In addition, there were
usually two mechanics and a maintenance supervisor assigned to
each longwall production shift.
13. At the time of issuance of the [citation], Daniel Kunde
was employed in the position of Longwall Maintenance
Coordinator at ... West Elk. At that time, [four other employees]
were working in the position of Longwall Maintenance Supervisor
at ... West Elk. Daniel Kunde has 30 years of experience working
in underground Mines. He has been employed at the West Elk
Mine for over 19 years, all of the time spent on the longwall. In his'
position as the Longwall Maintenance Coordinator, he oversees
daily maintenance and setups on the longwall, and is responsible
for the direction of the front line Longwall Maintenance
Supervisors. He has been a Longwall Maintenance Coordinator for
five years ....
14. Miners typically travel along the longwall by walking
in the "front walkway," between the panline and the leg cylinders
of the shields.
15. Miners typically do not enter the ''back walkway,"
except to perform inspections, repair, replace a hose, or ifthe front
walkway is obstructed given the confined dimensions of the area.
16. None of the 13 cited hoses were located in the front
walkway.
17. The 13 cited hoses were all inner-shield hoses, rather
than shield-to-shield.
18. Failure of any of the 13 cited hoses would not result in
shield failure.
19. The hydraulic fluid used in 12 of the cited hoses was
comprised of approximately 95% water and 5% emulsion fluid.
20. The hose locations depicted in red in Respondent's ...
Exhibit 17 are accurate.

31 FMSHRC 1222

II. SUMMARY OF THE EVIDENCE
This case raises technical issues concerning the safety of hydraulic hoses. As a
consequence, I have included in this decision a detailed summary of the evidence presented.

A. Brad Allen
fuspector BradAllen testified that he worked in the mining industry for 13 years prior to
joining MSHA. (Tr. 9). Allen spent two of those years working on a longwall as a headgate
operator, shield puller, longwall mover, and fill-in foreman. (Tr. 10-11). He has never worked
on a longwall with a front and back walkway like the one at West Elk. (Tr. 67).
Allen testified that on March 26, 2007, he and two other MSHA inspectors were at West
Elk to conduct a permissibility inspection. (Tr. 14, 49). The three MSHA inspectors were
accompanied by three Mountain Coal employees, including Dan Kunde. (Tr. 14-15). During the
inspection Allen noted that numerous hydraulic hoses on the longwall shields had tom and
deteriorated outer jackets and broken wire braiding. (Tr. 15). Allen inspected the hoses from the
front and back walkways. (Tr. 272). No deck plates were removed during the inspection and at
no time did Allen climb down to look at the underside of the hoses. (Tr. 272, 274). Allen issued
Citation Number 7291353 under section 75.1725(a) for the unsafe operating condition of
;multiple hoses. 1 (Tr. 15, 26). All of the cited hoses were located in the back walkway. (Tr. 45).
None of the hoses were cited for deficiencies with their fittings. (Tr. 61).
Allen testified that he determines whether a hose is in a safe operating condition by
looking at the manufacturer's recommendations for that specific hose, the overall physical
appearance of the hose, whether there are exposed or broken wire strands, and the condition of
the fittings. (Tr. 27-28, 62). Allen testified that MSHA puts "a lot of stock in manufacturer
recommendations," but he could not remember the manufacturer of these particular hoses. (Tr.
27, 60). Additionally, he testified that manufacturers generally provide conservative product
recommendations in order to protect the people working around the equipment, as well as to
protect themselves from litigation. (Tr. 71-72).
Allen testified that, when examining a hose, he first looks for obvious external damage by
performing a quick visual inspection. (Tr. 18-19). If he observes damage to the outer jacket of
the hose, then he clears any debris from the damaged area to determine if the wire braiding under
the outer jacket has been damaged. (Tr. 21). He looks for broken wire strands by running the
flat edge of a screwdriver blade along the strands. (Tr. 21). If there are broken wire strands then
those strands will move as the screwdriver passes over them. (Tr. 21). During his inspection,
each cited hose had at least one broken wire strand, in addition to a damaged outer jacket. (Tr.
18-26). Allen believes that the outer jackets appeared to have been "tom" as opposed to "rubbed
1

At the time of the citation, Allen mistakenly believed that if a hose were to fail, shield failure
would be a possibility. He later determined that this was not likely given the presence of check
valves that prevent the shield from collapsing ifthere is a hose failure. (Tr. 53)
31 FMSHRC 1223

through." (Tr. 73). If there are broken wire strands, then the hose's ability to contain the
hydraulic fluid has been compromised. (Tr. 28). A violation exists ifthere is one broken wire
strand on any hose. (Tr. 43, 49-50).
Allen testified that a hose failure could result in hydraulic injection or whipping hose
injuries to the miners on the longwall. (Tr. 28-29; Ex. G-4). Falling roof rock, corrosive mine
water, the moving ofJongwall components in close proximity to the hoses, and cutting and
welding around the hoses could all exacerbate the risk of hose failure; however, Allen could not
say whether these conditions exist at West Elk. (Tr. 30-31, 50, 67-68). Allen testified that, while
he did not know the actual service pressures of the hoses, a hydraulic fluid injection injury could
occur at a pressure of 100 psi, but the severity of the injury may be less at lower pressures or if
the stream has been deflected off of another surface before hitting a miner. (Tr. 41-42,45, 63- ·
65). Hydraulic fluid could spray from the hoses in the back walkway to the front walkway. (Tr.
45, 76). Additionally, it is possible for a miner to be on the front walkway of an inactive shield
and be in the direct line of sight of pressurized hoses on an activated adjacent shield that is being
advanced. (Tr. 269-270). A miner could be in that position ifhe was using the controls on the
inactive adjacent shield to advance the activated shield. (Tr. 271, 275-277). Allen could not say
if this is the practice used- at West Elk, but he did state that he had seen people making
adjustments from adjacent shields, although he could not recall how often he had seen it. (Tr.
275-278). :
Allen acknowledged that the West Elk miners do utilize personal protective equipment,
such as Airstream helmets with face shields, rain suits, gloves, and safety glasses. (Tr. 68-70, 7475, 78-79). However, he noted that not all of the miners wear all of this equipment, and some of
the equipment, such as cotton backed gloves and rain suits, would probably not be adequate to
protect against a hydraulic fluid injection injury. (Tr. 68-70, 74-75, 78-79).
Allen found that the violation involved a moderate degree of negligence on the part of
Mountain Coal. (Tr. 33). Allen determined that 13 people had the potential to be injured, but he
could not recall exactly how he arrived at that number. (Tr. 71-75). He found that an injury was
"reasonably likely'' to occuF given the hoses' location in the back walkway, and the location of
the damage on the hoses. (Tr. 46-47). Allen testified that the MSHA website provides guidance
materials and links to outside materials that discuss hose safety practices. (Tr. 36-37; Ex. G-5).
Allen testified that his personal notes from the day of the citation indicate a conversation with
Kunde, during which Kunde stated that the operator had not done a very good job with the hoses
and agreed with the violation. (Tr. 41; Ex. G-2).

B. James Angel
James Angel is a mechanical engineer in the mechanical engineering safety division of
MSHA in Triadelphia, West Virginia. (Tr. 80). He has a bachelor's degree in mechanical
engineering and has worked for MSHA for 26 years. (Tr. 80; Ex. G-9). He spends the majority
of his time investigating accidents and providing technical assistance to inspectors and mine

31 FMSHRC 1224

operators. (Tr. 80-81). Angel is an active member of multiple professional organizations and is
currently involved in setting safety standards for personal protection on machinery, fire
protection standards for earth moving equipment, tire out-of-service guidelines, and tire fire
handling guidelines. (Tr. 81-82).
Angel testified that his experience with hydraulic hoses is mainly in the areas of fire
protection, and abrasion and failure of hoses on diesel-powered equipment. (Tr. 82). He has
been involved in the approval of multiple regulations and rules utilized by MSHA. (Tr. 81 ). He
has never been directly involved in investigating a hydraulic hose failure, but he has been
indirectly involved with an investigation of a whipping hose injury. (Tr. 108-109).
Angel prepared a report on the hydraulic hoses. (Tr.·· 84; Ex~ G-10). He did not see the
actual hoses until after the report was prepared. (Tr. 96). He prepared the report using
manufacturer literature, the cited safety standard, the citation, MSHA materials, and photographs
of the hoses. (Tr. 81, 84-85, 126-127). Based on his analysis of these materials, Angel testified
that once the structural component of the hoses, i.e., the wire braiding, has been compromised,
the hoses are no longer fit for use and present a risk of injury. (Tr. 86). Angel described the
hoses as all having exposed wire braiding, all with at least one broken wire strand, and some with
areas of corrosion. (Tr. 97-101). Once the wire braiding is exposed it will start to deteriorate and
eventually lead to hose failure; however, there is no way to tell how long it would take for a hose
to fail. (Tr. 86, 129). Because hoses are "consumable items" they should be replaced when the
strUctural integrity has been compromised. (Tr. 101 ). Additionally, Angel testified that one hose
had a damaged ferrule, which could cause the hose to come loose while under pressure and whip
around. (Tr. 98). A ferrule is the metal fitting at the ends of each hose.
0

At the time of his report, based on the information that he had, Angel believed that
abrasion had caused the damage to the hoses. (Ex. G-10). Prior to the hearing, after viewing the
hoses in person, he concluded that many of the hoses had actually been damaged by exposure to
high temperatures. 2 (Tr. 96-97). Angel testified that this kind of damage could have been
caused by exposure to a fire or oxy-acetylene cutting or welding, although he was not aware of
either occurrence at West Elk. (Tr. 98, 111-112). The report did not include any analysis
regarding the anticipated direction that the fluid would be ejected if a hose were to fail. (Tr.
147). Angel stated that all of the layers of wire braiding reinforcement would have to fail for the
hose to fail. (Tr. 130). The only damage he viewed was to the outermost layer of wire braiding.
(Tr. 126). If the rubber separating the layers of wire braiding remains intact, then, barring heat
damage, you would not expect water or other corrosive materials to affect the inner levels of wire
braiding. (Tr. 159, 161-162). Heat damage can penetrate into a hose and affect the strength of
all layers of wire braiding, but Angel could not tell from viewing the hoses whether the inner
layers of braiding had been affected. (Tr. 131-132). There is no field test for checking interior
damage to a hose. (Tr. 157).

2

Angel testified that the hose with the damaged ferrule was the only hose that presented anything
more than a minimal risk of whipping hose injury. (Tr. 150).
31FMSHRC1225

Angel testified that hose failure can cause injuries such as fluid injection, fluid in the
eyes, fluid on walking surfaces causing slippery conditions and leading to falls, and a minimal
risk of whipping hose injuries. (Tr. 86-87). Fluid injection injuries can occur at pressures much
less than what the cited hoses were operating at, but, to be injured, the individual must be within
inches of the hose. (Tr. 145-147). Cloth gloves, leather gloves, and PVC rain suits do not
provide adequate protection against fluid injection injuries, and safety glasses cannot totally
prevent hydraulic flui_d from getting into a miner's eyes. (Tr. 102-104). Additionally, he was not
aware of any MSHA fatalities from fluid injection, or written materials regarding specific injuries
that resulted from hoses that were in a similar condition to those at issue. (Tr. 119-120).
Angel testified that the testing conducted by Olof Jacobson, Mountain Coal's expert .
witness, call' only determine if that specific hose would have failed under the test conditions. (Tr.
92-93). Pressure ratings and cycling impulses are internal factors that affect the strength of a
hose. (Tr. 156). The actual hoses were not rendered unsafe by the pressures they were subjected ·
to, but rather by external damage and environmental conditions that the hoses operated in. (Tr.
93-94). Outside factors that can affect the strength of a hose are addressed by the outer jacket or
additional covers that make the hose more resistant to abuse. (Tr. 156). Jacobson's tests did not
take into account any of the environmental factors that were present at the mine. (Tr. 93-94) .
. Angel also testified that while manufacturers do vary to some degree, they are
-_ "surprisingly uniform" in their recommendation that hoses be taken out of service once the-wire
braiding is exposed. (Tr. 107). Angel believes that manufacturers recommend that hoses be
removed from service when the outer layer of wire braiding has been exposed because it is
difficult to determine all of the factors that can affect a hose. (Tr. 157). Angel maintains that a
prudent operator would follow these recommendations. (Tr. 122). A broken strand is
confirmation that the structural integrity of the hose has been compromised. (Tr. 124).
Angel testified that "safety factors" and "percentage of service ratings" relied upon by
Mr. Jacobson are irrelevant once a hose has been damaged to the point that the safety guidelines
issued by hose manufacturers suggest that the hose be taken out of service. (Tr. 106, 136, 144).
Safety factors are intended to protect against unknown factors that the manufacturer cannot
predict, rather than known factors like visible damage to the outer jacket and wire braiding, as is
the case here. (Tr. 105-106).

C. DanKunde
Dan Kunde, who has worked in longwall maintenance at the West Elk mine for 19 years,
has been the maintenance longwall coordinator since 2005 and is in charge of purchasing
equipment, supervising maintenance personnel, and looking after the general maintenance of the
longwall system. (Tr. 165-66). Kunde testified that he works with hydraulic hoses on a daily
basis. (Tr. 167).

31FMSHRC1226

The hoses on the longwall are examined on a weekly and monthly basis, in addition to
being examined on an ongoing basis by the production crews. (Tr. 184-185). The deck plates
that the hoses pass under are situated such that you can see underneath the plates on one edge.
(Tr. 192). Most of the hoses in the back walkway can be viewed and examined from the front
walkway. (Tr. 201 ). It is Mountain Coal's policy that no one may be on a shield while it is
activated or being moved. (Tr. 181 ). While Mountain Coal has no written criteria for what is
considered a safe or unsafe hose, factors that are considered include the location of the hose, and
the pressures, cycles, and operating conditions of the hose. (Tr. 170, 186, 202).
Kunde testified that all of the cited hoses were intrashield3 hoses located in the back
walkway and that all of the worn areas were either under the deck plates or facing downward into
the floor rather than facing the front walkway. (Tr. ·171-180, 185). Given that the back walkway
is a confined area where it is hard to move around and that equipment is never moved through it,
the only reason anyone would be in the back walkway would be for permissibility inspections.
(Tr. 181, 200). The hoses are fixed in a staple-lock fitting and cannot spin. (Tr. 195). Fluid
from a pinhole perforation could ricochet off of something and be redirected toward the front
walkway Where miners work. (Tr. 205). Most miners on the longwall wear personal protective
equipment such as Airstream helmets with impact resistant face shields, safety glasses with side
shields, leather gloves, shin guards, and rain jackets. (Tr. 182-183).
Kunde testified that it is highly unlikely thathigh temperatures caused the damage to the
hoses since there had been no fires, cutting, or welding in the back walkway. (Tr. 180-181). The
wear on the hoses is a result of the hoses rubbing against the deck plates. Id. Many of the hoses
are extremely overrated for their application and operate at only 2% to 3% of their rated capacity.
(Tr. 186). The hoses that operate at a pressure closer to their rated capacity are given additional
attention by mechanics, who make mental notes about the condition of the hoses. (Tr. 188). All
of the hoses have a burst rating of20,000 psi so that there is no chance a hose will be mistakenly
put into service at a pressure beyond its pressure capacity. (Tr. 202). The feed side hoses are
only pressurized for three seconds when a shield is moved. (Tr. 170). Mountain Coal has used
hoses in a similar condition to those cited and has never had an injury or been cited by MSHA for
their use. (Tr. 188-189). Kunde testified that, based on these factors, the wear on the hoses
presented no danger and it wa8 reasonable and prudent for Mountain Coal to continue to have the
cited hoses in service. (Tr. 187).
Kunde testified that Allen never looked at the hydraulic schematic for the longwall. (Tr.
169). Kunde denies ever telling Allen that Mountain Coal had not done a good job maintaining
the hoses. (Tr. 189). Kunde was not present when the hoses were removed from their fittings,
but, having seen other hoses removed, he recognized that the damage to the ferrule was most
likely the result of having to "smack" the hose a number of different directions to release it from
the fitting. (Tr. 178-179, 197).
3

The stipulations used the term "inner-shield" hoses. These terms simply mean that both ends of
each hose were connected to the same longwall shield so that each hose was confined to a.single
shield.
31 FMSHRC 1227

D. Olof Jacobson
Jacobson testified for Mountain Coal as an expert witness in mechanical engineering with
expertise in hydraulic hoses. (Tr. 221). Jacobson is currently employed by Jacobson Forensic
Engineering as a forensic engineer. (Tr. 211). He has a bachelor's degree in mechanical
engineering and a master's degree in applied mechanics, although he has taken no courses on
mining engineering. (Tr. 212, 252). Jacobson is an active member of multiple professional
organizations aiid is ilivolved in setting standards for vehicle accident reconstruction engineering,
engineering practice, and guidelines for standard engineering practice. (Tr. 212). Jacobson has
taught engineering classes and occasionally still lectures at local universities regarding failure
analysis, forensic engineering, and ethics. (Tr. 212). He has worked for Public Service
' Company of Colorado, Samsonite, and various power plants .. (Tr .. 215-216). In those positions
he has designed retrofits for coal-fired power plants that utilized hydraulic hose systems,
implemented a hydraulic preventative maintenance program, dealt with hydraulic equipment
during the construction and operation of power plants, been involved in the selection of hoses
during the design of equipment, and worked on failure analysis issues associated with hydraulic
hoses. (Tr. 215-216, 220; Ex. R-23).
Jacobson testified that he examined the mechanical wear on the hoses. (Tr. 223). He
stated that the damage to the hoses was restricted to the outer jacket and outermost layer of wire·
braiding, and that none of the inner layers of wire braiding were .damaged. (Tr.·238, 248).
Jacobson testified that, in the past, he has assessed heat damage to hydraulic hoses during
investigations of fires in mechanical equipment. (Tr. 224). Additionally, he has looked at
technical literature on what fire and heat can do to hoses, and has studied standards and standard
protocols for investigating fires. (Tr. 224). Using this background, he determined that there was
no evidence of heat damage in this instance. (Tr. 224).
Jacobson testified that as part of his investigation he visited the West Elk Mine to see the
location of the hoses, how the hoses were bent, how accessible the hoses were, the source of the
mechanical wear, and other general service conditions. (Tr. 223, 225). Jacobson stated that the
West Elk longwall is designed with relief valves to prevent the hydraulic system from exceeding
its maximum service pressure. (Tr. 228-229; Ex. R-21). The hoses utilized by Mountain Coal
are "overdesigned" for their application in order to account for the wear and tear that they will be
subjected to by the service conditions. (Tr. 235-236). Most of the hoses operate at only a small
percentage of their overall pressure rating. (Tr. 229). Based on this information, using "one
broken braid ... [as] the criteria for removing a hose is incredibly overly cautious[,] [and]. .. [i]t
is not realistic." (Tr. 237). All of the service conditions need to be considered. (Tr. 236).
Jacobson testified that he often reviews manufacturer literature, and agrees that it should
be considered when evaluating the condition of a hose; however, in order for the manufacturers
to protect themselves from civil liability, the literature is often very conservative. (Tr. 256-257,
259, 263). Organizations like the International Organization of Standardization ("ISO") and
SAE include representatives from hose manufacturers, manufacturers of machinery that use the
31FMSHRC1228

hoses, purchasers of the hoses, people who maintain the hoses, and the designers of the hoses.
(Tr. 213-214, 263). The SAE standards say nothing about one broken braid being enough to
_ require a hose to be removed from service. (Tr. 264).
Jacobson testified that all of the hoses used at the West Elk mine have a safety factor of
four, meaning they are not expected to fail until the actual pressure reaches 400% of the rated
pressure. (Tr. 245). The damage to the cited hoses will not eliminate the safety factor, but
rather, will cause the safety factor to degrade as more and more braids are broken. (Tr. 235).
Jacobson testified that in order to determine the strength and service life left in the cited
hoses, he conducted pressure tests on similar hoses that he purchased (the "exemplar hoses") and
on the cited hoses; (Tr. 222). fu order to account for continuing environmental factors, the hoses
were subjected to higher pressures than what they were subjected to while in service at West Elk.
.
(Tr.251).
For the exemplar hose testing, he purchased from Mountain Coal's supplier two new
hoses of each size that was cited. (Tr. 222, 239; Ex. R-25). Jacobson and a coworker
intentionally damaged one-exemplar hose in each size in an effort to recreate as closely as
possible the most damaged cited hose in that size. (Tr. 222, 239). Jacobson took the three
remaining exemplar hoses and removed three· to four inches of the outer jacket and first layer of
braiding reinforcement. (Tr. 222-239): All of the exemplar hoses were thenpre~surize&for
approxiniately ten minutes at 50%, ten minutes at 100%, ten minutes at 150% and twenty
minutes at 200% of their rated pressures. (Tr. 241, Ex. R-26). Five of the six exemplar hoses
did not fail. (Tr. 241-245). The one hose that did fail had been accidentally damaged during test
preparation when the innermost layer of wire braiding was "nicked." (Tr. 239-240, 243-244). fu
spite of the damage, the hose did not fail until the pressure approached 10,000 psi. (Tr. 244).
That failure resulted in a large hole that allowed a low velocity, high volume release of fluid, and
not a fine spray. (Tr. 248-249). The exemplar tests revealed that even if the outer jacket and
outermost layer of wire braiding were totally removed, the pressure on all the hoses could still go
to at least twice the rated pressure, and therefore the safety factor would be no lower than two.
(Tr. 245).

·. wire

Jacobson created the testing protocol for the cited hoses based on the information
obtained from the exemplar testing. (Tr. 245-246; Ex. R-27). Not wanting to destroy the cited
hoses, he pressure tested all of them for ten minutes at 120% and ten minutes at 140% of their
maximum service pressure. (Tr. 245-246). He testified that, based on this testing and analysis,
"the hoses in the mine were perfectly safe." (Tr. 246-247; Ex. R-28).
Jacobson testified that based on the information he obtained from the two sets oftests,
there was not a threat of imminent failure, the hoses were in a safe working condition, and all of
the hoses still had a fairly long service life remaining. (Tr. 246-248). He based his opinion on
the fact that the hoses were tested at a much higher pressure than what they would ever see while
in service. (Tr. 249-250). None of the cited hoses had been damaged to the extent of the
31 FMSHRC 1229

exemplar hose that failed. (Tr. 250) The exemplar hose that failed still had a safety factor of
approximately two. (Tr. 250) This is evidence that the cited lioses would have to be damaged
more than the failed exemplar hose for there to be any risk of hose failure at the service pressures
used at the mine. (Tr. 250).

III. BRIEF SUMMARY OF THE PARTIES' ARGUMENTS
~

A. Secretary of Labor.
The Secretary argues that Mountain Coal violated the safety standard by failing to
maintain the cited hydraulic hoses in a safe operating condition. The dictionary definition of
''safe1' is instructive. ·"Safe" can be defined as "secure from threat of danger, harm or loss.'?.
(Sec'y Br. 12). As a consequence, an operator must maintain equipment "in a condition free
from the potential for danger." (Sec'y Br. 12-13). The overwhelming weight of the evidence
shows that Mountain Coal failed to meet this requirement. The cited hoses displayed obvious
and significant damage. Materials available at MSHA's website, the literature of hose
manufacturers, and professional engineering organizations all advise against the use of hoses
with exposed or damaged wire braiding. Id. at 13-14. The damaged braiding presented a risk of
hose failure. Moreover, environmental conditions can affect hoses being used at pressures below
the rated capacity. The conditions found in the mine environment exacerbate the riskofbo.se, .·
;·failure ·and can lead to further damage.· Id. A hose failure .in this instance could have injured·a
miner in the front walkway. Id. at 15., 16. Because Angel has actual experience with
underground coal mining, his testimony should be given more weight than Jacobson's testimony.
Jacobson's testing is oflittle value in predicting whether a hose will fail in an underground mine.
In cases involving broadly worded safety standards, the Commission has applied the "reasonably
prudent person" test. The evidence establishes that Mountain Coal failed to act as a reasonably
prudent person when it did not remove the cited hoses from service.

B. Mountain Coal.
Mountain Coal argues that the citation should be vacated because the subject hoses were
not unsafe. The Secretary's criteria for determining when a hose should be removed from service
are unreasonable, imprudent, overly cautious, unrealistic, and fail to account for numerous
factors that the reasonably prudent person would consider. (Resp. Br. at 13, 17, 18). The
evidence establishes that the hoses did not pose a safety hazard to miners. Instead, the Secretary
presented theoretical conclusions and assumptions that the hoses would degrade instantaneously
or that they would be continued to be used until they failed, neither of which is supported by the
evidence. The Commission has rejected allegations of unsafe equipment where the equipment
was operating at only a fraction of its capacity and the allegations were not supported by
evidence of impending equipment failure or subsequent safety hazard. Id. at 16. Mountain Coal
argues that its witnesses have extensive experience with and knowledge of hydraulic hoses, and
that the Secretary's witnesses failed to understand the importance of considering a wide range of
factors when evaluating the safety of hoses. Id. at 22. Angel's testimony regarding heat damage
31FMSHRC1230

to the hoses and the cut in the ferrule should not be credited. The objective test data obtained by
Jacobson established that the subject hoses had considerable service life remaining and would
have to suffer damage to the inner layer of wire braiding before there was a risk of failure at the
service pressures used at the mine.

IV. DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW
A. Background.
At the time the citation was issued, there were 165 shields on the longwall face and each
shield contained 71 hoses, for a total of about 11, 715 hoses. · The cited hoses were in the back ·
walkway and miners do not normally travel in that area. The primary reason for someone to be
in the back walkway is to perform weekly permissibility inspections. When a certiffed electrician
performs this task, the supply hydraulic hoses are not pressurized.
During production shifts, miners advance the longwall by moving the individual shields
forward. It takes about three seconds for each shield to advance. The shields are moved
electronically by remote control. The supply hoses for each shield are pressurized for about three
.· seconds as the shield moves. Once the pressure is released, check valves lock the shield in place...
During nortnal production, the shearer makes about one pass per hour, during which the supply
hoses are pressurized for about three seconds.. Miners generally ·stand about four shields away
when a shield is advanced and they wear personal protective equipment.
Mountain Coal has an examination and maintenance program in place at the mine. There
are two mechanics and a maintenance supervisor assigned to each longwall production shift. The
condition of the hydraulic hoses is continually monitored by maintenance personnel. The hoses
are also thoroughly inspected when the longwall equipment is moved to a new panel, which
occurred about every six months at the time the citation was issued. Maintenance personnel
make the decision to replace a hose by considering the properties of the hydraulic hose, operating
conditions and pressures, and_the location and extent of the wear. (Tr. 184-188). Hoses that
operate under higher pressure receive additional attention.
All of the hoses on the longwall have a pressure rating of 5,000 to 5,800 pounds per
square inch ("psi"). The cited hoses were of various lengths and were either 3/8 inch, Yi inch, or
1 inch in diameter. All of the hoses on the longwall had a manufacturer-designed safety factor of
four and a minimum burst pressure of20,000 psi. Hydraulic hoses are comprised of multiple
alternating layers of synthetic rubber and woven material. The hoses have a center rubber tube to
contain the hydraulic fluid. There is a layer of wire reinforcement around the outside of this
rubber tube that is wound in an alternating braided diagonal pattern. Depending on the particular
hose design, there is at least one additional layer of rubber and wire reinforcement. The hose is
covered with a thick rubber protective jacket. The one inch diameter hoses have four alternating
layers of rubber and wire reinforcement, while the smaller hoses have two layers. (Tr. 232-233).
31FMSHRC1231

The cited hydraulic hoses can be divided into two types: supply and return hoses. The
supply hoses on each shield are pressurized only when that shield is moved. These hoses are
either Yz inch or 3/8 inch in diameter. Inspector Allen cited seven supply hoses. The normal
service pressure for four of these hoses was under 1,000 psi, while three of these hoses
experienced pressure up to 5,000 psi. The return hoses are one inch in diameter, remain
pressurized during the production shift, and experience service pressures between 100 and 200
psi. Inspector Allen ~ited six return hoses. As stated above, the return hoses are rated for service
pressure of up to 5,000 psi. All of the hydraulic hoses are protected by check valves with relief
points, which prevent the hydraulic system components from being subject to pressures greater
than the pressure rating of the hoses.

B':- Analysis.
The issue in this case is whether the 13 cited hydraulic hoses were in "safe operating
condition" as required by section 75.l 725(a) of the Secretary's safety standards. The
Commission has long held that, under section 75. l 725(a), in deciding whether machinery or
equipment is in an unsafe operating condition, the alleged violative condition is measured against
the standard of whether a ·reasonably prudent person familiar with the factual circumstances
surrounding the allegedly hazardous condition, including any facts peculiar to the mining
. industry, would recognize a hazard warranting corrective action within the purview of the · .
applicable safety standard. Alabama By-Prods. Corp.,4 FMSHRG2128, 2129 (Dec. 198i). ·
Two factual issues raised by the parties can be disposed of at the outset. First, I reject the
Secretary's argument that the cut ferrule demonstrates Mountain Coal's lack of reasonable care.
Angel speculated that it was likely that the ferrule was damaged when that particular hose was
installed. In response, Kunde testified that it was more likely that the damage occurred when the
hose was removed from service. There is no reliable evidence to show that this condition existed
at the time Inspector Allen issued the citation and he did not include this condition in his citation.
As a consequence, this allegation is rejected and I have not considered the damaged ferrule in
rendering my decision. Second, Angel testified that, after looking at the hoses, he came to the
conclusion that the hoses had been damaged, at least in part, by heat. I credit the testimony of
Kunde that there were no sources of heat on the longwall that could have damaged the outer
jacket of the hoses. I also credit the testimony of Jacobson on this issue. I find that the
conditions cited by the inspector were a result of mechanical damage caused by abrasion with
components of the longwall system.
Page two of the citation lists the damage found by Inspector Allen on the 13 hoses. The
outer jacket of the hose was split open in each instance and the inspector listed the extent of the
damage to the outer layer of wire braiding. The damage can be summarized as follows:
Shield 16 - #6 hose, 1 broken wire strand at one location;
Shield 19 - #6 hose, 1 broken wire strand at two locations;
Shield 22 - #6 hose, 2 broken wire stands at one location;
31FMSHRC1232

Shield 26 . .:. . #6 hose, 70 to 80 broken wire strands in a 12 inch span;
Shield 35 - #6 hose, 16 broken wire strands at one location;
Shield 37 - #8 hose, 3 broken wire strands at one location;
Shield 54 - #6 hose, 40 broken wire strands at one location;
Shield 16 - # 16 hose, 6 broken wire strands at one location;
Shield 39 - #16 hose, 56 broken wire strands at one location;
Shield 40 - #16 hose, 26 broken wire strands at one location;
Shield 44 · - # 1o hose, 7 broken wire strands at one location;
Shield 45 - # 16 hose, 46 broken wire strands at one location; and
Shield 49 - #16 hose, 16 broken wire strands at one location.
The #6 hoses are 3/8 inch supply hoses, the #8 hose is a Yi inch supplyhose, and the #16 hoses
are one inch return hoses. Mountain Coal does not dispute the description of the condition of the
hoses in the citation, as summarized above. However, it contends that the damaged areas were
under the deck plates. The parties stipulated that the location of each hose is accurately shown
on Mountain Coal's Exhibit 17.
Angel prepared a report containing his analysis. (Ex. G-10). Based on Angel's analysis,
the Secretary contends that the hazard to be protected against in this case is the accidental release
<, of pressurized hydraulic fluid. Such a release can cause a variety- of injuries to miners._ Angel
~: " listed the potential injuries in his report as "burns from hot fluid, fluid injections, chen1ical
injuries of the eyes, and slips and falls from slippery surfaces." (Ex. G-10 p. 3). Angel also said
that someone could be injured or killed by a whipping hose. Id. Finally, he stated that miners
working "in close proximity to damaged hoses are exposed to these hazards." Id.
Angel is concerned that, because the outer jacket had been abraded, the outer wire
braiding was exposed and was susceptible to further degradation, especially from acidic mine
water and further abrasion. Id. at 4. As the wire braiding continues to deteriorate, more wires
will be broken and a pin hole spray may develop. If even more wires break, a larger area of
failure could develop causing more hydraulic fluid to spray out. Finally, a complete failure of the
hose could cause the pressuriz.ed end of the hose to whip about.
Angel relied to a considerable extent on literature published by hydraulic hose
manufacturers in reaching his conclusions. He states:
Hose manufacturers typically warn the hose user that
exposure of the reinforcement wire significantly increases the
likelihood of failure of the hoses and increases the safety risk of
personnel working with or near the hose. Most manufacturers
recommend routine inspection of hoses and that hoses found with
exposed reinforcement be immediately removed from service.

31 FMSHRC 1233

Id. For example, the "Safety Guide" put out by Alfagomma Hydraulic Hose states that
"[ e]xposure of the reinforcement will significantly accelerate hose failure" and "[a]ny of the
following conditions require immediate shutdown and replacement of hose assembly ...
[d]amaged, cut or abraded cover (any reinforcement exposed)." Id; Ex. G-10 attachment S.
Alfagomma and Semperflex manufactured the cited hoses.

Mountain Coal argues that the Secretary's reliance on manufacturers' guides is
misplaced. These guTdes are inconsistent because some recommend that a hose be replaced
whenever there is any damage to the hose and other guides do not. Moreover, these guides are
very conservative because the manufacturers do not know what operating conditions their
hydraulic hoses will be subjected to once they are sold. This case must be judged by the
reasonable prudent person standard set forth in Alabama By-Products ratherthanmanufacturers'
safety guides. Mountain Coal maintains that the recommendations of the ISO and SAE are more
instructive. (Exs. C-8, C-30). The ISO recommends regular visual inspections ofhydraulic
hoses for conditions such as exposed reinforcement, damaged, cut or abraded outer protective
layer, and leaks. The ISO provides that factors such as the nature and severity of the application,
past experience at the work site, and information provided by manufacturers should be taken into
account. (Ex. C-30).
I agree with Mountain Coal that the manufacturers' guidelines were written to cover all
· · .situations and customers, including installations where hoses are not regularly inspected for ·
. damage and are subjected to a wide variety of environmental conditions. I have taken these
guidelines into consideration but they do not establish a violation of the safety standard.
MSHA has posted "safety ideas" concerning hydraulic hoses at its website. The posting
on hydraulic hose maintenance advises mine operators to regularly inspect hydraulic hoses and to
routinely change out hoses. (Ex. G-5). There are photographs of hoses that have been damaged.
The web page also has links to websites of hydraulic hose manufacturers. A section of a training
manual for MSHA inspectors, which has not been posted, discusses safety precautions for
longwall shields. (Ex. G-3). The section on visual inspections of hydraulic hoses provides, in
part, that "[w ]hen a hose shows signs of damage, such as scrapes or cuts, to the extent that the
wire braids are broken, a replacement shall be installed during the shift." Id. This language is
consistent with the Secretary's position in this case. Although I have taken this material into
consideration in evaluating this case, these documents do not by themselves establish a violation
of the safety standard.
Angel does not dispute the results of the laboratory testing performed by Jacobson and he
acknowledges that the hoses are manufactured with a safety factor of four. Angel stated,
however, that the safety factor designed into hydraulic hoses is "not intended as a reason to
permit a known, damaged hose to continue in operation." (Ex. G-10 at 6).
Angel recognized that miners must be in close proximity to the hose for a safety risk to
exist. Indeed, he testified that a miner would have to be ''within inches" of a broken hose in
31 FMSHRC 1234

order to sustain an injury from the resulting spray. (Tr. 145-146). He believed that the miners in
the longwall section were put at risk because the confined area in which they must work put them
in close proximity to the hoses. He was especially concerned that a pin hole leak could develop
in a high pressure hose that would spray several feet. This fluid could be injected under the skin
of a miner if the force of the spray were strong enough.
Jacobson stated that he determined that the hoses were safe based on his laboratory
testing, which took into9onsideration normal service pressures, the safety factor inherent in the
hose design, and the multi-layer construction of the hoses. He also took into account the service
conditions he observed in the mine, including the location of the hoses on the back walkway of
the longwall, the isolation of the hoses under deck plates, the short duration that the service hoses
are pressurized, the ongoing maintenance program, and the personal protective equipment worn
by miners. Mountain Coal contends that the court should take into consideration Jacobson's
years of professional experience working with hydraulic hoses and Kunde's years of'bn-the-job
experience working with and replacing these hoses at the mine.
Mountain Coal also maintains that the Secretary failed to consider factors that establish
that the hoses were fit and safe for their purpose and, instead, relied upon theoretical assumptions
that the hoses would either degrade quickly or that they would be kept in service until they
sustained sufficient wear to fail. The Secretary ignored the safety features of the longwall system
in· use at the mine, the location of the wear, the pressures to which the hoses are subjected, and .
the frequent examinations made by the maintenance crew. Mountain Coal contends that it.has
safely used these types of hydraulic hoses for years using the same replacement practices without
any accidents or injuries. Indeed, Mountain Coal's principal argument in this case is that it
intentionally uses hydraulic hoses that are significantly over designed for their purpose at the
mine so that the hoses can take some wear and tear and not present a hazard to miners.
Frequently replacing hoses presents its own dangers and challenges and the company uses hoses
that are designed for considerably higher pressures in order to avoid these hazards.

1. Fact of Violation.
Based on a preponderance of the evidence presented at the hearing, I find that Mountain
Coal violated section 57 .1725(a). In analyi;ing the risk of failure, I considered the construction
specifications of the hoses, safety features built into the longwall system, the damage present on
the hoses and their location, the pressures in the hoses and the duration of these pressures, the
nature of the work performed on the longwall, and the regular examinations of the hoses
performed by the maintenance crew.
I find that the testing performed by Jacobson was helpful in understanding the capacity
and strength of the hoses. However, the pressure tests did not directly take into consideration the
mine environment or the continued exposure to the forces that damaged the hoses. Jacobson
testified that he accounted for the continued exposure to the mine environment by testing the
exemplar hoses at extremely high pressures. Based on these pressures, Jacobson concluded that
31 FMSHRC 1235

there was no risk of hose failure even assuming some degree of continued degradation. I credit
Jacobson's testing procedures and find that they were a reliable indication of the safety factor
built into the hoses.
The forces that created the abrasion· of the cited hydraulic hoses would have continued to
further degrade the hoses until such time as the company determined that they should be
replaced. I cannot assume that the hoses would have been replaced the day of the inspection.
The photographs introduced as exhibits at the hearing show damaged areas on the hoses that
were no longer protected from the mine environment by the outer protective layer of rubber. (Ex.
G-10 attachments K and P). I was also able to examine the worn areas because Mountain Coal
brought the cited hoses to the hearing as a demonstrative exhibit. Water, dirt, and dust could
have easily ·entered the damaged areas and accelerated·the rate of deterioration of the wire ·.
reinforcement. A number of the hoses were quite badly damaged. For example, the hose on
Shield 26 had about 75 broken wire strands. Other hoses were also badly damaged, as shown on
page two of the citation. The damage on these hoses was quite evident upon examination and it
closely resembled the damage shown on MSHA's Hydraulic Hose Maintenance Guideline. (Ex.
G-4).
I credit the testimony of Kunde that the hoses are regularly examined by maintenance
pers·onnel and are regularlyreplaced. Angel was of the opinion that the company would have
allowed ·the hoses to remain in operation untilthey failed, but he admitted that he had no idea
how long that.would take. (Tr. 129). There is nothing in the record to support this opinion and I..
have not given it any weight.
I find that Mountain Coal violated the safety standard for a number of reasons. First and
foremost, as stated above, a number of the cited hoses were severely damaged. The gashes in the
outer jackets and damage to the wire reinforcement was significant in some cases. (Ex. G-10,
attachment K). This damage presented a risk of hose failure. Second, I agree with Angel that the
safety factor designed into the hoses is not intended as a reason to permit hoses with significant
damage to continue in service. This fact is reflected in the manufacturers' safety guidelines that
advise consumers to replace damaged hoses. Third, although Jacobson's testing provided useful
information, the tests did not adequately take into account the fact that the damaged outer jackets
and wire braids on the hoses were exposed to further wear and corrosion. Fourth, the mining
environment is harsh and unforgiving. Events can quickly unfold that will cause a damaged
hydraulic hose to fail notwithstanding the company's hose inspection and replacement program.
Kunde testified that the damaged areas were under the deck plates or were otherwise on the
underside of the hoses. (Tr. 171-180, 185). Because the wear was from abrasion, it is only
logical that the worn areas were in places where the hoses rubbed against the deck plates or other
components of the longwall shields. The abrasion of the hoses would continue and the
additional damage would not be easy to detect. Coal dust and water would likely enter the outer

31 FMSHRC 1236

layers of the hoses and continue to corrode the outer braids. The severely damaged hydraulic
hoses were not in safe operating condition and should have been removed from service.4
I also find that Mountain Coal had reasonable notice of the requirements of the safety
standard as applied to hydraulic hoses. The recommendations of the hose manufacturers and the
material published by MSHA put the operator on notice that badly damaged hoses must be
removed from service. Previous MSHA inspectors may not have examined hoses closely enough
or the hoses may-not have been in the same condition.
One of Mountain Coal's principal arguments is that this court should reject the
Secretary's position that one broken wire strand renders a hose unsafe. This case does not
·present such a theoretical issue. As stated above, the-issue is whether the hoses cited by MSHA
were in safe operating condition. Most of these hoses had more than 10 broken wire strands and
five hoses had more than 20 broken strands. This court must base its decision on the facts
presented. I do not have the authority to develop a generally applicable test for determining how
much wear a hydraulic hose can sustain before it violates section 75.1720(a) and must be
replaced. I note that, based on the evidence presented, I may well have vacated the citation if all
of the hoses had only sustained slight damage, such as a worn spot with a few broken stands on
the outer layer of reinforcement. I base my finding of violation on the condition of the hoses that
showed more significant damage and wear than a.few broken outer wire strands.
·. \ •,:

Based on the above, I find that a reasonablyprudent person familiar with the factual
circumstances surrounding the allegedly hazardous condition, including any facts peculiar to the
mining industry, would have recognized that corrective action was required under the safety
standard at the time the citations were issued. A reasonably prudent person would have
recognized that the hoses with a significant degree of damage were not in safe operating
condition. Mountain Coal would be well advised to take this opportunity to review its hydraulic

4

The Commission takes the mine environment into account when analyzing these types of alleged
violations. For example, in Otis Elevator Co., the operator was charged with a violation of section
75 .1725(a) because the MSHA inspector believed that the ends of the governor rope for the elevator
in the mine were improperly installed thereby creating an unsafe condition. The Commission judge
affirmed the citation and his holding was affirmed on appeal. 9 FMSHRC 1933, 1942 (Nov. 1987);
aff'd 11 FMSHRC 1896, 1906-08 (Oct. 1989); 921 F.2d 1285, 1293-94 (D.C. Cir. 1990). In
preparation for the hearing, Otis Elevator obtained the services of a forensic expert who subjected
a similarly configured wire rope to a stress test. The judge held that the testing conducted by the
respondent's expert "demonstrated that the [rope] assembly as configured should withstand a force
on the order often times as great as the force necessary" for the application at the mine. 9 FMSHRC
at 1942. The judge, nevertheless, agreed with the Secretary that "the stress pull test performed under
what might be considered laboratory or 'ideal' conditions is an entirely different situation than what
actually exists in the mine given the environmental conditions that the equipment must operate in
there." Id.
31 FMSHRC 1237

hose replacement policies to make sure that the policies are sound and are understood by its
maintenance personnel. It also may want to consider reducing its policies to writing.

2. Significant and Substantial; Gravity; Negligence.
I find that the Secretary did not establish that the violation was of a significant and
substantial nature. The hoses were in the back walkway, which is behind the leg cylinders.
Miners do not work in· that area. The back walkway is a confined area where it is difficult to
move around. 5 The most common reason for anyone to be in the back walkway is to conduct a
permissibility inspection, when the supply hoses are not pressurized, or to replace a hose. As
stated above, miners are generally not near the supply hoses when they are pressurized as the
shields :are moved~ Angel testified that a miner would have to be within inches of a hose in order
to sustain an injury from the resulting spray. The return hydraulic hoses, which ar~ always
pressurized during production, operate at 100 to 200 psi. The return hoses were rated at 5,800
psi and they have four layers of wire braiding. In addition, the miners working along the long
wall typically wear protective clothing, as described above. This clothing would protect them
from injury. I credit the testimony of Kunde on this issue.
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 resultin 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(January1984), 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(July1984). 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). Although the Secretary established the first two elements, I find that the third and fourth
elements of the Mathies test were not present in the case. Consequently, I modify the citation to
delete the S&S determination. I also find that the violation was not serious because, if a hose did
leak hydraulic fluid, it is unlikely that anyone would be seriously injured as a result. An injury
from a fluid injection or from a whipping hose was unlikely. The most likely injury would be
from a slip and fall on a deck plate that was covered with spilled hydraulic fluid.
I also find that Mountain Coal's negligence was low. I credit the company's evidence
that it has been using the sarne criteria for determining when a hydraulic hose should be replaced
5

In a previous decision, I determined that "[ e]ven a small individual would have difficulty
walking along the 'back walkway' [in a longwall section at the West Elk Mine]." Mountain Coal
Co., 26 FMSHRC 853, 855 (Nov. 2004). That finding is equally applicable here.

31FMSHRC1238

for years. It has never been issued a citation for the condition of the hoses on the longwall and
no accidents have occurred. (Tr. 188-89). A penalty of $800.00 is appropriate for this violation.

C. Settled Citations.
The parties settled Citation Nos. 6684080 and 6684093 that were issued under section
104(a) of the Mine Act_and were designated as non-significant and substantial. I have considered
the representations and documentation submitted and I conclude that the proposed settlement is
appropriate under the criteria set forth in Section 11 O(i) of the Act. The parties previously settled
Citation No. 7291335 and I approved that settlement by order dated January 10, 2008.

V. APPROPRIATE CIVIL PENALTIES
Section 1 lO(i) of the Mine Act sets forth the criteria to be considered in deteiinining an
appropriate civil penalty. The record shows that Mountain Coal had about 514 paid violations at
the West Elk Mine during the two years preceding March 26, 2007. (Attachment to Reply Br. of
Sec'y). Mountain Coal is a large mine operator as is Mountain Coal's parent company, Arch
Coal, fuc. The violation was abated in good faith. The penalty assessed in this decision will not
have an adverse effect on Mountain Coal's ability to continue in business. The violation was not
serious and Mountain Coal's negligence was low. Based on the.penalty criteria, I find that a
· penalty of$800.00 is appropriate.
.·
VI. ORDER
Based on the criteria in section l lO{i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
following civil penalties:
6684080
6684093
7291353

75.400
75.400
75.1725(a)

$5,504.00
1,412.00
800.00

TOTAL PENALTY

$7,716.00

31FMSHRC1239

For the reasons set forth above, Citation No. 7291353 is MODIFIED as set forth above.
Mountain Coal Company, LLC, is ORDERED TO PAY the Secretary of Labor the sum of
$7,716.00 within 30 days of the date of this decision. 6 Upon payment of the penalty, these
proceedings are DISMISSED.

Richard W. Manning
Administrative Law Judge

Distribution:
Laura E. Beverage, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO 802021958 (Certified Mail)
Mary Forrest-Doyle, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson
Boulevard, 22nd Floor, Arlington, VA 22209 (Certified Mail)
RWM

6

Payment should be sent to the Mine Safety and Health Administration, U.S. Department of Labor,
Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.
31FMSHRC1240

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY A VENUE N.W., SUITE 9500
WASHINGTON, D.C. 20001

October 26, 2009
ABUNDANCE COAL, INC.,
Contestant

CONTEST PROCEEDINGS
Docket No. KENT 2010-5-R
Citation No. 8227636;09/29/2009

v.
Docket No. KENT 2010-6-R
Order No. 8227637;09/29/2009
SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Respondent

#1 Mine
Mine ID 15-18711

DECISION
Appearances:

Before:

Billy-R. Shelton, Esq., Jones, Walters, Turner & Shelton, PLLC, Lexington,
Kentucky, on behalf of the Contestant;
Mary Sue Taylor, Esq., and Schean G. Belton, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee, on behalf of the
Respondent.
Judge Melick

These cases are before me upon the request by Abundance Coal me., (Abundance) for
expedited hearings to contest Citation Number 8227636 and Withdrawal Order Number 8227637
issued pursuant to Section 104(a) and Section 104(b), respectively, of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq., the "Act". Hearings were expedited pursuant to
Commission Rule 52, 29 C.F.R. § 2700.52, and were held on October 14 and 15, 2009. Upon
Contestant's request, expedited briefs were filed on October 23, 2009. The general issues before
me are whether the violation was committed as alleged in the citation and whether the withdrawal
order was properly issued.
Citation Number 8227636, issued September 29, 2009, alleges a non-"significant and
substantial" violation of the standard at 30 C.F.R. § 75.336(c) and charges as follows:
The mine owner and superintendant have been notified that samples taken in the sealed area
of the Consol ofKentucky, Jones ForkE-3 mine ID# 15-18589 behind the No. 1 set of seals
on 9/27109 contained an explosive mixture ofoxygen greater than 10% and methane between
4.5% and 17%. This sealed area is interconnected in a contiguous seam and is located
behind the #2 set of seals in this mine, and is a commonly sealed area between these two
mines. The mine owner and superintendant were notified that under 30 CFR 75.336 part c

31FMSHRC1241

the operator is required to withdraw persons from the affected area, which was explained to
be the entire mine. The mine owner stated that the next scheduled production shift would
continue unless given an order from MSHA.
The cited standard 30 C.F.R. § 35.336(c) provides in relevant part as follows:
Except as prmj.ded in§ 75.336(d), when a sample is taken from the sealed atmosphere with
seals ofless than 120psi and the sample indicates that the oxygen concentration is 1Opercent
or greater and methane is between 4.5 percent and 17 percent, the mine operator shall
immediately take an additional sample and then immediately notify the district manager.
When the additional sample indicates that the oxygen concentration is 10 percent or greater
and methane is between 4.5 percent and 17 percent, persons shall be withdrawn from the
affected area which is the entire mine or other affected area identified by the operator and
approved by the District Manager in the ventilation plan, except those persons referred to in
§ 104(c) of the Act.
Approximately 16 minutes following the issuance of the citation, Order Number 8227637
was issued pursuant to Section 104(b) ofthe Act directing the closure ofthe Abundance No. 1 mine. 1
The order charges that "[a]fter a reasonable abatement time the operator stated his intention to not
comply with 30 C.F.R. § 75.336(c) unless given an order from MSHA".
Abundance operates the No. l mine at issue which is adjacent to the Jones Fork mine owned
and operated by Consol of Kentucky (Consol) and the Marshall Coal No. 22 mine. Both the
Abundance No. 1 mine and the Marshall Coal No. 22 mine were originally part of the Jones Fork
mine but were separated by seals sometime before June 2006. The three mines share a common gob
area. Subsequently, 120 psi seals were constructed at the Abundance and Marshall mines on the
working section side of the seals. On or about November 27, 2008, Abundance submitted to the
Department of Labor's Mine Safety and Health Administration (MSHA) an "alternate seal sampling
plan-ventilation plan revision" advising the that it would not conduct any sampling behind its 120
psi seals. Thereafter, on or about December 12, 2008, MSHA approved Abundance's "alternate seal

1

Section 104(b) of the Act provides as follows:
If, upon any follow-up inspection of a coal or other mine, an authorized
representative of the Secretary finds (1) that a violation described in a citation
issued pursuant to subsection (a) has not been totally abated within the period of
time as originally fixed therein or as subsequently extended, and (2) that the
period of time for the abatement should not be further extended, he shall
determine the extent of the area affected by the violation and shall promptly issue
an order requiring the operator of such mine or his agent to immediately cause all
persons, except those persons referred to in subsection ©, 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.
31FMSHRC1242

sampling plan-ventilation plan revision" accepting Abundance's proposal that it not conduct any
sampling behind its set of 120 psi seals.
As a part of a regular quarterly inspection on September 27, 2009, MSHA inspector Sam Hill
took gas readings at, among other locations,_ the No. 1, seal set of Consol's Jones Fork mine and
found15% oxygen and 13.3% methane. On the following day, September 28, 2009, Inspectors Hill
and Ritchie returned to the Jones Fork mine, inspected seal set No. 1 and found 13 .4% oxygen and
17% methane. Based on the second reading and the-range covered by the standard, Consol removed
the miners from the underground portions of the Jones Fork mine.
Terry Michael Jude, an MSHA inspector, traveled to the Abundance No. 1 mine on
September 29, 2009, to report that MSHA had found this explosive mixture of gases behind the No.
1 set of seals at the adjacent Jones Fork mine. Jude advised Abundance officials that, due to the
explosive mixture at the Jones Fork mine and pursuant to 30 C.F.R. § 75.336(c), AbU.ndance was
required to submit a plan to the district manager and withdraw miners from its mine. Jude also then
issued the citation atbarfor a violationof30 C.F.R. § 75.336(c). Abundance owner Ray Slone first
told Jude that he would comply with the citation and withdraw the miners; however, about 16
minutes later Slone changed his mind and advised Jude that he would not voluntarily withdraw his
miners without an order. Slone advised Jude that he was refusing to withdraw his miners due to his
understanding that the 120 psi seals installed in the Abundance No. 1 mine and previously approved ·
by MSHA were sufficient to protect his miners. As a result, Jude issued the "Section 104(l>)"Order
at bar.
The Abundance 120 psi seals are approximately 4000 to 8000 feet from the No. 1 set of seals
in the Jones Fork mine. After the 120 psi seals constructed by Abundance went through th~ cure
period, Abundance was no longer required to sample atmosphere behind those seals, pursuant to its
approved ventilation plan. The miners at the Abundance No. 1 mine are not required to travel in the
area behind the 120 psi seals and the area behind the 120 psi seals is not used as an escapeway.
John Urosek is employed by MSHA at its technical support center. He is currently chief of
the mine emergency operations group and is also responsible for the seal approval group within
MSHA' s technical support center. fu that capacity he is responsible for administering MSHA' s seal
approval program. He has a B.S. degree in mining engineering from Pennsylvania State University
and is a registered professional engineer. He was also the chairman of the emergency temporary
standard. and the final rule committees for whatwas promulgated as 30 C.F.R. §§ 75.335, 75.336,
75.337 and 75.338. Mr. Urosek is eminently qualified as an expert in mining engineering and, in
particular, in regard to mine ventilation and mine explosions. Mr. Urosek has also been designated
as the sole decision maker authorized to speak for the Secretary ofLabor on this matter and therefore
he is the designee to be given deference in interpreting the agency's regulations should that be
necessary. See Thomas Jefferson University v. Shala/a, 512 U.S. 504-512 (1994) and Akzo Nobel
Salt, Inc., et.al. v. Federal Mine Safety and Health Review Commission and Secretary ofLabor, 212
F.3d 1301 (2000).

31 FMSHRC 1243

There are currently ten seals in the Jones Fork mine. The seals in the Jones Fork mine at the
No. 1 and No. 2 sets are Mitchell Barrett seals. The Mitchell Barrett seal is recognized as a 20 psi
seal. Mr. Urosek was aware that there was an ignition in the sealed area within the Jones Fork mine
in 2006. During this ignition in 2006, seals were damaged in the area of the Jones Fork mine.
Urosek opined that because the Jones Fork mine has 20 psi seals, the Abundance mine is required
to take action not based on the language of the cited standard but on its preamble in the Federal
Register and upon a series of questions and answers published by MSHA on the internet. Even
though it was Urosek' s opinion that Abundance was required to perform sampling behind its set of
120 psi seals, he acknowledged that Abundance had a plan approved by MSHA which would not
require them to do so. Urosek opined that this provision in Abundance's ventilation plan (which did
not require any sampling behind the 120 psi seals) was issued in error.
Abundance owner Ray Slone testified that in 2006, there was a set of Mitchell Barrett seals
about 9,000 feet down the main line entry and another set of Mitchell Barrett seals approximately
4,500 feet down the main line. These Mitchell Barrett seals were pre-shifted on a daily basis and
there was no problem with these seals. At some point in time, a set of Omega seals was constructed
approximately 1,500-2,000 down the main line. fu December 2007, Abundance constructed the 120
psi seals at its mine based on his understanding that these seals would separate him from the Jones
Fork mine and the gob area. fudeed, Norman Page, the MSHA district manager and several MSHA
inspectors had confirmed his understanding. Moreover, since Slone constructed the 120 psi seals.
. at the Abundance mine, and until the citation at bar, he had not been required by MSHA to perform
any sampling of the atmosphere behind those seals. Furthermore, MSHA approved a change in
Abundance's mine ventilation plan to acknowledge that no sampling was required behind
Abundance's 120 psi seals.
Gary Hartsog has B.S. and M.S. degrees in mining engineering and is licensed in nine states
as a professional engineer. He testified that, in the course of his practice, he has been involved on
a day-to-day basis with seal issues and as a member of the West Virginia Coal Association and the
National Mining Association, has served on several safety commissions. He has also conducted
seminars for professional engineers on sealing issues. He is clearly an expert in mine engineering
and, in particular, in mine sealing. Hartsog is of the opinion that the regulations found at 30 C.F.R.
Sections 75.335 and 75.336 are clear and do not require sampling behind the 120 psi seals after they
have reached their strength. Hartsog opined that the Abundance mine is a separate mine by being
separated by 120 psi seals. He concluded that based on the regulations there is no expectation that
there would be a breach on the Abundance seal side. It is Hartsog' s expert opinion that if an operator
has 120 psi seals, the regulations found at 30 C.F.R. Sections 75.335 and 336 are not applicable to
that mine.
The underlying issue in this case is a question ofregulatory interpretation. More particularly
the interpretation to be placed on the language in section 7 5 .3 36(c) that triggers withdrawal ofminers
when the air sample "taken from the sealed atmosphere with seals ofless than 120 psi" reach certain
action levels of oxygen and methane. Abundance maintains that since it is undisputed that it had 120
psi seals separating its atmosphere from the sealed atmosphere of the common gob area, the cited
standard is not applicable and accordingly there was no violation as charged.
31 FMSHRC 1244

It is a cardinal rule of construction that if a regulation's meaning is plain, the regulation
cannot be construed to mean something different from that plain meaning. Exportal Ltda. v. United
States, 902 F.2d 45,50 (D.C. Cir. 1990); Pfizer, Inc. v. Heckler, 735 F.2d 1502, 1509 (D.C. Cir.
1984), (citing Udallv. Tallman, 380 U.S. 1, 16 (1965)). When the language of a provision is plain,
the plain language is the meaning of the provision and the sole function of the courts is to enforce
the language as written. Hartford Underwriters Ins. Co. v. Union Planters Bank, N.Na, 530 U.S.
1, 6 (2002).

I find the language of the cited standard to be perfectly clear and that since it is undisputed
that Abundance was utilizing seals of 120 psi stre~gth separating its workings from the sealed
atmosphere at issue, I find that Abundance was in compliance with the requirements of section
75.336(c) and that there was no violation as charged.
The fact that MSHA had indeed approved the very practice that Abundance was following
in approving its "alternate seal sampling plan-ventilation plan revision" on December 12, 2008, that
permitted Abundance to not conduct any sampling behind its set of 120 psi seals (See Exh. AB-6 and
7) is also certainly consistent with the plain language of section 336(e). Since the cited standard is
unambiguous, a second step Chevron (Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984)) analysis is not required. Exportal Ltda at 50.
Under all of the circumstances I find that there was no violation of the standard at 30 C.F...R.
§ 75.336(c) and that Citation Number 8227636 must be vacated. Since the "Section 104(b)"order
at issue is preconditioned upon the existence of a violation charged in that citation, that order must
also. be vacated.

ORDER
Citation Number 8227636 and Order Number 8227637 are het by vacated.

GaryM
Administrative La
(202) 434-9977
Distribution:(Facsimile and Certified Mail)
Billy R. Shelton, Esq., Whitney, L. Lucas, Esq., Jones, Walters, Turner & Shelton, PLLC, 151 N.
Eagle Creek Drive, Suite 310, Lexington, KY 40509
Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite
230, Nashville, TN 37219-2456
lh
31FMSHRC1245

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, 2009
CIVIL PENALTY PROCEEDING

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

Docket No. SE 2007-128-M
A.C. No. 31-01230-104558

v.
JOHNSON PAVING COMPANY, INC.,
Respondent

Marion Pit

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

CIVIL PENALTY PROCEEDING
Docket No. SE 2008-176-M
A.C. No. 31-01230-132930 A

v.
WILLIAM T. PINSON,
Respondent

Marion Pit

DECISION
Appearances: Dana L. Ferguson, Esq., U.S. Department of Labor, Atltanta, Georgia, on
behalf of the Petitioner
John V. Hawkins, Esq., Johnson Paving Company, on behalf of the Respondent
Before:

Judge Barbour

These are consolidated civil penalty proceedings arising under sections 105(a), 110(a) and
1 lO(c) of the Federal Mine Safety and Health Act of 1977 (the Mine Act or Act) (30 U.S.C. §§
815(a), 820(a), 820(c). In Docket No. SE 2008-176, the Secretary, acting on behalf of her Mine
Safety and Health Administration (MSHA), petitions to assess William Pinson, Johnson Paving
Company's ("Johnson Paving" or "the company'') quarry foreman, a total of$1,000 in civil
penalties for two alleged violations of the mandatory safety standards for surface metal and
nonmetal mines. In Docket No. SE 2007-128, the Secretary seeks to assess Johnson Paving a
total of$13,200 in civil penalties for the same two alleged violations and for three others. The
Secretary asserts that all of the alleged violations occurred at Johnson Paving's Marion Pit, a
small granite extraction and crushing facility located in McDowell County, North Carolina.

31FMSHRC1246

BACKGROUND
The citation and orders that set forth the alleged violations were issued by MHSA
inspector Bonnie Armstrong as a result of her August 1, 2006, inspection of the pit. Inspector
Armstrong began working for MSHA in 1996 after receiving MSHA required inspector training.
Tr. 28-29. In addition to her duties as an inspector, she also acts as an MSHA special
investigator. 1 Tr: 29. ~.
The inspector described the Johnson Paving operation as one in which granite is extracted
and crushed to size. Tr. 34. The resultant aggregate is sold to customers or is used by an
adjoining plant that is also owned by Johnson Paving. At the adjacent plant, the company makes
asphalt. Tr. 33-34. The mine is operated intermittently, and during the winter it might be shut
down for up to two months. Tr. 31.
Greg Johnson, the president of the company, confirmed the c.ompany is essentially "twotiered". Tr. 149. One part of the operation concerns paving, while the other concerns mining.
Johnson explained that although he is the owner of the company, he concentrates on the paving
side of the business. William Pinson, the foreman Johnson hired, runs the quarry.
Johnson explained that he does not "micro[-]manage." Tr. 150. Rather, he tends to
"[delegate] authority'' because it is "kind of impossible" for him to run both sides of the
operation. Id. As for Johnson's relationship with Pinson, Johnson explained that he "kind of
turn[s] ... [Pinson] loose with the quarry." Tr. 149.
When Armstrong arrived at the mine on August 1, she met with Johnson. Armstrong
introduced herself and explained why she was at the mine. Armstrong testified she tried to get
some basic information about the mine from Johnson. She asked him how many miners worked
at the mine. According to Arrilstrong, Johnson did not know. Soon after that, Johnson asked
Pinson to join him and Armstrong. Tr. 32-33. When Pinson arrived, he told the inspector that
ten to 11 company employees worked at the mine. Tr. 33. Pinson then accompanied the
inspector into the pit. During the course of the inspection, Armstrong took notes and
photographs. Tr. 34. According to the inspector, she issued "quite a few" citations for
violations, many more.than are at issue in the subject cases. Tr. 35. Armstrong testified that

1

The company challenged Inspector Armstrong's qualifications as an inspector and
moved for the vacation of the contested citation and orders on the grounds that she lacked the
training Congress mandated for the position. Tr. 115. Based on the inspector's testimony
regarding her background and the fact that she is a duly authorized representative of the
Secretary, I denied the motion. Tr. 116.
31FMSHRC1247

Pinson did not seem surprised by the conditions she cited. Indeed, she remembered his stating he
knew about some of the conditions, but "he just didn't have the people to do the work, to do the
repairs." Tr. 35.
Following Armstrong's citation of the alleged volations, MSHA assessed civil penalties
against both the company foreman and his employer. When Pinson and the company contested
the proposed assessments, the Secretary petitioned for their imposition. The matters were heard
in Knoxville, Tennessee.

THE CONTESTED CITATION AND ORDERS
SE 2008-176
ORDER NO.

DATE

30C.F.R§

6120067

08/01/2006

56.14100(b)

The order states in part: ·
The inside door latch on the John Dee~[ e] 3 70 trackhoe
... did
not function when tested. The equipment operator would reach
through the window to the outside latch to open the door. Not
being able to open the door from the inside could impede exiting
the equipment should there be an emergency. This trackhoe is
used in the pit and plant to load haul trucks. This condition had
been reported to the quarry.foreman by the equipment operator.
The [f]oreman engaged inaggravated conduct constituting more
than ordinary negligence[,] in that he knew the door latch did not
function, and did not take corrective action. This violation is an
unwarrantable failure to comply with a mandatory standard.
Gov't Exh. 1.
After the order was issued, it was modified to include additional conditions on the
trackhoe, conditions that the inspector believed also violated 30 C.F.R. § 56.14100(b). The
modification states:
The steps on the trackhoe were broken off and missing. This
creates a slip and fall hazard for the equipment operator when
entering or exiting the trackhoe. T[he] top of the track is about 3'
from [the] ground level. This condition had been reported to the
quarry foreman by the equipment operator. Also[,] mirrors on the
trackhoe were broken out. Mirrors are used by the equipment
31 FMSHRC 1248

operator to observe ... vehicle or foot traffic behind the machine.
This condition had been reported to the quarry foreman by the
equipment operator. The [f]oreman engaged in aggravated conduct
constituting more than ordinary negligence[,] in that he knew the
steps and mirrors were broken, and [he] did not take corrective
action. This violation is an unwarrantable failure to comply with a
mandat<?_ry standard. The trackhoe is used regularly at the pit and
the plant to load haul trucks.
Gov't Exh. 1 at 3
Armstrong testified that while in the pit with Pinson, she noticed a trackhoe being
operated and she decided to inspect it. The trackhoe is a piece of equipment used to excavate, to
dig and to load material. On the day Armstrong saw it, the trackhoe was loading excavated
material that was then trucked to the processing plant. Tr. 53. The trackhoe runs on two tracks
and the trackhoe's bucket is located at the end of a movable arm. The ann extends from the
trackhoe operator's end of the trackhoe's body. The trackhoe operator sits in an "operator's
booth" which is located above one end of the tracks. The operator reaches the booth by climbing
onto one of two "steps." The steps are welded to the.side of the trackhoe above the track on the
operator's side of the equipment. Tr. 49..
The operator enters the booth via a door. A window in the door allows the trackhoe
operator to see the operator's side of the equipment. The window can be opened for ventilation
and other purposes. The booth also has two exterior mirrors that allow the operator to see what
is behind and to the side of the equipment. The operator sees what is in front of the equipment
through windows located at the front of the booth.
Armstrong and Pinson approached the trackhoe, and Armstrong advised the trackhoe
operator she wanted to conduct an inspection of the equipment. Although Armstrong could not
recall for sure, she testified the door to the operator's compartment might have been tied open.
Tr.69. She wanted to know ifthe door was operating properly, so Armstrong asked the trackhoe
operator if the inside door latch worked. The operator closed the door and used the latch. The
door did not open. Rather, the trackhoe operator had to open the side window and reach through
it to the outside latch. Tr. 40-41; 157. Armstrong also noticed that steps used to climb from the
ground to the operator's compartment were missing and that the trackhoe's outside mirrors were
broken.2 Id.; see Gov't Exh. 2, Gov't Exh. 3.

2

Armstrong wondered how long these conditions had existed, and she later looked for
records of the pre-shift examinations of the trackhoe. She could not find any. In fact, she could
not find pre-shift examination records for any piece of equipment used at the mine. Tr. 54.
31FMSHRC1249

Armstrong described the trackhoe as being used "regularly" in the pit and plant to load
material and finished product. Tr. 41. Although she knew of no instance in which a miner
suffered an injury because of a defective interior door latch (Tr. 74), Armstrong believed a
serious injury was reasonably likely to occur because the lack of a functioning latch restricted the
trackhoe operator's ability to exit the equipment in the event of a fire, a rollover or another
emergency. Id.; Tr. 73. fu concluding an injury was reasonably likely, she noted that the
track:hoe was in use w_hen she inspected it and was used daily. Tr. 42. Should such an injury
occur, Armstrong believed that it would result in the trackhoe operator being permanently
disabled. Id. For example, if a fire occurred, the operator easily could be severely burned before
he or she could get out of the eq-qipment. Tr. 74.
fu addition, Armstrong testified that the broken mirrors compounded the hazard because

the trackhoe operator might not be able to see a person or a vehicle approaching from the rear of
the trackhoe and the operator might swing the equipment or back the equipment into the person
or vehicle. Tr. 43. Armstrong observed, if a person were hit or run over by the trackhoe,
crushing injuries were reasonably likely to occur. Id. Moreover, because the steps were missing
from the side of the equipment, the trackhoe operator had to step up onto the top of the track to
get into the operator's compartment, and the track was approximately three feet off of the
ground. Tr. 49. Because of the height" of the required "step up," Armstrong felt that the
equipment operator was more than likely to slip and fall while climbing into the operator's
compartment. Such a fall could result in the operator['s] spraining his or her ankle or breaking
his or her leg. Tr. 43. She added that the trackhoe was entered and exited "at least a couple of
times a day." Id.
Armstrong attributed the broken door latch, the broken mirrors and the missing steps to
Johnson Paving's "high"negligence. Tr. 45. Armstrong recalled the trackhoe operator telling her
that he reported the conditions to Pinson. fu addition, according to Armstrong, Pinson told her
he knew about the condition of the door latch (Tr. 45, 71-72) and that the mirrors and steps had
been broken since the previous April. Tr. 45-46.
However, Pinson disputed Armstrong's testimony that he told her he knew about the
condition of the door latch. He stated he did not know about the latch until the day of the
inspection, when Armstrong asked the truck driver to open the door from the inside. Tr. 157,
206. Pinson testified that he specifically recalled telling Armstrong that he did not remember the
trackhoe operator ever saying the latch did not work. Tr. 157; see also Tr. 158.
Armstrong was asked if she knew why the trackhoe' s defects had not been corrected. She
responded she did not know, but she remembered Pinson saying to her that he "didn't have the
people to help him get things done." Tr. 47. Because the condition of the missing steps and
broken mirrors was obvious and because Armstrong believed Pinson knew about the conditions
and did not correct them, Armstrong found the conditions were due to Johnson Paving's
31 FMSHRC 1250

unwarrantable failure. Tr. 53. Indeed, with regard to all of the conditions she observed and cited
in the contested citation and orders, Armstrong stated she based her findings that the conditions
were due to the company's unwarrantable failure on the fact that Pinson "knew [the] conditions
existed and that they continued to exist and they had not been corrected." Tr. 79.
Terry Lingenfelter testified that he works as a special investigator for the agency. In his
capacity as a speeial investigator he conducts investigations of possible "knowing" violations on
the part of the agents of operators. Agents of operators are subject to individual civil penalties
under section 110(c ) of the Act when they commit such violations. In October 2006,
Lingenfelter conducted a section 110(c) investigation into the circumstances surrounding the
trackhoe order and another order (Order No. 6120071). Tr. 181-184. In October 2006, :
Lingenfelter interviewed miners who worked at the mine when the trackhoe order was issued.
He also interviewed Pinson. Lingenfelter testified that Pinson told him he did not know that the
trackhoe's inside door latch was broken until August 1. Tr. 186. Lingenfelter also asked Pinson
about the broken mirrors and missing steps. According to the investigator, Pinson did not have
much to say. Id. However, the trackhoe operator told Lingenfelter that on several occasions he
had "relayed" the information about the conditions to Pinson. According to the trackhoe
operator, Pinson responded he "[had] it covered." Tr. 187. The only explanation Pinson gave to
Lingenfelter for not correcting the conditions was that he did not have a mechanic to do the work.
Tr. 187-188 · Lingenfelter acknowledged that he did not actually see the trackhoe; however, from ·
speaking with Inspector Armstrong, Lingenfelter understood that the conditions were "very
obvious." Tr. 189, 190.
Based on what he was told by Pinson and by the trackhoe operator, Lingenfelter
concluded Pinson, who as the foreman was an "agent" of the company, knew or had reason to
know about the trackhoe's cited conditions and that he "took no action to insure the safety of the
miners with [regard to the] ... conditions." Tr. 188. Therefore, in Lingenfelter's view, Pinson
violated section 1 lO(c) of the Act. Tr. 188, 205-206.

THE VIOLATION
Section 56.14100(b) requires "defects on any equipment ... that affect safety ... [to be]
corrected in a timely manner to prevent the creation of a hazard to persons." There is no doubt
the trackhoe was defective in several ways that affected safety. The company does not dispute
that the trackhoe had a non-functioning inside door latch, was missing the steps by which its
operator accessed the vehicle, and had broken mirrors. Each of these conditions "affected
safety," in that each was capable of causing or contributing to the cause of an injury-producing
accident.
The record also establishes that two of the three conditions were not timely corrected.
31FMSHRC1251

Both the inspector and Lingenfelter testified the trackhoe operator told them he reported the
conditions to Pinson and the operator told Lingenfelter he did so more than once. Armstrong
recalled Pinson telling her the steps had been missing and the mirrors had been broken since the
previous April. While Pinson denied he told Anderson he knew about the door latch until
Armstrong asked the trackhoe operator to open the door on August 1, Pinson did not deny his
prior knowledge of the condition of the steps and mirrors. In addition, the missing steps and
broken mirrors were Qbvious when looking at the trackhoe. Pinson clearly should have had new
steps installed and the broken mirrors replaced by August 1. In failing to do so, he was
responsible for the company violating section 56.14100(b) as charged. 3

S&S AND GRAVITY
An S&S violation is a violation "of such nature as could significantly and substantially
contribute to the cause and effect of a ... mine safety or health hazard." 30 U.S.C. § 814(d). A
violation is properly designated S&S, "if, based upon the particular facts surrounding that
violation, there exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature." Cement Div., Nat'! Gypsum Co., 3 FMSHRC
822, 825 (April 1981). To establish the S&S nature ofa 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 (71h Cir. 1995); Austin Power Co., Inc. v. Sec'y ofLabor, 81F.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., 9 FMSHRC 748(July1987); 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

3

However, because I credit Pinson's assertion that he did not know about the condition of
the door latch until the inspection on August 1, I find the Secretary did not establish the
malfunctioning latch violated the standard. Pinson did not have an opportunity to repair the latch
in a "timely manner."
31FMSHRC1252

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 (September 1996).4
I have already found that the Secretary established a violation of section 56.141 OO(b) with
regard to the missing steps and broken mirrors. The violation contributed to the hazard of the
trackhoe operator suffering a slip and/or fall injury, and it contributed to the hazard that those
operating equipment or traveling on foot in the vicinity of the trackhoe would be hit as the
trackhoe backed up or swung. In the context of ongoing mining operations, such hazards were
reasonably likely to occur, in that the trackhoe operator regularly had to enter and exit the
· trackhoe operator's compartment via a route m3;de'more difficult and hazardous by the lack of·
the steps. In addition, other equipment and miners occasionally were in the vicinity of the
trackhoe when it was moving backwards or swinging. If the operator of the trackhoe slipped and
fell while entering or leaving the trackhoe operator's compartment, he or she was reasonably
likely to sprain an ankle or to break a foot or leg bone. Or, if other equipment or miners were hit
by the trackhoe as it backed up or swung, it was reasonably likely the equipment operators or the
miners would experience crushing injuries or even death. Therefore, the violation was S&S.
· The violation also was serious. As noted, the inspector's testimony established the
trackhoe operator regularly accessed and left the operator~ s ·compartment by climbing up onto. the
top of the track and by climbing or jumping down from the track. This meant the operator had to
"step up" and "step down" a distance of approximately three feet each time he had to enter or
leave the equipment. As already stated, the lack of steps subjected him to a slip and/or fall
hazard, a hazard that carried with it the possibility of a serious injury. The broken mirrors posed
an even greater hazard. The trackhoe could move back and forth and it could swing from side to
side. The mirrors, had they not been broken, would have allowed the trackhoe operator to check
for vehicular or pedestrian traffic in the path of the trackhoe as it moved. Without the mirrors,
the trackhoe operator experienced "blind spots" when it came to what was to his rear and sides.
The condition was especially hazardous to others who worked in the pit in the vicinity of the

4

With regard to the gravity of all of the alleged violations, the company asserted that
Armstrong was applying the regulations inconsistently, in that she found violations of the cited
standards to be more serious at the company's mine than at the mines of other companies.
Counsel for the company asked the inspector, "Why are these [alleged violations] ... so much
more dangerous in your mind at Johnson Paving than they are at other places?" The inspector
replied, "I'm not comparing Johnson Paving with anyone. I'm looking at what Johnson Paving
did and the conditions that surround ... [what it did] .... I'm not comparing it to ... any other
place." Tr. 140. She added she assessed the gravity of a violation on "the conditions that
surround[ ed] a particular circumstance," and there is no evidence in the record that Armstrong,
an obviously contentious and forthright inspector, acted otherwise. Tr. 141.

31FMSHRC1253

trackhoe either as the operators of mobile equipment or as travelers on foot.

UNWARRANTABLE FAILURE AND NEGLIGENCE
Unwarrantable failure is "aggravated conduct, constituting more than ordinary negligence
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.
2003-2004; Rochester &Pittsburg Coal Co., 13 FMSHRC 189, 193-194(February1991); see
also Rock 9/4ges Corp. v. Sec '.Y ofLabor, 170 F .3d 157 (2d Cir. J 999); Buck Creek Coal, Jnc. v.
MSHA, 53 F.3d 133, 136 (7th Cir. 1995) (approving the Co:nimissio:tl'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). Negligence, of course, is the failure to meet the standard of
care required by the circumstances.
I concl~de the violation was caused by an unwarrantable fail~re to comply with the
standard. The Secretary established that the missing steps and broken mirrors existed for some
time prior to inspection, at the most since the previous April, and at the least several days before
the inspection. I:n either event, Pinson timely knew of the conditions; yet he took no action to
correct the conditions or to eliminate the hazards by repairing the trackhoe or by ta1cing the
trackhoe out of service. Further, the hazards posed by the conditions were serious, and Pinson' s
failure in the face of his knowledge of the conditions represented a serious lack of reasonable
care. I:n addition, Pinson's failure to correct the conditions or to otherwise eliminate the hazards
they posed represented a grievous failure to meet the standard of care required of him as the
foreman. He was, as the Secretary rightly charges, highly negligent, and his negligence is
attributable to the company.

PINSON'S INDIVIDUAL LIABILITY
The Act provides that an agent of a corporate operator may be subject to civil penalties in
his individual capacity for knowingly authorizing, ordering or carrying out a violation of the Act.
30 U.S.C. § 820(c). The legal standards governing individual liability were summarized in
Maple Creek Mining, Inc., 27 FMSHRC 555, 566-67 (August 2005):

Section 105(c) of the Mine Act provides that whenever a corporate
31 FMSHRC 1254

operator violates a mandatory health or safety standard, a director,
officer, or agent of such corporate operator shall be subject to an
individual civil penalty. 30 U.S.C. § 820(c). The proper legal
inquiry. for determining liability under section 110(c) is whether the
corporate agent knew or had reason to know of a
violative condition. Kenny Richardson, 3 FMSHRC 8, 16 (January
1981, af!'d on other grounds, 689 F.2d 632 (61h Cir. 1982), cert.
denied, 461 U.S. 928 (1983); accord Freeman United Coal Mining
Co. v. FMSRHC, 108 F. 3.d 358, 362-364 (D.C. Cir. 1997). To
establish Section 110(c) liability, the Secretary must prove that an
.Steen Constr.,
individual knowingly violated the law. Warr~n
Inc., i4 FMSRHC 1125, 1131(July,1992)(citing United States v.
Int'l Minerals & Chem. Corp., 402 U.S. 559, 563 (1971). A
knowing violation occurs when an individual "in a position to
protect employee safety and health fails to act on the basis of
information that gives him [or her] knowledge or reason to lmow
of the existence of a violative condition." Kenny Richardson, 3
FMSHRC at 16. Section 110(c) liability is predicated on
aggravated conduct constituting more than ordinary negligence.
Beth Energy Mines, Inc., 14 FMRHRC 1232, 1245 (August 1992).
As made clear in Kenny Richardson and BethEnergy, as a predicate to individual liability,
a corporate operator's agent must be privy to knowledge or information that gives him reason to
lmow of the existence of a violative condition under circumstances wherein his failure to act
amounts to aggravated conduct constituting more than ordinary negligence.
The company, as its name indicates, is a corporation. Pinson, who was hired and who
worked as the company's foreman, was de facto in charge of the pit and was working as the
company's agent. As found above, Pinson lmew that the steps on the tackhoe were missing and
that the trackhoe's mirrors were broken. He was informed about the conditions and they were
visually obvious; yet he did nothing to eliminate the hazards posed. Thus, there is ample
evidence to conclude Pinson lmew of the conditions, yet permitted them to continue.
I credit Armstrong's testimony that Pinson explained the presence of the conditions by
telling her he did not have adequate personnel "to get things done." Tr. 47. Armstrong's
memory of what Pinson said is consistent with Lingenfelter's testimony about a more specific
conversation he had with Pinson, one in which Lingenfelter remembered Pinson saying he did
not have a mechanic to make the necessary corrections. Tr. 187. I believe the statements reflect
the fact that the company did not provide Pinson with the resources he needed to ensure a safe
work place. It is also noteworthy that when Pinson testified, he offered no explanation for why
he did not take the trackhoe out of service until the conditions could be fixed. The bottom line is
that Pinson, a supervisor responsible for the safety of those working for him, essentially chose to
31 FMSHRC 1255

continue mining operations in the face of serious hazards. In so doing, he exhibited aggravated
conduct constituting more than ordinary negligence. Therefore, he may be held individually
liable for the violation of section 56.141 OO(b).
ORDER NO.

DATE

30 C.F.R. §

61200]1

08/01/2006

56.14103(b)

The order states in part:
The windshield for the ... welding truck ... was cracked
throughout and had a hole in the top drive side. The truck is used .
regularly throughout the plant
and quarry to perform repairs
on the plant and equipment. The truck is around other mobile
equipment and employees when traveling around the plant and pit.
The damage could create a visibility hazard as well as a cutting
hazard to the operator when cleaning the windshield. The quarry
foreman stated he used the welding truck yesterday and knew the
windshield was broken and cracked and [he] did not take corrective
action. This violation is an unwarrantable failure to comply with a
mandatory standard.
Gov't Exh. 5.
At the plant and in the pit, there were occasions when welding was done to make
necessary repairs. To facilitate the work, the company kept welding materials on the bed of a
truck and moved the truck around the plant and pit as needed. According to Pinson, on August 1,
2006, the truck was located-"up round some scrap metal" in an area he referred to as "the
junkyard." Tr. 159. Armstrong testified that she and Pinson approached the truck, and
Armstrong noticed that its windshield was cracked. She also noticed a hole at the top of the
glass. Armstrong could not remember if she climbed into the cab of the truck and tried to look
through the windshield (Tr. 63-64), but as best as she could recall, the cracks and the hole were
more to the driver's side of the windshield than the passenger's side. Tr. 64-65; See, Exh. 6.
Armstrong asked Pinson if the truck had been used, and he responded it was used the day
before the inspection. Armstrong believed the windshield's condition "could obstruct the [truck]
operator's visibility'' and ifthe windshield "fogged" and the driver wiped the windshield from
the inside, the crack and the hole could pose a cutting hazard to the driver. Id.
Pinson did not deny the presence of defects, but he did not believe they obstructed the
driver's visibility. He testified, on July 31 the truck could not be started and it was dragged to

31 FMSHRC 1256

where the inspector found it. 5 Pinson sat in the driver's seat and steered the truck. Tr. 169-170.
He testified that he could see, and that the cracks and hole did riot obstruct his vision. Tr. 160.
The company introduced into evidence a photograph that Pinson identified as having been taken
the day before the hearing. Tr. 164; Resp. Exh. 7. (Because the truck was taken out of service
after it was cited for the defective windshield, the company maintained the photograph showed
the condition of the window exactly as it was on August 1, 2006, an assertion the Secretary did
not contest. Tr. 162.)
Armstrong testified that an injury was reasonably likely to result from the defective
windshield. She noted that the welding truck was used regularly throughout the mine and that it
had been used just before she got to the mine. Tr. 56, 58. · She observed that the truck traveled in
areas where there was foot traffic and that the cracks and hole reduced the ability of the truck
driver to see those working or traveling around truck. If because of reduced visibility the truck
stuck and ran over someone, a fatality was likely. 6 Tr. 57, 58. Armstrong also believed Johnson
Paving was highly negligent in allowing the condition to exist. She recalled Pinson's telling her
he knew the windshield was "busted and that he had used the truck" anyway. Tr. 59. She noted
that despite being aware ofthe windshield's condition, Pinson did not do anything to repair it. Tr.
62. This also led her to conclude the condition was the result of Johnson Paving's unwarrantable
failure. Tr. 61-62.
Lingenfelter testified the defective windshield represented a knowing violation on
Pinson's part. His reasons for reaching that conclusion were basically the same as those
regarding his conclusion that Pinson was knowingly responsible for the defective conditions on
the trackhoe. Tr. 205-206.
To correct the condition, Johnson Paving took the welding truck out of service by
removing all of the welding equipment from the truck and by removing the truck's battery. Tr.
60-61, 163.
THE VIOLATION
Section 56.14103(b) requires in part that damaged windows on self-propelled mobile

5

According to Pinson, the battery in the truck was dead. A jump[-]start failed, and the
truck was towed by another piece of equipment. Tr. 168.
6

However, Armstrong admitted she knew of no instances in which miners had been
fatally injured by trucks because of cracked windshields. Tr. 75.

31FMSHRC1257

equipment that "obscure visibility necessary for safe operation, or create a hazard to the
equipment operator" be removed or replaced. There is no doubt the cited truck qualified as selfpropelled mobile equipment. While it is true the truck's battery was dead at the time the
defective windshield was cited, the question of whether or not a violation is proven must be
considered in terms of continued normal mining operations. Without evidence to the contrary, it
is reasonable to assume that in the course of continued normal mining operations the battery
would have been recharged or replaced and the truck would have regained its ability to propel
.
~
itself.
Clearly, the truck's windshield was damaged. The parties agree it was cracked and that it
contained a single hole. This leaves two questions. Did the defects in the windshield "obscure
visibility necessary for safe operation" and, did the defects "create a hazard to the [welding truck]
operator~" 30 C.F.R. § 56.14103(b). The Secretary has the burden of proof. To establish the
violation, a preponderance of the evidence must allow either question to be answei:_ed in the
affirmative.
The evidence is in conflict as at to whether the cracks and hole obscured the truck
driver's visibility so as to-create a hazard. Armstrong testified the defects "could obstruct the
operator's visibility." Tr. 56 (emphasis added). Pinson, who steered the truck as it was being
dragged, testified that he could see where he was going and that his visibility was not obstructed.
Tr. 159. Anderson recalled the cracks and the hole as more on the driver's side of the windshield
than on the passenger's side, and the Secretary introduced a photograph that seemed to indicate
this was so. Tr. 64-65; See See's Exh. 6. The company introduced a photograph that appeared to
show the cracks and hole were more toward the passenger's side of the windshield. See Resp.
Exh. 7.
After weighing all of the evidence as to the effect of the defects on the driver's visibility,
I conclude it is in equipoise and the Secretary has not prevailed. A different conclusion might
have been reached if Armstrong could have unequivocally testified as to what she saw when she
sat in the driver's seat, but she could not. She did not remember if she climbed into the cab and
tried to look through the windshield on the driver's side. Tr. 63-64. On the other hand, Pinson,
who was in the driver's seat on July 31, was certain he could see. Tr. 159. It also does not help
the Secretary's case that no testimony was offered as to how and from what angle the photograph
purporting to show the defective windshield was taken. Such testimony would have given the
finder of fact a better basis to evaluate the photograph's accuracy.
I also conclude the Secretary did not prove by a preponderance of the evidence that the
cracks and hole created a hazard to the truck driver. Armstrong believed ifthe windshield
fogged, the driver could cut his or her hand if he or she wiped the windshield from the inside. Tr.
56. However, the Secretary offered no testimony to support her speculation. For example,
Armstrong did not testify that she felt the glass and experienced sharp, jagged edges. Section
56.140103(a) required the windshield to be made of"safety glass" or its equivalent. Safety glass
31FMSHRC1258

typically cracks rather than shatters. It is common knowledge that such cracks do not necessarily
produce edges capable of cutting a person's hand. The same is true for holes in safety glass.
Based on the trial record, I cannot find the Secretary proved the cracks and/or the hole in the
welding truck's windshield constituted a cutting hazard. For these reasons, the order must be
vacated.

SE 2007-128-M
CITATION NO.

DATE

30 C.F.R.

6120066

·08/01/2006

56.14107(a)

The citation as modified states:
The shaft on the quarry pump [was] not guarded to protect persons
from contacting the moving parts. [The] pump is started with a
switch located by the fan and belt drive; [the] throttle control is
loca~ed by the rotating shaft. · The pump is 'located on uneven[,]
rocky terrain. Persons could be seriously or fatally injured if
entangled in the moving parts. This pump is used on a regular
basis. The quarry foreman stated he knew the pump was not
guarded, and [he] used the pump anyway. The [f]oreman engaged
in aggravated conduct constituting more than ordinary
negligence[,] in that he knew the pump shaft ... [was] not guarded
and [he] did not take corrective action. This violation is an
unwarrantable failure to comply with a mandatory standard.
Gov't Exh. 8 at 1, 2

In addition to the trackhoe and the welding truck, Armstrong testified she inspected a
pump that was used to remove water accumulations from the pit. Tr. 82-83. Removal of the
water was necessary for the company to carry out its extraction and loading operations. Although
no water was present in the pit on August 1, Armstrong remembered Pinson telling her he started
and used the pump the previous week. Id. In addition, she recalled another miner telling her that
he used it. Tr. 83.
Armstrong noticed the pump's shaft was not guarded. Tr. 83. Nor was the pump
removed from service by being "tagged out" or by having a sign nearby indicating it should not
be used. Tr. 91. Armstrong took a photograph of the unguarded shaft. See Gov't Exh. 9.
31FMSHRC1259

Armstrong believed the missing guard was "reasonably likely" to lead to an injury,
because the pump had to be used and the pump's throttle control was adjacent to the unguarded
pump shaft. A person had to stand about 12 inches from the unguarded shaft to start the pump
and to "throttle it up." Tr. 85-87. According to Armstrong, the ground in the pit, including the
ground next to the shaft, consisted of "uneven and rocky terrain," which added to the hazard. Tr.
84, 89. See also Gov't Exh. 9. Armstrong testified that the shaft rotated at a very fasttate, and if
a person were caught_by the shaft, he or she could be pulled into the shaft and quickly lose an
arm. Death could result. Tr. 84-85.
fu Armstrong's opinion, the lack of a guard was the result of Johnson Paving's "high

negligence." Tr. 90. She testified she remembered Pinson saying he knew the pump should have
been guarded. Id. She added that Pinson told her "he knew it was wrong to use ... [the pump]
without it being guarded." Id. In addition, she believed the lack of a guard was the result of an
unwarrantable failure on the company's part. She again pointed to the fact that Pinson knew the
shaft was unguarded, that he used it anyway and that he took no steps to provide the shaft with a
guard. Tr. 91. Johnson Paving corrected the condition by placing a box-type guard around the
rotating shaft. Tr. 92; See Gov't Exh. 10.
Pinson stated that the pump the inspector Cited had been put in place the day before the
inspector arrived. Tr. 153. It was decided to bring the pump to the pit after the bearings failed
on a previous pump. According to Pinson, before the inspector saw the pump, it had been run for
"a few minutes" to test it. Tr. 153. It was run without a guard so the guard would not have to be
removed if something was wrong with the pump. Id. When asked by the Secretary's counsel
why he did not guard the shaft after he tested it, Pinson explained that he "got tied up," that he
also had to correct the condition of the park brake on a haulage truck (another condition cited on
August 1) and he "figured it was more important to put the brakes on that truck than it was to put
a guard on [the] pump." Tr. 156.

THE VIOLATION
Section 56.14107(a) requires "[m]oving machine parts [to] be guarded to protect persons
from contacting ... shafts ... and similar moving parts that can cause injury." The pump was
not removed from service; nor was its shaft guarded. The testimony established the pump was
going to be used as mining continued in the pit. The unguarded, rapidly spinning shaft posed a
hazard, as Armstrong testified, to those working or standing near it. If a miner were caught in the
unguarded, rotating shaft, he or she could have been injured or even killed. Tr. 84-85. For these
reasons, I conclude the violation existed as charged.

31 FMSHRC 1260

S&S AND GRAVITY
The Secretary established the violation was both S&S and serious. All of the S&S
criteria were met. There was a violation of section 56.14107(a). The violation posed a safety
hazard to miners, in that the unguarded shaft was within 12 inches of the throttle control.
Because the control was used when the pump was started (Tr. 85-87), there was a danger the
miner whose job it was-to start and throttle up the pump would trip or slip and find himself or
herself ensnared by the shaft. In fact, given the short distance between the throttle and the
unguarded shaft and the uneven terrain in the pit, it was reasonably likely the hazard would
occur. 7 Finally, being pulled into the rotating shaft could result in any number of serious injuries
or, as Anderson persuasively testified, even in death. Tr. 84-85 .. Given these reasonably expected
cons~quences ifthe feared accident OCCUrred, I conclude that the violation was not only S&S, it
also was serious.

UNWARRANTABLE FAILURE AND NEGLIGENCE
The violation was the result of unwarrantable failure on the company's part. As
previously noted, Pinson as the supervisor in charge of the pit, acted on the company's behalf.
Pinson' s testiniony established the pump had been in place for a day. He tested it to make sure it
·' worked properly, but he did not guard the shaftafter the test was completed. He forthrightly
explained that he deferred installing the guard because he considered fixing the park brake on a
haulage truck to be "more important." Tr. 156. Setting priorities in correcting violations does
not excuse Pinson's failure to meet the standard of care required of him. If Pinson did not have
adequate resources to correct both conditions and ifhe believed guarding the pump's shaft was
not a top priority, he should have met the standard by taking the pump out of service. He chose
not to do this, and he left the pump shaft unguarded. It is reasonable to expect that in the course
of normal mining operations, the pump would have been started and throttled up by a miner as
mining continued. Exposing the miner to the hazard of possible dismemberment or worse by
deliberately leaving the shaft unguarded constituted a serious lack of reasonable care on Pinson' s
part and, hence, on the company's part.
Further, due to his status as a foreman, Pinson was held to a heightened standard of care.
His choice to forego guarding the shaft and his decision not to take the pump out of service until
it was guarded represented the kind of heightened lack of care that signifies high negligence.

ORDER NO.

DATE

30 C.F.R. §

61200701

08/01/2006

56.14101(a)(2))

7

The likelihood of an injury-resultant slip or fall was further increased by the fact that
surface water was an occasional problem in the pit.
31FMSHRC1261

The order states in part:
The park brake on the ... haul truck ... would not hold a grade
with a typical load. This truck is used to haul material from the pit
to the plant and to the stockpile area at the plant. This condition
creates a hazard of this piece of equipment rolling when parked.
Persons working in the area or around this truck could be struck or
run over[,] causing a serious or fatal injury. The truck is normally
parked on level ground when not in use.
Gov't Exh. 11.
During the course of the inspection on August 1, Armstrong and Pinson approached a
truck that was used to haul rock to the stockpile. Armstrong did not know how many tons of
material the truck held, but she guessed between 15 and 20. The truck was sitting on a small
grade at the dump, and Armstrong asked the driver to move the truck a little and then to set its
park brake. She wanted to see ifthe brake would hold the truck on the grade. The driver did as
Armstrong requested, and the truck rolled down the gtade. Tr. 96. Armstrong believed the lack
of an effective working park brake violated section 56.14101(3.)(2): However, Armstrong also
believed the ineffective brake was "unlikely'' to cause a fatal accident. Tr. 97; Gov't Exh. 10.
She noted the truck usually was parked on level ground where it would not roll and where it was
out of the way of miners and equipment. Tr. 97-98. Although an injury was unlikely, if a miner
(probably a mechanic or the operator of equipment used in the vicinity of the truck) were struck
by the moving truck, it was reasonable to expect the miner to suffer crushing injuries, injuries
that could prove fatal. Tr. 98.
Armstrong testified the defective brake was due to the company's high negligence. She
stated Pinson told her that a week before the inspection he became aware of the situation and he
ordered the brake to be "tightened ... up." Tr. 99. Therefore, on August 1, Pinson thought the
brake was holding. Tr. 99. However, according to Armstrong, "[T]here was no follow-up ... to
see ... [if the adjusted brake] was holding."8 Tr. 99. She also maintained the truck driver said
that the brake had not worked properly for "about a month" and "that . . . Pinson knew of the
condition." Tr. 100.
The company did not offer any testimony about the condition.

8

Armstrong testified she believed one of the reasons for the lack of follow-up was that the
company was not doing any pre-shift examinations. Therefore, defects in equipment were not
being reported and corrected as required. Tr. 99-100.
31FMSHRC1262

THE VIOLATION
Section 56.14101 (a)(2) states: "If equipped on self-propelled mobile equipment, parking
brakes shall be capable of holding the equipment with its typical load on the maximum grade it
travels." The elements of proofrequired to establish a violation are as stated in the standard.
The Secretary must proY.e: (1) that the cited equipment was "self-propelled mobile equipment"
and (2) that the park brake would not hold the equipment with its (a) "typical load" on (b) the
"maximum grade" the equipment travels. 30 C.F.R. § 56.14101(a).
The Secretary proved that the haul truck qualified as "self-propelled mobile equipment."
The very nature of the truck as described by Armstrong made it self-evident. Further, the
Secretary proved that the park brake would not hold the truck on the "maximum grade" it
traveled. Armstrong testified, when she inspected the truck it was parked on "a small grade."
Tr.96. While there was no specific testimony about the maximum grade the truck traveled, I
infer from the inspector's testimony that the small grade either was the maximum grade at the
mine or, if not, that since the park brake would not hold the truck on the small grade, it would not
hold it on the maximum grade. However, the Secretary did not establish that the brake was
incapable of holding the equipment with its typical load; No testimony was offered by the
Secretary regarding the truck's typical load nor was 'testimony offered regarding the load the
truck was carrying when it was cited. Armstrong testified regarding the truck's use. She stated it
was "used to haul material from the pit to the plant, and it was used in the stockpile area." Tr.
95. However, Armstrong did not describe or otherwise identify the truck's "typical load"; nor
did she estimate the load the truck was carrying. 9 Without the missing testimony I cannot
determine whether or not the park brake was "capable of holding the equipment with its typical
load." 30 C.F.R. § 56.14101(a)(2). Because I cannot rule out the possibility that when
Armstrong inspected the truck, it was carrying more than its typical load and the defective brake
·
would have held a lesser but "typical" load, the order must be vacated.

ORDERNO.

DATE

30 C.F.R. §

6120072

08/01/2006

56.14132(a)

The order states in part:

9

The closest Armstrong came to these topics was her statement that the truck was "a
stockpile type truck that [held,] I don't know how much 15, maybe 20 tons," but she added, "I'm
not sure how much was in there." Tr. 96.
31 FMSHRC 1263

The manually operated horn on the ... welding truck ... did not
function when tested. The truck is used regularly [throughout] the
plant and quarry and is around other mobile equipment and
employees when traveling around the plant and pit. Persons could
be seriously or fatally injured if struck by the truck while being
unaware that it was moving in their direction. The quarry foreman
stated]le used the welding truck yesterday and knew the horn did
not function. The foreman engaged in aggravated conduct
constituting more than ordinary negligence[,] in that he knew the
horn was not function[ing] and did not take corrective action. This
violation is an unwarrantable failure to comply with a mandatory
standard.
Gov't Exh. 12.
Armstrong testified that during the course of her inspection of the welding truck, the same
truck she cited for a defective windshield and broken mirrors, she discovered the truck's manual
horn did not work. Tr. 102. Pinson told Armstrong he knew that the horn did not work. Tr.. 102 .
. Accordingto Pinson, this was because the truck's batterywas·dead. If the battery "had 12 volts
going through it, [the horn] would" have worked. Tr. 167.
Because the truck was used in the plant and pit on a regular basis and in areas where there
could be foot traffic, Armstrong believed it was reasonably likely the lack of a horn would result
in an accident. Tr. 102-103. She also noted that the truck frequently was driven in those areas of
the pit where there was other mobile equipment and in the "yard area" where material was
stockpiled. Tr. 112. (The yard area was frequented by customers' trucks. Tr. 112.) Armstrong
could not recall the truck having another type of sound system to alert miners to its presence. Tr.
103. If there was a small air horn on the seat next to the driver, and she was later told that there
was, Armstrong did not remember its being there. Tr. 104. Pinson, however, was certain an air
horn was on the seat. Tr. 166. He testified he made sure air horns were kept in the cabs or
operators' compartments of all mobile equipment at the mine. Id. He added, "If your horn went
out ... you could use ... [the air horn] until the end of your shift and you could [then] get your
horn fixed. That's the reason I had ... [the air horn] in that truck." Tr. 166. Nevertheless, even
if an air horn was present, Armstrong believed Johnson Paving still was in violation of the cited
standard because "the horn that is provided with the equipment needs to function." Tr. 104.
The inspector found that the lack of a functioning horn was reasonably likely to result in a
fatal injury. She maintained "a lot" of service equipment was located on the truck, which meant
the truck frequently was visited by miners. fu addition, the truck was used "throughout the
mining process." Tr. 105. Not only were these miners exposed to the hazard, the lack of a
working horn also posed a hazard to the drivers of other trucks and mobile equipment in the pit
31FMSHRC1264

and yard. Tr. 112.
Armstrong also believed the company's negligence was "high." Tr. 106. She testified
that Pinson told her he used the truck on July 31, the day before the inspection, and that he knew
the horn did not work. Tr. 106. This, and the fact that Pinson "didn't do anything to try to
correct the condition," justified her finding of unwarrantable failure in addition to high
negligence on the com.tfany's part. Tr. 107. When asked whether Pinson explained why the horn
was not repaired, she stated he only said "he had to do everything himself." Tr. 108.
THE VIOLATION
Section 56.14132(a) states that "Manually-operated horns ... provided on self-propelled
mobile equipment as a safety feature shall be maintained in functional condition." As I have
already noted, the welding truck was "self-propelled mobile equipment." Further, the cited horn
was operated by hand and, thus, was "manually-operated." The horn that came with the truck
was "provided," and it is clear that it was a "safety feature." Everyone agreed the horn would not
sound. Therefore, it was not "maintained in functional condition," and the violation existed as
: c~arged.

S&S AND GRAVITY
The Secretary did not establish that the violation was S&S. While it is true the truck's
horn did not work, the record supports finding another method of warning miners on foot and
operators of other equipment of the truck's presence was available to the welding truck's driver.
Armstrong did not recall if there was an air horn on the seat next to the driver. 10 Tr. 104.
However, Pinson, who had been in the truck the day prior to the inspection, was sure the air horn
was present, and he persuasively testified he made certain such horns were routinely kept in the
cab of all mobile equipment at the mine. Tr. 166. Balancing Armstrong's lack of memory
against Pinson's certainty, I have no trouble in concluding the air horn was indeed present as
Pinson asserted. Clearly, the air horn was reasonably likely to be used by the truck driver as
mining operations continued, and the presence of an effective alternative to the horn provided
with the truck meant that the non-working horn was not reasonably likely to cause or contribute
to an injury-producing accident. The presence of the air horn also meant that the violation was
not serious.

10

This is not surprising since, as noted earlier, Armstrong could not recall climbing into
the truck's cab. Tr. 63-64.
31 FMSHRC 1265

UNWARRANTABLE FAILURE AND NEGLIGENCE
However, the violation was the result of unwarrantable failure on the company's part.
Armstrong testified without dispute that Pinson told her he used the truck on July 31 and that he
knew the horn did not work at that time. Tr. 106. I conclude Armstrong's recollection is
accurate and that, in fact, Pinson did know the horn was not working on July 31. Armstrong's
testimony is consistent with Pinson's statement that the battery, which not only started the truck
but also operated the horn, was dead the previous day when the truck was towed. Tr. 167.
Further, her unrefuted recollection that Pinson's excuse for not repairing the horn was that "he
had to do everything himself' (Tr. 108), correlates with her recollection of Pinson telling her, in
connection with the trackhoe's defects, that he "didn't have the people to help him get things
done." Tr. 47. While these statements call into question the way mine management chose to
operate the mine, they in no way excuse Pinson's failure to correct the violative conditions.
Armstrong properly noted that, in the face of his knowledge of the defect, Pinson did nothing to
try to repair the horn or, in the alternative, to take the horn and the truck out of service. Tr. 107.
fu failing to act, Pinson, and through Pinson, the company, exhibited a serious lack of reasonable
care, a lack of care that signifies not only unwarrantable failure, but also high negligence.

OTHER CIVIL PENALTY CRITERIA
There is no indication the size of any civil penalties assessed against the company will
affect its ability to continue in business, and I find that it will not. There also is no indication the
size of any civil penalties assessed against Pinson will affect his ability to meet his day-to-day
financial obligations, and I find that it will not.
Recalling Armstrong's testimony that Pinson told her ten to 11 employees worked at the
mine (Tr. 33), and noting the Secretary's indication on Exhibit A of the petition that the mine
operated between 10,000 and 20,000 hours annually (Petition for Assessment of Civil Penalty,
Exh. A at 2), I conclude the operator is small in size.
The parties stipulated that the company showed good faith in abating all of the alleged
violations, and I find this was the case. Tr. 164-165.
The Secretary offered into evidence a computer printout showing the history of prior
violations in the two years preceding August 1, 2006. The Secretary's counsel stated the printout
revealed a small history, a characterization with which the company neither agreed nor disagreed.
See Joint Exh. 1; Tr. 23-25. Based on the exhibit, I find the Secretary is correct and that the
company has a small history. The Secretary offered no evidence or testimony indicating Pinson
previously committed knowing violations pursuant to section 1 lO(c) of the Act (30 U.S.C. §
31 FMSHRC l266

820(c), and I conclude that he did not.

CIVIL PENALTIES
SE 2008-176-M
ORDER NO.

DATE

30 C.F.R. §

PROPOSED ASSESSMENT

6120067

08/0120/06

56.14100(b)

$500

I have found the Secretary proved the violation to the extent it related to the missing steps
and broken mirrors on the trackhoe. I also have found Pinson knowingly allowed the violation to
occur. I conclude, however, that Pinson, as a "first-time offender" with no previous history of
prior violations, should not be assessed the amount the Secretary proposes. As I have stated, the
tenor of the hearing made it clear that Pinson was placed in a position where he did not have the
means necessary to ensure safety in a timely manner. It is not clear whether this state of affairs
reflected a purposeful policy on top management's part or whether it was the result of Greg
Johnson's "hands-off' attitude. See Tr. 149. (Having heard Johnson testify, I suspect it was the
latter rather than the former.) In either event, it put Pinson in a very difficult position as he tried
to keep production going in the face of inadequate maintenance and repair resources. In view of
1
all of the circumstances, I find a penalty of $250 is appropriate.

ORDER NO.

DATE

30 C.F.R. §

PROPOSED ASSESSMENT

6120071

08/01/2006

56.14103(b)

$500

I have concluded the Secretary did not prove the alleged violation. Accordingly, no
penalty can be assessed.

SE 2007-128-M
CITATION NO.

DATE

30 C.F.R. §

PROPOSED ASSESSMENT

6120066

08/01/2006

56.14107(a)

$2,000

I have concluded the Secretary proved the violation, that it was serious and result of the
company's high negligence. However, in view of the small size of the mine and the small history
of previous violations, I also conclude the company should be assessed a lesser amount than the
Secretary proposes. As Joint Exhibit 1 reveals, in the two years prior to the violations in
question the highest penalty assesseded against the company was $463. Most violations were
assessed at $228 or less. (Excluding the violations at issue, 26 of 41 prior violations were
assessed at $60.) Thus, for this violation of section 56.14107(a) the Secretary has proposed a
31FMSHRC1267

penalty significantly larger than any previously assessed. Such a precipitous increase is not
warranted, and I find a penalty of $1200 to be appropriate. ·
ORDER NO.

DATE

30 C.F.R. §

PROPOSED ASSESSMENT

6120067

08/01/2006

56.14100(b)

$2,800

I have conclutied the Secretary proved the violation, that it was serious and the result of
the company's high negligence. For the reasons set forth immediately above I also find the
Secretary's proposed assessment to be excessive, and I conclude a penalty of$1,200 to be
appropriate.
ORDER NO.

DATE

30 C.F.R §

PROPOSED ASSESSMENT

6120070

08/01/2006

56.1410l(a)(2)

$2,800

I have concluded the Secretary did not prove the alleged violation. Accordingly, no
penalty can be assessed. ·
ORDER NO.

DATE

30 C.F.R. §

PROPOSED ASSESSMENT

6120071

08/01/2006

56.14103(b)

$2,800

I have concluded the Secretary did not prove the alleged violation. Accordingly, no
penalty can be assessed.
ORDER NO.

DATE

30 C.F.R. §

PROPOSED ASSESSMENT

6120072

08/01/2006

56.14132(a)

$2,800

I have concluded the Secretary proved the violation, that it was not serious and that it was
the result of the company's high negligence. For the reasons set forth with regard to Citation No.
6120066 and because the violation was not serious, I find the Secretary's proposed assessment to
be excessive. I conclude a penalty of $800 is appropriate.
ORDER
Within 30 days of the date of this decision, Pinson SHALL pay to the Secretary a civil
penaltyof$250 forthe violation of section 56.14100(b) set forth in Order No. 6120067. In
addition, Order No. 6120071 IS VACATED. Upon payment of a total penalty of $250, Docket
No. SE 2008-128-M IS DISMISSED.
31FMSHRC1268

Also within 30 days of the date of this decision, Johnson Paving SHALL pay $1,200 for
the violation of section 56.14107(a) set forth in Citation No. 6120066, $1,200 for the violation of
section 56.14100(b) set forth in Order No. 6120067, and $800 for the violation of section
56.14132(a) set forth in Order No. 6120072. fu addition, line lO(a) of Order No. 6120072 IS
MODIFIED to indicate an injury was "unlikely'' and Order No. 6120070 IS VACATED. Upon
payment of a total penalty of $3,200, Docket No. SE 2007-128-M IS DISMISSED.

David F. Barbour
Administrative Law Judge
(202) 434-9980

Distribution: (Certified Mail)
Dana L. Ferguson, Esq., U.S. Dep~ent of Labor, Office of the Solicitor, 61 Forsyth Street,
SW, Suite 7T10, Atlanta, GA 30303
John V. Hawkins, 2641 Shipetown Road, Mascot, TN 37806
/ej

31FMSHRC1269

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

October 26, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATIQN, (MSHA),
on behalf of LIGE WILLIAMSON
Complainant
v.

TEMPORARY REINSTATEMENT
PROCEEDING

CAM MINING, LLC,

Mine ID 15-18911
Number 28 Mine

Docket No. KENT 2009-1428-D
PIKE CD 2009-06

Respondent

DECISION ON REMAND
AND
ORDER OF TEMPORARY REINSTATEMENT
Appearances:

Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for the Complainant;
Mark Heath, Esq., Spilman, Thomas & Battle, Charleston, West Virginia,
for the Respondent.

Before:

Judge Feldman

This matter is before me based on an application for temporary reinstatement filed by
the Secretary, pursuant to section 105(c)(2) of the Federal Mine Safety and Health Act of 1977
(the Mine Act), 30 U.S.C. § 815(c)(2), against CAM Mining, LLC (CAM Mining) on
behalf of Lige Williamson. The initial decision on the Secretary's application, following a
September 2, 2009, evidentiary hearing, determined that the Secretary failed to satisfy her
burden of demonstrating that the application for temporary reinstatement was not frivolously
brought. 31 FMSHRC _ (Sept. 30, 2009) (ALJ). The Secretary appealed the initial decision.
The Commission has reversed and ordered the retroactive reinstatement of Williamson
effective as of September 30, 2009, the date of the initial decision. 31 FMSHRC _,
slip op. at 8 (Oct. 22, 2009).
Accordingly, IT IS ORDERED that CAM Mining, LLC SHALL IMMEDIATELY
REINSTATE Lige Williamson to the former job position that he held on May 15, 2009, at his
former rate of pay, with back pay effective September 30, 2009. Williamson's reinstatement
shall include entitlement to all benefits associated with his employment including overtime,
if applicable.

31FMSHRC1270

Williamson's reinstatement shall not prejudice CAM Mining's right to contest
Williamson's discrimination complaint that currently is being investigated by the Secretary.
The Secretary should endeavor to complete, as soon as practicable, her investigation so that this
matter may proceed to an evidentiary hearing on the merits. If the Secretary, upon investigation,
finds that the provisions of section 105 (c) have not been violated, she shall file a motion to
vacate this Order of Temporary Reinstatement. Alternatively, CAM Mining may move to vacate
this temporary reinstatement order if the Secretary declines to prosecute Williamson's complaint
pursuant to section 105(c)(2) of the Mine Act. Peter J. Phillips v. A&S Construction Co.,
31 FMSHRC _,Docket No. West 1057-DM (Sept. 9, 2009).

Jerold Feldman
Administrative Law Judge

-

Distribution: (VIA FACSIMILE AND CERTIFIED MAIL)
Mary Sue Taylor, Esq., Office of the Solicitor; U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219
. Mark E. Heath, Esq., Spilman, Thomas & Battle, PLLC, 300 Kanawha Blvd. East, P.O. Box 273,
Charleston, WV 25321

/rps

31 FMSHRC 1271

31FMSHRC1272

ADMINISTRATIVE LAW JUDGE ORDERS

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

September 1, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

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

SCP INVESTMENTS, LLC,
Respondent

Old County Quarry

ORDER TO SHOW CAUSE
These civil penalty matters were remanded on August 6, 2009, for further consideration.
These cases concern a mirie inspector's refusal to permit a representative of the mine operator to
accompany the inspector during an inspection. The initial decision vacated the eleven citations
and the one order in issue. 30 FMSHRC 544 (June 2008) (ALJ). The initial decision to vacate
the cited violations was based on a determination that ·the mine'inspector abused his·discretion by
unjustifiably denying the mine operator's statutory right to accompany him during the mine
inspection.
The Commission's remand set aside the initial decision on jurisdictional grounds. 1
The Commission noted that a mine inspector is authorized to enter a mine to conduct an
inspection, with or without the presence of a mine operator, pursuant to the authority delegated to
the Secretary in section 103 of the Federal Mine Safety and Health Act of 1977, as amended
("Mine Act"). (Slip op. P.11). The Commission also noted that an operator cannot nullify an
inspection by refusing to participate.2 (Slip op. p.12).

1

The Commission relied on the language in section 103(:f) that"... Compliance with this
subsection shall not be a jurisdictional prerequisite to the enforcement of any provision of this
act." 30 U.S.C. § 813(:f). Obviously, the only party that can object to jurisdiction under section
103(:f) is the mine operator. This provision means that a mine operator cannot successfully
attack citations on jurisdictional grounds simply because it was not present during an inspection.
As recognized by the Commission, this provision does not vitiate the walkaround rights that are
also granted in section 103(:f).
2

I too previously ruled that a mine operator cannot prevent or delay an inspection because
of his unavailability or his decision not to participate. F.R. Carroll, Inc., 26 FMSHRC 97
(Feb. 2004) (ALJ).

31FMSHRC1273

However, the analysis in this case does not stop simply because the mine inspector was
authorized to act as a consequence of his inspection. The Commission is "an independent
adjudicative body authorized [by Congress] to hear disputes arising under the Mine Act."
Energy West Mining Corp. v. FMSHRC, 40 F.3d 457, 459 (D.C. Cir. 1994) citing 30 U.S.C.
§§ 815(d), 823. Fundamental to the Commission's mandate is the responsibility of determining
whether contested citations, issued under section 104(a) of the Mine Act as a result of an
authorized sectionJO](a) mine inspection, should be affirmed, modified, or vacated. 30 U.S.C.
§ 814(a). Obviously, the authority to inspect a mine and issue citations has no bearing
on whether those citations must be sustained by the Commission. Surely the statutory
walkaround rights in section 103(f), granted to miners' representatives as well as
l!line operators, are not illusory.
Although the Commission reinstated and remanded these matters for further action on
jurisdictional grounds, the Commission also recognized the substantive distinction~between an
operator's unavailability, or its decision not to participate in an inspection, and MSHA's refusal
to allow its participation. While an operator's absence generally is benign, the Commission
concluded that the arbitrary and unreasonable refusal in this case constituted an "impermissible"
violation of the mine operator's section 103(f) statutory walkaround right. (Slip op. pps. 7, 9, 1011, 18) .
. FJowever, the Commission did not reach a majority consensus concerning the action
I now should take. Pennsylvania Electric Co., 12 FMSHRC 1562, 1563-65 (Aug. 1990), aff'd on
other grounds, 969 F.2d 1501 (3rd Cir. 1992) ("Penelec") (disposition by the Commission
requires a majority vote). Two Commissioners suggested that I conduct an exclusionary hearing,
apparently predicated on due process concerns, to determine what prejudice, if any, resulted from
the denial ofwalkaround rights. (Slip op. p.2). One Commissioner suggested I should exercise
my discretion by evaluating the prejudice caused by the mine operator's lack of an opportunity to
present probative evidence during the inspection. Id. The remaining Commissioner concluded
the refusal of walkaround rights has no effect in this case. Id. However, as noted above, a
majority of the Commission agreed with the initial decision that the mine operator's statutory
walkaround right was impermissibly violated.
In the performance of its adjudication :functions, longstanding case law reflects the
Commission's frequent examination of whether, abuses of discretion, however well intentioned,
due process considerations, or prejudice caused to an operator by the Secretary, provide a
basis for vacating or denying modifications of citations that are otherwise validly issued.
An "abuse of discretion" occurs when "there is no evidence to support the decision or
if the decision is based on an improper understanding of the law." Utah Power & Light Co.,
13 FMSHRC 1617, 1623 n.6 (October 1991), quoting Bothyo v. Moyer, 772 F.2d 353, 355
(7th Cir. 1985) (emphasis added). While the Commission's remand decision did not specifically
characterize the mine inspector's action as such, it is clear that an impermissible violation of a
statutory right that, according to two Commissioners, lacked "common decency," surpasses the
threshold of actions properly deemed as an abuse of discretion. (Slip op. p.9).

31FMSHRC1274

In view of the Commission's determination that the mine operator's section 103(f)
walk:around right was violated, the Secretary IS ORDERED to SHOW CAUSE why the
citations issued as a consequence of the December 2005 inspection should not be vacated. 3
The Secretary's response must address the following issues that are material in the disposition of
these matters.
1. Section 1P4(.!l.) provides that a mine operator is liable for a violation of any
provision of the Mine Act. Since a mine operator is clearly liable, under section
104(a), for an unjustifiable denial of an authorized miners' representative section
103(f) walkaround right, the Secretary should address whether, in view of Utah
Power & Light and the Commission's remand, she disputes that MSHA's
impermissible denial of the section 103(f) walk:around right in this case
constitutes an abuse of discretion. In other words, is the Secretary's violation of a
statutory right that she is obliged to enforce an abuse of discretion?
·
2. Longstanding case law supports the proposition that a citation, otherwise
properly issued by a mine inspector pursuant to the authority delegated to the
Secretary by the Mine Act, can be vacated based on that mine inspector's relevant
and material abuse of discretion. Energy West Mining Company, 18 FMSHRC
565, 569 (Apr. 1996) and its progeny (abuse of discretion as a basis for vacating a
104(b) order otherwise validly issued); and Rochester & Pittsburgh Coal
Company, 11 FMSHRC 2159, 2163-64 (Nov. 1989) quoting Old Ben Coal Corp.
v. Interior Bd. ofMine Op. App., 523 F.2d at 31 (7th Cir. 1975) and its progeny
(findings and decisions of an inspector are supportable unless there is evidence
that he abused his discretion or authority). The Secretary should thoroughly
discuss whether or not this case law provides a basis for vacating the citations in
issue.
3. In view of the Commission's remand, does the MSHA inspector's
unreasonable denial of the mine operator's statutory section 103(f) walk:around
right in this case constitute a due process violation? The Secretary should provide
a thorough analysis of this question supported by relevant case law.
4. A citation, otherwise properly issued by a mine inspector pursuant to the
authority delegated to the Secretary by the Mine Act, can be vacated based on a
relevant and material violation of the mine operator's right to due process.
American Coal Company, 29 FMSHRC 941, 952-53 (Dec. 2007) citing Gates &
Fox Co. V. OSHRC, 790 F.2d 1189, 1193 (91h Cir. 1982). (considerations of due
process prevents imposition of a civil penalty and validation of a citation

3

The MSHA inspector's action does not effect the propriety of the Part 46 training
violations in 104(g)(l) Order No. 6122908 and Citation No. 6122916 because they were not cited
as a consequence of the physical inspection of the mine.
31FMSHRC1275

otherwise properly issued). Assuming the impermissible denial of section 103(f)
walkaround rights in this case is a due process violation, the Secretary should
thoroughly discuss whether or not this case law provides a basis for vacating the
citations in issue.
5. Finally, the Commission may deny MSHA's issuance of a citation if it
results in legally recognizable prejudice to the operator. Cyprus Empire Corp.,
12 FMSHRC 911, 916 (May 1990) (modification of a citation to allege a violation
of a different standard may be precluded upon a showing of prejudice). The
Secretary should address whether an unreasonable denial of a mine operator's
walkaround right is prejudicial per se, and whether prejudice provides a basis for
vacating the citations in issue; ·

ORDER

IT IS FURTHER ORDERED that above information should be provided by the
Secretary within 30 days of the date of this Order. The Secretary should specifically address
the impact of the cases cited above in her analysis of whether there is an adequate basis for
vacating the citations. The Secretary may submit any additional arguments or authorities to
support her position. Failure by the Secretary to provide a timely response ·that directly
addresses these relevant issues may result in dismissal of these civil penalty proceedings.
SCP Investments, LLC (SCP) shall have 14 days to reply to the Secretary's submission, although
. a response by SCP is not required.

Jerold Feldman
Administrative Law Judge
Distribution: (Certified Mail)
W. Christian Schumann, Esq., Office of the Solicitor, U.S. Department of Labor,
1100 Wilson Blvd., Room 2220, Arlington, VA 22209-2296
Christian P. Barber, Esq., Office of the Solicitor, U.S. Department of Labor,
618 Church Street, Suite 230, Nashville, TN 37219
Pat Stone, SCP Investments, LLC, P.O. Box 82, Crab Orchard, TN 37723

/rps

31 FMSHRC 1276

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE N. W., SUITE 9500
WASHINGTON, D.C. 20001
(202) 434-9953

September 10, 2009
BILLY BRANNON,

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. KENT 2009-302-D
BARB CD 2008-07

PANTHER MINING, LLC,
Respondent
No. I Mine
Mine ID 15-18198

BILLY BRANNON,

DISCRIMINATION PROCEEDING
Complainant

v.
PANTHER MINING , LLC and
MARKD. SHELTON,
Respondent

SECRETARY OF LABOR,
ON BEHALF OF BILLY BRANNON,
Complainant,
v.
PANTHER MINING, LLC,
Respondent

Docket No. KENT 2009-1225-D
BARB CD 2009-07

No. 1 Mine
Mine ID 15-18198

DISCRIMINATION PROCEEDING
Docket No. KENT 2009-1259-D
BARB CD 2009-09

No. 1 Mine
Mine ID 15-18198

ORDER GRANTING COMPLAINANT'S MOTION TO AMEND COMPLAINT
The Complainant, Billy Brannon, moves for leave to amend his initial complaint of
discrimination (Docket No. KENT 2009 302-D). The complaint is scheduled to be heard, along
with the two other discrimination cases with which it is consolidated, on March 2, 2010.
Brannon's amendment would include two additional protected activities that were not specified
in his initial complaint, namely: "(1) Brannon's refusal to travel underground without a cap light
after Robert Salyer ... assaulted him and smashed his cap light on January 23, 2008 ... and (2)
Brannon's ... [completion of] a 'mine incident report' on January 23, 2008, regarding Salyer's
assault of him and his subsequent refusal to travel underground." Motion For Leave to File
Amended Complaint of Discrimination ("Motion") at 2. The amended complaint also would
31 FMSHRC 1277

amplify an allegation that Brannon included in his June 15, 2009, Supplementation of the Record
("Supplementation"); namely that Brannon complained to Rick Raleigh, the personnel director
for Black Mountain Resources, about Salyer' s assault of him. The proposed amendment would
flesh out Brannon's previous allegation that Brannon complained "to management of Cloverlick
Coal/Black Mountain Resources about ... Salyer assaulting him with a hammer."
Supplementation at 2.

BRANNON'S ASSERTIONS IN SUPPORT OF THE MOTION
Brannon states that although he did not specifically plead the additional protected
activities in his original complaint, the incidents were among those pleaded by Brannon in a civil
suit he filed against Cloverlick Coal Company and Salyer, pleadings that were attached to his
initial complaint. Therefore, according the Brannon, the company, a subsidiary of Cloverlick,
"is well aware" that Brannon complained about the cap light incident. In addition; in Brannon's
view, the company also is aware that he filled out the incident report about the assault. Thus, the
company cannot credibly assert the proposed amendments come as a surprise, and the company
would not be "prejudiced in anyway'' ifthe amendments are allowed. Motion at 2-3.

THE COMPANY'S RESPONSE
The company disagrees. The company notes that the facts set forth in the proposed
amendments were not mentioned in the complaint Brannon originally filed with MSHA.
It also notes that on December 16, 2008, in one of its interrogatories it requested that Brannon
describe each protected activity on which he based his claim of discrimination and that it also
requested Brannon produce copies of all of the documents pertaining to the alleged protected
activities for which he claimed discrimination. Brannon's responses did not mention the
protected activities he now seeks to include in his complaint. Moreover, when the company
later deposed Brannon about his alleged protected activities at no time did Brannon mention the
"new" ones. Nor did Brannon mention them in response to the order to supplement the record
except to state as Brannon noted in his motion that he "complain[ed] to management of
Cloverlick Coal/Black Mountain Resources about ... Salyer assaulting him with a hammer."
Memorandum In Opposition to Motion for Leave to File Amended Complaint ("Opposition") at
3 (August 14, 2009) (quoting Supplementation 2).
The company also views the proposed amendments as untimely because as of the date the
motion was filed, the case has been pending for almost five months and Brannon has failed to
explain why the alleged additional protected activities were not pleaded earlier. Opposition at 4.
Brannon "should not be allowed to add claims ... when he had ample time and opportunity to
raise them previously and states no reason for not having done so." Id. at 5. Granting the motion
would cause additional expense to the company by requiring it to amend its defenses, depose
Brannon again and possibly amend its pending motion for partial summary decision, and file a
supplemental brief in support of the motion. Id. at 5.

31FMSHRC1278

Finally, the company argues the "new" allegations have not been investigated by MSHA
as required by section 105(c) of the Act and that a "miner cannot present claims on his own
unless and until the Secretary has made a finding of no discrimination under section 105 (c)(3) [of
the Act]." Opposition at 6.
RULING
The amendments WILL BE ALLOWED. The Commission has taken a liberal view
when it comes to such amendments, especially when, as here, they do not prejudice a party in
preparing its defenses. I agree with Brannon that the amendments should come as no surprise to
the company.· The allegations arise out of the Brannon/Salyer altercation, an incident that .
triggered Brannon's initial claims. The company was and is well aware of the incident and the
events surrounding it.· Further, a careful reading of the company's opposition fails tQ reveal an
assertion of actual prejudice. While it is true the company may feel compelled to amend its
answer, conduct additional discovery, amend its pending motion and supplement its brief in
support of the motion, the expenses inherent in such activities are the necessary consequences of
litigation, costs the company (and any litigant) must be prepared to bear. Moreover, because the
"new" protected activities arise out of the Brannon/Salyer incident there is no need for Brannon
to "restart" the section 105(c) investigatory process by "re-complaining" to MSHA. Were
another complaint required the subject cases could be even more delayed than is now the case.
:There are occasions when related but "new" allegations must be allowed in order to end serial
litigation, and this is one. See e.g., Sec. ofLabor o/b/o Lawrence Pendley v. Highland Mining
Co., 30 FMSHRC 459, 496, n.44 (May/June 2008); ajf'd 31FMSHRC61 (January/February
. 2009); appeal docketed, No. 09-3213, (6th Cir. March 3, 2009).
This stated, fairness requires that the company not be faced with continuously shifting
and augmented allegations. Accordingly, while Brannon's motion IS GRANTED, his assertions
of protected activities now are regarded as fixed. Absent extraordinary circumstances, further
such amendments to his complaint will not be allowed.
The company has 20 days from the date of this order should it decide to amend its
answer, its motion for summary decision and its memorandum in support of its motion. Brannon
will have 15 days from the date of any such amendment(s) to respond. The parties are reminded
discovery ends on January 15, 2010. Order Granting In Part Complainant's Motion to Coi:npel
(July 24, 2009) at 10. Additional interrogatories, requests for production and depositions must
be served and/or conducted by that date.

J} tfA_//o'll/Vt--~
r

'

/

David Barbour
Administrative Law Judge

31 FMSHRC 1279

Distribution:
Brian W. Dougherty, U.S. Department of Labor, Office of the Solictor, 618 Church Street,
Suite 230, Nashville, TN 37219-2456
Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522
Wes Addington, Esq., Appalachian Citizens Law Center, 317 Main Street, Whitesburg, KY
41858
Stephen M. Hodges, Esq., Penn, Stuart & Eskridge, P. 0. Box 2288, Abington, VA 24212
/mh

31 FMSHRC 1280