NOVEMBER AND DECEMBER 2006

COMMISSION DECISIONS AND ORDERS
2007-8
SE
CENT 2007-2-M
SE
2007-10-M
WEST 2007-37
PENN 2007-15
2007-26-M
SE
WEST 2006-548-M
KENT 2006-469
PENN 2007-30
CENT 2007-37-M
SE 2006-311-M
WEVA 2007-125-M
LAKE 2007-13-M
KENT 2007-69
KENT 2007-58
SE
2006-315-M
KENT 2006-488
WEST 2006-592-M
LAKE 2006-152-M
WEVA 2007-40
SE
2005-51
WEVA 2007-144
WEST 2007-99-M

11-02-2006 Jim Walter Resources, Inc.
11-13-2006 Ash Grove Cement Company
11-13-2007 Mosaic Phosphates Company
11-13-2006 Cam Mining, LLC.
11-27-2006 Stoudt' s Ferry Preparation Co.
11-27-2007. Butler Sand Company
11-27-2006 Lake View Rock Products., Inc.
11-30-2006 Ohio County Coal Company
11-30-2006 Shamokin Filler Co., Inc.
12-04-2006 Upper Valley Materials, Inc.
12-04-2006 Unimin Corporation
12-05-2006 Greer Limestone Company
12-08-2006 E.C. Voit & Sons
12-13-2006 Premier Elkhorn Coal Company
12-13-2006 Advent Mining, LLC.
12-13-2006 Moltan Company, LP
12-19-2006 Stillhouse Mining Company
12-20-2006 FMC Corporation
12-20-2006 Hibbing Taconite Company
12-20-2006 Aracoma Coal Company
12-21-2006 Jim Walter Resources, Inc.
12-21-2006 Eastern Associated Coal, LLC.
12-21-2006 Parsons Steel Erectors, Inc.

Pg. 919
Pg. 922
Pg. 925
Pg. 928
Pg. 931
Pg. 934
Pg. 937
Pg. 941
Pg. 944
Pg. 947
Pg. 950
Pg. 953
Pg. 957
Pg. 960
Pg. 963
Pg. 966
Pg. 969
Pg. 972
Pg. 975
Pg. 979
Pg. 983
Pg. 999
Pg. 1002

ADMINISTRATIVE LAW JUDGE DECISIONS
11-09-2006 Spencer Quarries, Inc.
11-16-2006 Aracoma Coal Company, Inc.
11-20-2006 Laurel Aggregates, Inc.
11-21-2006 Elk Run Coal Company
11-30-2006 Hanson Aggregates Southeast
12-07-2006 Elmore Sand & Gravel, Inc.
12-12-2006 Marfork Coal Company, Inc.
12-22-2006 Washington Rock Quarries, Inc.

CENT 2005-123-RM
WEVA 2006-801-R
PENN 2006-217-RM
WEVA 2006-729-R
SE
2006-6-M
BAJ
2006-01
WEVA 2006-755-R
WEST 2004-264-M

Pg. 1005
Pg. 1035
Pg. 1043
Pg. 1048
Pg. 1049
Pg. 1056
Pg. 1066
Pg. 1080

YORK 2006-9-M
PENN 2002-23-C

Pg. 1115
Pg. 1120

ADMINISTRATIVE LAW JUDGE ORDERS
11-30-2006 David Scheer, bib/a DAS Sand & Gravel
12-14-2006 UMWA, Local 1248 v. Maple Creek Mining
i

NOVEMBER AND DECEMBER 2006

Review was granted in the following case during the months of November and December:
Marfork Coal Company, Inc. v. Secretary of Labor, MSHA, Docket Nos. WEVA 2006-788-R, et.
al. (Judge Feldman, September 27, 2006)

No case was filed in which Review was denied during the months of November and December:

11

COMMISSION DEOSIONS AND ORDERS

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

November 2, 2006

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH

ADlv.UNISTRATION (MSHA)
v.

Docket No. SE 2007-8
A.C. No. 01-01401 -871 00

JJM WALTER RESOURCES, INC.

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On October 9, 2006, the Commission received from Jim
Walter Resources, fuc. ("JWR") a letter by cmmsel 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 I OS(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On May 15, 2006, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment to JWR for Citation No. 7686228. JWR had
previously contested the underlying citation, and that proceeding had been stayed by the assigned
judge pending issuance of the civil penalty assessment. JWR states that when it received the
proposed penalty assessments, it inadvertently omitted to contest the assessment relating to
Citation No. 7686228 and paid that assessment along with other assessments relating to citations
that JWR had not challenged. JWR states that it became aware of its mistake, when, on
September 13, the Secretary moved to dismiss Citation No. 7686228 because JWR had paid the
28 FMSHRC 919

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

28 FMSHRC 920

Distribution
Guy R. Hensley, Esq.
Jim Walter Resources, Inc.
P.O. Box 133
Brookwood, AL 35444
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209
Thomas A. Grooms, Esq.
Office of the Solicitor
U.S. Department of Labor
618 Church Street, Suite 230
Nashville, TN 37219
:rv.iyraJames,Chief
Office of Civil Penalty Compliance, :rv.1SHA
U.S. Department of Labor
1100 Wilson Boulevard, 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Co~ssion
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001

28F:rv.1SHRC921

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

November 13, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2007-2-M
A.C. No. 25-00002-90499

v.

ASH GROVE CEMENT COMPANY, INC.
BEFORE: Duffy, Chairman; Jordan and Young, Commissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) (''Mine Act"). On October 10, 2006, the Commission received from Ash
Grove Cement Company, Inc. ("Ash Grove") 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 ~ssessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On June 8, 2006, the Deparbnent of Labor's Mine Safety and Health Administration
(''MSHA") issued a proposed penalty assessment to Ash Grove that included ten citations that
Ash Grove states it intended to contest, as well as other citations it did not intend to contest. Ash
Grove sent a check to MSHA for the assessments relating to the uncontested citations. However,
Ash Grove further states that, due to an administrative error in its accounting department, the
notice of contest was filed internally rather than mailed to MSHA. On September 8, Ash Grove
received a notice that it was delinquent in paying the assessed penalties arising from the citations
that it had intended to contest. Upon conducting an administrative investigation, Ash Grove
28 FMSHRC 922

ascertained that the contest form had never been mailed to MSHA. The Secretary states that she
does not oppose Ash Grove's motion to reopen the penalty assessment.
We have h eld that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR''). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. _1995).
Having reviewed Ash Grove's request, in the interests.ofjustice, we remand this matter to ·
the Chief Administrative Law Judge for a determination of whether goo..d cause exists for Ash
Grove's failure to timely contest the penalty·proposal and whether relief from the final order
should be granted. If it is determined that such relief is appropriate, this case shall proceed
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

28 FMSHRC 923

Distribution
William K. Doran, Esq.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
2400 N Street, N .W., 5lh Floor
Washington, D.C. 20037
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N .W., Suite 9500
Washington, D.C. 20001-2021

28 FMSHRC 924

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

November 13, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
V.

Docket No. SE 2007-10-M
A.C. No. 08-01117-91378

MOSAIC PHOSPHATES COMPANY

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal .M ine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On October 12, 2006, the Commission received from Mosaic
Phosphates Company ("Mosaic") a motion by counsel seeking to reopen a penalty assessment
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U .S.C. § 815(a).
On June 19, 2006, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment to Mosaic for Citation Nos. 6073698 and
6073705. On July 17, 2006, Mosaic mailed to MSHA the penalty contest form. On the form,
Mosaic's assistant vice president for safety and health checked the box next to Citation No.
6073705, indicating that it wished to contest the penalty for that citation, but did not check the
box next to Citation No. 6073698. However, Mosaic states that it actually intended to contest the
assessments relating to both citations, as indicated by also checking a box on the contest form
28 FMSHRC 925

all

stating that it wanted "to contest and have a formal hearing on· violations listed in the
Proposed Assessment(s)." MSHA did .not open a contest on the assessment arising from Citation
No. 6073698. The Secretary states that she does not oppose Mosaic's request to reopen the
penalty assessment.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(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 inadvertence or mistake. See 29 C.F.R.
§ 2700. l (b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the .c ase may be reopened and appropriat~ p~oceedings an the J!Ierits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Mosaic's request, in the intere~ts ofjustice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether good cause exists for
Mosaic's failure to timely contest the penalty proposal and whether relief from the final order
should be granted. If it is determined that such relief is appropriate, this case shall proceed
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

28 FMSHRC 926

Distribution
Henry Chajet, Esq.
Patton Boggs, LLP
2550 M Street NW
Washington, DC 20037-1350
Peter Gould, Esq.
Patton Boggs LLP
1660 Lincoln St., Suite 1900
Denver, CO 80264
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd. , 22nd Floor
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

28 FMSHRC 927

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

November 13, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. WEST.2007-37
A.C. No. 05-03013-95774

CAM MINING, LLC.

BEFORE: Duffy, Chairman; Jordan and Young, Conimissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On October 19, 2006, the Commission received from Cam
Mining, LLC. ("Cam") a motion by counsel seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On August 15, 2006, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment to Cam resulting from eight citations and
orders. Cam states that, due to a miscommunication between company personnel and counsel,
the proposed assessment was not sent to counsel until after the deadline for filing a penalty
contest had passed. Cam further states that, because of this inadvertence or mistake, it was
unable to file the assessment form in a timely manner. The Secretary states that she does not
oppose Cam's motion to reopen the penalty assessment.

28 FMSHRC 928

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F .R.
§ 2700.1 (b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Cam's request, in the interests-0fjustice, we·remand this matter to the
Chief Administrative Law Judge for a determination of whether good cause exists for Cam's
failure to timely contest the penalty proposal and whethe; r~iief from the final order should be
granted. Ifit is determined that such reliefis appropriate, this case shall.proce~ pursuant to the
Mine Act and the Commission's Procedural·Rules, 29 C.F.R. Part 2700.

28 FMSHRC 929

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., 22"d Floor
Arlington, VA 22209-2296
ChiefAdministrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001 -2021

28 FMSHRC 930

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

November 27, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. PENN 2007-15
AC. No. 36-07892-90452

STOUDT'S FERRY PREPARATION CO.

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On October 19, 2006, the Commission received from
Stoudt's Ferry Preparation Company C'Stoudt's Ferry'') a motion from counsel seeking to reopen
a penalty assessment that had become.a final order of the Commission pursuant to section 105(a)
of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On June 8, 2006, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment, A.C. No. 000090452, to Stoudt's Ferry for
several citations, two of which Stoudt's Ferry had previously contested and which had been
stayed by an administrative law judge. However, Stoudt's Ferry states that it inadvertently failed
to contest the penalties due to confusion over the pending contest proceedings involving the
citations on stay before the judge. The Secretary states that she does not oppose Stoudt's Ferry's
request to reopen the penalty assessment.

28 FMSHRC 931

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 parcy could be entitled to relief
from a fin.al order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R
§ 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR., 15 FMSHRC at 787. We have ·a tso observed that default is a
harsh remedy and that, if the defaulting party can make a showmg of good cause for failure to
timely respond, the case may be reopen~d and appropriate proce'e dings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

a

Having reviewed Stoudt's Feny' s request, in the interests ofjustice, we remand this
matter to the Chief Administrative Law Judge for a determination of whether good cause exists
for Stoudt's Ferry's failure to timely contest the penalty P.rnP.~s~ ~d whether r,elieffrom the
final order should be granted. If it is determined that such relief is appropriate, this case shall
proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 9.F.R Part 2700.

28 FMSHRC 932

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., 22nd Floor West
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N .W ., Suite 9500
Washington, D .C. 20001-2021

28 FMSHRC 933

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

November 27, 2006
SECRETARY OF LABOR,
MlNE SAFETY AND HEALTH
ADMlNISTRATION (MSHA)
v.

Docket No. SE 2007-26-M
A.C. No. 09-00267-87157

BUTLER SAND COMPANY
BEFORE: Duffy, Chairman; Jordan and Young, Commissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) (''Mine Act''). On October 20, 2006, the Commission received from Butler
Sand Company ("Butler") a letter from its assistant manager seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On May 9, 2006, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment, A.C. No. 09-00267-87157, to Butler for
several citations that Butler received in March 2006. Butler states that its assistant manager met
with MSHA representatives on May 12, 2006, to resolve the citations. Butler received the
proposed assessment at approximately the same time, but took no action with regard to it because
Butler's assistant manager was waiting to hear the results of that conference. In June and
August, Butler received from MSHA's Civil Penalty Compliance Office letters regarding the
unpaid penalties. Butler states that it contacted MSHA officials regarding the letters. The
28 FMSHRC 934

Secretary states that she does not oppose Butler's request to reopen the penalty assessment, A.C.
No. 09-00267-87157.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to. relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700. l (b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR., 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits pennitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Butler's request, in the interests ~fJtlstice, we remand this matter to the
Chief Administrative Law Judge for a determination of whether good cause ex~sts for Butler's
failure to timely contest the penalty proposal and whether relief from the final order should be
granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the
Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. 1 .

1

Butler's letter also appears to request relief from a second proposed assessment, Case
No. 000 I 00059. However, Butler has timely contested that penalty assessment; therefore, we do
not address it in this order.
28 FMSHRC 935

Distribution
Dennis Swearingen, Asst. Manager
Brown & Watson, Inc.
P.O. Box 1890
Butler, GA 31006
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247

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

28 FMSHRC 936

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

November 27, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos. WEST 2006-548-M
WEST 2006-549-M
WEST 2006-550-M

v.
LAKE VIEW ROCK PRODUCTS, INC.

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). 1 On August 24, 2006, the Commission received from Lake
View Rock Products, Inc. ("Lake View'') three motions made by counsel to reopen penalty
assessments that had become final orders of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
A.

Docket Nos. WEST 2006-548-M and WEST 2006-549-M

On August 17, 2004, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued proposed penalty assessment A.C. No. 42-01975-34633 (WEST 2006-548-M)
1

·Pursuant to Conunission Procedural Rule 12, on our own motion, we hereby
consolidate Docket Nos. WEST 2006-548-M, WEST 2006-549-M, and WEST 2006-550-M, all
captioned Lake View Rock Products, Inc., and all involving similar procedural issues. 29 C.F.R.
§ 2700.12.
28 FMSHRC 937

to Lake View, which was received on August 24, 2004, and became a final order on September
23, 2004.2 Mot. Attach. A; S. Resp. Attach. A. fu addition, MSHA issued proposed assessment
A.C. No. 42-01975-39951(WEST2006-549-M) to Lake View on October 12, 2004, which was
received on October 25, 2004, and became a final order on November 24, 2004. S. Resp. Attach.
A. Lake View alleges that it failed to timely contest these two assessments due to "excusable
neglect" resulting from a change in counsel within the same law firm. Mot. at 2, 4; Aff. Lake
View also requests that the Commission reopen the penalty assessments so that it can seek to
reach a settlement of the violations. Mot. at 4-6.
The Secretary states in her response that she opposes the Commission's granting Lake
View's motion under Rule 60(b)(l) of the Federal Rules of Civil Procedure on the grounds that it
was not filed within one year after the proposed penalty assessments in Docket Nos. WEST
2006-548-M and WEST 2006-549-M became final Commission orders. S. Resp. at 1-2. The
record reveals that Lake View did not file its request to reopen until more than one year and
eleven months after a final Commission order in Docket No. WEST 2006-548-M and more than
one year and nine months in Docket No. WEST 2006-549-M.
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"). 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. See 29 C.F.R. § 2700.l(b) (''the Commission arid its Judges
shall be guided so far as practicable by the Federal Rules of Civil Procedure"); JWR, 15
FMSHRC at 787.
We have been presented with Lake View's failure to timely contest the·proposed penalty
assessments because of the neglect or inadvertence of its counsel. This is the·type of error that
falls squarely within the ambit of Rule 60(b)(l). However, under Rule 60(b), any motion for
relief must be made within a reasonable time, and in the case of mistake, inadvertence, or
excusable neglect, not more than one year after the order was entered. Fed. R. Civ. P. 60(b).
Because Lake View waited well over a year to request relief with regard to these two
proposed assessments, its motion is untimely. JS Sand & Gravel; Inc., 26 FMSHRC 795, 796
(Oct. 2004). Accordingly, Lake View's motion is denied as to Docket Nos. WEST 2006-548-M
and WEST 2006-549-M.
.

2

Lake View had already contested the underlying citations in A.C. No. 42-01975-34633.
That contest is the subject of Docket Nos. WEST 2004-387, WEST 2004-388, and WEST
2004-389 and is currently on stay before Commission Administrative Law Judge Jerold Feldman
pending the assessment of penalties.
28 FMSHRC 938

B.

Docket No. WEST 2006-550-M

Lake View also requests the Commission to reopen another proposed assessment, A.C.
No. 42-01975-72172 (WEST 2006-550-M), which was issued November 15, 2005, and became
final on December 30, 2005. As in the previous two dockets, Lake View asserts that its failure to
timely contest the proposed assessment resulted from circumstances relating to its change of
counsel, and it requests reopening so that it can seek to reach a settlement. Mot. at 2-6. The
Secretary has no objection to reopening this case because the request is within one year after the
proposed assessment became a final order.
In the interests ofjustice, we remand Docket No. WEST 2006-550-M to the Chief
Administrative Law Judge for a determination of whether good cause exists for Lake View's
failure to timely contest the penalty proposal and whether relief from the final order should be
granted. If it is determined that such relief is .appropriate, this case shall proceed pursuant to the
Mine Act and the Commission's Procedural Rules, 29·C.F.R. Part 2700.

Accordingly, we deny Lake View's request to reopen the penalty. assessments in Docket
Nos. 2006-548-M and WEST 2006-549-M, and those proceedings are hereby dismissed. We
remand Docket No. WEST 2006-550-M for further proceedings as appropriate.

28 FMSHRC 939

Distribution
Kevin R. Watkins, Esq.
670 West Shepard Lane, Suite 101
Fannington, UT 84025
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W.;Suite 9500
Washington, D.C. 20001-2021

28 FMSHRC 940

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

November 30, 2006

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

Docket No. KENT 2006-469
A.C. No. 15-17587-90922

v.

omo COUNTY COAL COMPANY
BEFORE: Duffy, Chairman; Jordan and Young, Commissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U .S.C.
§ 801 et seq. (2000) (''Mine Act''). On August 25, 2006, the Commission received from Ohio
County Coal Company ("Ohio County") a motion from counsel seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On June 14, 2006, the Department of Labor' s Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment, A.C. No. 000090922, to Ohio County for
several citations. Ohio County states that, due to a clerical error on its part, it inadvertently failed
to contest the penalties. The Secretary states that she does not oppose Ohio County's request to
reopen the penalty assessment.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim

28 FMSHRC 941

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

~
A

~

Michae!F~
.\.

ss10ner

28 FMSHRC 942

.

Distribution
Julia K. Shreve, 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., 22nd Floor
Arlington, VA 22209
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor,
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001

28 FMSHRC 943

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

November 30, 2006

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

Docket No. PENN 2007-30
A.C. No. 36-02945-90937

SHAMOKJN FILLER CO., INC

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners

ORDER

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. ·

§ 801 et seq. (2000) (''Mine Act"). On November 1, 2006, the Conunission received.from

.
Shamokin Filler Company, Inc. ("Shamokin") 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).
The Department of Labor's Mine Safety and Health Administration ("MSHA") issued a
proposed penalty assessment, A.C. No. 36-02945-90937, to Shamokin for several citations that
Shamokin received in April 2006. Shamokin states that it promptly mailed to MSHA its contest
of the proposed penalty assessment, that it received no response, and that now the case is closed.
The Secretary responds that she has no record that the penalty contest form was received by
MSHA 's Civil Penalty Compliance Office, but that she has no basis for questioning that the form
was sent. Consequently, the Secretary states that she does not oppose Shamokin's request to
reopen the penalty assessment.

28 FMSHRC 944

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

~

Michael~aTI

28 FMSHRC 945

Distribution
Patrick A. Mack
Shamokin Filler Company, Inc.
Venn Access Road
P.O. Box 568
Shamokin, PA 17872
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor,
1100 Wilson Blvd. , 251h Floor
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001

28 FMSHRC 946

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

December 4, 2006

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

Docket No. CENT 2007-37-M
A.C. No. 41-03510-92607

v.
Docket No. CENT 2007-38-M
A.C. No. 41-03510-94926

UPPER VALLEY MATERIALS, INC.

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). 1 On November 2, 2006, the Commission received from
Upper Valley Materials, Inc. ("Upper Valley") a request from its safety director 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).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).

On July 5, 2006, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment, A.C. No. 41-03510-92607, to Upper Valley for
citations issued in April 2006. In addition, MSHA issued proposed penalty assessment A.C. No.
41-03510-94926 on August 8, 2006, for a citation issued in April 2006. Upper Valley states that
1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby consolidate
docket numbers CENT 2007-37-M and CENT 2007-38-M, both captioned Upper Valley
Materials, Inc., and both involving similar procedural issues. 29 C.F.R. § 2700.12.
28 FMSHRC 947

it did not receive the proposed penalty assessments until they were faxed to it on October 30,
2006. The Secretary states that she does not oppose Upper Valley's request to reopen the penalty
assessments.
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 requ~sts 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 relie.f
froxp a final order of the Commission on the basis ofinadvertence or mistake. See 29 C.~: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 (Sep~.1995).

Having reviewed Upper Valley's request, in the interests ofjusti,~e, \\'.e remand this matter
to the Chief Administrative Law Judge for a.determination of whether good cause exists for
Upper Valley's failure to timely contest the penalty proposals and whether relief from the final
orders should be granted. Ifit is determined that such relief is appropriate, this case shall
proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

M7:tl~c~ · -

28 FMSHRC 948

Distribution
James B. Elliott. Director of Safety
Upper Valley Materials, Inc.
7301 W. Exp. 84
Mission, TX 78572
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209
Myra James, Chief
Office of Civil Penalty Compliance
U.S. Department of Labor, MSHA
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

28 FMSHRC 949

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

December 4, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. SE 2006-311-M
A.C. No. 40-02513-71042

V.

UNIMIN CORPORATION

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) (''Mine Act"). On August 28, 2006, the Commission received from Unimin
Corporation ("Unimin") a letter seeking to reopen a penalty assessment that had become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On November 2, 2005, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued a proposed penalty assessment, A.C. No. 000071042, to
Uni.min for several citations. Unimin states that it inadvertently sent the contested penalty
assessment to the MSHA office in Pittsbur~ Pennsylvania, instead of the MSHA office located
in Arlington, Virginia. Unimin attached the return receipt allegedly indicating that the notice of
contest was received by MSHA at its office in Pittsburgh. The Secretary states that she does not .
oppose Unimin's request to reopen the penalty assessment.

We have held that in appropriate circumstances, we possess jurisdiction to reopen
28 FMSHRC 950

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

28 FMSHRC 951

Distribution
Phil Boyd, Gleason Plant Manager
Unimin Corporation
5110 Old S.R 22
Gleason, TN 38229
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22"d Floor
Arlington, VA 22209
Myra James, Chief
Office of Civil Penalty Compliance
U.S. Department of Labor, MSHA
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

28 FMSHRC 952

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

December 5, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2007-125-M
A.C. No. 46-00016-72428

V.

GREER.LIMESTONE COMPANY

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On November 13, 2006, the Commission received from
Greer Limestone Company ("Greer") a motion from its 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 Com.mission. 30 U.S.C. § 815(a).
On August 10, 2005, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Citation No. 6034410 to Greer. MSHA subsequently sent the operator
correspondence dated November 2, 2005, stating that MSHA had conducted a special
investigation related to Citation No. 6034410, that it had "decided not to pursue further
investigative action at th[e] time and [that] the case [wa]s closed." Mot., Ex. 4. MSHA later
sent a proposed assessment dated November 16, 2005, to the operator proposing penalties for
Citation Nos. 6034410 and 6024363. Greer states that it paid the penalty associated with

28 FMSHRC 953

Citation No. 6024363 and, approximately on December 2, 2005, returned to MSHA the notice
contesting the penalty proposed for Citation No. 6034410. MSHA later tried to collect as
delinquent the penalty associated with Citation No. 6034410. Greer requests that the
Commission reopen the proceedings, conclude that "this.matter [is] officially closed," and
remove any assessment relating to Citation No. 6034410 from all future invoices. Mot. at 5.
The Secretary responds that she has no record that the penalty contest form was received
by MSHA' s Civil Penalty Compliance Office, but that she has no basis for questioning that the
form was sent. Consequently, the Secretary states that she does not oppose Greer's request to
reopen the penalty assessment. The Secretary further states that she does oppose the request that
the proceedings be closed, however. She explains that the MSHA letter dated November 2,
2005, merely announced the closing of the special investigation, and that the letter did not
purport to "close" the citation itself. Resp. at 1.
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 reiief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F .R
§ 2700.1(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure''); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits pemiitted.
See Coal Prep. Servs., Inc. , 17 FMSHRC 1529, 1530 (Sept. 1995).

28 FMSHRC 954

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

28 FMSHRC 955

Distribution
Sandra .K. Wilson, Assistant General Counsel
Greer fudustries, fuc.
P.O. Box 1900
Morgantown, WV 26507
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209
Myra James, Chief
Office of Civil Penalty Compliance
U.S. Department of Labor, MSHA
1100 Wilson Blvd., 251h Floor
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suit~ 9500
Washington, D.C. .20001-202.1
·

28 FMSHRC 956

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

December 8, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. LAKE 2007-13-M
. A.C. No. 47-00811-05508

E.C. VOIT & SONS

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

ORDER
BY TIIB COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801 et seq. (2000) ("Mine Act"). On October 19, 2006, the Commission received from
E.C. Voit & Sons (''Voif') 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). On
November 9, the Secretary of Labor filed a response to Voit's request.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On July 31, 2002, the Department ofLabor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment to Voit for Citation Nos. 6143000, 6144201,
6144203, 6144204, 6144205, 6144206, and 6144207. The operator filed a notice contesting only
the proposed penalty assessment for Citation No. 6144206. That citation was ultimately vacated,
and the proceedings were dismissed in Docket No. LAKE 2002-155-M. The operator now seeks
to reopen the remaining citations that were the subject of that proposed penalty assessment.

28 FMSHRC 957

The SecretarY states in her response that she opposes the Commission granting Voit's
request under Rule 60(b) of the Federal Rules of Civil Procedure on the grounds that it was not
filed within one year after the proposed penalty assessment became a final Commission order. S.
Resp. at 1-2. The Secretary states that Voit's request should also be denied because Voit fails to
offer an explanation for its failure to talce timely action. Id. at 2.
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 FMSH.RC 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. 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 been presented with Voit' s failure to tim~!Y. contest the.propo~ed penalty
assessment. Under Rule 60(b), any motion for relief must be inade within a reasonable time, and
in the case of mistake, inadvertence, or excusable neglect, not more than one y~ar after the order
was entered. Fed. R. Civ. P. 60(b).
Because Voit waited more than four years to seek relief, its request is untimely. JS Sand
& Gravel, Inc., 26 FMSH.RC 795, 796 (Oct: 2004)). Accordingly, Voit's request is denied.
'.

.

~

28 FMSHRC 958
\

Distribution
Arthur J . Voit
E.C. Voit & Sons
3450 Milwaukee Street
Madison, WI 53714
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22"d Floor
Arlington, VA 22209

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

28 FMSHRC 959

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

December 13, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 2007-69
A.C. No. 15-118370-99620

v.
PREMIER ELKHORN COAL COMPANY

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) (''Mine Act"). On November 6, 2006, the Commission received from
Premier Elkhorn Coal Company ("Premier") a motion by counsel seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On October 4, 2006, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment, A.C. No. 000099620, to Premier for Citation
No. 7436024 and other citations.' Premier had previously contested Citation No. 7436024.
Premier states that when it received the proposed penalty assessment, it inadvertently neglected

1

Counsel for Premier filed a notice to correct the case number referred to in its motion
from Case No. 00095453 to Case No. 000099620. The correct case number is reflected in this
order's caption.
28 FMSHRC 960

to contest the assessment relating to Citation No. 7436024 and paid that assessment along with
other assessments relating to citations that Premier had not challenged. The Secretary states that
she does not oppose Premier's request to reopen the penalty assessment.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commissfon orders under section 105.(ci). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. )~95).
Having reviewed Premier's request, in the interests ofjustice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether good cause exists for
Premier's failure to timely contest the penalty proposal and whether relief from the final order
should be granted. If it is determined that such relief is appropriate, .this case shall proceed
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

·ssioner

28fMSHRC961

Distribution
John M. Williams, Esq.
Rajkovic~ 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., 22nd Floor
Arlington, VA 22209
Myra James, Chief
Office of Civil Penalty Compliance
U.S. Department of Labor, MSHA
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

28 FMSHRC 962

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

December 13, 2006
SECRETARY OF LABOR,

.

MINE SAFETY AND HEALTH
ADM1NIS1RATION (MSHA)

v.

Docket No. KENT 2007-58
A.C. No. 15-18547-97399

ADVENT MINING, LLC

BEFORE: Duffy, Chairman; Jordan and Young. Commissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801 et seq. (2000) ("Mine Act''). On November 13, 2006, the Commission received from
Advent Mining, LLC ("Advent") 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).
On August 31, 2006, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment, A.C. No. 15-18547-97399, to Advent for
several citations, one of which Advent had previously contested. Advent states that it timely
mailed to MSHA its contest of the proposed penalty assessment, but that MSHA's Civil Penalty
Compliance Office has indicated that it did not receive the contest. The Secretary responds that
she has no record that the penalty contest form was received by MSHA's Civil Penalty
Compliance Office, but that she has no basis for questioning that the form was sent.·
Consequently, the Secretary states that she does not oppose Advent's request to reopen the
penalty assessment.
28 FMSHRC 963

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 !?es., Inc., 15 FMSHRC 782, 78q-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F .R.
§ 2700.1 (b) (''the Commission and its Judges shrul be·guided so far ~·practicable by th~ 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 .o f good cause.for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits pennitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
·
Having reviewed Advent's request, in the interests of justice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether good cause exists for
Advent's failure to timely contest the penalty proposal ~-~hether relief from. the final order
should be granted. If it is detennined that slich relief is appropriate, this case shall proceed
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. P~ 2700.

28 FMSHRC 964

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., 22nd Floor
Arlington, VA 22209
Myra James, Chief
Office of Civil Penalty Compliance
U.S. Department ofLabc_>r, MSHA
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N .W., Suite 9500
Washington, D.C. 20001-2021

28 FMSHRC 965

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

December 13, 2006
SECRETARY OF LABOR,
M1NE SAFETY AND HEALTH
ADMlNISTRATION (MSHA)
V.

Docket No. SE 2006-315-M
A.C. No. 40-02968-85077

MOLTAN COMPANY, LP

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners

ORDER .
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U .S.C.
§ 801 et seq. (2000) ("Mine Act"). On September 6, 2006, the Commission received from
Moltan Company, LP ("Moltan") 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 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).
In February 2006, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued several citations to Moltan. MSHA subsequently assessed penalties against
Moltan for these citations in proposed assessment A .C. No. 000085077. Moltan states that it
timely contested the proposed assessment and disputes the date claimed by the Secretary for
Moltan's receip~ of the proposed assessment. Moltan alleges that it has requested a proof of
delivery for the proposed assessment from MSHA, which had not been produced by the time of
its letter seeking to reopen. Neither Moltan nor the Secretary has submitted the penalty
assessment at issue or any documentation concerning its receipt by Moltan. The Commission has
not been provided with the date of the penalty assessment and has no basis for determining
28 FMSHRC 966

whether Moltan actually received the assessment and, if so, whether it contested the proposed
assessment in a timely manner. The Secretary states that she does not oppose Moltan's request to
·
reopen the penalty assessment.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance inRule 60(b) ofthe
Federal Rules of Civil Procedure under which, for example, a party could be entitled to i:elief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R. .
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR., 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceeding5 on the merits pemritted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530.(Sept. 1995). .
Having reviewed Moltan' s request, in the interests ofjustice, we.reman~ this matter to the
Chief Administrative Law Judge for a determination of whether Moltan failed to timely contest
the penalty proposal and whether relief from the final order should be granted. If it is determined
that such relief is appropriate, this case shall proceed pursuant to the Mine Act and the
Commission's Procedural Rules, 29 C.F.R. Part 2700.

t'

~~~

28 FMSHRC 967

Distribution
Lany Gurley, Chief Operating Officer

Moltan Company
7125 Riverdale Bend Road
Memphis, 1N 38125-4442
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22"d Floor
Arlington, VA 22209
Myra James, Chief
Office of Civil Penalty Compliance
U.S. Department of Labor, MSHA
1100 Wilson Blvd., 25th Floor
Arlington, VA 2:2209
ChiefAdministrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

28 FMSHRC 968

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

December 19, 2006
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. KENT 2006-488
A.C. No. 15-17165-88720

STILLHOUSE MINING COMPANY

.
.
BEFORE:· Duffy, Chairman; Jordaii~d Young, Co~issioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) (''Mine A~t") . On September 13, 2006, the Commission received from
Stillhouse·Mining Company (" Stillhouse") a motion by counsel seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify·the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U .S.C. § 815(a).
On May 19, 2006, the Department of Labor' s Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment to Stillhouse for several citations. Stillhouse
had previously contested the underlying citations, and those proceedings had been stayed by the
assigned judge pending issuance of penalty assessments. Stillhouse states that it intended to
contest the proposed penalty assessment but inadvertently failed to do so. The Secretary states
that she does not oppose Stillhouse's request to reopen the penalty assessment. The Secretary
also adds that, although Stillhouse's motion failed to explain specifically why the failure to
timely contest the proposed assessment was due to inadvertence, it is her understanding that

28 FMSHRC 969

when Stillhouse received the proposed ·assessment, it mistakenly believed that the proposed
assessment had been sent to its counsel, who would handle the. matter.
We have held that iri 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 Com.mission has fowid guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitle~ to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.1 (b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). ..
:

-

\I

•

••

Having reviewed Stillhouse's request, in the interests' ofjustice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether goo.d caust'. exists for
Stillhouse' s failure to timely contest the penalty proposal and whether relief from the final order
should be granted. If it is determined that such relief is appropriate, this case shall proceed·
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F..R Part 2700.

28 FMSHRC 970

Distribution
John M . Williams, 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., 22nd Floor
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 N ew Jersey Avenue, N .W., Suite 9500
Washington, D.C. 20001-2021

28 FMSHRC 971

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

December 20, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. WEST 2006-592-M
A.C. No. 48-00639-89435

FMC CORPORATION

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners

ORDER
BY TIIE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On September 25, 2006, the Commission received from FMC
Corporation (''FMC") a motion by counsel to reopen a penalty assessment that had become a
final order of the Commission pursuant to section lOS(a) of the Mine Act, 30 U.S.C. § 815(a).
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).

In March 2006, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued several citations to FMC. MSHA subsequently assessed penalties against
FMC for these citations in proposed assessment A.C. No. 000089435. FMC states that the
proposed penalty assessment was dated May 30, 2006, but not received by it until the week of
July 24, 2006. Neither FMC nor the Secretary has submitted the penalty assessment at issue or
any documentation concerning its receipt by FMC or the date when FMC contested the proposed
assessment. The Commission thus has no basis for determining whether FMC contested the
proposed assessment in a timely manner. In addition, FMC asserts that it requested an informal
conference with MSHA regarding the citations at issue. According to FMC, MSHA advised it
28 FMSHRC 972

after the conference in June 2006 that it need take no action until the conference process was
completed, and, as of the date of the motion, FMC had not been informed of the conference
results. FMC claims that it delayed filing the penalty contest because it was still involved in the
conference process. The Secretary states that she does not oppose FMC's request to reopen the
penalty assessment.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F .R.
§ 2700. l (b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. ·We have also observed that default is a
harsh remedy and that, if the defaulting party can make a :~}Jqwing of good calli?e for a failme to ·
timely respond, the case may be reopened and appropriate proteedings on the merits permitted.
See Coal Prep. Servs., Inc., l 7 FMSHR.C 1529, 1530 (Sept. 1995).
Having reviewed FMC's request, in the interests ofjustice, we remand this matter to the
Chief Administrative Law Judge for a determination of whether good cause exists for FMC's
failure to timely contest the penalty proposal and whether relief from the final order should be
granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the
Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

......

- ~

. 1/1

I

1) / f
I

Marj Lu Jord?h, Commiss ·

(

28 FMSHRC 973

Distribution
Mark N. Savit, Esq.
Patton Boggs LLP
1660 Lincoln St., Suite 1900
Denver, CO 80264
W. Christian Schwnann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health.Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

28 FMSHRC 974

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

December 20, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADM1NISTRATION (MSHA)

v.

Docket No. LAKE 2006-152-M
A.C. No. 21-01600-60300

HIBBING TACONITE COMPANY

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U .S.C.
§ 801 et seq. (2000) ("Mine Acf'). On September 20, 2006, the Commission received from
Hibbing Taconite Company ("HTC") a motion by counsel seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).

On June 28, 2005, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment to HTC for two citations. HTC submitted
payment for one, Citation No. 6175445, and allegedly indicated on the assessment form that it
wished to contest the proposed penalty assessment for the other, Citation No. 6175063. HTC
asserts that it intended to contest the penalty within the 30-day time period, and "it is unclear at
this point on what date MSHA received the notification of contest." In her response to HTC's
motion, the Secretary states that although she "has no record that the penalty contest form .. .
was received by MSHA," she further states that she "has no basis ... for questioning that this

28 FMSHRC 975

form was sent to MSHA in a timely manner as·asserted." Accordingly, the Secretary does not
oppose HTC's motion to reopen.
On the record before us, we are unable to determine whether HTC timely contested the
proposed penalty assessment. If the company did so, the proposed assessment has not become a
final order of the Commission and the company's request for relief would be moot. DS Mine &
Development LLC, 28 FMSHRC 462, 463 (July 2006). However, if HTC failed to timely contest
the proposed assessment, we would not be able to grant the relief requested. Id.. Under Rule
60(b) of the Federal Rules of Civil Procedure, I any motion for relief from a final order. must be
made within a reasonable time, and in the case of mistake, inadvertence, or excusable neglect not
more than one year after the order was entered. Fed. R. Civ. P. 60(b). Here, HTC has requested
reopening of a proposed assessment more than one year after it became a final Commission order
if the company did not file a timely contest. See JS Sand & Gravel, Inc., 26 FMSHRC 795, 796
(Oct. 2004) (denying request to reopen filed more than one year after penalty proposals had
become final orders).

1

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders wider section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993). In evaluating ~equests to reopen final
section 105(a) orders, the Commission has found guidance in Rule 60(b) under which, for
example, a party could be entitled to relief from a final order of the Commission on the basis of
inadvertence or mistake. Id. at 787.
28 FMSHRC 976

Accordingly, we remand this matter to the Chief Administrative Law Judge for a
determination of whether HTC timely contested the proposed penalty assessment at issue. If it is
determined that the company did file a timely contest, the Chief Judge shall order further
.proceedings as appropriate pursuant to the Mine Act and the Commission's Procedural Rules, 29
C.F.R. Part 2700. If it is-detennined that HTC failed to timely contest the proposed assessment,
the Chief Judge shall dismiss this proceeding.

~

Michael~~

28 FMSHRC 977

Distribution

R. Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center
401 Liberty Avenue, Suite 1340
Pittsbur~ PA 15222
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Christine M. Kassak Smith, Esq.
Office of the Solicitor
U.S. Department of Labor
230 S. Dearborn St., 8th Floor
Chicago,IL 60604
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

28 FMSHRC 978

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

December 20, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

ARACOMACOALCOMPANY

Docket No. WEVA 2007-40
A.C. No. 46-0880 1 ~ 84568
Docket No. WEVA 2007-41
A .C. No. 46-08801 -82207
Docket No. WEVA 2007-42
A.C. No. 46-08801-94139
Docket No. WEVA 2007-43
. . A.C. No. 46-08801-87351
Docket No. WEVA 2007-44
A.C. No. 46-08801-90231
Docket No. WEVA 2007-45
A .C. No. 46-08801-90239

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). 1 On October 16, 2006, the Commission received from
Aracoma Coal Company ("Aracoma") a motion from counsel 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

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate Docket Numbers WEVA 2007-40, WEVA 2007-4 1, WEVA 2007-42, WEVA 200743, WEVA 2007-44, and WEVA 2007-45, all captioned Aracoma Coal Company and all
involving similar procedural issues. 29 C .F.R. § 2700.12.
28 FMSHRC 979

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).

In February and March, 2006, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued approximately 220 citations to Aracoma as a result of an
investigation of a fatal mine fire. Aracoma timely filed notices of contest of the citations, and the
cases were stayed by the assigned judge. Aracoma states that, sometime thereafter, its safety
director mistakenly paid the proposed assessments for approximately 75 citations that Aracoma
previously had contested and did not intend to pay. By letters dated July 13 and July 20, 2006,
Aracoma notified the Secretary that it had paid the penalties by mistake. The Secretary states
that she does not oppose Aracoma's request to reopen the penalty assessments.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R:
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.·
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995)..

28 FMSHRC 980

Having reviewed Aracoma's request, in the interests of justice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether good cause exists for
Aracoma' s failure to timely contest the penalty proposals and whether relief from the final order
should be granted.2 If it is detennined that such relief is appropriate, this case shall proceed
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.3

J

2

On October 6, 2006, the judge assigned to the related contests of the underlying
citations dismissed those contests after Aracoma failed to comply with an order requiring it to
move to reopen the instant penalty proceedings by September 25, 20Q6. Aracoma now requests
in this proceeding that the Commission also reopen those contest cases. Request to Reopen
Penalty Assessments at 2, n.2. We decline to do so. To appeal the judge's decision in the
underlying citation contests, Aracoma was obliged to timely file a petition for discretionary
review. 30 U.S.C. § 823 (d)(2)(A) (ii); Commission Procedural Rule 70. This it failed to do. In
any event, if these penalty proceedings are reopened, Aracoma will still have the right to
challenge the fact of violation and any special findings contained in the underlying citations.
Commission Procedural Rule 2l(b).
3

Because Aracoma has not included with its motion to reopen the six penalty
assessments that it seeks to reopen, or a precise listing of the citations associated with the
individual penalties within each of the assessments from which it seeks relief, it is impossible to
know with certainty the particular penalties that were mistakenly paid, or the related citations.
On remand, Aracoma must submit sufficient supporting materials (such as the proposed penalty
assessments) to the judge, in order that he can ascertain those penalties (and the related citations)
that are included in the penalty assessments from which Aracoma seeks relief.

28 FMSHRC 981

Distribution

Mark E. Heath, Esq.
Spilman, Thomas & Battle, PLLC
300 Kanawha Blvd. East
P.O. Box 273
Charleston, WV 25321
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert:J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500 ·
Washington, D.C. 20001-2021

28 FMSHRC 982

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

December 21, 2006
SECRETARY OF LABOR,
MlNE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. SE 2005-51

JIM WALTER RESOURCES, INC.
BEFORE: Duffy, Chairman; Jordan and Young, Commissioners
DECISION
BY THE COMMISSION:
This penalty proceeding under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (2000) (''Mine Act" or "Acf'), arises from a citation alleging a viol~tion of
30 C.F.R. § 75.l 725(c). 1 The Department of Labor's Mine Safety and Heath Administration
(''MSHA") issued the citation to Jim Walter Resources, Inc. ("JWR") following an investigation
into a fatality. Administrative Law Judge Avram Weisberger affirmed the citation, determined
that it was significant and substantial ("S&S"), and imposed a penalty of$32,500 for the
violation. 28 FMSHRC 134 (Mar. 2006) (AU). JWR filed a petition for discretionary review,
which the Commission granted. For the reasons stated herein, we affirm the judge's decision.

1

Section 75.1725(c) states:
Repairs or maintenance shall not be performed on machinery until
the power is off and the machinery is blocked against motion,
except where machinery motion is necessary to make adjustments.

30 C.F.R. § 75.l 725(c).
28 FMSHRC 983

I.
Factual and Procedural Background
JWR operates the No. 7 Mine, an underground coal mine in Brookwood, Alabama. 28
FMSHRC at 134. Electrically-powered conveyor belts transport coal through the mine to the
surface, where rock.is separated from coal, which is further processed. Id. The belts stand about
45 to 60 inches above the mine floor. Tr. 128, 188. Initially, at the face, coal is dumped onto the
North Main belt, which goes to the North Main chute, or header, at the outby end of the belt. 28
FMSHRC at 134. The chute is 40 inches wide and 20 inches long. Tr. 186-87. From the chute,
the coal falls onto the West A belt.2 28 FMSHRC at 134. While on that belt, .the coal goes
through another chute at the end of the West A belt and is dumped onto the Mother belt, which
transports the coal to the surface of the mine. Id.; Tr. 286-87. On the surface, the coal goes into
a bunker where skips pick up the coal and carry it into the preparation plant where the rock is
separated from the coal. Then the rock is placed on a refuse belt which canies the rock outside
the plant onto a refuse pile. Tr. 286-87. A radial stacker is used to distribute the refuse evenly
on the pile. Tr. 287.

At the intersection of the North Main belt and West A belt, there is a series of buttons, or
switches, each of which controls power to one of the belts.3 28 FMSHRC at 134. In addition, a
television camera is stationed on the east side of that intersection to transmit pictures of the area,
including the North Main discharge chute, to the control office on the surface. .Id. at 135.
Catwalks parallel either side of the North Main belt, and there is a "crossover" on the West A
belt in front of the discharge chute. See JWR Ex. 1-A (attached).

O~ April 22, 2004, evening-shift laborer.Gary Keeton was 'assigned.to the area ar~und the
· West A beit and the North Main belt. 28 FMSHRC at 135. His duties included keeping the
surfaces around the belts clean of coal spillage and clearing any obstructions from the chutes. Id.
It was not unusual for material to clog the chutes, and the North Main chute generally became
clogged more frequently than the West A chute, which fed the Mother belt. Id. Orie way to
remove rock that was blocking a chute was to use a steel bar to pry the rock loose. Id. at 137. At
around 10:35 p.m., miner Carlos Maynor saw Keeton washing the discharge chute at the West A
belt roller. Id. at 135.
At 10:57 p.m., power to the West A and North Main belts was cut off. Id. From
10:57:22 to 11:26 p.m., electric power to the North Main belt was turned off by one of the

2

In the proceedings below, the West A belt was sometimes referred to as the West Main

belt.
3

Attached to the decision is a schematic drawing of the layout of the conveyor belts,
chutes, and the buttons or switches. Switches with an R designation control the West A belt, and
switches with a B designation control the North Main belt. 28 FMSHRC at 134 n. l. The
drawing was used as an exhibit at trial and was designated as JWR Ex. 1-A.
28 FMSHRC 984

switches at the intersection. 4 Id. The log also showed that, for 32 seconds, from 10:57:38 p.m.
to 10:58: 10 p.m., power to the West A belt was turned off. Id. The computer log recorded these
times based on a signal from one of the remote switches that controlled power to the belts, but
the log did not identify which of the switches was used to deactivate the belts. Id. See JWR Ex.
1-A. Also at approximately 10:57 p.m., an individual in the mine control office on the surface
observed a transmission from the North Main intersection on the television screen that showed
the boots of an unidentified figure on the east catwalk in front of the chute on the North Main
belt. 28 FMSHRC at 135 (citing Tr. 212).
Ned Martin worked as a laborer performing the same duties as Keeton on the owl shift,
which followed Keeton's shift. Id. Generally, when Martin arrived at the beginning of his shift,
he would m~et with Keeton near the west catwalk at the North Main chute,. because a bench was
located there where they kept their lunch boxes. Tr. 156-57. When Martin arrived at the chute
on the night of April 22, he observed that the West A belt was running but that the North Main
belt was not. 28 FMSHRC at 135. Martin looked for Keeton but did not see him. Tr. 157-58.
He looked up the chute on the North Main belt and saw a rock, about three to four inches in
diameter that was rounded and shiny. 28 FMSHRC at 135, 138. Someone from the control
office called him and asked him w~y the North Main belt was not running, and Martin turned the
power back on. Tr. 157-58. He did not try to dislodge the rock from the chute, but sometime
later he observed that the rock was no longer in the chute. 28 FMSHRC at 135.
Keeton remained unaccounted for, and a comprehensive search was initiated. Gov't Ex.
4 at 3-4. At around 4:00 am., his body was found on the slµ'face of the mine. 28 FMSHRC at
136. His body was located in a bunker where rock that had been separated from coal in the coal
preparation plant was dumped after leaving the plant. Id. & n.2. Also on the surface, a drill steel
bar, similar to one used by Keeton to unclog the chutes, was found inside the preparation plant in
the duct work above the rotary breaker. Id. at 136. During MSHA's investigation into the
accident, a ladder was found on the east catwalk about two feet away from the chute leaning
against the frame of the conveyor belt. Id.; Tr. 193-95.
Following its investigation, MSHA issued a citation alleging a violation of 30 C.F.R.

§ 75.l 725(c). Gov't Ex. 7. The citation stated in pertinent part:
[M]aintenance was being conducted on April 22, 2004 between .
10:57 PM and 11: 15 PM at the North Main Belt Header and West
"A" belt conveyor without removing power and blocking the West
"A" belt from motion. As a result, a miner contacted the moving
belt conveyor while attempting to perform assigned belt
maintenance, that included removing blockages, and was fatally
injured as he contacted the moving belt or as he was subsequently
4

The power was not turned back on until 11 :26 p .m. when Keeton's replacement, Ned
Martin, came to the area at the start of his shift. Tr. 157-58.
28 FMSHRC 985

transported on the belt 9000 feet through belt transfers and a rock
breaker to the surface mine refuse pile.
Id. at I. The violation was designated S&S. Id.
JWR filed a notice of contest regarding MSHA's proposed penalty assessment, and the

case was assigned to a judge. Prior to the hearing, the parties entered into joint stipulations of
fact that formed part of the record in the proceeding.
·
On March 9, 2006, the judge issued a decision in which he affinned the violation alleged
in the citation. The judge found that, based on the existence of the "combination ofall the facts
relied on by the Secretary," it was reasonable to infer that Keeton turned off power to the belts
about 10:57 p.m. and then started to use a steel bar to remove a rock or rocks that were stuck in
the North Main chute. 28 FMSHRC at 138 (emphasis in original). The judge further found that
power·at the West A belt was off only briefly, indicating that power was on and the belt was not
blocked against hazards when Keeton was trying to clear the chute. Id. at 139. In so concluding,
the judge stated that JWR "has not set forth any plausible theory based upon any facts in the . ·
record to support a reasonable inference that KeetOn was riot involved in clearing the chute.'' Id.
at 138-39. The judge also rejected JWR's argument that, even ifKeeton had been trying·to
remove a rock from the chute, the work did not constitute "maintenance" within the meaning of
the regulation. Id. at 139-40. Relying on the criteria in Mathies Coal Co., 6 FMSHRC ~. 3-4
(Jan. 1984), the judge also determined that the violation was S&S. Id. at 140-41. In assessing a
penalty for the violation, the judge examined the penalty criteria and concluded that a penalty of
$32,500 was appropriate. Id. af 141-42.
·

II.
Disposition
JWR argues that the judge's findings that supported his inference that Keeton was
performing maintenance work without removing power from the West A belt and blocking it.
against motion are not ·supported by substantial evidence. PDR at 3; JWR.Br. at 6-8, 18-19.
JWR attacks the inferences drawn by the judge from the facts because they are not "reasonable."
Id. at 9-14. JWR argues that the judge erred by placing the burden of proof on it to show what
happened to Keeton. Id. at 14-17. JWR challenges the judge's conclusion that unclogging or
clearing a chute is "maintenance" as contemplated by section 75.l 725(c). Id. at 17. JWR argues
that the present case is distinguishable from·the decision in Walker Stone Co., 19 FMSHRC 48
(Jan. 1997), upon which the judge relied. Id. at 17-18. JWR also asserts that the Secretary is
seeking to enforce a new definition of "maintenance" to include unclogging a chute, without
giving fair notice of the interpretation. Id. at 19-22.
JWR further argues that the judge's S&S determination is incorrect because there was no
violation and that there was a lack of evidence to support the second, third, and fourth elements
of the Mathies test. Id. at 22-23. With regard to the penalty, JWR notes that this was its first
28 FMSHRC 986

violation of the regulation during the two-year period prior to the citation and maintains that the
judge erred when he concluded that JWR's negligence level was '<moderate." Id. at 23-25.

In response, the Secretary argues that the judge's finding that JWR violated section
75.1725(c) is supported by substantial evidence. S. Br. at 9-10. The Secretary further argues that
the judge's inference that Keeton was trying to unclog the North Main chute when he came into
contact with the West A belt was reasonable. Id. at 11-19. The Secretary disagrees that the
judge required JWR to prove facts.that would support an alternate theory to the inference that
Keeton was involved in clearing the chute. Id. at 19-22. The Secretary asserts that, based on its
plain meaning, section 75.l 725(c) applies to dislodging rocks from the chute and rejects JWR's
argument that it did not have notice of the regulation's terms. Id. at 23-30. The Secretary states
that substantial evidence supports the judge's S&S determination. Id. at 30-32 . .Finally, the
Secretary argues that the judge properly assessed the penalty, noting that the record supported.the
judge's finding of moderate negligence. Id. at 32-34.
The facts in this proceeding are generally not in dispute; however, the inferences drawn
from those facts are. Further, JWR challenges the judge's reading of section 75.1725(c), which it
is charged with violating. We address first the meaning of the regulation.

A.

Meaning of section 75.1725(c)

Section 75.l 725(c) provides that "repairs or maintenance shall not be performed on
machinery" until the power is off and the machinery is blocked against motion. Where the
language of a regulatory provision is clear, the terms of that provision must be enforced as they
are written unless the regulator clearly intended the words to have a different meaning or unless
such a meaning would lead to absurd results. See Dyer. v. United States, 832 F.2d 1062, 1066
(9th Cir. 1987); Utah Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989); Consolidation
Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993). It is only when the meaning is ambiguous that
deference to the Secretary's interpretation is accorded. See Udall v. Tallman, 380 U.S. 1, 16-17
( 1965) (finding that reviewing body must "look to the administrative construction of the
regulation if the meaning of the words used is in doubt") (quoting Bowles v. Seminole Rock &
Sand Co., 325 U.S. 410, 413-14 (1945)).
As always, the "language of a regulation ... is the starting point for its interpretation."
Dyer v. United States, 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 statutory definition or a technical usage of a
term, the Commission applies its ordinary meaning. See, e.g., Thompson Bros. Coal Co., 6
FMSHRC 2091, 2096 (Sept. 1984). "Repair" means "to restore by replacing a part or putting
together what is tom or broken: fix, mend . .. to restore to a sound or healthy state: renew,
revivify .... " Webster's Third New Int'l Dictionary, Unabridged i923 (1986). "Maintenance"
has been defined as ''the labor of keeping something (as buildings or equipment) in a state of
repair or efficiency: care, upkeep ... "and "[p]roper care, repair, and keeping in good order."
Walker Stone Co., 19 FMSHRC 48, 51 (Jan. 1997), quoting Webster's at 1362, affd, 156 F.3d

28 FMSHRC 987

1076 (10th Cir. 1998); see Am. Geological Inst., Dictionary ofMining, Mineral, and Related
Terms 328 (2d ed. 1997). See also Sedgman, 28 FMSHRC 322, 329 (June 2006) (in reading 30
C.F.R. § 77.200, which requires that all mine structures "shall be maintained in good repair to
prevent accidents," the Commission applied the ordinary meaning to "maintain," in the absence
of a technical usage).
The judge properly relied on the Commission's decision in 'fValker Stone in concluding ·
that Keeton' s work involving clearing obstructions from the ·chute was ·repair work or
·
maintenance within the meaning of section 75~ 1725(c). In Walker Stone, the Commission
concluded that the "repair or maintenance" language in a similarly worded reglllation5 "clearly
and unambiguously reaches the facts presented in this case, i.e., the breakup and removal of
rocks clogging the crusher." 19 FMSHRC at SL There, the equipment at issue was a rock
crusher at a quarry that was fed by a chute or hopper. When a rock became lodged inside the
crusher, it prevented the crusher from operating until the rock was removed. Id. at 49. While
there are factual distinctions between the crusher in Walker Stone and the coal chute at JWR's
mine, the Commission's rationale in applying the regulation in Walker Stone is highly relevant to
the instant case.
As the Commission explained in Walker Stone, "[I]t is undisputed that the obstructing
rock caused the crusher's drive motor to stall, rendering the crusher defective or inoperable until
the rock was removed. . . . In our view, the removal of rock to restore the crusher to working
condition is clearly covered by the broad phrase 'repairs or maintenance of machinery or
equipment."' Id. at 51. The Commission's rationale·as to why freeing a rock from the crusher
was "repair or maintenance" within the scope of the regulation is persuasive. See also Secy of
Labor v. Ohio Valley Coal Co., 359 F.3d 531, 535-36 (D:C. ·c ir. 2004) (where the court held that
section 75.l 725(c) broadly applied to a miner 's assessment of a mechanical problem with a
running conveyor belt because the assessment was part of the task of keeping equipment in a
state ofrepair).

In sum, we rely on the plain meaning of the "repair or maintenance" language in section
75. l 725(c). Moreover, the Commission's application of the repair or maintenance language in
an analogous regulation to a similar piece of equipment in Walker Stone is controlling here.
Therefore, we reject JWR's argument that section 75. l 725(c) does not apply to clearing the chute
on the North Main belt.6

s The regulation at issue in Walker Stone, 30 C.F.R. § 56.14105, applies to surface
mining equipment at metal and nonmetal mines and states, "[r]epairs or maintenance of
machinery or equipment shall be performed only after the power is off, and the machinery or
equipment blocked against hazardous motion."
6

Because we conclude that the meaning of the standard is clear from the regulation's
plain language, it follows that the standard provided the operator with adequate notice of its ·
requirements. See Bluestone Coal Corp., 19 FMSHRC 1025, 1029 (June 1997) (holding that
28 FMSHRC 988

B.

Whether a violation of section 75. l 725(c) occurred

We turn now to whether the judge's factual findings and inferences drawn from the facts
support the conclusion that the regulation was violated. 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)(l). "Substantial evidence" means
"'such.relevant evidence as a reasonable mind might accept as adequate to support [the judge' s]
conclusion."' Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting
Consolidated Edison Co. v. NLRB, 305 U .S. 197, 229 (1938)). In reviewing the whole record, an
appellate tribunal must consider anything in the record that "fairly detracts" from the weight of
the evidence that supports a challenged finding. Midwest Material Co., 19 FMSHRC 30, 34 n.5
(Jan. 1997) (quoting Universal Camera Corp. v. NLRB, 340 U .S. 474, 488 (1951)).
The Commission has held that ''the substantial evidence standard may be met by
reasonable .inferences drawn from indirect evidence."' Mid-Continent Res., Inc., 6 FMSHRC
1132, 1138 (May 1984). The Commission has emphasized that inferences drawn by the judge
are '1>ermissible provided they are inherently reasonable and there is a logical and rational
connection between the evidentiary facts and the ultimate fact inferred." Id. Finally, the
Commission has noted, "'The possibility of drawing either of the two inconsistent inferences
from the evidence [does] not prevel,lt [an agency] from drawing one of them .... "' Id. (quoting
NLRB v. Nevada Consolidated Copper Corp., 316 U.S. 105, 106 (1942)). .
The Secretary's theory of violation in the case is built on the following allegations:
betw~en 10:57 p.m. and 11: 15 p.m., Keeton was performing maintenance work at the North
Main and West A belts that included removing blockages from the North Main chute. ·The
Secretary further maintains that Keeton attempted to unclog the chute without removing power
and blocking the West A belt from motion. As a result, the Secretary concludes that Keeton was
fatally injured as he contacted the moving belt or as he was subsequently transported out of the
mine on the moving belt. 28 FMSHRC at 136; Gov't Ex. 7.

In evaluating the Secretary's case, the judge considered a number of facts that were based
on record testimony and evidence, as well as the stipulations entered into by the parties. The
judge enumerated nine facts that he considered as support for the Secretary's position that section
75.1725(c) was violated. 28 FMSHRC at 136-37. Thus, the judge initially found that, on April
22, 2004,7 Keeton was the only evening shift miner assigned to the North Main and West A belts

adequate notice is provided by unambiguous regulation). Therefore, we reject JWR's argument,
Br. at 19-22, that it did not have fair notice of the regulation's application to clearing obstructions
from the chute.
1

JWR correctly notes that several of the judge's references in his findings to "April 23"
should be to "April 22." JWR Br. at 8. See·28 FMSHRC at 136-37. In addition, the reference in
the judge's decision, 28 FMSHRC at 138, as to when the drill steel bar was found on the surface
28 FMSHRC 989

and that among his duties was clearing any obstructions from the chute that dumped coal from
the North Main belt to the West A belt. 8 Id. Further, there was testimony from another laborer,
Ned Martin, that the chutes on the belts can become clogged and that the North Main chute
became clogged more frequently than the West A chute. Id. at 137. The judge·also found that,
when Martin arrived for work on April 22, he saw that the North Main belt was not running and
that he observed a large round rock in the top of the chute and that the rock appeared shiny, as if
it had been smoothed off. Id. Martin also testified that one way to remove a rock obstruct~g a
chute is to use a steel bar to pry it loose. Id. The judge also found that, on April ·23, at about the
same time at which Keeton's body was found, a steel bar similar to the one Keeton u:sed to pry
rocks loose from the chute was found on the surface in the preparation plant. Id. & n.4.
The judge noted further that Martin testified that, although miners are not allowed to ·
climb onto a belt to clear a chute, he has done so by using a bar to dislodge a rock from the chute
while standing on the West A belt below. 28 FMSHRC at 137. The judge held that, during
MSHA's investigation, it was determined that a television camera was transmitting pic~es from
the area where Keeton was working to the control office, and that at 10:57 p.ril. the screen
showed an unidentified figure on the catwalk in the front of the North Main chute. Jd: Further,
the judge found that at 10:57:38 p.m., power was turned off to the North Main belt and stayed off
for about one half hour, and for approximately thirty seconds power was turned'Off to"the West A
belt. Id. Finally, the judge noted that, at 4:23 am. on April 23, Keeton's bodywaS found on the
surface in a pile of rocks that had been conveyed out of the mine. · Id.
Substantial, largely uncontradicted, record evidence fully supports these findings.- JWR
challenges several of the facts that the judge relied·on. JWR Br. at 6-8. However; we conclude
that those challenges lack merit, because the facts that the judge relied on in drawing in his
·
inferences all have record support.9

should be "April 23," rather than "April 24." Tr. 213.
8

JWR asserts that the judge's finding that it was one ofKeeton's duties to clear
obstructions from the North Main chute is not supported by the record because Ned Martin's
testimony, upon which this finding was based, did not refer to the belt in its configuration at the
time of the accident. JWR Br. at 8 (citing Tr. 144-45). However, Martin identified the
configuration of the belts and chutes from a picture that was taken just after the accident as being
an accurate depiction of the area about which he was testifying. Tr. 143. Thus, there is nothing
in Martin's testimony that would indicate that it referred to a changed or more recent belt
configuration. In any event, as the Secretary notes, Br. at 11 n. l, the parties stipulated that one of
Keeton's assigned tasks "included clearing any obstruction from the North Main belt head roller
chute at the West A belt." Jt. Stip. 13.
9

JWR claims that one of the "facts" relied upon by the judge in drawing his inference that ''the West A belt was not blocked against motion" - is unsupported by the record. JWR Br.
at 6. This argument misses the mark. This aspect of the judge's decision is an inference drawn
28 FMSHRC 990

Based on these facts, the judge concluded that it was "reasonable to infer" that Keeton
turned off the power to the belts at about 10:57 p.m. and then started to use a steel bar to remove
a rock that was stuck in the North Main chute. 28 FMSHRC at 138-39. The judge further
concluded that, although Keeton had removed power from the North Main belt with the remote
control button, power was only removed fro~ the West A belt for a brief period, and the belt
remained in motion and had not been blocked during the relevant period. Id. at 139.
While it is possible that other inferences could have been drawn from the facts
surrounding K~eton and his fatal accident on April 22, it is for the trier of fact to decide among
reasonable inferences. Moreover, it is not necessary that the inference drawn by the judge be
more likely correct than other permissible inferences. See generally 9A Wright & Miller,
Federal Practice and Procedure§ 2528 (2d ed. 1995). "In cases where more than one
reasonable inference could have been drawn fro~ .the record, it is for the trier of fact to decide
between those inferences." Sec '.Y ofLabor on behalf ofJackson v. Mountain Top Trucldng Co.,
23 FMSHRC 1230, 1236 (Nov. 2001). See Enlow Fork Mining Co., 19 FMSHRC 5, 13 n.10
(Jan. 1997) ("[T]he possibility that two inconsistent conclusions may be drawn from the evidence
does not mean that the [fact finder's] findings are unsupported by substantial evidence
considering the record as a whole.") (quoting NLRB v. Vincent Brass &Aluminum Co., 731F.2d
564, 567 (8th Cir. 1984)). We conclude that the judge's inferences are reasonable and rationally
connected to the facts on which the judge based them. 10 Therefore, we do not disturb them. 11
Before the judge, JWR argued that there was no evidence that Keeton was trying to:
remove a rock from the chute; that there was no spillage around the North Main belt_that would
have indicated the chute was clogged; that the rock that Ned Martin saw in the chute moved out
of the chute when power was restored to the North Main belt, indicating that the rock had not
been obstructing the chute; and that there was no evidence establishing that the steel bar found.on

from facts, was identified as such by the judge (28 FMSHRC at 136), and was not included in the
factual statements supporting his inferences. See id. at .136-37. Thus, as an inference, it should
be reviewed under a reasonableness standard. Mid-Continent Res., 6 FMSHRC at 1138.
10

JWR repeatedly argues that there is an absence of direct evidence supporting the
judge's inferences, including that Ke~ton was performing maintenance when he came into
contact with the belt. JWR Reply Br. at 4. However, as the Commission has recognized,
inferences are used when it is difficult or impossible to obtain direct evidence on the fact to be
inferred. See Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1284 (Dec. 1998).
11

Even if certain details ofKeeton's activities at the end of his shift are unknown, the
facts as found by the judge can cumulatively be found to indicate that Keeton was actively
involved with maintaining the belts and chute and trying to correct an apparent problem when he
came into contact with a moving belt at a time when the power should have been off and the belt
blocked against motion. This would suffice to establish a violation under the D.C. Circuit's
decision in Ohio Valley, 359 F.3d at 535-36.
28 FMSHRC 991

the surface had been used by Keeton. 28 FMSHRC at 137-38. While the judge acknowledged
that these facts tended to weaken the nexus between certain individual facts and inferences that
the Secretary wanted drawn, nevertheless, the judge considered it critical to consider "the ·
existence of the combination ofall the facts." Id. at 138 (emphasis in original). In rejecting
JWR's assertion that these facts lllldercut the inferences that he drew from other facts, the judge
concluded that the facts relied on by JWR "are insufficient to rebut the inferences drawn from the
Secretary's case-in-chief." Id. We see no basis for disturbing the judge's conclusion. 12
Before the Commission, JWR argues that the judge improperly placed the ·burden of
proof on it to show a ''plausible theory based upon any facts in the record to support a reasonable
inference that Keeton was not involved in clearing the chute." JWR Br. at 14-15, quoting 28
FMSHRC at 138-39. JWR asserts that the judge did not require the Secretary to prove her case
by a preponderance of the evidence but rather required JWR to prove that Keeton was not
performing maintenance work when he contacted the belt. Id. at 15. However, in agreement
with the Secretary, we conclude that the judge's decision clearly indicates that the Secretary was
required to carry her burden of proof and prevail in the case by a preponderance of evidence.
.

.

In that part of the decision immediately preceding the judge's statement that JWR.had not
shown "any plausible theory'' as to what Keeton was doing, the judge clearly evaluated the facts
elicited by the Secretary and the inferences thaf she requested him to make. 28 FMSHRC·at ·13637. The judge then weighed the facts and arguments supporting JWR's position, referring to this
as JWR's ''rebuttal of the Secretary's case." Id. at 138. Later in the decision, the judge again
noted that the facts shown by JWR "are insufficient to rebut the inferences drawri from the
Secretary's case-in-chief." Id.; see also id. at 139 ("I find.that the arguments ·and evidence relied
on by [JWR] to be too· speculative to support any reasonable inference that Keeton fell on the belt
but not while engaged in clearing the chute.")." Finally, the judge concluded by stating that "the
Secretary has established by a preponderance of evidence" that Keeton was engaged in
attempting to move a rock that was lodged in the North Main chute. Id.

The foregoing analysis makes clear that the judge required the Secretary to carry her
burden of proof in sustaining a violation of the regulation. Therefore, JWR's argument that it
had to independently prove an alternate plausible theory as to what Keeton was doing, rather than
to rebut the Secretary's case, lacks merit when the decision is read in its entirety. See-Twentymile
Coal Co., 26 FMSHRC 666, 681(Aug. 2004) (judge's several uses of word "cou1d" in his S&S
determination were not grounds for reversal when it was clear that judge adhered to criteria in
12

In any event, it is not essential that all of the judge's findings of fact be affirmed, as
long as the facts that are upheld on review are supported by the record and are sufficient to
sustain the ultimate conclusion. See Secy ofLabor on behalfofKaczmarczk v. Reading
Anthracite Co., 21 FMSHRC 572, 581 n~ll (Jlllle 1999) (affirming the judge's conclusion~ based
on the record evidence as a whole, that the operator established its affirmative defense in a
discrimination case, even if the judge had erred concerning certain evidentiary findings related to
that defense).

28 .FMSHRC 992

Mathies Coal Co.), rev 'd on other grounds, 411F3d356 (D.C. Cir. 2005). See also In Re:
Contests ofRespirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1838-42 (Nov.
1995) (judge's reference in his decision to the Secretary having failed to show that the "only
reasonable explanation" for the allegedly violative conduct did not indicate ~at he misapplied
the preponderance of evidence st~dard but rather that he required an examination of other
possible causes of the violation), aff'd sub nom. Secy ofLabor v. Keystone Mining Corp., 151
F.3d 1096 (D.C. Cir. 1998).
Further, JWR argues that inadequate consideration was given to a toxicology report, JWR
Ex. 4, which indicated that K~eton's blood contained the drug orphenadrine, which has possible
side effects of drowsiness, dizziness, and fainting. JWR Br. at 4 n.3, 13. However, the judge
found a lack ofrecord support reg~ding the ''medical effects of the medication ... , its quantity,
or the length of time that it had been i~ his blood stream." 28 FMSHRC at 139. In this regard,
the only evidence in the record regarding the side effects of the drug was a document printed off
an internet web site. There was no testimony on the drug's effect on Keeton. JWR Ex. 5; Tr.
303-06. Thus, substantial evidence supports the judge, and we agree that there is a lack of record
evidence upon which to base any further findings regarding the drug and its effect on Keeton.
Finally, JWR contends that the judge ignored evidence that Keeton was a safe worker.
JWR Br. at 10. With regard to Keeton's record as a safe worker, the Commission has previously
held that such general evidence that a miner is "careful" is insufficient to. contradict or impeach
more specific evidence of a violati.on. See Steele Branch Mining, 15 FMSHRC 597, 600 n.5
{Apr. 1993). Therefore, we reject JWR's argument.

In short, we conclude that substantial evidence supports the judge's factual .findings, We
further conclude that the inferences that he drew from the facts were reasonable and logically
connected to the facts from which they were drawn.
C.

The S&S determination

The S&S terminology is taken from section 104(d) of the Mine Act, 30 U.S.C. § 814{d),
and refers to more serious violations. A violation is S&S if, based on the particular facts
surrounding the violation, there. exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature. See Cement Div., Nat'/ Gypsum Co.,
3 FMSHRC 822, 825 {Apr. 1981). In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the
Commission further explained:
In order to establish that a violation of a mandato.r y 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

28 FMSHRC 993

an injury; and (4) a reasonable likelihood that the injury in question
will be of a reasonably senous nature.

Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir.
1995); Austin Power, Inc. v. Secretary ofLabor, 861F.2d99, 103 (5th Cir. 1988) (approving
Mathies criteria).
JWR's argument that the judge should not have found that the violaticm of section
75.1725(c) was S&S essentially reargues that there was no underlying violation. JWR further
argues that there was no substantial evidence to support the second, thfrd, and fourth Mathies
factors. PDR at 20-21; JWR Br. 22-23. For the reasons stated in support of the violation,
substantial record evidence fully supports that there was a violation that created a discrete safety
hazard. Further, as the judge found, because the hazard resulted in a fatality, it is evident that the
third and fourth Mathies factors have been met. 28 FMSHRC at 141. We, therefore, atfrrm the
judge's S&S determination.
D.

The penalty calculation

The Commission's judges are accorded broad discretion in assessing civil penalties u,nder
the Mine Act. Westmoreland Coal Co., 8 FMSHRC 491, 492 (Apr. 1986). Such discretion is
not unbounded, however, and must reflect proper consideration of"the penalty criteria set forth in
section 1 lO(i) and the deterrent purpose of the Act. 13 Id. (citing Sellersburg Stone Co., 5
FMSHRC 287, 290-94 (Mar. 1983), ajf'd, 736 F.2d 1147 (7th Cir. 1984)). The judge must make
"[f]indings of fact on each of the statutory criteria [that] not only provide the oper~tor with the
required notice as to the basis upon which it is being assessed partfoular penalty, but also
provide the Commission and the courts ... with the necessary foundation upon which to base a ·
determination as to whether the penalties assessed by the judge are appropriate, excessive, or
insufficient." Sellersburg, 5 FMSHRC at 292-93. Assessments "lacking record support, infected
by plain error, or otherwise constituting an abuse of discretion are not immune from reversal."
US. Steel Corp., 6 FMSHRC 1423, 1432 (Jwie _1984). In reviewing a judge's penalty

a

13

Section 11 O(i) sets forth six criteria to be considered in the assessment of penalties
under the Act:
[1] the operator's history of previous violations, [2] the
appropriateness of such penalty to the size of the business of the
operator charged, [3] whether the operator was negligent, [4] the
effect on the operator's ability to continue in business, _[5] the
gravity of the violation, and [6] the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after
notification of a violation.
30

u.s.c. § 820{i).
28 FMSHRC 994

assessment, we must determine whether the judge' s findings with regard to the penalty criteria
are in accord with these principles and supported by substantial evidence. Here, JWR takes issue
with the judge's consideration of two of the criteria: violation history and level of negligence.

In his decision, the judge considered JWR's history of violations to be a neutral factor in
assessing the penalty. 28 FMSHRC at 142. JWR argues that the judge erred in failing to
consider that the violation of section 7 5 .1725(c) was its first violation of that regulation during
the two prior years. However, in arguing that the judge should have treated ·its violation history
more favorably, JWR errs. The Commission has previously held that the reference in section
1 lO(i) to an "operator's history of previous violations" refers to the operator's general history of
previous violations, not just to violations of a kind similar to the one giving rise to the penalty
assessment. See Jim Walter Res., Inc., 18 FMSHRC 552, 556-57 (Apr. 1996).
Further, in assessing the penalty, the judge considered JWR' s level of negligence to be
"moderate." JWR takes issue with that determination because, JWR asserts, the judge failed to
adequately consider JWR's training of its miners in general and Keeton's training in particular.
JWR Br. at 23-24; JWR Reply Br. at 16-17. In support, JWR argues that miner Ned Martin
testified regarding the training he received on belt safety and that the safety director of the mine
adopted MSHA's "best practices" for belt safety and integrated them into its training. Id.
However, the judge's decision indicates that he fully considered these facts. In this regard, the
judge noted that, although JWR generally trained its·workers not to straddle a moving belt while
trying to remove a rock from the chute, there was no evidence that Keeton received this training.
28 FMSHRC at 141. Substantial evidence supports the judge's finding that there was a lack of
record evidence as to what training Keeton received. 14 Finally, it is apparent from the judge's
decision that he fully considered the training that miners received15 and Keeton's record as an
experienced and safe worker. 28 FMSHRC at 141. We see no basis for setting aside the judge's
determination of moderate negligence as an abuse of discretion. See U.S. Steel Corp., 6
FMSHRC at 1432. We, therefore, affirm the judge's penalty of$32,500.

14

JWR' s assertion, JWR Br. at 24, that the judge precluded it from placing into evidence
testimony regarding Keeton's training is not supported by the transcript pages that it cites.
15

In support of the judge' s determination of moderate negligence, the Secretary argues
that JWR' s training of miners with regard to procedures in performing maintenance or repairs on
the belt system was not consistent with the requirements of section 75 .1725(c), because the
remote control switches did not remove power from the belts; nor did activation of the switches
meet the blocking requirement. S. Br. at 33-34. In light of the fact that tlie judge did not address
this point in analyzing the negligence factor in section 11 O(i), it is not necessary for the
Commission to reach it in reviewing the judge's penalty assessment.

28 FMSHRC 995

ill.
Conclusion
On the basis of the foregoing, we affirm the judge's decision in all respects.

28 FMSHRC 996

Distribution
David M. Smith, Esq.
Maynard, Cooper & Gale, P .C.
1901 Sixth Avenue North
2400 AmSouth Harbert Plaza
Birmingham, AL 35203
Guy W. Hensley, Esq.
Jim Walter Resources, Inc.
P.O. Box 133
Brookwood, AL 35444
Robin A. Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 2200 Floor West
Arlington, VA 22209-2247
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D .C. 20001 -2021

28 FMSHRC 997

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

December 21, 2006

SECRETARY OF LABOR,
MJNE SAFETY AND HEALTII
ADMINISTRATION (MSHA)

v.

Docket No. WEVA2007-144
A.C. No. 46-01456-85356

EASTERN ASSOCIATED COAL, LLC

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) (''Mine Act"). On November 13, 2006, the Commission received from
Eastern Associated Coal, LLC ("Eastern") a motion from its counsel requesting to reopen a
penalty assessment that bad 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 March 9, 2006, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued three citations to Eastern. Eastern contested those citations, and that
proceeding was stayed by the assigned judge. MSHA subsequently sent Eastern a proposed
penalty assessment relating to the citations. The company offers no explanation for its failure to
timely contest that proposed assessment. The Secretary filed a response to Eastem ' s motion to
reopen in which she ~esponds that a party must provide an explanation that constitutes adequate
or good cause for its failure to take required action, but that Eastern identifies no grollllds for
requesting that the proposed penalty assessment be reopened.

28 FMSHRC 999

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) under
which, for example, a party could be entitled to relief from a final order of the Commission on
the basis of inadvertence or mistake. See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges
shall be guided so far as practicable by the Federal Rules of Civil Procedure"); JWR, 15
FMSHRC at 787.
Because Eastern' s request for relief does not explain the company's failure to contest the
proposed assessment, and is not based on any of the grounds for relief set forth in Rule 60(b), we
hereby deny the request for relief without prejudice. See Marsh Coal Co., 28 FMSHRC 473, 475
(July 2006).

28 FMSHRC 1000

Distribution
Rebecca J. Oblak, Esq.
Bowles, Rice, McDavi~ Graff & Love, LLP
7000 Hampton Center, Suite K
Morgantown, WV 26505

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 2200 Floor
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

28 FMSHRC 1001

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

December 21, 2006
SECRETARY OF LABOR,
M1NE SAFETY AND HEALTH

ADMINISTRATION (MSHA)
Docket No. WEST 2007-99-M
A.C. No. 02-01138-81209 FF6

V.

PARSONS STEEL ERECTORS, INC.

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On November 22, 2006, the Commission received from
Parsons Steel Erectors, Inc. ("Parsons") 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 Com.mission. 30 U.S.C. § 815(a).
On February 23, 2006, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment, A.C. No. 000081209, to Parsons proposing
penalties in the sum of $184.00 for Citation Nos. 6311286 and 6311287, and requesting the
payment of an unrelated outstanding balance. Parsons states that, on approximately March 8,
2006, it sent payment for the outstanding balance and returned the form to MSHA, contesting the
proposed penalties for Citation Nos. 6311286 and 6311287. The operator later received a letter
from MSHA dated June 5, 2006, requesting payment in the amount of$184.40 for the two
citations. On approximately June 20, 2006, Parsons paid MSHA the amount of $184.40. On
approximately September 25, 2006, Parsons received from MSHA a refund in the amount of
28 FMSHRC 1002

$184.40. Parsons requests that the Commission reopen the proposed penalty assessment. The
Secretary responds that she does not oppose Pai-sons' request to reopen the penalty assessment.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedtire under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. ~995).

Having reviewed Parsons' request, in the interests of jtlstice, we remand tlris matter to the
Chief Administrative Law Judge for a determination of whether Parsons.failed to timely contest
the penalty proposal and, if so, whether relief fron:i the final order should be granted. If it is
determined that such relief is appropriate, this case shall proceed pursuant to the Mine Act and
the Commission's Procedural Rules, 29 C.F.R Part 2700.

28 FMSHRC 1003

Distribution
Dana Hayter, Safety Administrator
Parsons Steel Erectors, Inc.
4580 North Highway Drive
Tucson, AZ 85705-1912
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

28 FMSHRC 1004

ADMINISTRATIVE LAW JUDGE DECISIONS

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

November 9, 2006

CONTEST PROCEEDINGS

SPENCER QUARRIES, INC.,
Contestant

Docket No. CENT 2005-123-RM
Citation No. 7938295; 03/01/2005
v.
Docket No. CENT 2005-124-RM
Citation No. 7938296; 03/01/2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

Docket No. CENT 2005-145-RM
Citation No. 7938298; 03/ 18/2005
Docket No. CENT 2005-146-RM
Citation No. 7938299; 03/ 18/2005
Spencer Quarries
Id. No. 39-00024

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

CIVIL PENALTYPROCEEDINGS
Docket No. CENT 2004-227-M
A.C. No. 39-00024-33174
Docket No. CENT 2004-245-M
A.C. No. 39-00024-36233
Docket No. CENT 2005-182-M
A.C. No. 39-00024-55582

v.

Docket No. CENT 2005-215-M
A.C. No. 39-00024-58174
Docket No. CENT 2005-256-M
A.C. No. 39-00024-65865
SPENCER QUARRIES, INC.,
· Respondent

Docket No. CENT 2006-056-M
A.C. No. 39-00024-71018
Spencer Quarries
28 FMSHRC 1005

DECISION
Appearances:

Jennifer Casey, Esq., Office of the Solicitor, U.S. Department
of Labor, Denver, Colorado, Denver, Colorado for Petitioner;
Jeffrey A. Sar, Esq., Baron, Sar, Goodwin & Lohr, Sioux City,
Iowa, for Respondent.

Before:

Judge Manning

These cases are before me on four notices of contest and six petitions for assessment of
civil penalty :filed·by the Secretary of Labor, acting through the Mine Safety and Health
Administration ("MSHA"), against Spencer Quarries, Inc., ("Spencer"), pursuant to sections 105
and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the
"Mine Act"). The cases involve eleven citations issued at the quartzite quarry operated by
Spencer in Hanson County, South Dakota. An evidentiary hearing was held in Sioux Falls,
South Dakota. The parties presented testimony and documentary evidence.

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A.

MSHA Inspection of May 12-13, 2004.

On May 12-13, 2004, MSHA Inspector John King inspected the quarry. He was
accompanied by his field office supervisor, Joe Steichen. Bob Weber, the mine superintendent,
also accompanied the inspector. The quarry is a full-time operation subject to semi-annual
inspections by MSHA. (Tr. 19). King described the quarry as a "multiple bench open pit
quartzite quarry with crushing and.screening and wash plants." (Tr. 20). The quarry was
operating at the time of his inspection.

1. Citation No. 7915361
Inspector King issued Citation No. 7915361 under section 104(a) of the M~ne Act
alleging a violation of section 56.15005 as follows, in part:
Two (2) employees were observed changing screens on the screen
deck of the Deister tower without wearing safety harnesses with
safety lines secured. There was a potential for one or both of them
to fall nearly ten feet (10') on the inside and nearly forty feet (40')
on the outside.
Inspector King determined that an injury was reasonably. likely and that any injury could
reasonably be expected to be fatal. ·He determined that the violation was of a significant and
substantial nature ("S&S") and that Spencer's negligence was moderate. The safety standard
provides, in part, that "[s] afety belts and lines shall be worn when persons work where there is a
danger of falling." The Secretary proposes a penalty of $165.00 for this citation.
28 FMSHRC 1006

Inspector King testified that when the inspection party approached the Deister tower, he
could see two employees on the screen deck changing out the screens at the top and that neither
employee was provided with fall protection. (Tr. 23). These employees were on their hands and
knees the entire time that he observed them. (Tr. 78). Crushed rock passes over vibrating
screens on the Deister tower to sort the rock by size. The screens are about six by eight feet and
the screen deck is sloped at about a 20 percent angle. There are side walls around the screen
deck that are about 18 to 24 inches high. (Tr. 27; Ex. G-4). Two employees are required to
remove the screens. Safety belts and lines were available at the quarry. (Tr. 25; Ex. G-4).
Inspector King estimated that a miner could fall about 40 feet to the ground on the south side of
the screen deck and 10 feet on the north side. Id. B~cause these miners would be required to
move heavy, awkward screens when performing this function, "common sense would tell you
that you have to have fall protection to preclude someone from accidently going over." (Tr. 73).
The men gained access to the screen deck via a manlift and had just started working when
the inspection party arrived. Inspector King c;:stimated that it takes about 30 minutes to remove
an old screen and replace it with a new one. (Tr. 28). MSHA has.issued guidan~e to mine
operators concerning the falling hazards associated with changing screens. (Tr. 30; Ex. G-5).
The only structure that Inspector King observed that could be used as a tying off point was the
handrails for the manlift. (Tr. 66). In addition, Spencer could install handrails around the edge
of the screen deck in lieu of using safety belts. (Tr. 31 ). Brackets would need to be welded to
the frame and removable guardrails could be fabricated. (Tr. 72). Brackets could also be
installed at each end of the deck and piping could pe inserted into the brackets with a wire
stretched between them. The wire could be used by the miners when tying off their lanyards.
(Tr. 79-80, 125-26). .
Inspector King testified that it was reasonably. likely that the conditions he observed
would result in a serious injury. He took into consideration the fact that the working surface was
sloped at a 20 percent angle and there were significant drop-offs around the deck. (Tr. 32).
Inspector King stated that he has investigated fatal accidents where miners have fallen from
screen decks. (Tr. 128-29). He admitted that he is not aware whether any miner has ever fallen
from a Deister tower. {Tr. 69-70).
Richard Waldera, Spencer's general manager, testified that MSHA conducted a
compliance assi~ance visit ("CA V") in 1998 soon after the company updated its plant. (Tr.
607). Waldera testified that the MSHA inspector thoroughly examined the Deister tower during
the CAV and he did not suggest that fall protection was necessary. Waldera further testified that
using safety belts and lines is not practical for the tower because there is nothing that a miner can
tie off to. (Tr. 609-10). When changing the screens, one miner is between the first and second
deck and the other miner is on the top. The man on top is on his hands and knees. (Tr. 609-10,
612). There are side walls around the top of the screen deck that are 18 inches high. (Tr. 613).
He also stated that it is not practical to install a guardrail around the screen deck because of the
heavy vibration during operation. (Tr. 610-11). After the citation was issued, the company
welded eyelets along the top of the side walls on the screen deck that can be used by miners to
attach their lanyards. (Tr. 669). A crane is used to remove the old screens and to bring up new
28 FMSHRC 1007

screens. The miners must stand on the screen deck to maneuver the screens to get them in the
correct position for removal by the crane and when new screens are brought up with the crane.
(Tr. 672). There are four screens on each deck. (Tr. 673).
Spencer argues that there was no evidence that anyone has fallen from a Deister tower
when screens are changed. (Tr. 543-44). In addition, there was nothing for a miner to hook a
lanyard up to and the miners were working on their hands and knees. The inspector who
conducted the CAV on the tower did not mention the need for fall protection. Spencer also
argues that the·miners on the tower at the time of King's inspection had years of experience
changing screens without any accidents or injuries.

I find that the Secretary established a violation. There was ·a danger 't hat one of the
miners would fall when he was removing the old screen and getting it ready to be lifted by the
crane or when the crane operator was bringing in a new screen. Miners must stand up at least
part of the time while changing the screens. Falling from a screen deck is a known hazard. (Ex.
G-5). MSHA has issued safety alerts to mine operators about this hazard. Id.
I also find that the violation was S&S. 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). InMathies·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
asswning "continued normal mining operations.'; U.S. Steel Mining Co., 6 FM;SHRC 1573,
1574(July1984). The question of whether a particular violation is S&S mus{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 safetystandard; (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 requrred to show
that it is more probable than not that an injury wilf result from the violation. U.S. Steel Mining
Co., 18 FMSHRC 862, 865 (June 1996). I credit the testimony of Inspector King on this issue.
It was reasonably likely that the hazard contributed to by the violation would result in an injury
of a reasonably serious nature, assuming continued mining operations. One of the miners would
be maneuvering screens in and out ofthe screen deck via the crane while standing on the deck.
The chance of falling is relatively great. Given·the height of the tower, any injury would be
reasonably serious.
I find that Spencer's negligence was moderate. The hazard was obvious and the fact that
no miner had ever been injured does not obviate that fact. A penalty of $200.00 is appropriate
for this violation:
·

28 FMSHRC I 008

2. Citation No. 7915362
Inspector King issued Citation No. 7915362 under section 104(a) of the Mine Act
alleging ~ violation of section 56.11001 as follows, in part: .
A safe means of access was not provided for the two (2) employees
working on the screen deck of the Deister tower. .One was
observed climbing on the hand rails and then stepping up onto the
frame to access the work area. There was a potential for a slip and
fall of about ten feet (lO')to the deck or nearly forty feet (40') to
the ground.
Inspector King determined that an injury was reasonably likely and that any injury could
reasonably be expected to be fatal. He determined that the violation was S&S and that Spencer's
negligence was moderate. The. safety standard provides, in part, that "[s]afe means of access
shall be provided and maintained to all working places." the Secretary proposes a penalty of
$165.00 for this citation.
Inspector King testified that he issued this citation because he observed one of the two
employees working on t:I,.e Deister tower climb over the side of the screen deck down to the
frame where King and Steichen were standing. (Tr. 35-36). Climbing over the side was not safe
because "it was not designed as a means of access either to or from the top of the Deister tower."
(Tr. 37). The employee could.have fallen while climbing down from the deck. {Tr. 38). Ifhe
had lost his grip while climbing down, he could have fallen a sufficient distance to sustain fatal
injuries. Id. The other Spencer employee used the manlift to come down from the screen deck.
King testified that the safety standard is violated if a safe means of access is provided but a miner
uses an unsafe means of access because the company has the responsibility to ensure that
employees use the safe means of access. (Tr. 131-32).
Mr. W aldera testified that Spencer provides a safe means of access to the top of the
tower. Employees are required to use the manlift to access the screen decks. (Tr. 611-12, 67071). Spencer installed a ladder on the tower.after the inspection. Based on this testimony,
Spencer argues that it did provide safe access. The miners were required to use the manlift to get
to the screen deck and to get down from the screen deck. (Tr. 544-45). Consequently, Spencer
states that it complied with the safety standard.
The safety standard provides that safe access to all working places must be "provided and
maintained." The Commission has held that the "inclusion of the word 'maintain' in [section
56.11001] incorporates an on-going responsibility on the part of the operator to ensure that a
means of access is utilized, as opposed to a purely passive approach in which the operator
initially provides safe access and then has no further obligation." Lopke Quarries, Inc., 23
FMSHRC 705, 708 (July 2001). Thus, a violation may be established if a mine operator provides
a safe means of access to a working place but does not ensure that miners use the safe means that
was established. In this ca~e. the evidence establishes that Spencer bought a manlift in large part
28 FMSHRC 1009

to provide miners with a safe means to get up to the screen deck on top of the Deister tower. The
miners used the manlift to get up onto the screen deck, but one miner got off the deck by
climbing down the structure that supports the tower. This miner climbed down in the presence of
the MSHA inspectors and Spencer management.' Based in part on his actions, I find that the
miners who worked on the tower did not consider it to be a violation of company policy to climb
down from the screen deck by scrambling over the side of the tower. Spencer assumed that
miners would only use the manlift to access the top of the screen deck. I find that the Secretary
established a violation of the safety standard.
I also find that the violation was S&S~ It was reasonably likely that a miner would fall
and seriously injure himself when climbing down from the top of the tower. I find that Spencer's
negligence was less than moderate because it provided the manlift for miners to use. A penalty
of $150.00 is appropriate for this violation.

3. Citation No. 7915363
Inspector King issued Citation No. 7915363 under section 104(a) of the Mine Act
alleging a violation of section 56.12004 as follows:
An extension cord was observed in the hydraulic pump room
located under the HP 400 Nordberg cone crusher that had the
female end pulled loose from the bushing. This exposed the inner
insulation and contact points to the elements. A potential electrical
shock or burn hazard existed with this condition.
Inspector King determined that an injury was unlikely and that any injury could
reasonably be expected to result in lost workdays or restricted duty. He determined-that the
violation was not S&S and that Spencer's negligence was moderate. The safety standard
provides, in part, that "[e]lectrical conductors exposed to mechanical damage shall be protected."
The Secretary proposes a penalty of $60.00 for this citation.
Inspector King testified that he observed that the outer jacket around the cord at the
female end had pulled loose from the bushing and exposed the inner insulation. This ·violation ·
would allow moisture to come into contact with the contact points. (Tr. 40, 42). There was also
a potential for a short circuit. Someone could also be electrocuted as a result of the violation.
(Tr. 43). The cord was an electrical conductor and it was exposed to mechanical damage as a
result of the violation. (Tr. 41; Ex. G-9). The cord was not in service at the time of the
inspection; it was hanging with other electrical cords in a pump room. (Tr. 87, 90). The
inspector does not know when the cord was previously used. (Tr. 88). The·copper conductors
were not exposed. (Tr. 91).
Waldera testified that the brown tape that was wrapped around the extension cord
indicated that the cord had been inspected for defects about 11 months prior to the inspection and
that it was due for another inspection. (Tr. 614-15). The cord was only used in the winter for a
28 FMSHRC 1010

portable heater and it would not have been used again until it was inspected. (Tr. 615, 617, 674).
Waldera testified that the cord would have been discarded and not used. (Tr. 616). He does not
know why the cord was not removed from service at the time it became damaged. Spencer
argues that the cited extension cord was out of service. The cord was only used in the winter and
it would have been replaced before it was used again. (Tr. 545). The cord would have been
inspected for safety defects before use.
There is no dispute that the cited electrical cord was defective in that the outer insulation
had pulled away from the inner insulation at one end of the cord. Bare copper conductors were
not exposed. The insulated conductors were exposed to mechanical damage and were not
protected by the outer jacket. The electrical cord was available for use. I find that the Secretary
established a violation. The violation was not serious and Spencer's negligence was low. The
cord was due for its annual inspection so it was likely that the damage would have been detected
before the cord was used again. A penalty of $50.00 is appropriate.

4. Citation No. 7915364
Inspector King issued Citation No. 7915364 under section 104(a) of the Mine Act
alleging a violation of section 56.14100(b) as follows:
The brake lights were not functional when inspected on the Cat
988-B front end loader, unit Bl. This unit is used in all areas of
the mine. Defects affecting safety shall be corrected in a timely
manner.
Inspector King determined that an injury was unlikely and that any injury could
reasonably be expected to result in lost workdays or restricted duty. He detennined that the
violation was not S&S and that Spencer' s negligence was moderate. The safety standard
provides, in part, that "[d]efects on any equipment, machinery, and tools that affect safety shall
be corrected in a timely manner to prevent the creation of a hazard to persons." The Secretary
proposes a penalty of$60.00 for this citation.
Inspector King stated that the brake lights were not working on the cited loader and that
the standard ''requires that mechanical.equipment be maintained in a functional and safe
condition at all times." (Tr. 43-44). The loader was in the pit loading rock into haul trucks from
the most recent shot. (Tr. 44). Two or three haul trucks were operating in the pit. 1bis was the
only loader operating. There were no pedestrians in the area. King testified that brake lights are
considered to be safety equipment. The operator of the unit, Jim Zens, told Inspector King that ·
he had performed a pre-shift examination on the loader. (Tr. 45, 123-24; Ex. G-11 ). When the
inspector asked Zens to depress the brake, the lights did not operate. (Tr. 46). The inspector
testified that he does not know how long the brake lights were not working. (Tr. 47-48). The
condition was abated by replacing a fuse. (Tr. 93).

28 FMSHRC 1011

Waldera testified that Spencer requires employees to perform a pre-shift examination of
mobile equipment and that checking brake lights is part of the examination process. (Tr. 61718). Mr. Zens performed his pre-shift examination on the loader about half an hour before the
citation was issued. His shift report shows that the brake lights were working at the beginning of
his shift. (Tr. 618; Ex. G-11). No vehicles follow behind the loader when it is operating.
Mr. Zens testified that he did a preshift examination on the loader at about 8:00 a.m. (Tr.
782). Another miner stood behind the loader when he·tested the brake lights. (Tr. 783). He
then drove into the pit to load trucks. He would have no way of knowing if the brake lights
stopped working. (Tr. 785). At about 8:25 a.m., Inspector King told Zens that his brake lights
were not working. A fuse had to be replaced to abate the citation. (Tr. 786). It is not unusual for
a fuse to blow during a shift.
Spencer maintains that the fuse blew in the 25 minutes between the time Zens performed
his pre-shift examination and the inspector examined the loader. The record establishes that the
brake lights were working at the time of Zens' inspection. (Tr. 545-46). Because no other
miners drive vehicles behind the loader, Zens could not have known that his brake lights were no
longer working..

I find that a violation was not established. The fuse could have easily blown between the
pre-shift examination and Inspector King's inspection. There has been no· showing that the
defect was not corrected in a timely manner. I credit the testimony of Mr. Zens on this issue.
Consequently, I vacate this citation.

5. Citation No. 7915366
Inspector King issued Citation No. 7915366 under section 104(a) of the Mine Act
alleging a violation of section 47.41(a) as follows:
The 1000 gallon propane tank located behind the mechanical shop
did not have the container labeled. The contents of all hazardous
material containers must be labeled to identify the contents.
Inspector King determined that an injury was unlikely and that any injury could
reasonably be expected to result in lost workdays or restricted duty. He determined.that the
violation was not S&S and that Spencer's negligence-was moderate. The safety standard
provides, in part, that "[t]he operator must ensure that each container of hazardous chemicals has
a label.'' The Secretary proposes a·penalty of$60.00 for this citation.
Inspector King testified that he issued the citation because the cited propane tank was not
labeled to indicate its contents. (Tr. 49-50; Ex. G-13). The only label on the tank said "Danger"
and warned against smoking and open flames. (Tr. 54). He stated that the term "container'' in
the safety standard covers anything that holds a hazardous substance. (Tr. 51 ). Excluded from
the definition of container at section 47.11 are engine fuel tanks. The inspector testified that
28FMSHRC1012

propane tanks are not excluded from the definition of container. Id. A hazardous chemical is
"anything that could create a hazard to life or limb, or the quality of life of an individual." (Tr.
52). Inspector King testified that propane qualifies as a hazardous chemical under the definition
at section 47 .11 because it is highly flammable and explosive in the correct fuel/air environment.
Id. The inspector agreed that the cited tank is readily identifiable as a large propane tank. (Tr.
98). The propane tank is part of an "in-line" system. (Tr. 98, 104). The citation was terminated
when Spencer added a second label which identified the contents as propane'. (Tr. 54; Ex. G-13).

W aldera testified that the cited propane tank is behind the maintenance shop and it is used
to provide fuel for the heater in the shop. (Tr. 621). The propane tank was present when
W aldera started working for Spencer twelve years ago and he was told that the.tank has been in
the same location since the late 1950s. No MSHA inspector has ever issued Spencer a citation
for the propane tank. (Tr. 622). The tank is part of~ "in-line system" in that the tank is
connected to the burners in the maintenance shop with copper piping. The tank is not used for
any other purpose. It has the familiar shape of a horizontal propane tank. It would not be
mistaken for anything other .than a propan~ tank by first responders. It is labeled with a sign that
reads ''Dangerous -No Smoking, No Open Flames." (Tr. 623; Ex. G-13). Waldera considers the
propane tank to be part of an "operating system" as that term is used in the definition of
"container" in section 47.11. (Tr. 624).
Spencer argues that the safety standard is·vague and ambiguous. (Tr. 546-47). The
propane tank was part of an in-line, closed system that is not covered by the safety standard. · The
cited tank was obviously a propane tank so any label would be unnecessary.
As stated above, the safety standard provides that containers of hazardous chemicals are
required to be labeled. The standard goes on to state that "[i]f a container is tagged or marked
with the appropriate information, it is labeled." In this instance, the appropriate information Qn
the label would be the contents of the tank. This standard is part of the Secretary's hazard
communication regulations. Section 47.11 contains definitions that are applicable to this
standard. The term "container" is defined as "(l) Any bag, barrel, bottle, box, can, cylinder,
drum, reaction vessel, storage tank or the like; (2) The following are not considered to be
containers for purposes of compliance with this part: (i) Pipes or piping systems; (ii) Conveyors;
and (iii) Engines, fuel tanks, or other operating systems or parts in a vehicle.•• A "'hazardous
chemical" is defined as "any chemical that can present a physical or health hazard."
Spencer believes that the second part of the definition of "container" should be read to
exclude all "operating systems," which it interprets to mean closed or in-line systems. Because
the propane tank is directly connected to the heater in the shop and propane from the tank cannot
be used for any other purpose, it is part of an operating system that is exchided from the labeling
requirement in the regulation.
The "language of a regulation ... is the starting point for its interpretation." Dyer v.
United States, 832 F.2d 1062. 1066 (9th Cir. 1987) (citing Consumer Prod. Safety Comm'n v.
28 FMSHRC 1013

GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)). Where the language of a regulatory provision is
clear, the terms of that provision must be enforced as they are written unless the regulator clearly
intended the words to have a different meaning or unless such a meaning would lead to absurd
results. See id.; Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993); Utah Power &
Light Co., 11FMSHRC1926, 1930 (Oct. 1989).

I find that the language of subpart (2)(iii) of the definition clearly applies only to
containers on vehicles. It provides that fuel tanks and other operating systems or parts in a
vehicle are not required to be labeled. Thus, although a gasoline storage tank at a mine would
have to be properly labeled, the gas-tank-on a front loader at the mine would not require a label.
Likewise, the tank holding transmission fluid on a truck would not be required to be labeled
under the standard. I hold that the under the plain language of the definition, the term "other
operating system" in subsection (2)(iii) in the ddinition of"container'' in section 47.11 applies
only to operating systems in vehicles. This interpretation of the plain language of the definition
is consistent with that offered by the Secretary through Inspector King. (Tr. 101, 113). ·
Spencer's interpretation of the term "operating ·system" in subsection 2(iii) to apply to containers
that are not on vehicles is illogical and is inconsistent with the plain language of the definition.
Spencer also relies on the testimony ofinSpector King indicating that MSHA inspeetors
are not entirely clear about how the cited regulation should be interpreted: (Tr: '136, 141-44).
King testified that he has discussed the application of section 47.41(a) with his peers at the Mine
Safety and Health Academy when he was there for a training colirse and discovered that other
inspectors have differing interpretations ofits application. (Tr.143.:.44). Nevertheless, Inspector
King testified that he believes that the staitdard·appliesto·the cited propane tank. .

I talce note of the fact that, as a general matter, ·M SHA inspectors prefer to work-in an
environment where the regulations they are enforcing have.beei:J.,interpreted by MSHA or the
Commission. It is quite natural that MSHA would like to know the parameters of a regulation's
requirements. The Secretary's hazardous communication regulations only became effective·in
2002. I was unable to find any Commission decisions on ·this issue. MSHA inspectors are not
legally trained. I find that the plain language of the definition of the term "container'' makes
clear that fuel storage tanks at mine sites are not excluded from the definition; even where these
tanks are part of a closed in-line system. My finding is consistent with regulatory history and the
Secretary' s interpretation. See 67 Fed. Reg. 42314, 42328 (June 21, 2002)~ Indeed~ the
regulatory history makes clear the pipes and piping systems were excluded from the definition of
container because labeling all pipes would be impractical and because a pipe carries the
chemicals stored in the container that it is connected to. Id. Thus, in a closed system, the tank
that holds the chemical needs be labeled under the standard.
I agree with hispector King's determination that the violation-was not S&S because-an
accident or injury was tm.likely. I find that Spencer's negligence was low because it genuinely
believed that the labeling on the propane tank was sufficient to meet MSHA' s standards. A
penalty of$50.00 is appropriate.

28 FMSHRC 1014

6. Citation No. 7915368
. Inspector King issued Citation No. 7915368 under section 104(a) of the Mine Act
alleging a violation of section 4 7.41 (a) as follows:
The hydraulic fluid tank near the tail pulley in the Supply
Conveyor Belt Conveyor did not have the contents labeled.
Hazardous- material containers shall be labeled to identify the
contents.
Inspector King determined that an injury was unlikely and that any injury could
reasonably be expected to result in lost workdays or restricted duty. He determined that the
violation was not S&S and that Spencer's negligence was moderate. The Secretary proposes a
penalty of $60.00 for this citation.
Inspector King testified that the cited hydraulic fuel tank was not labeled. {Tr. 56; Ex. G15). The tank contained automatic transmission fluid. He stated that this tank was required to be
labeled because automatic transmission fluid is a known carcinogen. Id. Inspector King testified
that when he examined the tank, nobody indicated that it was labeled. The condition was abated
by writing the letters "ATF" on the side of the tank. {Tr. 58). The tank is directly connected to a
pump that is used to operate the door to the tunnel and, as such, it is part of a closed system. {Tr.
105). The transmission fluid recirculates and the tank is not used for any other purpose. (Tr.
106). The pump and tank are located -in a tunnel under the conveyor. The area is extremely
dusty. {Tr. 109).
W aldera testified that the cited tank is located at the far end of the tunnel under the surge
pile. (Tr. 624). The tunnel is 110 feet long. The tunnel is not a work area and the tunnel is very
noisy and dusty. The hydraulic fluid is part of an operating, recirculating system. {Tr. 626). The
tank containing the hydraulic fluid is directly below the motor that pumps the fluid to the
cylinder that controls the door. (Tr. 627; Ex. G-15). The cited container was labeled on the top
with the letters "ATF" prior to the inspection. The letters "ATF" stand for automatic
transmission fluid. The writing was covered with dust at the time of the inspection. {Tr. 627-28,
682). The pump and container have been in the same location for 12 years. Waldera testified
that he did not tell Inspector King that the tank was labeled because he did.not enter the tunnel
with him and he did not know that King was going to issue a citation until much later.
Ward Tuttle, production foreman, testified that the pump and hydraulic fluid container is
a closed system. (Tr. 770). Because the system operates the doors to the tunnel, it is only used
for a short time twice every workday. Because considerable dust drifts down from the belt, it .
only takes a short period of time for the pump and container to become covered with dust. The
transmission fluid in the container has never been changed. {Tr. 771 ). Tuttle was not with the
inspector during the examination of the tunnel. Tuttle remembers labeling the top of the tank
with the letters "ATF" before the inspection because he was told to do so. (Tr. 778). Later that
day he went into the tunn~l. wiped dust off the container, and saw that it was labeled with the
28 FMSHRC 1015

letters "ATF." (Tr. 772-73). He did not know that a citation was issued forthis condition until a
few days later.
This citation was terminated after someone wrote the letters "ATF' on the side of the
container. I find that this container is subject to the requirements of section 47.41(a) for the
reasons set forth with respect to the previous citation. The container contained a hazardous
chemical that was required to be labeled. I credit the testimony ofWaldera and Tuttle that the
container had been marked on the top but that the marking was covered with dust. The
environment was extremely dusty in the tunnel under the conveyor. Consequently, I vacate this
citation.

7. Citation No. 7915369
Inspector King issued Citation No. 7915369 under section 104(a)'ofthe Mine Act
alleging a violation of section 56.141 OO(b). At the hearing, Spencer withdrew its contest of this
citation. (Tr. 548-49). I find that the Secretary's proposed penalty of $60.00 is appropriate.

B.

The Hiehwalls at the Quarry.
1. Backeround Evidence on the Hi~hwalls

On March 31, 2004, Eric J. Gottheld and Donald T. Kirkwood visited the quarry to
examine the highwalls. Mr. Gottheld is a civil engineer with MSHA's Mine Waste and
Geotechnical Engineering Division at the Pittsburgh Safety and Health Technology Center. Mr.
Kirkwood is the supervisory civil engineer at the same facility. They were accompanied by Joe
Steichen, MSHA's field office supervisor.· The purpose of the site visit was to "assess the
general conditions of the highwalls and to make recommendations that.might improve safety
with respect to highwalls." (Ex. G-17 p. 2; Tr. 154). Gottheld, Kirkwood, Steichen, and Bob
Weber of Spencer traveled throughout the quarry looking at the highwalls. Gottheld was told
that the footprint of the quarry itself is about 45 acres and that Spencer owns or leases about'450
acres. (Tr. 160). Some of the highwalls were active in March 2004 and others had not been
mined in some time. The active face is marked as the "Outside Comer" in the diagram prepared
by Gottheld. (Tr. 161; Ex. G-17 p. 12). The highwall was about 35 feet high at that location and
there was shot material piled against it that was being loaded out. Gottheld testified that he was
at the mine to examine the highwalls that were going to be mined in the near future that were
higher than 35 feet. The section of the highwall south of the outside comer ranged between 80
and 94 feet high. Gottheld estimated that in a few months, once the ')aw level" was mined out,
the highwall labeled the "Westem South Highwall" on the diagram would be up to 125 feet in ·
height. (Tr. 164). The material mined at the quarry is Sioux quartzite, which is a hard
·
metamorphic rock. (Tr. 165).
Gottheld prepared a report that sets forth his concerns about the highwalls. (Ex. G-17).
The north highwall and the northern west highwall were old, relatively rough ~with "lots of
fractures in them and loose material." (Tr. 165). The youngest highwalls were the southern west
28 FMSHRC 1016

high.wall and the western south high.wall. They were relatively smooth and nearly vertical. The
eastern south high.wall was not as old as the north high.wall but it was rough with fractures.
Gottheld testified that there are two hazards associated with highwalls: mass instability
and localized rock fall hazards. {Tr. 166). J:Ie found localized mass instability problems in
several areas at outside comers where the highwall changed direction and some areas where
vertical fractures were intersecting. {Tr. 168). He also observed overhanging rock in some
location~. Gottheld testified that the upper left comer of photo 3B in his report shows an area of
mass instability. .(Tr. 168; Ex. G-1 7 p. 14). Photo 3C shows the same area from the other side.
The top right comer ofphoto 3B shows an area that he considers to be overhanging rock. {Tr.
169). Photo 3D shows more of what Gottheld considered to be mass instability. He testified that
he was concerned that additional cracking would occur in areas of mass instability causing rock
to separate from the other rock in the area. (Tr. 174). The resistance to sliding is greatly reduced
where there is cracking in the rock structure.
Areas of mass instability feature highly broken rock with "cracks propagating up to the
top of the highwall," especially where the cracks widen at the top. (Tr. 182). Oottheld testified
that there _are two ways to address this problem. One technique is to remove the areas of mass .
instability back to solid ma~erial. The other solution is to make sure that mining operations are
away from those areas to limit the exposure of miners. {Tr. 182, 190-91). Isolated loose rock
can be scaled. (Tr.. i87-88, 189-90). Gottheld testified that he was concerned that miners .
working at or near the base of the highwalls could be injured or killed by falling rock. {Tr. 185;
Ex. G-17 p. 7). Benching the high.walls can also reduce the risk that rock will injure miners. {Tr.
194).
At the conclusion of his visit to the pit, Gottheld made several recommendations to
Spencer. He recommended that Spencer incorporate scaling in their normal mining cycle and
that the high.walls be regularly inspected fro~ many angles to look for areas of mass instability.
{Tr. 199-200; Ex. G-17 p. 9). He also recommended that miners not work at the base of a
high.wall when drilling operations are occurring at the top of that area of the high.wall.
Daniel J. Kuper testified on behalf of Spencer. Mr. Kuper is the production and safety
manager for L.G. Everist, a mining company that operates three quartzite mines in the area.
Kuper bas worked at Everist for over 30 years. He testified that scaling high.walls is neither
necessary nor desirable at quartzite mines. (Tr. 557). He said that quartzite is inherently hard
and compressed and that scaling would create safety hazards. Kuper testified that, on the Mohs
scale used to measure the hardness of rock, diamond is rated at 10 and talc is rated at 1.
Quartzite is rated in the range of7 to 8, granite is rated at 6 to 7, and limestone is rated at 4 to 5.
(Tr. 558). He testified that quartzite is 98 to 99 percent silica, which is very abrasive. Kuper said
that nobody has ever .been injured by rock falling from a highwall at any of Everist's three mines.
(Tr. 559). Everist also has not sustained any equipment damage from falling rock. The
highwalls at one of these mines are 200 feet high. The high.walls are 42 feet and 30 feet high at
its other two mines.

28 FMSHR.C 1017

Kuper testified that quartzite is not subject to sloughing, crumbling, or flaking. He stated
that the "material is so hard and it's so· dense that [if a rock was protruding from the face],
something would have to make it move .... the material itself it just ... doesn't move." (Tr.
561). "It was built by heat and pressure and it's tight in the face." Id. Kuper also testified that
the freeze-thaw cycle will not cause rock to fall from the highwall. Quartzite ·d oes not absorb
much water, as compared to limestone, so there is very little moisture present that is subject to
freezing. (Tr. 561). More importantly, water does not collect in the cracks and crevices in the
rock; it simply dissipates. (Tr. 561-62). All quartzite mines have cracks in the highwalls, but
those cracks do not present a safety hazard. Kuper testified that Mr. Gottheld visited one of
Everist' s pits and determined that one area was very unstable. Kuper testified that the p3:fticular
area of concern had been in the same condition for at·least 33 years. (Tr. 568-69).
·
Kuper further testified th~t he is in contact with other quartzite operators through trade
associations. He stated that he knows of no instances where a miner was injured by falling rock
at a quartzite mine or where equipment was damaged by falling rock. (Tr. 563).
Austin Powder Company performs the blasting at Spencer. It blasts after holes have been
drilled at the top of the highwall by another contractor. The holes are about five inches in ;
diameter and are drilled to the depth of the highwall. (Tr. 586). Ronald J. Hermansen, a · · · '
salesman and technical manager with Austin Powder Company, testified that it is very tough to
blast quartzite. He has been blasting at the quarry for about 15 years. (Tr. 584-85). He·is
unaware of any problems at the quarry with loose rock falling from the highwall,_sloughing rock,
or walls collapsing. (Tr. 585). Quartzite tends to interlock with itself so it does not fall or slough
without being blasted. (Tr. 585, 591). He blasts at a number of quartzite mines in South Dakota
and no problem of sloughing or falling rock has been reported to him. (Tr.·588). There are
always visible cracks and fissures in highwalls at quartzite mines. (Tr. 591).

2. H iehwall Citations, March 1. 2005
MSHA Inspector Shane Julien inspected the quarry on March l, 2005. The quarry was
operating at the time of his inspection. He issued two citations for conditions along the
highwalls.

a. Citation No. 7938295
Inspector Julien issued Citation No. 7938295 under section 104(a) of the Mine Act
alleging a violation of section 56.3131 as follows:
Hazardous ground conditions, at the south-west highwall, were not
corrected. Several cracks, large rocks, and loose unconsolidated
material was observed in the area. The highwall is approximately
ninety (90) feet high and located in an area where a front end
loader operated during the shift. If the highwall were to suddenly

28 FMSHRC 1018

slough off and fall, a fatal crushing injury could occur to the_loader
operator.
Inspector Julien determined that an injury was reasonably likely and that any injury could
reasonably be.expected to be fatal. He determined that the violation was S&S and that Spencer's
negligence was moderate. The Secretary proposes a penalty of$154.00 for this citation. The
safety standard provides that:
fu places where persons work or travel in performing their assigned
tasks, loose or unconsolidated material shall be sloped to the angle
of repose or stripped back for at least 10 feet from the top of the pit
or quarry wall. Other conditions at or near the perimeter of a pit or
quarry wall which create a fall-of-material hazard to persons shall
be corrected.

Inspector Julien testified that he issued this citation because he observed ground
conditions that b,e considered to be hazardous. (Tr. 283). He saw cracks, large rocks, and loose,
unconsolidated material in the southwest highwall. This highwall was the. production face on the
day of his inspection. Through discussions with the operator, he determined that the high~all
was about 90 feet high. (Tr. 284).

An area selected for mining is first drilled and blasted from the top of the highwall. The
holes are drilled to the depth necessary to blast the entire height of the highwall. Spencer
contracts this part of the operation out to an independent contractor. After the highwall is shot, a
front end loader loads the shot material into haul trucks. The trucks.dwnp the material in the
primary crusher, which is a jaw crusher in the pit. From there, the crushed rock is taken by a
conveyor to the finishing plant which is up on top of the east highwall near the mine office.
At the time of Julien's inspection, shot material was being loaded into haul trucks. He
estimated that about half of the shot material had been removed. (Tr. 287). Inspector Julien
testified that "anytime there's loose, unconsolidated material that causes a fall hazard," the
material ''must be either sloped.back to the angle of repose or stripped back for ten feet away
from the top of the highwall to prevent any cap rock or loose rock from accumulating at the top
of the highwall." (Tr. 288). Loaders had been removing the shot rock in this area an hour before
his inspection. Typically just one loader operates at a time and two haul trucks transport the rock
to the jaw crusher. (Tr. 289).
Julien testified that he observed loose rock and unconsolidated material on the highwall
during his inspection. The inspector stated that unconsolidated material is rock that has
separated from the hqst rock by cracks or fissures. (Tr. 291 ). Rock is unconsolidated if cracks
are present in the rock that are separating the rock from the highwall. Id. Loose rock is isolated
rock on the highwall that appears to be leaning out rather than "hooked into the highwall." Id.
He issued the citation because he believed that Spencer violated the.second sentence of the safety
standard. (Tr. 481). He believed that the conditions he observed created a hazard to persons.
28 FMSHRC 1019

(Tr. 482). Material at the top was also overhanging and could reasonably be expected to fall.
(Tr. 485-86).
Inspector Julien took photographs of the highwall to document his citation. (Ex. G-20).
He was particularly concerned about the fissures in the rock shown on the upper left side of the
photo. (Tr. 292). He was concerned about a crack near the center of the photo that is open
further at the top than at the bottom, ''which indicates that it is ... a fall hazard." (Tr. 292-93).
Moisture and the freeze-thaw process can easily loosen the rock further and cause it to fall.
Finally, Julien described an area of frozen material that was of concern to him. (Tr. 295). He
said that there was a "cavern about halfway down [the photo] where·the material is falling out."
Id. Julien was concerned that this material could either slough off or come down in one big
section because it was frozen together. The inspector was also concerned about hanging rock at
the top of the highwall where there is no support under the rock. (Tr. 300). He believes that the
photo shows rock that has fallen from that area.
Inspector Julien determined that the violation was S&S because, during the no.r mal
mining cycle, Spencer will be removing the shot rock near the hazardous area, thereby exposing
miners to the risk of being injured by falling rock. (Tr. 303): He testified that it is reasonably
likely that a serious injury or a fatality will result from such conditions. MSHA has investigated
fatal accidents where rocks have fallen from highwalls onto equipment, killing the driver. (Tr.
308, 311-13; Ex. G-21 ). The rocks could be loosened by the freeze-thaw cycle or by vibrations
from equipment or blasting. Spencer abated the citation by blasting the highwall in the cited
area, thereby re~oving the rocks that were of concern io the inspector. · ·
On cross-examination~ Inspector Julien admitted 1:hat he has no particular expertise in'
geology and that he has not had any training with respect to the characteristics of quartzite. (Tr.
414). He never inspected the quarry before this inspection. He also admitted that he is unaware
of any instance in which a miner has been injured by falling rock in a quartzite mine. (Tr. 41718). He also does not know if any quartzite mine in South Dakota scales its walls. (Tr. 428).
He also admitted that if a miner worked around or under a highwall for 10 to 15 years, he would
have a pretty fair knowledge of the characteristics and properties ofthat·highwall. (Tr. 443). He
is not aware of any quartzite mines in South Dakota that have berms at the base of their
highwalls. (Tr. 445). This citation was abated when Spencer took down the highwall using
explosives. (Tr. 448). Inspector Julien disagreed with the proposition that ''whether material has
fallen [from the highwalls in the past] is an indicator of whether it' s likely to fall [in the future]."
(Tr. 451). He does not know the angle of repose for quartzite. (Tr. 453-54).
As stated above, Mr. Gottheld visited the pit about a year earlier and the conditions
observed by Inspector Julien did not exist when Gottheld was present. (Tr. 203). The working
face had nioved dming the intervening year. Gottheld reviewed this citation and Inspector
Julien's photographs during his testimony in these cases. He testified that the top left of the
photographs at Exhibit G-20 appear to be an outside comer and it has "similar brokenness,
similar vertical cracking and horizontal cracking to the other outside comers that we observed
when I was there in 2004." (Tr. 206). He stated that "if that area is unstable, that' s a large mass
28 FMSHRC 1020

of rock." Id. Gottheld also expressed concern about the material in the center of the photographs
that appears to be frozen. He felt that it was "standing very steeply." (Tr. 207). He was
concerned that as the material below this frozen area is removed, it could fall. He also noted
"dislodged and loose rock" along the left side of the photo. He believes that if the area h3.d been
scaled, this rock would no longer be present. (Tr. 210).

Mr. Waldera testified that he is unaware of anyone being injured by falling rock at the
quarry. (Tr. 606, 630). He also is unaware of any rock falling and damaging equipment. fu the
12 years he has worked at the quarry, there was one instance where a.miner was concerned about
rock in the highwall. Spencer blocked the area off until the area was blasted again. {Tr. 630,
687-88). Waldera disagrees with Gottheld's characterization that certain areas of the highwalls
suffer from '4Inass instability." He testified that when the mine tried to shoot down an area that
Gottheld believed to be an area of"mass instability," the rock did not move. (Tr. 631-32, 63839). Highwalls at the quarry do not slough off and large boulders do not fall from the highwall.
(Tr. 632). When quartzite fractures~ the surfaces remain very rough and abrasive. (Tr. 633). As
a consequence, it is a "binding material, an interlocking material." Id. In areas that are not being
blasted, the appearance of the high.walls does not change from day to day. The cracks .a nd
fissures in the highwalls give the impression that the rock is leaning, but these rocks have not
moved over the years. (Tr. 636-37). He has never measured the cracks to make sure that they are
not getting wider. (Tr. 689).
W aldera also testified that the conditions cited by Inspector Julien,.as depicted in Exhibit
G-20, did not present a hazar4. . (Tr. 641 ). The rock that Julien believed·to be frozen did not .
create a hazard. (Tr. 644). In addition, the loader operator was not going to load the shot rock
under that.area until the area was blasted again. (Tr. 644). On cross-examination, Waldera
testified that Spencer has never had a professional engineer or geologist examine its highwalls to
ensure that they are stable. (Tr. 685-86). Although he has never seen a rock fall from a highwall
at the quarry, he cannot say that a rock has never fallen.
Robert Weber, the quarry superintendent, testified that he has worked at the quarry for 36
years. (Tr. 703). He has also operated a lo.ader at the quarry. He stated that he has never seen
rock fall from the highwall and that nobody has ever been injured by falling rock. Id. He
admitted, however, that he is in the pit only about one hour per day at the present time. (Tr. 720).
Weber also testified that rock does not slough off the highwalls at the quarry. (Tr. 704). The
quarry has been regularly inspected by MSHA since the Mine Act was passed and the highwalls
are usually examined by the inspection team. Although MSHA inspectors have expressed
concerns from time to time about specific conditions along the highwall, no citations have ever
been issued for these conditions. (Tr. 705). Weber testified that he inspects the highwalls every
day prior to the start of shift. He documents his inspections in a log book. (Tr. 706; Ex. R-104).
When inspecting the highwalls, Weber looks for rocks overhanging from the top of the highwall
and unstable rock. (Tr. 708, 722-2~). If he sees unstable rock, he warns the loader operator and
Spencer does not load rock from that area. Id. He has never seen rock in the face itself that was
of concern to him. (Tr. 72~-26). If he does see any rock stability problems, he does not l?erm off
the area but "bl~t[s] through it." (Tr. 726). The material from the previous shot prevents access
28 FMSHRC I 021

to the area under unstable rock. Scaling is not performed at the quarry and it would not be very
effective. Except along the active sections of the highwall where blasting occurs, he has not
observed any significant changes in the highwalls. (Tr. 706).
Weber testified that the photographs taken by fuspector Julien do ·riot depict hazardous
conditions. (Tr. 710). The rock on the upper left comer of the first photo in Exhibit G-20 had
remained in place after the previous blasting. The rock did not move despite·the blast (Tr. 711).
Loader operators always load so that their vehicle is perpendicular to the face of the higbwall.
(Tr. 714). No additional loading was going to take place in the cited area before the area was
blasted again. (Tr. 174, 727-28).

Lynn Putzier, a loader operator, has worked at the quarry for about 15 years. Before he
starts loading material from a shot, he examines the highwall. (Tr. 733). He looks for
overhanging rock or rock that looks like it could come down. If he sees something th~t looks
unsafe, he calls Jim Zens and he does not load in that area. Nobody at the quarry has been
injured by falling rock. The loader he uses is about 41 feet long and the distance between the·tip
of the bucket and the front-of the cab on the loader is 21 feet. (Tr. 735). His loader has never
been damaged by falling rock.
Putzier loads by operating perpendicular to the wall. He starts loading the·blasted
material that is the furthest from the wall and then works his way in. (Tr. 738). The shot rock is
hard, so the loader operator cannot scoop along the ground as he loads rock He·niust scoop up
material from the top and works his way down. (Tr. 740}. fu addition, loader operators do not
scoop up tock that is within 15 to 20 feet of the highwall. (Tr. 731, 754, 794); As a
consequence, the cab of the loader does not normally get any closer·than;abouf 40 feet from the
higbwall. (Tr. 738). He does not believe that the highwall shown in ·EXhibit 20 presents a hazard
of falling rock. (Tr. 742-46). Putzier was the loader operator on the day of the inspection.
Putzier testified that he had removed s01µe shot rock in the area cited by Inspector Julien before
the photo was taken. (Tr. 755). The rock that was of concern to the MSHA inspector was at
least 30 feet away from his loader. (Tr. 747). On at least-one occasion after a blast, he has asked
that rock be removed from the top of a highwall because it did not look stable to him. (Tr. 753).
Ward Tuttle, the production foreman, testified that he has worked at the quarry for about
17 years and that he spends about half of his time in the pit. (Tr. 762). ·He also testified that the
rock from the highwalls does not slough and that no equipment has been damaged by falling
rock. (Tr. 762). Tuttle further testified that cracks and fissures have always been present in the
highwalls at the quarry. (Tr. 763).

Mr. Zens has worked at the quarry for 32 years. He has never seen rocks fall from the
highwalls. (Tr. 787). He also is not aware of any injuries or equipment damage from falling
rocks. He also testified that cracks have always been present in the highwalls and that these
cracks do not change in any significant way over time. (Tr. 788). Occasfonatly, if there is
overhanging rock following a blast, a crew will go to the top of the highwall and use equipment
to clear it of£ (Tr. 791). If rock lower down on the highwall looks like it could fall, Spencer
28 FMSHRC 1022

would not load any shot rock below the area of concern but would wait until the area is blasted
again to remove the shot rock. (Tr. 792-93).
As stated above, the Secretary primarily relied on the second sentence of the standard to
establish a violation. The ~ommission has not issued any decisions on this safety s~andard. Two
recent administrative law judge decisions used the Commission's "reasonably prudent person
test" to analyze the cited safety standard. (Martin Marietta Aggregates, 26 FMSHRC 847, 848
(Nov. 2004); Chino Mines Co., 23 FMSHRC 223, 226 (Feb. 2001)). As with many standards,
the language of section 56.3131 is simple and briefin order to be broadly adaptable to myriad
circumstances. Such a broadly written standard must give a person of ordinary intelligence a
reasonable opportunity to know what is prohibited, so that he may act accordingly. Alabama ByProducts Corp, 4 FMSHRC 2128, 2130 (December 1992). The mine operator need not have
actual notice of a specific requirement, but the standard must provide adequate notice of
prohibited or required conduct. Lanham Coal Co., 13 FMSHRC 1341, 1343(September1991).
· The Commission developed the "reasonably prudent person test" to be applied in such
circumstances. The test 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. Id.
The issue here is whether a "reasonably prudent person" would 4ave recognized that the
conditions on the highwall cited by Inspector Julien created a fall-of-material hazard. Jn
determining whether a "reasonably prudent person" would.have found that the conditions of the
highwall were such as to create a hazard, the testimony of"experienced observers" is relevant.
Martin Marietta, 26 FMSHRC at 848 (citing Ideal Cement Co., 12 FMSHRC 2409, 2416
(November 1990)).
For the reasons set forth below, I find that the Secretary did not establish a violation of
the safety standard. Inspector Julien acknowledged that he does not have any special expertise in
highwall stability. In addition to high school, Inspector Julien took two years of diesel mechanic
training before he started working for MSHA. (Tr. 276, 413). His only work experience in an
open pit mine with highwalls was at an aggregates mine. He worked at that mine for a few
weeks operating a loader. (Tr. 412). Julien started working for MSHA in 2002. (Tr. 275). He
completed the usual new mine inspector training at the Mine Safety and Health Academy before
he became an inspector in March 2003. He is also trained to investigate accidents for MSHA.
Inspector Julien had never inspected Spencer's quarry before March 1, 2005, but he had
accompanied another inspector to quartzite mines in South Dakota prior to this inspection. (Tr.
416). He had never been in the pit at this quarry prior to March 1, 2005.
Quartzite is a very hard, metamorphic rock that is mostly made up of quartz grains that
are so completely cemented together that any fracture occurs through the grains rather than
around them. (Am. Geological Institute, Dictionary ofMining, Mineral, .a nd Related Terms 439
(2"d. Ed. 1997)). A highwall in a quartzite mine has different characteristics than a highwall in an
aggregates mine or a limestone mine. Inspector Julien had never be~ in the pit of the quarry

28 FMSHRC 1023

until the day he issued this citation. He saw the cracks that are typical in a quartzite mine and
concluded that certain areas of the highwalls were not stable.
Inspector Julien testified that he based his citation on the second sentence of the safety
standard, which provides that "[o]ther conditions at or near the perimeter of a pit or quarry wall
which create a f~ll-of-material hazard to persons shall be corrected." He believed that rock
presented a fall-of-material·hazard. The citation states that "[s]everal cracks, large rocks, and
loose unconsolidated material was observed in the area." He was concerned because "[i]fthe
highwall were to suddenly slough off and fall, a fatal crushing injury could occur to the loader
operator." Inspector Julien did not have any experience or specific knowledge of the
characteristics of quartzite or of the history of the highwalls at this quarry. Julien's citation was
solely based on his visual observations on the day of the inspection.
The issue is whether a reasonably prudent person would have recognized that the
conditions on the highwall cited by Inspector Julien created a fall-of-material hazard. Inspector
Julien looked at the rock shown along the top and on the upper left comer of Exhibit 'G-20 and
concluded that it was unstable and could easily fall and hit the loader. Inspector Julien was also
concerned about an area in the highwall where it appeared that frozen material could slough and ·
hit the loader. This area is depicted in the center of Exhibit G-20. He reached this conclusion
without any knowledge of the pit and its highwalls, without any understanding of the properties
of quartzite, and without discussing the·ma:tter with management or hourly workers at the quarry.
Ifhe were inspecting an aggregates pit or a limestone quarry; such a quick assessment.might be
warranted, but in this instance the evidence establishes that a more· th~rough investigation was .
necessary.
Spencer's witnesses credibly testified that the highwalls at the quarry do not slough and
rock does not have the'tendency to fall. Rock that may appear to be 'loose to an inexperienced
eye is actually quite secure. Indeed, Mr. Weber testified ·that one of the rocks that concerned the
inspector, shown on left side of the photograph, remained in place after the area was blasted. (Tr.
710-13). The cracks that the inspector observed in that area were not unusual at the quarry. fu
addition, the loader had not operated directly belowtlie area that Inspector Julien thought was
frozen and no loading was to occur until the area was blasted again. If any hazard existed, no
miners were exposed to it.
I credit the testimony of Spencer's witnesses concerning the nature of quartzite highwalls
at the quarry. I also credit their testimony with respect to the lack of history of rock falling from
the highwall and striking equipment in the pit. No miners are present under the highwall when
an area is drilled and blasted. If there appears to be unstable rock at the top of the highwall, the
evidence establishes that it is removed before loading the rock that was shot. If a loader operator
observes any rock that he considers to be unstable~ he does not scoop up rock under that area
until after the highwall is blasted again. I also·credit the testimony of Spencer's witnesses that
MSHA's suggestion that the highwalls be·scaled may not be prudent. MSHA's witnesses
suggested that the loader operator drive his vehicle up onto the shot rock and use the scoop·to
remove loose rock up on the highwall. From the photos that were introduced at the hearing, it

28 FMSHRC 1024

would appear to me that such a procedure would be rather reckless and foolhardy. fu addition,
Spencer's witnesses creditably testified that the tires on the loader would be cut up by the sharp,
hard, quartzite rock. I do not know whether other means of scaling the highwalls would be
feasible. Spencer believes that scaling would loosen rock on the highwall and increase the risk
that such rock would subsequently fall.
Inspector.Julien testified that he reviewed Mr. Gottheld' s report before he went out on his
inspection. (Tr. 431 -33, 435-36). .Although I credit his testimony.that he did not feel compelled
to issue a citation for the highwalls, I believe that he was influenced by the report. Gottheld' s
testimony on this citation was not very convincing because it was based. solely on his review of
photographs that are not very clear. He also acknowledges that he did not have any experience
with or expertise in highwalls at quartzite mines. fu addition, he testified that if the area were
unstable, there was a large mass of rock that could fall. He could not affirmatively state that the
area was unstable because he was only looking at photographs. As to the supposedly frozen area
in the center of the photos, I credited Spencer's evidence that the rock under this area was not
going to be loaded until the area was blasted again. This blast would have eliminated ~e area of
concern.
To summarize, I find that Spencer's witnesses were ''experienced observers" of the
highwalls at the quarry and that, because of this experience, they had greater knowledge of the
hazards presented by the bighwalls than the inspector. Their testimony, summarized above, was
both relevant and credible. Lynn Putzier, the loader operator, has worked at the pit for 15 years
and, based on his experience, he did not believe that the cited area presented a hazard. The
testimony of the quarry superintendent, assistant superintendent, the production foreman, ~d the
general manager are consistent with Mr. Putzier's testimony on this issue. A reasonably prudent
person would not have recognized that the conditions on the.highwall cited by fuspector Julien
created a fall-of-material hazard. In reaching this conclusion, I am relying on all of the evidence
presented, not just the fact that, as of the date of the hearing, no miners have been injured and no
equipment has been damaged by rock falling from the cited highwall. For the reasons discussed
above, this citation is vacated.

b. Citation No. 7938296
Inspector Julien also issued Citation No. 7938296 under section 104(a) of the Mine Act
alleging a violation of section 56.3131 as follows:
Hazardous ground conditions, at the highwall next to the Deister
screen, were not corrected. A 1-2 foot vertical crack, as well as
several large pieces of unconsolidated material, were observed
.hanging over the area. A front end loader operates in *e area
several times per shift, piling rip-rap and moving waste material
from the edge of the highwall. If the wall were to suddenly slough
off and fall, a fatal crushing injury could occur to the loader
operator.
28 FMSHRC 1025

Inspector Julien detennined that an injury was reasonably likely and that any injury could
reasonably be expected to be fatal. He detennined that the violation was S&S and that Spencer's
negligence was moderate. The Secretary proposes a penalty of$154.00 for this citation.
The citation was issued for an area near the primary crusher that was not an active
highwall. (Tr. 318). There is a pile of waste rock next to the highwall that is deposited from the
crusher. This material is loaded into trucks on a periodic basis. Large rocks ai:e also stored next
to another area of the highwall that is sold as rip-rap. The highwall is about 40 feet high. (Tr.
321 ). The Secretary introduced photographs taken by the 'inspector to illustrate the alleged
violation. (Ex. G-23). Inspector Julien pointed out large cracks and fissures in the photos. (Tr.
323). The cracks are larger at the top than at the bottom. The inspector testified that these cracks
demonstrate that the rock is moving because it has "leaned itself out from the top." Id. He also
testified that there was loose rock along the top of the highwall that could fall and injure the
loader operator.
Inspector Julien determiiied that the violation was S&S based on the size of the fissures
and the amount of time that a loader operator is in the area each day. (Tr. 327). He determined
that, with the loader digging in the waste pile on a regular basis, it was reasonably likely that
rocks would fall and hit the loader operator. Spencer abated·the violation by installing a benn
along the side of the highwall to prevent anyone from getting too close. (Tr. 329).
. Inspector Julien does not know how long the large crack that he testified about has
existed in the cited area. {Tr. 408). At first, Inspector folien testified that the large rocks on the
floor of the pit in the first photo ·or Exhibit G-23 feff from the highwall. {Tr. 420-22). He later
admitted that the rock was more likely some of the rip-"rap shown in the seeond photo of the
exhibit. (Tr. 426). He admitted that he reached his ·conclusions that the highwall was unstable
based on his visual observations on this single visit to the mine. (Tr. 441 ).
Mr. Waldera testified that in late 1997 and early 1998, Spencer built a new conveyor and
the cited bench was used to anchor one of the supports for the conveyor. (Tr. 647; Ex. G-23; Ex.
R-lOl{a)). Waldera also testified that the cited highwall has not changed since the bench was
built in 1997 and the conveyor was installed in 1998. (Tr. 650, 653, 694; Ex. R-101). The crack
that Inspector Julien was concerned about was present when the conveyor was installed. Indeed,
the footing for the support of the conveyor was intentionally placed six feet away from the crack
so that when the concrete for the footing was poured, the crack would not become filled with
concrete. (Tr. 651, 692-93). Spencer would not have placed a support for the conveyor on the
cited bench if the immediately adjacent highwall was not stable. (Tr. 655).

Mr. Weber testified that the cracks and fissures shown on the first page of Exhibit G-23
have been present for at least 10 years. (Tr. 717, 728). These cracks are not unusual in quartzite
highwalls and they have riot changed iil any significant way over that period of time. {Tr. 71720). He has not measured the cracks to see if they have gotten lar~er over _time.

28 FMSHRC 1026

Mr. Putzier loaded the shot rock when the cited highwall was created in 1997. (Tr. 748).
The cracks that were of concern to the MSHA inspector, as shown in Exhibit 23, existed at the
time he loaded the shot rock and they have not changed since that time. Id. No blasting has
occurred in the area since 1997. (Tr. 751).

Mr. Tuttle accompanied Inspector Julien during bis inspection of the _b ighwalls. When
the inspector pointed out a crack in the highwall near the large conveyor support, Tuttle advised
him that the crack had been present for a long time. (Tr. 766-67; Ex. R-:105). Spencer would not
have used the bench to support the leg for the conveyor if the company thought that the highwall
was not stable. (Tr. 768; Ex. G-23). The crack has not changed since the conveyor was .
constructed.
The cited highwall is really a small finger tliat protrudes into the pit along the east
highwall. (Ex. R-lOla). The cited highwall is on both sides of this finger. No extraction occurs
at or near this finger. The primary crusher is located close to the highwall. A large conveyor
travels over the top of this finger to a finishing c~sher that is located at.the top of the quarry near
the office. One of the supports for this conveyor is on the finger near the crack that was of
concern to Inspector Julien.
For many of the same reasons set forth with respect to the previous citation, I find that the
Secretary did not establish a violation. Spencer's witnesses consistently testified that the large
crack observed by Inspector Julien was present when the conveyor system was built in 1997.
These witnesses testified that, while nobody has measured the crack, it appears to be in the same
condition as it was in 1997. Apparently, the .e ngineer who designed the conveyor _system was
going to have one of the supports directly over the crack. Spencer management had the support
moved so that concrete would not pour into the crack when the footing was laid. This conveyor
system cost at least a hundred thousand dollars when it was installed. It is highly unlikely that
Spencer would risk its investment by placing a major support for the conveyor on a highwall that
was unstable. There is no question that the point of the finger looks like it is leaning outward.
Mr. W aldera testified that the "natural formation of my quarry has a leaning effect, but it does not
change from day to day." (Tr. 636).

I credit the testimony of these "experienced observers" that the structure of the highwall
has not moved since the finger was created and that the crack observed by the inspector has
remained stable. In addition, the large rocks at the comer shown on the first page of Exhibit G23 is rip-rap, not rock that had fallen off the face. (Tr. 648, 716, 750, 758). The Secretary did
not establish that the rocks that Inspector Julien considered to be loose near the top of the
highwall created a safety hazard. When Mr. Gottheld visited the quarry a year earlier, he did not
closely examine this area of the quarry. He did not take any photos in this area to illustrate the
structural problems that he was concerned about and he did not testify about this highwall at the
hearing. For the reasons discussed above, this citation is vacated.

28 FMSHRC 1027

C.

Silica Dust CitatiOns.

Inspector Julien testified that he has been thoroughly trained to sample for silica dust and
that he has sampled air and noise over a hundred times. (Tr. 334). Julien indicated that
inspectors in the metal/non-metal division look to a mine's history of citations alleging
overexposure to airborne contaminants, as .well as the nature ofthe·mine's products to determine
which mines to sample during a particular inspection.cycle. (Tr. 332, 336). After scheduling a
time to perform the sample with the mine operator, the inspector sets up and calibrates-the·
equipment, attaches it to appropriate miners, allows the equipment to run for the entire working
shift, and then mails the sample from the test to a lab for analysis. (Tr. 336-38).
The sampling equipment itself is not complex. Pumps are attached to a miner which
draw air and any contaminants into a plastic cyclone which collects and spins the dust, allowing
anything 10 microns or less to be caught by the sampling cassette. These sampling cassettes are
pre-weighed and numbered. The samples are ·taken in the air Closest to the miner's breathing·
zone. When the sampling is complete, the cassette is sent to MSHA's laboratory for analysis.
(Tr. 338.42).
. .
.

On March 18, 2005, Inspector Julien sampled for silica dust at Spencer Quarries. (Tr.
331 ). As stated above, the target of his sample was silica dust ten·microns and less. (Tr. 336).
On the night before he performed·the sampling, Julien calibrated the pumps to a level within the
allowed 5 percent variation using the 1.70 liters per minute standard. (Tr. 352-53). The purpose
of this calibration was twofold: to ensure the pump was operational and to align the pump's
intake to that required by the cassette. (Tr. 347). Julien noted that the elevation where he
calibrated the pump and the elevation where he performed the test were within allowable
requirements. (Tr. 353). He also noted that the environmental conditions were normal. (Tr.
367).
With the pump fully charged and calibrated, Julien hooked the sampling equipment up to
two crusher operators at the beginning of their shifts. Jeremy Zens operated the primary crusher
and Dave Duba operated the finish crusher. Julien chose these operators because they worked in
areas suspected of high respirable dust exposure. (Tr. 355-56). Once Julien hooked the
equipment to the miners, he explained how it functioned and told the miners that they should not
allow the pump to tip over, as doing so might void the sample. (Tr. 357-58). Sampling was
conducted on the miners ·from 7:00 a.m. until 4:30 p.m. During the sampling period, Julien
checked the equipment on each miner about every two hours to make sure everything was
functioning properly. (Tr. 360). JUiien testified that nothing unusual occurred during the
sampling period. (Tr. 361).
At the conclusion of the shift, Julien removed the sampling equipment from each miner ·
and sealed the cassettes to be mailed to the lab for analysis. Along with the sample cassettes,' ·
Julien also shipped an empty cassette, which is the "control blank," to the lab, so that the weight
of the empty cassette can be compared to the weight of the sampled cassettes. He chose an
empty cassette from the same lot as the sample cassettes. (Tr. 362-64). Julien prepared the

28 FMSHRC 1028

required paperwork and mailed the sealed cassettes to MSHA's laboratory at the Pittsburgh Tech
Center. {Tr. 365-66).
When the lab sent the silica analytical report back to Julien, he determined that the two
miners had been overexposed to silica dust and that citations should be issued. He based his
conclusion on the laboratory report. (Ex. G-27). Julien double checked for any possible errors,
but found none. (Tr. 367-69). Julien compared the shift~weighted average value for each
sample, which had been prepared by the lab, to the threshold limit value (TLV) for each sample,
and adjusted upward by a 20% error factor to ensure the samples were at least 95% accurate. (Tr.
374-76).
James Polizzano, a physical scientist technician with MSHA's Pittsburgh laboratory,
testified in detail as to the procedures used by MSHA to test for silica dust. (Tr. 493-534).
Polizzano specializes in X-ray powder diffraction. Because he was also the technician who
tested the dust samples submitted by Inspector Julien in this inst~ce, he testified .as to the steps
he took in performing his analysis. Id.
1. Citation No. 7938298

Inspector Julien inspected the quarry on March 18, 2005, and issued Citation No.
7938298 under section 104(a) of the Mine Act alleging.a violation of section 56.5001(a)/5005 as
follows, in part:
The primary crusher operator was exposed to a shift weighted
average of .423 mg/m3 of silica bearing dust on 3/ 18/2005. This
exceeded the threshold limit value (TLV) of .14 mg/m3 , times the
error factor (1.20 for respirable free silica dust sampling and
analysis). A respiratory protection program, meeting all the
requirements of ANSI Z88.2-1969 was in place, but the crusher
operator was not wearing a respirator while in .t he control booth.
Inspector Julien determined that an illness was reasonably likely and that any illness
could reasonably be expected to be permanently disabling. He determined that the violation was
S&S and that Spencer's negligence was moderate. The safety standard provides, in part, that
"exposure to airborne contaminates shall not exceed, on the basis of a time weighted average, the
threshold limit values adopted by the American Conference of Governmental Industrial
Hygienists .... " Section 56.5005 provides, in part,.that when "engineering control measures·
have not been developed or when necessary by the nature of the work involved . . . , employees
may work for reasonable periods of time in concentrations of airborne contaminates exceeding
permissible levels if they are protected by appropriate respiratory protective equipment." The
Secretary proposes a penalty of $124.00 for this citation.
Julien determined that the primary crusher operator was overexposed. By multiplying the
TLV for the sample (.14 mg/m3) by the error factor for respirable free silica dust sampling and
28 FMSHRC 1029

analysis (l.20), the maximum amount the primary crusher operator would have been permitted to
be exposed to during his shift was .168 mg/m3 . The shift weighted average of exposure of the
primary crusher operator was calculated by the lab to be .423 mg/m3, two and a half times the
permissible TLV multiplied by the error factor. (Tr. 374-78; Ex. G-27).
Julien testified that mine operators are expected to know to comply with the TLVs set
forth in the 1973 publication of the American Conference of Govenunental Industrial Hygienists
as adopted by the Secretary in section 56.5001(a). (Tr. 378). At·the time of his inspection; Julien
noted that several engineering controls were in place, including·a respirator program, water··
sprays, enclosed operator booths, an ion filter, and self-contained air conditioning and heating
units. (Tr. 379-84). Following this ~spection, Spencer Quarries added double doors to the
operator's booth for the primary crusher operator, and the water sprays were put back into
operation. (Tr. 383-85).
fuspeetor Julien detennined that the violation was S&S because the crusher operator was
only wearing his respirator when working outside of the control booth and the measured
overexposure to the silica could lead to permanently disabling illnesses, such as silicosis. (Tr.
396-97).
After issuing the citation, Julien contacted Richard Waldera and discussed ways to
eliminate the problem; including changing the insulation in the operator's booth. In July of2005,
Julien took another sample at Spencer Quarries, following the same procedures he followed ·
during his March 2005 sample. This time, the water sprays were in operation. In this sample, the
primary crusher operator was again found to be overexposed: (Tr. 399-404). A month later, in
August of2005, Julien performed another sample on the primary crusher operator, following the
same procedures as he had before. This time, the primary crusher was within the TLV limits.
(Tr. 406-09).

Mr. Waldera testified that from 1997 until March of2005, Spencer Quarries did not
receive any respirable silica dust citations. Waldera testified that he did not test for silica dust in
this time period. He also testified that upon receiving the dust citations from MSHA, he
conducted his own silica dust tests. (Tr. 656, 697-98). Waldera obtained testing equipment from
Energy Laboratories, followed the instructions and sent results back to their laboratory. (Tr. 65758). Waldera testified that some samples failed, indicating an overexposure, while at least ·o ne
sample passed. (Tr. 695). He also testified that he has since placed additional engineering
controls in effect, such as· the installation of new insulation in the control booth, a new selfcontained air conditioning unit and a new air purifier. (Tr. 661 ). 'New double doors were also
installed to keep dust out.
I find that the Secretary established a violation. I credit the testimoriy of Inspector Julien
as to the procedures he used to sample for silica dust. I also credit the testimony of James
Polizzano on the analytical methods he used at the MSHA laboratory. Based on this testimony
and the exhibits presented, I find that the results of the sampling performed on March 18, 2005,
accurately represent the amount of respirable silica dust that was present in the breathing zone of
28 FMSHRC l 030

the primary crusher operator that day. Spencer Quarries did not seriously disput.e these results at
the hearing. The primary crusher operator was overexposed to silica dust and he was not wearing
a respirator.
I find that it was appropriate for MSHA to issue this citation based on a single-shift silica
dust survey. I reach this conclusion based on the Commission's decision in Asarco, Inc., 17
FMSHRC 1 (1995), and former Commission Administrative Law Judge Maurer's subsequent
analysis in Asarco, Inc., 19 FMSHRC 1097, 1130-1136 (1997). Based on the evidence
presented, Judge Maurer concluded that "MSHA's use of single-shift sampling is a reasonable
means of ascertaining, to the requisite degree of accU!(lcy, wh~ther the enforcement concentration
level standard in section 57.5001(a) has been exceeded." Id. at 1136. See Excel Mining, LLC.,
22 FMSHRC 318, 319-20 (Mar. ~000) ("We have held that the legal basis for rejecting the use of
single-shift sampling in coal mines does not apply to metal/non-metal mines."). See also Secy of
Labor v. Excel Mining, LLC, 334 F.3d 1 (DC Cir. 2003).
I also find that the violation was S&S. The Commission has held that there is a
presumption that the violation of the respirable coal dust standard is S&S. Consolidation Coal
Co., 8 FMSHRC 890 (June 1986), affd sub nom. Consolidation Coal Co. v. FMSHRC, 824 F.2d
1071 (D.C. Cir. 1987); U.S. Steel Mining Co., Inc., 8 FMSHRC 1274 (September 1986);
Twentymile Coal Co., 15 FMSHRC 941 (June 1993). In those cases, the mine operator violated
30 C.F.R. § 70.l 00 or §70. l 01, which apply only to coal mines. The Commission reached this
conclusion because an analysis of the four elements ofthe.S&S test would be essentially the
same in each instance in which the Secretazy proves a violation of the he"lth ~tandard. This
presumption was based, in large part, on the legislative history of the Mine A.ct. The
Commission noted that '1>revention of pneumoconiosis and other occupation~ illnesses is a
fundamental p~ose underlying.the Mine Act." 8 FMSHRC at 895. The ·c ommission h~ not
directly applied this presumption to silica dust violations. Consequently, I have not relied on the
presumption in reaching my S&S findings.
I find that a violation occurred that contributed to a discrete health hazard. I also find that
the evidence 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. As stated above, the
primacy crusher operator was exposed to more than two times the level of silica dust permitted
under the TLV. The water sprays were not operating on the crusher and the crusher operator was
not wearing a respirator while he was in the control booth. Spencer did not have in place a
program for monitoring the crusher operator's exposure to silica dust so it had no way of
knowing whether the crusher operator was being over exposed. Taking into consideration
continuing mining operations, I find that the violation was S&S and very serious.
Spencer Quarries argues that it upgraded the control booth in 1997 to keep dust out. . As a
consequence, no citations were issued for respirable dust after these renovations were made until
the present inspection. It believes that these steps should be "considered as a mitigating factor."
(Tr. 552). Spencer believes that its negligence should be low and that the penalty should be
reduced to reflect the efforts it has made to protect the.health of the primary crusher operator. I
28 FMSHRC 1031

disagree with Spencer's position and find that its negligence was moderate to high based on the
evidence summarized above. A penalty of$300.00 is appropriate.

2. Citation No. 7938299
Inspector Julien also issued Citation No. 7938299 under section 104(a) of the Mine Act
which also alleged a violation of section 56.500l(a)/5005 as follows, in part:
The finish crusher operator was exposed to a shift weighted
average of .398 mg/m3 of silica bearing dust on 3/18/2005. This
exceeded the threshold limit value (TLV) of .13 mg/m3, tiines the
· error factor (1.20 for respirable free silica dust sampling and
analysis). A respiratory protection program, meeting all the
requirements of ANSI Z88.2-1969 was in place, but the crusher ·
operator was not wearing a respirator while in the control booth.
Inspector Julien determined that an illness was reasonably likely and that any illness
could reasonably be expected to be p~anently disabling. He determined that the violation was
S&S and that Spencer's negligence was moderate. The Secretary proposes a penalty of$124.00
for this citation.
·
Inspector Julien and Mr. Polizzano followed the same procedures and performed·similar
calculations as discussed with respect to ·the previous.citation. The results obtained by the
MSHA laboratory showed that the crusher operator was exposed to .398.mg/m3, which was about
two and a halftimes·higher than the TLV. (Ex. G-27). I find that the sampling performed
March 18, 2005, accurately represents the amount of respirable silica dust that was present in the
breathing zone of the finish ·crusher operator that day.

on

The evidence and arguments with respect to this citation were the same as with the
previous citation. Spencer was able to terminate this citation after he sampled for dust again in
July 2005. As with the previous citation, Spencer instituted additional engineering controls to
bring the finish crusher into compliance.

I find that the Secretary established a violation for the reasons stated above. I make the
same findings with respect to gravity and negligence. The violation was S&S. A penalty·of
$300.00 is appropriate.

II. APPROPRIATE CIVIL PENALTIES
Section llO(i) of the Mine Act sets out six criteria to be considered in detennini.Dg
appropriate civil penalties. The quarry has a history of three paid violations in the two years
prior to May 12, 2004, and a history of one paid violation in the two years prior to March 1,
2005, excluding the citations at issue in these cases. (Ex. G-1). Spencer is a rather small
operator; it had 19 employees in 2004 and 2005 and worked about 38,000 hours each year. All
28 FMSHRC 1032

of the violations were abated in good faith. The penalties assessed in this decision will not have
an adverse effect on Spencer's ability to continue in business. My gravity and negligence
findings are set forth above. Based on the penalty criteria, I find that the peµ.alties set forth below
are appropriate.

III. ORDER
Based on the criteria in section 1 lO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
following civil penalties:
Citation No.

30 C.F.R. §

Penalty

56.15005
56.1101
56.12004
56.14100(b)
47.41(a)
47.41(a)

$200.00
150.00
50.00
Vacated
50.00
Vacated

56.14100(b)

$60.00

56.3131

Vacated

56.3131

Vacated

56.5001(a)/.5005

300.00

56.500l (a)/.5005

300.00

CENT 2004-227-M
7915361
7915362
7915363
7915364
7915366
7915368

CENT 2004-245-M
7915369
CENT 2005-182-M
7938296
CENT 2005-215-M
7938295
CENT 2005-256-M
7938299
CENT 2006-056-M
7938298

TOTAL PENALTY

28 FMSHRC 1033

$1,110.00

Accordingly, the citations contested in these cases are AFFIRMED, MODIFIED, or
VACATED as set forth above and Spencer Quarries, Inc., is ORDERED TO PAY the.Secretary
of Labor the sum of$1,l 10.00 within 30 days of the date of this decision. Upon payment of the
penalty, these proceedings are DISMISSED.

•
Richard W. Manning
Administrative Law Judg~

Distribution:

Jennifer Casey, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
1600, Denver, CO 80202 (Certified Mail)
Jeffrey A. Sar, Esq., Baron, Sar, Good~ Gill & Lohr, P.O. Box 717, Sioux City, IA 511020717 (Certified Mail)

RWM

28 FMSHRC 1034

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, N.W .. Suite 9500
Washington, D.C. 20001

November 16, 2006

ARACOMA COAL COMPANY, INC.,
Contestant

CONTEST PROCEEDINGS
Docket No. WEVA 2006-801-R
Order No. 7253508; 06112/2006
Docket No. WEVA 2006-808-R
Citation No. 7253521; 06/20/2006

V.

Docket No. WEVA 2006-809-R
Citation No. 7253522; 06/20/2006
Docket No. WEVA 2006-810-R
Citation No. 7253523; 06/20/2006
Docket No. WEVA 2006-811-R
Citation No. 7253524; 06/20/2006

SECRETARY OF LABOR,
MINE SAFE1Y AND HEALTH
ADMINISTRATION, (MSHA),
Respondent

Docket No. WEVA 2006-824-R
Citation No. 7253529; 07/ 13/2006
Docket No. WEVA 2006-825-R
Citation No. 7253530; 07/14/2006

Aracoma Alma Mine #1
Mine ID 46-08801
ARACOMA COAL COMPANY, INC.,
Contestant

CONTEST PROCEEDINGS
Docket No. WEVA 2006-892-R
Order No. 7241519; 08/03/2006
Docket No. WEVA 2006-893-R
Citation No. 7241521; 08/03/2006

V.

Docket No. WEVA 2006-894-R
Citation No. 7241522; 08/03/2006

28 FMSHRC 1035

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

Hemshaw Mine
Mine ID 46-08802

ARACOMA COAL COMPANY, INC.,
Contestant

CONTEST PROCEEDINGS
Docket No. WEVA 2006-895-R
Citation No. 7253541; 08/03/2006
Docket No. WEVA 2006-896-R
Citation No. 7253542; 08/03/2006
Docket No. WEVA 2006-897-R
Citation No. 7253543; 08/03/2006

V.

Docket No. WEVA 2006-898-R
Citation No. 7253544; 08/03/2006
Docket No. WEVA 2006-900-R
Citation No. 7253546; 08/10/2006

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

Docket No. WEVA 2006-901-R
Citation No. 7253547; 08/10/2006
Docket No. WEVA 2006-902-R
Citation No. 7253548; 08/10/2006
Docket No. WEVA 2006-903-R
Citation No. 7253549; 08/10/2006
Aracoma Alma Mine # 1
Mine ID 46-08801

ORDER OF DISMISSAL 1

Before: Judge Feldman

1

These contest proceedings initially involved a response to an Order to Show Cause in
Docket Nos. WEVA 2006-824-R and WEVA 2006-825-R. Since all of the captioned contest
matters before me involve identical facts concerning their validity, they have al.I been included in
this Order to avoid unnecessary duplication.
28 FMSHRC 1036

I. Statement of the Case
The captioned eighte.e n (18) Notices of Contest are among 379 Notices of Contest
Aracoma Coal Company, Inc., (Aracoma) has .filed this year under section 105(d) of the Federal
Mine Safety_and Health Act of 1977, as amende9, (the Mine Act), 30 C.F.R. § 815(d). In all
instances, Aracoma has contemporaneously agreed t(> stay its 379 contests pending its contest of
the Secretary's proposed civil penalties.2 In fact, Aracoma admits that it has no intention of
prosecuting its I 05(d) contests because of pending accident and criminal investigations
concerning a fatal accident that occurred at its Alma Mine on January 19, 2006. Moreover,
Aracoma concedes it is unable to engage in discovery because of the limited availability of
Aracoma management personnel who are, or may be, the subjects of the pending investigations.
All of the 379 contested citations were issued after the fatal accident and they were not issued as
a result of the accident investigation which is still pending. Thus, all of the contested citations do
not arise from circumstances that are directly related to the fatal accident. For the reasons
discussed below, Aracoma's contests ARE DISMISSED.
II. Pertinent Statutory and Rule Provisions and Case Law

An operator served with a citation alleging a violation of the Mine Act, or alleging a
violation of a mandatory safety standard that has been abated, may immediately contest the
citation under section 105(d) of the Mine.Act without waiting for notification of the proposed
penalty assessment. 30 C.F.R. § 815(d). In such cases, section 105(d) provides that "the
Commission shall afford an opportunity for a hearing." An operator may have an interest in an
early hearing, such as in cases where continued abatement is expensive, or where the validity of
the citation or order impacts on an operator's continued exposure to 104(d) withdrawal sanctions.
Energy Fuels Corporation, 1 FMSHRC 299, 307-08- (May 1979).
Specifically, the Commission stated in Energy Fuels:
Inasmuch as a citation and related withdrawal orders may be issued before the
Secretary has proposed a penalty, the operator's interest in immediately contesting
the allegation of violation and the special findings in a citation may be
considerable. As we have said, affording the operators this opportunity
[to litigate} will not adversely affect the interests ofminers. The Secretary has
not convinced us that the interest in avoiding piecemeal litigation necessarily
outweighs the interests of the operators, . .. to immediately contest all parts of
citations ....
1 FMSHRC at 308 (emphasis added).

2

On October 6, 2006, Judge Melick dismissed seventy-three (73) of Aracoma's 105(d)
contests because Aracoma paid the civil penalties for the contested citations. Aracoma asserts
the civil penalties were paid by mistake and it has pending before the Commission a request to
reopen the civil penalties.
28 FMSHRC 1037

Alternatively, if the operator does not seek a hearing by immediately contesting a citation
after it is issued, the operator may wait to contest the citation in a civil penalty proceeding
pursuant to section 105(a) of the Mine Act. 30 C.F.R. § 815(a). Waiting to contest citations
until after the civil penalty is proposed·facilltates settlement negotiations and limits discovery to
citations that can only be resolved through litigation.· In addition, postponing a contest until after
the proposed civil penalty provides the opportunity for informal settlement conferences between
mine operators and MSHA personnel wherein·citations frequently are vacated by.MSHA without
the need for litigation.
·
Commission Rule 20, 29 C.ER.· § 2700.20, implements the contest provisions of section
105(d). Commission Rule 20(e)(1 )(ii) provides that a notice of contest shall provide a plain·
statement of the relief requested. 3
·
ID. Procedural History
On August 25, 2006, Aracoma was ordered to show cause why its Notice of Contest
that provided the basis for the contest proceeding in Docket Nos. WEVA 2006-824-R and
WEVA 2006-825-R should not be dismissed as a result of its apparent contravention of
Commission Rule 20(e)(l)(ii), 29 C.F.R. § 2700.20(e)(l)(ii) because it fails to adequately specify
the relief requested given its disinterest in a Commission hearing, and because it is a duplicative
and needless consumption of the Commission's resources. 29 FMSHRC 763.
During a subsequent telephone conference, Aracoma was advised to hold its response to ·
the August 25 Order in abeyance pending the disposition of a similar Order to Show Cause
inMarfork Coal Company, Inc. (Mizrfork). See 29 FMSHRC 745 (Aug. 2006). -Marfork's
105(d) contest was dismissed on September 27, 2006. See Order ofDismissal, 29 FMSHRC-842
(Sept. 2006).
The Marfork matter having been resolved, on September 29, 2006, Aracoma was
ordered to respond to the Order to Show Cause within fifteen days. 29 FMSHRC 898.
On October 11, 2006, Aracoma requested a fourteen day extension, until October 27, 2006, to
respond because of the "complex" issues raised in the Order to -Show Cause. Letter from David
Hardy, Esq., to Judge Feldman (October 11, 2006). ·
During an October 20, 2006, telephone conference with the partie$, Aracoma ·stated that it
was contesting virtually all citations to document its ultimate intention to contest all proposed
civil penalties in the event Aracoma seeks to reopen a civil penalty because it was paid in error.
During the course of the telephone conference, Aracoma requested that its response to the
Show Cause Order be held in abeyance pending the disposition of an anticipated appeal of the

3

The Commission's Rules were amended effective October 3, 2006. 71 Fed. Reg. 44190
(August 4, 2006), and 71 Fed. Reg. 54904 (Sept. 20, 2006). The provisions of Rule 20(e)(l)(ii)
were not changed.
28 FMSHRC 1038

Maifork dismissal order. Thus, Aracoma was advised to submit a draft letter explaining why
I should stay ruling on its contests pending the Commission's decision in Maifork.
After reviewing Aracoma's draft letter, it was apparent that Aracoma's contests may be
even more frivolous than Ma:(fork' s because, unlike Marfork, Aracoma lacked any pretense of
discovery as a basis for its contests. Aracoma's only rationale was its purported desire to contest
all citations as a precautionary measure to support the reopening of civil penalty cases that
may in the future be paid by mistake. Draft letter from David Hardy, Esq., to Judge Feldman
(October 23, 2006). Thus, Aracoma's draft letter introduced a new concept in mine safety law "the precautionary contest."
Consequently, Aracoma's request to hold its r~sponse to the Show Cause Order in
abeyance was denied on October 24, 2006. 29 FMSHRC 910. At that time, Aracoma was
ordered to analyze the circumstances that it believes distinguish its situation from Marfork.
Aracoma was also requ_ested to explain·why one written correspondence to the Secretary and/or
to this Commission evidencing its intention to contest all civil penalties, in lieu of the multitude .
of contests it has and continues to file, would not serve the same p~ose it purportedly see.ks to
achieve.
Aracoma responded to the October 24, 2006, Order but it did not specifically address the
questions raised in the Order to Show Cause. Letter from David Hardy, Esq., to Judge Feldman
(November 6, 2006). Instead, Aracoma's November 6 letter repeated the rationale in support of
its contests that it had previously proffered in its October 23, 2~06, draft letter. Aracoma relied
on six facts to support its contests in its November 6 letter that will be addressed in tum.

N . Aracoma's Proffered Basis for its Contests
Fact #1. An accident involving two fatalities occurred at the Alma mine on
January 19, 2006, and the Secretary o~ Labor has not yet released her accident
report.
Fact #2. In early March, the United States Attorney for the Southern District of
West Virginia confirmed in a Charleston Gazette article that his office intends to
conduct an investigation of the January accident; as a result of the U.S. Attorney's
announcement, eight employees of the Alma mine have engaged personal counsel
[sic] are not available to Aracoma's lawyers without counsel's input and
penmss1on.
The extensive investigations amplify why Aracoma has no need for an early hearing.
In fact, by its own admission, an early hearing is out of the question. Since an early hearing is
not requested, Commission Rule 20(e)(l)(ii) requires Aracoma to postpone its contests until the
Secretary proposes her civil penalties since Aracoma is not seeking Commission relief at this
time. If Aracoma contests the Secretary's proposed civil penalties for post-accident citations

28 FMSHRC 1039

under section 105(a), it may request a stay of civil penalty proceedings involving citations that it
believes are related to the pending investigations. However; a pending investigation is not a
basis for staying civil p enalty proceedings involving more than 300 unrelated citations.
Fact #3. The Dismissal Order entered by the Court in the proceedings involving
Marfork Coal Company is distinguishable in that those Notices of Contest were
filed with the intention of cqnducting immediate discovery, without the
impediment of limited access to key witnesses;
Fact #4. Aracoma has no intention of conducting discovery at this time, and is
unable to answer the Secretary's discovery due to the limited availability of at
least eight witnesses who were in supervisory positions.
Aracoma does not want a hearing. Notwithstanding the fact that a desire for discovery is
an inadequate basis for filing a 105(d) contest, Aracoma does not even want to engage in
discovery. Thus, it is obvious that the flling 'ofAracoma's voluminous contests under section
105(d) rather than waiting to contest the ciV1fpenalties under section 105(a) is frivolous because
they are filed for no apparent reason.
..

Fact #5. The Review Commission has made reference·to previously filed Notices
of Contest when determining whether it will grant relief from delinquent civil
penalty assessments associated with the citations that are under contest. In fact,
Aracoma has filed such a request with the Commission in Assessment Case Nos~ ·
84568, 82207, 94139, 87351, 90231and90239. ·
·
Surely, reference by the Commission·to a previously filed Notice of Contest when ruling
on a request for relief from a delinquent civil penalty cannot seriously be construed as an
invitation by this Commission for all operators to contest all civil penalties by filing
"precautionary contests." Whether the filing of contests for all citation's ensures a basis for
reopening civil penalty cases when civil penalties have been paid goes beyond the scope of this
matter. I note, however, that 105(d) contests evidence a past desire to contest a citation, while
payment after a penalty is proposed evidences a ClllTent desire not to contest a citation.
Obviously, an operator that filed a 105(d) contest is free to change its mind, and. decide to pay a
civil penalty, after it learns of the amount being proposed. In the final analysis, the issue of
mistake is an independent issue and does not give·rise to a statutory right to file "precautionary
105(d) contests." Put another way, the absence of a 105(d) contest has no evidentiary value with
respect to whether an operator intended to pay the related proposed civil penalty. In fact, if truth
be told, the filing of a 105(d) contest is not material to.the resolution of the issue of mistake.
Regardless of the merits of Aracoma's precautionary approach~ suffice it to_say that
Aracoma could achieve its purported goal by sending a Jetter to the Secretary and/or to this
Commission that it intends to contest all futUre proposed civil penalties. Thus, a one
sentence letter could have avoided the needless expense and wasted effort associated with
28" FMSHRC 1040

the issuance of379 meaningless assignment orders, 379 meaningless pre-hearing orders, and
379 meaningless stay orders, not to mention the preparation and storage of 379 contest docket
files for no legitimate reason.4
Fact #6. The contest proceedings involving Aracoma are a unique situation and
the company took the affirmative step of filing the Notices of Contest in response
to the active criminal investigation and due to its uncertainty as to the Secretary's
findings in the unreleased investigation report.
Unfortunately, accident investigations are not unusual. However, accident investigations
are not routinely followed by a multitude of meaningless contests of unrelated citations. Thus,
despite Aracoma's assertion to the contrary, there are no unique circumstances that warrant these
frivolous contests.
ORDER

In view of the above, and for the reasons stated in Marfork, 29 FMSHRC 842,

IT IS ORDERED that the captioned contests ARE DISMISSED because they are contrary to
section 105(d) as well as Commission·Rule 20(e)(l)(ii), and because they are devoid of relief
sought, notwithstanding the abuse of process they create. This abuse of process must stop.
If Aracoma persists in filing similar frivolous 105(d) contests after the date of this Order, it may
result in the extraordinary sanction of dismissal of Aracoma'~ contests with prejudice to its filing
105(a) contests of the related civil penalties.5

.J erold Feldman
AdminiStrative Law Judge

4

I am not suggesting that administrative burden provides a basis for denying an operator
the right to file a bona fide 105(d) contest. However, administrative expenditures incurred as a
result of frivolous filings are wasteful and must not be ignored.
5

While the need to impose sanctions would be unfortunate, an abuse of process is a
serious matter. Aracoma has been less than forthcommg. It remains unclear why Aracoma
continues to file these meaningless contests. Yet Aracoma has failed to address the issues
it was directed to specifically address in the August 25, 2006, and September 29, 2006,
Orders to Show Cause, and the October 24, 2006, Order denying its request to hold its
response in abeyance. See 29 FMSHRC 763, 29 FMSHRC 898 and 29 FMSHRC 910.
28 FMSHRC 1041

Distribution: (Certified Mail)
David J. Hardy, Esq., Spilman, Thomas & Battle, PLLC, 300 Kanawha Blvd. East,
P.O. Box 273, _Charleston, WV 25321
Francine A. Serafil1, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
22nd Floor West, Arlington, VA 22209-2247
/mh

28 FMSHRC 1042

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

November 20. 2006
LAUREL AGGREGATES. INC.•
Contestant

CONTEST PROCEEDINGS
Docket No. PENN 2006-217-RM
Citation No. 6038673; 06/07/2006
Docket No. PENN 2006-218-RM
Citation No. 6038638; 06/07/2006
Docket No. PENN 2006-219-RM
Citation No. 6038639; 06/07/2006
Docket No. PENN 2006-220-RM
Citation No. 6038641; 06/07/2006
Docket No. PENN 2006-221-RM
Citation No. 6038643; 05/30/2006
Docket No. PENN 2006-222-RM
Citation No. 6038644; 05/30/2006

v.
Docket No. PENN 2006-223-RM
Citation No. 6038645; 05/30/2006
Docket No. PENN 2006-224-RM
Citation No. 6038646; 05/30/2006
Docket No. PENN 2006-225-RM
Citation No. 6038647; 05/30/2006

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

Docket No. PENN 2006-226-RM
Citation No. 6038648; 05/30/2006
Docket No. PENN 2006-227-RM
Citation No. 6038649; 05/30/2006
Docket No. PENN 2006-228-RM
Citation No. 6038650; 05/30/2006

28 FMSHRC 1043

Docket No. PENN 2006-229-RM
Citation No. 6038651; 0513012006
Docket No. PENN 2006-230-RM
Citation No. 6038652; 05/30/2006
Docket No. PENN 2006-231-RM
Citation No. 6038653; 06/07/2006
Docket No. PENN 2006-232-RM
Citation No. 6038654; 05/30/2006
Docket No. PENN 2006-233-RM
Citation No. 6038655; 0513012006
Docket No. PENN 2006-234-RM
Citation No. 6038657; 05/30/2006
Docket No. PENN 2006-235-RM
Citation No. 6038658; 05/30/2006
Docket No. PENN 2006-236-RM
Citation No. 6038659; 05/30/2006
Docket No. PENN 2006-237-RM
Citation No. 6038660; 05/30/2006
Docket No. PENN 2006-238-RM
Citation No. 6038661; 05/30/2006
Docket No. PENN 2006-239-RM
Citation No. 6038662; 05/30/2006
Docket No. PENN 2006-240-'RM
Citation No. 6038663; 05/30/2006
Docket No. PENN 2006-241-RM
Citation No. 6038664; 0513012006
Docket No. PENN 2006-242-RM
Citation No. 6038665; 05/31/2006

28 FMSHRC 1044

Docket No. PENN 2006-243-RM
Citation No. 6038666; 05/31/2006
Dock~t No. PENN 2006-244-:R¥

Citation No. 6038667; 05/31/2006
Docket No. PENN 2006-245-RM
Citation No. 6038668; 05/31/2006
Docket No. PENN 2006-246-RM
Citation No. 6038669; 06/01/2006
Docket No. PENN 2006-247-RM
Citation No. 6038670; 06/07/2006
Lake Lynn Quarry
Mine ID 36-08891

DISMISSAL ORDER
Before:

Judge Feldman

These proceedings are before me based on a Notice of Contest of the subject citations
filed with the Commission on June 26, 2006, pursuant to section 105(d) of the Federal Mine
Safety and Health Act of 1977, as amended, {the Mine Act), 30 C.F.R. § 815(d). In its contests,
Laurel Aggregates, Inc. (Laurel) denies each and every allegation contained in the contested
citations. Laurel identifies the relief sought as a Commission review and declaration that the
contested citations are invalid and void. (Laurel Contest, p.18). Such a declaration can only be
rendered after a hearing on the merits of the contested citations.
The Secretary filed an answer to Laurel's contest on July 17, 2006, at which time the
Secretary moved to stay these matters pending the related civil penalty case. Laurel did not
oppose the Secretary•s motion.
An operator served with a citation alleging a violation of the Mine Act, or alleging a
violation of a mandatory safety standard that has been abated, may immediately contest the
citation under section 105(d) of the Mine Act without waiting for notification of the proposed
penalty assessment. 30 C.F.R. § 815(d). Jn such cases, section 105(d) provides that "the
Commission shall afford an opportunity for a hearing." An operator may have an interest in an
early hearing, such as in cases where continued abatement is expensive, or where the validity of
the citation or order impacts on an operator's continued exposure to 104(d) withdrawal sanctions.
Energy Fuels Corporation, 1FMSHRC299, 307-08(May1979). Thus, the purpose of a 105(d)
contest proceeding is to adjudicate the validity of a citation without waiting for the Secretary's
proposed civil penalty.

28 FMSHRC 1045

Alternatively, if the operator does not immediately contest a citation after it is issued, the
operator may wait to contest the citation in a civil penalty proceeding pursuant to section 105(a)
of the Mine Act. 30 C.F.R § 815(a). Waiting to contest citations until after the civil penalty is
proposed facilitates settlement negotiations and limits discovery to citations that can only be
resolved through litigation.
Commission Rule 20, 29 C.F.R. § 2700.20, implements the contest provisions of
section 105(d). Commission Rule 20(e)(1 )(ii) provides that a notice of contest shall provide a
plain statement of the relief requested. The relief requested by Laurel is a Commission hearing
on the merits ofthe citations without waiting for the Secretary's proposed civil penalties.

By filing a contest on June 26, 2006, seeking an early adjudication, only to agree
shortly thereafter to stay its contest pending the civil penalty case, it appears that Laurel is,
in substance, waiting for a disposition on the merits after the civil penalty is proposed.
In other words, Laurel has not adequately articulated the relief it seeks in its 105 (d) notice
of contest, since it has elected to wait for the 105(a) civil penalty matter.
Consequently, on October 26, Laurel was ordered to show cause why its Notice of
Contest in these matters should not be dismissed as a result of its apparent contravention of
Commission Rule 20(e)(l)(ii), 29 C.F.R. § 2700.20(e)(l)(ii) because it fails to adequately specify
the relief requested given its disinterest in a Commission hearing, and because it is a duplicative
and needless consumption of the Commission's resources. 29 FMSHRC 763.
Laurel responded to the show cause order on November 10, 2006. Laurel stated that it
has received ·the Secretary's proposed civil penalties for twenty-three (23) of the thirty-one (31)
citations/orders that are the subject of these proceedings. As a consequence, Laurel concedes that
23 of the captioned contests "are now moot." Letter·from David Hardy, Esq., to Judge'Feldinan
(November 10, 2006).
With respect to the remaining eight (8) contested citations, Laurel stated:
1bis firm, as well as other attorneys that routinely practice before the Review
Commission, often files Notices of Contest in certain proceedings. It has
generally been the practice of this Firm to file the Notices when there is a need for
an expedited hearing and/or discovery, a serious accident has occurred, or the
Contestant in the past has due to a mistake or inadvertence failed to timely contest
the associated civil penalties. The filing of the Notice evidences the Contestant's
intention to contest the subject citations/orders and is relevant if a motion must be
filed under Rule 60 for relief due to inadvertence·or mistake.
Id.

28 FMSHRC 1046

Laurel does not contend that it filed the subject contest because it wants an early hearing
instead of waiting to contest the Secretary's proposed penalties. Discovery, alone, is not relief
sou~t, and it does not provide an adequate basis for filing a 105(d) contest. As discussed in the
Order of Dismissal inAracoma Coal Company, Inc., 30 FMSHRC _(Nov. 2006) (AIJ),
a 105(d) contest has no evidentiary value with re.s pect to whether an operator intended to pay a
civil penalty. This is especially true when all citations are contested and there is no uniqueness in
the operator's behavior to deIIJ.onstrate that it strongly objected to a particular citation or group of
citations. ·
.
·
The fact that other attorneys, in addition to this law fum, have recently begun to contest
all citations without wanting an early hearing, does not legitimize Laurel's defective filing.
Although Laurel admits its contest of 23 of the subject citations/orders are now moot, they have
always been moot along with its contest of the remaining 8 citations because there is no relief
sought.

ORDER
In view of the above, and for the reasons stated inMarfork Coal Co., Inc.• 29 FMSHRC
842 (Sept. 2006) (ALJ) andAracoma Coal Co., Inc., 30 FMSHRC _. (Nov. 2006) (AU),

IT IS ORDERED that the captioned contests ARE DISMISSED because they are contrary to
section IOS(d) as well as Commission Rule 20(e)(l)(ii), and because they are devoid of relief
sought, notwithstanding the abuse of process they create~ ·

··

Jerold Feldman
Administrative Law Judge
Distribution: (Certified Mail)
David J. Hardy, Esq., Spihnan, Thomas & Battle, PLLC, 300 Kanawha Blvd. East,
P.O. Box 273, Charleston, WV 25321
John M. Strawn, Esq., Office of the Solicitor, U.S. Department of Labor, Suite 630 East,
The Curtis Center, 170 S. Independence Mall West, Philadelphia, PA 19106-3305
/mh

28 FMSHRC 1047

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

November 21, 2006
ELK RUN COAL COMPANY, INC.,
Contestant

CONTEST PROCEEDINGS
Docket No. WEV A 2006-729-R
Citation N<?. 7253958; 0512412006

V.

Docket No. WEVA 2006-730-R
. Ci~tion No. 7253959; 0512412006

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH

Doc~et No. WEVA 2006-731-R

ADMINISTRATION, (MSHA),

Citation No. 7253960; 0512412006

Respondent
Castle Mine
Mine ID 46-07009
DISl\fiSSAL ORDER

Before: Judge Feldman
The three captioned citations concern the contes1anf s alleged failure to secure
mechanical guards. The contestant filed its contest, and then contemporaneously .agreed to stay
its contest until the Secretary proposes her civil penalties. By agreeing to stay these matters
rather than request an early hearing, the contestant has failed to state the relief.it is seeking
as·required by Commission Rule 20(e)(l)(ii). Consequently, the captioned contests
ARE DISl\fiSSED.

Jerold Feldman
Adininistrative Law Judge
Distribution:
Ramonda C. Lyons, Esq., Dinsmore & Shohl, LLC, Huntington Square, 900 Lee Street, Suite
600, P.O. Box 11887, Charleston, WV 25339
Francine Serafin, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
· 22nd Floor West, Arlington, VA 22209-2247
/mh

28 FMSHRC 1048

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

November 30, 2006 ·
CIVIL PENALTY PROCEEDING

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

Docket No. SE 2006-6-M
A. C. No. 38-00250-67174

V.

HANSON AGGREGATES-SOUfHEAST,
Respondent

Anderson Quarry

DECISION
Appearances: Ann Paschall, Esq., Office of the Solicitor,.U.S. Department of Labor,
. Atlanta, Georgia,.on behalf of the Secretary of Labor;
Adele L. Abrams, Esq., Law Office of Adele L. Abrams, PC, Beltsvil~e,
Maryland, on behalf of Hanson Aggregates Southeast.
Before:

Judge Zielinski

This case is before me on a Petition for Assessment of Civil Penalty filed by the Secretary
of Labor ("Secretary"), pursuant to section 105 of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 815 ("Act"). The petition alleges that Hanson Aggregates Southeast
("Hanson") is liable for one violation of the Secretary's regulations applicable to surface, metal
and non-metal mines, and proposes the imposition of a civil penalty in the amount of$228.00.
A hearing was held in Greenville, South Carolina, and the parties filed briefs after receipt of the
transcript. For the .reasons set forth below, I find that the Secretary has failed to prove the alleged
violation, and vacate the citation.
Findings of Fact - Conclusions of Law
Hanson operates the Anderson Quarry, a granite mine, located in Anderson County,
South Carolina. Scott M. Blair, an inspector employed by the Secretary's Mine Safety and
Health Administration ("MSHA"), conducted an inspection of the quarry in July 2005. On
July 14, 2005, Blair, accompanied by David Stewart, the quarry's plant manager, inspected the
plant and the load-out area. The load-out area was located at the end of the #2 Bench, and was
accessed by a haul road approximately 1,000 feet in length. A highwall, approximately 50 feet in
height, ran alongside the haul road. It had been created by mining operations conducted five
years earlier. The face of the highwall was irregular and exhibited damage from mining process
blasting. The focus of the dispute is the condition of the highwall, and whether loose or detached
28 FMSHRC 1049

granite blocks presented a hazard to miners using the haul road.
Blair and Stewart traversed the haul road to the load-out area in Stewart's pickup truck.
The highwall was on the right-hand side as they traveled, and the ride was uneventful. Several
pieces of equipment were being used at the load-out area. A front-end loader alternatively loaded
two Catepillar 7690 haul trucks. There was also an excavator equipped with a hammer which
was used to break up larger rocks.
Blair testified that, because of space limitations, the driver of the haul truck that was
waiting to be loaded would position it about 200 feet from the loading site, parallel to and within
about two feet of the highwall, allowing the other equipment room to operate. After one of the
trucks had moved, he was able to approach the highwall and noticed cracks in the highwall's
face, indicating that there was loose material above where the truck had been parked. That
particular area of the highwall is depicted in one of several photographs taken by Blair, in which
the loose material is circled. Ex. G-2. He was concerned that one or more of the rocks would
fall onto a truck and cause a fatal injury to the operator. He then walked back down the haul
road and examined the highwall more closely. He noticed several areas.where cracks in the
granite indicated what he believed to be unstable conditions. The vertical cracks were angled
toward the l~ad-out area, and any displacement along the cracks was more visible when observed
while looking back toward the plant. Tr. 25. Blair felt that vertical.cracks were a sign of
instability, whereas horizontal cracks were fairly stable. Tr. 42.
Blair notified Stewart that he was going to issue a citation for failure to control hazardous
ground conditions. Stewart immediately.protested the -citation, contending that the.ground
conditions were stable and did not pose any threat or.hazard to persons using the roadway.
Citation No. 6113853 alleges a violation of30 C.F.R. § 56.3200, which provides:
Ground conditions that create a hazard to persons shall be taken down or
supported before other work or travel is permitted in the affected area. Until
corrective work is completed, the area shall be posted with a warning against entry
and, when left unattended, a barrier shall be installed to impede unauthorized
entry.
Blair originally described the violation in the "Condition or Practice" section of the citation as
follows:
The Bench along the right side of the roadway going to the #2 Bench has loose
unconsolidated material hanging from it.
Ex. G-1.

28 FMSHRC 1050

On July 22, 2005, Blair modified the Condition or Practice section of the citation to read:

Loose material was observed on the #2 Bench r~adway highwall. The highwall is
approximately 50' in height and 1,000 feet in length. The loose material ranges in
size from 8' by 6' down to I' by 2'. Tire tracks are seen below the loose material.
There is regularly traveled access within 2' of the highwall. This hazard exposed
miners to falling material that could result in -serious or fatal injuries.
Ex. G-1.
Blair determined that it was reasonably likely that the violation would result in a fatal
iitjury, that the,violation was significant and substantial, that two employees were affected, and
that the operator' s negligence was moderate. A civil penalty in the amount of$228.00 has been
proposed for this violation. The alleged violation was abated by Hanson's placement of traffic
control cones, and later construction of a berm prohibiting travel within 20 feet of the high.wall.
The high.wall was removed entirely in early 2006.
Hanson protested the citation immediately, triggering a series of conference calls while
Blair was at the site. It contends that the high.wall face was stable and presented no danger of
rock falls. It also contends that a rock falling off the fac·e would not present a hazard because no
miners worked or traveled close to the wall where they could be struck by a falling rock.
The Zone of Danger
The haul road and high.wall are depicted in photographs taken by Blair on July 14, 2005.
Ex. G-11; G- 14, photo #7. The outer edge of the haul road was about 60 feet from the high.wall.
Broken rocks, or riprap, lay irregularly along the base of the wall, in places extending out ten or
more feet. 1 The smooth portion of the roadway, where travel normally occurred, was generally
no closer than 10 to 15 feet from the wall. However, travel closer to the base of the wall was
possible in some areas because distribution of the riprap was not uniform, and the road was less
than 60 feet wide in places.2

1

Hanson placed rocks that were too large for the crusher along the base of the highwall,
where an excavator with a rock hammer would break them up. That location was used because
there was limited space in the load-out area. The riprap also served to keep traffic away from the
highwall, in furtherance of Hanson's policy that no pedestrian or vehicular traffic should be
unnecessarily close to any highwall. The riprap is erroneously identified as ''riffraff' in the
hearing transcript.
2

After the cones and berm were emplaced, there were a few areas where two haul trucks
could not pass each other. Tr. 325.
28 FMSHRC 1051

Stanley J. Michalek, a supervisory civil engineer employed by MSHA, testified as an
expert in rock fall analysis. Tr. 170-71. He testified that the distance a falling rock would land
from the base of the wall would be about 25% of the height it fell from:, here about 13 feet.
Tr. 218. He also observed·that a falling rock could be deflected horizontally if it struck a
protrusion, the amount of the deflection ·depending upon its velocity. Tr. 235. However,
Michalek and Hanson's expert, Marvin E. Adam, stated that there were no protrusions that could
cause significant deflection to·rocks falling from the highwall.3 Tr. 237~ 303. Michalek also
believed that a falling rock might roll out away from the highwall, but generally agreed that the
20-foot set-off established by Blair prohibited travel within the zone of danger and was
appropriate for the conditions. Tr. 235-39.
Despite Blair's concerns, falling or rolling rocks presented little hazard to the haul truck
operators, because they were located seven.,-ten feet off the ground and approximately 12-13 feet
from the passenger side of the truck, ie.,"oritside the zone of danger. 4 Tr. 188-89; ex. R-4;
However, the road was also used bysinaller vehicles. The person responsible for conducting the
daily workplace examination of the highwall typically drove along the Toad in a pickup truck.
Maintenance vehicles would als9 occasionally use the road. Those vehicles could travel within
the zone of danger, and falling or rolling·rocks would-pose a hazard to operators of a small
vehicles, which afford relatively little protection. A front-end-loader-and an excavatoralso tised
the road. Both pieces of equipment were operated while facing the highwall. The excavator was
used to break the larger rocks, and-the loaders scooped up the broken rocks for transport to the
crusher. While the loader operator was outside the zone of danger, a rock falling on. the bucket
or arms of a loader could severely jar the operator, and possibly could slide or roll down the
loader's arms and strike the operator' s. compartment. . Tr. 189-90.
·
Because miners were permitted to work and travel within the zone of danger presented by
rocks falling from the highwall, and the area was not ·p osted or barricaded; the critical question is
whether the highwall posed a hazard to persons, i.e, whether there was a ·reasonable possibility
that rocks would fall from it.
Stability of the Highwall
Both parties introduced expert testimony on the condition of the highwall face. Michalek,
the Secretary' s expert, did not visit the mine site. His testimony was based upon an examination

3

Both experts agreed that the highwall posed no threat of catastrophic failure, i.e., that
the natural joints of the rock formation were positioned and angled such that the rock face was ·
inherently stable.
4

In addition to being located outside the zone of danger, the truck operators were ..
protected by a canopy, a reasonably effective barrier to falling objects that might strike the
operator' s cab. Tr. 125-27, 188. It also appears that the haul trucks were at least five-six feet
away from the highwall. Tr. 75, 193-94, 204.

28 FMSHRC 1052

of photographs of the wall and infonnation provided by Blair and his supervisor.5 In his opinion,
there were fractures that created detached blocks of rock that "may be in a stable condition right
now, but with the ongoing weathering process, and vibrations ... it's totally unpredictabie how
long that rock is going to be able to stay up there." Tr. 179. He testified that it was reasonably
likely that environmental factors would cause such rocks to fall at "some time." Tr. 186. When
pressed for a time frame within which rocks could be expected to fall, he stated that it might be
likely that nothing would fall for up to six months, but that it couldn't be predicted with any
certainty, and that it was just as lik~ly to fall now as opposed to a year from now, or even later.
Tr. 210-11. He also testified that it was not necessary to consider specific information on
environmental factors, such as freeze/thaw cycles and the magnitude of vibration or seismic
activity generated by nearby blasting, because."that information isn't significant to there being a
rock fall pot~ntial." Tr. 24.1-42.
Hanson's expert, Marvin E. Adam, a geological engineer, testified as an expert in mining
engineering, specializing in soil and highwall stability. He was called by Hanson the day the
citation was issued, visited the quarry the next day, on July 15, 2005, and examined the highwall.
In his opinion, the fractures in the rock were caused by blasting when the bench had been mined
five years earlier, there was no evidence of movement or jnstability, and the wall did not present
any realistic possibility of rocks falling onto the haul road. Tr. 274. Adam obtained pertinent
weather data, including freeze/thaw information for the mine site. He concluded that weather
factors would not cause movement of any detached blocks. Tr. 290. He also analyzed data
maintained by Hanson that showed the seismic activity generated by nearby blasting, and
calculated the amount of seismic activity that would have been genera~d in the area of the
highwall. He concluded that the relatively low amplitude of seismic activity would not have
been sufficient to overcome the friction holding the granite blocks .i n place, i.e., that vibrations
from blasting would not cause the rocks to move in the foreseeable future. Tr. 298-301.
The critical difference between Michalek's and Adam's opinions is their respective
positions on whether the displacements observed, i.e., the widths of the .vertical cracks, were the
result of the original blasting, or whether they were the product of movement of the blocks over
time. In Adam's opinion, the displacements were the result of the original blasting activity, and
weathering factors and blasting vibration were insufficient to overcome the friction holding the
blocks in place, i.e., they had not moved and would not move. The sum total of Michalek's
testimony is that rocks that have been detached from the main formation will eventually fall to
ground level because they won't "reattach" and have only one way to move, i.e., away from the
wall until they eventually tip and fall. Tr. 185. He candidly admitted that no one can tell
5

I accept Michalek's testimony that formulating an expert opinion on the stability ofa
highwall through an €?X~ation of photographs is an acceptable methodology. Tr. 179-80.
However, Adam testified that he could not ~ve properly formed an expert opinion on the
stability of the highwall without personally examining it, and without obtaining and analyzing
pertinent data on environmental factors. Tr. 272. Michalek~s failure to physically examine the
highwall and pertinent environmental data affects the weight accorded his testimony.
28 FMSHRC 1053

whether the rocks have been moving simply by looking at them. Tr. 396. He identified various
tests that could have been undertaken that would have established whether the rocks were
moving. Tr. 398-99. However, none of those tests were conducted, and there is no objective
evidence establishing whether the cracks had remained static or had grown larger, i.e., whether
the detached blocks were stable or moving. He testified that, if the cracks had been produced by
blasting, they would have been there since·the bench was mined, and that they "may" o~ "may
not" have been "open to that degree." Tr. 251. He also stated that the rocks may not have moved
in the year before the inspection, and may have been in the same condition when Blair inspected·
the highwall in November 2004. Tr. 251.
Other evidence indicates that the 'rocks were stable, as Adam believed. Blair had
inspected the highwall in November of2004, and had not considered it unstable at that time.
Tr. 50. Although he believed that the condition of the highwall had changed by July 2005, he
was unable to identify any specific changes, or any rocks that had fallen from it.6 Tr. 54-55.
Blair was also at the mine in October of 2005, and did not note any changes in the·condition of
the highwall since his July visit, although he may not have carefully inspected it. Tr. 137, 147.
Stewart, who has an undergraduate degree in mining engineering, testified that the highwall had
been scaled in 2002. Tr. 379. He checked the highwall frequently between July and October of
2005, and did not see any problems With it. Tr. 369-71. He reported to Adam that he had never
seen a rock fall from the highwall and was not aware of any rocks having fallen. ·Tr. 291-92.
Gary D. McGaha has worked as an equipment operator for Hanson for five years. He has worked
in proximity to the highwall, and shared responsibility
for conducting
daily workplace
.
.
examinations of the highwall in and around July 2005. At other times, he would check it~
condition as part of his duties as an equipment operator. He testified that he had never seen any
material sloughing off of the highwall, had·not seen any structuraf problems with it, and had not
seen any areas in need of scaling. Tr. 317~ Michalek and Adam agreed that freshly·fallen granite
rocks could be identified because they would be a different color, i.e., less-weathered, and that
the place they had fallen from would be similarly identifiable. Tr. 198, 270-72. In his inspection
of the highwall, Adam did not see any evidence that rocks had fallen in the past year. Tr. 270-72,
275-76. No other witness contradicted his testimony.

In an enforcement proceeding under the Act, the Secretary has the burden of proving all
elements of an alleged violation by a preponderance of the evidence. In re: Contests of
Respirable Dust Sample Alteration Citations, 17 FMS:HRC 1819, 1838 (Nov. 1995), ajf'd, Sec '.Y
ofLabor v. Keystone Coal Mining Corp., 151F:3d1096 (D.C. Cir. 1998); ASARCO Mining Co.,
6

Blair was a relatively new mine inspector, and had extremely limited experience with
granite mines. He had worked with limestone, a sedimentary rock that has different
characteristics than granite, an experience that, in Adam's opinion, could lead him·to reifch
erroneous conclusions about the stability of a granite highwall. Tr. 264, 277-78. A.t the time of
his inspection, Blair did not know that Hanson had placed the riprap at the base·ofthe wall. It is
highly likely that he erroneously believed that at least some of it had fallen from the highwall.
Tr. 140-43.
28 FMSHRC 1054

15 FMSHRC 1303, 1307 (July 1993); Garden Creek Pocahontas Co., 11FMSHRC2148, 2152
(Nov. 1989); Jim Walter Resources, Inc., 9 FMSHRC 903, 901(May1987).
On the whole, the Secretary's evidence tended to establish only that, in theory, detached
rocks had the potential to move and might eventually fall at some point in time. There is no
evidence that any rocks had fallen from the high.wall in the five years since it had been mined.
The Secretary did not offer scientific testing or other evidence that could have established
whether the rocks had moved or were stable. It may be that the rocks would have eventually
found their way to ground level if the high.wall had remained undisturbed. But, it appears more
likely that the time frame for such activity would have been in the tens of years, as Adam
testified, and that there was no realistic possibility of rocks fallin_g from the face of the hjghwall
and presenting a hazard to miners in July 2005.

I find that the Secretary has failed to carry her burden of proorOn. this violation.
Specifically, it has not been established by a preponderan~~ 9fthe evidence tha,t the condition of
the high.wall was a hazard to persons. See Cyprus Tonopah Mining Corp., 15 FMSHRC 367,
370-73 (March 1993) (:finding of violation affirmed on evidence that material on a high.wall not
only had the potential to move, but was, in fact, moving, and a considerable amount ofmaterial
had fallen, filled catch benches and reached the bottom of the pit where miners were working).

.ORDER
Citation No. 6113853 is hereby VACATED, and the petition is hereby DISMISSED.

Distribution (Certified Mail):
Ann Paschall, Esq., Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street, S.W.,
Room 7Tl 0, Atlanta, GA 30303
Adele L. Abrams, Esq., Law Office of Adele L. Abrams, PC, 4740 Corridor Place, Suite D,
Beltsville, MD 20705
/rnh

28 FMSHRC 1055

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

December 7, 2006
ELMORE SAND & GRAVEL, INC.,

EQUAL ACCESS TO JUSTICE

Applicant

PROCEEDING
Docket No. BAJ 2006-01
Formerly SE 2005-48-M

v.
SECRETARY OF LABOR,

Mine ID 01 -01138

MINE SAFETY AND HEALTII
ADMINISTRATION (MSHA),
Respondent.

Scott Pit

DECISION
Appearances: George W. Walker, ill, Esq., & J. David Martin, Esq, Elmore Sand & Gravel, Inc.,
Montgomery, Alabama, for the Applicant;
Heather A. Joys, Esq., Office of the Solicitor, U.S. Department of Labor, Atlanta,
Georgia, for the Respondent
Before:

Judge Weisberger

Introduction
This proceeding is before me based upon an Application for Award of Fees and Expenses
under the Equal Access to Justice Act, 5 USC§ 504 ("BAJA"). On July 19, 2006 a decision was
issued in the underlying civil penalty proceeding, Elmore Sand & Gravel, Inc., 28 FMSHRC 631,
(July 2006), ("the decision") The decision, inter alia, dismissed the citation that had been issued
to Elmore Sand & Gravel, Inc. ("Elmore"), alleging a violation of 30 C.F.R. § 56.14100(c).
Thereafter, Elmore filed an application for fees and expenses on the basis that it had prevailed in
the civil penalty proceeding and that the Secretary's position on the citation at issue was not
substantially justified.

28 FMSHRC 1056

I.

The Mine Act Civil Penalty Proceeding

On December 20, 2003, Donnie Ziegler, one ofEhnore's haul truck drivers informed
Derrell Sanders, another haul truck driver, that he was going to check the brakes on the haul
truck. Zeigler pulled the truck forward approximately twenty feet with the bed fully raised. The
bed on the truck was observed lowering slowly. Sanders saw Ziegler pinned under the dump
bed, and immediately went into the cab of Ziegler's truck to raise the dump bed off Ziegler.
Sanders moved the joystick1 inside the cab to the raise position, and raised the dump bed off
Ziegler.
Subsequent to the accident, it was observed that the harness containing electric wires that
ran from the cab of the truck to the dump bed was not intact; that the end that was connected to
the cab appeared to have been severed; that the end attached to the dump bed ended in butt '
connectors; and that a piece of the harness of indeterminate length was missing between. the
severed end, and the butt connectors.
On December20 through 23, MSHA Inspector, Eugene Hennen, conducted an
investigation of the accident, and performed various tests
the equipment that was involved ..
Based on these tests, and on assumptions that the harness waS disconnected at the.time of the
accident and that the joystick was in the hold position, Hennen opined that prior ~o the accident
the wiring harness was disconnected causing the dump bed to not operate properly when the
joystick was in the hold position.
'

on

On January 12, 2004, subsequent to investigation, the Secretary issued a citation to
Elmore alleging a violation of30 C.F.R. § 56.14100(c). 'Subsequently, the Secretary filed a
petition for assessment of a civil penalty, and an answer thereto was duly filed by Elmore. The .
matter was heard on November 8 and 9, 2005.

In the penalty proceeding, the Secretary argued that it established the existence of a defect
under Section 56.14100(c), supra. in that before the accident the wiring harness had come lo<?se,
creating an open circuit that disabled the joystick, the body-up switch, and the warning light. In
support of this assertion, the Secretary alleged that it established that the wiring harness had
come loose before the accident, which disabled the joystick, the body-up switch, and the warning
light. The penalty proceeding decision ("the decision") rejected the Secretary's arguments and
held that the Secretary ". . . failed to establish, by a preponderance of the evidence (emphasis
added), that the harness wires had become loose prior to the accident on December 20." 28
FMSHRC, supra, at 640.

1

If the joystick is placed in either the raise or lower position and the operator releases the joystick
it will go to and remain in the hold position, and the bed will not come down. If the joystick is
placed in the float position and thejoystick is released, it will remain in the float position, and the
weight of the dump bed will cause the bed to lower.
28 FMSHRC 1057

A.

The Secretary's Position in the Civil Penalty Proceedin~·

fu support of its position that the loose wiring disabled the joystick, the body-up .switch,

and the.warning light prior to the accident, the Secretary relied on the testimony of Hennen
regarding the relationship between a severed wire, and the failure of the dump bed to operate ·
properly in the hold position. The decision, 28 FMSHRC, supra. at 641-644, quoted Hennen's
testimony, and found that the testimony was confusing and lacking in clarity and thus lacking in
probative value.
fu support of its position that the joystick was in the hold position at the time of the
acciden~, but that the bed did not hold in that position, the Secretary relies on the testimony of

Sanders. He testified that when he entered the cab immediately after the accident and used the
joystick to raise the bed, it was in the hold position. However, the decision accorded little
probative weight to Sanders' testimony, due to its lack of clarity and nwnerous inco~isJencies.
The Seeretary also relied on tests conducted by Hennen relating to the operation of the dump
bed, along with discussions the latter had with the manufacture of the truck, which provided the
bases for his opinion that a break in the wiring harness·prior.to the accident, caused·the dump
bed to not operate properly when the joystick was in the hold position. 28 FMS:HRC, supra, .at
647-648. fu the decision, various inconsistencies in the record were noted 3.long with
.
admissions of Hennen elicited .on cross-examinations that the bed came down only once.when
the joystick was in the hold position. It was con,cluded that the tests were insufficient to support
Hennen's opinion that a'break in the harness caused the bed to come.down when the joystick
·was in the hold position. Further, it was found that testimony regarding tests perfonned by
Elmore, which were not consistent with Hennen' s tests, was not impeached or contradicted,
diminishing the weight to be accorded his tests. The decision held that the Secretary had not
established a violation under Section 56.14100(c), supra, in that it failed to meet its burden of
proof of establishing that prior to the accident the harness wire running between the dump bed
and truck had become loose, and would have caused the truck bed to come down after it was
raised and the joystick was placed in the hold position. 28 FMSHRC, supra, at 649. Thus it
was concluded that the Secretary failed to establish that prior to the accident a defect existed that
made continued operation of the truck at issue hazardous to persons, and the citation at issue
was dismissed. 28 FMSHR.C, supra at 649.
Il.

The EAJA Proceedine
Elmore's application alleges that its net worth and number of employees is below that
required for eligibility for an award under BAJA, and that the Secretary~s position was not
substantially justified. The application seeks fees and expenses in the amount of$64,576.87.

The Secretary's response asserts that her position in the civil penalty proceeding was
substantially justified. fu addition, the Secretary argues that Elmore's affidavit and unswom
uncertified balance sheets are insufficient documentary evidence to meet its burden of
establishing that its net worth is below the threshold for eligibility under the EAJA.

28 FMSHRC 1058

A.

Elmore's Areuments

As an initial matter, Elmore argues that inasmuch as the decision did not find in the
Secretary's favor on any factual issue that was essential to proof of the·Secretary's case, it
should be concluded that the Secretary's case is lacking in substantial justification. In this
connection, Elmore refers to the Secretary's position that a defect existed in the truck prior to
the accident, in that the wiring harness had become loose which disabled the joystick, the bodyup switch, and the warning ~ight. The validity of this ,position is dependent upon the existence
of the following facts which the decision held were not established: 1) the wiring harness had
come loose prior to the accident, 2) the joystick was in the hold position at the time of the
accident, and 3) that because of the severed harness, the bed would not hold in t4e fully upright
position even when the joystick was placed in the hold position.
Further, Elmore argues that the Secretary's allegation that the wiring harness had
become loose prior to the accident was not substantially justified in fact. Elmore asserts that the
Secretary's position was predicated upon repairs made to the harness prior to the accident. In
contrast, Elmore cites Sanders' statement in a taped interview with MSHA investigators, that
immediately after the accident the wires between the front and back of the dump truck were
"connected good". Elmore also alleges that Zeigler did not report any problems with his truck
in his inspection reports for December 18 and 19, and that he had told Elmore's Safety Director
at the conclusion of the shift on December 19, that ev~rything was running fine. Additionally,
Elmore cites the parties' stipulation that tests performed by Hennen to det~rmine whether the
previous repairs of the harness caused the wires to become shortened and therefore to pull loose
prior to the accident, were inconclusive.
Elmore next refers to the Secretary's sole reliance on Sanders' testimony to establish that
the joystick was in the hold position prior to the accident. In this connection, Elmore cites
conflicting statements made by Sanders regarding the joystick position. Elmore also refers to
the holding in the decision that the Secretary's evidence was insufficient to support this critical
element.
Lastly, E_lmore refers to the Secretary's reliance on testing by Hennen regarding the
operation of the dump truck, which was intended to establish that if the harness is severed and
the joystick is in the hold position, that the dump bed would not stay up in the fully raised
position. In this connection, Elmore cites inconsistencies in Hennen's tests. Also, Elmore
refers to Hennen's admission that the bed came down only once out of twelve times when the
joystick was in the hold position, the dump .fully faised, and the wiring harness was not intact.
Elmore argues that accordingly the results are lacking in significance.

B.

The Secretary's Position

In contrast, it is the Secretary's position, that in essence, its reliance on the testimony of
Sanders to establish that the joystick was in the h_o ld position at the time of the accident is
substantially justified in that Sanders, in statements given to MSHA officials within a few days
28 FMSHRC 1059

of the accident, described the joystick as being in the neutral and not in the float position. Also,
that the Secretary could not have been expected to predict that ultimately it would have been
found in the decision after trial that Sanders' testimony was lacking in credibility. The Secretary
further argues that its reliance on its theory that the wiring harness had disconnected prior to the
accident causing the dump bed to fall even if it was in the hold position, was reasonable. In this
connection, the Secretary asserts that its reliance on inferences from circumstantial evidence was
reasonable. The Secretary notes, in her resp~nse in opposition to Elmore's application, that
subsequent to the accident it was observed·that the wiring harness appeared to have been cut,
that investigations after the accident revealed that the wiring harness ·had been cut or·damaged
several times in the recent past causing the system to malfunction, and that on the day of the
accident Ziegler had said "that the wiring on the truck was messed up". (Secretary's Response,
p. 10) Lastly, the Secretary argues that its reliance on the tests performed by Hennen, her expert
witness, as well as the latter's opinion based on these tests, was reasonable.

C. ·

Discussion

In Contractor's Sand & Gravel Company, 20 FMSHRC 960, 969(September1998) the
Commission set forth the following regarding a prevailliig party's entitlement to attorneys fees
under the EAJA:
·
EAJA provides that a prevailing party may be awarded
attorney's fees unless the position of the United StateS is ·
substantially justified. Cooper v. United States R.R. Retirement
Bd., 24 F. 3d 1414, 1416 (D.C. Cir. 1994). · The Supreme Court
has defined a "substantially justified" position as "justified in
substance or in the main" or one that has "a reasonable basis both
in law and fact." Pierce, 487 U.S. at 565. In Pierce the court set
forth the test as follows: "a position can ·be justified even though it
is not correct, and we believe it can be substantially (i.e., for the
most part) justified if a reasonable person could think it correct,
that is, if it has a reasonable basis in law and fact." Id. at 566 n. 3.
In EAJA proceedings the agency bears the burden of establishing
that its position was substantially justified. Lundin v. Mecham,
980 F.2d 1450, 1459 (D.C. Cir. 1992) (Emphasis added).

1.

Whether the Secretary's Position has a Reasonable Basis in Fact

In the case at bar, Elmore was charged with violating Section 56.14100(c), supra, which
provides as follows:
When defects make continued operation hazardous to persons, the
defective items including self-propelled mobile equipment shall
28 FMSHRC 1060

be taken out of service and placed in a designated area posted for
that purpose, or a tag or other effective method of marking the
defective items shall be used to prohibit further use until the
defects are corrected.

According to the plain language of Section 56.14100(c ), supra, to establish a violation
the Secretary must prove 1) that a defect existed, 2) that the defect makes continued operation
hazardous to persons, and 3) that the defective equipment was not taken out of service.2 It is the
Secretary's position herein that the truck was defective in that before the accident the wiring
harness had come loose creating and open circuit which disabled the joystick, the body-up
switch and the warning light. I note that it is not necessary for the Secretary in this BAJA
proceeding to prove its position. Rather, she need only demonstrate.that her position was a
reasonable one. (ContraCtor's Sand & Gravel, supra, at 973).

a.

The Wirin& Barness Came Loose Prior to the Accident

The Secretary's position that the wiring harness had come loose prior to the accident is
based on inferences to be drawn from the testimony of two of Elmore's employees that on two
occasions shortly before the dat.e of the accident at issue, they repaired.damaged wires within the
harness of the truck at issue by reconnecting tJ:ie wires and placing them in butt connectors
which were then crimped. Also, another Elmore employee told MSHA officials in a taped
interview a few days after the accident, that when he operated the truck in question on four
occasions within the previous week, the bed turned over and he noticed that the wires between
the bed and the truck had come loose. He also stated that the bed was slow coming down.
Further, in another taped interview an Elmore employee, Tommy Finley, who was working on
the same site as Ziegler on the day of the accident, told MSHA officials that the latter had said
that the wiring was "messed up" (JX 3 at 1).
The decision applied the standard of preponderance of.e vidence, and concluded that th{{
Secretary had not established that the wires had come loose prior the accident.3 However, in

2

It is not disputed that, on December 20, 2003, the truck at issue had not been taken out of
sefVlce.
3

The decision took cognizance of various factors in the record that diminished the weight to be
placed on the inferences drawn by the Secretary. It was noted that the record did not contain any
evidence that the repairs prior to the accident were not done properly, or that the reconnected
wire-ends were not secure. Also, it was noted that any statement made by Ziegler to Finley that
the wiring was messed up on the date of the accident was hearsay, that Finley's statement as to
what Ziegler told him was unswom, and that Finley was not called by the Secretary to testify.
Further, it was noted that Ziegler had not reported any problems with the truck in his inspection
reports for December 18 and 19.
28 FMSHRC 1061

this EAJA proceeding, the Secretary need not prove its position by a preponderance of evidence
only that it was reasonably justified. (Contractor's Sand & Gravel, supra, at 973). I find that
the Secretary's position, based upon a combination of facts and inferences, was not
unreasonable.

b.

The joystick was in the hold position prior to the accident

The only testimony relied on by the Secretary consists of the testimony and statements
made by Sanders. Sanders testified that immediately after the accident when he entered the cab,
the joystick was in the hoid position. However, the deeision analyzed the entire record and it
was concluded that the Secretary failed to establish by a preponderance of evidence that
immediately prior to the accident the joystick was in the hold position. 4 The decision noted
inconsistencies in Sanders' description of the position of the joystick describing it as either in
hold or in neutral. Also, it was noted that his testimony regarding the various positions of the
joystick was not consistent with the parties' stipulations.

A finding that a preponderance of all the evidence fails to establish that the joystick was
in the hold position does not oompel a conclusion that the Secretary's reliance on Sanders
statements regarding the position of the joystick was not' reasonable. In this regard, it is not
unreasonable for the Secretary to have relied on Sanders' testimony inasmuch as he clearly
indicated on direct examination that the joystick was in the hold position and not in the float
position, and agreed that he used the tetm the "hold" position ·as being the 'same as the "neutral"
position. Also, the Secretary should not have been expected to anticipate the lack of clarity in ·
the Sanders' testimony that was elicited on cross-examination, or how the decision after hearing
:
··
·
would weigh Sanders' testimony.
Thus, I find that the Secretary has established that it was reasonably justified in its
position that the joystick was in the hold position.
·
·

c.

If the wires are severed the bed will not hold in the fully
upri2ht position even when the joystick is placed in the hold
position.

Ehnore argues, in essence, that the reliance by the Secretary on tests performed by
Hennen and the latter's opinion, was not substantially justified due to inconsistencies in
Hennen's testimony, contradictions between Hennen's testimony regarding the tests and
contemporaneous notes taken by MSHA investigators, Walter Turner and Harold Weeks. Also,

4The decision referred to Sanders' testimony that the joystick would go into the float position
when he released it while powering up or down. The decision found that this testimony was not
consistent with the parties' stipulation that ifthe joystick is released from the lower or raise
position, it will spring back to, or remain in the hold position.

28 FMSHRC 1062

that Hennen admitted on cross-examination that of the twelve tests that he performed, the bed
came down only once with the harness severed, the joystick in the hold position, and the bed
fully raised.
The decision found that the Secretary had not met its burden of establishing that, prior to
the accident, the harness wire that ran between the dump bed came loose and would have caused
the truck bed to come down after it was raised, and the joystick placed in the hold position.
However, the decision, which reasonably could not have been anticipated by the Secretary,
resulted from a de novo review of all the. evidence, and was based upon the standard of the
preponderance of evidence. Thus, the decision is not dispositive of the issue as to whether the
Secretary's reliance on Hennen's tests was reasonable and substantially justified. Clearly,
another fact finder could reasonably have reached a contrary result regarding the weight to be
accorded Hennen's tests and his conversations with representatives of the manufacture of the
truck at issue. Also, another fact finder could reasonable have reached a contrary result
resolving the conflict between Heenen's and Elmore's. test results. I thus find that the
Secretary's reliance on Hennen~ s tests, and his opinion was reasonable.
Therefore, for all of the above reasons, I find that the Secretary's position had a
reasonable basis in fact.

2.

The Secretary's Position Had a Reasonable Basis in Law
a. The Secretary's Position

In essence, it was the Secretary's litigating position that a violation of Section
56.14100(c), is established by proof that the truck in question had a defect that made continued
operation hazardous, and that it was not taken out of service. Elmore argues that the
requirement of Section 56.14100(c), supra, that defective equipment must be taken out of
service, is predicated upon an operator's knowledge of the existence of the defect. Elmore
asserts that there was not any evidence adduced that it had any knowledge of the defect alleged
by the Secretary.
On the other hand, the Secretary relies on a unswom statement by an Elmore employee,
who did not testify, that on the morning of the accident Ziegler had told him that the wiring was
messed up. The Secretary argues that Ziegler's knowledge should be imputed to the operator.
Further, the Secretary cites Rushton Mining Co., 10 FMSHRC 249, 252 (March 1988), which
held that a standard mandating the removal of damaged equipment does not require the
operator's knowledge of the defect. Additionally, the Secretary argues that its interpretation of
Section 56.14100(c) as not requiring the knowledge of the operator, should be accorded
deference, citing Secretary ofLabor v. Excel .Mining, 334 F.3d 1, (D.C. Cir. 2003), Martin v.
OSHRC, 499 U.S. 144, (1991) and Energy Wes.t Mining, v. FMSHRC, 40 F.3d 457, (D.C. Cir.
1994).

28 FMSHRC 1063

b. Discussion

In Contractor's Sand & Gravel Inc., 20 FMSHRC, supra, at 972, the Co.mmission
provided guidance as follows with regard to the standards to be applied in evaluating under the
EAJA whether the Secretary's position had a reasonable basis in law:

... when federal courts inquire as to whether the government's
position was substantially justified on legal ·grounds, they
generally look to federal court of appeals.precedent. United States
v. One 1984 Ford Van,873 F.2d 1281, 1282 (9th Cir. 1989)
(government did not have a reasonable basis in law because there
was no distinction between this case and an earlier Ninth circuit
case); Fraction v. Bowen, 859 F.2d 574, 575 (81h Cir. 1988)
(government's position was not substantially justified because the
government's mistakes were "contrary to clearly established
circuit preeedent"). Similarly, in the administrative law context,
Commission decisions serve as legal precedent, since the role of
the Commission as a reviewing body is ·similar to-that of a federal
circuit court in the judicial setting . . . .
There is not any binding precedent in·support of Elmore's position that actual knowledge
on the part of an operator of a defect is essential to establish a violation ·o(Section 56.14100(c),
supra. Further, this issue was not addressed and resolved.in the decision, inasmuch-ks.the ··
citation was dismissed. Thus, it is concluded that the Secretacy' s legal p·osition that the doctrine
of strict liability applies, is reasonable. Accordingly, I thus .find that the Secretary's position·had
a reasonable basis in law.
D.

Conclusion and Order

Therefore, for all of the ab~~e reasons, I find that the Secretary's position herein was
substantially justified. Based on this finding, I conclude that Elmore has not established
entitlement to attorney's f~es under the EAJA as a prevailing party. Hence, it is Ordered that
the application be Dismissed.

fr);

l---

~eisberger
Administrative Law Judge

28 FMSHRC 1064

Distribution: (Certified Mail)
Heather A. Joys, Esq., Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street,
S.W., Room 7Tl0, Atlanta, GA 30303
George W. Walker ill, Esq., and J. David Martin, Esq., Copeland, Franco, Screws & Gill, P.A.,
444 South Perry Street, P.O. Box 347, Montgomery, AL 36101-0347

/lp

28 FMSHRC 1065

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

December 12, 2006
MARFORK COAL COMPANY, INC.,
Contestant
V.

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

CONTEST PROCEEDING
Docket No. WEVA 2006-755-R
Citati9n No. 7254911; 0611212006

River Fork Powellton #1
Mine ID 46-08914

DISMISSAL ORDER
Before:

Judge Feldman

The captioned contest concerns a citation alleging a violation of section 75 .1100(2)(b),
30 C.F.R. § 75.l 100(2)(b), because of the contestant's failure to provide a fire valve handle
necessary for the connection of a fire hose located along the No. 2 beltline. This mandatory
safety standard requires functional firehose outlets at 300-foot intervals along the entire length of
a belt conveyor.
Marfork Coal Company, Inc. (Marfork) filed its contest of Citation No. 7254911 and then
contemporaneously agreed to stay its contest until the Secretary proposed her civil penalties. 1
Marfork's agreement to stay its contest immediately after instituting this proceeding is identical
to the circumstances that resulted in the dismissal of its contests in Docket Nos. WEVA 2006788-R through WEVA 2006-790-R, 28 FMSHRC 842 (Sept. 2006) (ALJ), appeal docketed
(Nov. 3, 2006), because, inter alia, it has failed to state the reliefit is seeking as required by
Commission Rule 20(e)(l)(ii), 29 C.F.R. § 2700.20(e)(l)(ii).
Marfork asserts it has an absolute and unqualified right to file its contest under section
105(d) without being required to wait to file its contest of the proposed civil penalty under
section 105(a). Opening Br. in WEVA 2006-788-R through WEVA 2006-790-R at p.9.
However, Marfork's "contest" elevates form over substance because, although it styles its filing
as a 105(d) contest - - by routinely agreeing to stay its "105(d) contests" until the Secretary's civil

1

Marfork' s characterization of its action as a request for continuance of a hearing, rather
than a request to stay the proceeding, is a distinction without a difference.
28 FMSHRC 1066

penalty proposal, it indeed is waiting to contest the subject citation in a lOS(a) civil penalty
proceeding. In other words, Marfork is kicking and screaming over being required to do what it
expressly wants to do anyway. Thus, Marfork' s contest is frivolous and an abuse of process.
Accordingly, the captioned contest proceeding IS DISMISSED because by agreeing to
stay this matter rather than requesting an early hearing,2 Marfork has failed to state the relief it is
seeking as required by Commission Rule 20(e)(l)(ii).3

Jerold Feldman
Administrative Law Judge
Distribution: (Certified Mail)
Robert H. Beatty, Jr., Esq., Carol Ann Manunich, Esq., Dinsmore & Shohl, LLP, 2604 Cra.llberry
Square, Morgantown, WV 26508
Glenn M. Loos, Esq., Office of the Solicitor, U.S. Department of Labor, .1100 Wilson Blvd.,
22nd Floor, Arlington, VA 22209
/mh

2

The terms "early hearing" and "expedited hearing" should not be confused. An early
hearing before the Commission.is grant~d in response to the filing of a 105(4) contest when the
operator elects to institute a contest proceeding without waiting for the Secretary's civil penalty
proposal. Energy Fuels Corporation, 1 FMSHRC 299, 307-08 (May 1979). An expedited
hearing is authorized under Commission Rule 52, 29 C.F.R, § 2700.52, upon a showing of
extraordinary circumstances that warrant an expedited adjudication.
3

The September 27, 2006, Dismissal Order currently before the Commission noted that I
would stay, rather than dismiss, other Marfork IOS(d) contests pending the docketing of the
related civil penalty cases. 28 FMSHRC at 847 n.3. While the Commission is not a party to, or
bound by, this ~greement, my forbearance was based on the September 13, 2006, infonnal
agreement between Massey Energy Company (Massey); Marfork's parent company, and the
Secretary. The agreement specified that Massey subsidiaries would refrain, except in unusual
circumstances, from routinely coi:itesting, and then agreeing to stay, all significant and substantial
•
citations until after the civil penalty was proposed. However, despite this agreement, Massey
subsidiaries, such as Aracoma Coal Company, continue to file a multitude of .frivolous 105(d)
contests.
28 FMSHRC 1067

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

December 19, 2006
SECRETARY OF LABOR,
:MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. SE 2003-160
A.C. No. 01-01322-00004

UNITED MINE WORKERS
OF AMERICA,
Intervenor

v.
JIM WALTER RESOURCES, INC.,

No. 5 Mine

DECISION ON REMAND
Before:

Judge Barbour

In this civil penalty proceeding, the Secretary of Labor (Secretary), on behalf of her Mine
Safety and Health Administration (MSHA), petitioned for the assessment of civil penalties for
eight alleged violations of mandatory safety standards for undergro~d coal mines. The
Secretary charged the violations occurred at the No. 5 Mine of Jim Walter Resources, Inc. (JWR)
and that they directly contributed to the causes of two explosions and/9r the resultant deaths of
13 miners. Because of their contributory natures, the Secretary proposed a civil penalty of
$55,000 each for seven of the alleged violations and a penalty of$50,000 for the remaining
alleged violation. The Secretary's proposals were the result of special assessments. See Petition
for Assessment of Civil Penalty, Exhibit A.
·
Following an extensive hearing, I issued a decision in which I found the Secretary failed
to prove six of the alleged violations. The findings were not appealed. 1 I further found she in
part proved two of the violations, but did not establish the violations contributed to the cause of
the accident and/or result~d in the fatalities. I assessed JWR $2,500 for one of the violations and
$500 for the other. The parties appealed.
·
After considering the parties' arguments, ~e Commission ruled that I properly fonnd the
two violations existed. The Commission also upheld my findings regarding the civil penalty

1

The lack of an appeal effectively removed·from consideration. $325,000 of the
Secretary's total proposed penalties of $435,000.
28 FMSHRC 1068

criteria applicable when assessing penalties for the violations. Nonetheless, it vacated the
penalties, instructed me to revisit them, and ordered me to provide a "further explanation" of the
bases for new assessments. 27 FMSRHC at 607; see also Id. at 580.
Subsequently, I orally requested counsels determine whether they could settle the matter
by agreeing to appropriate penalties. After several exchanges of views, counsels advised they
could not. Therefore, in compliance with the Commission.' s directive, new assessments and a
more complete explanation of the penalties follows.2

THE ORIGINAL FINDINGS OF VIOLATION AND PENALTIES
Order No.
7328105

Date
12/11/02

30 C.F.R
Proposed Penalty
75.360(b)(3) $55,000

Orieinal Assessed Penalty
$2,500

Order No. 7328105 stated as follows:
On September 23, 2001, two separate
explosions occurred in 4 Section resulting in fatal
injuries to thirteen miners. The accident investigation revealed that an adequate preshift
examination was not conducted in 4 Section
where persons were scheduled to perform
maintenance wo~k and .install roof bolts during
the oncoming day shift on September 23, 2001.
The examination was incomplete in that an examination of the working places was not conducted
where miners were scheduled to roof bolt the unsupported face areas. The main mine fan had been
off during the previous shift, creating the potential
for methane accumulations in the long crosscuts
between No. 2 and No. 3 Entries as well as in face
areas. The examiner was not made aware of these
circumstances and was instructed by mine
management to limit the examination to the
electrical installations only.

In addition, a hazardous condition consisting of inadequate rock dust existed, but was not identified by
2

I am, of course, aware the decision in this- matter has been the subject of comment,
much of it by those with agendas driven by things other than the facts of the case. This decision
will be more detailed and lengthier than is usual on remand so the few who may be interested in
the facts can have them at hand.
28 FMSHRC 1069

the examiner. The condition was obvious, widespread
and in the areas traveled by the examiner. During the
investigatio~ mine dust samples were collected
throughout 4 Section. These band samples were
subjected to an Incombustible Analysis. The results
revealed that approximately 97% of the sample results
did not meet the regulatory requirements for incombustible content of the combined coal dust, rock
dust and other dust. ... The condition contributed to
the severity and extent of the second explosion that
resulted in fatal injuries. This Order will not be
terminated until hazard recognition training is provided
for certified mine examiners at the No. 5 Mine.
Gov'tEx. 7.
As a reading of the order·reveals, fue Secretary alleged JWR violated section 75.360(b)(3)
in two ways: (1) by limiting the preshift examination for the oncoming day shift on September 23
to electrical installations, thus ensured an incomplete examination of the No. 4 Section; and (2)
by its preshift examiner failing to identify inadequate rock dust applications that existed on the
section. I upheld the order with regard to the first allegatio~ ·but becailse I concluded the
Secretary did not establish the presence of inadequate.rock dust, I vacated the order with regard
to the second. 27 FMSHR:C at 805-806.
Noting section 75.360(b)(3) requires an examination for hazardous conditions in
"[w]or.king sections ... if anyone is scheduled to work on the section ... during the oncoming
shift" (i.e., a preshift examination) and that ''working section" is defined as "[a]ll areas of the
coal mine from the loading point of the section to and including the working faces" (30 C.F.R. §
75.2), I concluded since the·preshift examiner admitted he did not examine the faces, if anyone
was "scheduled to work on the section" prior to the preshift examination, the standard was
violated. 27 FMSHRC at 808.
I further noted that the maintenance crew supervisor, John Puckett, credibly testified that
prior to going underground on September 23, he understood he and his crew were scheduled to
work on the No. 4 section and that the work was scheduled prior to September 23. Based on
Puckett's testimony, I found that JWR scheduled miners to work on the No. 4 Section prior to the
preshift examination, and I concluded that the preshift examiner's failure to examine "all areas of
[the No. 4 Section] ... from the loading point of the section to and including the working faces"
violated section 75.360(b)(3). 27 FMSHRC at 808 . .

28 FMSHRC 1070

The order was cited pursuant to section 104(d) of the Act (30 U.S.~. 814(d)), and the
Secretary consequently charged the violation was a significant and substantial contribution to a
mine safety hazard (S&S) and the result of JWR's unwarrantable failure to comply. I upheld
these findings. 27 FMSHRC at 808-812.
Turning to the gravity of the violation and to JWR's negligence in allowing the violation
to exist, I found that the hazards to miners from failing to oompletely preshift examine the entire
section were serious indeed. I noted the gassy nature of the mine, the fact the fan had been
"down" and the fact electrical an<;i diesel equipment were present. Under these circumstances,
exposing Puckett's crew to the hazards of a less than fully-examined section meant exposing it to
the hazards of a methane-related accident with resulting serious, even fatal, consequences. 27
FMSHRC at 810. I further noted that although the gravity of the violation was mitigated to some
extent by the fact Puckett. conducted· a "supplemental" examination once he was on the section,
the mitigation did not remove the violation from the serious category. 27 FMSHRC at 810-811.
The explosions occurred on the shift following Puckett's shift, and I also noted "the inadequate
preshift examination did not contribute to.the fatalities that resulte<;l .from the explosions." 27
FMSHRC at 812 n. 58.
I next found that JWR's failure to ensure the No. 4 Section was completely examined
before miners were sent to work on the section was indicative of a serious lack of reasonable
care. I observed that Puckett, as a representative of mine managemep.t, was held to a heightened
standard of care, a standard he did not meet when he lead miners onto the No. 4 Section knowing
that the preshift examination was incomplete. I further found that the preshift examiner's
supervisor was negligent in restricting the preshift examination, even though he should have
known that the No. 4 Section was designated as a place miners were assigned to work. 27
FMSHRC at 811.

In assessing a civil penalty of $2,500 for the violation, I took account of the statutory civil
penalty criteria as follows:
[T]he parties stipulated that the proposed
penalties will not adversely affect JWR's ability
to continue in business, JWR is a large operator, and the
company should be credited with good faith, timely
abatement.
27 FMSHRC at 812. In addition, I found the company had a large history of prior violations. Id.
I concluded my consideration of the penalty by stating:
I have found the violation was serious in view
of the types of injuries ... it could have engendered.
I also have found the violation was due to the high
28 FMSHRC 1071

negligence of JWR management personnel. Given
these findings, the company's large size, its large
history of previous violations, its good faith, timely
abatement, and the fact the assessment will nof
adversely affect its ability to continue in business,
I conclude that a penalty of $2,500 is appropriate for
the 'violation.
27 FMSHRCat 812. Finally, I stated, "other violations·ofsection 75.360 cited pursuant to
section I 04(d) of the Act [had] been assessed by the Secretary at similar amounts." Id.

Order No.

Date

7328085

12/11/02

30 C.F.R
Proposed Penalty
75.1101.;,23(c)' $55,000

Original Assessed Penalty·
$500 .

The order charged a violation of30 C.F.R. § 75:1101:.23(c) in that JWR failed to'conduct
fire and emergency drills at intervals of not more than 90 days.· The order, as modified; stated:
On September 23, 2001, two separate
explosions occurred.in 4 Section, resulting in
fatal injuries to thirteen miners. The accident
investigation revealed the operator failed to
conduct fire and emergency-drills at intervals ..
ofnotmore than 90 days. Interviews of underground
miners and a review· of mine records indicate that few
such drills had been conducted since March 2001. · The
lack of training and simulation relative to proper
evacuation procedures to be followed in the event of
an emergency affected the miners' response to the
emergency situation of September 23.
Gov't Ex. 4A; see also Gov't Ex. 4.
In finding a violation, I looked first to the wording ofthe standard. ln0ted that at the
time WJR was charged with the violation, section 75.l 101-23(c) stated in part:
Each operator of an underground coal mine
shall require all miners to participate in fire drills,
which shall be held at periods of time so as to
ensure that all miners participate in such a drill ...
at intervals of not more than 90 days ....
( 1) The operator shall certify by signature and
date that the fire drills were held in accordance with
the requirements of this section. Certifications shall

28 FMSHRC 1072

be kept at the mine and made available on request to
an authorized .representative of the Secretary.
(2) For purposes of this paragraph (c), a fire
drill shall consist of a simulation of the actions required by the approved fire fighting and evacuation
plan described in paragraph (a)(l) of this section.
30 C.F.R. § 75.l 101-23(c). I found this wording clear, and I concluded it required the operator to
ensure all of its miners participated in fire drills at least every 90 days and to certify in writing
that each miner participated. 27 FMSHRC at 819. I further found that the participation and
certification requirements were separate and that non-compliance with the certification
requirement did not automatically establish non-compliance with the participation requirement.
Id.
Jn addition, I found that when the standard stated a drill ''shall consist of a simulation of
actions required by the approved fire fighting and evacuation plan," it mandated an "on-site
imitation of action specified by the.approved plan to be part of the drill." 27 FMSHRC at 819.

Extrapolating from the requirements of the mine's fire fighting and evacuation plan, a
plan adopted by JWR and approved by the Secretary, I further concluded "during a fire drill,
there must be an on-site simulation of a response to a mine fire" and "the miners must go through
the motions of actually carrying out the [fire drill] duties specified in the plan." 27 FMSHRC at
822. In other words, I held the plan required the on-site simulation of fire fighting activities.

I then noted the various dutie.s specified in.the plan (27 FMSHRC at 822), and the
credible testimony of eight miners who stated they had not participated in a fire drill simulating
fighting a fire. I found the testimony "establislie[d] that JWR violated the standard by failing to
ensure [these miners' ] participation in the type of simulated fire drills required by the standard at
least every 90 days." Id. I also concluded there was a general lack of on-site simulations at the
mine. 27 FMSHRC at 823.
The order was cited pursuant to section 104(d) of the Act (30 U.S.C. 814(d)) and the
Secretary consequently charged that the violation was S&S and unwarrantable. I did not affirm
these findings. 27 FMSHRC at 824-826. Rather, I determined the violation was not S&S
because JWR "regularly instructed its miners through other exercises in fire fighting practices
and techniques" and the violation did not relate to the company's failure to conduct all training in
how to confront a fire or in how to respond to a fire emergency, but rather related to the
company's failure to conduct the type of on-site, hands-on drills required by the standard and the
plan. Because of the other types of fire fighting and evacuation instruction and training received
by miners, I concluded it was not reasonably likely failure to conduct the on-site, hands-on drills
would result in injuries to the miners. 27 FMSHRC at 825.

28 FMSHRC 1073

Nevertheless, I viewed the violation as a moderately serious one. While I agreed with the
company that the record confirmed no miner lost his life on 'September 23 due to a lack of fire
fighting training, I noted that the focus of the gravity criterion was on the effect of a hazard if it
occurred and that it was conceivable the effect of not conducting on-site, hands-on fire drills for
all miners would be serious in the event of a fire. 27 FMSHRC at 825.
Turning to the unwarrantable finding, I found the record fully supported concluding the
company did not exhibit a "reckless disregard" for its compliance responsibilities, in that
company personnel honestly believed their fire fighting training and instruction met the
requirements of the standard.3 27 FMSHRC at 826. Weig'.hing the totality.of the evidence, I
concluded that the company was moderately negligent in failing to comply with the standard.

In assessing a civil penalty of$500 for the violation, I took account of the statutory civil
penalty criteria as follows:
[T]he parties stipulated that the proposed
penalties will not adversely affect JWR's ability
to continue in business, JWR is a large operator, and the
company should be credited with good faith abatement ...
In addition ... the company has a large history of prior
violations.

*

*

*

I have found the violation was moderately serious
and JWR was moderately negligent. Given these :findings, ·
the company's large size, its large history of previous
violations, its good faith, timely abatement, and the fact
the assessment will not adversely affect its ability to
continue in business, I conclude that a penalty of $500 is
appropriate for the violation.
27 FMSHRC at 826. Finally, I noted that the assessment was "in a range of other assessments
proposed [by the Secretary] for moderately serious violations that resulted from the company's
moderate negligence." Id. at n. 74.

3

The belief, I noted, was "abetted in no small part" by the Secretary's less-thanclear Program Policy Manual guidelines regarding compliant fire drill practices and by her
longstanding failure prior to the explosions to cite JWR for not conducting proper fire drills. See
27 FMSHRC at 826; see also 823-824; n. 71.
28 FMSHRC 1074

THE COMMISSION'S REMAND
As previously stated, the Commission upheld my finding of a violation of section
75.360(b)(3). 28 FMSHRC at 598-601. It also upheld my finding that the violation of section
75.360(b)(3) was S&S. It observed, because of the failure of Puckett to conduct a complete
preshift examination, "miners ... who accompanied Puckett and those who did not, were
working and traveling through a section that should have been entirely preshifted before they
entered it but was not" (28 FMSHRC at 602) and that "miners were on the section for a
significant amount of time before it had been entirelypreshifted." Id. at 603. The Commission
recognized, because of the lack of a complete preshift examination, the miners were exposed to
the hazards of a possible methane buildup. fu addition, because the record indicated the roof on
the No. 4 Section was subject to prior roof faults and falls, the Commission concluded the failure
to conduct a complete preshift examination also exposed the miners to possible faulty roof
conditions. The Commission agreed with me that the violation was serious in nature. Id. at 603604.
On the issue of unwarrantable failure, the Commission divided evenly. The division left
standing my finding the violation was due to the company's unwarrantable failure to comply with
the standard. The Commission also left undisturbed my finding JWR was highly negligent. 28
FMSHRC at 604-605.
Turning to the violation of section 75.l 101-23(c), the Commission concluded.substantial
evidence supported my finding not all miners participated in the simulated fire drill and fire
fighting .activities required by the approved and adopted plan. 28 FMSHRC at 592-594. The
moderately
Commission also affirmed my conclusion that the violation was not S&S, but
serious. 28 FMSHRC at 597. It noted that none of the fatalities that resulted from the explosions
were the result of the violation and .that although JWR did not provide all miners with on-site
simulated fire drills, as required by the standard and its plan, it regularly instructed its miners in
firefighting practices and techniques and conducted required quarterly fire drills. 28 FMSHRC at
595-596. The Commission also left standing my finding that the violation was the result of
JWR's negligence.
·

wa5

In remanding the matter for reconsideration of the penalties and a more complete
explanation of their bases, the Commission reminded me of its longstanding admonition:

When ... it is determined that penalties are
appropriate which substantially diverge from
those originally proposed, it behooves ... [the
Commission's] judges to provide a su~ficient
. explanation of the bases underlying the penalties
assessed by the Commission.

28 FMSHRC 1075

Sellersburg Stone Co., 5 FMSHRC 287, 290-94. (March 1983). The Commission also noted:
If a sufficient explanation for the divergence is not
provided, the credibility of the administrative scheme
providing for the increase or lowering of penalties
after contest may be jeopardized by an appearance
of arbitrariness.

Id. at 293; 28 FMSHRC at 606-607.
ASSESSMENTS AND EXPLANATION

30 C.F.R

Order No.
7328105

12/11/02

Proposed Penalty

75.360(b)(3) $55,000

Assessed Penalty
on Remand·
$5,000

It is important to again emphasize that the initial proposed penalty of$55~000 was based
in large measure upon the fact that part of the·condition cited as an alleged violation, failure by
the preshi:ft examiner to recognize a hazardous, obvious and widespread inadequate rock dust
application in the areas he traveled, contributed to the severity and extent ofthe secorid explOsion
and resulted in fatal injuries. This allegation was not_proven at trial, and my dismissal of this
part of the orderwas not appealed. · Thus, the only part of-Order 7328105 which coristitUted a
violation was the charge that the p~eshift examiner failed to conduct a presbi:ft examination of the
entire No. 4 Section on ~eptember 23. The incomplete examination did·not contribute to the '
explosions and to the resultant fatalities. Had a penalty been proposed by the Secretary ·as a noncontributory violation, it would have been far, far less than $55,000, and:the facfthat
violation was non-contributmyis a major reason for the "substantial divergence" between the·
amount proposed by the Secretary and the amount I originally assessed.

the

The part of the violation that was proven- the fact that the· preshift examination did not
"cover" the entire section, even though miners were scheduled to roof bolt the unsupported face
areas and to do other work on the section - resulted in miners working in and traveling through a
section that should have been entirely·preshifted before they entered. 28 FMSHRC at 602. In
gauging the nature of the hazard presented by the incomplete preshift examination, I observed the
mine was gassy, the fan had been off, and potential ignition sources existed in the section. Taken
together, I concluded these factors subjected the miners to the danger of being involved in a
methane-related ignition or explosion as normal mining operations continued. 27 FMSHRC at
809-811. The Commission pointed to an additional hazard. It noted evidence of faulty roof in
the No. 4 section and concluded, "[r]oof falls posed another hazard." 28 FMSHRC at 603. The
roof-fall hazard, ·added significantly to the gravity·of the violation, and I should have considered
it when I assessed the penalty.

28 FMSHRC 1076

Further, and as the Commission reminded me in affirming the violation, the preshift
examination requirements are "of fundamental importance in assuring a safe working
enviromnent underground." See 28 FMSHRC at 598 (quoting Buck Creek Coal Co. , 17
FMSHRC 8, 15 (January 1995) and 61 Fed. Reg. 9764, 9740 (March 11, 1996)). They are a
primary means of detecting developing hazards, such as methane accumulations and bad roof.
While all federal health and safety regulations governing conditions and practices in the nation's
mines are·designed to protect the miner, some have more important protective functions than
others. When, as here, a regulation of "fundamental importance" is violated, the gravity of the
violation is increased and, all other things being equal, the penalty assessed should be more than
for the violation of a less import.a nt standard. I did not adequately consider this factor in
evaluating the seriousness of the violation.
With regard to JWR's negligence, I found that two of JWR' s employees failed to meet
the standard of care required of them and that the failure of JWR ''to ensure the No. 4 Section
was completely examined before miners were sent to work on the section was .indicative of a
serious lack of reasonable care." 27 FMSHRC at 811. I, therefore, upheld the inspector's special
finding of unwarrantable failure on the company's part. 27 FMSHRC at 811. I also found the
company's negligence to be "high." Id. These findings were not changed by·the Commission.
Nor have there been changes to the other stipulated civil penalty criteria or to my conclusion the
company has a large history of previous violations. 27 FMSHRC at 812.

In view of the roof fall hazard, the :fundamental importance of compliance with the
preshift requirements to miner safety, JWR's high negligence, and the other penalty criteria, I
conclude that a penalty greater than that which I originally assessed is warranted, and I assess a
penalty of$5000.4

Order No.

Date

7328085

12/11/02

Proposed Penalty . Assessed Penalty
on Remand
75.1101-23(c) $55,000
$500

30 C.F.R

Here, too, the Secretary' s proposed penalty of$55,000 was based upon the fact that the
order alleged the violation " affected the miners' response to the emergency situation on
4

While this penalty also "substantially diverges" from the penalty originally
proposed, the divergence is primarily explained by the fact that the original proposal was based
primarily upon the part of the violation that allegedly contributed to the explosions and the
resultant fatalities, an allegation that I again emphasize was not established at trial. It may be of
interest to some that the revised assessment conforms with and perhaps exceeds what the
Secretary would have proposed for a violation cited under section 104(d), had she believed the
violation did not contribute to the explosions or the resultant fatalities. See e.g., Jim Walter
Resources, Inc., Docket No. SE 2003-161, Exh. A, Narrative Findings of Special Assessment.
(The company's history of previous violations also is instructive in this regard. See Attachment
to Stipulations (printout of previous history)).
28 FMSHRC 1077

September 23" (Gov't Ex. 4) and thus contributed to the fatalities resulting from tµe explosions.
See Narrative Findings of Special Assessment, Docket No. SE 2003-160. I found, however, that
although JWR violated the cited standard to the extent of not pr9viding its miners with the onsite, hands-on fire drills required·by the standard, the violation did not contribute to the fatalities
that resulted .from the explosions, and I found that JWR "regularly instructed its miners through
other exercises in fire fighting practices and techniques." 27 FMSHRC at 825; see., also n. 73 . .
As previously stated, I concluded and the Commission affirmed, the violation was not S&S and
was but moderately serious. 27 FMSHRC at·825; 28 FMSHRC at 597.
I also found the company did not exhibit "reckless disregard" for the compai;iy's
compliance responsibilities under section 75.l 101-23(c) and the violation was not the result of
the company's unwarrantable failure to comply with the standard. 27·FMSHR.C at 826. These
findings were not appealed; nor was my finding that JWR was moderaiely negligent in failing to
comply with the standard. Id. .

The assessment of a penalty for the violation must be' based on what the Secretary proved,
not on what she alleged. Here, her proof was light years .from her allegations.. The fact that the
assessment "substantially diverge[d]" from the proposal, was caused primarily by the Secretary's
equally substantial gap in proo£
The resultant penalty of $500 took into consideration all of the statutory civil penalty.
Given the criteria, which remain unchanged,·! continue to find the penalty appropriate:s

ORDER
JWR is ORDERED to pay a total civil penalty of$5,500 in satisfaction of.the violations
in question. Payment is to be made to MSHA within 40 days of the date of this proceeding.
Upon receipt of full payment, this proceeding is DISMISSED.

J>w10{ &v/~
David [· ;_'Barbour
Administrative Law Judge .
(202) 434-9980

5

Again, it may be of interest to some to lmow the penalty is akin to what the
Secretary would have proposed for a moderately serious, non-contributory violation of section
75.l 101-23(c) caused by moderate negligence. See 27 FMSHRC at 826 n. 74.
28 FMSHRC 1078

Distribution:
Keith E. Bell, Esq., U.S. Department of Labor, Office of the Solicitor, 1100 Wilson Blvd., 22nd
Fl., Arlington, VA 22203
Judith Rivlin, Associate Regional Counsel, UMWA Headquarters, 8315 Lee Highway, Fairfax,
VA22031-2215
TimothyM. Biddle, Esq., Thomas C. Means, Esq., Crowell & Moring, LLP, 1001 Pennsylvania
Avenue, N.W., Washington, DC 20004-2595
David M. Smith, Esq., Maynard, Cooper & Gale, P.C., 1901 Sixth Avenue North,
2400 AmSouth/Harbert Plaza, Birmingham, AL 35203-2618

/ej

28 FMSHRC 1079

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

December 22, 2006
CIVIL PENALTY PROCEEDINGS

SECRETARY OF LABOR,
M1NE SAFETY AND HEALTH
ADMIN1STRATION (MSHA),
Petitioner

"Docket No. WEST 2004-264-M
A.C. No. 45-03224-22959
Docket No. WEST 2004-316-M
A.C. No. 45-03224-25667

v.

Docket No. WEST 2004-345-M
A.C. No. 45-03455-20609
Docket No. WEST 2004-352-M
A.C. No. 45-03224-20531
Champion Pit # 1

WASHINGTON ROCK QUARRIES, INC.,
Respondent

Docket No. WEST 2004-309-M
A.C. No. 45-03455-25761
Docket No. WEST 2005-151-M
A.C. No. 45-03455-44593
Docket No. WEST 2005-307-M 1
A.C. No. 45-03455-53752
King Creek Pit

DECISION
Appearances:

Bruce L. Brown, Esq., U.S. Department of Labor, Seattle, Washington, on
behalf of the Petitioner;
Paul M. Nordsletten, Esq., Davis Grimm Payne & Marra,
Seattle,Washington, on behalf of the Respondent

Before:

Judge Barbour

This docket was not included in the consolidated cases, but was included in the
parties' settlement of violations addressed as a result of the consolidation. Therefore, the docket
is included in the caption.
28 FMSHRC 1080

These cases concern proposals for the assessment of civil penalties filed by the Secretary
of Labor (Secretary) on behalf of her Mine Safety and Health Administration (MSHA) pursuant to
section 105(d) of the Federal Mine Safety and Health Act of 1977 (30 U.S.C. § 815(d)) (the Act).
She seeks civil penalty assessments for 35 alleged violations of mandatory safety standards found
in Part 56, Title 30, Code of Federal Regulations ("30 C.F.R.").2 The violations allegedly
occurred at two facilities operated by Washington Rock Quarries, Inc. ~Q), Champion Pit
No. l (Champion Pit) and King Cree~ Pit (King Creek). The cases were heard in Tacoma,
Washington. At the close of the hearing, the record was left open to accommodate the telephone
testimony of a witness. Following the talcing of that testimony, the record was closed, and the
parties submitted post-hearing briefs.

STIPULATIONS
At the Tacoma hearing, the parties agreed to the following stipulations:
1. [MSHA] has jurisdiction over the mines involved in the
citations;
2. [The Administrative Law Judge] has jurisdiction to hear
[the] matter[s];
3. Annual hours worked at the mine[s].in each of the years
2002, 2003 and 2004 was over 30,000 hours, but less
than 60,000 [3 ], and;
4. Imposition of the combined proposed assessments will
not adversely impact [WRQ' s] ability to stay in business.

See Joint Exh. 1 at 1-2; Tr. 16. In addition to the stipulations, the parties agreed to the accuracy of
a report containing WRQ's history of previous violations (Tr. 188; Gov. Exh. 29).4 They also
agreed WRQ timely abated all of the alleged violations. Tr. 15.

2

Prior to the hearing, the parties settled 23 of the alleged violations, and I will
approve that settlement at the close of this decision. Tr. 11.
3

Counsel for the Secretary stated that the numbers are indicative of a small. mine.

Tr. 189.
4

The report sets forth what counsel for the Secretary describes as a "small to
average" history. Tr. 189.
28 FMSHRC I 081

WRO'S OPERATIONS
Harry Hart, the president of WRQ for the past 15 years, described the two quarries. Hart
was involved personally in the design and construction of both facilities. At Champion·Pit, basalt
is extracted by drilling and blasting. King Creek, on the other hand, is a sand and gravel
operation. TR 194-195. Champion Pit opened in 1990. King Creek opened in 1998.:Jd. The land
on which the mines are located, and much of the land surrounding the mines, is owned by the
International Paper Company (International Paper). WRQ pays International Paper a royalty on
each ton of material it removes from the two sites. Tr. 196.
DOCKET NO. WEST 2004-352-M
Citation No.
6350795

Date
1/13/04

30 C.F.R. §
56.16006 s .

Citation No. 6350795 states:
The acetylene, oxygen and [a]rgon mixed gas cylinder
valves, on the [F]ord maintenance truck- . . . were not
protected by covers during transport. The mixed·gas
valve was about 18 inches above the cab of the pickup and the acetylene, oxygen valves were about 4
inches off the side and 5 inches above the cab ofthe
truck without being protected. This creates the '·
hazard of the valves breaking when accidentally hit
and for serious injuries to occur. The maintenance
truck is used on a daily basis for repairing mobile
equipment.
Gov. Exh 3.
Ron Jacobsen is a MSHA supervisory mine inspector. He works in the agency's Boise,
Idaho office. Prior to taking the position in Boise, Jacobsen worked as an inspector in the
5

Section 56.16006 states:
Valves on compressed gas cylinders shall be
protected by covers when being transported or
stored, and by safe location when the cylinders
are muse.

28 FMSHRC 1082

agency's Belleview, Washington, office. He has been employed by MSHA since 2001.
On January 13, 2004, Jacobsen traveled tq the Champion Pit to conduct a general
inspection of the mine. After arriving at the mine, Jacobsen met Jerry Joliffe, the mine foreman.
Jacobsen testified that as he and Joliffe were standing near the mine office, Jacobsen noticed a
Ford pickup truck drive up. The truck was carrying compressed gas cylinders. The cylinders
lacked protective covers. Tr. 32-33; see also Tr. 360. Jacobsen photographed the truck. Tr. 33;
Gov. Exhs. 1, 2. Because the cylinders were being transported without covers, Jacobsen believed
the cylinders were.not protected as required by section 56.16006. Tr. 36.
Jacobsen explained that when cylinders are transported without covers, there is a danger
that the valves at the top of the cylinders will be dislodged, .which in tum will lead to the cylinders
blowing up or to them being propelled like missiles. Tr. 37. Such accidents can cause fatal
injuries to the vehicle driver or to anyone standing nearby. However, in Jacobsen's opinion,
accidents involving the subject cylinders were unlikely because the cylinders did not have to pass
under low clearances at the mine, and there was nothing that might hit the top of the cylinders and
damage them. Id., 40, 42. Moreover, Jacobsen had ''no doubt" (Tr. 43) the cylinders were
securely held in place on the truck because they were placed in semicircular metal cradle~. Tr. 39;
Gov. Exhs. 1 and 2. Still, in Jacobsen's view, the company violated the standard by transporting
the cylinders without covers. Jacobsen spoke with the maintenance mechanic who told Jacobsen
that he (the mechanic) never heard of section 56.16006. The mechanic thought that securing the
cylinders ip the cradles was sufficient. Tr..38, 40.
As a result of what he saw and was told, Jacobsen issued the subject citation. He believed
the violation was the result ofWRQ's negligence. The citation was abated when covers were
placed over the cylinders' valves. Tr. 40.
Harry Hart explained that WRQ obtained its compressed gas bottles from a welding
supplier. When the bottles arrived at WRQ's shop, which is on mine property, they were
protected by covers. Tr. 197. He further explained that when the bottles were placed on WR.Q's
service truck, they were put in the cradles. Hart added that the cradles were bolted to the truck
frame and the bottles were secured further with chains "so they can't fall over." Id. The cradles
were designed for the truck. Tr. 198. Hart described the cylinders as being located "below where
anything would hit them." Tr. 201.
Hart added that the bottles remained upright and secured in the truck's cradles until they
were used. Tr. 201; see also Tr. 200. Once the bottles were taken off the truck, the covers were
removed and gauges were installed. When the bottles were empty, the covers were replaced, the
bottles were put back on the·truck, and they again were chained. Tr. 198.
WRQ used the truck to transport liquid.gas cylinders since 1992or1993. Tr. 200. Prior to
the subject citation, WRQ never was cited by MSHA for any condition relating to the cylinders'
transportation. Tr. 198.

28 FMSHRC 1083

THE VIOLATION
I conclude the violation existed as charged. The parties do not dispute that the cylinders
contained compressed gases. Section 56~ 16006 requires the cylinders' valves to be protected by
covers when the bottles are transported or stored. Jacobsen testified that the cylinders were being
transported on the truck and that they did not have covers. Tr. 37, 360. Hart, who was present,
along with Jacobsen and Joliff, stated the truck was parked, and it was "not OU:s] recollection" the
truck was moving and was transporting uncovered cylinders. Tr. 202. However, Jacobsen was
certain about what he saw, and I credit his version of the facts. Therefore, I find the cited
cylinders were being transported without protective covers in violation of section 56.16006. I also
note even if the truck was parked, as Hart maintained, I still would find a violation. Hart' s
testimony made clear the cited cylinders were stored on the truck until they were ready to be used.
Tr. 198-200. The storage of full cylinders without protective covers is also a violation of the
standard.
·

. GRAVITY AND NEGLIGENCE
The violation was not serious because there was little likelihood it would result'in an
injury-causing accident. Both Jacobsen and Hart noted the cylinders were secured in cradles on
the truck. Tr. 43, 197-198. Moreover, Jacobsen testified there were no low clearances under
which the truck had to pass and, thus, no obstructions·that might damage the cylinders' ·
unprotected valves (Tr. 37, 40, 42). The essence of Hart's testimony as to the violation' s gravity
was consistent with Jacobsen's. Tr. 198-201.

In transporting the uncovered cylinders, WRQ failed to meet the standard of care required
of a reasonably prudent mine operator. The lack of protective covers·was visually obvious.
Management personnel knew or should have known the covers were missing. Therefore, I find
the company was negligent in failing to elliiure the presence of the required covers.
DOCKET NO. WEST 2004-316-M
Citation No.
6350797

Date
1113/04

30 C.F:R. §
56.14112(b) 6

Citation No. 6350797 states:

6

Section 56.14112(b) states:
Guards shall be securely in place while machinery
is being operated, except when testmg 'arid making
adjustments which cannot be perfomied without removal
of the guard.

28 FMSHRC 1084

The guard of the tail pulley of the #2 feed conveyor
was not secure. Nor was there a bottom guard on
this conveyor. The guard was not secure on the
bottom and was just hanging down over the tail
pulley. This exposes miners to entanglement
hazards that could cause serious injuries. The area
is accessed when the plant is off and clean-up is
conducted with a bobcat.
Gov. Exh. 5.
Jacobsen testified when he inspected the No. 2 Feed Conveyor tail pulley, he noticed the
guards for the pulley consisted of overlapping pieces of conveyor belt material. Tr. 45. The top
piece of material covered the upper part of the tail pulley and the lower piece covered the lower·
part.
Jacobsen recalled the conveyor belt was moving "at a high rate of speed". Tr. 50, see also
Tr. 47. He was concerned because the pieces of the guard 'w ere "only secured with a bolt at the
top" and because the top part of the guard was hanging in such a manner as to create a four-inch
wide gap between the inside edge of the top piece of belting and the frame of the pulley. Tr. 47.
He also was concerned about the use of belting material as a guard. While he agreed the material
was accepted by MSHA for guarding purpos.e s (id.), in his view the material did not make "a
strong guard." Tr. 46.
Jacobsen stated section 56.14112(b) is des~gned to prevent persons from contacting
moving machine parts. Tr. 49. Jacobsen believed a violation of the standard existed because the
top of the guard was "flimsy" and a person could push through the belting if he or she fell toward
the pulley. Tr. 55-56. The bottom part of the guard also was "flimsy" and a person shoveling
could push through it and the shovel and shoveler could be pulled into the pulley. Tr. 50, 56.
Jacobsen further thought the four-inch gap "could be part of the violation". Tr. 56.
Jacobsen acknowledged, however, that an injury was unlikely. Tr. 49-50. Someone told
him the area was only accessed by miners when the equipment was not operating. Tr. 58.
With regard to negligence, Jacobsen stated that the condition of the guards "wasn't real
obvious" and that WRQ was only moderately negligent in allowing the violation to exist. Tr. 51.
Hart disagreed about the strength of the belting. According to Hart, the material was
"extra heavy-duty ... one inch thick belt, five-ply." Tr. 204. Because the conveyor material from
which the guards were constructed was very stiff, he believed if a person pushed or fell against the
top guard, the person would not be able to move the guard and encounter any moving machine

28 FMSHRC 1085

parts. Tr. 204, 206. 7 Hart testified that the cited guards were installed in 2001 at MSHA's
suggestion and that they never were previously cited. Tr. 208. ·He added that miners did not work
near the pulley, nor walk within five feet of it while ·the conveyor belt was running. Tr. 205, 209.
To abate the condition, WRQ secured the top piece of belting with additional bolts and
closed the four-inch gap. Tr. 51-52. Jacobsen could not recall what else, if anything, WRQ did.
Tr. 52, 58.
...

THE VIOLATION
The standard requires guards to be "securely in place when machinery is being operated."
30 C.F.R. §56.14112(b). I accept Jacobsen's undisputed testimony that the conveyor belt was
moving. Tr. 50. I infer from the fact the four-inch gap was closed by using addition bolts to
secure the top piece of belting (Tr. 51-52) that the guard was not "securely in place when the
machinery [was being] operated," and I, therefore, find the violation existed as charged. Tr. 51-52.
It seems clear to me that if a guard provides access that can be eliminated by better affixing it, it is
not "secured in place." Here, tightening the ·g\iar4 to the frame of the tail pulley eliminated the
gap that provided access to the pullefs·moving parts:·
·
The finding of violation is in no respect based on the material WRQ us.ed for guarding. As
Jacobsen and Cain acknowledged, while MSHA has qualms about guards made with conveyor
belting, the agency allows its use. Nor is the violation based oil an allegation the gu~ds were
flimsy. Jacobsen did not physically test the guard.

GRAVITY AND NEGLIGENCE
The violation was not serious. Jacobsen was told, and did not dispute, that shoveling in
the vicinity of the pulley took place only when the equipment was not operating. Tr. 58. Hart also
testified miners neither walked nor worked adjacent to the pulley when it was operating. Tr. 205,
209. Jacobsen believed, that an injury-causing accident resulting from the violation was unlikely.
Tr. 58. Jacobsen's assessment of the situation accurately reflects the testimony, and I accept it.
The violation was visually obvious. An inspection should have revealed the gap. I infer
from this that ifWRQ had exercised reasonable care, it would have detected and corrected the
condition. fu failing to do so, it behaved negligently.

7

Another view oii the merits of the belting material was expressed by supervisory
mine inspector Stephen Cain, who explained that although it is pennissible to use ·belting, the ·
material is pliable and does not "offer the same measure of protection as guards made of metal
mesh." Tr. II 13.

28 FMSHRC 1086 ·

DOCKET NO. WEST .2004-352-M
Citation No.
6350798

Date

1113/04

30 C.F.R. §
56.14112(b) 8

Citation No. 6350798 states:
The guard to the tail pulley of the surge tunnel conveyor
was not secure on the bottom. This exposed about a 4 inch
opening to the tail p:ulley,.and entanglement hazards that
could cause serious injuries to a miner. The area is accessed
when the plant is off and clean-up is conducted with a bobcat [a small front end loader].
Gov. Exh. 7.
During the inspection., Jacobsen noticed ,t hat the tail pulley guard on top of the surge
tunnel conveyor belt was '1;ianging loose." .Tr. 59; see Gov. Exh. 6. Only the top part of the guard
was attached to the frame of the belt, creating a triangular gap between the frame and the guard.
Jacobsen measured the gap at the base of the triangle and found it to be four inches. Tr. 60, 66-67.
The belt was running. Jacobsen did no~ attempt to move the guard, but he noticed that the tail
pulley was ~xposed through the gap. Tr. 60-61.
Jacobsen believed the loose guard was a hazard, because a miner could get an arm or a
hand through the gap and could be caught by the pulley. Tr. 62, 64. He also noted the area near
the guard was muddy and that a miner could slip, fall toward the gap, and his or her arm or hand
could pass through the gap into the hazardous area. Tr. 65. Such an accident ''would remove [the
miner's] arm or hand." Tr. 64.
However, Jacobsen viewed an accident as unlikely. Tr. 62-63. He believed he was told.the
area near the pulley was not regularly traveled, and his visual observation of the area confirmed
this. Tr. 62-63, Tr. 70. He also thought he was told miners were in the area only when the
equipment was shut down. Tr. 62-63.
In Jacobsen's opinion, the company was moderately negligent. He again noted the area
was not regularly accessed, and he recalled company officials telling him that the condition "may
have just happened." Tr. 64, 72.
Hart testified, to his knowledge, bolts never were used to fasten the sides of the guard. The
guard had been as Jacobsen found it since 2000, and the condition never was previously cited. Tr.

8

The standard is set forth in n. 6 supra.

28 FMSHRC 1087

213, 214, 216. Hart agreed that the opening between the guard and the tail pulley frame was
approximately four inches at its widest point. Tr. 211-212; see Gov. Exh. 6. Because the tail
pulley was located approximately one foot behind the guard, Hart did not think it possible for a
miner accidentally to contact the ·pulley if he or she were to fall nearthe guard. Tr. 214. Access
was available only through the widest part of the gap, which was at the bottom of the guard.
Because the tail pulley was mounted at an angle, to reach its moving parts from the bottom, "you
would have to be on your knees and you would have to stick your arm in and then turn your arm at
a 90-degre~ tum to get to [the] ... pulley." Tr. 215.
·
·
WRQ's expert witness, Kim Redding, a former MSHA inspector and a current private
mine safety and health consultant (see WRQ Exh. 21 ), believed the only contact possible was
intentional contact. Tr. 308. However, Redding was not present on the date of the inspection and
only saw the tail pulley after the alleged violation was abated. Tr. 305.

THE VIOLATION
As I have noted, the standard requires guards · ~o be "securely fu place when machinery is
being operated." Jacobsen's testimony that the tail pulley was operating when he conducted the
inspection was not disputed. Tr. 61: Also essentially undisputed was the existence of the gap,
which measured up to four·inches between the frame of the tail pulley and the guard. Tr. 60, 6667, 211-212; Gov. Exh. 6. While contact with the pulley was difficult, it was not impossible, and
I find the presence of the gap violated the standard. In this instance, being "securely in place"
means that the guard should have been snug against the .frame of the tail pulley. To find otherwise
would defeat the purpose of the standard by allowing entry to the moving pulley parts.

GRAVITY AND NEGLIGENCE
Like the inspector, I conclude the violation was not serious. The testimony established
miners in.frequently visited the area. The testimony also pennits finding when they visited, the
conveyor belt usually was shut down. In addition, as the citation states, ·miners most often cleaned
in the vicinity of the pulley with a bobcat. Nevertheless, common sense dictates that as mining
operations continued there would be times when miners were on foot in the area and the belt was
running. Belts that are "always" shut off when miners are present sometimes are not, and
equipment .from which miners "always,, work sometimes malfimctions. This stated, there was
only a remote possibility a miner who was on foot in the vicinity of the pulley would actually
contact its parts. Hart's description of the contortions required for such contact was not refuted
(Tr. 214-215), and although the focus of the civil penalty gravity criterion is on the effect of the
hazard were to occur (Consolidation Coal Company, 18 FMSHRC 1541, 1550 (September
1996)), the criterion also has a "likelihood" component, which in this instance mitigates the
seriousness of the possible result.

28 FMSHRC 1088

As for the company's negligence in allowing the violation to exist, I agree with the
inspector that the lack of regular travel in the area by management personnel militates against
finding more than moderate negligence on the company's part. Tr. 64. In addition, the relatively
small size of the gap and the fact that the company never was previously cited for a guarding
violation with respect to the subject pulley further lessens WRQ's neglect. Tr. 216.
Citation No.
6350799

Date
1/13/04

30 C.F.R. §
· 56.14107(a) 9

Citation No. 6350799 states:
The 2 by 2 belt has an inadequate guard on the tail-pulley. The
conveyor is about 4 feet off the ground, has an 8 inch opening
on the back, and a 12 inch exposure on the bottom. This creates
entanglement hazards to miners that access the area when the
equipment is off.
Gov. Exh. 8.
Jacobsen testified that upon examining the tail pulley for the 2 by 2 belt on the ballast
stacker, he noticed the pulley was lacking a bottom and a rear guard. Tr. 73; See Gov. Exh. 8. In
Jacobsen's opinion, the lack of guarding endangered miners because they might contact the
moving parts of the pulley. Tr. 74-75. His memory refreshed by contemporaneous notes,
Jacobsen recalled that the tail pulley was located approximately four feet off the ground, which,
he believed, meant that the pulley's unguarded bottom parts could be "easily accessed." Tr. 75.
Jacobsen noted that material occasionally built up under the pulley an<;l to be rid of the material, a
miner would "use a shovel to try to cle<U" ... [it]." Tr. 361; see also Tr. 75, 83. Jacobsen feared a
miner doing this work accidentally would contact moving parts, which would "gri,lb [the shovel
handle] and pull [the miner] up into [the pulley]" (Tr. 361); or, he or she would inadvertently
reach up and his or her hand would be caught in the pulley. Tr. 84. In either case, the miner's
fingers, hand or ann could be lost. Id.
·
However, Jacobsen did not believe contact was likely because the unguarded openings on
the rear and underside of the tail pulley were restricted in size. Tr. 76-77; see also Gov. Exh. 8-A.
Moreover, Jacobsen was told by management personnel that the tail pulley was not accessed while
it was operating and that the area in which the equipment was located was not regularly traveled.

9

30 C.F.R. § 56.14107(a) states:
Moving machine parts shall be guarde4 to protect
persons from contacting gears, sprockets, chains, drive,
head, tail, and takeup pulleys, flywheels, couplings, shafts,
fan blades, and similar moving parts that can cause injury.
28 FMSHRC 1089

Tr. 77. In addition, he admitted he never was told miners ·d eaned with shovels at the mine, nor
had he ever seen miners do so. Tr. 361.
Hart testified that access to the pulley was impossible. He emphasized the pulley was one
foot behind the guard. He added the opening about which Jacobsen was concerned and which
Jacobsen described as measuring eight inches actually was four inches. Tr. 218. Hart did not
think a person could contact the tail pulley through the space because he or she would have to
reach in and then up about one or two feet. In Hart's view, there was no reason a person would do
this. Tr. 219.
While Hart acknowledged there was a 12-inch opening underneath the tail pulley, he
maintained if a person traveled under the pulley and stood up, three crossbars would prevent the
person from coming in contact with the moving parts. Tr. 220, 222-223. Finally, Hart noted the
sides of the tail pulley were fully screened to prevent access. Tr. 224.

Kim Redding, like Hart, also believed the crossbars prevented accidental contact from
underneath. Tr. 288. In addition, Redding stated miners most often worked from a bob~at when in
the area and usually would not po~ition themselves under the pulley to clean up material. Tr. 289,
295. He acknowledged, however, that if a miner were shoveling under the pulley, his or her
shovel could come in contact with the moving pulley, but he thought
would be '4pretty hard to
do unless ... [the miner] intentionally [was] trying to scrape something off the pulley." Tr. 295.
On the whole, he believed the frame structure around the pulley offered adequate protection. Tr.
291.
:

this

With regard to WRQ's negligence, Jacobsen testified.that it was high. The lack of
adequate guards was obvious. He added that the foreman who supervised the area was not
conducting workplace examinations. Jacobsen recalled the foreman stating he was ''too busy'' to
do the examinations and that mine management had not given him the fonns required for the
examinations. Tr. 86. Although Hart emphasized the openings ·on the tail pulley had existed since
2000 and never had been cited previously by MSHA {Tr. 224), Jacobsen countered that conditions
change constantly and there was no way to be sure the conditions he {Jacobsen) saw had been seen
by other inspectors. Tr. 87.

THE VIOLATION
I conclude the violation existed as charged. The standard is designed to prevent miners ·
from accidentally contacting pinch points and/or becoming entangled by moving machine parts. 10
10

The Commission has held section 56.14107(a) "imports the concepts of
reasonable possibility of contact and injury, including contact stemming from inadvertent
stumbling, falling, inattention, or carelessness" (see,. e.g., Great Western Electric, 5 FMSHRC
840, 842 (May 1983)). The Commission also has held applying these concepts requires taking
into consideration all relevant exposure and injury variables. Thomas Brothers Coal Company,
28 FMSHRC 1090

The tail pulley mechanism contained pinch points and moving parts. They created the possibility
of entanglement. As a result, the pulley was required to be guarded. Jacobsen' s testimony
established the guarding was insufficient because the tail pulley mechanism could be accessed. Tr.
76-77. In this regard, I do not credit Hart's t~stimony that the gap about which Jacobsen was
concerned was four inches. Comparing the gap as depicted in Gov. Exh. 8 with the other pictured
parts of the frame described as measuring two inches, I conclude the actual measurement of the
gap was approximately eight inches, as stated by Jacobsen. Tr. 76-77; Gov. Exh. 8. Although the
location of the pulley mechanism meant that contact with a pulley mechanism through the gap or
from below the pulley frame was unlikely, it was not impossible. Cleanup activities under or
alongside the belt and travel next to the belt provided the opportunity for such contact, and
although Redding indicated miners usually used a bobcat when working around the pulley, the
fact that on occasion miners were required to be on foot near the pulley was not refuted by WRQ.

GRAVITY AND NEGLIGENCE
I agree with the inspector t4at there was a danger to miners cleaning under or around the
tail pulley or passing it. As Jacob~en testified,. and as Redding agreed, a miner cleaning under the
pulley.might catch his or her shovel in the pulley' s moving parts. Tr. 84, 295. Jn addition, a miner
working under the pulley might reach up and his or her hand or arm might contact the parts. Tr.
84. It also was possible a miner working or traveling around the pulley might trip and enmesh his
or her arm or hand in the moving parts. However, and as Jacobsen also testified, miners' access
to the pulley was usually restricted while it was operating, travel in the viclltity of the pulley was
infrequent, and the openings to the moving machine parts were relatively small. Therefore, I
conclude injuries were unlikely and the violation was not serious. Tr. 76-77.

NEGLIGENCE
The testimpny establishes that WRQ was moderately negligent. The openings to the
pulley were visually obvious. Reasonable care required the installation of adequate guards, which
were not installed.
Citation No.
6355401

Date
1/13/04

30 C.F.R. §
56.14107(a) II

Citation No. 6355401 states:
The Seco Screen [ 12] has an inadequate guard on the drive/counter-

Inc., 6 FMRHRC 2094, 2097.
11

The standard is set forth inn. 9, supra.

12

The screen is a portable machine used to sift topsoil. Tr. 233-234.
28 FMSHRC 1091

balance parts. There is about a 7 inch exposure to the fast
moving counterbalance that has catch hazards, and the walkway
past the balance is about 2 Yz feet. 'fhis exposes miners that
access this deck as needed to·serious injuries, it was stated that
this deck would not be accessed while the equipment was in
operation.
Gov.Exh. 11.
Jacobson testified that he observed an inadequate guard on the Seco· Screen's beUdrive.
Tr. 88. A two-and-one-half foot wide walkway ran alongside the belt drive and ·counterbalance.
According to the inspector, although an "excellent" {Tr. 89) guard was in place for the front of the
belt and although that guard was immediately adjacent to the walkway, a gap of approximately
seven inches existed between the back of the screen·and the moving parts of the belt drive and
counterbalance. Tr. 92; see Gov. Exh 10. Jacobsen believed if a miner tripped while using the
walkway, he or she would reach across the top of the screen to grab
its backside·forsupport.
.
. This
would subject his or her hand or arm to contact with the moving parts of the belt drive aii.d ·
counterbalance. {The top of the screen was approximately three-and-one-half feet above the
walkway.) Tr. 89-90, 92, 96-97; see Gov. Exh. 10. However, Jacobsen also believed this· ·
scenario was unlikely to happen. He noted the foreman stated miners did not access the area
while the plant was operating, and Jacobsen agreed that the narrow·nature of the gap and its
location limited access to the moving parts. Tr. 92:
Hart testified that a handrail was present along the walkway; opposite the screen. He ·
believed a tripping miner was more likely to grab the handrail for support than to reach across the
top of the screen. Tr. 332-333. 13 Hart also maintained miners did not access the screen while it
was operating. Tr. 230-231. In addition, he testified the exposed moving parts of the screen were
smooth and did not present a "catch hazard~'. Tr. 230, see also Tr. 391. ("There's no bolts or
anything else in the backside of this [equipment}." Tr. 391.)
Kim Redding too was of the opinion existing guarding on the screen prevented access to
the screen's moving parts. He stated a "person would have to be a contortionisf' to reach across
the top of the screen and contact the parts. Tr. 289. Redding reiterated Hart's opinion that should
a miner stumble on the walkway, he or she would most likely reach for the handrail, and he also
believed no work was required that would put a miner in a position from which he or she could
access the parts. Tr. 297-298.
Jacobsen thought the company was negligent. Jacobsen was told that in the past the screen
had operated without a guard, and he noted, "the foreman stated that he had not done a workplace

13

Jacobsen countered because miners commonly used two handrails, if a miner
tripped, he or she would be likely to reach not only for the handrail, but also toward the gap and
the moving parts. Tr. 365.
28 FMSHRC 1092

exam on [the screen]." Tr. 93.

THE VIOLATION
I conclude the violation existed as charged. As previously stated, the standard is designed
to prevent miners from contacting moving machine parts. Here, Jacobsen's testimony established
that the seven-inch gap existed between the inside edge of the screen guard and the outside edge
of the belt drive structure. (The gap is clearly depicted in Gov. Exh. 10.) This gap provided a
means of access to the screen's moving parts. The inspector credibly described how a miner
walking down the narrow walkway might slip and reach across the top of the screen guard to
steady himself or herself. If the miner's hand entered the gap, it could contact the moving parts.
Even though WRQ established that the moving parts were smooth and contained no protrusions to
snag or catch the miner, contact with the moving parts still could have caused an injury. Tr. 89-90,
92, 96-97. Access to the moving parts through the gap should have been prevented by a guard,
and it was not.
·

I recognize that Jacobsen was told .miners did not visit the area while the plant was
operating (Tr. 92). Even assuming this was true a grea~ majority of the time, the goal of the
standard is not only to protect against the hazards of :frequent access, but also to protected against
aberrant and unusual situations. Thus, restricted access to the belt drive while the screen is
operating bears upon the likelihood of injury resulting from the lack of adequate guarding, but
does not negate the violation. See e.g., Tide Creek Rock, Inc., 18 FMSHRC 390, 400-401 (March
1996) (Al.J Manning).
GRAVITY AND NEGLIGENCE

I agree with Jacobsen that the violation was not serious. Like Jacobsen, I accept that
access while the screen was operating was limited, and I find that a miner who slipped or tripped
while using the walkway would be likely to grab the adjacent handrail for support. He or she
could, but rarely would, reach across the top of the front part of the drive belt guard in such a way
as to contact moving parts. Tr. 92.
I also find that WRQ was negligent. The gap was visually obvious, and it should have
been detected. A guard should have been installed. In allowing the unguarded gap to exist, WRQ
failed to meet the standard of care required.

. DOCKET NO. WEST 2004-309-M
Citation No.
6355441

14

Date
3/16/04

30 C.F.R. § 56.11002 states in relevant part:

28 FMSHRC I 093

30 C.F.R. §
56.11002 14

Citation No. 635544 states:
The elevated walkway along the [p]owerscreen was bent, broken,
and missing bolts to secure the walkway. There is a piece of
the walkway protruding about 1 inch in the air just before the
ladder, and the walkway is loose due ·t o ·lack of a bolt. This
exposes miners to a tripping hazard and fall of about 5 feet to
the ground·below. The·walkway is used about 1 time every two
months to change screens.
Gov. Exh. 13.
Jacobsen testified that during the course of an inspection on March 16, 2004, he was
accompanied by Al Evans, WRQ's pit foreman. Tr. 101. · Upon examining the elevated walkway
along the power screen (a machine used to screen topsoil), Jacobsen noticed two things that
concerned him: part of the walkway was raised about an inch above the rest of the walkway,
creating what he maintained was a trip hazard; and a bolt was missing on the edge of the
walkway. Tr. 103, 110, 115. Jacobsen thought the bolt was part of the structure that attached the
walkway to the frame of the screen. Tr. 115. He believed the walkway was designed so all of its
bolts held it in place. Because the walkway vibrated·when the screen was operating, Jacobson
thought the missing bolt subjected the walkway .to added stress, which could cause the walkway to
collapse. Tr. 108.
As for the raised portion of the walkway, Jacobsen speculated if a miner were to trip on it,
he or she might fall off the walkway·because there was open ladder at the walkway's end. The
fall would be approximately five feet to the ground and the result could be fatal. Tr. 105-106.
However, Jacobsen did not believe such an accident was likely. He noted there was minimal
·
access to the walkway. Tr. 105-107.

an

Jacobsen also testified that Evans explained the power screen had been operating for two
days before the inspection and he, Evans, had not traveled the walkway. Tr. 107. Therefore,
while Jacobsen thought that the company should have known about the condition of the walkway,
he believed the company was only moderately negligent. Id.
Hart agreed with Jacobsen that the bolt was missing (Tr. 234), but he did not feel the
missing bolt functionally affected the walkway. Tr. 237. The power screen was portable and, Hart
explained, "when you move the screen, you take the ladder off and fold the walkway." Tr. 234235. After the screen is moved, the walkway is reinstalled. Hart testified that the bolt did not

Crossovers, elevated walkways, elevated ramps, and
stairways shall be of substantial construction,
provided with handrails; and maintained in good
condition.
28 FMSHRC 1094

support the :walkway. Rather, the walkway was held in place by three sliding steel tubes. Tr. 235236.
Further, Hart did not agree that one part of the walkway was raised an inch above the other
part. Tr. 237. In Hart's view, the difference in elevation was one-eighth inch to one-fourth inch.
Tr. 354-355. 15
Redding, too, did not agree the difference in elevation was one inch. Tr. 319-320. In
Redding's view, the difference in the levels of the two parts of the walkway was not significant,
and a resulting accident was unlikely. Tr. 320-321 .

THE VIOLATION
I find the walkway was in violation of section 56.11002. The standard requires walkways
to be "maintained in good condition." The evidence supports finding that one part of the subject
walkway was elevated above the other. I am persuaded the difference in elevation was such that a
tripping hazard was created. Whether the difference was one inch or was one-eighth to one-fourth
inch, the walkway was not level, contrary to the reasonable .expectations of those using it. Miners
would not be "on the lookout" for a protrusion that might catch their feet.and cause them to
stumble. The reg0:latory mandate to maintain a walkway in "good condition" requires an operator
to maintain it consis~ent with reasonable expectations of safe use. WRQ failed to meet this
requirement and violated the standard. 16

GRAVITY AND NEGLIGENCE
The violation wa.s not serious. The relatively small difference bet.ween the walkway levels
and the limited number of times miners used the walkway made it unlikely the violation would
result in a tripping accident. Moreover, even if a miner were to trip, the fact that there was a
handrail on one side of the walkway and the fact that the opening to the ladder was at the end of
the walkway meant that he or she was likely to grab the handrail to steady himself or herself or to
fall on rather than off the walkway.

15

Although Hart acknowledged that when answering an interrogatory he stated the
difference in elevation between the walkway's two parts was "approximately one inch" (Tr. 323
(quoting Petitioner's First Set of Discovery to Respondent and Supplemental Answers Thereto 7,
which states, "Respondent admits there was a piece of metal approximately one inch high." Tr.
356.)), Hart explained in making the statement he was only "admitting that the citation says there
was a piece of metal protruding one inch high." Tr. 354.
16

The finding of violation is based solely on the walkway's disparate levels. I
conclude that the Secretary failed to establish the missing bolt affected the walkway's condition.
Indeed, given Hart's un~ontradicted explanation of how the walkway was secured to the frame of
the screen, the bolt seems unlikely to have served any purpose affecting safety. Tr. 235-236.

28 FMSHRC 1095

WRQ was minimally negligent in allowing the violation to exist. I note that 'Evans
explained to Jacobsen that the screen had been operating only for two days. Moreover, the
difference in the walkway's elevation was such as to be easily overlooked.
Citation No.
6355444

Date ·
3/16/04

30 C..F.R. §
56.11003 17

Citation No. 6355444 states:
The ladder to the grizzly hopper tunnel is a wooden pallet
stood upright. This creates the hazard of a fall due to a
poorly constructed ladder. The ladder is used to access
the tunnel for clean-up and servicing duties about 2 times
per week.
Gov. Exh. 15.
Jacobsen testified that during the·March 16 inspection he noticed awooden pallet used as
a ladder to access a hopper. See Gov. Exh.14. Jacobsen believed the cross pieces offhe pallet · ·
(the slats) either were secured to the upright pieces (the 'struts) with pneumatically'driven staples
or with nails. Tr. 122;18 The slats were about four to six inches apart, whereas·the rungs;of a
ladder typically are 12 inches apart. Id., Tr. 123. Although Jacobsen acloiowledged·thatthe:slats·
and struts were "in good shape" (Tr. 125 19), Jacobsen never had seen a pallet used this way. Tr.
375. He believed the situation created a ·slip ahd fall hazard. Tr; 117-118.
Jacobsen was asked by his counsel about the requirements and meariing of section
56.11003. Jacobsen noted that although the standard mandates ladders be "of substantial
construction and maintained in good condition," it does not define the word·''ladder."
Nonetheless, based on his training and experience, Jacobsen believed a "ladder" wa8 "something
with rungs that you step on and·side rails .that you hold on to." Tr. 119. He also believed a ladder
must be substantial enough to bear the weight required by the job with.which it is associated. Tr.
124. He stated ladders are "rated for the weight that they are to [carry]". Id. A pallet has no
rating. Therefore, the pallet was "not a ladder." Tr. 119.

17

30 C.F.R. § 56.11003 states:
Ladders shall be of substantial constrUction and
maintained in good condition.

18

Hart testified the slats were secured with nails. Tr. 239.

19

Hart more than agreed. He described the pallet' s condition as "(e]xcellent." Tr. 238.

28 FMSHRC ·1096

When he first saw the pallet, Jacobsen did not think a miner was likely to slip or fall while
using it. The pallet was sturdy, was accessed only two times a week and there were handholds on
the frame of the hopper. Tr. 120. However, Jacobsen changed his mind about the likelihood of
injury, and at the hearing testified he believed a miner was reasonably likely to slip or fall. Tr.
117-118, 120. In addition, a miner's foot could be caught in the four- to six-inch space between
the slats. As a result, a miner could sprain or break a leg and could lose workdays or be
transferred toles~ demanding duties. Tr. 121. In his revised view, using the pallet as a ladder
created a "very high hazard.'' Tr.123.
To Kim Redding,.the pallet was "constructed like a ladder." Tr. 324. It was "very sturdy
... made of hardwood . .. smooth ... (and lacking] slivers or anything that would cause injury".
Id. He added the pallet, ''was securely in place." Id. In addition, the distance between the slats
did not, in his view, create a slip hazard. Tr. 327.

THE VIOLATION
I conclude the Secretary failed to establish the violation. As Jacobsen acknowledged,
there is nothing in the regulations that defines a "ladder," there is nothing that otherwise specifies
the type of "ladder" an operator must use, and there is nothing that sets forth how a ladder must be
constructed. Tr. 124-125. Further, there is no agency program policy memorandum that gives a
definition and/or specifications.
A ladder is defined in the mining dictionary as "[a] framework consisting of two parallel,
or roughly parallel, posts connected by bars at regular intervals along their length, thus providing a
series of steps which enables the ladder to be used as an aid to climbing to different levels." Am.
Geological Institute, Dictionary ofMining, Mineral, and Related Terms 620 (2ed. 1997). The
pallet functionally met this definition. Moreover, it is clear from the testimony that the
pallet/ladder was "substantially constructed" and was in "good condition," as the standard
requires. Tr. 125, 139.
For these reasons, the citation will be vacated.
Citation No.
6355477

Date
3/16/04

30 C.F.R. §
56.14112(b) 20

Citation No. 6355447 states:
The guard to the gear box and drive assembly of the sand
stacker is not secure. This exposes the v-belt drive and
couplers to be contacted. Contacting these moving parts
would cause serious injuries to a miner [who] enters the area

20

The standard is set forth at n. 6, supra.
28 FMSHRC 1097

as needed for cleaning.
Gov. Exh. 16.
Jacobsen testified during the March 16 inspection he noticed the guard for the gearbox
drive assembly on the sand stacker conveyor was loose and drooping so that moving parts ·o f the
stacker were exposed. (The parts Jacobsen specifically mentioned were the gearbox drive, the Vbelt assembly and the couplers. Tr. 126.) As Jacobsen recalled, the wires or "zip ties" holding the
gearbox assembly had come loose or broken so that the guard was "hanging off a bit." Id.
Jacobsen believed that the exposed parts posed "catch hazards" to miners. Tr. 127, 129. A miner
who was·cleaning in the area could slip, and his or her hand could contact the moving V-belts and
couplers. Tr. 128. As a result, the miner could suffer cuts, sprains, or even broken bones,
resulting in lost work days. Tr. 128-129. However, Jacobsen recognized such an accident was
unlikely because miners cleaned in the area only on an "as needed" basis. Tr. 128-129. Thus, they
·
''weren't in the area very often." Tr.128.

Jn Jacobsen's view, WRQ was only moderately negligent in allowing the parts to go
unguarded, because the defective guard looked secure. Oile h&Ho come within four or five feet
of the equipment to realize it was not. Tr. 129-130. As Jacobsen.put it, the violation '\Vas not
obvious." Tr. 129.

THE VIOLATION
The standard ·requires guards to be "securely in pface while macl)inery is being 01)erated."'
Jacobsen observed the subject· guard was loose and·drooping and the moving parts of the coveyor
were exposed. Tr. 126. Jacobsen's testimony regarding the state of the guard ·essentially was
undisputed, and I find that the violation existed as·charged. 21

GRAVITY AND NEGLIGENCE
The inspector's testimony regarding the "catch hazards presented to miners by the
violation (Tr. 127, 129) likewise was not undisputed, nor was his view that an accident resulting
from the condition was unlikely. Tr. 128-129. I accept and adopt Jacobsen's belief the violation
was not serious.

I further agree that the violation was due to WRQ's negligence. However, like Jacobsen I
find that the drooping guard was not so obvious as to be readily noticeable, and I conclude the
21

Jacobsen did not photograph the drooping guard. Following the presentation of
MSHA's case in chief, counsel for WRQ moved to dismiss the citation, as well as another
citation discussed subsequently, because they were based solely on Jacobsen's recollections. I
denied the motion, noting that it was not unusual for violations to be established solely through
the credible testimony of an inspector. Tr. 192-193.
28 FMSHRC 1098

company was only moderately negligent.

DOCKET NO. WEST 2005-151-M
Citation No.
6355596

Date
9/ 14/04

30 C.F.R. §
56.14101(a)(2) 22

Citation No. 6355596 states:
The parking brake on the Cat 980C Front-end Loader ...
did not hold on the maximum grade it traveled with a
loaded bucket. The ramp that the loader was tested on
was a feed ramp that is traveled by this loader several
times per day. A parking brake is needed to stop equipment from inadvertently moving and running personnel
over. The loader is used on a daily basis and generally
parks on flat ground.
Gov. Exh. 17.
On September 14, 2004, Jacobsen returned to the mine. During the course of the visit he
inspected a front end loader (loader). When he first observed the loader, it was traveling a ramp,
and its bucket was full of material. Tr. 132. Jacobsen decided to test the loader's brakes.
First, he test_e d the service brakes. Finding they worked well, he next tested the parking
brakes. He instructed the loader operator to set them. The loader's full bucket was low, but was
not touching the ground.23 The parking brakes did not hold the loader, and Jacobsen issued the
subject citation. Tr. 133. Jacobsen acknowledged the grade on which he tested the loader was not

22

30-C.F.R. §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.

23

Jacobsen explained that when parking brakes are tested, the loader should be
stationary. Because there is no danger material will spill from the bucket while the loader is at
rest, the test is condu9ted when the loader's bucket is full and raised. Tr. 136-137. By keeping
the bucket full, a conclusion can be reached whether the parking brakes can hold the loader "with
its typical load." Tr. 139. MSHA supervisory mine inspector Stephen Cain added conducting the
test with the bucket in a raised position prevents the bucket from digging into the ground and
acting as a de facto braking mechanism. Tr. Il 20.
28 FMSHRC 1099

the maximum grade at the mine. However, it was a grade the loader frequently traveled, and if the
brakes would not hold the equipment on the lesser grade, they would not hold it on the steeper
grade. Tr. 137-138.
The inspector noted that the standard is designed to prevent accidental movement of
parked equipment and the subsequent serious or fatal injury of miners working around such
equipment. Tr. 134-135. However, Jacobsen believed an accident involving the subject loader
was unlikely. He emphasized the service brakes worked well and the loader operator told him the
equipment was primarily parked on flat surfaces. Tr. 134-135.

WRQ questioned whether Jacobsen correctly tested the brakes. Hart testified when WRQ
tests parking brakes, it does so on an incline with the loader's bucket empty and lowered to the
ground. Tr. 240. In Hart's opinion, because of stability problems, it is not safe to test brakes with
a loaded, raised bucket. Tr. 241, 243.

Kim Redding believed the standard is "designed to hold the equipment when parked in its
normal fashion." Tr. 329. He agreed with Hart that when a loader is parked, its blade is lowered
to the ground, and that its "typical load" is an empty bucket. Tr. 330. "Otherwise," he stated,
"you have spillage." Id. Because the test used by the inspector did not simulate how the parking
brakes were actually used, the test result did not reflect the true effectiveness of the brakes. Tr.
331-332.24
Redding was asked by counsel for the-Secretary whether he agreed with WRQ's statement
in a response an interrogatory that the cited front end loacler usually carried approximately nine
tons of crushed rock. Redding responded the statement "sound[ed] about right."·Tr: 335. Further,
he aclmowledged that in another .response the company stated, at the·time of the test, the front
end loader was carrying "approximately nine tons of crushed rock." Tr. 336.
Turning to the issue of whether the company met its standard of care, Jacobsen believed it
did not, and that it was moderately negligent. Jacobsen noted the loader operator had not checked
the condition of the parking brakes on his pre-operation check list. Jacobsen also noted that
management did not even list "park[ing] brakes" on the check list. Rather, there was a generic
reference to the "braking system." Tr. 136.

24

Redding maintained on the very few occasions when a loader is parked on a
grade, the bucket is lowered, the transmission is put in 'gear, the parking brakes are set~ chocks
are placed under the tires, and the tires are turned into a benn or rib. Parking brakes never are
used in and of themselves on a grade. Tr. 343-344.

28 FMSHRC 1100

THE VIOLATION
I conclude the violation existed as charged. The standard is clear. Parking brakes must be
capable of"holding the equipment with its typical load on the maximum grade it travels." By
testing the loader with its raised bucket carrying a load of.approximately nine tons {Tr. 335-336),
Jacobsen met the "typical load" requirement of the standard. Tr. 335. By determining the brakes
did not hold on a grade that was less than the maximum grade the loader travels, he established by
deduction that the brakes would not hold on the maximum grade. Tr. 137-138. Although WRQ
takes issue with the way in which Jacobsen tested the brakes, and while there may be other ways
to test parking brakes, I conclude the test used by the inspector squarely met the requirements of
the standard and, without question, established a lack of compliance..

GRAVITY AND NEGLIGENCE
Jacobsen did no~ believe the violation was serious, and I agree. Tr. 134-135. He
acknowledged the loader's service brakes worked well. He accepted the fact that when the loader
was parked; it was usually parked on level ground. Id. There is nothing in the record to contradict
Jacobsen' s testimony in this regard. These· fa~tors lead me to conclude that injuries arising from
the violation were not likely.
As for negligence, I conclude WRQ failed to meet its mandated standard of care. WRQ
was required to ensure that the parking brakes held the loader "w~th its typical load on the
maximum grade it travels." 30 C.F. R. §56.14101(a)(2). Here, the brakes did not do what was
required. Had WRQ made sure pre-operational inspection of the equipment included the parking
brakes, the violation might not have happ~ed. Tr. 135-136. Reasonable care required the parking
brakes be functional, and they were not. .
Citation No.
6355597

Date
9/14/04

30.C.F.R. §
56.14112(b) 25

Citation No. 6355597 states:
The tail pulley guard to the hopper belt was not secured
in place. The bottom of th~ guard was hanging down
and not secure, and about a 8-[inch] by 12 [inch] piece of the guard
was lying on the ground. This exposes the hazard of
entanglement into the tail pulley and for serious injuries
to occur. The area is accessed 2 times per week for cleanup and other duties.

25

The standard is set forth at n. 6 supra.

28FMSHRC1101

Gov. Exh. 19.
On September 14, Jacobsen also inspected the tail pulley on an operating hopper belt. He
noticed that one of the side guards was missing. The missing guard had once been in place, but
had slipped or fallen from the pulley structure. As a result, the pulley was exposed., and an
opening eight inches wide by twelve inches long provided access to its moving parts: Tr. 141,
144-145, 149-150. In Jacobsen's view, exposure created an entanglement hazard for miners who
cleaned up around the pulley.
Jacobsen believed if a miner was caught in the pulley, he or she would suffer cuts or even
dismemberment. Tr. 147, 148. However, he did not think such an accident was likely. Tr. 146.
He noted the opening to the pulley was relatively small, eight inches by 12 inches, and the area in
which the tail pulley was located was accessed by Ininers only two times a week. Id.
He also believed the missing guard was caused-by WRQ's moderate negligence.- The plant
foreman simply failed to notice it had slipped and fallen.·Tr. 148-149.

THE VIOLATION
I find the violation existed as charged. Jacobsen's testimony established that moving parts
of the tail pulley were not completely guarded, in that the side gUa.rd had slipped off: creating an
opening through which the moving parts of the pulley could be contacted. Tr. Tr. 141-145; 149.
The standard requires moving parts to.be· guarded to prevent access . . AB Jacobsen recognized, atiy
miner cleaning up around the pulley was subject to-the-danger of tripping or falling·and having -h is
or her hand or arm pass-through the opening and into the moving parts. Jacobsen aecUrately
described such an accident as likely to result in cuts or dismemberment. Tr.· 147, 148>26

GRAVITY AND NEGLIGENCE
Because the opening was limited in size and because access to the area also was limited,
Jacobsen believed an accident was unlikely. Tr. 146-148. Based on this testimony, I conclude that
Jacobsen was correct and that the violation was not serious.

I also find that WRQ did not meet its required standard of care. Even though the area
around the guard was not accessed•frequently, WRQ had a: duty to ensure that all guards on the
tail pulley were in place. The opening was visible, and mine management or its agents should
have detected and reinstalled the missing guard. In failing to do so, WRQ exhibited its
negligence.

26

As with Citation No. 6355447, Jacobsen did not photograph the unguarded pulley.
Before he could take a picture, the mine foreman repaired the defect. Tr. 141, 145. Therefore,
WRQ's counsel moved to vacate Citation No. 6355597. For the reason stated inn. 21, infra, I
denied the motion. Tr. 192-193.
28 FMSHRC 1102 ·

DOCKET NO. WEST 2004-316
Citation No.
6350897

Date
2/24/04

30 C.F.R. §
56.9100 27

Citation No. 6350897 states:
There were no signs stating the mine' speed limit, direction
of travel or hazard warning signs on the haul road, entrance to the quarry, at or near the scale, or in the quarry
stockpile area where there is a large volume of truck and
equipment traffic. There is also no sign to tell visitors to
stop at the scale for instruction and/or training. The
quarry is visited several times daily by company trucks,
customer trucks, visitor vehicles and by sales and vendor
personnel.
Gov. Exh. 20.
On February 24, 2004, MSHA Inspector Rickie Dance visited Champion Pit. When he
arrived at the entrance to the mine, Dance "noticed that they had done some landscaping on the
entrance, widened the road a little . .. put up a new sign and ... a new gate." Tr. 156. However,
once on mine property he also noticed: "[T]here was no signage [sic], as far as speed or direction
of travel [rules of the road] or anything to watch for." Id.
Dance identified a photograph he took at the entrance to the pit. Gov. Exh. 21 . fu the
photograph the gate is visible, as is the back of a stop sign at the gate, and about 80 to 100 feet inby
the stop sign, on the same side oftheroad, another sign is seen. The stop sign orders vehicles to
stop before they leave the mine road and merge onto a public road. The other sign reads in part,·
"Washington Rock Quarries, Camp 1 Road." Tr. 156, 159, 161-162; Gov. Exhs. 21and22.

27

Section 56.9100 states:
To provide for the safe movement of self-propelled
mobile equipment (a) Rules governing speed, right-of-way,
direction of movement, and the use of headlights
to assure appropriate visibility, .shall be established
and followed at each mine; and
(b) Signs or signals that warn of hazardous
conditions shall be placed at appropriate locations
at each mine.

28 FMSHRC 1103

Continuing past the "Washington Rock Quarries, Camp No. 1" sign for a quarter of a mile,
Dance saw no other signs. Tr. 163-164; Gov. Exh. 23. Nor did he see any signs as he proceeded
along the same road to the scale, scale house and shop building. Tr. 164-165; Gov. Exh. 24.
Although the company's trucks and those of its visitors traveled the road, there were no speed limit
or traffic rules signs; nor were there signs instructing visitors to stop and get information. Tr. 165,
168. WRQ offered into evidence photographs of six traffic control signs; but Dance was adamant
he saw none of them during his February 24 inspection. Tr. 175, see WRQ Exh. 20.
Dance asked Hart how visitors were informed of mine hazards, and Hart replied the scale
operator was supposed to give rules of the road instruction to those who passed the scale and scale
house. Tr. 165,167; see also Tr. 157-158. 28 Dance observed, however, that before the scale and
scale house, the road branched to the right. The branch lead to the stockpile area and to other parts
of the mine. Therefore, it was possible·for drivers going to.these areas to bypass the scale and
scale house. Tr. 165. As Dance put it, "anybody going into that mine does not necessarily go by
the scale to enter the hazardous area where the equipment is running...... [T]he way the scale is set
up, there's no ·window where the scale operator can see anybody coming into the area, and they can
go to the right, around the shop without even going by the scale and enter the mine site." Tr. 179.
Dance maintained the only thing posted at the scale was a digital board that registered the weight
of the trucks for the scale operator. Tr. 166; Gov. Exh. 25.
Dance agreed that section 56.9100 does not specifically require an .operator to post signs·.
that state rules of the road. Tr. 167. Nevert,heless, Dance cited WRQfor a violation of the section
because, ''There has to be some way for people coming onto the mine site to get .the information, as
far as any hazards at the mine." Id. Moreover, inDance's view, under section 56.9100l(a) an
operator must establish rules of the road, whether or not there are hazardous conditions. Tr. 180.
Dance was asked if there was a hazardous condition at Champion Pit that required a
warning sign. He replied, "When you have heavy. equipment running around in the pits ... and .
you have haul trucks running·around, there's always hazardous conditions." Tr. 177.
Dance feared that with no signs to communicate rules, "a person not knowing what' s going
on could easily be [run] over". Tr. 168. However, such an accident was unlikely, because drivers
at the pit were experienced. ("[T]he people that go out there have visited several operations before,
and it's just rare that ... [an accident] would happen." Id.) In addition, the trucks and other

28

Dance testified that Hart also told him there ·was nothing written regarding rules of
the road. Tr. 167. Dance denied anyone from the company showed him a card that stated on its
front "All Drivers, Hard Hats, Safety Glass & Steel-Toed Shoes Are Required While Out of
Truck on Mine Property" and on its back, "Site Specific Hazard Forms Must Be Completed By
All Persons Entering Mine Property. If you have not filled one out stop by the scale house." Tr.
171; See WRQ Exh. 19; see also Tr. 378.

28 FMSHRC 1104

equipment he saw during the inspection "travel[ed] slow[ly] and [the drivers were] watchful of
other traffic." Tr. 178.
Dance believed WRQ was moderately negligent in failing to comply with the regulation,
and he again noted that even if some oral instructions were given at the scale, other drivers could
access different parts of the mine before reaching the scale. Tr. 170.
. Kim Redding described WRQ' s traffic control rules as consisting of a number of things:
including road signs seen by drivers upon entering the .property, cards given to drivers containing
the traffic control rules, and instructions given to drivers to "sign paperwork saying they
understood [the] rules.·· Tr. 309; WRQ Exh. 19 at 1and2. 29

THE VIOLATION
As the parties recognize, the requirements of section 56.9100 are set forth in two parts. 30
C.F.R. § 56.91 OO(a) is aimed at ensuring the safe movement of self-propelled mobile vehicles by
requiring the establishment and following of specified rules of the road. Section 56.9100(b) is .
aimed at alerting miners and visitors to specific hazardous conditions by requiring the installation
of warn4ig signs or signals.where t;p.e conditions exist. In issuing the citation, Dance's priniary
concerns seem to have been that WRQ violated secticm 56.9100(a) by failing, either through.
appropriate signs or other effective instructions, to establish rules of the road. ~conclude the
record supports Dance in this regard, and I affirm the citation to this extent.
·
While I accept Dance's testimony that he was told by Hart that instruction in rules of the
road was giv.en orally to mobile vehicle operators by the scale operator, there is.no er.edible
evidence in the record that such instruction actually took place. Tr. 165, 167. Dance testified
without dispute that nowhere along the road he took to the scale house were there signs listing the
mine's rules of the road or signs directing equipment operators to stop at the house for instruction.
Tr. 156, 163-164, 168. He also testified without dispute that no one showed him a card on which
several instructions regarding traffic safety were printed and that no one showed him a card or
statement signed by a vehicle operator acknowledging the driver received such instructions. Tr.

29

Redding later agreed that the signs to which he referred were on the landlord's
property, not on property over which WRQ had authority. Tr. 31 O; WRQ Exh. 20. Still, in
Redding's opinion, it did not matter because "signs give information" and the signs in question
stated "rules governing the property." Tr. 311. However, although. the speed limit at the mine
was five miles per hour, Redding admitted none of the signs depicted in WRQ's exhibit of
purported road signs at the pit showed the limit. Tr. 316; see WRQ Exh. 20. Redding, who was
not at the property dll;rlng the inspection, also stated that his understanding of the traffic rules was
based on what Hart later told him. Tr. 315. The first time Redding saw the cards about which he
testified, one of which is depicted in WRQ Exh.19, was approximately two months before the
heanng. Id. Finally, Redding admitted he never had seen a statement drivers were supposed to
sign, such as the statement depicted in WRQ Exh.. 19 at 2. Id.
28 FMSHRC l l 05

171, referencing WRQ Exh. 19.
To defend against a credible allegation of failing to establish rules of the road, an operator
must do more than assert it complied. It must present credible testimony and/or physical evidence
of compliance. Here, the record contains neither.
In the face ofDance's testimony that on February 24, he heard and saw no evidence Hart's self-serving assertion aside - of compliance·with section 56. 9100(a), WRQ offered no
rebuttal. It introduced no testimony from drivers affirming they received instructions in rules of
.the road. It offered no testimony from employees affirming they gave such instructions. It offered
no signed statements. I fully agree with Dance, that to be considered "established" the rules must
be communicated to all those who operate self-propelled mobile equipment at the mine,.and here
the record inevitably leads to the conclusion they were not. 30
The finding of violation is restricted to subpart (a) of section 56.9100. The S~retary_did
not establish there were hazardous conditions at the pit requiring the placing of warning signs
and/or signals. The kind of "hazard" to which Dance referred, the "heavy equipment [iilcludirig
haulage trucks] running around in the pits," is remedied by'tlie rules ofthe road established
pursuant to section 56.9100(a). Hazards contemplated under'section 56.9100(1') ate those related
to physical features, facilities, and perhaps traffic conditions at the mine and not to the unregulated
movement of equipment.
·

GRAVITY AND NEGLIGENCE
I agree with the inspector that the failure to establish rules of the road at the tµine posed a
potential hazard to miners. Without drivers knowing the rules governing speed, right of way, use
of lights, etc., vehicles might collide or overturn, and drivers· could.be injured·or killed. See Tr.
177. However, the record warrants finding that-many ofthe·'cirivers were experienced in operating
their equipment both at that pit and at other mines·and were knowledgeable about general traffic
safety. See Tr. 169. In addition, drivers at the pit moved slowly and with care. Tr. 178. ·The record
further warrants finding, as discussed with regard to Citation No~ 6350900, supra, and as alluded to
by Redding (Tr. 309), that there were some rules of the road signs on the landlord's property prior
to drivers reaching mine property. Therefore, I agree with the inspector's finding as indicated on
the citation that injuries were unlikely to result from the violation, and I find the violation was not
senous.

30

As noted, the record does not support finding the scale house operator was
charged with the duty of instructing drivers in rules of the road, but assuming he or she was so
charged, I agree with Dance that because drivers could bypass the scale house and proceed to
other parts of the mine, the duty would not negate the violation. Tr. 167, 176-177.

28 FMSHRC 1106 .

The lack of signs and/or oral instruction posted by the operator at.its mine or given by the
operator on mine property were obvious indications of non-compliance. Had WRQ officials met
the standard of care required of them, they would have made sure rules of the road were established
at the pit. They did not, and the failure reflects the company's negligent lack of care.
DOCKET NO. WEST 2004-309-M
Citation No.
6350900

Date .
2/24104

30 C.F.R. §
56.9100 31

Citation No. 6350900 states:
There were no signs stating the mine speed limit, direction
of travel or hazard warning signs on the mine roads, entrance to the sand pit, at or near the scale, or in the pit
stockpile area where there is a large volume of truck and
equipment traffic. There is also no sign to tell visitors to
stop at the scale for instruction and/or training. The
pit is visited several times daily by company trucks,
customer trucks, visitor vehicles and by sales and/or vendor
personnel.
Gov. Exh. 26.
On February 24, Dance also inspected WRQ's King Creek Pit. Champion Pit is connected
to King Creek by a gravel road. Tr. 183. Although Dance noticed "no trespass" signs and speed
limit signs along the gravel road, none of the signs were on mine property. Id. Moreover, Dance
saw no signs on mine property regarding speed limit and direction of travel or signs advising
people to stop and obtain rules of the road. Tr. 186.
Dance identified a photograph he took at the pit. Tr. 182, Gov. Exh. 27. Among other
things, the photograph depicts the King Creek scale house (Gov. Exh. 27, left 32), a small storage
facility (Gov. Exh. 27, center) and piles of material (Gov. Exh. 27, right). Tr. 183. According to
Dance, no signs existed between the entrance to the pit and the scale house, and the only sign on
the scale house was a sign identifying the rental company that owned the house. Tr. 185. No signs
directed visitors to stop and inquire about the mine's rules of the road. Id. In addition, Dance
testified there was another entrance to the pit, to the left of the entrance depicted in Gov. Exh. 27.
Tr. 184.

31

The standard is set forth inn. 27.

32

A more detailed view of the house is provided by Gov. Exh. 28. Tr. 185.
28 FMSHRC 1107

For the same reasons as stated with regard to Citation No. 6350897, Dance cited WRQ for
a violation of section 56.9100. Dance believed the gravity of the alleged violation and the
negligence of WRQ also were the same. Tr. 186; Dance acknowledged that there were no specific
hazards requiring placement of waniing signs. Tr~ 187. He also acknowledged that traffic was
moving slowly (in second or third gear) and following normal rules of the road at the pit. Id.
Hart countered that WRQ had established traffic rules at both Champion Pit and King
Creek, and the same rules applied at both operations. These rules were in writing and were
"handed out to ... anyone that [came] in to the pit". Tr. 245. Hart identified a copy of a card that
was "handed out". Id.; WRQ Exh. 19. He described the card as "printed on both sides" and
"giving some regulations, some rules for driving in the pits." Id.; Resp. Exh. 19.33 According to
Hart, these rules were in effect when the inspection took place. Tr. 247. Hart also claimed that
drivers were given a written document that addressed issues such as.proper speed, right of way,
direction of movement, and· use of headlights to ensure appropriate visibility. Tr. 247-248.

33

The following safety rules are listed on the back of the card to which Hart

referred:
• Equipment operators and scale house on c.b.
channel 3
• Speed limit in pit 5 MPI:I
• Use approved roads only
• Yield to all equipment
Equipment has right of way
Know traffic patterns
Avoid moving vehicles
• Truck drivers must stay in
truck while being loaded
• If out of vehicle hardhat steeltoed boots required
Not needed if entering scale
house or honey bucket

WRQ Exh. 19. The rules are followed by lines for a truck driver's signature, the number of the
truck, the company owning or leasing the truck, and the date. Id.

28 FMSHRC 1108

Hart acknowledged the road to King Creek provides access to the pit at both ends of the
road. Tr. 252. At one entrance there is a gate where there are signs reading, ''no trespassing,"
"speed limit 10," "slow down speed limit through gate areas is 10 MPH please adhere to posted
speed limit if problems continue a large speed bump will be installed," "attention all drivers
maximum speed 30 m .p.h. except all curves 15 m.p.h.," "speed limit 30," "lights on for safety,"
and "lights on for safety warning non-compliance will result in immediate removal from the .
premises." Tr. 252-253; WRQ Exh. 20. According to Hart, the same signs appear at the other
entrance and at both pits. Tr. 253, 255. However, he agreed that none of the signs were posted by
WRQ and none specifically referred to WRQ. Tr. 257. Rather, the company has an understanding
with its landowner that those entering the landowner's property have to obey the signs posted at the
gates to the property, including those on WRQ Exh.19.. Tr. 260-262. Hart testified, the day before
Dance conducted his inspection, WRQ required all truckers and vendors who came to the property
sign the back of the card depicted in WRQ Exh. 19. Tr. 263.34 If the rules were not followed, the
person violating them was asked to leave. Tr. 261.

THE VIOLATION
..

I conclude Dance's testimony established the violation. As previously noted, section
56.9100 is divided into parts. Dance agreed there were no specific hazards related to physical
features and facilities at King Creek. Tr. 187. Therefore, section 56.9100(b) was not violated.
However, it is clear that section 56.9100(a) was infringed. Dance consistently and credibly
maintained he saw no rules of the road signs on mine property. Tr. 183-186. Although WRQ
offered photographs of some rules of the road signs (WRQ Exh. 20), virtually all of the signs were
at the entrance to the landowner's property and not at the entrance to the property for which WRQ
was responsible. Tr. 251, 256-257. Close scrutiny of Hart's testimony reveals the only rule of the
road sign he identified as being on mine property was a speed sign posted several hundred feet inby
the gate where WRQ 's responsibility began. The sign was nailed to a tree and was ''kind of . ..
bent over." Tr. 259. This single, damaged sign is not sufficient to establish rules governing speed,
and there is no testimony that other signs w,ere posted on King Creek mine property.
Nor did the card that Hart testified was given to all who entered mine property establish
WRQ's compliance. There is no credible basis to find those entering the mine actually received the
card. Drivers did not testify, employees who handed out the card did not testify, and signed copies
of the card were not offered into evidence.
Moreover, even if, as Hart testified (Tr. 245), WRQ actually gave the card admitted as
WRQ 19 to all persons who entered the mine, the card contains nothing regarding the use of
headlights, a specific requirement of section 56.9100(a). Further, the other written document

34

Dance testified he did not recall Hart's saying anything about distributing written
rules of the road to all such visitors. Dance also denied that Hart told him visitors were required
to signs forms to affirm they were advised of such things. Tr. 377.

28 FMSHRC 1109

addressing the requirements of part (a), a document that Hart maintained was given to drivers
entering mine property (Tr. 247-248), was not introduced. Nor did drivers who received that
supposed document testify. Noncompliance cannot be refuted by an evidentiary vacuum.35

Creek.

In sum, the record fully supports finding that WRQ violated section 56.9100(a) at King
·

GRAVITY AND NEGLIGENCE
Given the fact that there were some traffic signs at the entrance to the property owner's
land, signs that provided notice of traffic rules just before drivers entered the mine, and given
Dance's testimony that, once in the mine, traffic moved slowly and followed normal rules of the
road, I conclude the violation was not serious. Tr. 186-187.
I also conclude the violation w~ due to WRQ's negligence. As Dance's inspection
showed, the lack of established rules of the road at the·mine was obvious. WRQ either knew or
should have known that it was required to establish such rules. In not doing so, it failed to meet its
required standard of care.

CIVIL PENALTY ASSESSMENTS
The Act requires that I assess a civil pena1ty for each violation. It a'lso requires that in
doing so, I consider the statutory civil penalty criteria. 30 U.S.C. § 820(i). Several of the civil
penalty criteria are equally applicable to all of the violatioris. fu this regard, WRQ's history of
previous violations (Gov. Exh. 29) was described by·counsel for the Secretary as of a "small to
average" number. Tr. 189. WRQ did not take exception to this description. Therefore, when
assessing penalties I will not increase them on account ofWRQ's prior history. Counsel for the
Secretary also stated, based on the number of hours worked at WRQ's operations, that the
operations are small. Tr. 189. WRQ did not take exception.to this characterization. Therefore,
when assessing penalties, I will assess lesser amounts than I would for medium or large operations.
The parties have stipulated that assessment of the penalties will not' adversely affect the ability of
WRQ to stay in business. Stip. 4. Therefore, when assessing penalties, I will neither increase nor
decrease them on account of this criterion. Finally, the parties have agreed that WRQ timely
abated all of the alleged violations. Tr. 15. Timely abatement is expected and is a neutral factor.
Finally, I will consider the criteria of negligence and gravity as they individually pertain to each
violation.

35

I also find noteworthy and entirely credible Dance's testimony that he did not see
a sign telling those operating vehicles to stop at the scale house, and I find the lack of testinioriy
from equipment operators as to the existence of such a sign to be telling. Tr.185.
28 FMSHRC 1110 ·

DOCKET NO. WEST 2004-352-M
Citation No.

Date

30 C.F.R. §

Proposed Assessment

Assessment

6350795
6350798
6350799
6355401

1/13/04
1/13/04
1/13/04
1113/04

56.16006
56.14112(b)
56.14107(a)
56.14107(a)

$60
$60
$60
$60

$60
$60
$60
$60

DOCKET NO. WEST 2004-316-M
Citation No.

Date

30 C.F.R. §

Proposed Assessment

Assessment

6350797
6350897

1113/04
2/24/04

56.14112(b)
56.9100

$60
$60

$60
$60

I have found the violations were not serious. I also have found the violations were the
result ofWRQ's negligence. Given these criteria, and given the fact WRQ has a small to average
history of previous violations and that WRQ's operations are small, I conclude an assessment of
$60 is appropriate for each violation.
DOCKET NO. WEST 2004-309-M
Citation No.
6355441

3/16/04

30 C.F.R. §

Proposed Assessment

Assessment

56.11002

$60

$50

I have found that the violation was not serious. I also have found that the violation was the
result ofWRQ's minimal negligence. Given these criteria, and given the fact WRQ has a small to
average history of previous violations and that WRQ' s operations are small, I conclude an
assessment of $50 is appropriate.
Citation No.
6355444

3/16/04

30 C.F.R. §

Proposed Assessment

Assessment

56.11003

$60

$0

I have found the Secretary did not prove the alleged violation.

6355447
6350900

3/16/04
2/24/04

56.1 1003
56.9100

$60
$60

$60
$60

I have found the violations were not serious. I also have found the violations were the
result ofWRQ's negligence. Given these criteria, and given the fact WRQ has a small to average
history of previous violations and that WRQ's operations are small, I conclude an assessment of
28 FMSHRC 1111

$60 is appropriate for each violation.
DOCKET NO. WEST 2004-151-M
30C.F.R §

Citation No.
6355596
6355597

Proposed Assessment

56.14101(a)(2) $60
56.14112(b)
$60

9/ 14/04
9/14/04

Assessment
$60
$60

I have found the violations were not-serious. -I also have found the violations were the
result ofWRQ's negligence. Given these criteria, and given the fact WRQ has a small to average
history of previous violations and that .W RQ's operations are small, I conclude an assessment.of
$60 is appropriate for each violation.
SETTLED VIOLATIONS
The parties agreed as follows:
DOCKET NO; ·W EST 2004-264-M
Citation No.

Date

30 C.F.R. §

Proposed Assessment

Settlement

6355403

1/13/04

56.18002(a)

$60

$60

DOCKET NO. WEST 2004-309-M
Citation No.
6350901
6355040
6355442
6355445
6355446
6355448
6355449

Date
2126104
3/16/04
3/ 16/04
3/16/04
3/16/04
3/16/04
3/17/04

30C.F.R §
Proposed Assessment
50.20(a)
$ 60
56.14107(a)
$124
56.14207(A
$ 60
56.12004
$ 60
56.14107(a)
$ 60
56.12032
$ 60
46.9(a)[see Tr. 13]
$ 60

Settlement
$60
$60
$60
$60
$60
$60 [See Tr. 11.]
$60

DOCKET NO. WEST 2004-316-M
Citation No.

Date

30 C.F.R. §

Proposed Assessment

Settlement

6350800
6350896
6350898
6350899
6355402

1/13/04
2126104
2125104
2126104
1/13/04

56.12004
56.9101
.46:3(a)
50.20(a)
56.14110

$ 60
$228
$ 60
$ 60
$ 99

$60
$ 0
$60
$60$·0

28 FMSHRC 1112

6355405
6355406

1/14/04
1114/06

62.130(a)
62.120

$ 60
$ 60

$60
$60

DOCKET NO. WEST 2004-345-M
Citation No.

Date

30 C.F.R. §

Proposed Assessment

Settlement

6355409

1/23/06

50.30(a)

$60

$0

DOCKET NO. WEST 2004-352-M
Citation No.

Date

30 C.F.R. §

Proposed Assessment

Settlement

6350796
6355404
6355407
6355408

1/13/04
1/13/04
1/14/04
1123/04

56.14132(a)
56.14100(d)
56.15005
50.30(a)

$ 60
$ 60
$165
$ · 60

$ 60
$ 60
$165
$ 60

DOCKET NO. WEST 2004-151-M
Citation No.

Date

30 C.F.R. §

Proposed Assessment

Settlement

6355598

9/14/04

56.12006

$60

$60

DOCKET NO. WEST 2004-307-M
Citation No.

Date

30 C.F.R. §

Proposed Assessment

Settlement

6371231
6371232

2/16/05
2116105

46.ll{b)(4)
14109

$131
$ 60

$60
$60

After reviewing and considering the proposed settlement, I find it is reasonable and in the
public interest. Pursuant to 29 C.F.R. §2700.31, the parties' stipulations regarding the proposed
settlement are accepted and the settlement IS APPROVED.

ORDER
WRQ IS ORDERED to pay a total civil penalty of$1955.00 in satisfaction of the
violations in question. Payment is to be made to MSHA within 30 days of the date of this decision.
Within the same 30 days, the Secretary IS ORDERED to modify and vacate all citations
referenced in the parties' settlement agreement and stipulations as requiring such actions. Further,
in conformance with my findings regarding the contested citations, Citation No. 6350897 (Docket
No. WEST 2004-309-M) IS MODIFIED to reflect the violation was due to WRQ's low
negligence, and Citation No. 6355444 (Docket No. WEST 2004-309-M) IS VACATED. Upon
28 FMSHRC 1113

receipt of WRQ' s full payment and upon the Secretary' s modification and vacation of the
appropriate settled citations, these proceedings ARE DISMIS~ED~

David F~ Barbour ·
Administrative Law Judge
(202) 434~9980
Distribution: (Certified Mail)
Bruce L. Brown, Esq., U.S. Department of Labor, Office of th~ Solicitor, 1111 Third Avenue,
Suite 945, Seattle, WA 98101 ·
Paul M. Nordsletten, Esq., Davis Grimm·Payne & Marra/ 701 :Fifth Avenue, SUite 4040, Seattle,
WA98104

/ej ..

28 FM~HRC 1114

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, D.C. 20001

November 30, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CNILPENALTY PROCEEDINGS
Docket No. YORK 2006-9-M
A. C. No. 30-03254-72284
Docket No. YORK 2006-16-M
A. C. No. 30-03254-74704

DAVID SCHEER,
d/b/a D. A. S. SAND & GRAVEL,
Respondent

Docket No. YORK2006-31-M
A. C. No. 30-03254-80332
Docket No. YORK 2006-45-M
A. C. No. 30-03254-77405
Docket No. YORK 2006-46-M
A. C. "No. 30-03254-85164
Docket No. YORK 2006-64-M
A. C. No. 30-03254-90790
DAS Sand & Gravel

DECISION DENYING RESPONDENT'S MOTION FOR
SUMMARY DECISION AND GRANTING PETITIONER 'S CROSS MOTION FOR
PARTIAL SUMMARY DECISION
These cases are before me upon petitions for civil penalty filed by the Secretary of Labor
pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq., the "Mine Act," charging, as amended, David Scheer d/b/a D.A.S. Sand & Gravel (DAS) with
violations under the Mine Act. DAS answered the Secretary's petitions in these six cases by
asserting several jurisdictional defenses. At the request ofthe parties, these cases were consolidated
for an interlocutory decision on the jurisdictional issues. 1 ·

1

The Respondent filed a pleading on these issues captioned "Motion to Dismiss" and the
Petitioner replied to the motion. Since these pleadings were conditioned upon factual assertions that
have now been stipulated, they are deemed to be a Motion for Summary Decision and Cross Motion
for Partial Summary Decision, respectively, under Commission Rule 67{b), 29 C.F.R. § 2700.67{b).
28 FMSHRC 1115

For purposes of this decision the parties have agreed and stipulated (1) that "David Scheer
dlb/a D.A.S. Sand and Gravel" is the successor-in-interest to D.A.S. Sand and Gravel Inc." and that
"privity'' exists between these parties; and (2) that the cited facility produced sand and gravel and
that such sand and gravel was sold solely within the state of New York at the time of all charging
documents at issue in these cases as it was in the cases before Commission Judge Schroeder in
D.A.S. Sand and Gravel, Inc. 25 FMSHRC 364 (July 2003)(ALJ).2 As noted, the parties have
agreed that the jurisdictional facts in these cases are the same as presented before Judge Schroeder
in D.A.S. Sand & Gravel Inc., 25 FMSHRC 364 (July 2003) (ALJ), aff d D.A.S. Sand & Gravel v.
Chao, 386 F.3d 460 (2d Cir. 2004), cert. denied 125 S.Ct. 2294 (2005).
Respondent first argues in its m~tion to dismiss that the Secretary does not have jurisdiction
over the Respondent's operation because sand and gravel extracted at the subject facility are not
"minerals" as that term is used in the Mine Act. While ordinarily resolution of the factual question
of whether a material is a "mineral" would require expert testimony presented·at hearing, because
there is both case law and legislative history supporting Mine Act jurisdiction over sand and gravel
operations, there is no need in these cases for such expert testimony.
There is now well-established case law that sand and gravel operations are subject to the
jurisdiction of the Act. Marshall v. Stoudt's Ferry Preparation Co. , 602 F.2d 589, 592 (3rd Cir.
1979), cert. denied 100 S.Ct. 665; Marshall v. Cedar Lake Sand and Gravel Company, Inc., 480 F.
Supp. 171, 173 (E.D. Wis. 1979). In addition, the U.S. Court of Appeals for the Second Circuit in
the earlier case involving D.A.S. Sand and Gravel, Inc. in D.A.S. Sand and Gravel Inc. v. Chao, 386
F3rd 460 (200 Cir. 2004) did not question its jurisdiction over that sand and gravel operation as a
"mine" under the Mine Act.· The Corllmission and its judges have also continued to exercise
jurisdiction over sand and gravel operations. See e.g. Jerry Ike Harless Towing, Inc., 16 FMSHRC
683 (April 1994) and Nicholson, employed by A-Rock, Inc. , 16 FMSHRC 1967 (September 1994)
(ALJ).
As the Secretary also notes, the legislative history ofthe Act confirms that Congress intended
to place sand and gravel operators under Mine Actjurisdiction. The Mine Act repealed and replaced
the Federal Metal and Nonmetallic Mine Safety Act of 1966, formerly 30 U.S.C. 721 et seq. (the
1966 Act). Both acts use the same words to define "mine"as
area of land from which minerals
[other than coal or lignite] are extracted in nonliquid form or, if in liquid form. are extracted with
workers underground". As several courts have noted, the 1966 Act regulated sand and gravel pits
as mines. See Marshall v. Texoline Co. 612 F.2d 935,938(C.A. Rex., l980)("Although the sand and
gravel industry does not have the long history of regulation found in the coal mining industry,
Congress clearly found· that sand and gravel excavations could be almost as dangerous ·as
underground coal mines and consequently in need ofsimilar supervision.") (citing U.S. Code Cong.
& Admin. News, p. 2851 (1966)); Marshall v. Nolichuckey Sand Co., Inc. 606 F .2d 693, 695-696
(61h Cir. 1979) ("statistics before Congress in 1966 [ ...] 'conclusively show that the sand and gravel
industry is the niost hazardous except for the underground coal and mineral mining industries."')

"an

2

Commission Docket Nos. YORK 2001-67-M, 2002-59-M, 2002-30-M and 2003-i 1-M.
28 FMSHRC 1116

(citing S.Rep.No. 1296, 891h Cong. 2d Sess., reprinted in 1966 U.S.Code Cong. and Ad.min. News.
Pp. 2846-2851);Marshall v. Halquist Stone Co. Inc., 512 F. Supp. 379, 379-380 (E.D.Wis., 1981)
(citing U.S. Code Cong. &Ad.min. News, pp. 2851-2852,2870 and2874. IndraftingtheMineAct,
Congress copied the 1966 Act's definitional language verbatim, thus indicating that the new Mine
Act was intended to regulate the same mines (including sand and gravel pits) as the 1966 Act which
it superceded.
Both the House and Senate reports on the Mine Act address sand and gravel mines. The
Senate report incorporates a chart tallying the number of mining operations in various subgroups,
"to assist the Senate in understanding the scope of the industry affected". This chart includes a
category labeled "Sand and Gravel", noting that there ·are 5,368 year-round mines and 2,450
intermittent mines in this category. S. Rep. No. 95-181 (1977). Furthermore, the Senate report
acknowledges public statements received from, inter alia, the National Sand and Gravel Association.
S. Rep. No. 95-181 (1977).
The House report notes that:
A serious problem remains, ~owever, when one views the safety record for metal and
nonmetal mining relative to that for coal mining. .For the 10 year period since the Metal and
Nonmetallic Mine Safety Act was passed, 1967 through 1976, the overall fatality rate for
metal and nonmetal miners, including those in underground mines, surface mines (including
open pit and sand and gravel mines, and stone quarries) and mills, averaged slightly over half
that for coal miners, who work in underground mines, surface mines, and mechanical
cleaning plants.
H. Rep. No. 95-312 (1977) (emphasis added). As this legislative history·shows, Congress
actively considered the scope ofthe sand.and gravel industry, and the hazards posed by that industry,
when it passed the Mine Act.
Since the passage of the Mine Act, Congress has frequently revisited the issue of sand and
gravel mine regulation. In sixteen appropriation ·acts dating from 1982 through 1998, Congress
specifically restricted the Mine Safety and Health Administration's (MSHA' s) expenditures on the
"enforcement of any training requirement, with respect to shell dredging, or with respect to any
sand, gravel, surface stone, surface clay, colloidal phosphate, or surface limestone mine." (emphasis
added). 3 These successive enactments confirm that Congress was aware that it had granted
jurisdiction over sand and gravel mines to MSHA under the Mine Act.

3

Public Law 105-277, 112 Stat 2681, 2681-345; Public Law 105-78, 111Stat1467, 1475;
Public Law _104-134, 110 Stat 1321, 1321-217; Public Law 104-208, 110 Stat 3009, 3009-240;
Public Law 103-333, 108 Stat 2539, 2546; Public Law 103-112; 107 Stat 1082, 1088; Public Law
102-394, 106 Stat 1792, 1798; Public Law 102-170, 105 Stat°l107, 1112; Public Law 101-517, 104
Stat 2190, 2195; Public Law 101-166, 103 Stat 1159, 1164; Public Law 100-436, 102 Stat 1680;
Public Law 100-202, 101 Stat 1329; Public Law 99-178, 99 Stat 1102; Public Law 98-619, 98 Stat
3305; Public Law 98-139, 97 Stat 871; Public Law 97-377, 96 Stat 1830
28 FMSHRC: 1117

Thus, Congress actively considered regulation ofsand and gravel pits before, during and after
the passage ofthe Mine Act- - in its enactment ofthe predecessor 1966 Act, in its.deliberations over
the Mine Act itself, and in subsequent referencing the Mine Act. Therefore, based on both the case
law and an analysis of the legislative history of the Mine Act, there can be no doubt that the
extraction of sand and gravel is within Mine Act jurisdiction.
Respondent next. argues that the Mine Act does not apply to its· operations because its
products do not affect or enter interstate commerce as required under .Section 4 of the Mine Act.
Section 4 of the Mine Act provides·that: "[e]ach coal or other mine, the products of which enter
commerce or the operations or products ofwhich affect commerce, and each operator of such mine,
and every miner in such mine shall be subject to the provisions of this Act." As the Secretary notes,
the U.S. Court ofAppeals for the Second Circuit directly addressed this issue when it was raised in
an earlier Mine Act proceeding brought by the cited facility's previous owner, D.A.S. Sand &
Gravel Inc., in D.A.S. Sand & Gravel Inc., v. Chao, 386 F.3d 460 (2"d Cir. 2004), cert. denied 125
S. Ct. 2294. As previously noted, the parties have stipulated that privity exists between that
corporation and the present ownership. The Secretary argues that the doctrine of collateral estoppel
therefore precludes Respondent from again raising the issue.
A party is collaterally estopped from raising an issue in a proceeding if: (1) the identical issue
was raised in a previous proceeding; (2) the issue was actually litigated and decided in the previous
proceeding; (3) the party had a full and fair opportunity to litigate the issue; and (4) the resolution
of the issue was necessary to support a valid and final judgement on the merits. See e.g.,
Interoceanica Corp. v. Sound Pilots, Inc. 107 F.3d 86, 91 (2"d Cir. 1997), citing Central Hudson Gas
& Elec. v. Empresa Naviera Santa S.A., 56 F.3d 359, 368 (2d Cir. 1995),Davis v. Halpern, 813 F.2d
37, 39 (2d Cir. l 987)(internal quotations omitted). See also Bethencrgy Mines, Inc., 14 FMSHRC
17, 26 (January 1992).
As the Secretary notes, the four elements of the collateral estoppel test are satisfied here.
Accordingly, the second circuit decision on the issue at bar constitutes a valid and final judgement
on the merits and its holding is binding on the Respondent herein. More specifically the circuit court
concluded that "[b]ecause we hold that the Commerce Clause grants Congress the authority to
regulate DAS's mine, and because we hold that Congress intended to wield its regulatory authority
to the full extent provided it by the Commerce Clause, the mine is within the scope of Section 4 of
the Mine Act, and is therefore subject to regulations promulgated by the Secretary ofLabor." D.A.S.·
2nd Cir. at 464.
In finding that Respondent's mine was subject to the jurisdiction ofthe Mine Act, the second
circuit assumed that the materials sold by Respondent did not travel in interstate commerce. D.A.S.
2nd Cir. at 461 and 463. Thus, the test for collate~al estoppel is fully met i.e. the identical defense
asserted here was raised, litigated, and decided in a prior case, and formed the basis ofthe judgment
entered in that prior case. The jurisdictional defense contained in Respondent's motion must
therefore be denied.

28 FMSHRC 1118

Within the above framework of law then, it is clear that Scheer's operations at the cited
facility are within Mine Act jurisdiction. Respondent's Motion for Summary Decision (Motion to
Dismiss) filed September 19, 2006, is accordingly denied. Petitioner's Cross Motion for Partial
Summary Decision is granted. Hearings will accordingly be scheduled in the near future regarding
whether the violations alleged in the petitions for civil penalties have been committed and, ifso, the
amount of civil penalties to be assessed.

Gary Melick

\

Administrative Law Judge .'
(202) 434-9977: :
Distribution:
Suzanne Demitrio, Office of the Solicitor, 201 Varick Street, New York,.New York 10014
Brian T. Yesko, Conference & Litigation Representative, U.'S. Department of Labor, MSHA,
547 Keystone Drive, Suite 400, Warrendale, PA 15086-7573
David A. Scheer, D.A.S. Sand & Gravel, 1444 Hydesville Road, Newark, NY 14513
/lh

28 FMSHRC 1119

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

December 14, 2006
UNITED MINE WORKERS OF
AMERICA, LOCAL 1248,
Complainant

COMPENSATION PROCEEDING
Docket No. PENN 2002-23-C

v.
MAPLE CREEK MINING, INC.,
Respondent

Maple Creek Mine
Mine ID 36-00970

ORDER GRANTING RESPONDENT'S MOTION
TO CERTIFY FOR INTERLOCUTORY REVIEW
This case is before me on a complaint filed pursuant to section 111 of the Mine Safety
and Health Act of 1977 ("Act"), 30 U.S.C. § 821. The United Mine Workers of America; LOcal
1248 ("UMWA"), seeks compensation for nriners idled by an order issued by the Secretary of
Labor's Mine Safety and Health Administration ("MSHA") requiritig the withdrawal of miners
from the Maple Creek Mine, specifically, Order No. 7060223, which was issued pursuant to
section 104(b}ofthe Act on July 31, 2001. Mapl~·creek moved for su.nlmary decfsion,
.
contending that Order No. 7060223 was later vacated in conJU.nctiori with settlement of a civil
penalty proceeding and, consequently, that the prayed-for compensation is not available under
section 111. By Order dated May 4, 2006, I found that the subject order had become "final"
within the meaning of section 111, and denied the motion. 28 FMSHRC 407.
Maple Creek then moved for reconsideration. The Secretary of Labor was invited to
appear as amicus, and filed a brief addressing certain issues. By order dated October 24, 2006,
that motion was denied. 28 FMSHRC 904. Maple Creek has now moved for certification of that
ruling for interlocutory review, pursuant to Commission Procedural Rule 76, 29 C.F.R.
§ 2700.76. The UMWA has opposed the motion.
Interlocutory review is appropriate where the ruling sought to be appealed "involves a
controlling question of law and ... immediate review may materially advance the final
disposition ofthe proceedings." 29 C.F.R. § 2700.76(a). For the reasons that follow, I find that
the ruling at issue, the denial of Maple Creek's motion for summary decision, involves a
controlling question of law and that immediate review by the Commission may materially
advance the final disposition of the case.
The central issue controlling Maple Creek's liability for compensation is whether the
section 104(b) withdrawal order became final for purposes of section 111 of the Act. If it did, as
the UMW A contends, then Maple Creek is obligated to pay compensation to miners idled by the
28 FMSHRC 1120

order. If the order did not become final, i.e., was vacated after all interested parties were given
an opportunity for a public hearing, then Maple Creek would have no obligation to pay
compensation and it would be entitled to summary decision. As noted in the order denying
Maple Creek's motion for reconsideration, there has been con~iderable inconsistency in both the
Secretary's position and rulings by Commission Administrative Law Judges on related issues.
Moreover, the Commission has identified, but not decided, a-jurisdictional issue that could have
a substantial impact upon resolution of the ultimate question.
Immediate review could materially advance the ultimate disposition of the proceedings
because, if Maple Creek prevails, further litigation of potentially difficult liability i~es and
numerous potential disputes over entitlement and amounts of compensation owed to individual
miners might be avoided. The UMWA seeks compensation, not only for miners directly affected
by the withdrawal order, but for miners working at a preparation plant, which operates under a
different mine identification number, and whom the UMWA contends' were also idled as a result
of the order. Maple Creek opposed the UMWA's motion:tp~amend the compl~t to add a claim
for the preparation plant miners, and contends that they are n'tit entitled to compensation under
the Act. If Maple Creek prevailed on appeal, the issue of the preparation plant miners'
entitlement would not have to be decided. ·
As noted in Maple Creek's reply to the UMWA's opposition to its motion, there are
approximately 200 miners who may have been directly affected by the order, and an additional
50 preparation plant miners who claim to have been affected. Available records may be
sufficient to establish the identities of miners entitled to compensation, and the amount of
compensation they would be entitled to. However, the task of examining those records has not
yet been completed, and there are numerous potential factual issues that could arise over both
entitlement and amount of compensation, particularly as to the preparation plant workers. If
Maple Creek prevailed on appeal, performance of those tasks and resolution of those issues
would be avoided.
Based upon the foregoing, Maple Creek's piotion to certify for interlocutory review the
ruling on its motion for summary decision is hereby .GRANTED.

28 FMSHRC 1121

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

/mh

·.

28 FMSHRC 1122

Federal Mine Safety & Health Review Commission
Calendar Year 2006 Index
This index of decisions and orders issued during the calendar year 2006 is divided into
two parts: decisions and orders issued by the Commission, followed by those issued by
the Administrative Law Judges (ALJ's}. The listings include title, docket number, date
of issuance, and page number in the Federal Mine Safety & Health Review
Commission's Bluebook (FMSHRC), volume 28. Where the Secretary of Labor, Mine
Safety and Health Administration is a party, listings are under the name of the opposing
party.

Commission Decisions and Orders
Case Name

Dock~t Number

Date

Page Number
FMSHRC Vol. 28

Advent Mining, LLC

KENT 2007~58

12-13-2006

·Pg. 963

Aggregates
Construction, Inc.

CENT 2006-195-M

07-20-2006

Pg.466

Air Pollution Testing,
Inc.

WEST 2006-368-M

07-07-2006

Pg. 433

Aracoma Coal Co.

WEVA 2007-40

12-20-2006

Pg.979

Asarco, LLC

WEST 2006-378-M

06-02-2006

Pg. 285

Ash Grove Cement Co.

CENT 2007-2-M

11-13-2006

Pg.922

Austin Powder Co.

LAKE 2006-117-M
VA2006-24

07-07-2006
07-07-2006

Pg.424
Pg.430

Bennett (employed by
Bennett Mineral)

VA 2006-33-M

08-30-2006

Pg. 626

Blethen (employed by
Whibco, Inc.)

YORK 2006-47-M

06-13-2006

Pg. 296

1

Commission Decisions and Orders
Case Name

Docket Number

Date

Page Number
FMSHRC Vol. 28

Broussard (employed by
North American Salt)

CENT 2006-102-M

03-24-2006

Pg.90

Butler Sand Co.

SE 2007-26-M

11-27-2006

Pg.934

Cam Mining, LLC

WEST 2007-37

11-13-2006

Pg.928

Carmeuse Lime & Stone,
Inc.

KENT 2006-307-M

07-07-2006

Pg.421

Celite Corp.

WEST 2006-266-M

04-25-2006

Pg. 105

Clean Energy Mining
Co.

KENT 2006-174

03-06-2006

Pg.87

Climax Molybdenum Co. WEST 2006-322-M

04-25-2006

Pg. 111

Consol Energy, .Jnc.

WEYA 2006-769

08-02-2006

Pg.487

Crall & Bowes, Inc.

WEST 2006-387:-M

07-07-2006

Pg. 436.

Cumberland Coal
Resources, LP

PENN 2004-73-R

08-29-2006 · Pg. 545

D. Blosch Crushing, Inc.

WEST 2006-265-M

04-04-2006

Pg.98

D.A.S. Sand & Gravel,
Inc.

YORK 2006-45-M

05-25-2006

Pg.244

Drummond Co.

SE 2006-280
SE 2007-1

08-07-2006
10-30-2006

Pg.498
Pg.813

DS Mine & Development
Co.

WEST 2006-432-M

07-14-2006

Pg.462

E.C. Voit & Sons

LAKE 2007-13-M

12-08-2006

Pg.957

Eastern Associated Coal,
LLC

WEVA 2007-144

12-21-2006

Pg.999

Emerald Coal Res., LP

PENN 2006-156

03-30-2006

Pg.94

2

Commission Decisions and Orders
Case Name

Docket Number

Date

Page Number
FMSHRC Vol. 28

FMC Corp.

WEST 2006-592-M

12-20-2006

Pg.972

George P. Reintjes Co.

KENT 2004-37-M

10-17-2006

Pg.806

Golden Phoenix
Materials, Inc.

WEST 2006-460-M

07-20-2006

Pg.469

Greer Limestone Co.

WEVA 2007-125-M

12-05-2006

Pg.953

H. B. Mellott Estate, Inc.

WEVA 2006-70-R

01-23-2006

Pg. 5

Hanson Aggregates
Southeast, Inc.

SE 2006-212-M

07-07-2006

Pg.427

Hibbing Taconite Co.

LAKE 2006-152-M

12-20-2006

Pg.975

Highland Mining Co.

KENT 2006-406

08-02-2006

Pg. 484

Holliday Sand & Gravel
Co.

CENT 2006-196-M

08-02-2006

Pg.477

Honachi (employed by
Whibco, Inc.)

YORK 2006-63-M

07-13-2006

Pg. 452

Hosea 0. Weaver &
Sons, Inc.

SE 2005-301-M

08-29-2006
10-10-2006

Pg.542
Pg.803

Imerys Pigments, LLC

SE 2005-236-M

09~29-2006

Pg. 788

IO Coal Co.

WEVA 2006-86

02-27-2006

Pg. 17

Jeppesen Gravel

CENT 2006-95-M

04-10-2006

Pg. 101

Jim Walter Resources,
Inc.

SE2003-160
SE 2005-51
SE 2007-8

08-30-2006
12-21-2006
11-02-2006

Pg.579
Pg.983
Pg.919

KMMC, LLC (doing
business as Vision
Mining, Inc.)

KENT 2006-261

06-02-2006

Pg. 288

3

Commission Decisions and Orders
Case Name

Docket Number

Date

Page Number
FMSHRC Vol. 28

Lake View Rock
Products, Inc.

WEST 2006-548-M

11-27-2006

Pg. 937 ·

Lehigh Cement Co.

SE 2006-172-M

07-11-2006

Pg.440

Longview Construction
& Development

WEST 2006-507-M

08-25-2006

Pg.534

Markfork Coal Co.

WEVA 2006-63

.01-07-2006

Pg. 1

Marsh Coal Co.

KENT 2006-386

07-21-2006

Pg.473

Martin County Coal
Corp.

KENT 2002-42-R

05-30-2006

Pg. 247

McClain (Sec'y of Labor
on behalf of) v. Misty
Mountain Mining, Inc.

KENT 2005-96-D

06-28-2006

Pg. 303 ·

Moltan Co.

SE2006-315-M

12-13-2006

Pg.966

Mosaic Phosphates Co.

SE 2007-10-M

11-13-2006

Pg. 925

Neiswonger
Construction, Inc.

PENN 2006-26-M

07-14-2006

Pg.459

Nelson Quarries, Inc.

CENT 2006-200-M
CENT 2006-228-M

08-02-2006
08-25-2006

Pg.480
Pg.538

North Star Contractors,
Inc.

WEVA2006-310

05-24-2006

Pg.241

Oak Grove Resources,
LLC

SE 2005-250

10-30-2006

Pg. 809

Ohio County Coal Co.

KENT 2006-469

11-30-2006

Pg.941

Ohio Valley Coal Co.

LAKE 2006-120

07-14-2006

Pg.455

Paul F. Becker Coal Co.

PENN2006-9

05-02-2006

Pg. 237

4

Commission.Decisions and Orders
Case Naine

Docket Number

Date

Page Number
FMSHRC Vol. 28
Pg. 1002

Parsons Steel Erectors,
Inc.

WEST 2007-99-M

12-21-2006

Plateau Mining Corp.

WEST 2002-207

08-22-2006 . Pg. 501

Premier Elkhorn Coal
Co.

KENT 2007-69

12-13-2006

Pg.960

R. G. Huston Co.

LAKE 2006-101-M

06-02-2006

Pg.282

R. J. Cincotta Co.

YORK 2005-116-M

02-07-2006
08-02-2006

Pg. 7
Pg. 490

Riverton Investment
Corp.

WEVA 2006-410-M

06-13-2006

Pg.300

Sedgman

SE 2002-111

06-30-2006

Pg.322

Shamokin Filler Co.

PENN 2007-30

11-30-2006

Pg. 944

Southern Nevada Paving

WEST 2006-100-M

02-23-2006

Pg. 10

Speed Mining, Inc.

WEVA 2005-20-R

09-29-2006

Pg. 773

Stillhouse Mining Co.

KENT 2006-488

12-19-2006

Pg.969

Stokes, Ronald D.

WEVA2006-35

05-02-2006

Pg.231

Stoudt's Ferry
Preparation Co.

PENN 2007-15

11-27-2006

Pg.931

Strunk (employed by
Lehigh Cement Co.)

SE 2006-173-M

07-11-2006

Pg.443

Tresca Bros. Sand &
Gravel, Inc.

YORK 2005-118-M

08-02-2006

Pg.494

U.S. Silica Co.

WEYA 2006-720-M

07-13-2006

Pg.449

Unimin Corp.

SE 2006-311-M

12-04-2006

Pg.950

5

Commission Decisions and Orders
Case Name

·Docket Number

Date

Page . Number
FMSHRC Vol. 28

Upper Valley Materials,
Inc.

CENT 2007-37-M

12-04-2006

Pg.. 947

Wabash Mine Holding
Co.

LAKE 2006-118

07-11-2006

Pg.446

Whibco of New Jersey,
Inc.

YORK 2006-50-M

06-13-2006

Pg.292

Williams, Jimmy J.

WEYA 2006-39

05-02-2006

Pg.234

Williams & Sons Slate &
Tile, Inc.

PENN 2006-75-M

02-27-2006

Pg. 13

6

Federal Mine Safety & Health Review Commission
2006 Index
ALJ Decisions and Orders
Case Name

Docket Number

Date

Page Number
FMSHRC Vol. 28

Anker West Virginia
Mining Co.

WEVA 2005-221-R

10-23-2006

Pg.888

Aracoma Coal Co.

WEVA 2006-801-R
WEVA 2006-824-R

11-16-2006
08-25-2006
09-29-2006
10-24-2006

Pg. 1035
Pg. 763
Pg.898
Pg.910

Arch of West Virginia

WEVA 2005-209

07-18-2006

Pg.694

Austin Powder Co.

SE 2006-328-RM

10-31-2006

Pg.917

Bagley (Sec'y of Labor
on behalf of) v. Jim
Walter Resources, Inc.

SE 2005-239-D

01-26-2006

Pg.48

Black Wolf Coal Co.

PENN 2004-157

07-21-2006

Pg.699

Black Hawk Mining

WEVA 2006-22

02-28-2006

Pg. 82

Bob Bak Construction

CENT 2005-139-M

09-11-2006

Pg. 817

Bowen v. Sidney Coal
Co.

KENT 2005-249-D

03-24-2006

Pg. 194

DiCaperl Minerals Corp.

WEST 2004-511-RM

07-30-2006

Pg. 720

Dowlin, Ill v. Western
Energy Co.

WEST 2004-492-D

01-20-2006

Pg.23

Elk Run Coal Co.

WEVA 2003-149
WEVA 2006-729-R

03-22-2006
11-21-2006

Pg. 190
Pg. 1048

Elmore Sand & Gravel,
Inc.

SE 2005-48-M
EAJ 2006-01

07-19-2006 · Pg. 631
12-07-2006 Pg. 1056

7

Case Name

Docket Number ·

Date

Page Number
FMSHRC Vol. 28

FMC Corp.

WEST 2005-178-M

01-31-2006

Pg.50

Freeman Rock, Inc.

WEST 2006-219-M

05-18-2006

Pg.354

Gonzales v. Rinker
Materials Corp.

WEST 2005-288-DM

02-08-2006

Pg.64

Hanson Aggregates
Southeast

SE2006-6-M

11-30-2006

Pg. 1049

Hibbing Taconite Co.

LAKE 2005-50-RM

03-15-2006

Pg. 143 .

Highland Mining Co.

WEVA 2006-712-R

08-28-2006
09-29-2006

Pg. 766
Pg.896

Hosea O. Weaver &
Sons, Inc.

SE 2005-301-M

07-13-2006
08-17-2006

Pg.688
Pg. 751

Imerys Pigments, LLC

SE 2005-236-M

03-22-2006

Pg. 180

Independence Coal Co.

WEVA 2006-537-R

08-23-2006

_Pg. 759

Jim Walter Resources,
Inc.

SE2005-51

03-09-2006

Pg.134

Laurel Aggregates, Inc.

PENN 2006-217-RM

10-26-2006
11-20-2006

Pg.912
Pg. 1043

Marfork Coal Co.

WEVA .2006-666-R
WEVA 2006-707-R
WEVA 2006-755-R
WEVA 2006-788-R

08-08-2006
08-08-2006
12-12-2006
08-11-2006
09-11-2006
09-27-2006

Pg. 742
Pg. 738
Pg. 1066
Pg. 745
Pg.890
Pg.842

Martin County Coal
Corp.

KENT 2006-416-R

08-21-2006

Pg. 754

Master Aggregates Toa
Baja Corp.

SE 2004-68-M

03-30-2006
09-22-2006

Pg.225
Pg. 835

National Cement Co. of
California

WEST 2004-182-RM

01-10-2006

Pg.21

8

Case Name

Docket Number

Date

Page Number
FMSHRC Vol. 28

Osbon (Sec'y of Labor
on behalf of) v. R. E.
Grills Construction Co.

SE2006-DM

10-06-2006

Pg.884

Palmer (Sec'y of Labor
on behalf of) v. Asarco,
Inc.

WEST 2005-489-DM

08-28-2006

Pg. 669

Pennsy Supply, Inc.

YORK 2005-111-M

07-28-2006

Pg. 652

Philip Environmental
Services

CENT 2000-294-M

06-26-2006

Pg. 384

QmaxCo.

WEST 2003-451-M

08-14-2006
09-29-2006

Pg. 748
Pg. 848

R. J. Cincotta Co.

YORK 2005-116- M

02-28-2006
04-11-2006

Pg. 85 .
Pg.228

Raw Sales & Processing
Co.

WEVA 2006-716-R

10-11-2006

Pg. 900

San Juan Coal Co.

CENT 2004-212

01-24-2006

Pg. 35

Scheer (doing business
as) D.A.S. Sand &
Gravel

YORK 2006-9-M

11-30-2006

Pg. 1115

Sedgman

SE 2002-111

10-18-2006

Pg. 886

Smasal Aggregates &
Asphalt, LLC

CENT 2006-98-DM

03-21 -2006

Pg. 172

Spencer Quarries, Inc.

CENT 2005-123-RM

11-09-2006

Pg. 1005

Spartan Mining Co.

WEVA 2006-532-R
WEVA 2006-628-R
WEVA 2006-629-R

08-23-2006
08-28-2006
09-28-2006

Pg. 756
Pg. 768
Pg. 892

Stillwater Mining Co.

WEST 2003-196-M

03-02-2006

Pg. 115

Stirrat Coal Co.

WEVA 2006-737-R

10-11-2006

Pg.902

9

Case Name

Docket Number

Date

Page Number
FMSHRC Vol. 28

Suburban Sand &
Gravel

WEST 2004-464-RM

06-23-2006

Pg. 359

Summit Anthracite

PENN 2006-191

08-22-2006

Pg. 665

UMWA, Local 1248 v.
Maple Creek Mining

PENN 2002-23-C

PENN 2002-24-C

05-04-2006
10-24-2006
12-14-2006
05-04-2006

Pg.407
Pg.904
Pg. 1120
Pg. 415

Wabash Mine Holding
Co.

LAKE 2005-83-R

03-16-2006

Pg. 155 ·

Washington Rock
Quarries, Inc.

WEST 2004-264-M
WEST 2005-403-M

12-22-2006
05-02-2006

Pg. 1080
Pg.403

Weirich Bros., Inc.

CENT 2005-24-M

02-24-2006

Pg. 66

Western Rock Reduction
Co.

WEST 2006-251-M

08-18-2006

Pg.661

10
G::.lC:>' U.S. GOVERNMENT PRINTING OFFI CE: 2007--330-902/43956