May and June 2018
TABLE OF CONTENTS

COMMISSION DECISIONS
05-02-18

ALCOA WORLD ALUMINA, LLC

CENT 2015-128

Page 655

05-10-18

JEFFREY PAPPAS v.
CALPORTLAND COMPANY and
RIVERSIDE CEMENT COMPANY

WEST 2016-264-DM

Page 664

06-27-18

SEC. OF LABOR O/B/O ERIC
GREATHOUSE and UNITED MINE
WORKERS AMERICA
INTERNATIONAL UNION v.
MONONGALIA COUNTY COAL
COMPANY, CONSOLIDATION
COAL COMPANY, MURRAY
AMERICAN ENERGY, INC., and
MURRAY ENERGY
CORPORATION

WEVA 2015-904-D

Page 679

COMMISSION ORDERS
05-04-18

SAN JUAN COAL CO.

CENT 2017-325

Page 733

05-04-18

CASTILLO READY MIX, INC.

CENT 2018-27-M

Page 736

05-04-18

JAY FULKROAD & SONS, INC.

PENN 2018-33-M

Page 739

05-04-18

WESCO

WEST 2016-321

Page 742

05-04-18

HOLROYD CO., INC.

WEST 2017-492-M

Page 745

i

05-04-18

GRANITE CONSTRUCTION
COMPANY

WEST 2017-637-M

Page 749

05-04-18

MOUNTAIN CEMENT COMPANY

WEST 2017-638-M

Page 752

05-04-18

GREAT NORTHWEST, INC.

WEST 2017-671-M

Page 755

05-04-18

AMERICAN ROCK SALT
COMPANY, LLC

YORK 2018-5-M

Page 758

05-24-18

V-TECH SAND, LLC

CENT 2016-293-M

Page 762

06-15-18

THE AMERICAN COAL COMPANY

LAKE 2009-35

Page 765

06-28-18

SEC. OF LABOR O/B/O THOMAS
McGARY and RON BOWERSOX and
UNITED MINE WORKERS OF
AMERICA INTERNATIONAL
UNION v. THE MARSHALL
COUNTY COAL CO., McELROY
COAL CO., MURRAY AMERICAN
ENERGY, INC., and MURRAY
ENERGY CORPORATION

WEVA 2015-583-D

Page 767

ADMINISTRATIVE LAW JUDGE DECISIONS
05-03-18

NALC, LLC

LAKE 2018-0020

Page 779

05-03-18

PEABODY TWENTYMILE MINING,
LLC

WEST 2017-0553

Page 792

05-31-18

ROCK PRODUCTS, INC.

CENT 2017-0397

Page 808

06-13-18

JAMESTOWN QUARRIES

SE 2017-252

Page 832

ii

06-13-18

ORIGINAL SIXTEEN TO ONE
MINE, INC.

WEST 2017-0119

Page 843

06-28-18

PEABODY MIDWEST MINING,
LLC

LAKE 2017-450

Page 861

06-29-18

OIL-DRI PRODUCTION COMPANY

SE 2015-0285

Page 876

ADMINISTRATIVE LAW JUDGE ORDERS
05-22-18

SEC. OF LABOR O/B/O LOUIS
SILVA, JR. v. AGGREGATE
INDUSTRIES WRC, INC.

WEST 2017-265-DM

Page 947

05-31-18

PENNSY SUPPLY INC.

YORK 2018-4-M

Page 949

06-04-18

THE OHIO COUNTY COAL
COMPANY

WEVA 2018-0165

Page 951

06-05-18

BRADLEY PATE, employed by THE
AMERICAN COAL COMPANY

LAKE 2018-155

Page 957

06-05-18

ROCKWELL MINING, LLC

WEVA 2017-0220

Page 965

iii

Review was granted in the following cases during the months of May and June 2018:
Secretary of Labor v. Solar Sources, Inc., Docket No. LAKE 2017-99 (Judge Moran, March 29,
2018)
Secretary of Labor v. Solar Sources, Inc., Docket No. LAKE 2017-52 (Judge Moran, April 3,
2018) (Interlocutory Review)
Secretary of Labor v. Sunbelt Rentals, Inc., Docket No. VA 2013-291 (Judge McCarthy, April
27, 2018)

No case was denied during the months of May and June 2018.

iv

COMMISSION DECISIONS

40 FMSHRC Page 654

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

May 2, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket Nos. CENT 2015-128
CENT 2015-365
CENT 2015-401

ALCOA WORLD ALUMINA, LLC

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
DECISION
BY THE COMMISSION:
These proceedings arise under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (2012) (“Mine Act”). The dockets involve an accident that occurred at a
mine operated by Alcoa World Alumina, LLC. While employees of a contractor were attempting
to clean a pipe that was blocked by a rock-like substance (“scale”), caustic liquid began to spew
from the pipe and burned one of the contractor’s employees. Steven Alvarado, an employee of
Alcoa, was in the area watching the contractor’s employees at the time of the accident.
The Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued a
citation and two orders to Alcoa in connection with this accident. Citation No. 8778037 asserts
that the operator, by failing to ensure that a pipe was empty, failed to block hazardous movement
of liquid in the pipe.1 Order Nos. 8778038 and 8778039 assert that the operator failed to ensure
that all contractors were wearing proper personal protective equipment and that all contractors
had safe access to the piping system. MSHA designated all three charged violations as
significant and substantial (“S&S”).2 MSHA also designated the alleged violations as resulting
from the operator’s high negligence and unwarrantable failure to comply with mandatory safety

1

This citation, initially issued as an order, was subsequently modified by MSHA to a
citation. Citation No. 8778037-02.
2

The S&S terminology is taken from section 104(d)(1) of the Mine Act, 30 U.S.C.
§ 814(d)(1), which distinguishes as more serious any violation that “could significantly and
substantially contribute to the cause and effect of a . . . mine safety or health hazard.”

40 FMSHRC Page 655

standards.3 MSHA claimed that Alcoa’s employee Alvarado supervised the contractors and was
an agent of Alcoa during the accident and alleged violations.
Alcoa did not dispute the existence of the three violations, or that they were S&S, but did
argue that the violations were not the result of high negligence and unwarrantable failure. After a
hearing on the merits, a Commission Administrative Law Judge determined that Alvarado was
not an agent of Alcoa because he did not supervise the contractors during the accident.
Therefore, the Judge did not impute Alvarado’s conduct to Alcoa when assessing the operator’s
negligence and determining whether there was an unwarrantable failure. 39 FMSHRC 128, 147
(Jan. 2017) (ALJ). He ruled that none of the violations was the result of the operator’s
unwarrantable failure, reduced the negligence determination for each violation, and significantly
lowered the penalties.
The Secretary petitioned the Commission to review the Judge’s decision. On appeal, the
Secretary contends that the Judge erred in finding that Alvarado was not Alcoa’s agent. The
Secretary also argues, in the alternative, that if Alvarado was not an agent, Alcoa’s failure to
designate someone to supervise the contractors itself constituted high negligence and
unwarrantable failure.
We conclude that substantial evidence supports the Judge’s determination that Alvarado
was not an agent of the operator in connection with the accident. We further conclude that the
Secretary did not properly raise his alternative argument. Therefore, we affirm the Judge’s
findings as to negligence and unwarrantable failure for the citation and orders.
I.
Factual Background
Alcoa operates an alumina plant in Texas. Alumina is used to produce aluminum metal.
Alcoa’s facility extracts alumina from bauxite. As part of this process, pipes in the press building
transport liquid bauxite to presses.4 While the liquid bauxite travels through the pipes, it cools
and hardens. The hardening of the bauxite can result in scale, a rock-like substance, building up
within the pipes. To clean scale, the operator removes pipes from the production process, drains
liquid from within the pipes, locks and tags out the piping system, and treats the pipes with a
caustic solution (referred to simply as “caustic”). 39 FMSHRC at 139-40.

3

The unwarrantable failure terminology is taken from section 104(d)(1) of the Mine Act,
30 U.S.C. § 814(d)(1), which establishes more severe sanctions for any violation that is caused
by “an unwarrantable failure of [an] operator to comply with . . . mandatory health or safety
standards.”
4

Presses are long tube-shaped devices with a series of screens that capture and filter solid
materials like sand and mud from the slurry. 39 FMSHRC at 140 n.11.

40 FMSHRC Page 656

During caustic cleaning, two metal plates—a blind plate and a Dutchman plate—are
placed at opposite ends of a T-pipe. The T-pipe is then connected to two risers.5 The blind, a
round metal plate, is placed in the T-pipe to stop the flow of caustic into the riser which remains
in production. The Dutchman, a metal plate with a hole, is placed in the T-pipe to allow caustic
to flow into the riser designated for cleaning. Once the first pipe has been cleaned, the caustic is
transferred to the second pipe through a blind swap, a process by which the blind plate swaps
positions in the T-pipe with the Dutchman. Before performing a blind swap, the pipes at issue
must be empty, the T-pipe connecting them must be removed, and the piping system must be
locked and tagged out. After the blind swap is complete, the second pipe is then cleaned with the
caustic. Id. at 141.
Alcoa periodically uses a contractor, Turner Industries, for certain tasks. On the morning
of September 3, 2014, three contractor employees of Turner—Rusty Morales, Dominic Cano,
and Leo Gaytan—arrived at the mine to perform a blind swap, i.e., a transfer of caustic, between
Riser 27, which had just been cleaned, and Riser 25. Upon arriving, the contractors met with Jeff
McCaskill, an Alcoa supervisor, and discussed the hazards presented by the task. Employees of
Alcoa, including McCaskill, drained, locked, and tagged out the piping system because
contractors were not authorized to lock out/tag out pipes. McCaskill also told Alcoa employee
Steven Alvarado “to keep an eye” on the contractors while they performed the blind swap.6
McCaskill then left the mine around lunchtime. Tr. 130, 309; 39 FMSHRC at 142-43, 145.
Following McCaskill’s departure, Morales, Cano, and Gaytan went to the press building.
Alvarado reviewed the isolation points for the piping system with Morales prior to the blind
swap. The contractors then removed the relevant T-pipe and blind only to discover that a chunk
of scale was blocking the opening to Riser 25. Cano and Gaytan began to jackhammer the scale
to remove it from the pipe.7 While jackhammering, Gaytan used a stand. Cano, however, did not
use the stand but knelt directly on the piping system. At some point, the jackhammer broke
through and created a hole in the scale. Alvarado, who was standing nearby, noticed liquid
spewing from this hole and shouted to Cano and Gaytan to stop jackhammering. At this moment,
Morales, who was not wearing proper personal protective equipment, was struck in the back by
the leaking liquid and severely burned. Alvarado immediately pulled Morales into a chemical
safety shower to rinse off the liquid. Tr. 384-85; 39 FMSHRC at 143-44.
After investigating the accident, MSHA issued the citation and orders to Alcoa. MSHA
designated all three violations as S&S. MSHA also designated these violations as resulting from
Alcoa’s high negligence and unwarrantable failure, in part because MSHA asserted Alvarado
was an agent of Alcoa and therefore imputed his conduct to the operator.

5

The pipes that connect to presses are referred to as risers. 39 FMSHRC at 140.

6

Although Alvarado had served as a Temporary Acting Supervisor (“TAS”) in the past,
McCaskill did not designate Alvarado as an acting supervisor on the day of these events. 39
FMSHRC at 145.
7

Alvarado had previously reminded Gaytan to remove scale from the pipe. Tr. 384.

40 FMSHRC Page 657

Citation No. 8778037 was issued because liquid in a pipe was not blocked against
hazardous motion resulting in accidental burning of a contractor. MSHA alleged that Alcoa
violated 30 C.F.R. § 56.14105, which requires that “[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.” The citation stated that “Alcoa’s management engaged in
aggravated conduct constituting more than ordinary negligence in that they did not verify that the
[piping] system was completely blocked against hazardous movement of liquor.” Citation No.
8778037.
Order No. 8778038 was issued for a failure to require Morales to use proper personal
protective equipment (“PPE”) and for Alvarado’s failure to wear proper PPE. MSHA alleged that
Alcoa violated 30 C.F.R. § 56.15006, which requires that “[s]pecial protective equipment and
special protective clothing shall be provided, maintained . . . and used whenever hazards of
process or environment, chemical hazards, radiological hazards, or mechanical irritants are
encountered in a manner capable of causing injury or impairment.” The order stated that
“Alcoa’s management engaged in aggravated conduct constituting more than ordinary
negligence in that [an] agent was present during the work and observed the [contractor’s]
supervisor not wearing the proper equipment. The . . . agent failed to wear the required PPE as
well.” Order No. 8778038.
Order No. 8778039 was issued for the operator’s failure to ensure that Cano, who kneeled
on the piping system while jackhammering, had safe access to Riser 25. MSHA alleged that
Alcoa violated 30 C.F.R. § 56.11001, which requires that “[s]afe means of access shall be
provided and maintained to all working places.” The order stated:
A miner gained access to the scaled up line by climbing on top of
the [pipe] . . . . This . . . expose[d] the miner to falling from the
pipe to the concrete floor as well as a sudden release of hot liquor
from the scaled up line . . . . Alcoa’s management engaged in
aggravated conduct constituting more than ordinary negligence in
that the . . . agent observed the practice and failed to act.
Order No. 8778039.
II.
The Judge’s Decision
The Judge noted that under the Mine Act, the conduct of an agent of the operator, but not
of a rank-and-file miner, can be imputed to the operator. The Judge recognized that Alvarado
was neither designated nor paid as a Temporary Acting Supervisor, despite having been so
designated in the past. The Judge also recognized that when considering agency, the Commission
has historically focused on the miner’s function rather than his job title. After considering the
evidence, the Judge determined that Alvarado was not an agent, and did not impute Alvarado’s
conduct to Alcoa for purposes of negligence and unwarrantable failure. 39 FMSHRC at 135,
145-47.

40 FMSHRC Page 658

First, the Judge considered whether McCaskill delegated supervisory authority when he
instructed Alvarado to “keep an eye” on the contractors. The Judge credited Inspector Brett
Barrick’s testimony that it is normal for a supervisor to instruct rank-and-file employees to “keep
an eye” on contractors. The Judge also credited Alvarado’s testimony that instead of serving as
an agent, he was merely present in the area because he had a task to complete (cleaning Riser 25
with caustic) following the blind swap. Therefore, the Judge found that McCaskill’s instruction
did not delegate supervisory authority. Tr. 337-40, 403; 39 FMSHRC at 145.
Second, the Judge considered whether Alvarado’s tag-out authority indicated supervisory
authority. The Judge recognized that Alvarado, in contrast to the contractors, possessed authority
to tag out certain equipment. However, the Judge determined that the Secretary failed to show
that Alvarado’s tag-out authority (“Level 2” tag-out authority) differed from that of other rankand-file miners employed by the operator. Therefore, the Judge concluded that Alvarado’s tagout authority did not indicate supervisory authority. 39 FMSHRC at 145-46.
Third, the Judge considered the testimony of the Turner employees regarding Alvarado’s
status. Morales testified that he perceived Alvarado to be a supervisor and that McCaskill had
designated Alvarado as the supervisor for the blind swap. However, the Judge noted that Morales
had filed a lawsuit against Alcoa and Alvarado as a result of injuries Morales suffered from the
accident. Therefore, the Judge determined that Morales would have an incentive to blame
Alvarado for his injuries by testifying that Alvarado had supervisory responsibility. The Judge
also noted that Morales’ testimony was contradicted by the testimony of other witnesses. For
these reasons, the Judge discredited Morales’ testimony regarding Alvarado’s supervisory status.
Id. at 146.
In addition, the Judge discredited Gaytan’s testimony that he perceived Alvarado to be
“in charge” of the contractors. The Judge found that Gaytan perceived Alvarado to be a
supervisor merely because Alvarado had reminded Gaytan to remove scale from the piping
system. The Judge dismissed Gaytan’s testimony because Gaytan was already aware of this
assignment prior to Alvarado’s instruction. Id. at 147.
Gaytan also testified that Alcoa would normally assign one of its employees to supervise
the blind swap. However, the Judge noted testimony to the contrary by Dwayne Maly, the
training superintendent of Alcoa, who testified that Alcoa normally would not assign an
employee to supervise this task. While the Judge did not explicitly discredit Gaytan’s testimony
regarding Alcoa’s normal practice, the Judge ultimately concluded that Alvarado was not an
agent. Id. at 145-47.
Because the Judge concluded that Alvarado was not acting as an agent of Alcoa during
the time in question, he did not impute Alvarado’s conduct to Alcoa for purposes of the
operator’s negligence and unwarrantable failure. The Judge further disagreed with the MSHA
inspector that the violations were a result of the operator’s high negligence and unwarrantable
failure. The Judge found that the operator exhibited low negligence for Citation No. 8778037 and

40 FMSHRC Page 659

Order No. 8778038, and moderate negligence for Order No. 8778039, and that none of the
violations resulted from the operator’s unwarrantable failure.8 Id. at 147, 163-64.
III.
Disposition
A. Substantial evidence supports the conclusion that Alvarado was not an agent of
the operator in connection with the relevant violations.
1. Citation No. 8778037
The citation alleges that the operator failed to ensure that Riser 25 was properly drained
and empty. MSHA designated the citation as resulting from high negligence and an
unwarrantable failure. In making these assertions, the Secretary seeks to impute Alvarado’s
conduct to the operator, arguing that Alvarado, a rank-and-file employee, supervised contractors
from Turner on September 3, 2014. However, the citation, which by its terms only involves
conduct by Alcoa’s employees in draining the pipe and tagging out the piping system, does not
encompass any conduct by the contractors. 9
Furthermore, there is no evidence that any of the employees from Turner, who lacked
tagging authority, assisted the operator’s employees in draining and tagging out the piping
system, and thus the issue of Alvarado’s alleged supervisory role during the subsequent blind
swap is not relevant. Accordingly, there is no basis for the Secretary’s imputation of Alvarado’s
actions to the operator based on the allegation that he supervised the contractors.10
At trial, the Secretary argued that the operator was highly negligent because it failed to
use special 3x2 drains or flush verification (flushing pipe with water) when draining Riser 25.
While the Judge found that the operator was negligent in failing to use special 3x2 drains and
flush verification for Riser 25, he concluded that such failures reflected low rather than high
negligence because flush verification would not have prevented the accident, and the operator
reasonably believed that flush verification was unnecessary. 39 FMSHRC at 151-52. The
Secretary has not challenged these findings on appeal. Therefore, we cannot consider them here.
8

At the end of his decision, the Judge reduced the total penalty for these three violations
from $69,831 to $6,224, partially due to his negligence and unwarrantable failure findings. 39
FMSHRC at 162-63.
9

The record indicates that three employees of Alcoa—McCaskill, Alvarado, and Rudy
Pena—were involved in isolating the piping system at issue and draining the pipes. Tr. 412, 41418.
10

The Judge found that although Gaytan mentioned a leak from the line when Alvarado
was nearby, “[i]t was not established that Alvarado knew that the system was not properly
verified.” 39 FMSHRC at 154. The Secretary has not challenged that finding, and so even if
Alvarado were an agent, he had no knowledge to impute to the operator.

40 FMSHRC Page 660

2. Order Nos. 8778038 and 8778039
Order No. 8778038 was issued because a contractor, Morales, failed to wear proper
personal protective equipment. Order No. 8778039 was issued because a Turner employee,
Cano, unsafely knelt on a pipe while jackhammering scale. Each order alleges that Alcoa
engaged in aggravated conduct because an agent (Alvarado) observed the violative conduct but
failed to take action. MSHA designated both orders as resulting from the operator’s high
negligence and unwarrantable failure, in part because MSHA imputed Alvarado’s conduct to
Alcoa. However, the Judge determined that Alvarado was not an agent of the operator. This
finding is supported by substantial evidence.11
Section 3(e) of the Mine Act defines an “agent” as “any person charged with
responsibility for the operation of all or part of a . . . mine or the supervision of the miners in a
… mine.” 30 U.S.C. § 802(e). In determining whether a miner was an agent of the operator, the
Commission has focused on the miner’s function rather than his job title. REB Enterprises Inc.,
20 FMSHRC 203, 211 (Mar. 1998). A Judge must make a factual determination when assessing
whether the miner’s function reflected supervisory responsibility. Martin Marietta Aggregates,
22 FMSHRC 633, 639 (May 2000).
The Secretary argues that the Judge ignored certain evidence that Alvarado supervised
the Turner employees and thus acted as an agent for Alcoa. In particular, the Secretary claims
that the Judge ignored McCaskill’s instruction that Alvarado “keep an eye” on the contractors,
and Gaytan’s testimony that Alvarado observed and instructed the contractors.
We conclude that the Judge did consider these circumstances when determining
Alvarado’s supervisory status. 39 FMSHRC at 145-47. The Judge found that McCaskill’s
instruction did not delegate supervisory authority to Alvarado. Specifically, the Judge credited
Alvarado’s testimony that he was in the vicinity of the contractors not to supervise them but
simply because he needed to insert caustic into Riser 25 after the blind swap had been
completed. Tr. 403, 459; 39 FMSHRC at 145. We find no reason to set aside the Judge’s
decision to credit Alvarado’s explanation for why he was near the contractors.

11

When reviewing a Judge’s factual determinations, the Commission is bound by the
terms of the Mine Act to apply the substantial evidence test. 30 U.S.C. § 823(d)(2)(A)(ii)(I).
Substantial evidence means “such relevant evidence as a reasonable mind might accept as
adequate to support [the Judge’s] conclusion.” Rochester & Pittsburgh Coal Co., 11 FMSHRC
2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
Substantial evidence has been found to be more than a scintilla, but less than a preponderance of
the evidence. Dynamic Energy, Inc., 32 FMSHRC 1168, 1173 (Sept. 2010) (citing Richardson v.
Perales, 402 U.S. 389, 401 (1971)). The Commission has recognized that the “possibility of
drawing two inconsistent conclusions from the evidence does not prevent an administrative
agency’s finding from being supported by substantial evidence.” Id. (quoting Sec’y on behalf of
Wamsley v. Mutual Mining, Inc., 80 F.3d 110, 113 (4th Cir. 1996)).

40 FMSHRC Page 661

The Judge explained why he discredited the contradictory testimony of the Turner
employees.12 Morales testified that Alvarado supervised the contractors following McCaskill’s
departure from the mine. The Judge discredited his testimony because the Judge found that
Morales, who had filed a lawsuit against Alvarado as a result of the accident, had an incentive to
place supervisory responsibility on Alvarado. Gaytan testified that Alcoa’s normal practice was
to assign one of its employees to supervise the blind swap. However, the Judge implicitly
credited the contradictory testimony of Maly, Alcoa’s training supervisor, that Alcoa normally
does not assign one of its employees to supervise a blind swap, but trusts the contractors to
complete the assigned task. We find no reason to set aside the Judge’s credibility
determinations.13 Tr. 164; 39 FMSHRC at 146-47.
The Judge further recognized that the Secretary had failed to show that Alvarado’s tagout authority differed from that of other rank-and-file miners. 39 FMSHRC at 145-46. The
substantial evidence standard is met where the record is not “wholly barren of evidence” to
sustain the Judge’s finding. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). We
conclude that the record supports his finding that Alvarado’s authority was no different than that
of any other rank-and-file miner.
Therefore, we conclude that the Judge’s determination that Alvarado was not an agent of
Alcoa during the accident on September 3, 2014, is supported by substantial evidence.
B. The Secretary failed to properly raise his alternative argument that Alcoa’s
failure to assign a supervisor to oversee the blind swap itself constituted high
negligence and unwarrantable failure.
On appeal, the Secretary argues that even if Alvarado were not an agent, the operator’s
failure to assign a supervisor for these violations itself indicated high negligence and
unwarrantable failure. Therefore, the Secretary maintains, even if Alvarado were not an agent,
we must remand the Judge’s negligence and unwarrantable failure findings.
Although the Commission liberally provides leave to amend citations and orders, Cyprus
Empire Corp., 12 FMSHRC 911, 916 (May 1990), the Secretary never availed himself of the
opportunity to add this alternative theory of negligence to the pleadings. Similarly, counsel for
the Secretary did not present the theory at the hearing.

12

When evaluating evidence, we have stated that “credibility determinations reside in the
province of the administrative law judge’s discretion, are subject to review only for abuse of that
discretion, and cannot be overturned lightly.” Dynamic, 32 FMSHRC at 1174.
13

In addition, Gaytan testified that he perceived Alvarado to be a supervisor because
Alvarado instructed him to remove scale from a pipe. The Judge discounted this testimony,
finding that Gaytan was aware that he needed to remove scale prior to Alvarado’s instruction. In
essence, the Judge implied that Alvarado’s reminder to Gaytan to complete a preexisting
assignment did not indicate that Alvarado exercised supervisory authority. 39 FMSHRC at 147.
Under the deferential standard governing the review of credibility determinations, see supra note
12, we do not disturb this finding.

40 FMSHRC Page 662

Because the Secretary failed to present the alternative theory of negligence at trial, the
operator lacked sufficient notice of the charges to mount a defense against them. Due to the
Secretary’s failure, we decline to consider this alternative theory at this stage of the proceeding.
See Black Beauty Coal Co., 37 FMSHRC 687, 693-95 (Apr. 2015); Oak Grove Res., LLC, 33
FMSHRC 2657, 2664 (Nov. 2011); Beech Fork Processing, Inc., 14 FMSHRC 1316, 1321 (Aug.
1992).
IV.
Conclusion
In the absence of this alternative argument, we are limited to considering only the agency
argument made by the Secretary below. Upon reviewing the evidence in the record, we conclude
that substantial evidence supports the Judge’s determination that Alvarado was not an agent of
the operator in connection with the accident on September 3, 2014. Therefore, we affirm the
Judge’s findings that Citation No. 8778037 and Order No. 8778038 involved low negligence
while Order No. 8778039 involved moderate negligence. We also affirm his determination that
none of the violations were a result of Alcoa’s unwarrantable failure to comply with safety
standards.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner

40 FMSHRC Page 663

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

May 10, 2018
JEFFREY PAPPAS
v.

Docket No. WEST 2016-264-DM

CALPORTLAND COMPANY and
RIVERSIDE CEMENT COMPANY
BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
DECISION
BY: Althen, Acting Chairman; Jordan, and Young, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act” or “Act”). It concerns a complaint of discrimination filed by
the Secretary of Labor on behalf of miner Jeffrey Pappas. The complaint alleged that Riverside
Cement Company (“Riverside”) and CalPortland Company (“CalPortland”) discriminated
against Pappas in violation of section 105(c) of the Mine Act.1
Respondent companies contested the allegations, and the matter proceeded to a hearing
before a Commission Administrative Law Judge. Following the hearing, the Judge issued a
written decision dismissing the complaint of discrimination and concluding that no
discrimination occurred. 39 FMSHRC 718 (Mar. 2017) (ALJ). Thereafter, Pappas filed a petition
for discretionary review pro se, which we granted. The Secretary did not file a petition on
Pappas’ behalf and did not otherwise participate in the case on appeal.
After reviewing the record and considering the issues raised in the petition, we affirm the
decision of the Judge.

1

Section 105(c)(1), 30 U.S.C. § 815(c)(1), provides:
No person shall discharge or in any manner discriminate against or
cause to be discharged or cause discrimination against or otherwise
interfere with the exercise of the statutory rights of any miner . . .
because such miner . . . has filed or made a complaint under or
related to this Act, including a complaint notifying the operator or
the operator’s agent . . . of an alleged danger or safety or health
violation in a coal or other mine, or because such miner . . . has
instituted or caused to be instituted any proceeding under or related
to this Act . . . .

40 FMSHRC Page 664

I.
Factual and Procedural Background
The Oro Grande Cement Plant is a surface quarry and cement manufacturing facility
located in California that was operated by Riverside until October 2015. Id. at 721. Pappas
worked at the Oro Grande Plant for approximately 16 years.
On October 1, 2015, CalPortland took over the Oro Grande Plant from Riverside,
completing an asset purchase agreement. Pappas had applied to continue working at the mine
with CalPortland, but he was not offered a position. Pappas lost his job upon the transfer of
assets. The Secretary’s complaint alleged that Pappas was not selected to be hired by CalPortland
due to the unlawful discriminatory actions of Riverside and CalPortland.
A. Pappas’ prior discrimination claim and reinstatement
In April 2014, Pappas had been discharged from his position with Riverside purportedly
for disobeying the instruction of management to discontinue use of his personal truck on mine
property. Thereafter, Pappas filed a complaint of discrimination with the Mine Safety and Health
Administration (“MSHA”) alleging that his discharge was actually in retaliation for his recent
safety complaints. The parties subsequently reached an agreement to settle that complaint.
Pappas was reinstated to the mine in January 2015.
The 2014 discrimination case concerned safety complaints Pappas made in December
2013 regarding a train operated in proximity to miners that Pappas had feared would hit him and
other miners working with him. After a safety review, requested by Pappas, Riverside’s safety
director determined that all work was performed consistent with company policy and MSHA
regulations. Pappas addressed the incident at the next monthly safety meeting. He accused his
immediate supervisor of falsely representing to the safety director that he had failed to bring the
issue to the supervisor’s attention, and of brushing off the concerns Pappas expressed earlier.
Pappas testified that David Salzborn, the plant manager, was visibly angered by these public
remarks.
A few weeks later, Pappas spoke with an MSHA inspector at the mine on a regular
inspection and communicated his safety concerns. After an investigation, the inspector issued
citations to Riverside concerning the operation of the train.
Shortly thereafter, Riverside management instructed Pappas not to use his truck on mine
property. Pappas continued to use his truck on mine property despite this instruction. On April 4,
2014, he was discharged for alleged “gross insubordination.” Pappas filed a discrimination
complaint with MSHA alleging his termination was actually in retaliation for his protected
activities.
After an investigation, MSHA filed a discrimination complaint on Pappas’ behalf.
Thereafter, Riverside settled the case by agreeing to reinstate Pappas to his former position,

40 FMSHRC Page 665

expunge all records related to his discharge, and to pay a civil penalty. Pappas returned to work
on January 5, 2015.
B. Events after Pappas’ reinstatement
Pappas testified that he faced harassment from his co-workers after his reinstatement.
In early February 2015, Pappas met with Jamie Ambrose, Riverside’s human resources manager,
to inform her of the perceived harassment. In response, Ambrose sent instructions to Pappas’
supervisor to monitor the work environment and to report issues to human resources. Pappas
decided to eat lunch by himself to reduce his contact with co-workers.
On April 30, 2015, Pappas was assigned to fix a broken dust door along with Stacey
Portis. Portis, however, failed to arrive at the job site during the shift. As a result, Pappas was
unable to complete the task and became upset. At the end of the day, Pappas confronted Portis in
the breakroom. The two engaged in a heated exchange that lasted several minutes. Pappas cursed
Portis, using obscenities and referring to him as “lazy,” gathered his things, slammed his locker,
and left the plant.
The next day, Portis filed a complaint with Riverside, stating that Pappas had verbally
assaulted him. After Riverside’s investigation, management suspended Pappas for five days,
required him to undergo a psychological evaluation, and disqualified him from returning as a
dust collector.
On June 22, 2015, Pappas returned to work. The United Steelworkers Union filed
grievances concerning the discipline imposed upon him.
On June 30, 2015, CalPortland signed the asset purchase agreement with Riverside,
which included an agreement to purchase and take possession of the physical assets at the Oro
Grande Plant at a later date. Gov. Ex. 2.
On August 27, 2015, Riverside management met with union officials to resolve pending
grievances. Riverside and the Union settled the Pappas grievance by Riverside paying Pappas for
two days of the original five day suspension. At the conclusion of the meeting, Ron Espinosa, the
union’s international representative, called Pappas to join the group. In front of all those in
attendance, Espinosa instructed Pappas to change his behavior at work going forward.
C. The decision not to rehire Pappas
On September 1, 2015, Ambrose accepted CalPortland’s offer to be its human resources
manager at the plant. On September 3, Ambrose met with Steve Antonoff, CalPortland’s vicepresident of human resources. Together they went through a list of current Riverside employees.
For each employee, Ambrose recommended either hiring that employee or not hiring that
employee, or she stated that she was “unsure.”2 Ambrose stated that she was unsure about
2

CalPortland used this process in lieu of reviewing Riverside’s employment files.

40 FMSHRC Page 666

Pappas. Antonoff highlighted every name that did not get a positive recommendation on a
spreadsheet, making no distinction between a “no” and an “unsure.”
In mid-September, CalPortland informed all Riverside miners that they would need to
apply for a position with CalPortland if they wished to continue to be employed at the mine.
Miners, including Pappas, filled out applications and sat for brief interviews.
Rich Walters, CalPortland’s plant manager (replacing Salzborn), and Betsy Lamb, a
CalPortland vice-president, were responsible for staffing the mine. Salzborn informed Walters
that there were two problem employees at the plant — one of whom was Pappas. Salzborn
informed him that Pappas had been disciplined for violating work rules and insubordinate
behavior.
Walters delegated the job of selecting employees to Lamb. She was provided with the
interviewers’ notes, the applications, and Ambrose’s recommendations. On September 25, Lamb
presented her list of recommended hires of hourly employees to Walters, who agreed to it
completely. In total, CalPortland hired 125 employees, about 100 of which were hourly miners.
CalPortland did not offer jobs to 15 applicants from Riverside, including Pappas. Lamb testified
that Pappas’ application demonstrated no progression in employment or salary and the answers
he gave during his interview did not reflect the type of answers CalPortland sought.
On February 11, 2016, the Secretary filed a discrimination complaint with the
Commission on behalf of Pappas.3 The complaint alleged that CalPortland discriminated against
Pappas when he was identified as someone who should not be retained and who was in fact not
hired by CalPortland. The Secretary later amended the complaint to add Riverside as a
respondent.

3

The Secretary also filed an application for temporary reinstatement pursuant to section
105(c)(2). A Commission Judge determined that the complaint was not frivolously brought and
granted Pappas temporary reinstatement. Sec’y of Labor on behalf of Pappas v. CalPortland Co.,
38 FMSHRC 53 (Jan. 2016) (ALJ). The Commission affirmed. Sec’y of Labor on behalf of
Pappas v. CalPortland Co., 38 FMSHRC 137 (Feb. 2016).
The D.C. Circuit reversed the Commission, vacated the Judge’s order, and determined
that Pappas, as an applicant for employment, was not eligible for temporary reinstatement.
CalPortland Co. v. FMSHRC, 839 F.3d 1153 (D.C. Cir. 2016) (concluding that Pappas was not a
miner at CalPortland, but instead was an an applicant for employment and accordingly was not
eligible for the temporary reinstatement remedy).

40 FMSHRC Page 667

II.
The Judge’s Decision
A. Riverside
The Judge first considered whether the Secretary had established the elements of a prima
facie case of discrimination against Riverside.
1. Prima Facie Case
A complainant establishes a prima facie case under section 105(c) by presenting evidence
sufficient to support a conclusion that the individual engaged in protected activity; that there was
an adverse action; and that the adverse action complained of was motivated in any part by that
activity. See Turner v. Nat’l Cement Co. of California, 33 FMSHRC 1059, 1064-67 (May 2011);
Sec’y on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev’d
on other grounds 663 F.2d 1211 (3d Cir. 1981); Sec’y on behalf of Robinette v. United Castle
Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981).
The Judge found that Pappas engaged in activities protected by the Mine Act, including
filing a discrimination complaint with MSHA and complaining to Riverside management that he
faced harassment from co-workers following his reinstatement to the mine.4 39 FMSHRC at 739.
The Judge also found that the negative employment references from Ambrose and Salzborn were
adverse actions.5 Id. at 740.
The Judge next considered whether the Secretary demonstrated a relationship between
the protected activities and the adverse actions.6 He concluded that Salzborn exhibited animus
toward Pappas’ protected activities. The Judge relied on Pappas’ testimony that Salzborn was
angered by Pappas’ public accusations regarding management’s response to the train incident. Id.
at 749; Tr. 75-76. He also relied on Salzborn’s statements to Walters, which referred to the
circumstances surrounding Pappas’ prior discharge in “deliberate disregard” of the settlement
4

Both Ambrose and Salzborn knew of Pappas’ prior protected activities: Salzborn was
the plant manager who terminated Pappas in 2014, and Pappas complained to Ambrose about
harassment following his reinstatement. Id. at 741.
5

An adverse action is “an act of commission or omission by the operator subjecting the
affected miner to discipline or a detriment in his employment relationship.” Sec’y of Labor on
behalf of Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842, 1847-48 (Aug. 1984).
6

In evaluating whether a causal relationship between Pappas’ protected activity and
Riverside’s action existed, the Judge considered the four Chacon factors: (1) knowledge of the
protected activity; (2) hostility or animus toward the protected activity; (3) coincidence in time
between the protected activity and the adverse action; and (4) disparate treatment of the
complainant. 39 FMSHRC at 741 (citing Sec’y of Labor on behalf of Chacon, 3 FMSHRC 2508,
2510 (Nov. 1981)).

40 FMSHRC Page 668

agreement. 39 FMSHRC at 749-50. Furthermore, the Judge found that Salzborn’s declaration
that Pappas was one of two “problematic” employees was somewhat illustrative of disparate
treatment. Id. at 753. The Judge also found a coincidence in time between the protected activity
and Riverside’s adverse actions. Id. at 751. The Judge concluded that the Secretary established
the necessary elements of a prima facie case based on Salzborn’s conduct.
However, the Judge found that the Secretary failed to substantiate allegations that
Ambrose manifested hostility toward Pappas. The Secretary had alleged that Ambrose failed to
adequately investigate Pappas’ reports of harassment and that this was indicative of hostility
toward his protected activity.7 The Judge disagreed. He concluded that Ambrose responded to
Pappas’ concerns: She took steps to see that Pappas’ direct supervisor would monitor the
situation and notify human resources if the problems persisted. The Judge noted that Ambrose
did not hear back from Pappas, his managers, or his co-workers after their February meeting. The
Judge also found it persuasive that Pappas described Ambrose’s demeanor toward him as
“polite” and “professional.” Importantly, the Judge specifically credited Ambrose’s testimony
that her decision not to recommend that CalPortland hire Pappas was based on his disciplinary
issues and not protected activity. Id. at 754. Accordingly, the Judge found neither indications of
discriminatory animus from Ambrose’s conduct nor a motivational nexus between the negative
reference by Ambrose and Pappas’ prior protected activity. Id. at 743.
In sum, the Judge found that the Secretary established a prima facie case against
Riverside only on the basis of Salzborn’s conduct, holding that his “warning to CalPortland
[about Pappas] was in part motivated by discriminatory intent.” Id. at 756.
2. Affirmative Defense
The Judge next considered whether Riverside established an affirmative defense. An
operator may defend affirmatively against a prima facie case by proving that it was also
motivated by the miner’s unprotected activity and would have taken the adverse action for the
unprotected activity alone. See Robinette, 3 FMSHRC at 817-18; Pasula, 2 FMSHRC at 2799800; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642-43 (4th Cir. 1987)
(applying Pasula-Robinette test).
Riverside asserted that Salzborn and Ambrose would have provided the negative
references based on Pappas’ unprotected activity alone — his recent suspension for a violation of
the hostile work place rule was fresh in their minds when they provided their opinions.
The Judge found the defense to be based in fact; Salzborn and Ambrose had attended the
third step grievance meeting regarding Pappas’ suspension shortly before providing their
negative references. Id. at 756. The Judge credited Salzborn’s testimony, finding that Pappas’
issues were recent, recurrent, and unprecedented in provoking a union representative to summon
Pappas, a union-represented miner, to a grievance meeting and then directly instructing him to
7

The Judge noted that what Pappas perceived to be harassment was not clearly related to
his protected activity, and instead may have been reasonably interpreted by others to be “banter”
due to the topics at issue and prior relationships of the parties. Id. at 744.

40 FMSHRC Page 669

improve his behavior in the presence of management representatives. Id. at 757. The Judge found
that Riverside successfully established an affirmative defense and held that “[w]hile Riverside
may have been motivated in part by discriminatory animus, I find that the operator would have
given the same negative references as a result of Pappas’ unprotected activity alone.” Id. at 758.
Therefore, the Judge concluded that the Secretary failed to demonstrate that Riverside
unlawfully discriminated against Pappas in violation of the Mine Act.
B. CalPortland
The Judge found that CalPortland’s failure to hire Pappas was an adverse action.
However, he concluded that the Secretary failed to prove that its decision was motivated by
Pappas’ protected activity. The Judge also concluded that, although Ambrose was acting as an
agent for CalPortland when she provided the negative employment reference, she did not
demonstrate any animus toward Pappas’ protected activity.
The Judge further found that the Secretary failed to demonstrate that any other
CalPortland agent had knowledge of, and animus towards, Pappas’ protected activity or that
Pappas was treated any differently than similarly situated employees. Id. at 762.
The Judge found that the Secretary did not establish a prima facie case of discrimination
against CalPortland. He found further that even if a prima facie case had been established,
CalPortland had proven an affirmative defense. The Judge credited Lamb’s testimony that
Pappas provided poor answers to interview questions and that his work history contained “red
flags” such as a failure to progress, indicating possible performance issues. Id. at 767.
III.
Disposition
A. The claims against Riverside
Pappas argues that the Judge erred in crediting the testimony of Ambrose and Salzborn in
support of the Judge’s conclusion that Riverside was not liable for discrimination.8

8

On review, CalPortland argues that Pappas’ pro se petition for discretionary review
failed to comply with the statutory requirements set forth at 30 U.S.C. § 823(d)(2)(A).
Our practice has been to liberally construe the filings of pro se litigants. See Rostosky Coal Co.,
21 FMSHRC 1071 (Oct. 1999); see also Original Sixteen to One Mine, Inc., 23 FMSHRC 1217
(Nov. 2001). We find that Pappas sufficiently identifies and supports assignments of error in his
petition; Pappas challenges the Judge’s credibility determinations and cites evidence in the
record in support of his allegations. Accordingly, we review these issues.

40 FMSHRC Page 670

1. Ambrose’s testimony
Pappas alleges that the Judge erred in crediting Ambrose’s testimony because it was
(1) inconsistent with statements she made to the MSHA investigator and (2) inconsistent with
Antonoff’s testimony.
The Commission has recognized that a Judge’s credibility determinations are entitled to
great weight and may not be overturned lightly. Farmer v. Island Creek Coal Co., 14 FMSHRC
1537, 1541 (Sept. 1992); Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981).
Accordingly, the Commission reviews a Judge’s credibility determinations under an abuse of
discretion standard. See Jim Walter Res., Inc., 37 FMSHRC 1868, 1871 (Sept. 2015).
We conclude that Pappas has not met the burden of showing that the Judge erred in
concluding that Ambrose’s testimony was credible. The discrepancies between Ambrose’s
hearing testimony and other record evidence were considered and reconciled by the Judge. 39
FMSHRC at 753-54.
Ambrose testified that she provided CalPortland with a negative employment reference
for Pappas because he had recently been suspended for engaging in threatening and intimidating
behavior. Id. at 755-56. In crediting Ambrose’s testimony, the Judge considered that it departed
from her initial statements to the MSHA investigator: Ambrose originally stated that she had no
involvement in CalPortland’s hiring process and did not speak with CalPortland management
about Riverside hourly employees. Gov. Ex. 17 (November 6, 2015, interview). However, in a
subsequent MSHA interview, she acknowledged that she had in fact provided employment
references for Riverside hourly employees to CalPortland. Gov. Ex. 18 (November 17, 2015).
Ambrose clarified that she initially provided different information to the MSHA investigator
because she had misunderstood what the investigator was asking. She understood him to have
asked if she provided employee files or details regarding job performance, which she maintained
she did not. Gov. Ex. 18; Tr. 715.
The Judge reasonably exercised his discretion when he credited Ambrose’s hearing
testimony and her explanation for the apparent conflict. The Judge noted that while Ambrose’s
prior statements were at times inconsistent, her rationale for providing a negative reference for
Pappas did not change, and her testimony at the hearing was “reasonable, detailed, and
consistent.” Id. at 754.
Pappas also asserts that the Judge erred in crediting Ambrose’s testimony because it
differed at times from the testimony of Steve Antonoff (CalPortland’s Vice-President for Human
Resources). He points out that Antonoff testified that Ambrose sometimes explained why she
had provided a negative reference for a particular employee (in contrast with Ambrose’s
insistence that she had not). Tr. 832-33. However, with respect to Ambrose’s recommendation of
Pappas, Antonoff testified that Ambrose provided no additional information to explain her
negative reference. Tr. 821. Therefore, Ambrose’s testimony and Antonoff’s testimony were
consistent with respect to the negative reference she provided for Pappas. See Tr. 690. We find
that the Judge did not abuse his discretion in crediting Ambrose’s account.

40 FMSHRC Page 671

For these reasons, we conclude that the Judge did not err in crediting Ambrose’s hearing
testimony. Because the Judge found that Ambrose was not motivated by Pappas’ protected
activity when she provided the negative employment reference, he found that the Secretary and
Pappas failed to establish that Ambrose’s conduct was part of the prima facie case of
discrimination. We decline to disturb this ruling.
2. Salzborn’s testimony
The Judge next considered whether Riverside established an affirmative defense for the
prima facie case of discrimination concerning Salzborn’s negative reference of Pappas. 39
FMSHRC at 756. Riverside asserted that Salzborn, the plant manager, would have provided the
same reference even if Pappas had not engaged in protected activities.9 Id. The Secretary
countered that Riverside’s proffered rationale was mere pretext.
The Judge credited Riverside’s explanation; he found that Salzborn would have given a
negative reference for Pappas based on his unprotected activity alone. The Judge concluded that
Riverside’s proffered reasons were “plausible and had a basis in fact.” 39 FMSHRC at 757
(citing Turner, 33 FMSHRC at 1073) (“A plaintiff may establish that an employer’s explanation
is not credible by demonstrating ‘either (1) that the proffered reasons had no basis in fact, (2) that
the proffered reasons did not actually motivate [the adverse action], or (3) that they were
insufficient to motivate [the adverse action].’”) (emphasis included).
Salzborn testified that he provided the negative employment reference based on Pappas’
history of discipline for behavioral problems. Tr. 633. The most recent disciplinary issue was
still fresh in his mind due to the recent settlement of Pappas’ related grievance and the unusual
step Espinosa (the Union’s International Representative) took in directly addressing Pappas
about his behavior in front of attendees at the grievance meeting. Tr. 633, 646-47. In addition,
Salzborn recalled Pappas’ 2010 suspension and removal from the shipping department, which he
testified was the result of Pappas’ behavior toward staff and customer truck drivers. Tr. 633.
Furthermore, Salzborn recalled that a department manager had complained that Pappas was
“causing problems” when he traveled off his assigned job site to other areas of the mine in his
truck. Tr. 634-35. As a result, Salzborn had ordered him to cease use of his truck on mine
property. Salzborn testified that despite this warning, Pappas continued using his truck. Tr. 63739. See supra at 2.
Pappas argues that the Judge erred in crediting Salzborn’s testimony, arguing essentially
that Salzborn’s testimony was unreliable because he was motivated, in part, by animus against
Pappas’ prior engagement in protected activities.
The Judge found that although Salzborn harbored some animosity toward Pappas’ prior
engagement in protected activity, Salzborn would have provided Pappas with a negative

9

Salzborn retired from Riverside at the end of 2014, and then returned as interim plant
manager in 2015 to assist in the transfer of assets to CalPortland.

40 FMSHRC Page 672

employment reference to CalPortland even if Pappas had not engaged in protected activities.10
The Judge was persuaded to believe Salzborn because his asserted rationale — Pappas’ history
of discipline — was corroborated by the record.
We conclude that the Judge acted within his discretion in crediting Salzborn’s testimony.
We do not find reason in the type of inconsistencies in the record or Salzborn’s testimony to
disturb the Judge’s findings. As a result, we affirm the Judge.
B. The claims against CalPortland
The Judge found that the Secretary failed to establish a prima facie case for
discrimination against CalPortland. Although the Judge found Ambrose was a “de facto agent of
CalPortland” at the time she provided the negative references, 39 FMSHRC at 761, he further
found that she was not motivated by discriminatory animus. We have previously explained that
this finding was within the Judge’s discretion. See supra at 9-11. We affirm the finding as it
relates to CalPortland’s liability.
We also affirm the Judge’s holding that CalPortland was not liable for Salzborn’s
conduct. The Secretary did not claim that Salzborn was an agent of CalPortland. Moreover, the
Judge explicitly ruled that he was not an agent of CalPortland whose knowledge and animus
could be imputed to that operator. 39 FMSHRC at 760-62. Pappas has not sought review of this
finding. Thus, it was neither contended nor demonstrated that Salzborn was an agent of
CalPortland.
For these reasons, we affirm the Judge’s finding that the Secretary failed to successfully
establish a prima facie case of discrimination against CalPortland. In the absence of a prima facie
case of discrimination, Pappas does not have a valid claim against CalPortland.

10

The Commission has recognized that, because the Judge “has an opportunity to hear
the testimony and view the witnesses[,] he [or she] is ordinarily in the best position to make a
credibility determination.” In re: Contests of Respirable Dust Sample Alteration Citations, 17
FMSHRC 1819, 1878 (Nov. 1995) (quoting Ona Corp. v. NLRB, 729 F.2d 713, 719 (11th Cir.
1984)), aff'd sub nom. Sec’y of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096 (D.C. Cir.
1998).

40 FMSHRC Page 673

III.
Conclusion
We conclude that although Pappas did identify some inconsistencies in witness
testimony, the Judge’s decision demonstrates that he considered those inconsistencies and
reconciled witness testimony against the record evidence. Accordingly, the Judge acted within
his discretion as the finder of fact to make credibility determinations. The Judge’s decision is
hereby affirmed.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

/s/ Michael G. Young
Michael G. Young, Commissioner

40 FMSHRC Page 674

Commissioner Cohen, concurring in result,
I agree with the conclusions of my colleagues, but write separately to address what I
consider to be error in the Judge’s analysis of Riverside Cement Company’s affirmative
defense.1 I believe that the Judge’s finding that Oro Grande plant manager David Salzborn,
individually, would have supplied a negative reference based on Jeffrey Pappas’s unprotected
activity alone is not supported by substantial evidence. Nevertheless, the issue before the
Commission is whether Riverside (not Salzborn or Ambrose individually) established an
affirmative defense. As explained below, I conclude that substantial evidence supports the
Judge’s ultimate conclusion that Riverside established an affirmative defense. Thus, the Judge’s
error in finding that Salzborn would have given a negative reference based on unprotected
activity alone is not outcome determinative.
A. The Prima Facie Case
I begin my analysis by reviewing the Judge’s findings regarding Pappas’s prima facie
case of discrimination against Riverside.2 Here, the Judge relied on the discriminatory animus
exhibited by Salzborn in providing a negative job reference to CalPortland’s incoming plant
manager Rich Walters. As the Judge noted, Salzborn described Pappas as a “problematic
employee” and identified several disciplinary incidents involving Pappas including his alleged
“gross insubordination” for use of a company truck on mine property. This incident had led to
Pappas’s termination in 2014, his first section 105(c) complaint to MSHA, and the settlement in
which Pappas was reinstated and his personnel record was expunged of all records relating to
discipline for use of the truck. 39 FMSHRC at 724, 740.
In finding animus on the part of Salzborn, the Judge relied on Salzborn’s expression of
anger directed at Pappas at a safety meeting following an incident with the train at the mine’s

1

I agree with my colleagues’ conclusion that the Judge did not err in his findings that the
Secretary and Pappas failed to establish a prima facie case with regard to alleged discrimination
by other Riverside employees including Jamie Ambrose, Riverside’s human resources manager,
and by CalPortland Company.
2

Like the Judge and my colleagues, I apply the Commission’s analytic framework for
discrimination cases arising under section 105(c) of the Mine Act, 30 U.S.C. § 815(c), set forth
in Sec’y on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980),
rev’d on other grounds 663 F.2d 1211 (3d Cir. 1981) and Sec’y on behalf of Robinette v. United
Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981). Under the Pasula-Robinette test, it is first
determined whether the complainant miner has made out a prima facie case of discrimination by
showing that he engaged in protected activity, and that there was adverse action motivated in any
part by the protected activity. If the complainant makes out a prima facie case, the operator may
raise an affirmative defense by establishing that it was also motivated by the miner’s unprotected
activity, and would have taken the adverse action based on the unprotected activity alone.

40 FMSHRC Page 675

pack house. Id. at 723-24, 749.3 In addition, the Judge found that Salzborn’s mention to Walters
of Pappas’s discipline for use of the company truck represented animus, in that Salzborn
disregarded Riverside’s agreement to expunge all reference to the events that led to Pappas’ prior
termination. As the Judge stated, “Salzborn’s deliberate disregard of a Commission order and
settlement resolving Pappas’s section 105(c) claim is an expression of animus toward Pappas’s
section 105(c) rights that should not be tolerated.” Id. at 750.
The Judge also relied on Salzborn’s disparate treatment of Pappas as demonstrative of
animus. Salzborn had identified only one hourly employee to Walters as a problem – Pappas.
Yet, Jamie Ambrose testified that there were at least three other hourly employees with “multiple
or recent disciplinary issues” and numerous others with related problems who she had identified
to CalPortland. Id. at 753. These disciplinary issues were significant enough for Ambrose to
provide those employees with negative references, as she did with Pappas. Furthermore, while
Salzborn testified that Pappas’s disciplinary problems were at the forefront of his mind as he had
recently attended Pappas’s grievance meeting, Salzborn had also contemporaneously attended
grievance meetings involving other miners with disciplinary issues. Id. at 753 n.32. He did not
give negative recommendations about those other miners.
Although the Judge found that Salzborn exhibited animus based on his anger at the safety
meeting, the Judge did not mention an even greater basis for Salzborn’s animus towards Pappas.
A few weeks after the train incident, Pappas approached an MSHA inspector at the mine, and
reported the incident. After speaking with Pappas, the inspector began an investigation of the
train incident, which resulted in the issuance of citations to Riverside, the temporary closure of
the shipping facility, and the mandatory installation of an additional lock on the rail tracks. Id. at
724. Shortly after receiving these citations, Salzborn restricted Pappas’ ability to use the
company truck. When Salzborn discovered that Pappas used the truck again, he terminated
Pappas for “gross insubordination.” Id.; Tr. 648. In settling the resulting section 105(c)
discrimination complaint, Riverside was required to pay a $5,000 penalty in addition to
reinstating Pappas with back pay and expunging his personnel file of related records.
The clear implication of the settlement was that Salzborn’s firing of Pappas for “gross
insubordination” was a pretext for unlawful discrimination. The acceptance of the settlement by
Riverside amounted to a rebuke of Salzborn’s management of the plant. The evidence certainly
supports the Judge’s conclusion that Salzborn’s statement to Walters about Pappas was in part
motivated by animus against his protected activity.
3

In December 2013, Pappas was working with two other miners replacing filters on the
chutes which loaded rail cars at the mine’s pack house. There were three tracks at that location,
and the crew was working on manlifts elevated above two of the tracks. A train of cars emerged,
backing up on the one track which fed the three tracks, heading for the location where the crew
was. There was no lock on that track, and no miner stationed as a lookout at the back of the train,
and thus no way to notify the locomotive operator to stop because there were other miners
working on the tracks. Pappas’s crew were not able to move out of the train’s way, but
fortunately the train ended up coming down the third track and stopping, so no one was injured.
Pappas felt that his life and the lives of his co-workers had been endangered by the moving train.
39 FMSHRC at 723.

40 FMSHRC Page 676

B. The Affirmative Defense – Salzborn
In evaluating whether Riverside established an affirmative defense, the Judge expressly
found that Salzborn would have provided Pappas with a negative reference based on Pappas’
unprotected activities alone. 39 FMSHRC at 758. Salzborn testified about three disciplinary
incidents that formed the basis of his negative reference – the most recent incident involving
Pappas’s dispute with Stacy Portis, a prior 2010 suspension, and the aforementioned truck
incident. Tr. 638-39.
It is the Commission’s task to review the Judge’s finding to determine if it supported by
substantial evidence. When reviewing a Judge’s factual determinations, the Commission is
bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C. §
823(d)(2)(A)(ii)(I). In reviewing the whole record, we must consider anything in the record that
“fairly detracts” from the weight of the evidence. Midwest Material Co., 19 FMSHRC 30, 34 n.5
(Jan. 1997) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)).
I find that the Judge erred in failing to consider that Salzborn’s asserted rationale for the
negative reference included, in part, events that Riverside was ordered to expunge from Pappas’
disciplinary history. 39 FMSHRC at 756-57. One cannot rely on an event that the Commission
had previously ordered to be expunged from a miner’s disciplinary history in a subsequent case
to establish that the miner had a history of disciplinary issues.
The Judge further erred when he failed to consider his previous finding that Salzborn had
disparately treated Pappas, see id., when he analyzed Riverside’s affirmative defense.
Specifically, in the context of the affirmative defense the Judge held that there was “very little
evidence of disparate treatment” and “the Secretary’s case lacked detailed comparisons between
employees who were and were not recommended.” Id. at 757. However, as noted, the Judge had
already found disparate treatment of Pappas on the part of Salzborn. Ambrose provided negative
references for multiple employees with disciplinary issues, but Salzborn singled out Pappas. It
was Riverside’s burden to establish an affirmative defense, not the Secretary’s. See Pasula, 2
FMSHRC at 2799; Robinette, 3 FMSHRC at 817-18. Accordingly, the fact that the Secretary did
not provide a detailed comparison of employees who were and were not recommended is
irrelevant.
For these reasons I find that evidence in the record as well as the Judge’s own findings
detract from his conclusion that Salzborn would have given a negative recommendation about
Pappas based on unprotected activity alone.
C. The Affirmative Defense – Riverside
However, whether Salzborn would have given a negative recommendation based on
Pappas’ unprotected activity alone is not determinative. The question is whether Riverside would
have provided a negative recommendation to CalPortland about Pappas based on his unprotected
activity alone. Accordingly, the negative reference supplied by Ambrose is also relevant to the
establishment of an affirmative defense. To analyze this issue, we can look at the relative weight
of the statements of Salzborn and Ambrose.

40 FMSHRC Page 677

CalPortland had established a system for the evaluation and hiring of Riverside’s hourly
employees. Betsy Lamb, CalPortland’s vice president of organizational planning and
development, made recommendations to Walters based on the job applications and interviews,
with additional input provided by Steve Antonoff’s summary of Ambrose’s recommendations.
Walters accepted all of Lamb’s recommendations. Lamb testified that she did not recommend
Pappas because his application did not demonstrate that he was progressing as an employee, and
because she believed that he answered the interview questions poorly. 39 FMSHRC at 731-32.
Although Ambrose’s recommendation about Pappas had some significance to Lamb’s
decision, there is insufficient evidence in the record to demonstrate any effect by Salzborn’s
statement. Salzborn’s negative reference was made to Walters, who was not called as a witness.
The only evidence from Walters is the MSHA investigator’s interview summary, Gov. Ex. 22,
and the investigator’s hearsay testimony. According to the investigator, Walters said that he did
not personally make any decisions about hourly employees; he left that up to Lamb. Walters
acknowledged talking with Salzborn, and that Salzborn had told him that Pappas was not a good
employee. Although Salzborn’s statement made Pappas a “No”, Pappas was already on the “No”
list compiled by Human Resources. Id. Thus, since Walters followed all of Lamb’s
recommendations for the hiring of hourly employees, and since Lamb did not recommend that
Pappas be hired, Salzborn’s negative reference was ultimately inconsequential.
Accordingly, I believe that the relative weight of the recommendations by Salzborn and
Ambrose support the Judge’s conclusion that Riverside established an affirmative defense.
Riverside’s negative reference of Pappas would have been made based on unprotected activity
alone.
Hence, I concur with the majority that the Judge’s decision should be affirmed in result.

/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner

40 FMSHRC Page 678

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

June 27, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of ERIC GREATHOUSE
and UNITED MINE WORKERS OF
AMERICA INTERNATIONAL UNION
v.

Docket No. WEVA 2015-904-D

MONONGALIA COUNTY COAL
COMPANY, CONSOLIDATION COAL
COMPANY, MURRAY AMERICAN
ENERGY, INC., and MURRAY ENERGY
CORPORATION1
BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
DECISION
In these proceedings, arising under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”), the Administrative Law Judge found that the
operators of six mines owned and operated by Murray Energy Corporation (“the Operators”)
violated section 105(c) of the Mine Act, 30 U.S.C. § 815(c), by interfering with miners’
protected rights. 38 FMSHRC 941 (May 2016) (ALJ). Section 105(c)(1) provides:
No person shall discharge or in any manner discriminate against or
cause to be discharged or cause discrimination against or otherwise
interfere with the exercise of the statutory rights of any miner,
representative of miners or applicant for employment in any coal
or other mine subject to this chapter because such miner,
representative of miners or applicant for employment has filed or
made a complaint under or related to this chapter, including a
complaint notifying the operator or the operator’s agent, or the
representative of the miners at the coal or other mine of an alleged
danger or safety or health violation in a coal or other mine, or
because such miner, representative of miners or applicant for
employment is the subject of medical evaluations and potential
transfer under a standard published pursuant to section 811 of this
title or because such miner, representative of miners or applicant
1

Additional captions in these cases are listed in Appendix A to this order.

40 FMSHRC Page 679

for employment has instituted or caused to be instituted any
proceeding under or related to this chapter or has testified or is
about to testify in any such proceeding, or because of the exercise
by such miner, representative of miners or applicant for
employment on behalf of himself or others of any statutory right
afforded by this chapter.
30 U.S.C. § 815(c)(1).
The cases arise from the Operators’ implementation of bonus plans at their respective
mines. The Operators and the United Mine Workers of America (“UMWA” or “the Union”) filed
cross petitions for review of the Judge’s decision, which the Commission granted. We briefly
respond to the Union’s petition and then turn to the Operators’ claim.
The UMWA’s Request for a Make-Whole Remedy
UMWA seeks a make-whole remedy for miners who did not receive bonuses under the
plans’ provisions. We deny that request. The Union did not present evidence regarding miners
who suffered lost bonuses. As the Secretary’s brief in response to UMWA’s opening brief
pointed out, proof of such relief would require a remand and re-opening the record to present
additional evidence of each instance of denied bonus and proof of the lost payment amount,
beyond the scope of issues raised in the initial hearing before the Judge. The Union had the
opportunity to submit this issue for consideration by the Judge, but it did not. Accordingly, we
find that the Union waived this argument, and the Commission declines to consider it on appeal.
The Operators’ Challenge to the Decision of the Judge Below
Regarding the Operators’ claim, the parties stake their positions on clear and sharply
contrasting views of section 105(c). The Secretary and the UMWA contend that an action
interferes with the exercise of protected rights if the action tends to interfere with the exercise of
protected rights and is not justified by a legitimate and substantial reason whose importance
outweighs harm caused to the exercise of protected rights. They assert motivation or
causation is not an element of such a violation. The Operators, on the other hand, contend that
the Judge erred in the application of section 105(c). They contend that section 105(c) contains a
necessary element of motive or causation. Thus, they argue that the complaining party must
demonstrate that an operator’s action arose because of the exercise of protected activity. The
Judge adopted the position asserted by the Secretary and the UMWA.
The Commissioners are divided evenly regarding the correct analytical framework to
apply and whether the Operators violated section 105(c).
Commissioners Jordan and Cohen would find that the language of section 105(c) is
ambiguous and would defer to the Secretary’s reasonable interpretation. They would apply the
Franks test, infra slip op. at 8, and conclude that substantial evidence supports the Judge’s
determination that the Operators violated section 105(c) by implementing bonus plans which
interfered with miners’ protected rights under the Mine Act.

40 FMSHRC Page 680

Acting Chairman Althen and Commissioner Young would find that the language of
section 105(c) is plain and requires proof of motivation related to protected activity to establish a
claim of interference and would conclude that the Secretary has failed to prove motivation in this
case. Thus, they would reverse the Judge’s finding of interference in violation of section 105(c).
The effect of the split decision is to allow the Judge’s conclusions on the violations and
penalty assessments to stand as if affirmed. Pennsylvania Electric Co., 12 FMSHRC 1562, 156365 (Aug. 1990), aff’d, 969 F.2d 1501 (3d Cir. 1992).
I.
Background and Proceedings Below
A. Background
In 2014, the Operators decided to implement bonus plans at each of the six mines. The
bonus plans provided that miners would earn additional pay if they met specified production
goals. In October or November 2014, the Operators held a meeting at each of the mines with the
UMWA representatives to present the bonus plans. During these meetings, the UMWA
representatives argued that the bonus plans would have a negative effect on mine safety and
miners’ willingness to exercise their rights. Tr. 33-34, 146-47, 149, 208-09, 282, 288.
The Operators made minor changes to their initial proposals that somewhat narrowed
plan provisions that disqualify entire crews from earning bonuses if an injury occurred during a
shift. However, miners continued to raise safety concerns during subsequent meetings with
management. Jt. Ex. 1A, Stip. 28; Jt. Ex. 14-19; Tr. 36-37, 151. At three mines, miners voted on
whether to approve the bonus plans, and two of the three rejected the plans. Jt. Ex. 1A, Stips. 35,
47; Tr. 37, 210-11. The Operators nonetheless implemented the bonus plans at all six mines
between January 15 and 19, 2015.
Arbitration decisions under the collective bargaining agreement between the Operators
and the UMWA have since led to the discontinuation of the bonus plans at the Marion County
Mine in July 2015, at the Powhatan No. 6 Mine in September 2015, and at the Harrison County
Mine in December 2015. 38 FMSHRC at 946. The plans remained in effect at the other three
mines until the Judge’s decision in this case in May 2016. Id.
The plans at the six mines were generally identical. Miners in a production crew qualified
for bonuses that increased by steps according to how far the working face advanced during a
shift. To qualify for the bonus, miners had to be “physically present the entire shift.” 38
FMSHRC at 943; Jt. Exs. 20-25. Miners working outby the face were eligible to receive 10% of
the bonuses achieved by production crews. Miners from production crews who accompanied
MSHA inspectors during inspections were only eligible for the 10% outby bonus.
Certain events would disqualify section crews for a shift, a day, or even a week. All
production crews on a section would lose their bonus eligibility for a full day if an MSHA

40 FMSHRC Page 681

inspector issued a significant and substantial (“S&S”)2 citation for a condition inby the tailpiece.
Similarly, all the miners on a section could be deemed ineligible to receive a bonus for a full
week if the section received a withdrawal order under sections 104(b) or 104(d) of the Mine Act.
The entire crew would be ineligible for one shift if any crew member suffered a lost-time
accident during that shift. And at five mines, any “major deviation” from “[s]ection production
and safety standards” would disqualify a production crew.3 38 FMSHRC 943; Jt. Exs. 20-25.
As set forth above, the parties assert starkly contrasting views of the proper interpretation
of section 105(c). As one would expect, each side presented evidence supporting its legal
position.
The Secretary and Union presented six Union officials and/or local safety committeemen.
Each testified in detail about the terms of the bonus plans, explaining how certain activity by
miners would render them ineligible for a bonus. They also testified to the chilling effects of the
plans upon the exercise of protected rights, describing numerous instances in which miners were
deterred from engaging in safety related activity in order to avoid negatively impacting a bonus.
The testimony of interference ranged from miners raising fewer safety issues and neglecting nonproduction safety tasks, such as rock dusting, to fewer reports of injuries and antipathy towards
miners’ representatives’ assertion of safety rights. The witnesses also explained why the
legitimate business purposes intended to be served by the bonus plan did not offset the
interference.
At oral argument, the Secretary stated that his case did not depend upon a showing of
retaliatory motivation. Accordingly, the Secretary did not present evidence going to a causal
connection between the implementation of the bonus plan and prior protected activity.
The Operators, on the other hand, staked their case on their view of the law. They
presented just one witness – John Forrelli, Senior Vice President of Murray Energy Corporation.
He testified that the purpose of the bonus plans was to improve both production and safety and
that the Operators did not implement the plans because of any protected activity. Thus, they
claimed protected activity did not motivate adoption of the plans. Under their view of section
105(c), an absence of evidence showing that the plans were implemented because of the exercise
of protected rights defeats a section 105(c) claim.

2

The S&S terminology is taken from section 104(d)(1) of the Act, 30 U.S.C. § 814(d)(1),
which distinguishes as more serious any violation that “could significantly and substantially
contribute to the cause and effect of a . . . mine safety or health hazard.”
3

The discontinued plan at the Harrison County Mine did not include the “major
deviation” provision. Jt. Ex. 24.

40 FMSHRC Page 682

B. The Judge’s Decision
On May 2, 2016, the Judge issued a decision and order finding that the Operators had
interfered with miners’ rights at each of the mines. The Judge began her analysis by concluding
that the proper test for analyzing section 105(c)(l) interference claims is the two-step framework
adopted by two Commissioners in UMWA on behalf of Franks and Hoy v. Emerald Coal
Resources, LP, 36 FMSHRC 2088, 2108 (Aug. 2014) (sep. op. of Chairman Jordan and Comm’r
Nakamura) (hereinafter cited as “Franks”). 38 FMSHRC at 946-48. The Judge rejected the
Operators’ reliance on Sec’y of Labor on behalf of Feagins v. Decker Coal Co., 23 FMSHRC 47
(Jan. 2001) (ALJ), a 15-year-old ALJ decision, concluding that it was out of line with the
Commission’s current case law on interference. Id. at 948-49.
The Judge then turned to the first step of the Franks test, which asks whether a
reasonable miner would view the operator’s actions as tending to interfere with miners’ protected
rights. The Judge found that (1) “[t]estimony at hearing indicated that the effect of the bonuses is
to create pressure on miners to maximize short-term production at the expense of safety,” and
that this effect was compounded by peer pressure, id. at 950; (2) miners were “reluctant to report
safety issues to management or MSHA under the bonus plans because making the report and
undergoing an inspection take away from production time,” id. at 950-51; (3) “[t]here is no
question that some miners are discouraged from serving as walk-around representatives because
they would miss out on the chance to get a larger bonus,” id. at 952; and (4) the injury
disqualification “impermissibl[y] burden[s]” miners’ right to report injuries because an injured
miner “must choose between exercising his right to report the injury and getting a bonus,” id.
Having adopted the Franks test, the Judge then turned to the second step of this test,
which requires identifying and weighing any legitimate and substantial business justification
proffered by the operator for actions it takes that interfere with protected rights. The Judge
recognized that the Operators purported to have promulgated the bonus plans to increase safety
and production. The Judge stated that an operator “certainly has a right to implement programs to
assure that miners are producing at the best rate possible,” but found that the Operators had not
shown that the bonus plans promoted safety or increased production. Id. at 954. “In contrast, the
harm to miners’ rights is evident.” Id. at 955. Thus, the Judge found that “[t]he uncertain benefits
that [the Operators] put forth do not outweigh these harms.” Id.
The Judge therefore ordered that the bonus plans be rescinded at the three mines where
they remained in place, required the posting of a remedial notice, and assessed a civil penalty of
$25,000 per mine – $5,000 more per mine than the Secretary’s proposal. Id. at 955-56.
The Operators filed a timely petition for review. The UMWA also filed a timely petition
for review, arguing that the Judge should have ordered additional remedies. The Commission
granted both petitions.

40 FMSHRC Page 683

II.
Disposition
The Operators contend that the Judge erred by applying the wrong test for analyzing a
claim of interference. They argue that the Franks test fails to adhere to the plain language of
section 105(c), which requires a finding of motive or intent. They set forth the following threepart test as an alternative framework for analyzing interference claims: (1) the exercise of
statutory rights by a miner; (2) any adverse action taken must be directed against the miner who
engaged in the exercise of statutory rights; and (3) the operator must take some affirmative
adverse action against a miner in response to the exercise of statutory rights. PDR at 12. The
Operators point to the Judge’s decision in Secretary of Labor on behalf of Pepin v. Empire Iron
Mining Partnership, 38 FMSHRC 1435 (June 2016) (ALJ) (hereinafter cited as “Pepin”), as
support for its interpretation of section 105(c) and the application of its interference test in lieu of
the Secretary’s Franks test.4
The Secretary asserts that the Judge correctly applied the Franks test as supported by the
Mine Act’s text, its legislative history, and Commission precedent. Both the UMWA, an
intervenor in these proceedings, and the United Steel, Paper and Forestry, Rubber,
Manufacturing, Energy, Allied Industrial & Service Workers International Union (“USW”),
which filed an amicus brief on appeal, support the Secretary’s position that the Judge correctly
applied the Franks test in concluding that the Operators’ bonus plans violate section 105(c) by
interfering with miners’ protected rights.
A majority of Commissioners has not endorsed the Franks test, under which evidence of
motivation or causation is relevant only to proof of a legitimate business justification defense.
Commissioners Jordan and Cohen agree that the applicable test is Franks and conclude that
substantial evidence supports the Judge’s finding of a violation. Acting Chairman Althen and
Commissioner Young conclude that the plain language of the Mine Act requires proof that the
action was taken “because of” the exercise of protected rights. They would find, therefore, that
the Judge failed to apply the proper test. The effect of the split vote is to affirm the Judge’s
decision below. The separate opinions of the Commissioners follow.
4

The Secretary claims that the Operators have waived this argument because they did not
present it to the Judge below. We disagree. This argument is intrinsically intertwined with the
Operators’ challenge of the claim of interference. Although the Operators challenged the
application of Franks below, they did not present their alternative test for the Judge to consider.
Op. Post-Hrg. Br. at 7-9 & n.4. However, they did cite Commission precedent concerning the
issue. Since their test essentially mirrors the Commission’s Pasula-Robinette test applicable to
discrimination claims, their argument on appeal is sufficiently related. See Freeman United Coal
Mining Co., 6 FMSHRC 1577, 1580 (July 1984) (finding that operator’s broad statements
addressing the issue of the interpretation of the regulation at issue “afforded the administrative
law judge an opportunity to pass” upon the question). Moreover, Pepin was not issued until after
the Judge issued her decision in this case. Thus, we may appropriately consider the Operators’
arguments.

40 FMSHRC Page 684

III.
Separate Opinions of the Commissioners
Commissioners Jordan and Cohen, in favor of affirming the Judge:
As more fully explained in our decision, we reject the interpretation of the Operators and
our colleagues that section 105(c) has a plain meaning, because both interpretations would lead
to absurd results. Hence, we find the language ambiguous and would defer to the Secretary’s
reasonable interpretation. We thus would apply the Franks test and would conclude that
substantial evidence supports the Judge’s determination that the Operators violated section
105(c) by implementing bonus plans which interfered with miners’ protected rights under the
Mine Act. We also conclude that the Judge did not abuse her discretion in making her
evidentiary rulings below.
I. Proof of Retaliatory Motive is Not Required in an Interference Claim Under the
Mine Act.
This case concerns the scope of section 105(c) of the Federal Mine Safety and Health Act
of 1977 (“Mine Act” or “Act”). That particular statutory provision prohibits persons from
discharging, or in any manner discriminating against, or otherwise interfering with the statutory
rights of any miner “because of the exercise by such miner . . . of any statutory right afforded by
this Act.”51 30 U.S.C. § 815(c)(1). The case before us presents the issue of whether, in order to
1

Section 105(c)(1), 30 U.S.C. § 815(c)(1), states:
No person shall discharge or in any manner discriminate against or
cause to be discharged or cause discrimination against or otherwise
interfere with the exercise of the statutory rights of any miner,
representative of miners or applicant for employment in any coal
or other mine subject to this chapter because such miner,
representative of miners or applicant for employment has filed or
made a complaint under or related to this Act, including a
complaint notifying the operator or the operator’s agent, or the
representative of the miners at the coal or other mine of an alleged
danger or safety or health violation in a coal or other mine, or
because such miner, representative of miners or applicant for
employment is the subject of medical evaluations and potential
transfer under a standard published pursuant to section 811 of this
title or because such miner, representative of miners or applicant
for employment has instituted or caused to be instituted any
proceeding under or related to this chapter or has testified or is
about to testify in any such proceeding, or because of the exercise
by such miner, representative of miners or applicant for
employment on behalf of himself or others of any statutory right
afforded by this chapter.

40 FMSHRC Page 685

constitute a violation of section 105(c), it is sufficient to demonstrate that an operator’s policy
interferes with the exercise of miners’ rights, and that such interference is unjustified, or whether
one must also prove that the challenged policy was implemented with a retaliatory motive, in
other words directly “because of” a miner’s exercise of a statutory right.
As described below, we believe that the correct test is the test previously articulated by
two Commissioners in Franks & Hoy, 36 FMSHRC at 2108 (sep. op. of Chairman Jordan and
Comm’r Nakamura), and proposed by the Secretary herein (S. Resp. Br. at 13-15), providing that
a section 105(c) violation of interference occurs if:
(1) a person’s action can be reasonably viewed, from the
perspective of members of the protected class and under the
totality of the circumstances, as tending to interfere with the
exercise of protected rights, and (2) the person fails to justify the
action with a legitimate and substantial reason whose importance
outweighs the harm caused to the exercise of protected rights.
In attempting to answer the question of the correct test for interference, we turn to the
language of the statute, and our first inquiry is “whether Congress has directly spoken to the
precise question at issue.” Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
842 (1984); Thunder Basin Coal Co., 18 FMSHRC 582, 584 (Apr. 1996). If a statute is clear and
unambiguous, effect must be given to its language. See Chevron, 467 U.S. at 842-43;
accord Local Union 1261, UMWA, 917 F.2d 42, 44 (D.C. Cir. 1990). In ascertaining the
meaning of the statute, courts utilize traditional tools of construction, including an examination
of the “particular statutory language at issue, as well as the language and design of the statute as
a whole,” to determine whether Congress had an intention on the specific question at issue
(“Chevron I” analysis). Local Union 1261, UMWA v. FMSHRC, 917 F.2d at 44; Coal
Employment Project v. Dole, 889 F.2d 1127, 1131 (D.C. Cir. 1989). If an interpretation of
statutory language which apparently is clear and unambiguous leads to absurd results, then the
language should be found to be ambiguous. American Water Works Assoc. v. EPA, 40 F.3d 1266,
1271 (D.C. Cir. 1994); see also United States v. Ryan, 284 U.S. 167, 175 (1931) (“A literal
application of a statute which would lead to absurd consequences is to be avoided whenever a
reasonable application can be given which is consistent with the legislative purpose.”). If a
statute is ambiguous or silent on a point in question, deference is accorded to the interpretation of
the agency charged with administering the provision in question, provided that the interpretation
is reasonable (Chevron II analysis). See Chevron, 467 U.S. at 843-44; Energy West Mining Co. v.
FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994).
Section 105(c) mandates that persons not take certain actions “because of” a miner’s2
exercise of statutory rights. Included in the list of prohibited actions is the directive not to
2

Section 105(c) speaks of the protected class as including “miner[s], representative[s] of
miners, or applicant[s] for employment in any coal or other mine subject to this Act.” 30 U.S.C.
§ 815(c)(1). For simplicity of expression, in this opinion we shall simply use the word “miner,”
understanding that it refers to the entire protected class.

40 FMSHRC Page 686

“otherwise interfere with the exercise of [miners’] statutory rights.” 30 U.S.C. § 815(c)(1). In
general, a claim that a person has interfered with another’s ability to do something would cause
us to consider whether, or how, that person’s actions made it more difficult for another person to
carry out the activity in question. The focus of the inquiry is on the effect of the challenged
action, not necessarily on the motive behind the action.
The respondent operators, Murray Energy Corporation, et al. (“the Operators”) and our
colleagues assert that the plain language of section 105(c) requires any employer action
challenged as violating that provision be shown to have been taken “because of” the exercise of
protected rights. They focus on the meaning of the term “because” to derive an alleged plain
meaning in section 105(c). However, “[t]he plainness or ambiguity of statutory language is
determined [not only] by reference to the language itself, [but as well by] the specific context in
which that language is used, and the broader context of the statute as a whole.” The American
Coal Co., 796 F.3d 18, 25 (D.C. Cir. 2015) (affirming the Commission, the Court held that the
term “fire” in section 3(k) of the Mine Act is ambiguous and the Secretary’s interpretation of the
term to include smoldering, smoking combustion without visible flames was reasonable) (citing
Yates v. United States, 135 S.Ct 1074, 1081 (2015)).3
Here too, we must interpret the terms used in section 105(c) in context with both
the Mine Act’s goals and the actual experiences of miners. Congress recognized that interference
with miners’ rights can be subtle and will take uncommon forms. See S. Rep. No. 95-181 at 36,
discussed infra. To permit subtle interference through a narrow construction of the term “because
of” in section 105(c) would be inconsistent with this Congressional recognition.
Specifically, the Operators argue that the statutory test requires three elements to
establish a claim of interference: (1) the actual exercise of statutory rights by a miner prior to the
alleged act of interference by the employer, (2) that the alleged act of interference be directed
against the miner who previously exercised statutory rights, and (3) that the employer be shown
to have committed the alleged act of interference in response to the miner’s exercise of statutory
rights. PDR at 12. Thus, in the operators’ view, a literal reading of the statutory language
requires that prior conduct of a miner be the catalyst for the employer action under review, and to
do otherwise would read the “because of” language out of the Act.4

3

In American Coal Company, the Commission had considered the legislative history and
context in which the Mine Act was written as part of its analysis. 35 FMSHRC 380, 383-84 (Feb.
2013). The Commission determined that because the legislative history of the Mine Act
contained reference to “smoldering” fires that resulted in mass suffocation fatalities, Congress
could not have plainly used the term “fire” to mean or exclusively require the presence of a
flame.
4

Our colleagues take a somewhat different view. See infra slip op. at 18-20.

40 FMSHRC Page 687

A. The Language of Section 105(c) has No Plain Meaning Because a Literal
Reading Would Lead to Absurd Results.
We conclude that the language of section 105(c), insofar as it pertains to interference
claims, does not have a plain meaning. The relevant language states: “No person shall . . .
otherwise interfere with the exercise of the statutory rights of any miner . . . because of the
exercise by such miner . . . of any statutory right afforded by this Act.” 30 U.S.C. § 815(c)(1). As
the Operators contend, a literal reading of the words “because of the exercise by such miner
. . . of any statutory right afforded by this Act” necessarily refers to an exercise of a statutory
right which has already taken place. But such a reading leads to absurd results.
Imagine a situation where a mine is newly opened with a new workforce and the mine
owner creates a bonus plan which provides that if a miner contacts MSHA to complain about an
unsafe condition, an action protected under section 103(g) of the Act,6 the miner will lose his
bonus. Clearly, this is interference within the meaning of section 105(c). But it does not involve
any prior act by any miner, and so, under the Operators’ literal reading, it would not be an illegal
act under section 105(c).7
Because a literal reading of the statute leads to absurd results, the interference provision
of section 105(c) must be seen as lacking a plain meaning. A case in point is American Water
Works Assoc. v. EPA, supra. This case involved a challenge by the Natural Resources Defense
Council (“NRDC”) to the EPA’s interpretation of the language “not economically or
technologically feasible” in the Safe Drinking Water Act, 42 U.S.C. § 300f(1)(C)(ii). The dispute
centered on an EPA regulation for the control of lead in public water systems, specifically
whether EPA was required to set a numeric maximum contaminant level (“MCL”), which was
required by the statute unless it was “not economically or technologically feasible,” or whether it
could establish a treatment technique to control lead. In support of its position that the EPA was
required to set a specific MCL for lead, the NRDC argued that the plain meaning of the word
“feasible” was “physically capable of being done at reasonable cost.” In response, the EPA did
not dispute that it was “feasible” to monitor lead under the definition proposed by the NRDC, but
contended that use of an MCL standard could lead to requiring public water systems to undertake
aggressive corrosion control techniques which would increase the levels of other contaminants.

6

Section 103(g) provides: “Whenever . . . a miner . . . has reasonable grounds to believe
that a violation of this Act or a mandatory health or safety standard exists, or an imminent danger
exists, such miner . . . shall have a right to obtain an immediate inspection by giving notice to the
Secretary . . . of such violation or danger.” 30 U.S.C. § 813(g).
7

This hypothetical was posed to counsel for the Operators during the oral argument in
this case. The initial response of the Operators’ counsel was that the plan would constitute
interference with statutory rights under section 105(c). Oral Arg. Tr. 11-13. But on further
reflection, after being reminded that the test he proposed required prior protected activity by a
miner, counsel agreed that the bonus plan would not constitute illegal interference because of the
absence of a predicate act by a miner. Oral Arg. Tr. 14-17.

40 FMSHRC Page 688

Hence, EPA interpreted “feasible” broadly to mean “capable of being accomplished in a manner
consistent with the Act.” 40 F.3d at 1270-71.
In siding with the EPA, the Court stated:
We agree with the EPA that the meaning of ‘feasible’ is not as
plain as the NRDC suggests. Although we generally assume that
the Congress intends the words it uses to have their ordinary
meaning, . . . case law is replete with examples of statutes the
ordinary meaning of which is not necessarily what the Congress
intended. . . . Indeed, where a literal reading of a statutory term
would lead to absurd results, the term simply ‘has no plain
meaning . . . and is the proper subject of construction by the
[agency] and the courts.’ . . . If the meaning of ‘feasible’ suggested
by the NRDC is indeed its plain meaning, then this is such a case;
for it could lead to a result squarely at odds with the purpose of the
Safe Drinking Water Act.
Id. at 1271 (citations omitted). The Court then went on to defer to the agency’s interpretation of
the statute, finding, pursuant to the Chevron doctrine, that it was a reasonable one.
Likewise, we conclude that the literal reading of the interference provision of section
105(c) asserted by the Operators leads to absurd results. As illustrated by the example of a new
mine with a bonus plan which discourages complaints to MSHA described above, it leads “to a
result squarely at odds with the purpose” of the Mine Act.
The Commission has adhered to the principle that when interpreting the Mine Act and
safety standards, constructions that lead to absurd results must be avoided. See, e.g., Central
Sand and Gravel Co., 23 FMSHRC 250, 254 (Mar. 2001). Notably, the Commission has been
guided by this precept in considering the scope of protection afforded by section 105(c). For
example, the statute prohibits the “discharge . . . of any miner . . . because such miner . . . has
filed or made a complaint under or related to this Act.” 30 U.S.C. § 815(c)(1). The literal
application of the provision advocated by the Operators would cover only retaliatory actions
taken against the particular person who made a safety complaint. This is because the statute
prohibits the discharge of a miner “because such miner . . . has . . . made a complaint under or
related to this Act . . . or because of the exercise by such miner . . . of any statutory right afforded
by this Act.” Id. (emphasis added). If an employer fired a miner believing that the miner filed a
safety complaint, but a different miner had made the complaint, would the fired miner have a
claim under section 105(c)? A literal approach, seeking to give effect to every word, would
require the Commission to answer in the negative.
In Moses v. Whitley Dev. Corp., 4 FMSHRC 1475 (Aug. 1982), aff’d, 770 F.2d 168 (6th
Cir. 1985), the Commission confronted this very question. Moses was fired, and the Judge below
found that the discharge occurred “because the operator thought the complainant had engaged in
protected activity, even though he had not.” 4 FMSHRC at 1480. We acknowledged that “a
literal interpretation . . . might require the actual or attempted exercise of a right before the

40 FMSHRC Page 689

protection of section 105 comes into play,” but we nevertheless found a violation. Emphasizing
the effect of the employer’s action on the willingness of miners to exercise their rights, we
pointed out that:
Miners would be less likely to exercise their rights if no remedy
existed for discriminatory action based on an operator’s mistaken
belief that a miner had exercised a protected right . . . .
[E]mployees could reasonably fear that they might be treated
adversely on the basis of suspicion alone, and thus would seek to
avoid even the appearance of asserting their rights.
Id.
More recently, in Sec’y obo Gray v. North Star Mining, Inc., 27 FMSHRC 1 (Jan. 2005),
a case involving an alleged threat against a miner, we stated:
[I]nterference . . . does not turn on the employer’s motive or on
whether the coercion succeeded or failed. The test is whether the
employer engaged in conduct which, it may reasonably be said,
tends to interfere with the free exercise of employee rights . . . .
Id. at 9 (quoting Am. Freightways Co., 124 NLRB 146, 147 (1959)).
The case involved conversations between an assistant mine superintendent, Jim
Brummett, and Mark Gray, who had been called to testify before a grand jury about smoking,
ventilation and roof support violations at the mine (although ultimately he was not called as a
witness). Id. at 2. When Gray told Brummett that he did not want hard feelings between them,
Brummett replied, “No, they ain’t no hard feelings, unless you put the screws to me, then I’ll kill
you,” and then laughed. Id. at 3. The next day, Brummett sought assurances from Gray that a
second miner had not testified against him. Id. Brummett told Gray that “if anyone had laid the
screws to him that he would whip their ass.” Id. The Judge dismissed Gray’s discrimination
complaint, finding that Brummett’s statement to Gray was just an “exaggerated expression,
commonly used between friends” and that his statement to Gray on the following day was
directed at the second miner, and not at Gray. Id. at 5.
The Commission found that the Judge had erred in denying Gray’s interference claim
based on the absence of intent or motive. The Commission said, “We conclude that the judge
examined Brummett’s statements too narrowly by considering largely, if not exclusively,
Brummett’s intent or motive in making the statements. . . . rather than considering only
Brummett’s intent, the judge should have analyzed the totality of circumstances surrounding

40 FMSHRC Page 690

Brummett’s statements to determine whether they were coercive and violative of section 105(c)
of the Mine Act.” Id. at 10.8
The Commission’s approach in Moses and Gray is consistent with cases that considered
the scope of the analogous anti-discrimination provision in the Federal Coal Mine Health and
Safety Act of 1969, the predecessor to the current statute. In Phillips v. IBMA, 500 F.2d 772
(D.C. Cir. 1974), the D.C. Circuit considered whether a miner came under the protection of
section 110(b) of that Act when he complained to his foreman, and then subsequently refused to
work because of the dusty conditions in the mine.9 The dissenting judge applied the literal
language of the Coal Act, which afforded protection to miners who notified the Secretary or his
authorized representative of an unsafe condition, and concluded that “the phrase ‘the Secretary or
his authorized representative’ on its face plainly does not mean a foreman or the mine employees
serving on a safety committee.” Id. at 785. The Phillips majority, however, after considering the
8

Our colleagues would require proof of motivation in a claim of interference. They
contend that their approach is consistent with Gray because the threats in Gray “were clearly
motivated by protected activity. . . . The issue of whether motivation was required for
interference was not before the Commission.” Slip op. at 47-48. However, our colleagues ignore
the fact that in Gray the Commission vacated an ALJ decision where the Judge had specifically
found that Brummett’s statements to Gray “‘amounted to no more than an exaggerated
expression, commonly used between friends who expect loyalty from one another,’” and that
“‘no threat occurred.’” 27 FMSHRC at 5, quoting 25 FMSHRC at 215, 217. Thus, our
colleagues’ contention that Brummett issued “threats” which were “motivated by protected
activity” is inconsistent with the Judge’s findings based on credibility determinations after a
hearing. In reversing the Judge, the Commission did not challenge her findings regarding the
motivation behind Brummett’s statements to Gray. Rather, the Commission found the motivation
relied on by the Judge to be irrelevant. It was the nature of Brummett’s statements, and their
potentially coercive effect on Gray, which was essential to the Commission’s decision. 27
FMSHRC at 10. Hence, our colleagues are incorrect in stating that the issue of motivation in an
interference claim was not before the Commission in Gray. Their interpretation of the
interference provision in section 105(c) is inconsistent with Gray.
9

Section 110(b)(1) of the Coal Act stated:
No person shall discharge or in any other way discriminate against
or cause to be discharged or discriminated against any miner or
any authorized representative of miners by reason of the fact that
such miner or representative (A) has notified the Secretary or his
authorized representative of any alleged violation or danger, (B)
has filed, instituted, or caused to be filed or instituted any
proceeding under this Act, or (C) has testified or is about to testify
in any proceeding resulting from the administration or enforcement
of the provisions of this Act.

30 U.S.C. § 820(b)(1) (1976).

40 FMSHRC Page 691

procedures in place at the mine and the practical effect of applying the literal language of the
provision, concluded that such an interpretation “would nullify not only the protection against
discharge but also the fundamental purpose of the Act to compel safety in the mines.” Id. at
781(footnote omitted).10 The Phillips Court analogized section 110(b)’s protection to the
protection afforded under the corresponding anti-discrimination provision of the National Labor
Relations Act which, the Phillips Court noted, had been construed broadly so as to apply to the
discharge of an employee for giving a sworn written statement to a NLRB field examiner who
was investigating an unfair labor charge. Such protection was necessary, the Supreme Court had
determined, in order “to prevent the Board’s channels of information from being dried up by
employer intimidation of prospective complainants and witnesses.” Id. at 782 (emphasis added)
(citing NLRB v. Scrivener dba AA Electric Co., 405 U.S. 117, 122 (1972)).11
The concern that safety-related channels of information were being dried up prompted the
Secretary’s filing in this case. Here, however, the reluctance of the miners to assert their rights is
attributed not so much to employer intimidation as it is to the inducements contained in the
employer’s bonus plan. As set forth in more detail, infra slip op. at 22-24, certain aspects of the
plan can cause a miner who chooses to exercise his or her right to accompany an inspector to risk
losing a portion of a bonus payment. Likewise, under the plan, a miner who points out a
condition that is hazardous, or which violates a safety standard, can be, at least indirectly, the
cause of a forfeiture of all or part of the bonus. Reporting an injury can result in the entire crew
losing their bonus. Miners who insist that certain time-consuming but necessary safety-related
chores (like rock dusting) be carried out incur the ire of fellow employees, who fear that the
activity will lessen the likelihood of a bonus. Putting aside for a moment the issue of whether the
Secretary has adequately proven these potentially deterrent effects of the bonus plan, the
question remains whether the Secretary must also show that the plan was implemented “because
of” the miners’ exercise of protected activity.
In interpreting other, similarly-worded, statutes, the Supreme Court has found the phrase
“because of” not to have the alleged plain meaning of motivation advocated by the Operators or
our colleagues. The Court has recognized that statutes prohibiting discrimination “because of”
congressionally designated criteria need not include a motive element. In Texas Department of
10

The holding of the Phillips Court, that the coverage of the anti-discrimination
provisions of the Coal Act begins when a miner notifies mine officials or the safety committee of
possible safety violations, and that no formal complaint to the Secretary of Labor is required,
was reaffirmed in Munsey v. Morton, 507 F.2d 1202, 1208-9 (D.C. Cir. 1974).
11

Four years later, in Baker v. IBMA, 595 F.2d 746 (D.C. Cir. 1978), the Court rejected
the view that section 110(b)’s protection from discrimination was only afforded to miners who
had the intent to contact federal officials at the time they made safety complaints to a mine
foreman. The Court noted the comment by the sponsoring Senator, Edward Kennedy, that “(T)he
rationale for this amendment is clear. For safety’s sake we want to encourage the reporting of
suspected violations of health and safety regulations.” 595 F.2d at 749-50 (citation omitted).
Thus, the Court focused on the safety-enhancing purpose of the statute’s anti-discrimination
language rather than on the express language of the statute.

40 FMSHRC Page 692

Housing & Community Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2518
(2015), the Court considered whether a method of distributing low income housing tax credits
violated the Fair Housing Act. That statute made it unlawful inter alia to “refuse to sell or rent
after the making of a bona fide offer . . . or otherwise make unavailable or deny, a dwelling to
any person because of race, color, religion, sex, familial status, or national origin.” Id. at 2518
(quoting 42 U.S.C. § 3604(a)) (emphasis added). Although a purpose underlying the Fair
Housing Act was to reduce racially segregated housing, the housing tax credit program under
review actually wound up reinforcing it, albeit without evidence of a discriminatory intent. The
Housing Department denied liability, claiming that “[a]n action is not taken ‘because of race’
unless race is a reason for the action.” 135 S. Ct. at 2519.
The Court rejected the argument that “because of” must include a motivational argument.
Focusing on the phrase “or otherwise make unavailable,” it noted the similar language in both
Title VII and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, and
concluded:
In these three statutes the operative text looks to results. The
relevant statutory phrases, moreover, play an identical role in the
structure common to all three statutes: Located at the end of
lengthy sentences that begin with prohibitions on disparate
treatment, they serve as catchall phrases looking to consequences,
not intent. And all three statutes use the word ‘otherwise’ to
introduce the results-oriented phrase. “Otherwise” means “in a
different way or manner,” thus signaling a shift in emphasis from
an actor’s intent to the consequences of his actions. Webster’s
Third New International Dictionary 1598 (1971).
135 S. Ct. at 2519 (emphasis added). Thus, the Court held that the inclusion of the phrase
“because of” in an anti- discrimination statute does not imply the need to show discriminatory
motive.12
12

Our colleagues argue that Inclusive Communities is irrelevant to the issues here
because it involved a claim of disparate impact, an area of law they suggest is unique unto itself.
But the Court’s reasoning and conclusions were not so narrowly drawn. The above-quoted
passage shows that the language and structure of the anti-discrimination provisions reviewed by
the Court were critical to its conclusion that the effects or consequences of employer conduct
may support a claim of discrimination without regard to the employer’s intent. Similar language
and structure support the same reading and conclusion for section 105(c) of the Mine Act.
Moreover a focus on the effects of employer conduct is not limited to cases involving
disparate impact claims and, in fact, is consistent with Commission precedent interpreting
section 105(c), as reflected in Moses and Gray. The importance the Commission has placed on
the effects of operator conduct is also reflected in its use of section 8(a)(1) of the National Labor
(continued…)

40 FMSHRC Page 693

B. The Mine Act’s Legislative History Demonstrates that Interference Could
Occur Without a Showing of Motive on the Part of the Operator.
The directive that no person shall “otherwise interfere with the exercise of the statutory
rights of any miner” was included when the 1969 Coal Act was amended to become the Federal
Mine Safety and Health Act of 1977. The Senate drafters explained that the wording of section
106(c)(1) (the section which became section 105(c) in the final bill) was “broader than the
counterpoint language in section 110 of the Coal Act” and the listing of protected rights was
“intended to be illustrative and not exclusive.” S. Rep. No. 95-181, at 36 (1977), reprinted in
Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine
Safety and Healthy Act of 1977, at 624 (1978). The Committee specified that this section should
“be construed expansively to assure that miners will not be inhibited in any way in exercising
any rights afforded by the legislation” and indicated its intention “to insure the continuing
vitality of the various judicial interpretations of section 110 of the Coal Act which are consistent
with the broad protections of the bill’s provisions. See, e.g., Phillips v. IBMA, 500 F.2d 772;
Munsey v. Morton, 507 F.2d 1202.” S. Rep. No. 95-181, at 36, reprinted in Legis. Hist. at 624.
The legislative history of the discrimination provision in the 1977 Mine Act establishes
that Congress had contemplated the type of operator conduct present in this case, and that
Congress intended to prohibit it without a showing of operator motive. The Senate Report
demonstrates that Congress’ intent was to protect miners from “not only the common forms of
discrimination, such as discharge, suspension, demotion . . . but also against the more subtle
12

(…continued)
Relations Act as an aid in interpreting section 105(c). See Gray, 27 FMSHC at 9-10. Section
8(a)(1) focuses on the effects of employer misconduct and does not contain a motivational
requirement.
Given the Supreme Court’s reasoning in Inclusive Communities, our colleagues’ reliance
on Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) (“Gross”) and University of Texas
Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013) (“Nassar”), to argue that the
phrase “because of” has a plain meaning which requires proof of motive in all case, is misplaced.
Gross involved a claim of disparate treatment under the ADEA which requires proof of
wrongful motivation. Nothing in Gross suggests that the Court was rejecting prior interpretations
of the ADEA, as described in Inclusive Communities, allowing claims challenging the
discriminatory effect or impact of employer conduct without proof of discriminatory motive.
Similarly, Nassar involved a claim under Title VII’s anti-retaliation provision set forth at
42 U.S.C. § 2000e-3(a). That provision does not contain language similar to “otherwise
adversely affects” in the anti-discrimination provisions of Title VII (42 U.S.C. § 2000e-2(a)(2))
and the ADEA (29 U.S.C. § 623(a)(2)), “otherwise make unavailable or deny” in the FHA (42
U.S.C. § 3604(a)), or “otherwise interferes” in section 105(c) of the Mine Act (30 U.S.C. §
815(c)(1)). It is limited to claims of retaliatory treatment of employees, which require proof of
motive.

40 FMSHRC Page 694

forms of interference, such as promises of benefit or threats of reprisal.” S. Rep. No. 95-181, at
36 (emphasis added). This language directly addresses the Operators’ bonus plans at issue here.
“Promises of benefit” inherently affects future protected activity rather than being made in
reaction to prior protected activity. Thus the Operators’ argument that section 105(c) only
forbids adverse action or interference “because . . . such miner” previously participated in
protected activity directly contravenes the legislative history of the Mine Act.13
In light of this legislative history, we conclude it inappropriate to limit the scope of
section 105(c)’s protection from interference in the manner proposed by the Operators. We
decline to adopt their narrow construction, based on the literal terminology of the statute and
focused on an employer’s motivation when implementing the policy, rather than on the effects of
the policy on miners’ willingness to exercise their rights. The decisions endorsed by the Senate
drafters rejected such an interpretation. Those decisions declined to elevate the statutory text at
the expense of the underlying remedial purpose of the law, and we find it difficult to believe the
drafters would consider motivation to be such a necessary element that its absence would be the
basis for an interpretation of 105(c) that undermines its very purpose: to encourage the reporting
of suspected violations of health and safety regulations.

13

Our colleagues’ assertion, slip op. at 37-38, that the legislative history of section 105(c)
supports their position rings hollow. They rely heavily on the drafters’ statement that their goal
was the protection of miners from interference with their rights in the form of “threats of
reprisal,” and then argue that “[f]or there to be a threat of reprisal there must be an action that
triggers the threat – that is, there must be a cause for the reprisal.” Id. at 37. Our colleagues
ignore the fact that in the same sentence of the legislative history containing the phrase “threats
of reprisal,” the drafters expressed their concern about interference in the form of “promises of
benefit.” S. Rep. No. 95-181, at 36. A promise of benefit which has the effect of interference
with the exercise of protected rights need not have been motivated by the exercise of those rights.
Our colleagues also claim textual significance in the fact that in converting the 1969 Coal
Act’s section 110(b) into the 1977 Mine Act’s section 105(c), Congress changed the language
“by reason of the fact” to “because” and re-structured the section so that instead of phrases
beginning “(A),” “(B),” and “(C),” each subject to the “by reason of the fact” language, the
section now contains separate clauses prefaced by “or” and including the “because” or “because
of” language. We fail to discern an effectual difference between “by reason of the fact” and
“because.” What is much more significant in the evolution of this section is that in 1977
Congress added the language “or otherwise interfere with the exercise of . . . statutory rights,” a
provision which did not exist in the 1969 Coal Act. In explanation of the new interference
language, the legislative history spoke of going beyond “the common forms of discrimination”
so as to include “the more subtle forms of interference, such as promises of benefit . . . .” S. Rep.
No. 95-181, at 36.

40 FMSHRC Page 695

Indeed, the test proposed by the Operators leads to absurd results because the
Congressional intent to include “the more subtle forms of interference” is essentially precluded.14
Congress intended to include “threats of reprisal” within the ambit of illegal interference, but
such threats cannot be reached under the Operators’ test unless there has been a predicate act of
miners exercising protected rights which gave rise to the threat of reprisal. Moreover, the
“promises of benefit” contemplated by Congress virtually cannot be reached at all.15 The test
proposed by the Operators’ is essentially backward-looking. It requires that there be a preexisting exercise of statutory rights by a miner which triggers the alleged act of interference by
the operator. However, the Mine Act’s prohibition of unlawful interference, as described in the
legislative history, is forward-looking. The interference which Congress sought to prevent is the
promise of future benefit or the threat of reprisal for a future assertion of statutory rights by a
miner.

14

Digital Realty Trust, Inc. v. Somers, 138 S.Ct. 767 (2018), relied on by our colleagues,
does not refute this. In that case, the Supreme Court ruled that a private sector employee who did
not report any securities-law violations to the Securities and Exchange Commission was not a
“whistleblower,” even though he had reported his concerns to senior management. The Court’s
adherence to the plain language of the statutory definition of “whistleblower,” which states that a
“whistleblower” is a person who provides information relating to a violation of securities laws to
the Secretary, was driven in large part by its view that the purpose of the statute was to
encourage prompt reporting of violations to the SEC (which the plaintiff had not done). By
contrast, a literal reading of section 105 of the Mine Act (resulting in the institution of a
motivation requirement in interference cases) does nothing to further the objectives of the antidiscrimination provisions in the Act. To the contrary, it makes it more difficult for miners to
prevail in interference lawsuits.
Although, in Digital Realty Trust, the Court applied a plain meaning analysis to the
language of a discrimination statute, its rationale was based specifically on the statute’s purpose
and on alternative mechanisms that could protect employees. The Court opinion is not the first –
nor the last – to base an interpretation on the plain meaning of statutory text. Importantly,
however, in rejecting the specific “absurd results” analysis of the lower court and the parties, the
Supreme Court relied on case-specific rationales, and did not call into question the use of the
absurd results doctrine in other cases.
15

The Operators’ express concern is that under the Franks test (as embodied in the
Judge’s Decision), “any bonus plan that provides an element of production is per se unlawful.”
Oral Arg. Tr. 30. We reject this suggestion. But what is clear is that under the Operators’
proposed test, the “promises of benefit” provided in a bonus plan based on production can never
be found unlawful under section 105(c) without smoking gun evidence that the plan’s intent was
to subvert statutory rights.

40 FMSHRC Page 696

C. Demanding Proof of an Operator’s Motivation Would Permit Some
Policies Intruding Upon the Mine Act’s Protections Against Interference
to Go Uncorrected.
The test proposed by the Operators would have the effect of reading the “interference”
language of section 105(c) out of the Mine Act. The statutory language provides, “No person
shall discharge or in any manner discriminate against or cause to be discharged or cause
discrimination against or otherwise interfere with the exercise of the statutory rights of any
miner, . . . .” Thus, “interference” is distinct from “discrimination.” In Sec’y on behalf of Pendley
v. Highland Mining Co., the Commission held that “discrimination” includes all retaliatory
“adverse actions” that are “harmful to the point that they could well dissuade a reasonable
worker” from engaging in protected activity. 34 FMSHRC 1919, 1932 (Aug. 2012) (quoting
Burlington N. & Santa Fe Railway v. White, 548 U.S. 53, 57 (2006)). Given that the dissuading
of workers from engaging in protected activity is the essence of “interference,” Pendley
establishes that “interference” which is in retaliation for protected activity – i.e., the test
proposed by the Operators – is covered by section 105(c)’s provision against “discrimination.”
As noted above, Congress added the “interference” language to the 1969 Coal Act in creating the
Mine Act in 1977 and intended the interference provision to broaden the coverage of the antidiscrimination provision. However, if the test proposed by the Operators is adopted by the
Commission, it would render the “interference” language a nullity.
Our colleagues’ approach is somewhat different from that of the Operators. They reject
the literal interpretation of section 105(c) advanced by the Operators and argue that they can
divine a plain meaning of the section separate from its literal meaning, slip op. at 34 n.6, 35, 46,
49-50, although, as the Operators point out, the literal meaning of the statutory language is
clear.16 Like the Operators, our colleagues assert that there must be a causal nexus between
alleged acts of interference and protected activity in order to come within the ambit of the

16

Our colleagues rely on Meredith v. FMSHRC, 177 F.3d 1042, 1054 (D.C. Cir. 1999),
where the Court held that MSHA employees are not “persons” who can be named as respondents
in discrimination claims under section 105(c) of the Mine Act. Interestingly, the Court found a
textual analysis of the word “person” to be insufficient to determine a plain meaning of the
statute. Rather, the Court looked to the statutory scheme as a whole. Id. at 1054-56. Our
colleagues, however, rely primarily on a textual analysis. Our colleagues also rely on the
Commission decision in Nally & Hamilton Enterprises, Inc., 33 FMSHRC 1759 (Aug. 2011),
where the Commission interpreted the word “maintain” as used in 30 C.F.R. § 77.410(c). In
finding a plain meaning for the word, the Commission did not reject the literal meaning of the
word as inconsistent with the plain meaning, but rather, rejected the operator’s attempt to inject
nuances and requirements into the plain meaning which simply were not present. Id. at 1763.

40 FMSHRC Page 697

statutory prohibition. However, unlike the Operators, they assert that the required protected
activity can include activity that is yet to occur.17
We can envision situations where actions by mine operators may constitute actionable
interference under section 105(c) absent motivation to inhibit miners’ protected activity. An
obvious example is the fact pattern described in Gray, where the Commission found interference
although the Judge accepted Brummett’s testimony that he was only joking with Gray and that
no threat occurred. 27 FMSHRC at 5.
At least one Commission Judge has described how demanding proof of motivation as a
requirement in interference cases would permit operators to interfere with statutory rights for
reasons that would not be actionable. Commission Judge John Kent Lewis noted, “[a]ccording to
the Pepin test,18 an agent of the operator would be legally permitted to interfere with a miner’s
statutory rights because he doesn’t like the miner, because there was a lack of resources, because
he was ignorant of the miner’s statutory rights, or a host of other reasons that are not motivated
by the exercise of statutory rights.” Wilson v. Armstrong Coal Co., 39 FMSHRC 1072, 1092
(May 2017) (ALJ), review granted June 15, 2017. Thus, the interpretation of section 105(c)
advanced by our colleagues, like the interpretation by the Operators, would lead to absurd
results: in some circumstances, policies intruding upon the Mine Act’s broad protections would
escape corrective action under section 105(c).
Moreover, we note that both the Operators and our colleagues assert that their respective
interpretations of section 105(c) represent the “plain meaning” of the statutory language. The
obvious conflict between these allegedly “plain” meanings suggest that section 105(c) actually is
ambiguous, and not subject to resolution under Chevron I analysis. See American Coal Co., 796
F.3d at 24-25.
17

Our colleagues submit that interference claims are analytically indistinguishable from
discrimination claims characterized by firing, suspension, adverse change in job duties or other
such direct adverse action, and so should be analyzed under the traditional formula created in
Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980) and
Sec’y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (Apr. 1981),
and widely known as the Pasula-Robinette test. Slip op. at 46, 50. However, in Gray, the
Commission noted that “[t]he Commission’s approach to the analysis of operator statements [of
alleged coercive interrogation or harassment constituting interference with protected rights]
stands in contrast to its analysis of discrimination against miners who have exercised their rights
under the Mine Act. . . . This latter analysis is generally referred to as the Pasula-Robinette test.”
27 FMSHRC at 8-9 n.6. Thus, the Commission has indeed recognized a difference between
interference claims and the more typical discrimination claims arising under section 105(c).
18

Judge Lewis was discussing Judge David Barbour’s decision in Secretary obo Pepin v.
Empire Iron Mining Partnership, 38 FMSHRC 1435, 1453-54 (June 2016) (ALJ), a decision
whose thesis that in a claim of unlawful interference under section 105(c) the Secretary has the
threshold burden of proving the operator’s unlawful motivation is echoed by our colleagues’
opinion in this case.

40 FMSHRC Page 698

D. Deference to the Secretary’s Interpretation is Warranted.
Given our conclusion that the alleged “plain meaning” interpretations by the Operators
and our colleagues lead to absurd results, and thus that section 105(c) is ambiguous as to whether
proof of motivation is required in an interference claim, we next consider whether it is
appropriate to defer to the Secretary’s interpretation of the statutory language pursuant to
Chevron II analysis.
As noted above, the Secretary submits that an action constitutes interference in violation
of section 105(c)(1) if:
(1) a person’s action can be reasonably viewed, from the
perspective of members of the protected class and under the
totality of the circumstances, as tending to interfere with the
exercise of protected rights, and
(2) the person fails to justify the action with a legitimate and
substantial reason whose importance outweighs the harm caused to
the exercise of protected rights.
S. Br. at 13-17 (quoting Franks & Hoy, 36 FMSHRC at 2108 (sep. op of Chairman Jordan and
Comm’r Nakamura). The Secretary thus interprets the Mine Act so as to allow a miner to prevail
on an interference claim, without requiring proof of the operator’s motivation to interfere with
the miners’ statutory rights. This two-part test was articulated and adopted by two
Commissioners in Franks & Hoy, 36 FMSHRC at 2108 (sep. op of Chairman Jordan and
Comm’r Nakamura). This analytic framework has been dubbed “the Franks test.”
Commissioners recently concluded that it was not error for a Judge to apply the Franks
test. Sec’y of Labor on behalf of McGary v. Marshall Cty. Coal Co., 38 FMSHRC 2006 (Aug.
2016). In that case, the operator instituted a policy, announced at company-wide meetings,
requiring miners to report safety hazards to management first, thereby circumventing miners’
rights to report hazards under section 103(g) of the Act.19 38 FMSHRC at 2012 n.11, 2028
n.22.20 All five commissioners concluded that the Franks test was consonant with Moses and
Gray and thus it was not incorrect for the Judge to use it in the McGary case. Id. at 2012.

19

As previously noted, supra slip op. at 10 n.5, That statutory provision affords miners
the right to make anonymous complaints to the Secretary. 30 U.S.C. § 813(g).
20

A number of Commission Judges have also applied Franks to interference claims. See
UMWA ex rel. Franks v. Emerald Coal Res., 38 FMSHRC 799 (Apr. 2016); McGary v. Marshall
County Coal Co., 37 FMSHRC 2597, 2603-04 (Nov. 2015); McGlothlin v. Dominion Coal
Corp., 37 FMSHRC 1256, 1264-65 (June 2015); Pendley v. Highland Mining Co., 37 FMSHRC
301, 309-11 (Feb. 2015). One Commission Judge has rejected the Franks test. Sec’y obo Pepin v.
Empire Iron Mining Partnership, supra.

40 FMSHRC Page 699

In a recent interference case under the Mine Act, the D.C. Circuit also employed the
Franks test, noting that the administrative law judge had applied it and that neither party
challenged its use. Wilson v. FMSHRC, 863 F.3d 876 (D.C. Cir. 2017). In ruling on the miner’s
interference claim, the Court emphasized that the Franks test calls for an objective evaluation of
how a reasonable miners’ representative would view the alleged discriminator’s conduct, and not
whether the individual accused of interference had a subjective intention to interfere with the
statutory rights of the miners’ representative. Id. at 881-82. Specifically, the Court stated, “as the
Commission has instructed, whether ‘interference’ occurred does not turn ‘on the [respondent’s]
motive . . . .’” Id. at 881 (citing Gray, 27 FMSHRC at 9).
In sum, we reject the literal interpretation of section 105(c) that would unduly restrict the
reach of the Mine Act’s protection from interference. We would have the Commission adopt the
Franks test, deferring to the Secretary’s reasonable interpretation of the statutory language, an
interpretation that is consistent with Commission precedent, federal case law, and the legislative
history of the Mine Act and, importantly, one in keeping with Congressional intent to encourage
miners to play an active role in maintaining safe and healthful conditions in the mines.21
II.

Substantial Evidence Supports the Judge’s Finding that the Bonus Plans
Interfered with the Miners’ Protected Rights.
A. A Reasonable Miner Would be Deterred from Exercising His or Her
Rights as a Result of the Bonus Plans.

Concluding that the bonus plans discouraged miners from making safety complaints,
reporting injuries, and serving as walk-around representatives, the Judge explained:
While the bonus amounts are not extraordinarily large, the amounts
for production crewmembers are large enough to matter to most
miners. The witnesses at the hearing also emphasized the intensity
of the peer pressure fostered by the plans. The bonus plans make it
so that a miner must decide whether it is worth taking money out
of his own pocket and those of his entire section every time he
considers reporting an unsafe condition or an injury. This impact
on a miner’s decision to exercise his rights constitutes a coercive
pressure analogous to the interrogation and harassment discussed
by the Commission in Moses and Gray.
38 FMSHRC at 953 (citations omitted).

21

Indeed, section 2(e) of the Mine Act states that mine operators, with the assistance of
miners, have the primary responsibility to prevent the existence of unsafe and unhealthful
conditions and practices in mines. 30 U.S.C. § 801(e).

40 FMSHRC Page 700

Ample evidence22 supports the Judge’s conclusion regarding the negative impact the
plans had on the miners’ exercise of rights, evidence the operator did not attempt to counter.
Miner Timothy McCoy, employed at the Marshall County Mine, testified that miners on
his production crew did not report hazards to MSHA because they did not want to risk their
bonuses. He described an incident in which roof bolts were not properly spaced over a power
center, and being told by a miner that “[i]f I report this, we are going to have MSHA here
tomorrow investigating it and tomorrow’s bonus was out.” Tr. 141.23
Testimony indicated that internal safety complaints also decreased after the bonus plans
took effect. Ann Martin, the former mine safety committee chairman at the Harrison County
Mine, described how “[d]uring my inspections on the section, I found it interesting that before
the plan was implemented, the guys were just waiting to talk to you, converse with you, you
know, per the plan itself, that changed because those guys were doing nothing more than
setting on their equipment and mining coal.” Id. at 158.
After shutting down a section because of ventilation issues, Martin was told by a miner
“you just knocked us out of our Bonus Plan.” Id. at 165. Upon being asked by another
committeeman whether he would prefer to have the money rather than assure safe mining
conditions, the miner’s response was “yes.” Id. Under the plan, foremen receive double the
bonus their crews earn. Id. at 308. There was testimony that some foremen instructed miners that
they “absolutely cannot shut down the belt.” Id. at 58-60.
Miners who were injured but not incapacitated were tempted to “rough it out” so as to not
lose the bonus for leaving the mine face. Id. at 54. Levi Allen, who had served as the local union
president at the Marshall County Mine, described a specific incident in which an employee
injured his shoulder while working but did not report the injury: “His exact words to me was he
didn’t want to screw everybody,” Allen testified. Id. at 226. Allen explained that he rarely
received calls before the plan about miners who left a shift without reporting an injury, but after
the plans went into effect, the frequency of such calls tripled. Id. at 229.
Under the plan, bonus amounts were tied to one’s presence on a working section. A
production miner who left the section to accompany a federal inspector earned 10% of the bonus
his or her section earned if the section met its production quota. After the bonus plans were
implemented, safety committees had difficulty identifying miners willing to accompany
inspectors. Id. at 47, 72-73, 152, 155, 166. Ann Martin testified: “I approached a young man who
normally would jump at the chance to travel with the inspector and earn that experience, and his
22

In his case-in-chief, the Secretary presented evidence from four miners to describe the
effects of the bonus plans. The Secretary attempted to call additional miner witnesses, but the
Judge excluded their testimony, finding that it would be cumulative. 38 FMSHRC at 944, n.1.
23

McCoy heard of other crews not filing section 103(g) complaints in similar situations.
Tr. 114-15. At mines where the bonus plans were discontinued, section 103(g) reporting
rebounded. Id. at 166.

40 FMSHRC Page 701

exact words to me were, ‘No, Ann, I don’t want to go today. We are set up for production bonus,
so I want to go to the section.’” Id. at 152. Timothy McCoy testified that his coworkers on the
production crew discouraged him from serving as a walk-around representative because a less
experienced miner would be sent to replace him, and this would reduce the crew’s ability to
achieve a bonus. Id. at 113-14.
There was also abundant testimony describing safety issues that were being neglected
while the bonus plans were in effect. Specifically, miners did not adequately rock dust, id. at 49,
52, 106, 119, 153, 217, failed to properly bolt the roof, id. at 105-6, 119,153, worked in poorly
ventilated and high methane conditions, id. at 49, 51-2, 106, 108, 118-19, failed to clean up
accumulations, id. at 49, failed to maintain and inspect equipment, id., and failed to change belt
rollers, id. at 51.
The Judge found that “the effect of the bonuses is to create pressure on miners to
maximize short-term production at the expense of safety,” such that “each worker feels pressure
to work as fast as possible so as not to take away from potential bonuses for the other workers,”
because “safety-related tasks take additional time, and miners are therefore reluctant to do them
under the [plan] because they are less likely to achieve the production goals.” 38 FMSHRC at
950.
We conclude that the Judge’s finding that the first prong of the Franks test was satisfied
is supported by substantial evidence. We turn now to the operators’ justification of the plan.
B. The Operators’ Justification for the Policy Does Not Outweigh the
Resulting Interference with Miners’ Rights.
Applying the second step of Franks, under which an operator may defend against an
otherwise valid interference claim if it offers a “legitimate and substantial reason whose
importance outweighs the harm caused to the exercise of protected rights,” the Judge identified
the Operators’ proffered reason as improving production and safety at its mines. 38 FMSHRC at
954 (quoting Franks, 36 FMSHRC at 2108, 2116).
The opinion of Chairman Jordan and Commissioner Nakamura in Franks noted that
where the employer established a justification under step two, the operator’s actions must be
“narrowly tailored” to promote that justification as part of the balancing of the operator’s
interests with the protected rights of miners. 36 FMSHRC at 2118 n.14 (citing Guardsmark, LLC
v. NLRB, 475 F.3d 369, 376-376 (D.C. Cir. 2007)). Even if the operator’s actions are narrowly
tailored, it is still necessary to balance the degree of interference with protected rights against the
importance of the asserted business justification. Franks, 36 FMSHRC at 2108.
The Operators failed to present any evidence addressing this step of the Franks test. The
Operators asserted that the purpose of the bonus plans was to enhance both safety and production
at the attendant mines. However, they made no assessments as to the impact of the plans on
safety before implementation, and were unable to discern the impact on either safety or

40 FMSHRC Page 702

production after the plans were implemented.24 Finding that the Operators had failed to establish
a legitimate and substantial reason for the plans which outweighed the impact on miners’
protected rights, the Judge cited the same concerns. She concluded that “the harm to miners’
rights is evident,” while the Operators are “unable to show that the [plan has] actually been
effective at improving or maintaining safety” and “unable to establish that the [plan] actually
resulted in increased production.” 38 FMSHRC at 954.
Given the totality of the circumstances, demonstrating the imbalance between the bonus
plans’ unsubstantiated benefits and the clear evidence of their chilling effect on the exercise of
rights, we conclude that substantial evidence supports the Judge’s conclusion that the Operators’
bonus plans interfered with miners’ protected rights in violation of section 105(c).
III.

The Operators’ Objections to the Judge’s Evidentiary Rulings are not
Meritorious
A. Admission of Hearsay Testimony

The Operators argue that the Judge erred in admitting and relying on hearsay testimony
of miners’ representatives. Their testimony described how the bonus plans negatively affected
miners’ willingness to exercise their protected rights (such as the right to report injuries to
management, to report safety hazards to management and MSHA, and to exercise their
walkaround rights). Our inquiry centers on whether this testimony was reliable, and whether its
admission was unfair to the Operators.
We review the Judge’s ruling under an abuse of discretion standard. Shamokin Filler Co.
Inc., 34 FMSHRC 1897, 1907 (Aug. 2012), aff’d, Shamokin Filler Co. Inc. v. FMSHRC, 772
F.3d 330 (3d Cir. 2014), cert. denied, 135 S. Ct. 1549 (2015) (mem.); Dynamic Energy, Inc., 32
FMSHRC 1168, 1174 (Sept. 2010) (holding that a judge’s credibility determinations are
reviewed under an abuse of discretion standard). Abuse of discretion may be found when there is
no evidence to support the decision or if the decision is based on an improper understanding of
the law. Pero v. Cyprus Mining Corp., 22 FMSHRC 1361, 1366 (Dec. 2000).
Commission Rule 63(a) explicitly permits hearsay evidence “that is not unduly
repetitious or cumulative.” Comm’n Proc. Rule 63(a), 29 C.F.R. § 2700.63(a). See also MidContinent Res., Inc., 6 FMSHRC 1132, 1135 (May 1984) (holding that hearsay evidence is
admissible so long as it is material and relevant). In Mid-Continent Resources, the Commission
emphasized that “properly admitted hearsay testimony, and reasonable inferences drawn from it,
24

As the Judge noted, 38 FMSHRC at 954, Murray Energy Senior Vice President John
Forelli, who had designed the bonus plans, testified that two statistical analyses he had
commissioned failed to reach a conclusion as to whether the bonus plans had improved
production, and that his review of daily and quarterly safety reports did not show an impact on
safety. Tr. 293-301. Significantly, however, as the Secretary notes, the combined non-fatal injury
rate at the six mines went up by 18% during 2015, the year the bonus plans were put in place. S.
Br. at 10, n.3.

40 FMSHRC Page 703

may constitute substantial evidence upholding a judge’s decision if the hearsay testimony is
surrounded by adequate indicia of probativeness and trustworthiness.” Id. at 1135-36. In that
case, the Commission rejected the operator’s argument that the Judge had erred in relying on the
testimony of two MSHA inspectors about what they were told by a foreman.
In Mid-Continent, the Commission set forth a number of factors used to measure the
probative value of hearsay evidence. Applying the relevant factors to the case at hand, we
conclude that the Judge’s finding of interference clearly rested on reliable evidence.
First, the statements of the miners’ representatives were undisputed. See Mid-Continent
Res., 6 FMSHRC at 1137. The operators produced no contradictory evidence, never calling any
witnesses who testified that their protected rights were not impacted by the bonus plan. The fact
that the operators did not refute the evidence in any way significantly weakens their argument
that the evidence was not reliable.
Second, the hearsay testimony was consistent. Id. at 1136-37. All of the miners’
representatives testified about incidents involving miners who chose to forego protected activity
due to the bonus plan. Tr. 47, 54-55, 72, 107-08, 112, 114-15, 141, 152, 155-58, 167, 213, 226229. See Mid Continent Res., 6 FMSHRC at 1136-37 (“If there is more than one reported
[hearsay] statement, we inquire whether the statements are consistent . . . . And we examine the
content of any contradictory or corroboration evidence.”).
As in Mid-Continent, the out-of-court statements in this matter “rest[ed] on personal
knowledge gained from firsthand experience.” Id. at 1136. The miners’ representatives testified
to the thoughts and motivations of miners reacting to the bonus plan, as it was related to them.
Clearly, these miners had personal knowledge of their own responses to the bonus plan.
A final factor suggested by the Commission in Mid-Continent is whether the out-of-court
declarant had an interest in the outcome of the case (and thus a reason to lie). Id. at 1136. Here,
the record indicates that the miners felt that they benefited economically from the bonus plan, so
they would have had no motivation to dissemble in order to shore up an interference claim
challenging the plans.25

25

In fact, in this case, miner witnesses had motivation not to come forward. Witnesses
risked retaliation, not only from the Operators, but also from their bonus-seeking fellow miners.
We agree with the Secretary that “[t]he very nature of an interference violation is that it deters or
intimidates miners from coming forward to share their concerns with MSHA, management, and
the Commission. To fault the Secretary for proffering obviously relevant testimony via
representatives of miners, as he did here, would undermine the structure and purpose of the Mine
Act, which specifically envisions representatives acting as advocates for miners.” S. Resp. Br. to
R. PDR at 42. These considerations are precisely why the Commission’s rules permit hearsay
testimony.

40 FMSHRC Page 704

As the above discussion indicates, there is nothing that tempts us to call into question the
reliability of the undisputed testimony admitted by the Judge.26 Moreover, the use of relevant
information from the miners’ representatives permitted the Judge to avoid a hearing that would
have otherwise been replete with repetitious or cumulative testimony.27 It was well within her
discretion to make this choice.
Furthermore, as the Judge noted, much of the hearsay testimony to which the operators
objected went to the state of mind of the miners (regarding the effect of the bonus plan). This
would be admissible evidence under Federal Rule of Evidence 803(3), which states that out-ofcourt declarations are admissible to demonstrate “the declarant’s then-existing state of mind
(such as motive, intent, or plan).” Thus, for example, testimony by a safety committeewoman
that a miner told her he didn’t want to travel with an inspector because he wanted to go to the
section demonstrates the miner’s state of mind at the time he spoke. Tr. 152, 155, 167. This
would be admissible under Federal Rule of Evidence 803(3).
Finally, in Knight Hawk Coal, LLC, 38 FMSHRC 2361 (Sept. 2016), the Commission
rejected the contention of the operator that the Judge in that case had improperly relied on vague
and speculative hearsay statements of miners who had been interviewed by MSHA accident
investigators. We noted that the operator did not call the rank-and-file miners interviewed by
MSHA as witnesses at the hearing to rebut MSHA’s assertions. We held that the Judge did not
err in admitting and relying on the testimony of the MSHA investigator concerning what he was
told by the miners during the investigation, because the statements by the miners were “clearly
material and relevant.” 38 FMSHRC at 2366, n.13.28

26

To the extent that the Operators identify instances of double hearsay, we agree that a
Judge must be particularly attentive and scrutinize such testimony for its probative value.
However, under the circumstances, given the overwhelming reliable evidence of numerous
examples of miners coerced into not exercising their protected rights in order to achieve a bonus
under the plans, any error by the Judge in crediting and relying on such double hearsay is
harmless.
27

Courts routinely use representative testimony to establish violations of the Fair Labor
Standards Act on behalf of similarly situated employees who do not testify, when employers fail
to maintain proper wage and hour records. See, e.g., Garcia v. Tyson Foods, Inc., 770 F.3d 1300,
1307 (10th Cir. 2014); Reich v. S. New England Telecomm. Corp., 121 F.3d 58, 67 (2d Cir.
1997); Martin v. Selker Bros., Inc., 949 F.2d 1286, 1297-98 (3d Cir. 1991).
28

The Operators do not contend that the testimony of the miners’ representatives was not
relevant. They would be hard pressed to do so, given that the testimony addressed such issues as
instances in which the bonus plan deterred miners from reporting hazards and injuries, refusing
unsafe work, and serving as walkarounds. See, e.g., Tr. 112, 152, 226.

40 FMSHRC Page 705

The decision to admit evidence rests primarily in the province of the Judge.29 Our
analysis above confirms that the evidence in question was reliable and relevant, and that the
Judge did not abuse her discretion in admitting it. We thus decline to take the extraordinary step
of overturning the Judge’s evidentiary ruling.
B. Cross-Examination
The Operators contend that the Judge committed procedural errors in not allowing them
to cross-examine the Secretary’s witness on prior inconsistent statements made in response to
discovery requests. This argument is also without merit. As discussed in further detail below, the
Judge imposed limits on cross-examination only after the Operators had successfully established
potential inconsistencies in testimony and the Judge had taken notice of them. Tr. 69-72, 91-92,
167-70, 248-49. Since the Operators had already raised the issue of allegedly inconsistent
testimony, any additional cross-examination would have had limited probative value. See
Shamokin Filler Co., 772 F.3d at 339 (holding the judge did not err in excluding evidence of
limited probative value when the presentation of that evidence would unnecessarily delay the
hearing). The Judge merely re-directed the Operators’ counsel to focus his examination
substantively, rather than to spend time proving the inconsistency.
Rule 63(b) requires that a party be permitted “to conduct such cross-examination as may
be required for a full and true disclosure of the facts.” Comm’n Proc. Rule 63(b), 29 C.F.R.
§ 2700.63(b) (emphasis added). A Judge’s limitations on cross-examination are reviewed for
abuse of discretion. See Connolly-Pacific Co., 36 FMSHRC 1549, 1555-56 (June 2014) (holding
that the Judge did not err in enforcing time limits on some cross-examination).
The Operators first argue that the Judge twice limited their ability to impeach the
Secretary’s witnesses with allegedly prior inconsistent statements from their depositions.
Counsel for the Operators attempted to impeach the witnesses by asking why they had mentioned
a certain anecdote at trial but not in their depositions.30
The Operators additionally complain that they were not permitted to question two of the
Secretary’s witnesses about having testified to anecdotes that were not mentioned in the initial
interrogatories exchanged by the parties during discovery. See R. PDR at 23-25 (citing Tr. 91-92,
248-49). However, the Secretary and the UMWA had objected to the interrogatories as being
overly broad, unduly vague, and burdensome. Hence, these interrogatory responses were not
inconsistent with the subsequent testimony. Moreover, at the hearing, the Judge appears to have
been willing to assume that the anecdotes in question were not mentioned in the interrogatories,
but the Judge found that this did not undermine the witnesses’ credibility because they testified
to the anecdotes at their depositions. See Tr. 91-92, 248-49.
29

The Operators cite no case in which the Commission had found a Judge’s reliance on
hearsay evidence to be an abuse of discretion.
30

One of the two witnesses explained that she did not mention the incident at the
deposition because the Operators’ counsel had objected to the fact that the witness would not
disclose the identity of the miners who allegedly were involved. Tr. 168-69.

40 FMSHRC Page 706

In short, we reject these baseless objections by the Operators, and conclude that the Judge
did not abuse her discretion.31
Conclusion
For the foregoing reasons, we would affirm the Judge’s decision.

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner

31

We reject the Operators’ argument that the Judge erred by considering the evidence
collectively as applying to each mine. In conjunction with streamlining this trial, the Judge
limited the Secretary’s presentation of redundant witnesses by prohibiting the Secretary from
presenting a witness from each individual mine. The evidence reflected that the bonus plans at
the mines were nearly identical. One individual drafted a single plan and met with each mine in
implementing them. The only differences with the plans at Ohio County Mine and Powhatan No.
6 Mine were minimal – allowing a representative of the mine safety committee to conduct one
additional inspection each month and permitting safety committee participation in determining
whether injuries affecting bonuses were properly documented. This did not affect the application
and analysis of the interference claims. Hence, the testimony of the Secretary’s witnesses was
applicable to all of the Operators’ miners and the Judge did not abuse her discretion.

40 FMSHRC Page 707

Acting Chairman Althen and Commissioner Young, in favor of reversing:
In 2011, the D.C. Circuit Court of Appeals, quoting liberally from a Commission dissent,
noted that the plain language in section 105 was “a marvel of Congressional clarity” and
“struggle[d] to see how Congress could have intended any other reading of the phrase” at issue in
another provision of section 105. Performance Coal Co. v. FMSHRC, 642 F.3d 234, 238-39
(D.C. Cir. 2011). “Indeed, it is hard to imagine a clearer expression of congressional language.”
Id. at 239.
Indeed. Once again, it is hard to imagine how Congress could have more clearly required
the prohibited actions in section 105(c) be improperly motivated in order to be actionable, than
by pointedly including “because” or “because of” four times as a threshold requirement for a
violation. As explained below, we would apply the plain language of the Mine Act’s antiinterference provision and vacate the decision below.1
DISCUSSION
I.

Plain Statutory Language, Reinforced by Legislative History, Clearly
Requires that Interference be Motivated in Some Way by Rights Protected
Under the Act
A.

The Plain Language of Section 105(c)(1) Requires Proof that
Protected Activity Motivated the Operators’ Action.

The fundamental problem with the Secretary’s argument is that he is not interpreting
statutory language at all. He is impermissibly attempting to revise the statute by excising
“because” from the text for interference claims alone.
The Secretary’s effort “runs afoul of the ‘cardinal principle’ of interpretation
that courts ‘must give effect, if possible, to every clause and word of a statute.’” Loughrin v.
United States, 134 S. Ct. 2384, 2389 (2014) (quoting Williams v. Taylor, 529 U.S. 362, 404
(2000) (citation omitted). Section 105(c) identifies five actions – among them, interference – that
may not be taken “because” of one or more of four specifically identified reasons. As relevant,
section 105(c)(1) provides:
No person shall discharge or in any manner discriminate against or
cause to be discharged or cause discrimination against or otherwise
interfere with the exercise of the statutory rights of any miner . . .
1

During oral argument, the Secretary conceded that he did not present evidence or
argument that there was a motivational nexus between the Operators’ implementation of the
bonus plan and any prior or anticipated exercise of protected rights by miners. Oral Arg. Tr. 7778. Therefore, there is no basis to find the Operators implemented the plans because of prior or
anticipated protected activity, and accordingly, no reason to remand the case for reconsideration
under the proper standard.

40 FMSHRC Page 708

[1] because such miner . . . has filed or made a complaint under or
related to this chapter, . . . or [2] because such miner . . . is the
subject of medical evaluations and potential transfer under a
standard published pursuant to section 811 of this title or [3]
because such miner . . . has instituted or caused to be instituted
any proceeding under or related to this chapter or has testified or is
about to testify in any such proceeding, or [4] because of the
exercise by such miner . . . on behalf of himself or others of any
statutory right afforded by this chapter.
30 U.S.C. § 815(c)(1) (emphasis added). In the present action, despite not presenting any
evidence of the motivation for the bonus plans, the Secretary alleges that the Operators
“interfere[d] with the exercise of the statutory rights of any miner . . . because of the exercise by
such miner . . . of any statutory rights afforded by this chapter.”
Where the meaning of a statute is plain, we must apply the statute as written, looking first
to the ordinary meaning of the words. Schindler Elevator Corp. v. United States ex rel. Kirk, 563
U.S. 401, 407 (2011); see also Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 541 U.S.
246, 253 (2004) (“Statutory construction must begin with the language employed by Congress
and the assumption that the ordinary meaning of that language accurately expresses the
legislative purpose.” (quoting Park ’N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U.S. 189, 194
(1985))); Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995) (“When terms used in a
statute are undefined, we give them their ordinary meaning.” (citing FDIC v. Meyer, 510 U.S.
471, 476 (1994))). If the words are clear, we may not make any further inquiry. Schindler
Elevator Corp., 563 U.S. at 412 (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)).
Here, Congress repeatedly used the same term throughout section 105(c)(1) as a prerequisite for
connecting a prohibited action to a miner’s protected activity. That term is “because.”
The motivation requirement of “because” is repeated four times – once for each class of
protected conduct – in Section 105(c)(1), which is a single sentence. The Supreme Court has
recently, and unanimously, instructed that the “presumption that a given term is used to mean the
same thing throughout a statute” is “at its most vigorous when a term is repeated within a given
sentence.” Mississippi ex rel Hood v AU Optronics Corp, 571 U.S. 161, 134 S. Ct. 736, 743
(2014), citing Brown v. Gardner, 513 U.S. 115, 118 (1994). Therefore, “because” – repeated four
times in the single sentence that comprises the entirety of Section 105(c)(1) – has one meaning,
and that meaning clearly relates squarely to motivation.2
Absent a statutory definition, the ordinary meaning of a term, as provided in dictionaries,
determines the plain meaning to the statute. See Sebelius v. Cloer, 569 U.S. 369, 376
2

“Because” is one of the 100 most-commonly-used words and most clearly understood
words in the English language, as it is the natural beginning of any response to the question,
“Why?” Our colleagues, though, maintain that the reasons “why” an operator has taken an action
they deem to be interference are immaterial, despite the pointed inclusion of “because” four
times in the text of section 105(c). There is an inherent irony in their incuriosity.

40 FMSHRC Page 709

(2013)(“[u]nless otherwise defined, statutory terms are generally interpreted in accordance with
their ordinary meaning.”); Martin County Coal Corp., 28 FMSHRC 2487, 267 (May 2006).
Here, there is no doubt concerning the ordinary meaning. Dictionaries uniformly define
“because” as “for the reason that.” See Webster’s Third New International Dictionary 194 (1993)
(“for the reason that: on account of the cause that”); American Heritage Dictionary of the
English Language 159 (2009) (“for the reason that; since”); Random House Dictionary of the
English Language 184 (1987) (“for the reason that; due to the fact that”).
Interpreting “because” as meaning “for the reason that” is particularly appropriate with
respect to an anti-discrimination provision like section 105(c). The Supreme Court has
repeatedly adopted such a definition of the term when asked to interpret federal antidiscrimination statutes. In Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), the Court
construed the term “because of” in the following provision: “[i]t shall be unlawful for an
employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate
against any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s age.” Id. at 176 (alteration in original) (quoting 29
U.S.C. § 623(a)(1) (Age Discrimination in Employment Act (ADEA)). In rejecting the idea that
the ADEA authorizes a mixed-motive age-discrimination claim and holding that the term
“because of” means that age must have been the “but-for” cause of the employer’s action, the
Court explained:
The words “because of” mean “by reason of: on account of.”
1 Webster’s Third New International Dictionary 194 (1966); see
also 1 Oxford English Dictionary 746 (1933) (defining “because
of” to mean “By reason of, on account of ” (italics in original));
The Random House Dictionary of the English Language 132
(1966) (defining “because” to mean “by reason; on account”).
Thus, the ordinary meaning of the ADEA’s requirement that an
employer took adverse action “because of” age is that age was the
“reason” that the employer decided to act. See Hazen Paper Co. v.
Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338
(1993) (explaining that the claim “cannot succeed unless the
employee’s protected trait actually played a role in [the employer’s
decisionmaking) process and had a determinative influence on the
outcome. . . .”
557 U.S. at 176-77 (emphasis added).
The Supreme Court reaffirmed the Gross definition of “because” in University of Texas
Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013):
Concentrating first and foremost on the meaning of the phrase
“‘because of . . . age,’” the Court in Gross explained that the
ordinary meaning of “‘because of’” is “‘by reason of’” or “‘on
account of.’” Id., at 176, 129 S.Ct. 2343 (citing 1 Webster’s Third
New International Dictionary 194 (1966); 1 Oxford English

40 FMSHRC Page 710

Dictionary 746 (1933); The Random House Dictionary of the
English Language 132 (1966); emphasis in original). Thus, the
“requirement that an employer took adverse action ‘because of’
age [meant] that age was the ‘reason’ that the employer decided to
act,” or, in other words, that “age was the ‘but-for’ cause of the
employer’s adverse decision.” 557 U.S., at 176, 129 S.Ct. 2343.
See also Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 63–64,
and n.14, 127 S. Ct. 2201, 167 L. Ed. 2d 1045 (2007) (noting that
“because of” means “based on” and that “‘based on’ indicates a
but-for causal relationship”); Holmes v. Securities Investor
Protection Corporation, 503 U.S. 258, 265-266, 112 S.Ct. 1311,
117 L.Ed.2d 532 (1992) (equating “by reason of” with “‘but for’
cause”).
133 S. Ct. at 2527 (emphasis and alteration in original).3
Thus, “because of” is the same as “by reason of” or “on account of.” Congress’ repeated
use of that term in section 105(c)(1) demonstrates an intention to prohibit interfering actions
when taken “by reason of” or “on account of” the specifically-identified types of protected
activity.4 Substituting the definition for the word “because” makes this inescapably clear: “No
person shall . . . interfere with the exercise of the statutory rights of any miner . . . [by reason of
or on account of] . . . the exercise by such miner . . . on behalf of himself or others of any
statutory right afforded by this chapter.”
Indeed, from its very outset, the Commission recognized the meaning of “because” and
required a motivational nexus between protected activity and violations of section 105(c). In
Secretary of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct.
3

Notably, in Nassar, the Court also stated,
When the law grants persons the right to compensation for injury
from wrongful conduct, there must be some demonstrated
connection, some link, between the injury sustained and the wrong
alleged. The requisite relation between prohibited conduct and
compensable injury is governed by the principles of causation, a
subject most often arising in elaborating the law of torts.

133 S. Ct. at 2522.
4

The Secretary asserts that Congress’ use of the term “because of’ is ambiguous. S. Resp.
Br. at 26. The foundational premise of this assertion, that section 105 is complex, is patently
absurd. Section 105(c)(1) is hardly complex. It is a single (admittedly long) sentence comprising,
in its entirety, barely 200 words. Reducing the sentence to its salient features reveals a quite
simple structure: No person shall a or b or c or d or e because w, because x, because y, or because
of z.

40 FMSHRC Page 711

1980), rev’d on other grounds, 663 F.2d 1211 (3d Cir. 1981), the Commission held that “the
complainant has established a prima facie case of a violation of section 105(c)(1) if a
preponderance of the evidence proves (1) that he engaged in a protected activity, and (2) that the
adverse action was motivated in any part by the protected activity.”
Pasula and its progeny are not limited to any one of the four subgroups of unlawful
conduct under section 105(c), but apply, broadly, to any “violation of section 105(c)(1).” Id. For
all violations of section 105(c), protected activity must motivate at least in part the adverse
action. The Commission has repeatedly affirmed the Pasula test identifying indicia necessary to
“establish a nexus between the protected activity and the alleged discrimination” – most recently
in the case of Sec’y of Labor on behalf of Kevin Shafer, 40 FMSHRC 39 (Feb. 2018).
Essentially, the Secretary argues that the same word – “because” – has different meanings
in the very same instance of its use depending on which type of case he has decided to bring.5
The Secretary’s repeated attempts to rewrite unambiguous legislative terms must try the patience
of the circuit courts that have reminded the Commission and the Secretary again and again that
they may not exalt their policy desires over the words of Congress. CalPortland Co. v.
FMSHRC, 839 F.3d 1153, 1161 (D.C. Cir. 2016) (rejecting Secretary’s attempt to interpret
section 105(c) to extend its reach as contrary to plain meaning of provision); Performance Coal
Co., 642 F.3d at 239 (“[T]he language Congress selected [is] plain, clear, and simple and we
refuse to muddy it by finding ambiguity where none exists.”); Vulcan Constr. Materials, L.P. v.
FMSHRC, 700 F.3d at 309 (section 105(c) case); see also N. Fork Coal Corp. v. FMSHRC, 691
F.3d 735, 743-44 (6th Cir. 2012) (rejecting Secretarial attempt to extend reach of section 105(c)
as entirely unpersuasive).6
Our colleagues’ failure even to attempt to reconcile the plain language of the statute, by
citing the straw man of the Operators’ hyper-literal argument, has been held to be improper upon

5

Neither the Secretary nor our colleagues can adequately explain how, in a statute, the
same instance of the same word can hold within it two incompatible meanings at the same time.
There is no basis in law for this proposition. One wonders if they could turn to literature for
support: “Do I contradict myself? Very well then I contradict myself, (I am large, I contain
multitudes.)” Walt Whitman, Song of Myself 51 (1892). Or perhaps they should look to quantum
physics and liken section 105(c)(1) to Schrödinger’s cat – the statute exists in a state of quantum
superposition, where “because” means both “because” and nothing at the same time, until the
Secretary brings a case and the word’s meaning is revealed.
6

As discussed further infra, we do not agree with and do not accept the Operators’
argument that, because protected activity must motivate at least in part the Operators’ action, an
action taken to restrain possible future protected activity cannot violate section 105(c). An action
motivated by a desire to foil anticipated protected activity is as fully within the scope of section
105(c) as if the protected activity had occurred. In this case, the Secretary conceded that he did
not introduce any evidence of motivation. Therefore, we do not deal with a case involving a
claim of an attempt to forestall anticipated protected activities.

40 FMSHRC Page 712

judicial review. We agree that the Operators’ “literal” interpretation is incorrect.7 But, as
instructed by the D.C. Circuit, in a case interpreting the very same provision, “plain meaning and
literal meaning are not equivalents.” Meredith v. FMSHRC, 177 F.3d 1042, 1054 (D.C. Cir.
1999) (citing Bell Atlantic Tel. Cos. v. FCC, 131 F.3d 1044, 1045 (D.C. Cir. 1997)). In that case,
the UMWA argued that, by its literal language, the term “person” included MSHA officials, thus
allowing suits against MSHA officials for discrimination under section 105(c)(1) of the Act. Id.
at 1052. The D.C. Circuit disagreed with that literal interpretation and found that “the text and
structure of the Mine Act, as well as the legislative history, inexorably lead to a single
conclusion. The Mine Act’s anti-discrimination provision does not apply to MSHA employees
for actions taken under color of their authority.” Id. at 1053. Notably, although the court found
that the literal reading of the statute was incorrect, the court did not then consider the statute to
be ambiguous. The court considered Congress’s intent to be clear and resolved the issue under
the first prong of Chevron. Id. at 1053 n.9. Accordingly, the court vacated the Commission’s
decision, which had incorrectly defined “persons.” Id. at 1044.
Similarly, in Nally & Hamilton Enterprises, Inc., 33 FMSHRC 1759 (Aug. 2011), the
Commission rejected an operator’s literal reading of a standard to apply the standard’s ordinary
meaning. The operator argued that “maintain,” as a verb, required a willful failure to act in order
to be held liable for a violation. The Commission found that “its literal meaning is less
complicated than what is suggested by the operator.” Id. at 1763. Instead, the Commission
applied “the ordinary meaning of ‘maintain’ and conclude[d] that the term is not ambiguous.” Id.
Even though the Commission reversed the judge’s determination that there was no violation and
rejected the operator’s literal interpretation, the Commission nevertheless found “the standard’s
language plain and unambiguous,” and “[did] not reach the Secretary’s deference argument.” Id.
at 1764. Contrary to our colleagues’ argument, rejecting a “literal” interpretation is not some sort
of deus ex machina they can call upon to find ambiguity where there is none.
Finally, in addition to the commanding bulwark of cases we have cited to show the
resolute refusal of appellate courts to exceed the limits of judicial authority to interpret statutes,
we note the Supreme Court has recently provided an emphatic admonishment of a failure to do
so. In Digital Realty Trust, Inc. v. Somers, 138 S. Ct. 767 (2018), the Court reversed –

7

Our colleagues’ charge that the Act does not require “retaliatory motivation” and their
indignation over the Operators’ artificially narrow reading of section 105(c) is no exception. See
slip op. at 10-11. We find that the requisite motivation for an operator’s improper interference
may be because of the operator’s fear of the prospective exercise of protected rights or the
operator’s belief that a miner or group of miners has engaged in protected activity, regardless of
whether any protected activity actually occurred. This is consistent with the Commission’s
holdings in Moses and Gray.

40 FMSHRC Page 713

unanimously – a Ninth Circuit holding that application of statutory language as written could not
have been what Congress intended.8
Somers, like the case at bar, construed statutory language designed to protect those who
exercise protected rights, especially including the right to bring private wrongs to the attention of
supervisors or authorities.9 In a decision by Justice Ginsburg, the Court unanimously reversed
the Circuit Court, finding, “[c]ourts are not at liberty to dispense with the condition – tell the
SEC – Congress imposed.” Id. at 777.
In the present case, the Secretary has not presented any evidence of any motivation to
interfere with protected rights. Indeed, the Secretary has not even presented evidence that the
miners in this case would suffer any harm from the application of the plain language requiring
proof of a nexus between the Operators’ conduct and rights protected under the Act. It would be
astonishing for a court to endorse such a misreading of the plain words of the statute in this
context, where there has been no attempt to show that construing the statute as written would be
contrary to the purposes of the Act.
In attempting to overcome the exquisite clarity of section 105(c) our colleagues gamely
assert that the plain language of section 105(c) leads to absurd results and/or is ambiguous. Slip
op. at 10-11. These arguments only emphasize the weakness of their position. With respect to
their absurdity argument, it is difficult to conceive of a more absurd result than construing
section 105(c) – which four times expressly requires a motivational component for a violation –
nonetheless not to require motivation and to permit imposition of monetary penalties upon
operators for actions not motivated in any way by protected activities. In turn, there is nothing
ambiguous about the word “because” or about the requirement that the interference occur
“because” of protected activity.
As read by our colleagues, section 105(c) as a practical matter could prohibit virtually
any form of incentive plan for miners. Congress certainly did not intend to abolish for the coal
industry incentive programs used throughout American businesses without any recognition of
that effect. In a given case, indeed even in this case, the Secretary might well be able to present
evidence that the current or future exercise of protected activities motivated, at least in part, the
introduction of an incentive program. In such case, the program would be unlawful. However,
8

The reversed courts cited to the “absurd results doctrine” to avoid the result required by
the pain language of the statute. The District Court and the Ninth Circuit, in succession, adopted
the Second Circuit’s finding that applying the statute as written “would make little practical
sense and undercut congressional intent. The Supreme Court unanimously held that courts must
apply the plain language of the statute.
9

It is perhaps obvious beyond need of mention, but Somers is a whistleblower case
arising in the context of a statute written to provide protections to persons based on their
conduct, rather than personal characteristics, and is thus much more like Section 105(c)(1) than
the status-based protections giving rise to disparate-impact claims. See Part II, infra (discussing
inapplicability of disparate-impact case law).

40 FMSHRC Page 714

without any such evidence there is no basis to find the Operators introduced the plan “because”
of protected activity. The Secretary made no effort to introduce such evidence in this case.
B.

The Legislative History of Section 105(c)(1) Supports the Plain
Language’s Imperative for a Motivational Nexus.

Because the language of the law plainly excludes the Secretary’s distortion, it is
unnecessary to resort to legislative history. However, for purposes of a complete analysis, we
note that the revisions made to section 105(c) of the Mine Act from its antecedent strengthened
the requirement that actionable misconduct must be motivated by protected activity, and that the
history shows that Congress clearly intended that improper actions be proscribed because of their
relationship to protected activity.
Section 105(c)(1) is similar in purpose to its predecessor, section 110(b)(1) of the Coal
Act, which used terms synonymous with those employed in the Mine Act. The earlier provision
stated:
No person shall discharge or in any other way discriminate against
or cause to be discharged or discriminated against any miner or
any authorized representative of miners by reason of the fact that
such miner or representative (A) has notified the Secretary or his
authorized representative of any alleged violation or danger, (B)
has filed, instituted, or caused to be filed or instituted any
proceeding under this Act, or (C) has testified or is about to testify
in any proceeding resulting from the administration or enforcement
of the provisions of this Act.
83 Stat. 758-59. The changes made to the Coal Act’s protections in Section 110(b) in drafting
Section 110(c) of the Mine Act reinforced the requirement for motivation – literally. The Act’s
structure was changed to ensure “because” or “because of” was appended to each class of
protected activity, making clear that improper motivation is essential to a finding of violation.
This change to emphasize by repetition the integral nature of the motivational
requirement forecloses any misreading here. In essence, in the Mine Act, Congress repeated and
amplified the requirement that the Secretary prove that an operator acted “because of” some
prohibited reason. The motivational nexus set forth in the Mine Act flows logically from the
antecedent Coal Act.
The Secretary intones the intents and purposes of the Mine Act, but its legislative history
contains not a shred of authority for applying any type of disparate-impact analysis, or for
discarding Congress’ plain and direct articulation of violative interference. Indeed, the legislative
history demonstrates the overarching relevance of the exercise of miners’ rights under the Act,
stating as a goal the protection of miners against forms of interference with those rights, such as
“threats of reprisal.” S. Rep. No. 95-181, at 36, reprinted in Legis. Hist. at 624. For there to be a
threat of reprisal there must be an action that triggers the threat – that is, there must be a cause
for the reprisal.

40 FMSHRC Page 715

In fact, the legislative history of the Mine Act – with its references to threats as
illustrative of “interference” – establishes that disparate-impact liability has no place in
interpreting the interference clause of section 105(c)(1). The addition of the phrase “or otherwise
interfere” simply recognizes that other forms of employer retaliation, such as threats, may also –
or “otherwise” – constitute wrongful action when motivated by protected activity.10
The legislative history of the two statutes confirms this congressional intent. In proposing
an amendment to the Coal Act that became section 110(b)(1) – the precursor to section 110(c) –
Senator Edward Kennedy explained that it “would make it unlawful for any person to discharge
or otherwise discriminate against a miner for bringing suspected violations of this act to the
attention of the authorities.” 115 Cong. Rec. 27948 (Oct. 1, 1969), reprinted in S. Subcomm. on
Labor, S. Comm. on Labor and Pub. Welfare, 94th Cong., 1st Sess., Legislative History of the
Federal Coal Mine Health and Safety Act of 1969 Part I, at 666 (1975) (emphasis added). He
further explained that his amendment gave miners “the same safeguards that we give to other
employees who raise possible violations of the law.” Id. at 667-68 (emphasis added).
The available history of section 110(b)(1) of the Coal Act clearly supports the plain
language’s protection against operator conduct motivated by a desire to retaliate for a miner’s
assertion of his/her safety rights. Thus, a motivational nexus was the required for a successful
claim under section 110(b)(1).
Regarding interference with protected rights under the Mine Act, at no point did
Congress even hint at an intention to eliminate or qualify the motivation required by the Coal
Act. On the contrary, the Committee on Human Resources explained, “if miners are to be
encouraged to be active in matters of safety and health, they must be protected against any
possible discrimination which they might suffer as a result of their participation.” It further
stated that “[w]henever protected activity is in any manner a contributing factor to the retaliatory
conduct, a finding of discrimination should be made.” S. Rep. No. 95-181, at 35, 36, reprinted in
Legis. Hist. at 623, 624 (emphases added).
Section 105(c)(1) provides protection against discrimination, discharge, and interference
because of protected activity. It achieves those protections through direct and/or circumstantial
evidence permitting reasonable inferences drawn from all the evidence presented in a case. To
erase “because,” and thus the necessary motivational nexus, from section 105(c)(1) is entirely
contrary to the language and legislative history of the Mine Act and the Coal Act.

10

MSHA itself has recognized that the Mine Act does not reach mistreatment based on
the types of characteristics that have supported disparate-impact analysis. MSHA’s A Guide to
Miners’ Rights and Responsibilities Under the Federal Mine Safety and Health Act of 1977, at 7
(Rev. 2017), states, “Discrimination on the basis of race, sex, age, religion, handicap, union
activity, or any other non-mining status, is not covered by Section 105(c) of the Act.” Rather, the
prohibited actions are those taken for the reasons enumerated in the statute; if some other reason
motivates an action, the Mine Act provides no recourse.

40 FMSHRC Page 716

II.

There’s No Evidence or Rational Analysis to Support the Secretary’s
Application of Incongruous Legal Doctrine and Statutes Not Germane Here.

Unable to argue persuasively the definition of “because” in the context of the wording of
the Mine Act or in an analysis of legislative history, the Secretary turns to a wholly different and
completely irrelevant category of cases in an effort to obscure the clear wording of the Mine Act.
The Secretary relies on Texas Department of Housing Community Affairs v. Inclusive
Communities Project, Inc., 135 S. Ct. 2507 (2015), to support an argument that section 105(c)(1)
should be read to embrace a “disparate impact” analysis. There is no foundation anywhere in the
law for this discordant cherry-picking of out-of-context language from an exotic, contextsensitive legal doctrine.
A.

Disparate-Impact Case Law is Not Applicable in This Case.

Disparate-impact cases use statistical evidence to show that members of a protected class
defined by identifiable and usually immutable characteristics, have been disproportionately
disadvantaged compared to members outside the class by policies that are facially-neutral.
“[C]laims that stress ‘disparate impact’ [by contrast] involve employment practices that are
facially neutral in their treatment of different groups but that in fact fall more harshly on one
group than another . . . .” Smith v. City of Jackson, 544 U.S. 228, 239 (2005) (quoting Teamsters
v. U.S., 431 U.S. 324, 335-336 n.15 (1977)).11

11

In International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n.15
(1977), the Supreme Court explained the difference between “disparate treatment” and “disparate
impact”:
“Disparate treatment” such as is alleged in the present case is the most easily understood
type of discrimination. The employer simply treats some people less favorably than others
because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is
critical, although it can in some situations be inferred from the mere fact of differences in
treatment. . . . Claims of disparate treatment may be distinguished from claims that stress
“disparate impact.” The latter involve employment practices that are facially neutral in their
treatment of different groups but that in fact fall more harshly on one group than another and
cannot be justified by business necessity.
Obviously, section 105(c) does not deal with separate or “disparate” groups. All miners
are entitled to exercise protected rights without discrimination or interference because of their
exercise of such rights. With the Secretary’s resort to a theory of disparate-impact liability for
interference cases, it appears that the Secretary has entirely failed to heed the Supreme Court’s
admonition, set forth in the context of interpreting discrimination provisions, to “be careful not to
apply rules applicable under one statute to a different statute without careful and critical
examination.” Fed. Express Corp. v. Holowecki, 552 U.S. 389, 393 (2008).

40 FMSHRC Page 717

There is a total absence of any of these facts in the record of this case:
•

There is no group of persons that Congress has chosen to protect on the basis that
the group is subject to prejudice or discrimination based on characteristics.

•

There are no distinguishing personal characteristics one might use to establish a
disparity based on protected-group membership.

•

There is no comparator class of persons against whom a disparate impact theory
may be evaluated, and thus no showing that consequences of an action fall more
harshly on one group than another.

•

There are no statistics – indeed, no objective evidence of any sort – showing a
disparity.

Because none of the predicate facts exist in this case, there is, of course, no showing of a
disparate impact – which is an irresolvable problem for a disparate-impact case. In fact, there is
not even really a theory here: just a slogan or a catchphrase. It matters not at all to our
colleagues, who unquestioningly accept the Secretary’s radical reliance on an extraordinary legal
remedy, despite a total absence of the evidence used to prove that theory in its proper context.
Even properly-applied disparate-impact cases are rare. While the Secretary states –
incorrectly – that Inclusive Communities “says nothing about applying only in exceptional
circumstances,” S. Resp. Br. at 25, the Supreme Court majority not only specifically
acknowledged that “the underlying dispute in this case involves a novel theory of liability,” but
cited a historical review showing that such cases do, in fact, appear to be “exceptional.” Inclusive
Communities, 135 S. Ct. at 2522 (citing Seicshnaydre, Is Disparate Impact Having Any Impact?
An Appellate Analysis of Forty Years of Disparate Impact Claims Under the Fair Housing Act,
63 Am. U. L. Rev. 357, 360-63 (2013)) (“noting the rarity of this type of claim” (emphasis
added)). The Secretary is thus either unaware of the exotic foundation of his own theory, or he
has chosen to ignore what the Court said about it in Inclusive Communities.
The foregoing caveat would apply even to a true disparate-impact case, reflecting a
justified caution in the Court’s consideration of the scope of disparate-impact doctrine, even in a
case with the requisite evidentiary support and a common foundation in civil rights law. Here,
though, the Secretary produced none of the evidence required to support the theory he himself
has chosen to argue before us, and which is spelled out as a prerequisite for the type of theory he
espouses in the very authority he has chosen to cite. Simultaneously, he disclaims that
authority’s own acknowledgment that the approach it endorsed is highly unusual. The Secretary
does all this in order to favor his policy preferences over the clear words of Congress.

40 FMSHRC Page 718

B.

Inclusive Communities Cannot Serve as a Template for Interpretation
of Section 105(c).

Inclusive Communities is predicated entirely on the principle that cases of racial
discrimination in housing may be based on the disparate impact that facially-neutral policies may
have on racial or ethnic minorities.12 The Secretary did not cite to Inclusive Communities before
the Judge below, nor did the Secretary introduce any evidence pertaining to, or make any
argument concerning the applicability of, disparate-impact analysis to the facts in this case. Thus,
there are no distinct classes against whom any statistical or other objective analysis may be
applied in order to infer an improper basis for the circumstances in which the law has found
them.
As Inclusive Communities and other disparate-impact cases have made clear, a showing
of discriminatory effect requires a sophisticated and thorough exposition grounded on record
evidence. “A plaintiff who fails to allege facts at the pleading stage or produce statistical
evidence demonstrating a causal connection cannot make out a prima facie case of disparate
impact.” Inclusive Communities, 135 S. Ct. at 2523. None was provided below. Thus, the
12

The historical background of racial discrimination in housing and its persistent effects
demonstrate why disparate-impact analysis was necessary to determine causation. Both before
and after the Fair Housing Act, the federal government actively supported racial segregation for
decades. See Federal Housing Administration, Underwriting Manual, pt. 2, ¶ 228 (Apr. 1936),
https://catalog.hathitrust.org/Record/002137289 (last visited June 26, 2018). Outlining a policy
known as “redlining,” the Federal Housing Administration expressly approved of segregation
and racial covenants to prevent minorities from purchasing homes and urged federal evaluators
to “investigate areas surrounding the location to determine whether or not incompatible racial
and social groups are present, to the end that an intelligent prediction may be made regarding the
possibility or probability of the location being invaded by such groups.” Id. ¶ 233. For an
saddeningly long period, government, including in the provision of mortgage assistance and
public housing assistance, entrenched institutional racism and furthered segregation. See, e.g.,
Gautreaux v. Romney, 448 F.2d 731, 739, 740 (7th Cir. 1971) (“It also is not seriously disputed
on appeal that the Secretary exercised the above described powers in a manner which
perpetuated a racially discriminatory housing system in Chicago, and that the Secretary and other
HUD officials were aware of that fact.”) (granting summary judgment for plaintiffs for violations
of the Fifth Amendment and the Civil Rights Act of 1964); Young v. Pierce, 628 F. Supp. 1037,
1053 (E.D. Tex. 1985) (“The actions complained of here are not in any sense facially neutral:
HUD supports those authorities it knows to discriminate.”). It is against this background of
government-assisted and government-subsidized racism that the Supreme Court adopted a
disparate-impact theory of discrimination in Inclusive Communities – a far different historical
context than that presented in this case. To be analogous, one would be required to show that the
federal government, after passage of the Mine Act, had mine regulators working to suppress
protected activity by miners. There is not a scintilla of evidence suggesting support for a parallel
in the Mine Act experience to the government’s suppression of fundamental civil rights in the
exercise of official state housing policy.

40 FMSHRC Page 719

Secretary seeks to introduce before the Commission an entirely new argument upon which the
Judge below was not given an opportunity to pass, and for which there is no substantial
evidentiary support. This is impermissible as a matter of law. 30 U.S.C. §§ 823(d)(2)(A)(iii),
(d)(2)(B).13
There also are critical distinctions between Inclusive Communities, decided by a majority
of the Supreme Court, and Smith v. City of Jackson (an earlier disparate-impact case), which was
a plurality decision. The Court found in Inclusive Communities that Congress had effectively
ratified the application of disparate-impact analysis to the FHA by amending the FHA’s antidiscrimination provisions in 1988 without addressing the “unanimous” body of circuit court
opinion holding that its application was appropriate. Inclusive Communities, 135 S.Ct. at 251922. “Indeed, the inference of disparate-impact liability is even stronger here than it was in Smith.
As originally enacted, the ADEA included the RFOA provision, see § 4(f)(1), 81 Stat. 603,
whereas here Congress added the relevant exemptions in the 1988 amendments against the
backdrop of the uniform view of the Courts of Appeals that the FHA imposed disparate-impact
liability.” Id. at 2521.
The Mine Act, of course, reveals no such historical context, no unanimous body of circuit
court opinions, and no statutory revisions that are relevant to the consideration here. Further,
Justice Kennedy, who authored the majority opinion in Inclusive Communities, was not part of
the plurality that extended Griggs’ disparate-impact holding beyond race discrimination cases in
Smith.
In addition to noting the “significant differences between the ADEA and Title VII of the
Civil Rights Act of 1964 [that] counsel[ed] against transposing to the former our construction of
the latter” in Griggs,14 Justices O’Connor, Kennedy, and Thomas expressly disclaimed in Smith
the linguistic contortion the Secretary has thrust before us. Smith, 544 U.S. at 2118. Criticizing
the plurality’s parsing of the language of the ADEA, such that in successive paragraphs, the term
“because of” would have different meanings, Justice O’Connor noted that the language at issue
in Section 4(a)(1) of the ADEA was clear:
That provision requires discriminatory intent, for to take an action
against an individual “because of such individual’s age” is to do so
“by reason of” or “on account of” her age. See Webster’s Third
New International Dictionary 194 (1961); see also Teamsters v.
13

We note the flaw of the Secretary’s objection to the Operators’ challenge to the ALJ’s
misconstruction of the law. It is our duty to interpret the law de novo, so, in any proper review,
the Judge’s error in applying the wrong legal standard must be uprooted.
14

Justice Kennedy deemed this significant in Smith, which at least involved another
disparate-impact claim. In nearly four decades of Mine Act jurisprudence before the Commission
and the Appellate Courts, there has never been any suggestion of even a remote association
between such claims, grounded on a statistical showing of disparity between groups, and
interference claims under the Mine Act.

40 FMSHRC Page 720

United States, 431 U.S. 324, 335-336, n. 15, 97 S.Ct. 1843, 52
L.Ed.2d 396 (1977) (“‘Disparate treatment’ . . . is the most easily
understood type of discrimination. The employer simply treats
some people less favorably than others because of their [protected
characteristic]. Proof of discriminatory motive is critical”
(emphasis added)).
Smith, 544 U.S. at 249 (emphasis in original). Thus, the author of Inclusive Communities read
“because of” precisely as we do, and even if there were any plausible basis for applying
disparate-impact analysis to interference cases as a threshold matter (there is not), employing the
doctrine here would require a radical leap over a fortified barricade of legal authority and
practical and evidentiary barriers. If the Court was hesitant to expand the scope of disparateimpact liability to analogous anti-discrimination statutes, it surely would never approve of its
application to a case with no elements in common and no evidence of any disparity.
A more thoughtful review in place of the Secretary’s specious analysis of Supreme Court
precedent makes abundantly clear that Inclusive Communities is wholly irrelevant to the case
before us.15 Section 105(c)(1) is different in kind from Title VII and the Fair Housing Act. The
Mine Act’s prohibition against interference is not aimed at facially-neutral employer policies
affecting miners because of their membership in a protected group. In characterizing Section
105(c) as an “anti-discrimination law,” somehow similar to Title VII, the FHA or the ADEA, the
Secretary disregards the fact that he suggests an interpretation that he would apply only to
interference claims, and not to discrimination claims – for which he acknowledges motivation is
required.16 Cf. S. Resp. Br. at 18.
Finally, the Secretary argues that the use of the word “otherwise” in section 105(c)(1)
indicates an intent to apply a disparate-impact analysis, as in Inclusive Communities. That
argument makes no sense, linguistically, logically, or legally. All of the actions prohibited by
section 105(c) (discrimination, discharge, etc.) are forms of “interference” with protected rights.
Use of the term “otherwise” simply extends the Act’s prohibitions to include employer conduct,
such as threats of reprisals, that does not rise to the level of a direct and adverse employment
action, and represent nothing more than Congressional recognition that interference may be
found – and proved – in operator actions beyond those expressly enumerated, when those actions
are taken “because of” the exercise of protected rights.
15

We must note, again, that Inclusive Communities repeatedly and emphatically makes
clear that it is entirely grounded in disparate-impact theory, and a citation to the points in the
case supporting this limiting principle would read simply “passim.” A full reading of Inclusive
Communities abundantly demonstrates: it is a case decided to address a particular problem using
particular evidentiary methods not applicable here and requiring evidence that has not been
produced in this case.
16

This non-sequitur flows from the fact that the Mine Act is, of course, nothing like
statutes which seek to protect group members from discrimination because of their membership
in a group, even in its “anti-discrimination” provisions.

40 FMSHRC Page 721

The Secretary’s argument disregards the fact that Inclusive Communities itself, like the
disparate-impact cases upon which it relies, continues to require that plaintiffs prove causation,
i.e., that the harm they have suffered is “as a result of” or “because of” their race. His citation to
a single word yanked out of context cannot serve to erase statutory language – especially where
the Secretary acknowledges that his position would require “because” to be interpreted
differently in successive clauses of the same sentence. While we feel duty-bound to respond to
all of the Secretary’s arguments, in fact the question is settled at the initial consideration of the
statute’s plain meaning. The Court’s “inquiry ceases [in a statutory construction case] ‘if the
statutory language is unambiguous and the statutory scheme is coherent and consistent.’”
Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002). The Secretary’s argument would reduce
Section 105(c)(1) to incoherence and inconsistency – the exact opposite of the clear command of
the law.
Disparate-impact liability has been relied upon in rare circumstances, e.g., when it has
been “necessary to achieve Title VII’s ostensible goal of eliminating the cumulative effects of
historical racial discrimination.” Smith, 544 U.S. at 262 (O’Connor, J., joined by Kennedy and
Thomas, JJ., concurring in the judgment). Finding no such necessity, the O’Connor opinion
Justices declined to extend Griggs beyond the remediation of “historical racial discrimination” –
the same evil targeted by the Fair Housing Act and addressed in Inclusive Communities.
The Secretary has not made a showing that the expansion of a doctrine from cases of
racial discrimination is not merely permissible and convenient but necessary to achieve the
purposes of the Act.17 There was no evidence adduced in this case showing that any miner would
be prejudiced unfairly or the Act’s protections neutered by a requirement to show that the
Operators’ actions were motivated by protected activity. In sum, there is no authority for
applying Inclusive Communities even if there were evidence showing how miners interfered with
might theoretically have been disparately impacted by the Operators’ bonus plan, and there is no
evidence showing that it would be necessary – or even proper – to apply a disparate-impact
analysis in contravention of the statute’s plain language.
III.

The Secretary has Misstated Section 8(a)(1) of the National Labor Relations
Act, Which is Materially Dissimilar to Section 105(c) and Must Be Read As
Adverse to the Secretary’s Position

The Secretary urges that Commission precedent compels us to rely on the National Labor
Relations Act (“NLRA”) as persuasive authority. The Commission does use NLRA case law to
assist its interpretations. See Gray, 27 FMSHRC at 9-10. We are not compelled to follow NLRA
case law. More importantly, here, an honest reading of the relevant provision of the NLRA
torpedoes the Secretary’s argument amidships.

17

Neither the Commission nor the Courts have decided the issue before us in this case.
Griggs was decided in 1971, before the Mine Act was signed and forty-five years before we
heard this case on review. If disparate impact were essential to the protection of miners’ rights,
one imagines we would have heard of the need before now.

40 FMSHRC Page 722

Section 8(a)(1) of the NLRA provides: “It shall be an unfair labor practice for an
employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed
in section 157 of this title.” 29 U.S.C. § 158(a)(1).
Unlike section 105(c)(1), section 8(a)(1) does not include any motivational requirement –
that is, there is no “because” in it. Actions that “interfere” or rise to the level of “coercion” are
likely to be similar in both contexts, but the Mine Act contains the explicit requirement that
interference must be occur “because of” protected activity – section 8(a)(1) of the NLRA
contains no such requirement.
Thus, the NLRA case law is irrelevant due to the omission of “because” from section
8(a)(1), which is material and presumptively intentional. The Court has stated that it has “often
noted that when ‘Congress includes particular language in one section of a statute but omits it in
another’ – let alone in the very next provision – this Court ‘presume [s]’ that Congress intended a
difference in meaning.” Loughrin, 134 S. Ct. at 2390 (quoting Russello v. United States, 464
U.S. 16, 23 (1983)).18
The Secretary further failed to note that, in 8(a), Congress did require motivation, but
only in subsection (a)(4), which makes it an unfair labor practice “to discharge or otherwise
discriminate against an employee because he has filed charges or given testimony under this
subchapter.” 29 U.S.C. § 158(a)(4) (emphasis added).
Of course, the NLRA is an entirely separate statute. There is no congruence between the
respective provisions of the Mine Act and the NLRA because the latter does not include
“because” – a crucial term with fatal significance here. The Secretary’s misstatement of the law
is thus readily exposed, and the NLRA’s interference provision has no relevance here.
IV.

There Is No Basis for Our Colleagues’ Reliance Upon an “Absurd Results”
Theory and No Grounds for Re-Writing The Statute to Avoid Them.

The real danger represented by the misreading of the Mine Act is demonstrated by the
fact that it is unnecessary to any purpose save bureaucratic expedience. A decade after Griggs –
and 35 years before we heard this case — the Commission addressed, and resolved, the same
concerns our colleagues and the Secretary have raised. See Pasula, 2 FMSHRC at 2795-2801;
Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981). Our colleagues’
claim that absurd results will necessarily flow from a consistent, harmonious reading of the
provisions of section 105(c)(1). Their claim is demonstrably false.

18

The Secretary’s argument elides the fact that the Commission has never equated the
two provisions, which are not, in fact, similar in their requirements. We have not held that
actions need not be motivated by protected activity, because in the entire history of the Act,
every case considered by the Commission has presented facts showing motivation, and it is
apparent from circumstance that the law was clearly understood as meaning what it plainly says.

40 FMSHRC Page 723

The historical record, in fact, suggests that the contrary is true. The Commission as a
whole has never varied from the need to show motivation in the more than 30 years since
adopting the Pasula-Robinette framework. Here, our colleagues pursue the abstraction the
Secretary has thrown them to suggest easing his duty under the law: The obligation to prove
violations by substantial evidence, including all of the elements Congress has provided.19
Pasula-Robinette has long provided a framework and clear authority for deriving
improper motivation from circumstantial evidence. Without doubt, evidence of motivation may
be drawn from circumstantial evidence. Rather than attempting to demonstrate an improper
motive, the Secretary seeks to avoid the necessity for proof by eliminating an element of the
violation.20
We do not accept the Operators’ argument, relied upon by the majority for its assertion of
absurdity, that a specific occurrence of protected activity necessarily must precede an operator
action motivated by a desire to thwart or prevent protected activity. See supra slip op. at 34 n.6.
Commission case law related to operator efforts to deter protected activity remains fully
applicable.
Following Pasula and Robinette, Moses v. Whitley Development Corp., 4 FMSHRC 1475
(Aug. 1982), raised the issue of whether a miner was discharged because the operator suspected
he had engaged in protected activity. The Commission highlighted the motivation requirement:
“Section 105(c) prohibits discharge, discrimination, or interference ‘because’ of ‘a miner’s
exercise of any statutory right afforded by [the] Act.’” Id. at 1480. The Commission then found
that, if a suspicion of protected activity motivated the discharge, such discharge would violate
section 105(c) even if the suspicion turned out to be incorrect. Thus, the Commission’s reading
of the law is both protective of miners’ rights and faithful to its intent.
In Gray v. North Star Mining, 27 FMSHRC 1 (Jan. 2005), we similarly found
interference, overturning a Judge’s conclusion that a threat he found not to have been sincere did
19

Legal reasoning unrelated to facts of record such as that employed here is not only
devoid of useful content, it is arguably foreclosed to us. The Supreme Court has stated that “[i]t
has long been settled that a federal court has no authority ‘to give opinions upon moot questions
or abstract propositions, or to declare principles or rules of law which cannot affect the matter in
issue in the case before it.’” Church of Scientology of Cal. v. United States, 506 U.S. 9, 12
(1992) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)). The Commission, as an adjudicative
body, is likely equally constrained by the Supreme Court’s admonition, and the Commission
since its inception has repeatedly expressed that we need not reach issues unnecessary to the
disposition of cases. See, e.g., Ross v. Monterey Coal Co., 3 FMSHRC 1171, 1173 n.6 (May
1981); Kaiser Steel Corp., 1 FMSHRC 343, 345 n.6 (May 1979).
20

The Secretary, quite unlike the Court in Griggs, has not demonstrated a change in the
law that justifies unsettling our interpretation of “because of” in discrimination cases or decades
of settled law governing our use of inferences to resolve questions of motivation. He has simply
seized upon Inclusive Communities as an instrument of interest and convenience.

40 FMSHRC Page 724

not constitute interference. We held that, in determining whether an actor’s statements are
coercive under the Mine Act, Judges must consider the totality of the circumstances. Id. at 10.
The Secretary argues that Gray’s holding is substantially broader and that “[t]he only
reasonable way to read Gray is as adopting the NLRA interference test and rejecting the notion
that the interferer’s intent matters.” S. Resp. Br. 19. The Secretary misreads the Gray decision by
ignoring the case’s factual context, where the motivation was apparent.21 The Commission in
Gray did not confront the issue in the present case — whether an employer’s allegedly
interfering actions must be motivated by protected activity in order to constitute a violation of
section 105(c)(1). Rather, Gray was concerned with policing the line between allowable
comments and questions about protected activity and impermissible coercive interrogations and
harassment about protected activity.
In Gray, a co-worker asked Gray about whether he had testified against him before a
grand jury in a case related to unsafe mining activities. 27 FMSHRC at 3. Such testimony is
protected activity under the Mine Act. 30 U.S.C. § 815(c)(1). The miner said that there would
not be any hard feelings “unless you put the screw to me, then I’ll kill you.” 27 FMSHRC at 3.
Later, the same miner asked Gray about another miner’s testimony, stating that “if anyone had
laid the screws to him that he would whip their ass.” Id. The Judge found that such comments did
not constitute threats because the co-worker did not actually intend to kill or hurt Gray or the
other miner. Sec’y of Labor on behalf of Gray v. N. Star Mining, Inc., 25 FMSHRC 198, 215-16
(Apr. 2003) (ALJ).
In that case, whether or not the threats were genuine, they were clearly motivated by
protected activity (testimony related to unsafe mining activities). Protected activity was at the
core of the case. The issue of whether motivation was required for interference was not before
the Commission. Rather, the Commission found that the Judge applied the wrong legal standard
in determining whether such comments rose to the level of coercion. The Judge had framed the
question in the case as whether “[the miner] meant the literal meaning of the words, ‘I’ll kill
you,’ or whether he was speaking figuratively, as in, ‘I’ll really be upset with you.’” 27
FMSHRC at 10.
The Commission found that the Judge focused too narrowly on the goal of the statements
– that is, “largely, if not exclusively, [the miner’s] intent or motive in making the statements.” Id.
The Commission found that the occurrence of a violation did not turn upon the literal truth of the
murder threat. Instead, the miner’s “statements could be coercive, even if he did not mean to
literally kill or cause physical harm to Gray or other miners who testified against him.” Id.
“[T]he judge should have considered the effect of [the miner’s] statements in this broader context
and what other meanings could be reasonably inferred from them, rather than limiting her
consideration to their literal meaning and what [the miner] intended.” Id. (emphasis added).

21

As previously noted, Section III, supra, the Secretary also dissembles the statutory
language of the NLRA, which was not in issue in Gray and which, read fairly, undercuts his
argument.

40 FMSHRC Page 725

Therefore, in Gray, the Commission’s decision is consistent with a requirement that the
employer’s action have a motivational nexus with protected activity. As the Commission stated
in Moses, “the ‘more subtle forms of interference’ are coercive interrogation and harassment
over the exercise of protected rights.” 4 FMSHRC at 1478 (emphasis added). Here, the
Secretary has not sought to demonstrate that the challenged plan was motivated in any way by
considerations of protected activity, preferring instead to attempt a sweeping change in the
interpretation of clear language, solely to make it easier for him to prove interference as a
general matter wholly unrelated to the circumstances of this case.
Obviously, this would open the door for almost unlimited interference claims. A miner
presumably could establish a prima facie case of interference by testifying that a supervisor’s
chastisement for slow work led him to believe he should not adequately rock dust his assigned
area. Of course, this would be a direct result of construing the statutory term “because” –
repeated for emphasis and certainty in each provision of 105(c)(1) – to mean one thing in a
discrimination case while construing it to mean literally nothing in an interference case.
Finally, we must point to the coup de grace foreclosing the Secretary’s position. While
the Secretary has disparaged the decision of an administrative law judge in Pepin, and while our
colleagues fret that miners would not be able to pursue interference claims if required to show
motivation, the Judge in Pepin found evidence of motivation and held the operator liable for
interference with the miner’s rights in that case. In that way, Pepin is indistinguishable from
every interference case decided by the Commission.22
There has been no showing of absurd results flowing from a faithful reading of the
statute. Unanimous authority, including recent Supreme Court cases, makes clear that such cases
against the plain meaning of a statute are hard to make, even with compelling facts and even with
Circuit Court support. It is an impossible proposition here.
V.

The Secretary’s Interpretation Is Not Entitled to Deference.

Given the clarity of the language of section 105(c), the Secretary’s claimed entitlement to
Chevron deference hardly requires a response.23 See Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 842-43 (1984) (“If the intent of Congress is clear, that is the
end of the matter; for the court, as well as the agency, must give effect to the unambiguously
expressed intent of Congress.”).

22

Even in Franks and Hoy, evidence of motivation was sufficient to convince two
Commissioners that the miners in that case had been discriminated against. See Franks and Hoy,
(Opinion of Commissioners Young and Cohen).
23

It bears noting that Justice Kennedy joined Justices O’Connor and Thomas in refusing
to extend deference to the EEOC in Smith. See 544 U.S. at 263-65.

40 FMSHRC Page 726

The deference question is never reached here because it fails necessarily under step one
of Chevron. See Section I.A., supra. Even if we were to consider deference, though, analysis
under Chevron is foreclosed as a matter of law in this case.
Since the turn of the century, the Supreme Court has repeatedly addressed and reshaped
the scope of Chevron deference. See Christensen v. Harris County, 529 U.S. 576, 586-87 (2000);
United States v. Mead Corp., 533 U.S. 218 (2001). In Gonzalez v. Oregon, 546 U.S. 243, 255-56
(2006), the Court confirmed that even if statutory language is ambiguous, “[d]eference in
accordance with Chevron, however, is warranted only ‘when it appears that Congress delegated
authority to the agency generally to make rules carrying the force of law, and that the agency
interpretation claiming deference was promulgated in the exercise of that authority.’” Id. at 25556 (emphasis added) (quoting Mead, 533 U.S. at 226-27). Here, there can be no such claim.
The Secretary’s interpretation in this case does not germinate from any rule carrying the
force of law, a prerequisite for Chevron deference under Gonzalez, Christensen, and Mead.
Rather, the Secretary announced this interpretation in briefs and litigating positions before the
Commission, which are not legally binding on the opposing party, the regulated industry, or the
government itself. As a plurality of circuit courts have held specifically in Mine Act cases, the
Secretary’s litigating positions do not warrant Chevron deference. See Knox Creek Coal Corp. v.
Sec’y of Labor, 811 F.3d 148, 158-60 (4th Cir. 2016); North Fork Coal Corp. v. FMSHRC, 691
F.3d 735, 742 (6th Cir. 2012); Vulcan Const. Materials L.P. v. FMSHRC, 700 F.3d 297, 315-16
(7th Cir. 2012). But see Sec’y of Labor v. Twentymile Coal Co., 411 F.3d 256, 261 (D.C. Cir.
2005) (disregarding Mead’s holding to afford Chevron deference to the Secretary’s litigating
position); Pattison Sand Co., LLC v. FMSHRC, 688 F.3d 507, 512 (8th Cir. 2012) (agreeing with
the D.C. Circuit’s approach).
Rather than contend with the commonsense, plain meaning of the Mine Act, our
colleagues argue not with our interpretation but rather with the Operators’ hyper-literal and
incorrect interpretation that, if motivation is required, section 105(c) could not apply until after
protected activity occurs.
Knowing that construction cannot stand review, our colleagues’ willingly embrace it in
an effort to support their effort to read “because” out of the statute. The Operators and our
colleagues erroneously conflate “literal meaning” and “plain meaning” and boldly declare that
“[b]ecause a literal reading of the statute leads to absurd results, the interference provision of
section 105(c) must be seen as lacking a plain meaning.” Slip op. at 10 (emphasis added). The
D.C. Circuit and the Commission, though, have previously rejected this reasoning. See Meredith,
177 F.3d at 1054; Nally and Hamilton, 33 FMSHRC at 1763-64.
Of course, we do not accept the notion that section 105(c) does not protect miners from
operator activity motivated by a desire to interfere with protected activity that has not yet
occurred. Section 105(c) applies fully if the Secretary or claimant demonstrates that an operator’s
action was motivated by a desire to prevent protected activity from occurring in the first place.
Slip op. at 31-38. For example, a general pre-hiring announcement or policy that any miner who
files a section 103(g) complaint will be fired would violate section 105(c) because it is because
of a right to engage in protected activity.

40 FMSHRC Page 727

As we said at the outset, the Secretary did not introduce evidence or argue, let alone
prove, that the bonus plans were motivated by the prospect of protected activity. Our colleagues,
naturally, have made no effort at all to reconcile the plain language with the circumstances in this
case because no evidence permitting such analysis was introduced, and because the
circumstances fall squarely within the Pasula-Robinette formula we have unfailingly applied to
cases arising undr Section 105(c)(1).
As a final point, this case does not involve mining activities with respect to which MSHA
may claim any special expertise or experience. The issue does not turn on a policy interpretation
of a safety standard in the Mine Act or promulgated by MSHA. Here, we reach a legal decision
on the meaning of legal requirements of the Mine Act, not mining practices prescribed in the
Act. The Secretary has not taken any formal action to formulate and announce a coherent policy
on discrimination and interference; instead, he attempts to prevail in a particular case by
claiming deference without any recognition or consideration of the broad scope of the principle
that would result.
MSHA has not demonstrated that it has considered the effect that eliminating motive
from an interference claim might have on literally thousands of daily events in which
management communicates a mining technique, mining practice, or mine directive to miners.
The Secretary has not allowed any public comment or participation regarding an attempt to
expand of the scope of section 105(c). Indeed, notwithstanding the use of “because” repeatedly
after the prohibitions against discrimination and interference and the Secretary’s agreement that
motivation is a prerequisite for discrimination, the Secretary asserts the illogical and, frankly,
absurd position that the word “because” requires motivation when applied to discrimination
cases but does not require motivation when applied to interference cases.24
Congress designated the Commission as the adjudicatory agency for Mine Act disputes.
There is no reason for the Commission to defer to a litigation position on a purely legal matter on
which the Secretary has not demonstrated any formal, thoughtful, or fully informed
consideration, analysis, or reasoning. The Secretary’s position has neither the attributes required
for Chevron deference nor persuasiveness were we to apply the standard of Skidmore v. Swift &
Co., 323 U.S. 134 (1944).

24

This point is especially relevant where, as here, the Secretary attempts an unprincipled
and significant legislative revision that effectively reads congressional language out of the
statute.

40 FMSHRC Page 728

CONCLUSION
A principal goal of the Mine Act is to foster cooperation between management and
workers on safety matters and increase worker participation in achieving safe working
conditions. It does not advance the interests served by the Act to disconnect a miner’s allegation
of interference with protected rights from any exercise of protected rights. Further, the course
urged by our colleagues would do real violence to basic principles of statutory construction and
Commission precedents and would ratify an effort by the Secretary to arrogate to him legislative
power reserved to Congress by the Constitution. We would reverse the Judge and dismiss this
case for a lack of substantial evidence on an essential element of the violation.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Michael G. Young
Michael G. Young, Commissioner

40 FMSHRC Page 729

Appendix A
SECRETARY OF LABOR, MSHA,
on behalf of RICKY BAKER
and UNITED MINE WORKERS OF
AMERICA INTERNATIONAL UNION
v.
OHIO COUNTY COAL CO.,
CONSOLIDATION COAL CO.,
MURRAY AMERICAN ENERGY, INC.,
and MURRAY ENERGY CORPORATION
SECRETARY OF LABOR, MSHA,
on behalf of LEVI ALLEN
and UNITED MINE WORKERS OF
AMERICA INTERNATIONAL UNION
v.
THE MARSHALL COUNTY COAL CO.,
McELROY COAL COMPANY,
MURRAY AMERICAN ENERGY, INC.,
and MURRAY ENERGY CORPORATION
SECRETARY OF LABOR, MSHA,
on behalf of MICHAEL PAYTON
and UNITED MINE WORKERS OF
AMERICA INTERNATIONAL UNION
v.
MARION COUNTY COAL CO.,
CONSOLIDATION COAL CO.,
MURRAY AMERICAN ENERGY, INC.,
and MURRAY ENERGY CORPORATION

40 FMSHRC Page 730

Docket Nos.: WEVA 2015-905-D
WEVA 2015-906-D
WEVA 2015-907-D
WEVA 2015-908-D
LAKE 2015-616-D

SECRETARY OF LABOR, MSHA,
on behalf of ANN MARTIN
and UNITED MINE WORKERS OF
AMERICA INTERNATIONAL UNION
v.
HARRISON COUNTY COAL CO.,
CONSOLIDATION COAL CO.,
MURRAY AMERICAN ENERGY, INC.,
and MURRAY ENERGY CORPORATION
SECRETARY OF LABOR, MSHA,
on behalf of MARK RICHEY
and UNITED MINE WORKERS OF
AMERICA INTERNATIONAL UNION
v.
THE OHIO VALLEY COAL CO.,
and MURRAY ENERGY CORPORATION

40 FMSHRC Page 731

COMMISSION ORDERS

40 FMSHRC Page 732

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

May 4, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. CENT 2017-325
A.C. No. 29-02170-426933

SAN JUAN COAL CO.
BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On May 12 2017, the Commission received from San Juan Coal
Co. (“San Juan”) a motion seeking to reopen a penalty assessment that had become a final order
of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a), an operator who wishes to contest a proposed penalty must notify
the Secretary of Labor no later than 30 days after receiving the proposed penalty assessment. If
the operator fails to notify the Secretary, the proposed penalty assessment is deemed a final order
of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. 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).
San Juan asserts that it received the Secretary’s proposed penalty assessment on or about
January 4, 2017. It further asserts that it inadvertently sent the contest form to MSHA’s St. Louis
office with a check for uncontested citations instead of to the Arlington office. San Juan’s check
for partial payment of the assessment was dated January 17, 2017.

40 FMSHRC Page 733

The operator claims that the safety manager at San Juan reviewed the assessment and
selected four citations that the company intended to challenge. San Juan claims the safety
manager then forwarded this information to the accounts payable department. The operator
asserts that the Secretary received the payment for the citations it did not intend to contest.
However, the operator asserts that as a result of a clerical error the contest was mailed with the
check. The operator alleges that it only learned of the problem when it received a delinquency
notice on or around April 17, 2017.1 Upon learning of the mistake, the operator changed its
contest procedures so that safety personnel will now handle all correspondence related to the
contest of proposed penalties at the mine. San Juan has not filed any other motions to reopen
with the Commission in the last two years. The Secretary does not oppose the request to reopen,
but urges the operator to take steps to ensure that future penalty contests are timely filed.
Having reviewed San Juan’s request and the Secretary’s response, we find that the
operator inadvertently sent its notice of contest to the wrong address. The operator changed its
office procedures to prevent the mistake from happening again. In the interest of justice, we
hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner

1

The delinquency notice was dated April 4, 2017. The Secretary does not challenge the
operator’s assertion that it was received on April 17, 2017.

40 FMSHRC Page 734

Distribution:
Jere C. Overdyke III, Esq.
Holland & Hart LLP
P.O. Box 68
Jackson, WY 83001
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

40 FMSHRC Page 735

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

May 4, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
v.

Docket No. CENT 2018-27-M
A.C. No. 29-02237-444887

CASTILLO READY MIX, INC.
BEFORE:

Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
ORDER

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On October 31, 2017, the Commission received from Castillo
Ready Mix, Inc. (“Castillo”) a motion seeking to reopen a penalty assessment that had appeared
to become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
On August 3, 2017, the Secretary issued a proposed penalty assessment to Castillo.
Castillo asserts that the operator always intended to contest Citation No. 9355405 but that the
person tasked with handling the paperwork was ill at the time of the citation and subsequently
passed away.1 The operator believed that the paperwork had been misplaced and had not been
timely contested. However, documents submitted by the Secretary show that the assessment in
this matter was listed as delivered by the U.S. Postal service on October 17, 2017, and also listed
as “unclaimed.” Further, MSHA’s records indicate that a contest for the assessment of Citation
No. 9355405 was mailed on October 27, 2017 and received by MSHA on October 31, 2017.
That penalty contest was docketed as CENT 2018-30-M
Having reviewed Castillo’s request and the Secretary’s response, we conclude that the
proposed penalty assessment did not become a final order of the Commission because the
operator timely contested the proposed assessment. Section 105(a) states that if an operator
“fails to notify the Secretary that he intends to contest the . . . proposed assessment of penalty . . .
the citation and the proposed assessment of penalty shall be deemed a final order of the
Commission.” 30 U.S.C. § 815(a). Here, Castillo notified the Secretary of the contest. This
obviates any need to invoke Rule 60(b). Because Castillo timely contested the proposed penalty
1

The operator filed medical reports, a birth certificate, and other private documents with
its request to reopen to substantiate this claim. The Commission has placed copies of these
personal records under seal. We ask that the Secretary destroy any copies of those records that
he received from the Castillo.

40 FMSHRC Page 736

and the Secretary filed the necessary civil proceeding before the Commission, the operator’s
motion to reopen is moot. Accordingly, this case is remanded to the Chief Administrative Law
Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules,
29 C.F.R. Part 2700.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner

40 FMSHRC Page 737

Distribution:
Paula Castillo
Castillo Ready Mix, Inc.
116 Padilla Rd.
Belen, NM 87002
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

40 FMSHRC Page 738

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

May 4, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. PENN 2018-33-M
A.C. No. 36-05666-437268

JAY FULKROAD & SONS, INC.
BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On October 16, 2017, the Commission received from Jay
Fulkroad & Sons, Inc. (“Jay Fulkroad”) a motion seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. §
815(a).
Under section 105(a), an operator who wishes to contest a proposed penalty must notify
the Secretary of Labor no later than 30 days after receiving the proposed penalty assessment. If
the operator fails to notify the Secretary, the proposed penalty assessment is deemed a final order
of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. 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).
Jay Fulkroad asserts that it contested the initial citation, but was unaware that it needed to
contest the proposed penalty as well.1 Records of the Secretary of Labor’s Mine Safety and
1

The contest is docketed as PENN 2017-159-M and is currently pending before a
Commission ALJ.

40 FMSHRC Page 739

Health Administration (“MSHA”) indicate that the proposed assessment was mailed on May 3,
2017. The operator subsequently made a partial payment for the assessment on May 27, 2017.
MSHA delivered a delinquency notice to the operator on August 28, 2017. Jay Fulkroad sent a
letter to the Commission the next day, seeking an explanation. The Secretary notes, “[a]lthough
the operator did not immediately file a motion to reopen, it did promptly take action in response
to the delinquency notice.” Jay Fulkroad has not filed any other motions to reopen with the
Commission in the last two years. The Secretary does not oppose the request to reopen, but urges
the operator to take steps to ensure that future penalty contests are timely filed.
Having reviewed Jay Fulkroad’s request and the Secretary’s response, we find that
mistakenly failed to contest the penalty after contesting the underlying citations. In the interest of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner

40 FMSHRC Page 740

Distribution:
Gerald Fulkroad, Sr.
President
Jay Fulkroad & Sons, Inc.
2736 Free Spring Church Rd.
McAlistersville, PA 17049
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

40 FMSHRC Page 741

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

May 4, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2016-321
A.C. No. 48-01353-403777

v.
WESCO

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On February 7, 2017, the Commission received from WESCO a
motion seeking to reopen a penalty assessment proceeding and relieve it from the Default Order
entered against it.
On May, 23, 2016, the Chief Administrative Law Judge issued an Order to Show Cause
in response to WESCO’s failure to answer the Secretary of Labor’s April 14, 2016 Petition for
Assessment of Civil Penalty. By its terms, the Order to Show Cause was deemed a Default Order
on June 23, 2016, when it appeared that the operator had not filed an answer within 30 days.
WESCO filed a contest to MSHA’s proposed assessment and asserts that it always
intended to continue to contest the single citation at issue. However, during the week of February
22, 2016, the operator moved offices to a new address. While the operator contends that it
properly filed a change of address notification with MSHA, it claims that it never received any of
the paperwork related to this citation after contesting the proposed assessment.1 The operator
asserts that it learned that the citation became final when it began to receive collection notices.
WESCO has not filed any other motions to reopen with the Commission in the last two years.
The Secretary does not oppose the request to reopen and does not challenge any of the assertions
made by the operator.
The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. §
2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s
decision may be sought by filing a petition for discretionary review within 30 days of its
issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not direct
review within 40 days of a decision’s issuance, it becomes a final decision of the Commission.

1

We note that the Order to Show Cause issued by Chief Judge Lesnick lists the
operator’s previous address on the distribution list.

40 FMSHRC Page 742

30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final decision of the
Commission.
In evaluating requests to reopen final orders, the Commission has found guidance in Rule
60(b) of the Federal Rules of Civil Procedure under which the Commission may relieve a party
from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or
other reason justifying relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall
be guided so far as practicable by the Federal Rules of Civil Procedure”); Jim Walter Res., Inc.,
15 FMSHRC 782, 786-89 (May 1993). We have also observed that default is a harsh remedy and
that, if the defaulting party can make a showing of good cause for a failure to timely respond, the
case may be reopened and appropriate proceedings on the merits will be permitted. See Coal
Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed WESCO’s request and the Secretary’s response, we find that the
operator inadvertently failed to respond to the Show Cause Order because the document was sent
to its old address. In the interest of justice, we hereby reopen the proceeding and vacate the
Default Order. Accordingly, this case is remanded to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R.
Part 2700.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner

40 FMSHRC Page 743

Distribution:
Tim Wright
HSE Manager
WESCO
3135 S. Richmond St.
Salt Lake City, UT 84106-3053
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

40 FMSHRC Page 744

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

May 4, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2017-492-M
A.C. No. 45-00637-423672

v.
HOLROYD CO., INC.

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On June 13, 2017, the Commission received from Holroyd Co.,
Inc. (“Holroyd”) a motion seeking to reopen a penalty assessment that had become a final order
of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a), an operator who wishes to contest a proposed penalty must notify
the Secretary of Labor no later than 30 days after receiving the proposed penalty assessment. If
the operator fails to notify the Secretary, the proposed penalty assessment is deemed a final order
of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. 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).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on November 10, 2016, and
became a final order of the Commission on December 10, 2016. Holroyd asserts that it
inadvertently sent the contest form to MSHA’s St. Louis office with a check for uncontested
citations instead of to the Arlington office.

40 FMSHRC Page 745

The operator asserts that the contest was mailed on November 16, 2016. The Secretary
mailed a delinquency notice on January 25, 2016, having not received the contest. However, the
operator claims it only learned of the delinquency in mid-to-late February. Holroyd asserts that it
then attempted to contact MSHA to dispute the debt. Holroyd asserts it repeatedly reached out to
MSHA, and left phone and email messages with MSHA’s representative on February 28, 2017.
The operator claims that MSHA’s representative did not return the phone call until March 29,
2017. At that time, Holroyd asserts that MSHA representative stated that MSHA had received
the notice of contest that he would “take are of this” and that a backlog of cases was causing
delays.1 Holroyd claims it believed that the matter was then being resolved.
Holroyd claims that on May 5, 2017 it received a notice from the U.S. Department of the
Treasury showing that it owed money to MSHA. The operator asserts it was surprised by this
notice, believing that MSHA was resolving the matter. The operator alleges that on May 15,
2017, the MSHA representative e-mailed Holroyd and stated that the contest had been filed late.
The operator claims it was confused because of the discrepancy between this e-mail and the
March 29, 2017 conversation with MSHA and that it decided to obtain counsel. Holroyd claims
that through counsel it learned, for the first time, on May 30, 2017, that it had sent the contest to
the wrong address. The operator then filed its motion to reopen on June 13, 2017. Holroyd has
not filed any other motions to reopen with the Commission in the last two years. The Secretary
does not oppose the request to reopen, but urges the operator to take steps to ensure that future
penalty contests are timely filed.

1

In his Response, the Secretary of Labor agrees that a telephone conversation occurred in
March 2017, but disagrees with the operator’s characterization of the conversation. The
Secretary provides no specifics regarding his disagreement, instead stating it is unnecessary to
resolve the discrepancy because the Secretary does not oppose reopening.

40 FMSHRC Page 746

Having reviewed Holroyd’s request and the Secretary’s response, we find that the
operator inadvertently sent its notice of contest to the wrong address. The operator then
diligently pursued the matter until it learned the source of its mistake and then promptly rectified
it. In the interest of justice, we hereby reopen this matter and remand it to the Chief
Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the
Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R. § 2700.28.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner

40 FMSHRC Page 747

Distribution:
Selena C. Smith, Esq.
Davis Grimm Payne & Marra
701 Fifth Ave., Suite 4040
Seattle, WA 98104
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

40 FMSHRC Page 748

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

May 4, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2017-637-M
A.C. No. 04-05683-436870

v.
GRANITE CONSTRUCTION
COMPANY,

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On August 22, 2017, the Commission received from Granite
Construction Company (“Granite”) a motion seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. §
815(a).
Under section 105(a), an operator who wishes to contest a proposed penalty must notify
the Secretary of Labor no later than 30 days after receiving the proposed penalty assessment. If
the operator fails to notify the Secretary, the proposed penalty assessment is deemed a final order
of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. 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).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on May 9, 2017, and became a
final order of the Commission on June 8, 2017. Granite asserts that on June 1, 2017 it timely
mailed the penalty contest form to MSHA. However, the operator claims that administrative

40 FMSHRC Page 749

personnel inadvertently sent the form to MSHA’s previous mailing address. The operator
produced USPS tracking information showing that a parcel had been sent, but to the wrong
address. The operator asserts that it learned of its mistake when its counsel searched for the
petition and realized the penalty was sent to the wrong address. MSHA sent a delinquency notice
on August 18, 2017, and Granite filed its motion to reopen four days later. Granite has not filed
any other motions to reopen with the Commission in the last two years and responded quickly
upon discovering its mistake. The Secretary does not oppose the request to reopen, but urges the
operator to take steps to ensure that future penalty contests are timely filed.
Having reviewed Granite’s request and the Secretary’s response, we find that the operator
inadvertently mailed its contest form to MSHA’s previous address. In the interest of justice, we
hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner

40 FMSHRC Page 750

Distribution:
Laura E. Beverage, Esq.
Jackson Kelly, PLLC
1099 18th St., Suite 2150
Denver, CO 80202
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

40 FMSHRC Page 751

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

May 4, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2017-638-M
A.C. No. 48-00007-433214

v.
MOUNTAIN CEMENT COMPANY,

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On August 22, 2016, the Commission received from Mountain
Cement Company (“Mountain Cement”) a motion seeking to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a), an operator who wishes to contest a proposed penalty must notify
the Secretary of Labor no later than 30 days after receiving the proposed penalty assessment. If
the operator fails to notify the Secretary, the proposed penalty assessment is deemed a final order
of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. 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).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on March 10, 2017, and became
a final order of the Commission on April 10, 2017. Mountain Cement asserts that it inadvertently
sent the contest form to MSHA’s St. Louis office with a check for an uncontested citation instead
of to the Arlington office. Upon learning of its mistake, Mountain Cement asserts that it

40 FMSHRC Page 752

contacted counsel in order to seek reopening. The Secretary does not oppose the request to
reopen, but urges the operator to take steps to ensure that future penalty contests are timely filed.
In its request to reopen, Mountain Cement includes an affidavit from its safety director
stating that it learned that the citation had become final when it received a delinquency notice on
May 30, 2017. The Secretary states that the delinquency notice was issued on May 24, 2017.
Mountain Cement did not file its request to reopen until August 22, 2017, 90 days after the
delinquency notice was sent and 84 days after it was received. Settled commission case law
requires an operator to file a motion to reopen within 30 days following receipt of a delinquency
notice. If the operator fails to do so, it must provide a satisfactory explanation for the delay. See
Concrete Mobility, LLC, 37 FMSHRC 1709, 1710 (Aug. 2015); Lone Mountain Processing, Inc.,
33 FMSHRC 2373 (Oct. 2011); Highland Mining, 31 FMSHRC 1313, 1317 (Nov. 2009). Here,
the operator has given reasons for its initial failure to timely contest the orders at issue. However,
it has not provided any explanation for its failure to request reopening within 30 days of learning
of its delinquency. Accordingly, we deny Mountain Cement’s motion.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner

40 FMSHRC Page 753

Distribution:
Lauren M. Marino, Esq.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
1909 K St. N.W., Suite 1000
Washington, DC 20006
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

40 FMSHRC Page 754

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

May 4, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2017-671-M
A.C. No. 50-01684-441334

v.
GREAT NORTHWEST, INC.

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On September 12, 2017, the Commission received from Great
Northwest, Inc. (“Great Northwest”) a motion seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. §
815(a).
Under section 105(a), an operator who wishes to contest a proposed penalty must notify
the Secretary of Labor no later than 30 days after receiving the proposed penalty assessment. If
the operator fails to notify the Secretary, the proposed penalty assessment is deemed a final order
of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. 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).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on June 19, 2017, and became a
final order of the Commission on July 19, 2017. Great Northwest asserts that it inadvertently sent
the contest form to MSHA’s St. Louis office with a check for uncontested citations, instead of to

40 FMSHRC Page 755

the Arlington office. The Secretary asserts that MSHA received payment for the uncontested
citations, and that a delinquency notice was sent on September 5, 2017. Upon learning of its
mistake, Great Northwest contends that it immediately filed a request to reopen. Great Northwest
has not filed any other motions to reopen with the Commission in the last two years. The
Secretary does not oppose the request to reopen, but urges the operator to take steps to ensure
that future penalty contests are timely filed.
Having reviewed Great Northwest’s request and the Secretary’s response, we find that
the operator inadvertently sent its notice of contest to the wrong address. In the interest of justice,
we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner

40 FMSHRC Page 756

Distribution:
Anton K. Johansen
Vice President
Great Northwest, Inc.
P.O. Box 74646
Fairbanks, AK 99707
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

40 FMSHRC Page 757

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

May 4, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. YORK 2018-5-M
A.C. No. 30-03255-435700

v.
AMERICAN ROCK SALT COMPANY,
LLC

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On October 17, 2017, the Commission received from American
Rock Salt Company, LLC (“American”) a motion seeking to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a), an operator who wishes to contest a proposed penalty must notify
the Secretary of Labor no later than 30 days after receiving the proposed penalty assessment. If
the operator fails to notify the Secretary, the proposed penalty assessment is deemed a final order
of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. 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).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on April 12, 2017, and became a
final order of the Commission on May 12, 2017. American asserts that it timely filed a notice of
contest regarding the proposed civil penalty of $7,000 for Order No. 9310579, and at the same
time sent MSHA a check for $884 for the remaining penalties in the proposed assessment at

40 FMSHRC Page 758

issue. The operator only learned that there was a problem with the contest when it received a
delinquency letter dated June 28, 2017. American asserts that on July 7, 2017, it wrote a letter to
the MSHA compliance office protesting that it had filed the notice of contest and suggesting that
it had received the delinquency letter in error. The operator asserts that it received no response
from the compliance office by October 11, 2017. American claims it contacted the compliance
office on that day and learned that it was required to file a request to reopen. The request was
filed six days later on October 17, 2017.1 American has not filed any other motions to reopen
with the Commission in the last two years.
The Secretary does not oppose the request to reopen, but urges the operator to take steps
to ensure that future penalty contests are timely filed. The Secretary does not dispute American’s
assertion that it filed a timely notice of contest, and confirms that MSHA received a check for
$884 for penalties contained in the proposed assessment.

1

While American’s request to reopen was filed more than 30 days after the delinquency
notice, we note that the operator had contacted the MSHA compliance office immediately upon
receiving the delinquency letter and diligently pursued this matter until the mistake was
discovered.

40 FMSHRC Page 759

Having reviewed American’s request and the Secretary’s response, we find that good
cause exists for granting American’s motion. In the interest of justice, we hereby reopen this
matter and remand it to the Chief Administrative Law Judge for further proceedings pursuant to
the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly,
consistent with Rule 28, the Secretary shall file a petition for assessment of penalty within 45
days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner

40 FMSHRC Page 760

Distribution:
Thomas A. DeSimon, Esq.
Harris Beach, PLLC
99 Garnsey Rd.
Pittsford, NY 14534
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

40 FMSHRC Page 761

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

May 24, 2018

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

Docket No. CENT 2016-293-M
A.C. No. 03-02013-368839
Docket No. CENT 2016-294-M
A.C. No. 03-02013-371413

v.
V-TECH SAND, LLC

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On April 12, 2016, the Commission received from V-Tech
Sand, LLC (“V-Tech”) two motions seeking to reopen two penalty assessments. 1
The Commissioners are evenly divided on the disposition of this matter. Acting
Chairman Althen and Commissioner Young would hold that there is no final order and therefore
the operator’s motions are unnecessary. They would permit the operator to contest the penalties
before the Judge. Commissioners Jordan and Cohen would hold that the proposed penalties did
become final orders pursuant to section 105(a) of the Mine Act, and that the motions to reopen
were untimely filed. They would deny the motions.

1

For the limited purpose of addressing these motions to reopen, we hereby consolidate
docket numbers CENT 2016-293-M and CENT 2016-294-M involving similar procedural issues.
29 C.F.R. § 2700.12.

40 FMSHRC Page 762

Because the Commission is evenly divided, there is not a majority voting to grant the
motions to reopen. The Secretary has administratively determined that final orders have been
issued. The Commission’s order here leaves that determination undisturbed. See Pa. Elec. Co.,
12 FMSHRC 1562, 1563-65 (Aug. 1990), aff’d on other grounds, 969 F.2d 1501 (3d Cir. 1992)
(providing that the effect of a split Commission decision is to leave standing disposition from
which appeal has been sought).

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner

40 FMSHRC Page 763

Distribution:
Wray Valentine
V-Tech Sand, LLC
48 Teresa St.
Batesville, AR 72503
Troy Pigg
V-Tech Sand, LLC
P.O. Box 2836
Batesville, AR 72503
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

40 FMSHRC Page 764

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

June 15, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 2009-35
v.
THE AMERICAN COAL COMPANY

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act”), and is presently before the Commission a
second time on review. After briefing had begun, the Secretary of Labor filed a motion to settle
the case pursuant to a proposed settlement agreement he had reached with the operator, The
American Coal Company (“AmCoal”). In an order dated March 5, 2018, two Commissioners
voted to grant the motion and two voted to deny, which thereby denied the motion in effect. 40
FMSHRC ___ (Mar. 2018).
AmCoal petitioned the Commission for reconsideration and requested that the motion for
settlement be granted. In an order dated March 27, 2018, two Commissioners voted to grant the
petition and two voted to deny, again thereby denying the motion for settlement in effect.
AmCoal thereupon petitioned the United States Court of Appeals for the District of Columbia
Circuit to review the Commission’s two split decisions. American Coal Co. v. FMSHRC, No. 181090 (docketed Apr. 2, 2018).
AmCoal subsequently requested that the court hold that proceeding in abeyance while the
parties further pursued settlement before the Commission. By order dated May 15, 2018, the
court held the case in abeyance. On May 18, 2018, the Secretary and AmCoal filed an Amended
Joint Motion to Approve Settlement Agreement with the Commission.

40 FMSHRC Page 765

Upon consideration of the amended motion, the settlement agreement is approved. The
basis for Acting Chairman Althen’s and Commissioner Young’s approval is set forth in their
opinion in favor of approving the original settlement motion. Slip op. at 3-7. Commissioners
Jordan and Cohen now join in granting the motion for settlement.1

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner

1

The Amended Joint Motion to Approve Settlement Agreement provides substantive
explanations supporting the Secretary’s decision to compromise the issues of one violation at
issue in this matter by deleting the flagrant designation, reducing the level of gravity, and
substantially reducing the assessed penalty. In addition, the Secretary has set forth reasons why it
would not be in the public interest to litigate certain legal issues in the context of this case.
Moreover, the amended motion explains that the operator’s mines have closed since the citations
issued, reducing the deterrent value of a penalty. Commissioners Jordan and Cohen note that
these justifications were absent in the initial settlement motion. Upon review of the amended
motion, Commissioners Jordan and Cohen agree to grant the motion and approve the settlement.

40 FMSHRC Page 766

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

June 28, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), on behalf
of THOMAS McGARY and RON
BOWERSOX
and
Docket No. WEVA 2015-583-D
UNITED MINE WORKERS OF
AMERICA INTERNATIONAL UNION,
Intervenor
v.
THE MARSHALL COUNTY COAL CO.,
McELROY COAL CO., MURRAY
AMERICAN ENERGY, INC., and
MURRAY ENERGY CORPORATION1
BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
Respondents in this matter have petitioned the United States Court of Appeals for the
District of Columbia Circuit to review the two decisions the Commission issued in the case. D.C.
Cir. No. 18-1098 (docketed Apr. 12, 2018); see 38 FMSHRC 2006 (Aug. 2016); 40 FMSHRC
261 (Mar. 2018).2 On April 13, 2018, Respondents moved the Commission for a stay while the
two decisions are on appeal.
In their motion, Respondents state that the Secretary of Labor, without taking a position
on the Respondents’ arguments for a stay, does not oppose the motion. The other party to the
case, the United Mine Workers of America International Union (“UMWA”), has not replied to
the motion for stay.

1

Additional captions are listed in Appendix A to this order.

2

Respondents are five underground coal mines in West Virginia and associated corporate
entities, including the owner and operator of the five mines, Murray Energy Corporation. 38
FMSHRC at 2006; 40 FMSHRC at 261 n.2.

40 FMSHRC Page 767

Two Commissioners would grant the motion and stay the effect of the Commission’s
decisions, while two Commissioners would deny the motion. Respondents’ stay request is thus,
in effect, denied.
The opinions of Commissioners for and against granting a stay in this instance are set
forth below.
Acting Chairman Althen and Commissioner Young, in favor of granting the stay:
In this case, the Commission ordered Respondents to rescind a policy requiring miners to
give notice to management of their complaints made pursuant to section 103(g) of the Mine
Act,1 not to enforce that policy, to post a Notice for one year of the rescission/non-enforcement
of the policy, to pay civil penalties, and for Robert E. Murray, the Chief Executive Officer of
Murray Energy Corporation, to read a prescribed statement to the miners.
The record demonstrates that the Respondents posted the required Notice rescinding
the announced policy and informing miners of their rights. By now, a year from the posting
has expired and the Respondents have, or could have, permissibly removed the notice.2
Nearly two years have passed since the Commission’s initial decision. Neither the
Secretary nor the UMWA has complained of a violation or any failure to comply with the
Judge’s order regarding the Respondent’s section103(g) policy. Therefore, Respondents
apparently have complied with the requirements that they not interfere with miners’ rights to file
section 103(g) complaints.
The Secretary and MSHA, the federal agency responsible for prosecuting violations and
enforcing orders, do not oppose the stay and have not otherwise expressed any concern that a
stay will injure the public interest. Consequently, the federal enforcement agency that protects
the public interest and miners’ rights implicitly accepts a stay.

1

Section 103(g)(1) provides that, if a miner or miner representative has reasonable
grounds to believe that a violation of the Act or a mandatory standard exists, the miner or
representative has a right to obtain an immediate inspection by the Department of Labor’s Mine
Safety and Health Administration (“MSHA”). It further provides that the name of the person
requesting an inspection shall not be revealed. 30 U.S.C. § 813(g)(1).
2

In Respondents’ second petition for discretionary review, Respondents sought review of
the assessed penalty and of the requirement that CEO Murray personally read a statement to the
miners.

40 FMSHRC Page 768

The UMWA, the official representative of the miners, does not oppose the stay and has
not otherwise expressed a concern that issuance of a stay will injure any safety rights of miners
or the public interest.3 Consequently, the UMWA implicitly accepts a stay.
These positions of the concerned parties tip the scales decisively in favor of granting the
stay and should be dispositive. No one in the world opposes the stay except our colleagues.
Application of the classic stay factors confirms that the Commission should grant the
stay. The factors are (1) a showing that the stay is in or does not adversely affect the public
interest; (2) no adverse effect on other interested parties; (3) irreparable harm if the stay is not
granted; and (4) likelihood of prevailing on the merits of the appeal. Virginia Petroleum Jobbers
Ass’n v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958).
1.

Public interest

In light of the absence of any opposition, we must conclude Respondents have complied
with the substantive requirements of the Judge’s order to avoid interfering with miners’ rights to
file section 103(g) complaints. There is no indication that Respondents have interfered with, or
attempted to interfere with, miners’ statutory rights subsequent to entry of the order. The
remaining elements of the order are the payment of a penalty and a personal admission of
unlawful activity by CEO Murray.
The Secretary, as guardian of the public interest, does not oppose the stay or assert that a
grant of the stay would adversely affect the public interest. The statutory defender of the public
interest, therefore, sees no threat to that interest from a stay. The UMWA has not opposed the
settlement or suggested any public interest in immediate full compliance.
2.

Effect upon other private parties

The UMWA, a zealous defender of miners’ rights, has not taken any action to oppose the
stay. It has not asserted a need for an immediate personal reading of a notice after two years of
quiescent compliance by Respondents with the Commission’s order and no claimed infringement
of miners’ section 103(g) rights. Nor has any individual miner named in this action objected to
the stay.4 Further, the Secretary, charged with the statutory duty to protect miners’ rights, has not
asserted a need or basis for an immediate personal reading. Consequently, there is no support for
a finding that the stay would harm the rights of an affected party or the public interest.
3

The lack of opposition to the stay brings up an important question at the outset: if the
other parties to the case — the Secretary and the UMWA — do not oppose the stay, does that
mean that they have no intention of seeking to immediately enforce the remedial aspects of the
Judge’s decision that remain to be satisfied by the Respondents? We think the answer to that
question is clearly “yes.” Without such enforcement, particularly by the Secretary, those
remedies effectively are stayed despite the motion not garnering majority support.
4

MSHA filed each of the cases on behalf of UMWA International Safety Representative
Ron Bowersox and another individual. Each of these individuals is a local UMWA representative
at his or her respective mine. 40 FMSHRC at 262 n.4.

40 FMSHRC Page 769

3.

Irreparable Injury

Regarding the element of irreparable harm, the remedy imposed is extraordinary. It
mandates a personal action and involves a legal question of first impression before the
Commission. The mandated reading would require CEO Murray to read a notice stating that he
personally instituted an unlawful policy in awareness meetings with the UMWA miners. The
first few sentences of the mandatory statement are:
The Federal Mine Safety and Health Review Commission
has found that the Murray Energy Corporation and its West
Virginia subsidiaries have violated the Federal Mine Safety and
Health Act and has ordered me to read and abide by this notice. In
an awareness meeting between April and July 2014, I outlined a
policy requiring that any safety complaint made to MSHA also be
made to management. That policy is rescinded.
40 FMSHRC at 272.
The statement, therefore, constitutes a compelled admission by CEO Murray that he
personally implemented a policy that violated the Mine Act, and he is rescinding it. Obviously,
such a personal admission of unlawful conduct related to worker health and safety far surpasses a
simple affirmation of safety principles. Once CEO Murray makes the statement, if Respondents
prevail on appeal, there will be no effective way to fully counteract any damage to reputation
caused by the original statement. This is the very definition of irreparable injury.
4.

Likelihood of Success

In light of the compelling reasons for granting a stay based upon the above-discussed
factors, the only possible ground for denying the stay would be an overweening certainty that the
circuit court will uphold the Commission’s decision in its entirety. However, there are multiple
reasons for Commission cautiousness.
The Commission did not address the merits of Respondents’ argument regarding the
remedy of personally reading a statement. We found that Respondents did not preserve that
issue. If the Court disagrees with our procedural ruling, the Respondents presented a substantial
question that cuts heavily in favor of a stay. See Washington Metropolitan Area Transit Comm’n
v. Holiday Tours, Inc., 559 F.2d 841, 843-44 (D.C. Cir. 1977). Compelling an individual to
personally read a notice to his employees that he violated the law regarding their health and
safety most certainly is a bell that cannot be unrung if it is later determined that his actions were
lawful. This is particularly true when the compelled reading involves invaluable First
Amendment rights. Undoubtedly, given the importance of First Amendment rights and the
particularly punitive nature of a compelled reading, the circuit court will carefully review
Respondents’ claim that they did properly raise the issue before the Commission.
Success in the appeal of the violation would negate any duty to read the statement. Here,
the principal argument presented by Respondents before the circuit court is that the Judge

40 FMSHRC Page 770

utilized an incorrect standard for determining interference claims. The Administrative Law Judge
applied the so-called “Franks/Hoy test” for violations of section 105(c). 38 FMSHRC at 2011;
see UMWA on behalf of Franks v. Emerald Coal Res., LP, 36 FMSHRC 2088, 2108 (Aug. 2014)
(sep. op. of Chairman Jordan and Comm’r Nakamura).
The Franks/Hoy test would eliminate the need for any motivational nexus between
protected activity and adverse action despite a quadruple-explicit mandate in the Mine Act that
the adverse action must occur “because of” protected activity.5 Two Commissioners proposed
the test in the Franks/Hoy case. A majority of the Commission has never accepted the test, which
is not a Commission standard.6
Most importantly, in a decision issued yesterday, June 27, 2018, the current four
members of the Commission split evenly on the adoption of the Franks/Hoy test in a case testing
the plain meaning of section 105(c). Sec’y of Labor on behalf of Greathouse v. Monongalia Cty.
Coal Co., Docket No. WEVA 2015-904-D. The case involved the introduction of bonus plans.
The Secretary did not introduce any evidence that protected activity motivated in any way the
introduction of the plans. Therefore, the Greathouse case provides an ideal test of the
requirements of section 105(c) with less possibility of one set of unusual facts unduly influencing
a legal standard applicable to a limitless array of other circumstances. Two Commissioners
rejected the Franks/Hoy test in favor of applying the plain language of the Mine Act and
consistently accepted meaning of section 105(c). An agency’s refusal to accept the plain meaning
of statutory language is a well-recognized and frequent reason for court reversals of agency
5

As relevant, section 105(c)(1) of the Mine Act provides,
No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination against or
otherwise interfere with the exercise of the statutory rights of any
miner . . . [1] because such miner . . . has filed or made a complaint
under or related to this chapter, including a complaint notifying
the operator or the operator’s agent, or the representative of the
miners at the coal or other mine of an alleged danger or safety or
health violation in a coal or other mine, or [2] because such miner .
. . is the subject of medical evaluations and potential transfer under
a standard published pursuant to section 811 of this title or [3]
because such miner . . . has instituted or caused to be instituted any
proceeding under or related to this chapter or has testified or is
about to testify in any such proceeding, or [4] because of the
exercise by such miner . . . on behalf of himself or others of any
statutory right afforded by this chapter.

30 U.S.C. § 815(c) (emphases added).
6

The United States Court of Appeals for the District of Columbia Circuit specifically
noted the Commission’s refusal to adopt the Franks/Hoy test in Wilson v. FMSHRC, 863 F.3d
876, 879 (D.C. Cir. 2017), stating “[t]he Commission has not settled upon a test for
interference.”

40 FMSHRC Page 771

interpretations in recent years. See 2A Norman J. Singer, Sutherland Statutory Construction §
46:1 (7th ed. 2014).
If the circuit court in this case rejects the Franks/Hoy test, the court would then have to
decide whether the other three Commissioners appropriately affirmed the violation on the ground
that the evidence would show a motivational nexus although the Judge found interference based
on the Franks/Hoy test. See 38 FMSHRC at 2012 n.11, 2028 n.22. This is a purely legal
question, and the circuit court is the appropriate forum for its resolution.
Conclusion
The enforcement agency and the miners’ legal representative do not oppose a stay and do
not assert any harm to the public interest from a stay. No party has suggested any harm to the
rights of miners from a stay; and, a personal admission of unlawful conduct clearly is an
irreparable hardship to an individual. We cannot dismiss the possibility of circuit court
disagreement with our decision. A personal reading by CEO Murray would reduce the appeal to
an argument over the penalty amount thereby depriving Respondents of any opportunity to
challenge the impact/effect of the extraordinary personal reading obligation.
The stay should be granted.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Michael G. Young
Michael G. Young, Commissioner

40 FMSHRC Page 772

Commissioners Jordan and Cohen, in favor of denying the stay:
We would deny the motion to stay the Judge’s remedial order because, in our view, the
operators have not met the criteria they are required to satisfy before a stay request is granted.
In Secretary of Labor ex rel. Price and Vacha v. Jim Walter Resources, Inc., 9 FMSHRC
1312 (Aug. 1987), the Commission held that a party seeking a stay must satisfy the factors set
forth in Virginia Petroleum Jobbers Ass’n v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958). Those
factors include: (1) likelihood of prevailing on the merits of the appeal; (2) irreparable harm if
the stay is not granted; (3) no adverse effect on other interested parties; and (4) a showing that
the stay is in the public interest. The Court emphasized that a stay constitutes “extraordinary
relief.” 259 F.2d at 925. The burden is on the movant to provide “sufficient substantiation” of the
requirements for the stay. Stillwater Mining Co., 18 FMSHRC 1756, 1757 (Oct. 1996).
The operators’ attempt to convince us to stay the Judge’s order fails at the first prong of
this test, as their claims are not likely to succeed before the Circuit Court. They are appealing our
finding that they interfered with the complainants’ rights under section 105(c) of the Mine Act,
30 U.S.C. § 815(c), and our affirmance of the Judge’s remedial order requiring CEO Robert
Murray to read a statement.
On the first issue all five Commissioners concluded that CEO Murray’s PowerPoint
presentation to miners constituted interference with miners’ rights to make anonymous safety
complaints to MSHA under section 103(g) of the Mine Act, 30 U.S.C. § 813(g).1 38 FMSHRC
2006, 2018 (Aug. 2016). Although the Secretary’s use of the test for interference contained in
UMWA on behalf of Franks v. Emerald Coal Resources, L.P., 36 FMSHRC 2088, 2108 (Aug.
2014) (sep. op. of Chairman Jordan and Comm’r Nakamura) may be an issue presented for
review by the D.C. Circuit, our colleagues do not explain why the operator is likely to succeed in
persuading the Court to rule in its favor and reject this test. We note that the D.C. Circuit readily
utilized this standard in a recent interference case in which neither party challenged it. Wilson v.
FMSHRC, 863 F.3d 876, 882-83 (D.C. Cir. 2017).
Moreover, when the Commission issued its first decision in this case, our colleagues
concluded that it was unnecessary to even consider the issue of the proper test for interference
because of their conclusion that “the filing of complaints under section 103(g) clearly motivated
the offending portions of the Respondent’s presentations. . . . either of [the] competing tests
would arrive at the same result.” 38 FMSHRC at 2012 n.11. Similarly, we stated in our separate
opinion that the Administrative Law Judge was correct in considering CEO Murray’s filing of a
federal suit against witnesses in this matter to be a bad-faith attempt to intimidate those
witnesses. Thus, even if the Court were to rule that animus is a necessary prerequisite for finding
interference, the four present Commissioners have concluded it existed. Therefore, CEO Murray
is unlikely to succeed on the merits.

1

CEO Murray made PowerPoint presentations to each shift of miners at each of the five
mines involved in this case where he informed miners that they must report to mine management
any safety complaint made to MSHA. 38 FMSHRC at 2008.

40 FMSHRC Page 773

As to the second issue, the Respondents repeatedly failed to raise the issue when the case
was in litigation before the Commission. Accordingly, all four Commissioners held that “[i]n
light of [the operators’] multiple failures to make plain to the Judge any objection to CEO
Murray being required to personally read a statement as part of the remedy, we affirm in result
the Judge’s decision on remand.” 40 FMSHRC 261, 268 (Mar. 2018).
Accordingly, the Respondents have not demonstrated a likelihood of success based on the
merits of their arguments on appeal.
Our vote to deny is also based on the fact that nearly two-and-half years have passed
since the Judge’s November 2015 order requiring that CEO Murray read a statement to the
miners to correct the previous violative PowerPoint presentation he had made. Now that the
matter is pending in the court of appeals, it would conceivably take at least another year or more
before this case is resolved. Under these circumstances, if a stay is granted but the operator
ultimately loses its appeal, there could be a delay of over three years between the time the Judge
initially ordered this remedy and compliance with the Judge’s order. We thus disagree with the
operators’ contention that a stay would be in the public interest.
Finally, we would be remiss if we failed to comment on the operators’ assertion that CEO
Murray will suffer irreparable harm if he is compelled to read the statement drafted by the Judge.
As a threshold matter, we have taken into account that the Judge’s order permits CEO Murray to
read the statement through a video conference instead of traveling to each mine and reading the
statement in person (as he did with the violative PowerPoint presentation). 38 FMSHRC 2695,
2700-01 (Oct. 2016) (ALJ). Thus, CEO Murray would not have to experience direct contact with
miners in reading his statement.

40 FMSHRC Page 774

In addition, although we understand the objection to “compelled speech,” we cannot
identify the harm suffered by a manager who is ordered by a Judge to tell his employees that, in
the words of the statement drafted by the Judge, “You have every right to make a complaint to
MSHA without notifying any person at the mine,” and “You have a right, under section 103(g)
of the Mine Act, to make those reports anonymously and confidentially,” and “All miners have a
right to make a complaint to MSHA and all miners are protected from retaliation or adverse
action for making a Section 103(g) complaint.” Id. at 2699-2700. Yes, CEO Murray would only
be reinforcing these bedrock principles of the Mine Act because the Judge ordered him to do so.
Yet we fail to see how this rises to the level of “irreparable harm.” Nor do we find CEO
Murray’s reading of the statement drafted by the Judge to be a “punitive” remedy, as alleged by
our colleagues. We suspect that the drafters of the Mine Act would agree.
For the foregoing reasons, we would deny the operators’ motion for a stay pending
appeal.

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner

40 FMSHRC Page 775

Appendix A

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) on behalf
of RICK BAKER and RON
BOWERSOX
and
UNITED MINE WORKERS OF
AMERICA INTERNATIONAL UNION,
Intervenor
v.
OHIO COUNTY COAL CO.,
CONSOLIDATION COAL COMPANY,
MURRAY AMERICAN ENERGY, INC.,
and MURRAY ENERGY CORPORATION
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) on behalf
of ANN MARTIN and RON
BOWERSOX
and
UNITED MINE WORKERS OF
AMERICA INTERNATIONAL UNION,
Intervenor
v.
HARRISON COUNTY COAL CO.,
CONSOLIDATION COAL COMPANY,
MURRAY AMERICAN ENERGY, INC.,
and MURRAY ENERGY CORPORATION

40 FMSHRC Page 776

Docket Nos.

WEVA 2015-584-D
WEVA 2015-585-D
WEVA 2015-586-D
WEVA 2015-587-D

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) on behalf
of RAYMOND COPELAND and RON
BOWERSOX
and
UNITED MINE WORKERS OF
AMERICA INTERNATIONAL UNION,
Intervenor
v.
MONONGALIA COUNTY COAL CO.,
CONSOLIDATION COAL COMPANY,
MURRAY AMERICAN ENERGY, INC.,
and MURRAY ENERGY CORPORATION
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) on behalf
of MICHAEL PAYTON and RON
BOWERSOX
and
UNITED MINE WORKERS OF
AMERICA INTERNATIONAL UNION,
Intervenor
v.
MARION COUNTY COAL CO.,
CONSOLIDATION COAL COMPANY,
MURRAY AMERICAN ENERGY, INC.,
and MURRAY ENERGY CORPORATION

40 FMSHRC Page 777

ADMINISTRATIVE LAW JUDGE DECISIONS

40 FMSHRC Page 778

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
721 19th St. Suite 443
Denver, CO 80202-2500
TELEPHONE: 303-844-5266 / FAX: 303-844-5268

May 3, 2018
CIVIL PENALTY PROCEEDING

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

Docket No. LAKE 2018-0020
A.C. No. 12-02409-448333

v.
NALC, LLC,
Respondent.

Mine: 243 Quarry
DECISION

Appearances:

Dan Venier, Conference & Litigation Representative, and Suzanne Dunne,
Esq., Office of the Solicitor, U.S. Department of Labor, MSHA, Chicago,
Illinois, for Petitioner
Dana Boyd and Sonja Cowles, NALC, LLC, Cloverdale, Indiana, for
Respondent

Before:

Judge Simonton
I. INTRODUCTION

This Simplified Proceedings docket is before me on a petition for assessment of civil
penalty filed by the Secretary of Labor, acting through the Mine Safety and Health
Administration, pursuant to the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30
U.S.C. §801.1 This case involves two section 104(a) citations issued to NALC, LLC (“NALC” or
“Respondent”), on July 24, 2017.

1

In this decision, the transcript, the Secretary’s exhibits, and Respondent’s exhibits are
abbreviated as “Tr.,” “Ex. S–#,” and “Ex. R–#,” respectively.

40 FMSHRC Page 779

A hearing was held on March 15, 2018, in Indianapolis, Indiana. MSHA Inspector Jeffery
L. Cook testified for the Secretary. Dana Boyd presented the case and testified for NALC.2 At
hearing, the parties agreed to the following stipulations of fact included in their prehearing
statements:
1. NALC, LLC is engaged in mining operations in the United States, and its mining
operations affect interstate commerce.
2. NALC, LLC is the operator of the 243 Quarry, MSHA I.D. No. 12-02409.
3. NALC, LLC is an “operator” as defined in Section 3(d) of the Federal Mine Safety and
Health Act of 1977, as amended (Mine Act), 30 U.S.C. § 803(d).
4. NALC, LLC is subject to the jurisdiction of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et. seq.
5. The Administrative Law Judge has jurisdiction in this matter.
6. The subject citations and orders were properly served by a duly authorized representative
of the Secretary upon an agent of NALC, LLC on the dates and places stated therein, and
may be admitted into evidence for the purpose of establishing their issuance.
7. The exhibits to be offered by NALC, LLC and the Secretary are stipulated to be authentic
but no stipulation is made as to their relevance or the truth of the matters asserted therein.
8. The assessed penalties, if affirmed, will not impair NALC, LLC’s ability to remain in
business.3

2

NALC did not present any formal witnesses at hearing. The court swore in Mr. Boyd as
Respondent’s pro se representative in order to ensure that he would be under oath should his
presentation of the case include personal testimony. See Tr. 7–8. The court allowed Dan Venier,
the representative for MSHA, to cross-examine Mr. Boyd when appropriate. Tr. 8.
3

At hearing, Respondent expressed its concern that, while the Secretary’s proposed
penalties would not impair its ability to remain in business, potential future issues may arise from
a finding of liability. Tr. 9. Specifically, Respondent noted that if it were to accept liability for
Citation No. 8954275, the excessive history criteria in potential future assessments may impact
its operations due to its widespread use of the particular model of scalping screen at issue. See
Tr. 9–11. At hearing, the court accepted the stipulation as written and noted that its language was
applicable only to the proposed penalty amounts and not to findings of negligence or gravity. Tr.
10–11.

40 FMSHRC Page 780

9. Mine Safety and Health Administration (MSHA) Inspector Jeffery L. Cook was acting in
his official capacity as an authorized representative of the Secretary of Labor when aforesaid
citations were issued.
See Tr. 8–12; Secretary’s Prehearing Report at 2. At hearing, the Secretary argued that the
citations should be upheld as written. NALC contested the fact of violation and the Secretary’s
S&S and negligence designations for both citations. The parties agreed to make closing
arguments at the hearing in lieu of submitting post-hearing briefs. Based upon the parties’
stipulations and my review of the witness testimony and of the entire record, I make the
following findings.
II. LEGAL PRINCIPLES
A. Establishing a Violation
The Commission has long held that, “In an enforcement action before the Commission,
the Secretary bears the burden of proving any alleged violation.” Jim Walter Res., Inc., 9
FMSHRC 903, 907 (May 1987); Wyoming Fuel Co., 14 FMSHRC 1282, 1294 (Aug. 1992). The
Commission has described the Secretary’s burden as:
The burden of showing something by a “preponderance of the evidence,” the most
common standard in the civil law, simply requires the trier of fact “to believe that
the existence of a fact is more probable than its nonexistence.”
RAG Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept. 2000); Garden Creek Pocahontas
Co., 11 FMSHRC 2148, 2152 (Nov. 1989).
The Secretary may establish a violation by inference in certain situations. Garden Creek
Pocahontas Co., 11 FMSRC at 2153. Any such inference, however, must be inherently
reasonable, and there must be a rational connection between the evidentiary facts and the
ultimate fact inferred. Mid-Continent Res., 6 FMSHRC 1132, 1138 (May 1984).
If the Secretary has established facts supporting the citation, the burden shifts to the
Respondent to rebut the Secretary’s prima facie case. Construction Materials, 23 FMSHRC 321,
327 (March 2001) (ALJ).
B. Significant and Substantial
A violation is significant and substantial (S&S), “if based upon the particular facts
surrounding the violation there exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature.” Cement Division, National Gypsum
Co., 3 FMSHRC 822, 825 (Apr. 1981).
In order to uphold a citation as S&S, the Commission has held that 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

40 FMSHRC Page 781

likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood
that the injury in question will be of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC
1, 3–4 (Jan. 1984).
The Commission has held that the second element of the Mathies test addresses the extent
to which a violation contributes to a particular hazard. Newtown Energy, Inc., 38 FMSHRC
2033, 2037 (Aug. 2016). Analysis under the second step should thus include the identification of
the hazard created by the violation and a determination of the likelihood of the occurrence of the
hazard that the cited standard is intended to prevent. Id. at 2038. At the third step, the Secretary
must prove there was a reasonable likelihood that the hazard contributed to by the violation will
cause an injury, not a reasonable likelihood that the violation, itself, will cause injury. West
Ridge Resources, Inc., 37 FMSHRC 1061, 1067 (May 2015) (ALJ), citing Musser Eng'g, Inc., 32
FMSHRC 1257, 1280–81 (Oct. 2010. Evaluation of the four factors is made assuming continued
normal mining operations. U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984).
C. Negligence
Under the Mine Act, operators are held to a high standard of care, and “must be on the
alert for conditions and practices in the mine that affect the safety or health of miners and to take
steps necessary to correct or prevent hazardous conditions or practices.” 30 C.F.R. § 100.3(d).
The Mine Act defines reckless disregard as conduct which exhibits the absence of the slightest
degree of care, high negligence as actual or constructive knowledge of the violative condition
without mitigating circumstances; moderate negligence as actual or constructive knowledge of
the violative condition with mitigating circumstances; and low negligence as actual or
constructive knowledge of the violative condition with considerable mitigating circumstances. 30
CFR § 100.3: Table X.
The Commission and its judges are not bound to apply the part 100 regulations that
govern MSHA’s determinations addressing the proposal of civil penalties. Newtown Energy,
Inc., 38 FMSHRC 2033, 2048 (Aug. 2016), citing Brody Mining, LLC, 37 FMSHRC 1687,
1701–03 (Aug. 2015). The Commission instead employs a traditional negligence analysis,
assessing negligence based on whether an operator failed to meet the requisite standard of care.
Brody, 37 FMSHRC at 1702. In doing so the Commission considers what actions a reasonably
prudent person familiar with the mining industry, the relevant facts, and the protective purpose of
the regulation, would have taken under the same circumstances. Id. Commission judges are thus
not limited to an evaluation of mitigating circumstances but may instead consider the totality of
the circumstances holistically.” Id.; see also Mach Mining, 809 F.3d 1259, 1264 (D.C. Cir.
2016).

40 FMSHRC Page 782

D. Penalty
It is well established that Commission administrative law judges have the authority to
assess civil penalties de novo for violations of the Mine Act. Sellersburg Stone Company, 5
FMSHRC 287, 291 (March 1983). The Act requires that in assessing civil monetary penalties,
the Commission ALJ shall consider the six statutory penalty criteria:
(1) the operator’s history of previous violations, (2) the appropriateness of such
penalty to the size of the business of the operator charged, (3) whether the
operator was negligent, (4) the effect on the operator’s ability to continue in
business, (5) the gravity of the violation, and (6) the demonstrated good faith of
the person charged in attempting to achieve rapid compliance after notification of
a violation.
30 U.S.C. 820(i).
III. FINDINGS OF FACT AND CONCLUSIONS OF LAW
NALC operates the 243 Quarry, a surface limestone operation located in Putnam County,
Indiana. On July 24, 2017, MSHA Inspector Jeffery L. Cook visited the 243 Quarry to perform a
routine inspection.4 He was accompanied by NALC lead man Chad Dunham (“Dunham”). Cook
issued the two section 104(a) citations at issue in this case. Citation No. 8954273 as modified
alleges a violation of 30 C.F.R. § 56.20003(a) for the failure to keep the stairway leading to the
north screen deck clean and orderly. Citation No. 8954275 alleges a violation of 30 C.F.R §
56.14110 for the failure to provide adequate side shields or similar devices on the scalping screen
to prevent a fall of material hazard.
A. Citation No. 8954273
Inspector Cook began his inspection prior to the start of mine operations on the morning
of July 24, 2018. Approximately one hour into the inspection, Cook approached the stairway to
the north screen deck. Though NALC had performed some maintenance in the general area,
Cook observed loose material covering the bottom two steps of the stairway. Tr. 20–21, 28–30.
The material’s top layer was granular and unconsolidated with a slick, clay-like substance
underneath. Tr. 25. Cook also observed three footprints in the loose material. Tr. 22. He
determined that one footprint faced toward the stairway while the other two faced away,
indicating that at least one individual walked through the material on the way up and on the way
down the stairway. Tr. 45; Exs. S–5, S–6. Cook believed that the material posed a slip and fall
hazard to miners walking up or down the stairs. Tr. 20.
Later that day, Mine Foreman Dwayne Foster told Cook that he “told those guys when
they go up there and clean that around the screen deck, they’re supposed to clean that up before
4

Inspector Cook has served as an MSHA Inspector for approximately 2 and one half
years. Tr. 17. He worked in the mining industry for 11 years as a mechanic, driller, shooter, and
electrician. Id. He has an associate’s degree in engineering. Id.

40 FMSHRC Page 783

they go up there.” Tr. 25. Inspector Cook assumed that Foster’s statement referred to the cited
loose material covering the bottom steps. Id. He issued Citation No. 8954273, which alleged:
Safe access was not maintained to the ladder for the walkway up to the North
screen. There was loose and hard material covering above the second step that
measured 29 inches long. The condition exposes miners to lost work
day/restricted duty type hazards. There were foot prints in the material and miners
are in the area daily. This condition had not been reported on the last area exam.
Ex. S–1.
The Secretary subsequently modified the citation to allege a violation of 30 C.F.R. §
56.20003(a), alleging that NALC failed to keep the stairway clean and orderly. Ex. S–4.
Inspector Cook designated the citation S&S, reasonably likely to result in lost workdays or
restricted duty, and the result of Respondent’s moderate negligence. NALC terminated the
citation by clearing the material from the stairway. Ex. S–3. The Secretary assessed a penalty of
$116.00.
NALC challenges the fact of violation and the Secretary’s S&S and negligence
designations. NALC argues that its miners were not exposed to the material and that they would
have cleared the stairway before using it. Tr. 33–34. NALC also contends that the negligence
designation should be reduced to low because it performed some maintenance in the area and the
condition existed for a brief period of time. Tr. 33–34, 39–40.
1. The Violation
30 C.F.R. § 56.20003(a) requires that “[w]orkplaces, passageways, storerooms, and
service rooms shall be kept clean and orderly” at all mining operations. The Secretary must
establish that (1) the cited area is a “workplace,” “passageway,” “storeroom,” or “service room,”
and (2) the area is not being kept clean and orderly. See Tim M. Ball, employed by Mountain
Materials, Inc., 38 FMSHRC 1799, 1808 (July 2016) (ALJ); Ames Construction, 37 FMSHRC
536, 540 (Mar. 2015) (ALJ).
The stairway was undisputedly a passageway leading to the north screen deck. Miners
worked in the area and used the stairway regularly to access the screen. Tr. 26. The photographs
clearly show that the stairway was not kept clean and orderly. Exs. S–5, S–6, S–7. The bottom
two steps of the stairway were covered in loose material to the extent that a miner would be
unable to climb the stairway without stepping through the material. Exs. S–5, S–7. Three
footprints are visible in the loose material and appear to be facing both toward and away from
the stairway, indicating that one or more individuals walked through the material on the way up
and down the steps. Exs. S–5, S–6.
NALC contends that no miners were exposed to the condition because the mine was
closed from the end of the last shift on Saturday until the Monday morning inspection, and that
miners would have cleaned up the material before using the stairway. Tr. 27–30, 34. Though
NALC did not state as much at hearing, I interpret this argument to challenge the fact of

40 FMSHRC Page 784

violation in that the mine’s maintenance procedures would have cleared the buildup before
miners traveled through the area. In support of this argument, NALC asserts that the footprints in
the Secretary’s photographs cannot be proven to belong to a miner. Tr. 31. Boyd testified at
hearing that the footprints could reasonably belong to a trespasser. Id. He noted that trespassing
and theft are recurrent problems at the mine due to a neighboring gun range and correctional
facility. Id.
I find that the footprints can be reasonably inferred to have belonged to a miner. I credit
Cook’s testimony that Foreman Foster reportedly instructed the miners to clean up the material
before using the stairway. Tr. 25. Foster’s comments were not disputed at hearing and credibly
suggest that he was aware of the buildup and that the miners ignored his instructions and used
the stairway without first clearing the steps. See Tr. 35. NALC performed maintenance in the
area surrounding the stairway at the end of the previous shift, and it is reasonable to infer that a
miner walked up the stairs to perform maintenance on the screen deck itself without stopping to
clean the steps first.
While I do not doubt Boyd’s assertion that trespassing is an issue at the 243 Quarry,
NALC provided no additional information to support its claim that it was a trespasser who left
the footprints over the weekend prior to the inspection. Cook testified that he normally asks the
operator about instances of theft during his inspection, and that no NALC employee notified him
of any trespassing or theft issues on the property. Tr. 46. Absent any verifiable evidence
regarding trespassing in this particular area of the mine, I find that the footprints likely belonged
to a miner and NALC therefore failed to keep the stairway clean and orderly.
Accordingly, I affirm the violation of § 56.20003(a).
2. Significant & Substantial
Inspector Cook designated the citation as S&S and reasonably likely to result in lost
workdays or restricted duty. I have already determined that NALC violated section 56.20003(a),
thereby satisfying the first element of the Mathies test for an S&S violation.
To prove the second Mathies element, the Secretary must demonstrate the reasonable
likelihood of the occurrence of the hazard that section 56.20003(a) is designed to prevent.
Newtown Energy, Inc., 38 FMSHRC at 2037. Section 56.20003(a) requires that all workplaces,
passageways, storerooms, and service rooms shall be kept clean and orderly. 30 C.F.R. §
56.20003(a). The purpose of section 56.20003(a) is to prevent the hazard of miners slipping,
falling, or tripping on loose materials in areas where they work or travel. NALC contends that
the violation was not likely to contribute to a hazard because miners would have cleared the
material before using the stairs. Tr. 33–35. As determined above, however, at least one miner
stepped through the material to access the stairway. The material was loose and slick, and
covered the bottom two steps of the stairway. Tr. 25; Exs. S–6, S–7. NALC’s failure to keep the
steps clean therefore contributed to the reasonable likelihood of a trip, slip, or fall hazard. The
Secretary has proven the second element of the Mathies test.

40 FMSHRC Page 785

To prove the third Mathies element, the Secretary must show that the hazard was
reasonably likely to result in an injury. Newtown, 38 FMSHRC at 2038. Here, the built up
material was both loose and slick and therefore conducive to slips or falls. The buildup covered
two entire steps and miners would have to walk through the material in order to climb the
stairway. Tr. 25–26; Exs. S–6, S–7. Assuming the hazard has been realized, if a miner were to
slip or trip on the material, they could fall backwards from a height of the steps to the ground or
stumble forward and make contact with the stairway itself. Given the consistency and location of
the material on the steps, the Secretary has shown that the slip and fall hazard was reasonably
likely to result in injury.
Finally, to prove the fourth Mathies element the Secretary must show that the injury
resulting from the hazard was reasonably likely to be serious. Newtown, 38 FMSHRC at 2038.
Inspector Cook testified that slips and falls from stairway steps can result in serious injuries such
as a ligament or muscle strain or possibly a broken bone that could result in lost workdays or
restricted duty. Tr. 26. I credit Cook’s assessment and conclude that the resulting injury would
reasonably likely be serious.
I affirm the Secretary’s S&S designation for this violation, and for the same reasons I
affirm the gravity designation of reasonably likely to result in lost work days or restricted duty.
3. Negligence
The Secretary attributes the violation to NALC’s moderate negligence. The Secretary
contends that the condition was in plain view and miners should have seen the buildup and
known to clean the steps. Tr. 26. NALC contends that it performed general maintenance in the
area using a skid steer. Tr. 41–42. It posits that the material may have been back dragged by the
skid steer during previous maintenance efforts or blown from the conveyor on to the steps. See
Tr. 41–43. Respondent also contends that it was not aware of the condition over the weekend
while the mine was closed and that the miners intended to clear the material before resuming
mining operations that day. Tr. 34, 36–37.
Respondent clearly performed general maintenance in the area at the end of the previous
shift on Saturday. Exs. S–5, S–7. However, the photographs suggest that the skid steer created
the condition. The wind could not have blown that much material on to the steps without
disturbing the footprints present in the buildup. See Exs. S–5, S–6. Furthermore, the defined
edges of material surrounding the stairway indicate that the steer likely pushed the material onto
the steps. See Exs. S–5, S–6, S–7. The condition was obvious, and NALC offered no credible
explanation for why it cleaned the area near the stairway during Saturday’s shift but failed to
notice or clear the stairway. Tr. 30; Ex. S–7. As discussed above, the footprints indicate that at
least one miner walked through the material without cleaning it up.
The condition was not extensive, however, and I credit NALC’s assertion that it intended
to clear the material that morning. Foreman Foster’s comments to Cook imply that management
instructed the miners to clean up the material and that they had not yet done so. Tr. 25, 34–35.
Cook agreed that he did not see any miners beginning active work in the area when he inspected
the area, suggesting they may not yet have had the opportunity to clear the steps. Tr. 33. Based

40 FMSHRC Page 786

upon NALC’s maintenance efforts in the area, management’s intent to clean the steps, and the
brief time that miners were exposed to the condition, I modify the Secretary’s negligence
designation from moderate to low.
4. Penalty
The Secretary proposed a penalty of $116.00. NALC’s history of previous violations is
minimal, and the parties stipulated that the Secretary’s proposed penalty amount is consistent
with the violation and would not affect NALC’s ability to remain in business. See Ex. S–17; Jt.
Stip. 8. As discussed in detail above, I affirmed the Secretary’s S&S and gravity determinations
and reduced the operator’s negligence from moderate to low. NALC promptly took steps to
terminate the citation and clear the stairs. Ex. S–8. Accordingly, I assess a reduced penalty of
$75.00.
B. Citation No. 8954275
Inspector Cook next inspected NALC’s scalping screen deck. Cook and Dunham
approached the screen from the electrical room to the right and ascended the stairway to inspect
the screen while it ran. Tr. 51, 63–64. As they were observing the deck, the screen ejected a large
rock. Tr. 51. The rock missed striking Dunham by about six inches, hit the hand rail midway up
the stairway, and broke into two pieces before falling 30 feet to the ground below. Tr. 51; Ex. S–
9. The rock measured 9 inches by 16 inches by 8 inches and landed approximately 14 feet from
the side of the screen deck. Id. Cook issued Citation No. 8954275, which alleged:
The side shields on the scalping screen were not extended far enough to prevent a
fall of material hazard. A rock was observed falling from the screen deck striking
the handrail falling to the ground during the inspection. The rock measured 9
inches x 16 inches x 8 inches. Employees working in and around the area were
exposed to the possible injury from rocks falling approximately (30) thirty feet.
Employees work in this area on a daily basis.
Ex. S–9. Inspector Cook designated the citation S&S, reasonably likely to be permanently
disabling, and the result of NALC’s moderate negligence. The Secretary later modified the
negligence designation to low. Ex. S–12. NALC terminated the citation by adding an additional
18 inches of guarding to the screen’s side shields. Ex. S–16. The Secretary assessed a penalty of
$116.00.
NALC challenges the fact of violation and the Secretary’s S&S and negligence
designations. NALC contends that no miners were exposed to rocks falling from the screen
because the plant’s various safety measures prevented miners from approaching the screen while
it was running. Tr. 61–62. NALC also contends that it took various steps to mitigate any
potential hazard generated by the screen. Tr. 59–61.

40 FMSHRC Page 787

1. The Violation
30 C.F.R. § 56.14110 provides that “[i]n areas where flying or falling materials generated
from the operation of screens, crushers, or conveyors present a hazard, guards, shields, or other
devices that provide protection against such flying or falling materials shall be provided to
protect persons.” Any installed guard or shield must provide actual protection against the danger
of falling rocks. See Northern Aggregate Inc., 37 FMSHRC 562, 579 (Mar. 2015) (ALJ)
(affirming violation where signs on the crusher warning of ejecting rocks were not readily
observable or obvious enough to keep employees out of the area).
The screen at issue presented a hazard of flying or falling materials. NALC does not
dispute that the screen ejected a large rock during the inspection. Tr. 55. The rock was large and
posed a hazard to Cook and Dunham, and would have posed to a hazard to any miner working or
traveling within 14 feet of the screen. Tr. 51–52.
NALC did not provide actual protection against the falling material hazard posed by the
screen. While Respondent installed additional guards on the scalping screen prior to the
inspection, the guards did not prevent the ejection or protect Cook or Dunham from the falling
rock. There is no evidence of barriers or barricades that would ensure miners maintained a safe
distance from screen, and Cook testified that neither Dunham nor any other miner notified him of
the plant’s policy that miners should not approach the screen while in operation. Tr. 71.
NALC provided evidence of signage warning of the hazard posed by the screen. See Tr.
57; Ex. R–F. However, the signage was not prominent enough to warn individuals of the danger
from all directions. See Ex. R–F. The photographs show that the sign was posted on the side of
the stairway’s top platform, and one could walk up the steps to the screen deck without seeing it
at all. Id. Furthermore, NALC provided no further evidence of signage on other sides of the
screen. I therefore find that NALC did not provide actual protection from the hazard of falling
rocks as required by the standard. Accordingly, I affirm the violation of section 56.14110.
2. Significant and Substantial
Inspector Cook designated the violation S&S because the rock fell and nearly struck
Dunham, which could have resulted in serious injuries. I have already found that NALC violated
section 56.14110, thereby satisfying the first element of the Mathies test.
In regards to the second Mathies element, the Secretary must demonstrate the reasonable
likelihood of the occurrence of the hazard that section 56.14110 is designed to prevent. Section
56.14110 requires that operators install guards, shields, or other devices in order to protect
miners from flying or falling material hazards generated by operating screens, crushers, or
conveyors. 30 C.F.R. §56.14110. The express language of the standard anticipates the discrete
safety hazard of falling or flying materials contacting miners. See Ash Grove Cement Co., 38
FMSHRC 2151, 2169 (Aug. 2016) (ALJ).
NALC contends that the violation did not contribute to the hazard because the plant’s
safety measures limit miners’ exposure to falling material generated by the screen. Tr. 61–62. In

40 FMSHRC Page 788

addition to the installation of side guards and signs, NALC argues that its miners are trained to
only approach the scalping screen to perform maintenance work and that all maintenance work is
done when the plant is shut down. Tr. 58, 62. Any miners in the area would be operating
equipment while the screen was running. Tr. 62. NALC thus argues that if it weren’t for the
inspection, no miner would have been in the area and the violation would not have contributed to
the hazard. Tr. 78–79.
I have already held that NALC’s signage and initial guarding installation did not provide
actual protection against flying or falling rocks. Since NALC did not provide evidence of
barricades or any other measures that prevent rocks flying or falling from the screen, NALC
essentially posits that the violation did not contribute to the hazard because its miners would
exercise caution near the screen. I am constrained from considering this argument in my S&S
analysis.5 The Commission has held that whether miners would exercise caution is not relevant
in determining whether a violation is S&S. See Newtown, 38 FMSHRC at 2044 (citations
omitted) (Holding that mitigation by caution should not be considered in S&S analysis because
the hazard will continue to exist regardless of whether caution is exercised).
The facts surrounding the inspection clearly indicate that NALC’s failure to protect
against flying or falling rocks contributed to the reasonable likelihood that a rock would strike a
miner. Inspector Cook personally observed the rock eject over the screen’s side guarding and
come within six inches of striking Dunham. Tr. 54–55. NALC did not dispute this testimony. Tr.
55. The Secretary has met his burden of proof for the second Mathies element.
Regarding the third Mathies element, the Secretary argues that hazard of rock falling
from a screen and striking a miner was reasonably likely to result in injury because Dunham
would have been hurt if the ejected rock had struck him. Tr. 77. Assuming that the hazard has
been realized, I find that a rock falling and striking a miner would be reasonably likely to result
in an injury. Cook credibly testified that the rock would have injured Dunham had it made
contact. Tr. 52. The rock was quite large and was ejected with enough force to break on the
stairway and land 14 feet from the screen deck. Tr. 52; Ex. S–15. In the context of continued
normal mining operations, if a rock of a comparable or even smaller size struck a miner on the
deck, the steps, or the ground 30 feet below, it would almost certainly cause an injury. Tr. 52;
Exs. S–9, S–15. The large rock also landed nearly 14 feet away from the screen, indicating that
even miners attempting to maintain some distance from the screen could be struck and injured.
Tr. 51. Given the size of the rock that was ejected from the screen and the height from which the
rock fell, I find that the hazard would be reasonably likely to result in an injury. The Secretary
has therefore met the minimum threshold for proving the third element of the Mathies test.
Regarding the fourth Mathies element, the Secretary must show that the injury resulting
from the hazard is reasonably likely to be serious. The rock measured 9 inches by 16 inches by 8
5

Even if I were to consider NALC’s safety measures, it is undisputed that the measures
were not followed during the inspection. Cook and Dunham approached the screen on foot and
while it was running, in contravention of two of NALC’s safety policies. Tr. 55–56. Cook
testified that neither Dunham nor any other miner informed him that miners were trained to only
approach the screen when the plant was shut down. Tr. 71.

40 FMSHRC Page 789

inches and fell from a height of about 30 feet. Ex. S–9. Cook credibly testified that the rock
would have seriously injured Dunham, who was standing relatively close to the screen at the
time it was ejected. Tr. 52. If a rock of comparable size ejected and struck a miner on the
stairway or on the ground, the injury could be even worse. Id. I find that any injury resulting
from the hazard would undoubtedly result in permanently disabling injuries at the very least.
For the reasons above, I affirm the Secretary’s S&S and gravity determinations.
3. Negligence
Inspector Cook originally designated NALC’s negligence as moderate. Ex. S–9. The
Secretary later modified the negligence designation to low at conference.6 Tr. 68; Ex. S–11.
NALC contends that it went above and beyond the normal practice to protect its miners from
dangers posed by the scalping screen. Tr. 61.
I find that NALC was not negligent in light of the facts surrounding this violation. As
discussed above, NALC took a number of steps to ensure that its miners were not at risk of
injury from rocks that may eject from the screen. NALC installed an additional 32 inches of
guarding to the screen’s sides at the request of its miners and posted a sign on the steps of the
screen warning passerby of the danger of falling rocks. Tr. 68–69; Exs. R–A, R–C. Although
Cook testified that NALC’s decision to add the additional guarding demonstrates that NALC
knew that the screen posed a danger, the Secretary failed to question the respondent on the
frequency at which the screen ejected rocks or regarding any prior occurrences that may have
induced NALC to do so. See Tr. 69–70. Absent this evidence, I credit NALC’s assertion that it
added the guards at the behest of its miners and decline to further penalize NALC for installing
additional guarding, even if it proved insufficient.
NALC also trained its miners not to approach the general area while the scalping screen
was operating. Tr. 58–61. Boyd testified that miners only approached the screen for maintenance
purposes when the plant was shut down. Tr. 58. If miners did approach the screen while it was
running, they did so in equipment that provided additional protection. Tr. 62. While NALC’s
employees did not adhere to the plant’s safety policies during the inspection itself, I credit
Boyd’s testimony that Dunham was intimidated by Inspector Cook and the MSHA inspection
process, and thus did not object to Cook’s request to observe the running screen. Tr. 63–64.
Cook testified he had no reason to dispute this testimony or to disbelieve that NALC generally
enforced its safety policies, and the Secretary provided no evidence to the contrary. Tr. 71.
All of these factors indicate that NALC took significant steps to ensure that miners were
both aware of and protected from any dangers that the scalping screen might pose while in
operation. I therefore find that NALC’s actions were commensurate with that of a reasonably
prudent miner. Accordingly, I modify the Secretary’s negligence designation from low to none.

6

Inspector Cook was not present at the informal conference and was unable to testify as
to why the Secretary opted to modify the negligence designation from moderate to low. Tr. 69.

40 FMSHRC Page 790

4. Penalty
The Secretary proposed a penalty of $116.00. NALC’s history of previous violations is
quite low, and the parties stipulated above that the Secretary’s proposed penalty amount is
consistent with the violation and would not affect NALC’s ability to remain in business. See Ex.
S–17; Jt. Stip. 8. I found that the violation was S&S and reasonably likely to result in a
permanently disabling injury. I reduced NALC’s negligence from low to none. NALC took
immediate steps to terminate the citation by adding 18 inches of guarding to the sides of the
screen. Accordingly, I assess a penalty of $50.00.
IV. ORDER
The Respondent, NALC, LLC, is hereby ORDERED to pay the Secretary of
Labor the total sum of $125.00 within 30 days of this order.7

/s/ David P. Simonton
David P. Simonton
Administrative Law Judge

Distribution: (U.S. First Class Mail)
Dan L. Venier, Conference & Litigation Representative, U.S. Department of Labor, MSHA, 515
West 1st Street, #333, Duluth, MN 55802
Dana Boyd, NALC, LLC, 8090 South State Road 243, Cloverdale, IN 46120

7

Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION,
U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO
63179-0390

40 FMSHRC Page 791

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
721 19TH STREET, SUITE 443
DENVER, CO 80202-2536
303-844-3577

May 3, 2018
PEABODY TWENTYMILE MINING,
LLC,
Contestant,

CONTEST PROCEEDINGS
Docket No. WEST 2017-0247-R
Order No. 9025723;02/19/2017

v.
Docket No. WEST 2017-0248-R
Citation No. 9025724;02/19/2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Foidel Creek Mine
Mine ID 05-03836

Respondent
CIVIL PENALTY PROCEEDING
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Docket No. WEST 2017-0553
A.C. No. 05-03836-439555

v.
PEABODY TWENTYMILE MINING,
LLC,
Respondent

Foidel Creek Mine
DECISION

Appearances:

Kristi Henes, Esq., Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado for Petitioner;
Christopher G. Peterson, Esq., and Benjamin J. Ross, Esq., Jackson Kelly
PLLC, Denver, Colorado for Respondent.

Before:

Judge Manning

These cases are before me upon notices of contest filed by Peabody Twentymile Mining,
LLC (“Twentymile”) and a petition for assessment of civil penalty filed by the Secretary of
Labor, acting through the Mine Safety and Health Administration (“MSHA”), against
Twentymile pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”). The parties presented testimony and
documentary evidence at a hearing held in Steamboat Springs, Colorado, and filed post-hearing
briefs. A section 104(d)(1) citation and a section 107(a) order were adjudicated at the hearing.

40 FMSHRC Page 792

Twentymile operates the Foidel Creek Mine, an underground coal mine in Routt County,
Colorado.
The citation and order were issued on February 19, 2017 by MSHA Inspector Rufus
Taylor during a regular inspection of the mine. Inspector Taylor was accompanied by his
supervisor Inspector Richard Eddy and by Twentymile’s Safety Compliance Officer Jordan
Gustafson. For reasons set forth below, I modify the citation to a section 104(a) citation and I
vacate the imminent danger order. Although I have not included a detailed summary of all
evidence or each argument raised, I have fully considered all the evidence and arguments.
I. DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW
A. Background
Inspector Taylor testified that he arrived at the mine at about 7:20 a.m. on Sunday,
February 19, 2017, and began his inspection. Tr. 15-18. While inspecting a bolter at about 1:00
p.m., the inspectors heard what Taylor described as a scream and then a second scream. Tr. 1821. At that point, both inspectors turned and observed what they described as a miner bent over
the trough of a feeder, approximately 100 feet away. Id. Taylor was concerned that the miner
may have fallen into the feeder. Tr. 21. When they went over to investigate, they saw that the
miner, David Lomas, was standing on the off-walkway side of the feeder, the feeder conveyor
was operating, and a shuttle car was dumping material into the feeder. Tr. 25, 31. Inspector
Taylor issued a verbal imminent danger order requiring Gustafson to remove the miner from the
off-walkway side. Tr. 22-23. The inspectors subsequently learned that what the inspectors
thought were screams were actually whoops of joy, as described below. Tr. 191.
For as long as anyone can remember and for at least the last 30 years, Twentymile has
used a method colloquially known as “fishing” to remove roof bolts, wood, and other extraneous
material from feeders. Tr. 135, 137-138. Fishing is more often used when an area of the mine is
being rehabilitated rather than when coal is being produced. Tr. 135-136. If the floor needs to be
graded, for example, Twentymile uses a continuous miner to grade the floor to remove material
that has heaved. Tr. 133, 178-179. The resulting material is loaded into shuttle cars and slowly
dumped into feeders that slowly load it onto conveyor belts to remove the material from the
mine. Tr. 135. This material is mostly rock and mud but also may contain roof bolts and other
extraneous metal parts that can damage conveyor belts. Tr. 136. Pieces of wood may also be
present. Tr. 285. The feeder is equipped with a pick breaker that can crush most of the material
before it dumps on the belt but, to protect the belts, Twentymile uses fishing to remove as many
metal pieces from the feeder as possible.1 Tr. 136. Metal and/or wood are capable of jamming
the pick breaker. Tr. 136-137, 166.
1

The feeder unit consists of a hopper, conveyor and pick breaker. Material is slowly
dumped into the hopper located on the inby end of the feeder unit. The material is moved along
the feeder by a chain conveyor from the hopper to the pick breaker at the outby end of the feeder.
Material is then dumped onto a conveyor belt and sent out of the mine. Throughout this decision
the phrase “feeder conveyor” refers to this chain conveyor on the feeder.

40 FMSHRC Page 793

Twentymile developed a written procedure for miners to follow when fishing. RX-7. In
order to fish material from the feeder, a miner takes a D-Ring, bends it into the shape of a hook
and attaches it to a piece of drill steel using electrical tape. Tr. 208, 211. The drill steel is
typically about five feet long. Tr. 219. The feeder is set to its lowest speed. Tr. 259. The feeder in
this case moved 1.42 feet per second. RX-18; Tr. 54, 277. The miner engaged in fishing
positions himself so he can see the shuttle car as it approaches. Tr. 138. He signals the shuttle car
operator to approach the feeder and to begin slowly dumping the material into the feeder. Tr.
138. He also signals the operator to stop dumping when the feeder is full or when he sees metal
or wood in the material. Tr. 138-139. The fishing miner then uses his hook to remove the object.
If the object the miner tries to hook weighs more than about 10-15 pounds, the D-Ring will
separate from the drill steel because it is only attached with tape. Tr. 219-220. A railing
surrounds parts of the feeder. Tr. 73, 84. The miner who is fishing can shut off power to the
feeder conveyor and the pick breaker by using an e-stop button on the side of the feeder or an estop cord that stretches across the feeder. Tr. 255-57. He can also lock-out and tag-out the feeder
if he sees a large object that needs to be removed or he can simply let it go through the pick
breaker and onto the belt. Tr. 202-204. Pat Sollars, the general manager of Peabody’s Colorado
operations, as well as Michael Zimmerman, the mine’s compliance manager, both testified that
no miner has ever been injured while fishing material out of a feeder. Tr. 137, 285.
Davis Lomas, the miner who was fishing on the day of the inspection, is not a mechanic
and does not perform maintenance at the mine. Tr. 180. He made a whooping sound at the time
of the inspection because he had been fishing for several 12 hour shifts and he found something
that he needed to hook. He testified that he “jokingly yelled [to another miner] woo hoo! Yea! I
got something.” Tr. 191. I credit this testimony.
B. Citation No. 9025724 – Fact of Violation
Inspector Taylor issued Citation No. 9025724 under section 104(d)(1) later that day. The
citation states, in part,
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.
When examined by this inspector the operator is failing to remove
power to company No. 237 feeder to block against motion on the 9
east longwall[.] There is miner with a piece of Roof Bolter steel
with a metal hook attached to the end removing wood and metal
from the moving feeder conveyor. The miner is on the off walkway
side of the feeder within approximately 41 inches of the moving
conveyor chain. In the event of the miner falling into the moving
conveyor chain the miner will be pulled into pick breaker causing
the miner to be fatality injured. This is obvious to the most casual
observer. The operator engaged in aggravated conduct constituting
in more than ordinary negligence in that after further review and

40 FMSHRC Page 794

interviewing the miner it is determined that the miner was
instructed to perform these functions.
The inspector charged a violation of section 75.1725(c) which provides that “[r]epairs 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.” 20
C.F.R. § 75.1725(c).
There is no dispute that Lomas was not performing repairs and no adjustments were
being made. Further, there is no dispute that the feeder conveyor and pick breaker were not
locked out at the time.2 The singular issue is whether Lomas’s action of fishing constituted
“maintenance” under the standard. I find that it did.
The Secretary argues that Lomas’s act of fishing metal and wood out of the feeder
amounted to preventive maintenance because it kept the feeder’s pick breaker and the attached
belt in good repair. Sec’y Br. 9. Roof bolts, if not fished out, could damage the pick breaker
and/or become wrapped around the pick breaker, which would require removal via a torch.
Similarly, metal objects could damage the belts and wood could jam the pick breaker. Sec’y Br.
8-9.
Twentymile asserts that it did not violate section 75.1725(c) because the miner was not
performing repairs or maintenance on the feeder. A feeder can operate without fishing. Fishing
does not correct a malfunction of the feeder, nor does it affect the feeder or pick breaker in any
manner. Twentymile Br. 7. Wood and metal do not stop the feeder from operating. Although, a
roof bolt may get stuck in the pick breaker, it cannot jam the breaker, and bolts are often too
heavy to remove via fishing. If a feeder stalls or an impediment must be removed from the pick
breaker, miners lock out and tag out the equipment. Twentymile Br. 7-8.
The Commission, relying on the ordinary meaning of the word, has defined
“maintenance” 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) aff’d, 156 F.3d 1076 (10th Cir. 1998) (quoting
Webster's Third New International Dictionary, Unabridged 1362 (1986) and A Dictionary of
Mining, Mineral, and Related Terms 675 (1968)). In Walker Stone the Commission found that
the breakup and removal of rocks clogging a crusher amounted to maintenance. Id. at 51. The
2

Following the submission of briefs the Secretary submitted a letter that was essentially a
reply brief in which he argued that Lomas’s testimony that he deactivated the feeder and pick
breaker should not be seriously considered due to the presence of more reliable evidence,
including testimony from Twentymile witnesses, that the feeder conveyor was running and the
chain was in motion when the inspection party arrived. Sec’y Reply 1. Twentymile filed a
response to the Secretary’s reply arguing that Lomas was in the best position to know what the
feeder was doing when he was fishing and that the feeder likely restarted after Lomas fished.
Twentymile Response 1. Although the parties dispute whether the feeder and pick breaker were
moving the entire time Lomas was fishing, it is clear that the equipment was not locked out, i.e.,
blocked against motion. In addition, the feeder was operating when the loader was dumping
material into the hopper while Lomas was looking to see if anything needed to be removed.

40 FMSHRC Page 795

Commission, in reaching its decision, focused on the purpose of the work being done, which was
to restore the crusher to a functioning condition, and reasoned that the purpose clearly fit within
the “broad phrase ‘repairs or maintenance of machinery or equipment[.]’” Id. Further, “[t]he
removal of rock was necessary to . . . ‘keep [the crusher] in a state of repair or efficiency.’”
The purpose of fishing was to remove metal and wood objects that could affect
equipment and/or the product shipped to customers.3 The primary concern with metal objects,
especially roof bolts, was that they could seriously damage the belt used to remove this material
from the mine. However, Sollars acknowledged that metal, along with wooden objects such as
cribs, could jam the pick breaker. Tr. 136-137, 166. Sollars also testified roof bolts that are not
fished out could wrap around the pick breaker and “would stay there and you’d go in later and
cut them out” with a torch while the equipment was locked out.4 Tr. 136, 166-167.
The Secretary specifically categorized Lomas’s activity as “preventive” maintenance.
While the term “preventive” is not included in the cited standard, I find that the term
“maintenance” may include actions of a “preventive” nature. “Preventive maintenance” involves
a “system that enables breakdowns to be anticipated and arrangements made to perform
necessary overhauls and replacements in good time.” Am. Geological Institute, Dictionary of
Mining, Mineral, and Related Terms 426 (2d ed. 1997). Essentially, it is anticipatory
maintenance designed to address potential problems before they come to fruition. In that way, it
fits squarely within the type of “care,” “upkeep,” and “keeping in good order” contemplated by
the Commission’s definition of “maintenance” in Walker Stone.
I find that Lomas was engaged in preventive maintenance. A jammed pick breaker is not
a functioning pick breaker. Lomas, by removing metal and wood objects from the feeder prior to
those objects reaching the pick breaker, was keeping the feeder and pick breaker in a functioning
condition by preventing a possible jam. Further, even if roof bolts wrapped around the pick
breaker did not affect its performance while operating, they certainly affected its efficiency in the
form of future downtime because at some point those bolts would need to be removed. Removal
of the bolts wrapped around the pick breaker required a miner to deenergize the equipment and
block it against motion before cutting the bolts out with a torch. Removing the bolts via fishing
prior to the bolts reaching the pick breaker prevented a shutdown and kept the pick breaker in a
state of efficiency. Further, there is no dispute that removing metal objects prevented possible

3

Zimmerman testified that wood fed through the pick breaker and dumped onto the belts
would not be separated from coal in the mine’s wash plant, since both wood and coal float, and
could potentially be sent to Twentymile’s customers. Tr. 285.
4

Although Twentymile, in its brief, attempted to qualify Sollar’s testimony by citing
Owens testimony that roof bolts were too heavy to remove via fishing, it is quite clear that
nothing prevented miners from attempting to remove bolts via fishing. Twentymile Br. 7. Owens
himself testified that he had attempted to do just that, but that the tape holding the hook to the
drill steel failed and the hook was pulled off. Tr. 220.

40 FMSHRC Page 796

damage to the belt.5 I find that the purposes of fishing fit within the “broad phrase ‘repairs or
maintenance of machinery or equipment[.]’” Walker Stone at 51; see also Sec’y of Labor v. Ohio
Valley Coal Co., 359 F.3d 531 (D.C. Cir. 2004) (broadly interpreting the standard’s “repairs or
maintenance” language to include not just actual physical work by the miner, but also a miner’s
assessment of a piece of equipment in order to identify an apparent problem if the miner doing
the assessment is in a location where their safety might be threatened by running machinery.)
Twentymile also argues that the Secretary is attempting to stretch the definition of
maintenance so as to require that a mine operator lock-out and tag-out all section equipment
when maintenance is required anywhere on the section. Twentymile Br. 8-9. While the Secretary
alluded to this at hearing, he did not expressly mention it in his brief. Nevertheless, I reject the
idea that in order to comply with the standard all equipment on the active section must be
deenergized. Rather, consistent with the D.C. Circuit’s finding in Ohio Valley Coal Co., it would
seem that only that equipment posing a potential safety threat to a miner in the location where
they are conducting the maintenance needs to be deenergized and blocked against motion.
Because Lomas was engaged in maintenance on the feeder while it was operating, I find
that the Secretary established a violation of the cited standard.
1. Fair Notice of the Requirements of Section 75.1725(c).
Twentymile argues that the court should vacate the subject citation because it lacked fair
notice of the requirements of section 75.1725(c). Twentymile Br. 11. A reasonably prudent
person would not have fair warning of the standard’s requirement because this mine has used
fishing to remove metal and wood for thirty years and MSHA has never suggested it violated a
mandatory standard. Many people, including numerous mine managers and apparently one
current MSHA inspector have fished materials out of the feeder while it was operating in the
belief that such activity was safe and did not violate a safety standard. Twentymile Br. 11.
Indeed, Twentymile had in place a standard work procedure spelling out how fishing should be
performed in a safe manner. RX-7 pp. 4-5.
The Secretary argues that Twentymile was on notice that fishing violated the mandatory
standard. Notice is only inadequate where a reasonably prudent mine operator would not have
understood that a specific condition was in violation of the standard. Sec’y Br. 9. The definition
of “maintenance” in Walker Stone has been established law for two decades and any reasonable
operator would know that working on materials being conveyed into a feeder without
deenergizing and blocking the equipment against motion was a violation of the cited standard.
Sec’y Br. 10. Twentymile had actual notice of the hazards associated with miners working near
5

Twentymile argues that because the conveyor belt and feeder are distinct pieces of
equipment, maintenance can be conducted on each piece of equipment without blocking the
other. Specifically, it argues that because fishing is aimed at protecting the belt, the act of fishing
does not constitute maintenance of the feeder and, in turn, does not require the feeder to be
locked out and tagged out. Twentymile Br. 10. However, the belt and feeder are linked because
the feeder would never be operated without the presence of the belt to remove the material from
the mine.

40 FMSHRC Page 797

the belt and this was the first time MSHA inspectors had ever observed the practice of fishing
during an inspection. Sec’y Br. 10.
The Secretary must provide fair notice of the requirements of a broadly written safety
standard. The language of section 75.1725(c) is “simple and brief in order to be broadly
adaptable to myriad circumstances.” Kerr-McGee Corp., 3 FMSHRC 2496, 2497 (Nov. 1981);
Alabama By-Products Corp., 4 FMSHRC 2128, 2130 (Dec, 1982). Such broadly written
standards must afford notice of what is required or proscribed. U.S. Steel Corp., 5 FMSHRC 3, 4
(Jan. 1983). In “order to afford adequate notice and pass constitutional muster, a mandatory
safety standard cannot be ‘so incomplete, vague, indefinite, or uncertain that [persons] of
common intelligence must necessarily guess at its meaning and differ as to its application’” Ideal
Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990)(citation omitted). A standard must “give the
person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he
may act accordingly.” Lanham Coal Co., 13 FMSHRC 1341, 1343 (September 1991).
When faced with a challenge that a safety standard failed to provide adequate notice of
prohibited or required conduct, the Commission has applied an objective standard, i.e., the
reasonably prudent person test. The Commission summarized this test as “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. (citations omitted). To put it another way, a safety standard cannot be construed to mean what
the Secretary intended but did not adequately express. “The Secretary as enforcer of the Act has
the responsibility to state with ascertainable certainty what is meant by the standards he has
promulgated.” Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 649 (5th Cir. 1976).
In Alan Lee Good d/b/a Good Construction, 23 FMSHRC 995 (Sept. 2001),
Commissioner Jordan and former Commissioner Beatty stated the following:
In applying the reasonably prudent person standard to a notice
question, the Commission has taken into account a wide variety of
factors, including the text of a regulation, its placement in the
overall enforcement scheme, its regulatory history, the consistency
of the agency's enforcement, and whether MSHA has published
notices informing the regulated community with “ascertainable
certainty” of its interpretation of the standard in question. Also
relevant is the testimony of the inspector and the operator's
employees as to whether certain practices affected safety. Finally,
we have looked to accepted safety standards in the field,
considerations unique to the mining industry, and the
circumstances at the operator's mine.
23 FMSHRC at 1005 (citations and footnote omitted). Although the Commission split as to
whether the operator in that case had been provided with fair notice, the Commission did not
disagree as to how the notice issue should be analyzed in future cases.

40 FMSHRC Page 798

The text of 75.1725, which is contained in “Subpart R- Miscellaneous,” is instructive
because it illustrates that the Secretary intended to include preventive maintenance within the
scope of subsection (c). Subsection (d) of the safety standard states that “[m]achinery shall not be
lubricated manually while in motion, unless equipped with extended fittings or cups.”
Lubrication is clearly a type of preventive maintenance because an operator will want to keep
machinery lubricated even when it is working perfectly to ensure that it continues to operate as
designed. If the Secretary did not consider preventive maintenance to be “maintenance” as that
term is used in the safety standard, subsection (d) would not be as necessary.6 This provision
provides notice to mine operators that the Secretary intends that preventive maintenance is
included in the coverage of the safety standard.
The Secretary did not provide, and the court has been unable to find through its own
research, any MSHA documents that provide guidance on how to interpret the standard in the
context of the facts of this case. MSHA’s Program Policy Manual, for example, does not address
any issues related to the interpretation of 75.1725(c) as relevant here. See V MSHA, U.S. Dep’t
of Labor, Program Policy Manual, Part 75, at 156-59 (2018).
Fishing has been conducted at the mine for a long time, perhaps 30 years or longer. It is
important to note however that, until Longwall Panel 9 was developed, fishing was not a
frequent occurrence. Prior to the development of this panel, fishing occurred once or twice a
year. Because of floor heaving problems in Panel 9, however, fishing was being conducted
monthly for a period of 8-16 days each month. Tr. 52, 133, 162, 164, 224-225, 243-244.
Consequently, it is not surprising that MSHA inspectors had never observed anyone fishing at
the mine until the subject inspection. Field Office Supervisor Eddy indicated that he asked the
inspectors at the Craig, Colorado, office whether they had ever observed fishing at the mine. He
testified that each inspector told him that they had not.7 Tr. 128. I credit the Secretary’s evidence
that no MSHA inspector had previously observed fishing while inspecting the mine.
Twentymile correctly argues that MSHA does not always prohibit miners from working
around moving pieces of equipment. For example, Inspector Taylor admitted that miners are
allowed to shovel coal accumulations onto belts that are moving at a high rate of speed. Tr. 9697, 99-100. Twentymile believes that working around a fast-moving belt poses a greater safety
6

The regulatory history of section 75.1725(c) is scant, at best. The proposed rule
prohibited lubrication of operating machinery “where a hazard exists” unless equipped with
extended fittings or cups. 37 Fed. Reg. 11777, 11779 (June 14, 1972). The final rule was
changed to reflect the fact that machinery is often self-lubricating. 38 Fed. Reg. 4974, 4975 (Feb.
23, 1973). There was no discussion of subsection (c) in the regulatory history.
7

I recognize that Inspector Eddy’s testimony is hearsay, but it is consistent with the
testimony of Twentymile’s witnesses that the mine did not start engaging in fishing on a frequent
basis until floor heave problems developed in Longwall Panel 9. Twentymile presented hearsay
evidence that another MSHA inspector, who once worked at the Foidel Creek Mine, called
Sollars to tell him that he had fished while working at the mine and he did not believe that it
created a hazard. RX-6; Tr. 127, 183. Twentymile attempted to call this inspector as a witness
but, by order dated January 24, 2018, I quashed the subpoena. 40 FMSHRC 242.

40 FMSHRC Page 799

hazard than fishing around a slow moving feeder. Consequently, it argues that the Secretary is
not sending a consistent message about prohibited conduct around moving machinery.
I agree that there is some inconsistency but, as the inspector stated, the area around the
head and tail pulleys of conveyor belts are regulated. See 30 C.F.R. § 75.1722. Head and tail
pulleys are more analogous to the subject feeder and they must be tightly guarded.
I hold that a reasonably prudent person familiar with the mining industry and the
protective purposes of section 75.1725 would have recognized that the act of fishing at the feeder
is a type of preventive maintenance that is covered by the requirements of section 75.1725(c).
2. Significant and Substantial.
An S&S violation is a violation “of such nature as could significantly and substantially
contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d). In
order to establish the S&S nature of a violation, the Secretary must prove “(1) the underlying
violation of a mandatory safety standard; (2) a discrete safety hazard - that is, a measure of
danger to safety - contributed to by the violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a reasonable likelihood that the injury will be of a
reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); accord Buck Creek
Coal Co., Inc., 52 F.3d 133, 135 (7th Cir. 1995); Austin Power Co., Inc., 861 F.2d 99, 103 (5th
Cir. 1988) (approving Mathies criteria). An experienced MSHA inspector’s opinion that a
violation is S&S is entitled to substantial weight. Harlan Cumberland Coal Co., 20 FMSHRC
1275, 1278-79 (Dec. 1998).
The Commission has explained that the focus of the Mathies analysis “centers on the
interplay between the second and third steps.” ICG Illinois, 38 FMSHRC 2473, 2475 (Oct. 2016)
(citing Newtown Energy Inc., 38 FMSHRC 2033 (Aug. 2016)). The second step requires the
judge to adequately define the “particular hazard to which the violation allegedly contributes[,]”
and then determine whether “there exists a reasonable likelihood of the occurrence of the hazard
against which the mandatory safety standard is directed.” Id. at 2475-2476. This determination
must be made “based on the particular facts surrounding the violation[.]” Id. The third step then
requires the judge to assume the existence of a hazard and assess whether the hazard “was
reasonably likely to result in serious injury.” Newtown at 2038; ICG Illinois at 2476.
The “reasonably likely” provision does not require the Secretary to prove that an injury
was “more probable than not.” U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June 1996). In
addition, the “Secretary need not prove a reasonable likelihood that the violation itself will cause
injury” but, rather, that the hazard contributed to by the violation is reasonably likely to cause an
injury. Musser Engineering, Inc. and PBS Coals Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010)
(emphasis added); Cumberland Coal Res., 33 FMSHRC 2357, 2365 (Oct. 2011).
The Secretary maintains that “[g]iven the proximity of Lomas to the moving feeder
conveyor, the uneven trench in which he was standing, the pile of material collected around him,
the monorail hanging from the roof, and the generally cramped location from which Loma was
fishing, the violation contributed to the discrete hazard of falling into the feeder and being pulled

40 FMSHRC Page 800

through the pick breaker.” Sec’y Br. 11. Twentymile was aware of the hazards of working
around the feeder because it would lock and tag out the feeder when miners cleaned or shoveled
around it. Tr. 260. Fishing was usually assigned to less experienced miners and was becoming a
more regular function which increased the likelihood of an accident. Any injury would be of a
reasonably serious nature and could be fatal.
Twentymile argues that the evidence demonstrates that the hazard of a miner falling or
being pulled into the feeder while fishing was highly unlikely. Miners have been performing this
task for 30 years without incident. The fishing miner usually stops the feeder conveyer when he
finds an object that needs to be removed. If he does not stop the feeder, the conveyor moves at a
slow rate of speed, about 1.42 feet per second, and the hook would separate from the drill steel if
it snagged on something. Twentymile argues that at that slow speed, material would travel along
the feeder conveyor for about 24 seconds before reaching the pick breaker. Twentymile Br. 14.
Lomas testified that at all times he stood at a distance from the pick breaker and he cleaned the
area around him to remove tripping hazards. Tr. 183, 186, 190. He deactivated the feeder when
necessary as he removed objects with the drill steel. Tr. 186. The conveyor chain was 35-41
inches from the edge of the feeder closest to Lomas and 19 inches from the top of the feeder,
making it unlikely that the fishing rod would snag on anything. Twentymile Br. 14; Tr. 87, 289;
RX-20. In addition there were emergency stop switches and a stop cord in the area.
I find that the Secretary did not establish that the violation was S&S. I determined that
Twentymile violated section 75.1725(c), above.
The next issue is whether there was a discrete safety hazard. To resolve this issue a judge
must first determine the nature of the hazard. A hazard is the “prospective danger the cited safety
standard is intended to prevent.” Newtown Energy, 38 FMSHRC at 2038. Section 1725(c) is
designed to prevent miners from being injured by becoming entangled in moving machinery
while repairs or maintenance are being conducted. The hazard in this case was the risk of a miner
being pulled into the feeder or falling into the feeder while in the process of fishing as the feeder
conveyor was moving. Next, the judge must determine whether the violation sufficiently
contributed to this hazard. That is, was there a “reasonable likelihood of the occurrence of the
hazard against which the mandatory safety standard is directed.” Id.
I find that it was unlikely that the hazard that the safety standard is designed to prevent
will ever occur assuming continued mining operations. It was highly unlikely that David Lomas
or any other fishing miner would be pulled into or fall into the moving feeder. First, Lomas
testified that if he sees a piece of metal as it is being slowly dumped into the feeder by the loader
operator, he stops the feeder conveyor and uses his fishing stick to grab it and move it to the side.
Tr. 185-86. Second, the type of fishing stick that he and other miners use has the hook attached
to the drill steel with tape. Thus, even if the feeder is moving and the hook gets entangled in
something, the hook will come off and the miner will not be pulled in. The hook easily separates
from the drill steel. Tr. 186-87, 211, 259. The feeder conveyer is always run at the lowest speed
possible so even if the miner kept holding the pole for a second or more after it snagged, he
would not be pulled for any significant distance and he would not be pulled so hard that there
would be a chance that he would be pulled onto the feeder conveyor. RX-7, p. 5; Tr. 259-60.

40 FMSHRC Page 801

Third, the dimensions of the feeder would make it very difficult for anyone to be pulled
into the feeder conveyor or fall into it. The deck plate for the hopper of the feeder was about 34
inches above the ground level where Lomas was standing. Tr. 274-75; RX-10. It is 35 inches
from the top edge of this deck plate close to the fishing miner to the other side of the flat surface
of the deck plate close to the feeder conveyor. Id. The feeder conveyor is 19 inches below the top
of the deck plate. Tr. 288-29; RX 19, 20. Thus, the distance from the ground where a miner
would be standing to the feeder conveyor would be 34 inches up to the edge of the deck plate, 35
inches across to the other side of the deck plate, and then 19 inches down to the feeder conveyor.
I credit these measurements that were taken by Twentymile soon after the inspection party
arrived. It would take a lot of force to pull a miner into the feeder conveyor and the tape on the
fishing pole would give way if the miner kept grasping the pole. It would also be next to
impossible to fall into the conveyor. The likelihood of falling into the feeder conveyor from
where Lomas was standing would be about the same as the chance of standing on one side of a
typical office desk and falling over to the other side of the desk while leaning over the desk; it is
possible but very unlikely.
As a consequence, I find that the Secretary did not establish that there was a discrete
safety hazard, the second step of the Mathies S&S test. The hazard contributed to by violation
was not reasonably likely to cause an injury.8 The inspector’s S&S determination is vacated.
3. Gravity
The gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), "is
often viewed in terms of the seriousness of the violation." Consolidation Coal Co., 18 FMSHRC
1541, 1549 (Sept. 1996) (citing Sellersburg Stone Co., 5 FMSHRC 287, 294-95 (Mar. 1983),
aff’d, 736 F.2d 1147 (7th Cir. 1984); Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 681
(Apr. 1987)). The gravity analysis focuses on factors such as the likelihood of injury, the severity
of an injury if it occurs, and the number of miners potentially affected.
I find that the gravity of this violation was not very serious. It was unlikely that Lomas
or anyone else who fished from the cited location would be injured for the reasons discussed
above. A serious injury was possible but improbable. If an injury did occur, it was likely to be
minor. For example, if Lomas tripped while fishing, he could suffer sprains or bruises. It is
highly unlikely that he would fall into the feeder. I find the gravity to be low.
4. Negligence
The Secretary argues that Twentymile unwarrantably failed to comply with the cited
standard because the “fishing process presented a high degree of danger to miners, was open and
obvious, and in the aggregate, existed for significant periods of time.” Sec’y Br. 14-15.
8

If I assume that the Secretary established that there was a discrete safety hazard, that is
that the violation sufficiently contributed to the hazard that the safety standard was intended to
prevent, I would be required to assume such occurrence and determine whether the occurrence of
that hazard would reasonably be likely to result in an injury. Newtown, 38 FMSHRC 2038. An
injury would be reasonably likely in such instance which could range between sprains and
bruises to serious or fatal injuries.

40 FMSHRC Page 802

Moreover, the act of fishing “was known to and sanctioned by” management as evidenced by the
fact that it had been made into a standard work procedure. Sec’y Br. 13-15. Because Owens was
Lomas’s supervisor, his knowledge that Lomas engaged in fishing must be imputed to
Twentymile for purposes of finding that it was highly negligent and that it engaged in aggravated
conduct. Sec’y Br. 13-16.
Twentymile argues that the unwarrantable failure and high negligence designations are
inappropriate because its conduct was not aggravated. Twentymile Br. 14. There was little to no
degree of danger associated with the act of fishing. Moreover, Twentymile genuinely believed
that it was in compliance with the safety standard. Id. Fishing was an “established, regulated
practice” at the mine, was not an obvious violation, and MSHA had never put the mine on notice
that greater efforts were necessary to comply with the cited standard. Twentymile Br. 16.
Section 110(i) of the Mine Act includes "negligence" as one of the six criteria the
Commission is required to consider in assessing a penalty. The term is not defined in the
Act, but over 30 years ago the Commission recognized that: "[e]ach mandatory standard
...carries with it an accompanying duty of care to avoid violations of the standard, and an
operator's failure to meet the appropriate duty can lead to a finding of negligence if a
violation of the standard occurs." A. H. Smith Stone Company, 5 FMSHRC 13, 15 (Jan.
1983).
Commission Judges are not bound by the Secretary’s definitions in 30 C.F.R Part 100
when considering an operator's negligence. Brody Mining, LLC, 37 FMSHRC 1687, 1702
(Aug. 2015); Newtown Energy, Inc., 38 FMSHRC 2033, 2048 (Aug. 2016). Rather, a Judge
"may consider the totality of the circumstances holistically." Id. The Commission has
established that its judges may "evaluate negligence from the starting point of a traditional
negligence analysis rather than based upon the Part 100 definitions. Under such an analysis,
an operator is negligent if it fails to meet the requisite standard of care - a standard of care
that is high under the Mine Act." Brody Mining 37 FMSHRC at 1702. This evaluation
considers "what actions would have been taken under the same circumstances by a
reasonably prudent person familiar with the mining industry, the relevant facts, and the
protective purpose of the regulation." Jim Walter Resources, 36 FMSHRC 1972, 1975 (Aug.
2014). The Commission has stated the real gravamen of high negligence is that it "suggests
an aggravated lack of care that is more than ordinary negligence." Newtown, at 2049 (citing
Topper Coal Co., 20 FMSHRC 344, 350 (Apr. 1998)).
I find that the violation was a result of low negligence and that Twentymile did not
unwarrantably fail to comply with the mandatory standard.9 Much of the Secretary’s argument in
support of the high negligence and unwarrantable failure designations is based upon the fact that
9

The Commission has held that “[t]he statutory language of section 104(d)(1) expressly
makes a significant and substantial finding a prerequisite for the issuance of a section 104(d)(1)
citation.” Youghiogheny & Ohio Coal Co., 10 FMSHRC 603, 608 (May 1998). Given that I have
found that the violation was not S&S, Citation No. 9025724, by operation of law, is modified
from a 104(d)(1) citation to a 104(a) citation and the unwarrantable failure designation is
vacated. My finding that Twentymile’s negligence was low is also inconsistent with an
unwarrantable failure finding.

40 FMSHRC Page 803

Twentymile sanctioned the practice of fishing and its managers routinely assigned miners that
task. Sec’y Br. 13-16. I agree that Twentymile sanctioned the act of fishing and had knowledge
that miners, including Lomas, engaged in fishing. However, I find that Twentymile permitted the
act of fishing based on “an objectively reasonable and good faith belief that the cited conduct
was in compliance with applicable law.”10 Oak Grove Res., LLC, 38 FMSHRC 1273, 1279 (June
2016).
The evidence establishes that Twentymile reasonably believed that the act of fishing was
not dangerous and did not constitute “maintenance” as contemplated by the cited standard. As
discussed above in the S&S analysis, as well as in the imminent danger order analysis below, I
find that a significant hazard did not exist. Twentymile personnel, including members of
management and apparently at least one current MSHA inspector, had engaged in the act of
fishing for decades without incident. Twentymile clearly believed that it was not engaging in
violative conduct. I find that this belief, albeit an incorrect one, was objectively reasonable under
the facts of this case. Given that the violation did not create a serious safety hazard and that
Twentymile had a reasonable good faith belief that this practice did not violate a safety standard,
I find that Twentymile’s negligence was low.11
C. Imminent Danger Order No. 9025723
Inspector Taylor also issued Order No. 9025723, a section 107(a) order that alleges that
Lomas’s act of fishing, as described above, created an imminent danger. 30 U.S.C. § 817(a).
The Secretary argues that the imminent danger order was validly issued when the
inspector observed a miner fishing in an energized conveyor using a piece of drill steel with a
hook attached. Sec’y Br. 4. Inspector Taylor, in response to screams, believed that a miner had
been caught and pulled into the moving feeder conveyor. Sec’y Br. 6. Although the miner was
actually unharmed, in other situations miners have been pulled into moving conveyors and
suffered fatal injuries. Sec’y Br. 6 (citing GX-8, a collection of fatalgrams involving miners
pulled into pick breakers). Here, the miner was standing in a 13 inch wide trench with uneven
ground, removing pieces of wood and metal of various sizes and weights from the feeder. Sec’y
Br. 6-7. Although the miner testified that he could easily let go of the pole if it became caught,
the natural human reflex is to grab tighter when an item is being pulled from one’s grasp. While
the inspector did not review fatalgrams at the time of issuance, he was generally familiar with the
10

Consideration of an operator’s objectively reasonable and good faith belief that the
cited conduct was in compliance with applicable law is appropriate in the analysis of
unwarrantable failure and the degree of negligence. Lehigh Anthracite Coal, LLC et al., 40
FMSHRC __, slip op. at 9, No. PENN 2014-109 (April 10, 2018).
11

Earlier in this decision, I determined that that a reasonably prudent person familiar with
the mining industry and the protective purposes of section 75.1725 would have recognized that
the act of fishing at the feeder is a type of preventive maintenance that is covered by the
requirements of section 75.1725(c). That determination is not inconsistent with my finding here
that Twentymile had a reasonable good faith belief that it was in compliance with MSHA safety
standards. I am holding that Twentymile was negligent in permitting the violation but the degree
of its negligence should be lowered given the circumstances discussed above.

40 FMSHRC Page 804

many deaths that have resulted from these types of situations and had personally experienced a
close call with a conveyor belt. Sec’y Br. 7.
Twentymile argues that the inspector abused his discretion because there was no
imminent danger. The inspector based his order on the incorrect belief that a miner was in danger
when the inspector heard shouting. Twentymile Br. 18. The two inspectors present were excited
and yelling before they reached the feeder or Lomas, who had finished fishing and was never in
the feeder. Twentymile Br. 19. Standing next to the feeder is not dangerous and no regulations
prevent it. Twentymile Br. 19. The inspector’s investigation was not reasonable given that he
took no photographs, did not investigate the floor conditions, did not know Lomas’s location,
and took incorrect measurements. Twentymile Br. 19-20. The inspector’s statement at hearing
that “anytime you’re around moving machine parts it is an imminent danger” is not a proper
basis for an imminent danger order and ignores the fact that miners must stand next to a feeder to
access its controls. Twentymile Br. 19.
Section 107(a) of the Act states that if an inspector “finds that an imminent danger exists,
[the inspector] shall … issue an order requiring the operator of such mine to cause all persons …
to be withdrawn from” the subject area until the inspector “determines that such imminent
danger and the conditions or practices which caused such imminent danger no longer exist.” 30
U.S.C. § 817(a). Section 3(j) of the Act defines an “imminent danger” as a condition “which
could reasonably be expected to cause death or serious physical harm before such condition or
practice can be abated.” 30 U.S.C. § 802(j); See also Wyoming Fuel Co., 14 FMSHRC 1282,
1291 (Aug 1992). While the danger justifying the issuance of the order need not be immediate,
an inspector must find that the hazardous condition or practice “has a reasonable potential to
cause death or serious injury within a short period of time.” Cumberland Coal Resources, LP, 28
FMSHRC 545, 555 (Aug. 2006)(citation omitted).
In reviewing a 107(a) imminent danger order, the judge must determine if the inspector,
who must make a quick decision at the time of issuance, “abuse[d] his discretion[.]” Utah, Power
& Light Co., 13 FMSHRC 1617, 1622-23 (Oct. 1991). In order to establish an imminent danger
order the Secretary must prove “by a preponderance of the evidence that the inspector reasonably
concluded, based on information that was known or reasonably available to him at the time the
order was issued, that an imminent danger existed.” Knife River Constr., 38 FMSHRC 1289,
1291 (June 2016) (citing Island Creek Coal Co., 15 FMSHRC 339, 346 (Mar. 1993)). “[A] Judge
is not required to accept an inspector's subjective perception that an imminent danger existed but,
rather, must evaluate whether it was objectively reasonable for the inspector to conclude that an
imminent danger existed.” Id (emphasis added). “[I]n making such a determination, a judge
‘should make factual findings as to whether the inspector made a reasonable investigation of the
facts, under the circumstances, and whether the facts known to him, or reasonably available to
him, supported issuance of the imminent danger order.’” Island Creek Coal Co., 15 FMSHRC
339, 346 (Mar. 1993) (citing Wyoming Fuel Co., 14 FMSHRC 1282, 1292 (Aug. 1992)).
I find that the imminent danger order was invalidly issued. Inspector Taylor issued the
verbal imminent danger order while he and others were walking towards, but before the group
arrived at, the feeder. See Sec’y Br. 3 (citing Tr. 22-23). The only information available to
Inspectors Taylor and Eddy was that they had heard someone “scream” and it appeared to them

40 FMSHRC Page 805

that a miner was in the feeder. Upon further review, Inspector Taylor discovered that Lomas had
shouted in joy, not screamed, and that his shouts were unrelated to any danger. Lomas had been
standing next to the feeder but was never in the feeder. The information Inspectors Taylor and
Eddy relied upon to issue the verbal imminent danger order was inaccurate.
Moreover, the information that the inspectors subsequently gathered does not support the
issuance of the imminent danger order, for the reasons discussed above. The deck of the feeder
was about 34 inches above the ground. Tr. 33, 83, 86, 275. The feeder’s metal deck was about
35 inches wide, which separated the area where Lomas was standing from the feeder conveyor.
Tr. 83, 86, 275. The conveyor was moving a slow speed of about 1.42 feet per second. Tr. 54,
136, 198, 260, 277. E-stop buttons/cords were present on both sides of the feeder, with the
closest being about two feet from where Lomas was standing. Tr. 198. In addition, a third e-stop
was strung across the feeder conveyor in front of the pick breaker. Tr. 76, 255-257. Finally, the
hook at the end of Lomas’s pole was only secured with tape and Owens credibly testified that the
tape would fail and the hook would come off if heavier items were snagged. Tr. 220. Given the
distance Lomas was from the conveyor, the low speed of the conveyor, the fact that the hook
would be pulled off when subjected to even limited stress, and the presence of multiple methods
to stop the conveyor in the event of an emergency, I find that the Secretary did not establish that
the conditions at the feeder had a reasonable potential to cause death or serious injury within a
short period of time. An imminent danger was not present.12
For these reasons, Imminent Danger Order No. 9025723 is VACATED.
II. APPROPRIATE CIVIL PENALTY
Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an
appropriate civil penalty. 30 U.S.C. § 820(i). Twentymile had a history of 280 violations during
the 15 months preceding the issuance of the subject citations, 31 of which were S&S. GX-1.
Twentymile is a large operator and its parent company is also a very large operator. The parties
were unable to stipulate as to good faith abatement. The Secretary stated that there is confusion
as to whether Twentymile is still using some type of fishing to remove extraneous material and,
if it is being used, where it is taking place. Sec’y Br. 20-21. Nevertheless, Inspector Taylor
terminated the citation when Twentymile removed Lomas from the feeder. Tr. 69. Thus,
Twentymile immediately abated the conditions that caused Inspector Taylor to issue the citation.

12

Although Taylor testified that the feeder conveyor was running when the inspection
party arrived at the feeder, it is unclear whether the conveyor was running at the time Lomas
actually fished material out. Tr. 25. Lomas testified that he always pulls the e-stop cord to stop
the conveyor before removing anything from the feeder with the fishing pole. Tr. 96, 201. As
discussed above, it is clear that the feeder conveyor was moving as material is dumped into the
feeder’s hopper. For purposes of this decision I assume that Lomas did not always stop the
conveyor when he removed objects from the feeder conveyor while fishing.

40 FMSHRC Page 806

The proposed penalty will not have an adverse effect upon Twentymile’s ability to continue in
business.13
III. ORDER
For the reasons set forth above, Citation No. 9025724 is MODIFIED to a non-significant
and substantial section 104(a) citation with low gravity and negligence. Order No. 9025723 is
VACATED. Based on the penalty criteria, I assess a total civil penalty of $5,000.00 for the
violation. Peabody Twentymile Mining, LLC is ORDERED TO PAY the Secretary of Labor the
sum of $5,000.00 within 40 days of the date of this decision.14 Docket Nos. WEST 2017-247-R
and WEST 2017-248-R are DISMISSED.

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

Distribution:
Christopher G. Peterson, Esq. and Benjamin J. Ross, Esq. Jackson Kelly PLLC, 1099 18th Street,
Suite 2150, Denver, CO 80202 (Certified Mail)
Kristi Henes, Esq., Office of the Solicitor, U.S. Department of Labor, 1244 Speer Blvd., Suite
515, Denver, CO 80204 (Certified Mail)

13

The Secretary specially assessed the proposed penalty. 30 C.F.R. § 100.5. MSHA’s
Special Assessment Narrative Form indicates that the proposed penalty would have been
$25,445 had it not been specially assessed. The Commission is not bound by the Secretary’s
special assessment procedure or the assessment formula used in 30 C.F.R. Part 100. I find that a
penalty of $5,000 is appropriate in this case taking into consideration the penalty criteria set forth
in section 110 the Mine Act. Although I determined that the violation was not serious and
Twentymile’s negligence was low, Peabody Twentymile Mining LLC and Peabody Energy, Inc.
are large operators, so a further reduction of the penalty is not warranted.
14

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

40 FMSHRC Page 807

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
721 19TH STREET, SUITE 443
DENVER, CO 80202-2500
TELEPHONE: 303-844-5266 / FAX: 303-844-5268

May 31, 2018
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 2017-0397
A.C. No. 29-02323-441046
Docket No. CENT 2017-0432
A.C. No. 29-02323-443333

v.

Docket No. CENT 2017-0433
A.C. No. 29-02323-443333
ROCK PRODUCTS, INC.,
Respondent.

Mine: Crusher #10
DECISION AND ORDER

Appearances:

Felix R. Marquez, U.S. Department of Labor, Office of the Solicitor,
Dallas, Texas, for Petitioner;
Charles W. Newcom, Sherman & Howard LLC, Denver, Colorado, for
Respondent.

Before:

Judge Miller

These cases are before me upon petitions for assessment of civil penalties filed by the
Secretary of Labor pursuant to Section 105(d) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 815(d) (“the Act”). These dockets involve fourteen citations issued pursuant to
Sections 104(a) and 104(d)(1) of the Act with originally proposed penalties totaling $30,934.00.
Respondent withdrew its contest of Citations No. 8968775 and 8968780 at hearing. The parties
presented testimony and evidence regarding the remaining citations at a hearing held in
Albuquerque, New Mexico, on March 7, 2018. Based upon the parties’ stipulations, my review
of the entire record, my observation of the demeanors of the witnesses, and consideration of the
parties’ legal arguments, I make the following findings and order.
Crusher No. 10 is a sand and gravel mine located in Valencia County, New Mexico, and
operated by Rock Products, Inc. The parties have stipulated that Rock Products is an “operator”
as defined in Section 3(d) of the Mine Act, 30 U.S.C. § 803(d), and is subject to the jurisdiction
of the Commission. Jt. Stips. ¶¶ 2, 3, 4.
On May 2, 2017, MSHA Inspector John Lewis visited the mine to conduct a regular
inspection. Inspector Lewis has been a mine inspector for two years and four months, and prior
to that time worked in the mining industry. He has a bachelor’s degree in business and is a
certified MSHA trainer. He conducted three inspections of Crusher No. 10 that are discussed

40 FMSHRC Page 808

here. The first began on May 2, 2017, as a regular inspection. The second was a hazard
complaint investigation beginning on May 9, 2017. The third began on May 11, 2018, after a
reported accident at the mine.
Lewis arrived at Crusher No. 10 on May 2, 2017, to conduct a regular inspection. He met
with Rob Martinez, the safety manager for Crusher No. 10 as well as several other mines owned
by the same company, and Mason Holman, the supervisor of Crusher No. 10 as well as Rock
Products Crusher No. 6. Martinez and Holman both testified on behalf of the mine along with
several other witnesses. Several of the violations were marked as high negligence, and a number
were assessed as significant and substantial violations.
I. APPLICABLE PRINCIPLES OF LAW
A. Establishing a Violation
To prevail on a penalty petition, the Secretary bears the burden of proving an alleged
violation by a preponderance of evidence. RAG Cumberland Res. Corp., 22 FMSHRC 1066,
1070 (Sept. 2000), aff’d, 272 F.3d 590 (D.C. Cir. 2001); Jim Walter Res., Inc., 9 FMSHRC 903,
907 (May 1987). The Secretary may establish a violation by inference in certain situations, but
only if the inference is “inherently reasonable” and there is “a rational connection between the
evidentiary facts and the ultimate fact inferred.” Garden Creek Pocahontas Co., 11 FMSHRC
2148, 2152-53 (Nov. 1989); see also Eagle Energy Inc., 23 FMSRHC 1107, 1118 (Oct. 2001).
B. Negligence
The Commission has recognized that “[e]ach mandatory standard … carries with it an
accompanying duty of care to avoid violations of the standard, and an operator’s failure to meet
the appropriate duty can lead to a finding of negligence if a violation of the standard occurs.”
A.H. Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983). In determining whether an operator met its
duty of care, the judge must consider “what actions would have been taken under the same
circumstances by a reasonably prudent person familiar with the mining industry, the relevant
facts, and the protective purpose of the regulation.” Newtown Energy, Inc., 38 FMSHRC 2033,
2047 (Aug. 2016); Brody Mining, LLC, 37 FMSHRC 1687, 1702 (Aug. 2015); U.S. Steel Corp.,
6 FMSHRC 1908, 1910 (Aug. 1984). While the Secretary’s Part 100 regulations evaluate
negligence based on the presence of mitigating factors, Commission judges are not limited to
that analysis. Brody, 37 FMSHRC at 1702-03. Rather, Commission judges consider “the totality
of the circumstances holistically.” Id. at 1702. The Commission has recognized that “the
gravamen of high negligence is that it ‘suggests an aggravated lack of care that is more than
ordinary negligence.’” Id. at 1703 (quoting Topper Coal Co., 20 FMSHRC 344, 350 (Apr.
1998)).
The Mine Act places primary responsibility for maintaining safe and healthful working
conditions in mines on operators, and they are thus expected to set an example for miners
working under their direction. Newtown, 38 FMSHRC at 2047; Wilmot Mining Co., 9 FMSHRC
684, 688 (Apr. 1987); see also 30 U.S.C. § 801(e). “Such responsibility not only affirms
management’s commitment to safety but also, because of the authority of the manager,
discourages other personnel from exercising less than reasonable care.” Wilmot, 9 FMSHRC at

40 FMSHRC Page 809

688. When a violation is committed by a non-supervisory employee, the conduct of the rank-andfile miner is not imputable to the operator for negligence purposes. Ky. Fuel Corp., 40 FMSHRC
28, 31 (Feb. 2018). In such circumstances, Commission judges must analyze “whether the
operator has taken reasonable steps to prevent the rank-and-file miner’s violative conduct.” Id.;
see also Knight Hawk Coal, LLC, 38 FMSHRC 2361, 2369 (Sept. 2016). Relevant
considerations include “the foreseeability of the miner’s conduct, the risks involved, and the
operator’s supervising, training, and disciplining of its employees to prevent violations of the
standard [at] issue.” A.H. Smith Stone Co., 5 FMSHRC 13, 15-16 (Jan. 1983).
The negligence of an operator’s agent is imputable to the operator for penalty assessment
and unwarrantable failure purposes. Nelson Quarries, Inc., 31 FMSHRC 318, 328 (Mar. 2009);
Whayne Supply Co., 19 FMSHRC 447, 450 (Mar. 1997); Rochester & Pittsburgh Coal Co., 13
FMSHRC 189, 194 (Feb. 1991). The Mine Act defines an “agent” as “any person charged with
responsibility for the operation of all or a part of a coal or other mine or the supervision of the
miners in a coal or other mine.” 30 U.S.C. § 802(e). In analyzing whether an employee is an
agent of an operator, the Commission has considered factors including “the ability of the
employee to direct the workforce, whether the employee holds himself out as a person with
supervisory responsibilities and is so regarded by other miners, and whether the actions of the
employee in directing the workforce have an impact on health and safety at the mine.” Nelson
Quarries, 31 FMSHRC at 328.
C. Significant and Substantial
A “significant and substantial” (“S&S”) violation is described in Section 104(d)(1) of the
Mine Act as a violation “of such nature as could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health hazard.” 30 U.S.C. § 814(d)(l). A
violation is properly designated S&S “if based upon the particular facts surrounding that
violation, there exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC
822, 825 (Apr. 1981).
In Mathies Coal Co., the Commission established the standard for determining whether a
violation is S&S:
In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum, the Secretary of Labor
must prove: (1) the underlying violation of a mandatory safety standard;
(2) a discrete safety hazard—that is, a measure of danger to safety—
contributed to by the violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a reasonable likelihood that
the injury in question will be of a reasonably serious nature.
6 FMSHRC 1, 3-4 (Jan. 1984).
The second element of the Mathies test addresses the likelihood of the occurrence of the
hazard the cited standard is designed to prevent. Newtown Energy, Inc., 38 FMSHRC 2033, 2036

40 FMSHRC Page 810

n.8 (Aug. 2016). The Commission has explained that “hazard” refers to the prospective danger
the cited safety standard is intended to prevent. Id. at 2038. For example, Newtown involved a
violation of a standard requiring that equipment be locked out and tagged out while electrical
work is being performed. Id. The Commission determined that the hazard was a miner working
on energized equipment. Id. The likelihood of the hazard occurring must be evaluated with
respect to “the particular facts surrounding the violation.” Id.; see also McCoy Elkhorn Coal
Corp., 36 FMSHRC 1987, 1991-92 (Aug. 2014); Mathies, 6 FMSHRC at 4. At the third step, the
judge must assess whether the hazard, if it occurred, would be reasonably likely to result in
injury. Newtown, 38 FMSHRC at 2037. The existence of the hazard is assumed at this step. Id.;
Knox Creek Coal Corp. v. Sec’y of Labor, 811 F.3d 148, 161-62 (4th Cir. 2016). As with the
likelihood of occurrence of the hazard, the likelihood of injury should be evaluated with respect
to specific conditions in the mine. Newtown, 38 FMSHRC at 2038. Finally, the Commission has
found that the S&S determination should be made assuming “continued normal mining
operations.” McCoy, 36 FMSHRC at 1990-91.
II. FINDINGS OF FACT AND CONCLUSIONS OF LAW
Citation No. 8968761.
As he entered the property to begin his inspection, Inspector Lewis observed a front-end
loader idling unattended. The parking brake on the loader was set, but Lewis checked each of the
wheels and found that they were not chocked. Lewis observed that the loader was parked on a
grade and the transmission was in neutral. There was no foot traffic in the area. Lewis waited
until the operator returned to the area and asked him to get into the loader and release the parking
brake. The machine rolled a few feet. Lewis noted that the operator had left the bucket of the
machine down, but the machine still rolled when tested. When asked, the operator of the loader
informed Lewis that he did not have any wheel chocks.
Lewis issued a citation for a violation of 30 C.F.R. § 56.14207, which requires that
“Mobile equipment shall not be left unattended unless the controls are placed in the park position
and the parking brake, if provided, is set. When parked on a grade, the wheels or tracks of mobile
equipment shall be either chocked or turned into a bank.”
Respondent argues that there was no grade where the loader was parked. Martinez, the
company safety director, testified that the grade in the area was minimal. The photograph of the
violation introduced by the Secretary does not show an obvious grade. Ex. 6-1. On crossexamination, Lewis admitted that while he had estimated a seven percent grade, a similar seven
percent grade on a road known to him was steeper than the one in the photograph. Nevertheless,
I credit the inspector’s testimony that there was a grade which caused the loader to roll. The
loader was in neutral and the wheels were not chocked or turned into the bank. Therefore, I find
that the Secretary has proven a violation.
Lewis found the negligence to be high because he believed that management was aware
of the standard and that miners should be aware of it through training. Respondent argues that
there were mitigating factors because the bucket was down, which prevented the loader from
rolling far, and the loader was not parked in a hazardous area.

40 FMSHRC Page 811

The Commission addressed the negligence of a similar violation in Kentucky Fuel Corp.,
40 FMSHRC 28 (Feb. 2018). That case involved an injury to a mechanic who was working on a
vehicle. The mine was cited for a failure to block machinery against motion when conducting
repairs, and the judge found that the violation resulted from high negligence. The Commission
affirmed the judge’s finding because the operator had failed to provide wheel chocks for use at
the mine. Id. at 39. The Commission found that the failure to provide the materials necessary for
compliance with the standard was a particularly significant breach of the operator’s duty of care
because it meant that a miner could not comply with the safety standard. Id. at 40. Thus, the
operator’s actions displayed the aggravated lack of care required for high negligence. Id. at 41.
In this case, the Secretary has demonstrated an “aggravated lack of care that is more than
ordinary negligence” on the part of the mine operator. Brody, 37 FMSHRC at 1703. The operator
of the loader was a rank-and-file miner who is required to be trained before he operates heavy
equipment. He left the loader in neutral instead of in gear and he failed to turn the wheels and
chock them. Although it is not clear whether chocks were available somewhere on the mine
property, the loader operator admitted that he had no chocks to use. At the same time, I do not
agree that the bucket being left down was a significant mitigating factor, given that it did not
prevent the loader from rolling. I find that the violation resulted from high negligence.
The Secretary alleges that the violation was unlikely to result in injury, but that if an
injury did occur, it would likely be fatal. The loader is a large piece of equipment that could
cause fatal injury in the event of an accident. An accident was unlikely to occur, however,
because there was no foot traffic in the area, the grade was minimal, and the parking brake was
set. I affirm the finding that the violation was not S&S. I assess the $1,770.00 penalty as
proposed.
Citation No. 8968762.
Lewis also observed that the bottom step on the same front-end loader was slightly bent.
Exhibits 6-1 and 6-2 are photographs of the loader showing that the bottom step is bent several
inches to one side. The step provided access to the loader cab. Lewis believed the bent step
created a slip, trip, and fall hazard for a person entering or exiting the cab. He understood that the
condition had existed for some time. He noted that the loader would have been used every shift
and that the loader operator would have to fill out a pre-operational report before each use. Lewis
cited the mine for a violation of 30 C.F.R. § 56.14100(b), which provides that “Defects 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.” Martinez testified that he did not believe the step
affected safety because a person could still get a three-point stand with hands and feet on the step
and hand rails. On this point, I credit the inspector’s testimony that the bent step made it easier
for a person to misstep and fall, creating a slip, trip, and fall hazard.1
1

The inspector determined that this citation and Citation No. 8968771 were unlikely to
cause injury. Respondent argues that, based on this determination, neither defect “affected
safety” within the meaning of the standard, and so both citations must be vacated. I am not
persuaded by this argument, because whether a defect “affects safety” is a separate question from
(continued…)

40 FMSHRC Page 812

The Commission has explained that whether a defect was corrected “in a timely manner
depends entirely on when the defect occurred and when the operator knew or should have known
of its existence.” Lopke Quarries, Inc., 23 FMSHRC 705, 715 (July 2001). Thus, to prove that a
defect was not corrected in a timely manner, the Secretary must present evidence to show when
the defect occurred and when the operator knew or should have known about it. See Martin
Marietta Materials, Inc., 36 FMSHRC 411, 412 (Feb. 2014) (ALJ) (vacating citation for timely
correction of a defect where Secretary presented no evidence to show when the operator knew or
should have known of the defect); Giant Cement Co., 13 FMSHRC 286, 287 (Feb. 1991) (ALJ)
(vacating citation for timely correction of a defect on a loader because there was no evidence that
the defect existed when the loader was last operated, and an inspection would not be expected
until it was operated again); cf. Northshore Mining Co., 38 FMSHRC 753, 792 (Apr. 2016)
(ALJ) (finding a violation occurred where there was evidence that management had known of the
defect for a week prior to inspection); Campbell Cty. Highway Dep’t, 36 FMSHRC 2579, 2582
(Sept. 2014) (ALJ) (finding a violation where a leak of hydraulic fluid had been noted in
examination records prior to inspection). Given that the loader was examined and used every
day, the operator should have known of and corrected the defect. The Secretary has proven a
violation.
Lewis marked the violation as non-S&S and unlikely to cause injury because the step was
not severely damaged. He stated that while the loader operator would use the step several times
each shift, the operator would probably only sustain an injury if he was not paying attention.
Lewis believed that an injury that did occur would most likely result in lost workdays or
restricted duty. Martinez noted that someone entering the loader could grab onto the hand rails to
avoid a fall, making injury unlikely. I affirm the Secretary’s gravity determination.
The Secretary alleges that the violation was the result of high negligence. Lewis stated
that the operator should have been aware of the violation because the loader is examined every
day before it is operated. He also stated that, given what he observed, the step had been in that
condition for some time. The Secretary did not introduce examination reports from the loader.
Because there is no evidence that the step was noted on the examination reports, or that
management believed it was a hazard that needed to be repaired, I find that there is insufficient
evidence in the record to demonstrate an aggravated lack of care on the part of the operator. I
find that the violation was the result of moderate negligence. I assess a penalty of $500.00.

1

(…continued)
whether it is likely to cause injury. See, e.g., Apex Quarry, LLC, 36 FMSHRC 211, 221 (Jan.
2014) (ALJ) (affirming two violations of 30 C.F.R. § 56.14100(b) and finding that both were
unlikely to cause injury).

40 FMSHRC Page 813

Citation No. 8968771.
Lewis next inspected the Caterpillar 988F front-end loader and observed that the main
access steps to this loader were also damaged. The loader was being operated at the time of the
inspection. The bottom step had been modified using a chain so that it was at a height of 30
inches. Lewis stated that a normal step height would be around 18 to 24 inches. Exhibit 6-4
shows the modified step. Lewis believed that having the step at an increased height created a
slip, trip, and fall hazard for someone entering or exiting the loader cab. Martinez stated at
hearing that the loader operator had modified the step because he was tall and wanted a bigger
step. However, when asked, Martinez could not recall who the operator was or how tall he was.
Lewis stated that the modification was the result of a repair when the original step had been
damaged. The inspector cited the mine for a second violation of 30 C.F.R. § 56.14100(b), timely
correction of a defect affecting safety. Given that the alleged defect was the result of an
intentional modification to the step during a repair and the loader was examined regularly, the
mine operator should have known of the defect. I credit the inspector’s testimony that the tall
step created a hazard and find that the Secretary has proven a violation.
Lewis indicated in the citation that the violation was unlikely to cause injury, and that if
an injury did occur, it would most likely result in lost workdays or restricted duty. The violation
was marked as non-S&S. At hearing, Lewis suggested that the violation could actually cause
permanently disabling injury because of the significant fall distance. He stated that a person
could break a leg or severely twist an ankle from that distance. The Secretary alleged an injury
severity of lost workdays or restricted duty in his brief. Sec’y Br. at 21. I find that injury was
unlikely, and that if an injury did occur, it would most likely be of the severity to cause lost
workdays or restricted duty.
The Secretary alleges that the violation was the result of high negligence. Lewis stated
that the defect was obvious and the loader operator would have done a pre-operational check on
the equipment. I find that in this instance, because the step had intentionally been modified to
this unsafe height, the high negligence assessment is appropriate. I assess a penalty of $533.00 as
proposed.
Citation No. 8968772.
The following day, Lewis inspected the laydown conveyor located in the middle of the
plant at Crusher No. 10. He observed that the tail pulley on the conveyor was exposed
underneath. Exhibit 6-6 shows the exposed area, which was 30 inches above the ground. Lewis
explained that miners work near the tail pulley to shovel material that spills off the conveyor. He
believed the exposed tail pulley created a hazard because there was ample room for someone’s
hand to become entangled in the conveyor and pulley.
Lewis cited the mine for a violation of 30 C.F.R. § 56.14107(a), which provides that
“Moving machine parts shall be guarded 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.” To prove a violation of § 56.14107(a), the Secretary must
show that there was an unguarded moving machine part that “can cause injury.” The

40 FMSHRC Page 814

Commission has interpreted a similar guarding standard to require proof of “a reasonable
possibility of contact and injury.” Thompson Bros. Coal Co., Inc., 6 FMSHRC 2094, 2096 (Sept.
1984); see also Nelson Quarries, Inc., 36 FMSRHC 3143, 3146 (Feb. 2014) (ALJ) (interpreting
§ 56.14107(a) to require proof of reasonable possibility of injury). The analysis of a reasonable
possibility of injury should account for “contact stemming from inadvertent stumbling or falling,
momentary inattention, or ordinary human carelessness.” Thompson Bros., 6 FMSHRC at 2097.
Relevant considerations include “all relevant exposure and injury variables, e.g., accessibility of
the machine parts, work areas, ingress and egress, work duties, and as noted, the vagaries of
human conduct.” Id.
The parties disagree as to whether there was a reasonable possibility of a person
contacting the moving parts. The uncovered area was only 30 inches above the ground, and
Lewis acknowledged that if a person walking by fell into the metal, he would be protected by the
guarding that was already present. Lewis also did not believe that a person would have a reason
to intentionally crawl under the conveyor. However, he stated that miners kneel down to shovel
material out from under the conveyor, which puts them in close proximity to the exposed tail
pulley.2 He noted that miners would be in the area to clean on every shift. Martinez believed that
a person would need to get on his hands and knees to access the pulley. He noted that there was
an overhang of three or four inches around the conveyor, and thus he believed it would be
difficult to hit the belt with a shovel. He believed the guard already present would protect
someone who fell. I credit the testimony of the inspector regarding the exposure and work duties
in the area, and I find that there was a reasonable possibility of injury. The Secretary has proven
a violation.
The Secretary alleges that the violation was reasonably likely to result in a permanently
disabling injury and was S&S. The Secretary has proven a violation, satisfying the first element
of the Mathies test for S&S. The violation involves the hazard of a miner contacting the
conveyor or tail pulley. I find that the hazard was reasonably likely to occur, given that miners
worked in the area daily and their work duty of shoveling material from under the conveyor
brought them in close proximity to the moving parts. The second Mathies element is satisfied. I
credit Lewis’s testimony that a person who contacted the pulley or conveyor could become
entangled and would likely receive a permanently disabling injury. The third and fourth elements
of Mathies are also shown, and I find that the violation is S&S.
The Secretary alleges that the violation involved high negligence on the part of the
operator. I find that a moderate negligence designation is more appropriate. A reasonably
prudent operator would have provided a guard in this location given the risk of serious injury.
Nevertheless, the missing guard was not particularly obvious, and the Secretary has produced no
other evidence to indicate that the negligence was more than moderate. Based upon the change in
the negligence finding, I assess a penalty of $2,000.00.
2

Respondent notes that the inspector agreed on cross-examination that “somebody
wouldn’t be kneeling down to get underneath this car.” Tr. at 147; Resp. Br. at 4. I interpret that
statement to mean that Lewis did not believe that a miner would intentionally climb under the
conveyor. However, he did believe miners would kneel in close proximity to the conveyor in
order to shovel under it. Tr. at 52.

40 FMSHRC Page 815

Citation No. 8968773.
As part of his regular inspection, Lewis requested that the parking brake on a Caterpillar
980G front-end loader be tested. Lewis asked Mason Holman, a supervisor at the mine, to fill the
loader bucket with dirt and back up onto a ramp. He then had Holman set the parking brake to
test it. Lewis observed that when the service brake was released, the parking brake did not hold.
The machine rolled down the grade with the parking brake set for a few feet. Lewis spoke with
the operator of the loader, who told him he had noted the defective parking brake on his preoperational report for the past two days. The loader was in use at the time of the inspection.
Lewis cited the mine for a violation of 30 C.F.R. § 56.14101(a)(2), which provides that “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.”
Respondent argues that the brake did in fact hold. Holman, the witness for Respondent,
testified that while the loader rolled a foot or so during the test, it was only enough for the
parking brake to lock in and then hold. However, the fact that the equipment operator had noted
a problem with the brake in his pre-operational report supports Lewis’s assessment that the brake
was not functioning properly. Based upon my observation of both witnesses and their testimony
as a whole, I found the inspector to be a more credible witness than Holman. I credit the
inspector’s testimony and find that the Secretary has proven a violation of the standard.
The Secretary alleges that the violation was the result of high negligence. Because the
equipment operator noted the defective brake on his pre-operational report the previous day,
management was or should have been aware of the problem. There was no evidence that
management took any action to investigate or correct the problem. This constitutes an aggravated
lack of care, and I find that the high negligence designation is appropriate.
The Secretary alleges that the violation was unlikely to cause injury, and that if an injury
did occur, it would likely be fatal. The violation was marked as non-S&S. Lewis explained that
the loader is a large piece of equipment that could cause a fatality if it struck someone. However,
he believed that an accident was unlikely to occur because there was no one else working in the
area and the service brakes on the loader were still functional. I affirm the gravity determination
as issued and assess the proposed penalty of $1,770.00.
Citation No. 8968774.
Inspector Lewis also observed that in the cab of the Caterpillar 980G front-end loader,
there were accumulations of oil and oily rags on the floor near the pedals. He observed a puddle
of oil on the floorboard near the accelerator and brake pedals. Exhibit 6-10 is a photograph of
oily rags on the floorboard of the loader cab and shows that a piece of cardboard had been taped
to the brake pedal to make it less slippery. The loader operator told Lewis that the oil was from a
leak in the steering column and that there was oil dripping onto the pedal and onto the
floorboard. The operator of the equipment stated that he had been reporting the leak on his preoperational reports since March 16, 2017, approximately six weeks prior to the inspection. Lewis
reviewed the pre-operational reports and confirmed that the leak had been mentioned beginning
in March 2017. Lewis believed the oil created a hazard because the operator’s foot could slip off

40 FMSHRC Page 816

the pedals, causing him to lose control of the loader. The loader could then hit another piece of
equipment or a person on foot in the area.
Lewis cited the mine for a violation of 30 C.F.R. § 56.14103(c)(1), which requires that
“The operator’s stations of self-propelled mobile equipment shall [b]e free of materials that
could create a hazard to persons by impairing the safe operation of the equipment.” The
Secretary alleges that the oil and rags created the danger that the operator’s foot could slip and he
could lose control of the loader. Respondent argues that the rag and oil in the operator
compartment did not create a hazard. Martinez stated that the rags were there to wipe dust from
the windshield. However, the testimony of Lewis and the photograph of the rags and cardboard
show that there was a leak that created a slippery surface near the brake pedal. This is a clear
hazard and the Secretary has proven a violation. I affirm the Secretary’s high negligence
designation, given that the condition had been noted in the pre-operational reports for six weeks
and no repairs had been made.
I also find that the violation was S&S. The Secretary has proven a violation of a
mandatory safety standard. The hazard addressed by the standard is that of the equipment
operator losing control of the loader. I find that the hazard was reasonably likely to occur
because the oil on and around the brake pedal could cause the operator’s foot to slip. If the
operator lost control of the loader, the loader could easily hit a person on foot or another piece of
equipment. While there was no one else working around the loader at the time of the inspection,
the condition had existed for some time, and there was nothing to prevent the use of the loader
around other equipment or miners. An accident involving a person on foot would be fatal, and a
collision with another piece of equipment would likely cause serious injury.
I assess the proposed penalty of $8,768.00.
Citation No. 8968776.
Lewis returned to the mine on May 9, 2017, to investigate a hazard complaint regarding
safety defects on a skid steer loader. The skid steer was parked in the middle of the site at the
adjacent Crusher No. 6. It was in front of a parts trailer and next to the diesel fuel storage in an
area where other mobile equipment was available for use. Lewis was told that the skid steer was
out of service because of a bad tire, but he observed that it did not have a tag and the key was
still in the ignition. He was told it had been moved to that location from Crusher No. 10 with the
defects, but he did not know whether it had been towed. He stated that because of the bad tire,
the skid steer could not be used, but Lewis did not know how long it had been in that condition.
The machine would normally be used on a daily basis to clean up material or haul material
around the conveyors and the crusher. Lewis believed it had been moved to Crusher No. 6 so that
it could be used for cleaning. In order to test the functions on the skid steer, Lewis asked the
operator to get in, but told him he did not need to move the equipment. He had the operator test
the horn and backup alarm on the skid steer without moving it and found that both were
inoperable. He cited the mine for a violation of 30 C.F.R. § 56.14132(a).
Mason Holman, the plant supervisor, was present for the inspection. He testified at
hearing that the skid steer was locked out and inoperable at the time. He stated that the hub on

40 FMSHRC Page 817

the wheel had come off and the wheel bearing had gone out. The wheel had been repaired at least
once but shortly thereafter developed that same problem. Holman believed that the skid steer had
been parked where it was for about a month prior to the inspection. After the inspection, the skid
steer was never put back into service, but rather was taken to the mine shop and used for parts. In
response to a leading question from counsel for Respondent, Holman agreed that in addition to
being locked out, the skid steer was also tagged out at the time of the inspection. Respondent
introduced Exhibit H-1, a photograph of a lock and tag on the key of the skid steer. The tag reads
“Out of Service. Do Not Use.” It is signed by Holman but does not list any specific problem with
the loader, and the date on the tag is illegible. In response to further leading questions, Holman
stated that the lock and tag had been on the skid steer for a month prior to the inspection. He
explained that at the time of the inspection, he informed Lewis that the skid steer was locked out,
but Lewis asked him to get in and test it anyway. He moved the skid steer back about a foot so
that Lewis could inspect it. Holman stated that he never removed the lock and tag during the
inspection. When questioned by the court, however, he said he had locked the loader out but did
not recall whether he had put a tag on it. He then stated that he believed he had put a tag on, but
hadn’t filled it out correctly. On redirect, he said he believed he had tags on the loader and had
locked it out a month before. In response to further questions from counsel for the Secretary,
Holman then said that he believed there was another tag that had just his name and the date on it,
but he did not know what had happened to it.
Ralph Martinez, the safety officer, was also present during the inspection. He stated that
all miners are trained in the company’s lockout/tagout procedures, which were introduced as
Exhibit D. He stated that when a piece of equipment is taken out of service, a lock is put on it,
and whoever takes it out of service has the key and has to be the one to take the lock off. Before
a piece of equipment is put back into service, an examination is done by the person who did the
repairs. Martinez usually receives pre-operational reports from the foreman for equipment, but he
had not received reports for the skid steer and was not aware of the defects on it. Martinez claims
that on the day of the inspection, he informed Lewis that the skid steer was locked out. Martinez
took the photo of the lock and tag introduced as Exhibit H-1, and testified that the tag was
present before the inspection. He stated that he did not bring the tag to the attention of Lewis
during the inspection because he believed Lewis would raise the penalty for the citation if he
argued with him. He also stated that the wheel on the skid steer was so badly damaged that it
could not have been put back into service. Exhibits H-2, H-3, and H-4 are photographs taken by
Martinez showing the wheels of the skid steer and the tire tracks to show how far the machine
moved during the inspection. The skid steer appears to have moved less than a foot.
There is opposing testimony regarding whether a tag was present on the skid steer prior
to the inspection. Inspector Lewis testified that when he observed the skid steer, the key was in
the ignition, and there was no tag to warn miners of defects affecting safety. On the other hand,
Martinez testified that the tag shown in Exhibit H-1 was on the skid steer at the time of the
inspection. He did not explain how the tag he photographed was different from the tag used to
terminate the citation. Martinez’s explanation for why he did not bring the tag to the attention of
the inspector seemed disingenuous. While Martinez has many years’ experience in the industry,
he appeared confused in some of his answers. For example, when asked, he said that the
photographs of the skid steer introduced by Respondent as exhibits were the only photographs he
took during the inspection. His attorney later indicated that in fact Martinez took many

40 FMSHRC Page 818

photographs during the course of the inspection. Martinez answered some questions well,
although his answers seemed rehearsed. When he was asked other questions, he seemed
confused but determined to say what would be most beneficial. I did not find him to be a credible
witness and so discount his testimony as to the citations he discussed.
Holman also testified on direct examination that he believed the tag shown in Exhibit H-1
was on the skid steer prior to the inspection. Upon further questioning, however, it became clear
that he was unsure. While I think Holman was sincere in most of his testimony, he contradicted
himself regarding the tag and was not certain when it was placed on the machine. Holman was
nervous and uncomfortable, especially when asked about things he could not remember clearly.
The inspector, on the other hand, was alert, candid, and thoughtful in his responses. He
sometimes referred to his notes when unable to recall, but took the time to review and respond.
He was obviously more comfortable testifying than the other witnesses, and was also
comfortable in his understanding of the citations and why they were issued. He had no reason to
be untruthful, and I find him to be a credible witness. I thus find that while the skid steer was not
in use at the time of the inspection, it was not tagged out, nor was it in a location where it would
not be available for use.
The relevant standard provides that “Manually-operated horns or other audible warning
devices provided on self-propelled mobile equipment as a safety feature shall be maintained in
functional condition.” 30 C.F.R. § 56.14132(a). The Commission has interpreted this standard to
require that “horns or other audible warning devices must function at all times unless the
equipment has been taken out of service for repair.” Wake Stone Corp., 36 FMSHRC 825, 827
(Apr. 2014). The Commission noted in Wake Stone that the standard “does not contain language
limiting its application to equipment only ‘to be used during a shift’ or to equipment that has or
has not been ‘placed in operation.’” Id. at 828. Similarly, in Alan Lee Good, 23 FMSHRC 995,
997 (2001), the Commission held that a standard requiring that braking systems installed on
equipment “shall be maintained in functional condition” was applicable “[a]s long as the cited
equipment is not tagged out of operation and parked for repairs … whether or not the equipment
is to be used during the shift.”
The issue in this case is whether the skid steer had been taken out of service. I find that it
had not. MSHA regulations provide two methods for taking a piece of equipment out of service:
When defects make continued operation hazardous to persons, the
defective items including self-propelled mobile equipment shall be
taken out of service and placed in a designated area posted 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.
30 C.F.R. § 56.14100(c) (emphasis added). In this case, the skid steer was parked in an area of
the mine where mobile equipment was available for use. There was no tag marking it as
defective. While a lock may have been present, the key was in the ignition, and Holman stated
that he started the loader without removing the lock. Further, while Inspector Lewis testified that
“Because of the tire, it couldn’t be used,” the skid steer was able to move a minimal distance

40 FMSHRC Page 819

during the inspection. See Tr. at 64, 195; Ex. H-3. I therefore find that the skid steer had not been
taken out of service.
The skid steer was “wheeled… equipment capable of moving or being moved” and thus
constituted “mobile equipment” under the Secretary’s definitions. See 30 C.F.R. § 56.2. I credit
the inspector’s testimony that the horn and backup alarm were not functional and find that the
Secretary has proven a violation.
The Secretary alleges that the violation was the result of high negligence. The inspector
based his negligence determination on the fact that the skid steer had been moved from another
location in the mine with the defective tire. However, he did not know whether it had been
towed. The mine’s witnesses stated that they were unaware of the defective horn and backup
alarm, and there was no mention of a pre-operational report that detailed the malfunctioning
backup alarm or horn. Because there was no evidence that the skid steer was operated with the
defective horn and backup alarm or that management had knowledge of them, I find that the
negligence is more appropriately designated as moderate.
The Secretary alleges that the violation was reasonably likely to cause a permanently
disabling injury and was S&S. The Secretary has proven a violation of a mandatory standard.
The defective backup alarm and horn presented the hazard that a person or piece of equipment
could be struck without warning by the skid steer when it was backing up. However, given the
particular facts surrounding the violation, I find that the hazard was unlikely to occur. See
Newtown Energy, Inc., 38 FMSHRC 2033, 2036 n.8 (Aug. 2016); McCoy Elkhorn Coal Corp.,
36 FMSHRC 1987, 1991-92 (Aug. 2014). It was unclear from the testimony whether the
defective tire would have been obvious to a miner and prevented him from using the machine. It
was also unclear whether anyone was working in the area and might be exposed to the machine
backing up. The inspector stated that the skid steer “couldn’t be used,” suggesting it could not
have moved far, and it appears that the skid steer may not have been used for several weeks.
Additionally, Martinez stated that the loader would have been inspected before it was put back
into service after repairs on the tire were completed. Thus, the backup alarm would most likely
have been noted as defective when the tire was repaired. See Knox Creek Coal Corp., 36
FMSHRC 1128, 1138-39 (May 2014) (finding that a violation was not S&S when the equipment
was under repair for a different defect because company policy required inspection after repair
and the cited defect would have been found and corrected before the equipment was returned to
service). I find that it was unlikely that a miner would have attempted to use the skid steer before
the alarm and horn were repaired, and thus it was unlikely that the machine would have struck
someone while backing up.
Given that I have lowered the gravity assessment, I do not assess the proposed penalty of
$3,939.00, but instead assess a penalty of $2,000.00.
Citation No. 8968777.
During his inspection of the skid steer loader, Lewis also observed oil accumulated in the
engine compartment. The oil was settled on top of the engine and the engine compartment.
Lewis believed the oil presented a fire hazard. Because the engine compartment was right behind

40 FMSHRC Page 820

the back seat, a person operating the skid steer could get burned if there was a fire. Lewis
believed injury was unlikely, however, because it would be easy for the miner to get out of the
cab. Martinez and Holman both told the inspector that they did not know how long the oil had
been present. Lewis observed dust, dirt, and mud on the bottom of the compartment, which
indicated to him that the oil had been present for several days. Martinez stated that he had not
received a report for this loader, and if he had he would have taken it out of service.
Lewis cited the mine for a violation of 30 C.F.R. § 56.4102, which provides that
“Flammable or combustible liquid spillage or leakage shall be removed in a timely manner or
controlled to prevent a fire hazard.” The Secretary defines “flammable liquid” as “a liquid that
has a flash point below 100 °F (37.8 °C), a vapor pressure not exceeding 40 pounds per square
inch (absolute) at 100 °F (37.8 °C), and is known as a Class I liquid.” 30 C.F.R. § 56.2. A
“combustible liquid” is defined as a liquid “having a flash point at or above 100 °F (37.8 °C).”
30 C.F.R. § 56.2. Thus, almost any liquid is covered except water. Lehigh Sw. Cement Co., 33
FMSHRC 340, 353 (Feb. 2011) (ALJ). Lewis did not discuss the flash point of oil, but stated that
it was a fire hazard. Respondent did not dispute the flammability or combustibility of the oil. See
Resp. Br. at 6-7.
Here, Lewis believed the oil had been present for several days based on the dust and dirt
in the compartment. Martinez admitted that had he observed the oil, he would have taken the
equipment out of service. The oil was on the engine and easily observed by anyone. The
Secretary has proven a violation.3
The Secretary alleges that the violation was the result of high negligence. Lewis based his
negligence determination on the absence of mitigating circumstances. I find that a moderate
negligence designation is more appropriate, given that the loader had not been operated for some
time, and thus a pre-operational exam would not have been conducted recently. Although the oil
was obvious, overall the violation did not rise to the level of high negligence.
The Secretary alleges that the violation was unlikely to cause injury, and that if an injury
did occur, it would likely result in lost workdays or restricted duty. The violation was marked as
non-S&S. I agree that injury was unlikely to occur because the loader had not been used for
some time and would likely be examined before it was used again. If a fire did occur, injury
including minor burns would be likely and would result in lost workdays.
The Secretary proposed a penalty of $533.00, but given the change in the negligence
assessment, I assess a penalty of $400.00
Citation No. 8968778.
In addition to the above defects, Lewis observed that the safety bar on the Caterpillar 326
skid steer loader was not functioning properly. The safety bar typically has gas shocks that hold
it in place while the machine is operating. On this loader, the gas shocks had been removed, so
the bar was not held firmly up or down. When functioning properly, the bar is intended to hold
3

As explained above, I reject the argument that the skid steer could not be inspected
because it was “unavailable for use.” See Resp. Br. at 2.

40 FMSHRC Page 821

the operator in the seat while the loader is moving, and to stay raised when the operator is
entering or exiting the cab. If the bar is lifted, it disables the machine. The cab of the skid steer
with the safety bar down is shown in Exhibit 6-16. Lewis believed the defective safety bar
presented a hazard because if the machine were to roll over, the operator would not be secure in
his seat and could even be hit by the safety bar. Additionally, the safety bar could fall and hit the
operator while he was entering the machine. Lewis did not believe that a fatality would result,
because the operator would also be wearing a seatbelt. Lewis did not know when the shocks had
been removed, and when asked, Martinez said that he did not know. Lewis said that in his
experience, the shocks lose pressure over time and have to be replaced.
Lewis cited the mine for a violation of 30 C.F.R. § 56.14100(b), which provides that
“Defects 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 Commission has made clear that
whether a defect was corrected “in a timely manner depends entirely on when the defect
occurred and when the operator knew or should have known of its existence.” Lopke Quarries,
23 FMSHRC at 715 (vacating citation when there was no evidence in the record indicating when
the cited device became defective). Thus, in order to sustain his burden of proof for a violation of
30 C.F.R. § 56.14100(b), the Secretary must present evidence demonstrating when the alleged
defect arose and when the operator knew or should have known of its existence. In this case,
Lewis stated that he did not know when the safety bar became defective. However, Lewis also
testified that the gas shocks holding the safety bar in place had been removed. I infer based on
this fact that the operator was aware of the defect. The skid steer should have been tagged out of
service for repairs at that point, which it was not. I find that the Secretary has proven a violation.
The Secretary alleges that the violation was S&S. The Secretary has proven a violation of
a mandatory standard. The standard is intended to prevent the hazard of a person operating
equipment with a safety defect. Here, however, it was unlikely that anyone would operate the
skid steer with the broken safety bar. The inspector stated that the skid steer “couldn’t be used,”
and no one had used it in approximately a month. The machine likely would have been inspected
before it was used again, giving the operator an opportunity to correct the defect. I find that the
violation was not S&S.
The Secretary alleges that the violation was the result of high negligence. The inspector
did not explain the basis for his high negligence determination at hearing, other than to say that
the shocks had been removed, yet the equipment was not tagged out or in a position where it
would be repaired. Given that the shocks had been removed, it is reasonable to infer that a person
with authority at the mine knew of the violation. I thus find that a high negligence determination
is appropriate.
The Secretary has proposed a penalty of $2,640.00, but given that the gravity of the
violation has been reduced, I find that a penalty of $1,800.00 is appropriate.

40 FMSHRC Page 822

Citation No. 8968779.
Continuing with the items listed on the hazard complaint, Lewis inspected a Caterpillar
988 front-end loader. He observed that the left front tire had a large gash in the tread that
exposed the inner rubber tire. The loader was not functional or capable of being operated.
However, it was not tagged out. It was located behind the stockpile near Crusher No. 10. The
damaged tire had been noted on a pre-operational report indicating that it had been left inside the
machine. Lewis examined the pre-operational reports in the mine office and saw that the
condition had been reported from March 20 through April 8. At the time of the inspection, Lewis
asked Martinez if the loader was in service, and Martinez said that it was not. Martinez told
Lewis that the loader had been parked because it had a bad transmission. Lewis asked Martinez
if he had a tag, and Martinez said he didn’t know. Lewis did not observe a tag on the loader or
whether a key was in the ignition. Holman also testified at hearing that the transmission on the
loader was out and inoperable. He did not recall whether there was a tag. Lewis did not start or
try to move the loader or otherwise confirm that the transmission was bad. On cross examination,
Lewis agreed that if the transmission was in fact not working, the loader could not have been
moved to do any mining work. On redirect examination, he clarified that it would depend on
what type of problem there was with the transmission. Martinez testified at hearing that there
was no defect in the tire, but rather the gash observed by the inspector was part of a repair to the
tire. Martinez stated that the loader was not locked out, but was parked where loaders were kept
for parts and not in an area where equipment was available for use.
Lewis cited the mine for a violation of 30 C.F.R. § 56.14100(b), which provides that
“Defects 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.” Respondent argues that there was no
violation because the loader was inoperable and not available for use. I am not persuaded by this
argument, because the condition was noted on pre-operational reports for several weeks,
indicating that the loader had been used with the defective tire before it became inoperable.
However, I find that the Secretary has failed to demonstrate that the gash in the tire was a defect
that affected safety as specified in the standard. See Ideal Cement Co., 12 FMSHRC 2409, 2416
(Nov. 1990) (directing the judge to consider evidence as to whether a reasonably prudent person
familiar with mining would recognize that the removal of a certain equipment part affected
safety). The inspector stated that the gash left the inner tire exposed, but did not explain the
consequence of the defect. He instead stated that the tire was unlikely to cause injury because
there was no exposure. Therefore, the citation is vacated.
Citation No. 8968781.
During the course of the hazard complaint inspection on May 9, Lewis also observed that
the switches for conveyor No. 12 and feeder conveyor No. 7 did not function when pushed. The
condition had been part of the hazard complaint. The switches were located in the control panel.
Lewis asked the control room operator to start all of the conveyors as he would when he starts
the plant. Conveyor No. 12 and feeder conveyor No. 7 did not start. Lewis believed the switches
created a hazard of electrical shock. However, he noted that the main power was locked out
when he arrived, which meant that there was no power to those breakers either. The control room
operator only energized the power at Lewis’s request so that he could test the switches. The

40 FMSHRC Page 823

individual breakers were not locked and tagged. Lewis stated that when he arrived for the
inspection, Martinez was already aware of the condition and was waiting for an electrician to
arrive to repair the switches.
Nate Stein was working as a laborer running the control panel at the time of the
inspection. He stated that at the time of the inspection, the system was locked down while they
were waiting on parts for the breaker. When Lewis arrived, he informed Stein that he needed to
see the plant running. Stein told Lewis that they had electrical problems with the breakers and
they were locked out. Lewis told him not to fire up the ones that were broken, but asked him to
get everything else running. Stein stated that he took the lock off the main power breaker and
proceeded to fire everything up. Stein’s lock on the main breaker is shown in Exhibit J. The daily
log-in sheets introduced by Respondent as Exhibit K show that the mine was waiting on the
breaker parts on May 8, 2018, the day before the inspection. The plant restarted on May 9 around
5:30 p.m. after an electrician came out to check everything.
William Garrett, who worked on the electrical boxes at the crusher on May 9, testified at
hearing that there was a problem with the conveyors starting and stopping on May 4, 2017.
Someone at the mine tested the circuit breakers in boxes 7 and 12 and determined that they were
bad. Garrett ordered parts and replaced the breakers on May 9. He testified that the system was
locked out for four days until the parts arrived. Nate Stein had locked out the main power supply,
and Garrett himself had also locked out box 7 and box 12 when he pulled the breakers out. While
there would have been no power to any of the control panels with the main power disconnected,
Garrett explained that it was still necessary to lock out the boxes because the breakers had been
removed.
Lewis cited the mine for a violation of 30 C.F.R. § 56.12002, which provides that
“Electric equipment and circuits shall be provided with switches or other controls. Such switches
or controls shall be of approved design and construction and shall be properly installed.” While
the parties agree that the cited switches were not functioning, the operator was aware of the
condition and had shut down the system and locked out the main power supply until the switches
could be repaired.
The testimony of the witnesses for both the Secretary and the operator clearly established
that the operator was aware of the defective switches prior to the inspection and repairs were
already underway. While there was some dispute as to whether the individual breakers were
locked out, the main power supply was locked out and there was no power to the defective
switches. The Secretary did not present any evidence related to the elements of the standard cited
and has not cited any decision in which a citation was upheld under similar circumstances. I find
that in shutting down and locking out the affected area and initiating repairs, the operator
complied with the requirements of the standard. The citation is vacated.
Citation No. 8968787.
Inspector Lewis returned to Crusher No. 10 again on May 11, 2018, to investigate a
reported accident. He learned that the mine foreman, Chris Lucero, had received an injury to his
finger while investigating an issue with the conveyor. The conveyor had stopped and Lucero, as

40 FMSHRC Page 824

foreman, was responsible for directing repairs if any problems arose at the plant. Three other
people were in the area at the time, including Nate Stein and Lance Richards. Lucero removed
the guard to the 3/8” drive pulley and belt to see if there was a problem, then asked the control
room operator, Stein, to start the conveyor. When Stein started the conveyor, Lucero had his
finger on the drive pulley, and it was injured, resulting in the need for 40 stitches to his left
middle finger. Stein was not in Lucero’s line of sight when Stein started the conveyor, but the
conveyor was equipped with an alarm, which the control room operator would have activated
before starting the conveyor in order to warn people in the area. While there was testimony that
the area was noisy and the alarm difficult to hear, a citation was not issued for the alarm. Lewis
had inspected the alarm during the hazard complaint inspection two days earlier and found that it
functioned.
Testimony from the mine’s witnesses was largely consistent with Lewis’s account of the
incident. Nate Stein was present when Lucero injured his finger. He testified that he and Lucero
were in the control room when an employee came running in and said that one of the belts had
stopped. Lucero shut everything down and they walked out to the belt that had stopped. Lucero
jumped onto a frame above the belt to look at it. He removed one of the guards and then asked
Stein to try turning the power on because it looked like there was nothing wrong with it. Stein
walked to the control room, sounded the alarm, and turned the power on. A few seconds later,
another employee came running in to say that Lucero had badly cut his finger. Stein stated that,
in his opinion, it was necessary to test the belt with the guard removed before it was locked out.
Martinez, the safety manager, was also on site in a different area of the mine when the
injury to Lucero occurred. Stein came to tell him what had happened, and after reviewing what
had happened, Martinez gave Lucero and Stein a written warning about lockout/tagout
procedures. After the injury, Lucero did not return to work.
Inspector Lewis believed that the conveyor should have been locked out and tagged out
before the guard was removed. If it was necessary to start the conveyor to troubleshoot, Lucero
should have stood farther from the moving parts. Lewis cited the mine for a violation of 30
C.F.R. § 56.14105, which provides that “Repairs or maintenance of machinery or equipment
shall be performed only after the power is off, and the machinery or equipment blocked against
hazardous motion. Machinery or equipment motion or activation is permitted to the extent that
adjustments or testing cannot be performed without motion or activation, provided that persons
are effectively protected from hazardous motion.” (Emphasis added). In this instance, Lewis
stressed that the primary concern was that Lucero was not far enough back from the moving belt
as he was troubleshooting, and therefore was not protected from hazardous motion. Lewis
believed it was reasonably likely that a more serious injury could have occurred, including an
amputation if Lucero became entangled in the pulley and drive belt.
Respondent argues that the citation should be vacated because the standard allows for
“machinery motion or activation” in situations where troubleshooting is being done. Resp. Br. at
9. Respondent notes that the conveyor was locked out once the problem was identified.
However, the standard permits machinery activation only “provided that persons are effectively
protected from hazardous motion.” 30 C.F.R. § 56.14105; see also Empire Iron Mining P’ship,
29 FMSHRC 999, 1007 (Dec. 2007) (finding that warnings, training, and location of moving

40 FMSHRC Page 825

parts did not provide adequate protection where a miner was killed by moving parts during
repairs). It is clear that miners were not “effectively protected,” given that Lucero was in close
proximity to the moving machine parts and was injured. I find that the Secretary has proven a
violation.
The Secretary alleges that the violation was the result of high negligence. Lewis stated
that once the guard was removed, the exposed parts were an obvious hazard. He noted that
Lucero was a foreman and was aware that Stein was about to start the belt. Lucero should have
known to step back at that point. As a foreman, Lucero was an agent of the operator, and his
negligence is attributed to the operator. In view of Lucero’s status as a foreman and the
obviousness of the hazard, I find that the high negligence designation is appropriate.
The inspector also designated the citation as an unwarrantable failure to comply with the
standard. The “unwarrantable failure” terminology is taken from Section 104(d) of the Act, 30
U.S.C. § 814(d). The Commission has explained that unwarrantable failure is “aggravated
conduct constituting more than ordinary negligence. [It] is characterized by conduct described as
‘reckless disregard,’ ‘intentional misconduct,’ ‘indifference,’ or a ‘serious lack of reasonable
care.’” Consol. Coal Co., 22 FMSHRC 340, 353 (Mar. 2007) (citing Emery Mining Corp., 9
FMSHRC 1997, 2001-04 (Dec. 1987)) (citations omitted). In determining whether a violation is
an unwarrantable failure, the Commission has instructed its judges to consider all of the relevant
facts and circumstances in the case and determine whether there are any aggravating or
mitigating factors. Id. Aggravating factors to be considered include
the length of time that the violation has existed, the extent of the
violative condition, whether the operator has been placed on notice
that greater efforts were necessary for compliance, the operator’s
efforts in abating the violative condition, whether the violation was
obvious or posed a high degree of danger, and the operator’s
knowledge of the existence of the violation.
IO Coal Co., 31 FMSHRC 1346, 1352 (Dec. 2009); see also Consol., 22 FMSHRC at 353. The
negligence of an operator’s agent is imputable to the operator for penalty assessment and
unwarrantable failure purposes. Nelson Quarries, Inc., 31 FMSHRC 318, 328 (Mar. 2009). The
Commission has long recognized that mine foremen are agents of the mine operator. See, e.g.,
Southern Ohio Coal Co., 4 FMSHRC 1459, 1463-64 (Aug. 1982). Based upon the following
analysis of the factors enumerated by the Commission, I find that the Secretary has proven an
unwarrantable failure in this case.
Duration. In IO Coal Co., the Commission emphasized that the duration of time that the
violative condition existed is a “necessary element” of the unwarrantable failure analysis. 31
FMSHRC at 1352. However, the brief duration of a violative condition is not a mitigating factor.
Knight Hawk Coal, LLC, 38 FMSHRC 2361, 2371 (Sept. 2016). In Midwest Material Co., the
Commission noted that the brief duration of a violation does not weigh against a finding of
unwarrantable failure when the violation is highly dangerous and obvious. 19 FMSHRC 30, 36
(Jan. 1997) (finding that a brief, highly dangerous violation resulting in a fatality was “readily
distinguishable from other types of violations . . . where the degree of danger and the operator’s

40 FMSHRC Page 826

responsibility for learning of and addressing the hazard may increase gradually over time”). In
that case, the Commission noted that the condition existed for a short time only because it led to
an accident causing a fatality. Id. Here, the violation existed for a short period of time while
Lucero was troubleshooting the stopped conveyor. The conveyor was locked out after Lucero’s
injury occurred. However, the brief duration was enough time for injury to occur, and the
condition might have persisted longer had it not resulted immediately in injury.
Extensiveness. The extent factor is intended to “account for the magnitude or scope of the
violation” in the unwarrantable failure analysis. Dawes Rigging & Crane Rental, 36 FMSHRC
3075, 3079 (Dec. 2014). Facts relevant to the extent of the condition include the size of the
affected area and the number of persons affected. Id. at 3079-80. In Dawes, the Commission
found that where one miner endangered himself by walking under a suspended load for a period
of seconds, the violation was not extensive. Id. at 3080. Here, Lucero was the only miner
affected. Richards testified that he was within arm’s length of Lucero when the conveyor was
turned on, but no one except Lucero was close enough to be injured by the moving parts.
Extensiveness, therefore, does not weigh in favor of the unwarrantable finding.
Notice. A mine operator may be put on notice that it has a recurring safety problem in
need of correction where there is a history of similar violations. Black Beauty Coal Co. v.
FMSHRC, 703 F.3d 553, 561 (D.C. Cir. 2012); IO Coal, 31 FMSHRC at 1353; Peabody Coal
Co., 14 FMSHRC 1258, 1264 (Aug. 1992). Prior violations may be relevant even though they
did not involve the same regulation or occur in the same area of the mine within a continuing
time frame. IO Coal, 31 FMSHRC at 1354; San Juan Coal Co., 29 FMSHRC 125, 131 (Mar.
2007); Peabody, 14 FMSHRC at 1263. It is not required that the past violations were the result
of unwarrantable failure. IO Coal, 31 FMSHRC at 1354; Consolidation Coal Co., 23 FMSHRC
588, 595 (June 2001). Past discussions with MSHA can also serve to place the operator on notice
that greater efforts were necessary to assure compliance with the safety standard. Consolidation
Coal Co. 35 FMSHRC 2326, 2342 (Aug. 2013) (citing cases). The Secretary notes that the mine
received a citation for an unguarded tail pulley less than two weeks earlier, Citation No. 8968772
discussed above. However, that citation involved a permanent guard and appeared to be an
isolated problem. I do not find that the single guarding citation put the mine on notice of a
problem with guarding in general at the mine. The real issue here was keeping away from a
hazard when engaged in troubleshooting and repair. There is no evidence that the mine had been
placed on notice in that regard, and hence, notice was not a substantial aggravating factor in this
case.
Abatement. Abatement efforts prior to or at the time of the inspection may support a
finding that the violation was not unwarrantable. Utah Power & Light Co., 11 FMSHRC 1926,
1933-34 (Oct. 1989). Conversely, where the operator has notice of a condition, such as through
previous violations or conversations with an inspector, a failure to remedy the problem weighs in
favor of an unwarrantable failure finding. Consol., 35 FMSHRC at 2343; Enlow Fork Mining
Co., 19 FMSHRC 5, 17 (Jan. 1997). Abatement efforts relevant to the unwarrantable failure
analysis are those made prior to the issuance of the citation or order. Consol., 35 FMSHRC at
2342; IO Coal, 31 FMSHRC at 1356. Respondent introduced refresher training records for
Lucero showing that he received training on guarding and prevention of accidents in January
2017. Nevertheless, it is clear that Lucero, who was a management employee, made no effort to

40 FMSHRC Page 827

abate the violation by moving away from the machine or asking other employees to stand clear.
Therefore, abatement is not a mitigating factor in this case.
Degree of danger. A high degree of danger posed by a violation can be an aggravating
factor that supports an unwarrantable failure finding. IO Coal, 31 FMSHRC at 1355-56. In some
cases, the degree of danger may be “so severe that, by itself, it warrants a finding of
unwarrantable failure.” Manalapan Mining Co., 35 FMSHRC 289, 294 (Feb. 2013). The degree
of danger was high in this instance. Lucero received a moderately serious injury, and the
potential existed for a more serious injury if he had become entangled in the belt. I find that this
factor weighs in favor of the unwarrantable finding.
Knowledge/Obviousness. The obviousness of the violative condition is an important
factor in the unwarrantable failure analysis. IO Coal, 31 FMSHRC at 1356. An operator’s
knowledge of the existence of a violation may be established not only by demonstrating actual
knowledge, but also by showing that the operator “reasonably should have known of the
violative condition.” IO Coal Co., 31 FMSHRC 1346, 1356-1357 (Dec. 2009); see also
Drummond Co., 13 FMSHRC 1362, 1367-68 (Sept. 1991); E. Associated Coal Corp., 13
FMSHRC 178, 187 (Feb. 1991); Emery Mining Corp., 9 FMSHRC 1997, 2002-04 (Dec. 1987).
Here, Lewis stated that the moving machine parts were obvious when the guard was
removed. As a foreman, Lucero should have known how to troubleshoot without putting
himself and others in danger, and certainly he should have known not to put his hand into an
area with a moving belt. His knowledge is imputed to the operator.
The degree of danger and the obvious nature of the violation are the primary bases to
support a finding of unwarrantable failure. In addition, there was no effort to abate. It is true that
the mine had not been placed on notice, and the duration factor does not significantly weigh in
either direction. The Commission addressed a similar case involving a dangerous and obvious
violation by a supervisor in Capitol Cement Corp., 21 FMSHRC 883 (Aug. 1999), aff’d, 229
F.3d 1141 (4th Cir. 2000). In that case, a shift supervisor was injured when he attempted to
perform maintenance on a crane without wearing a safety belt or deenergizing the rail that
provided electrical power to the crane. The supervisor contacted the energized rail and received
severe burns to his forearm. Another miner was forced to run along a craneway and down a
stairway to a circuit breaker to deenergize the crane. Id. at 884. The Commission upheld the
judge’s unwarrantable failure finding, citing the obviousness and high degree of danger of the
violation. Id. at 892. The Commission also noted that supervisors are subject to a high standard
of care under the Act, and that they are “entrusted with augmented safety responsibility and …
obligated to act as [] role model[s]” for their subordinates. Id. at 893. The Commission found
that the supervisor’s failure to meet that high standard of care, especially in the presence of a
subordinate, supported the unwarrantable failure finding. Id.
Respondent argues that an unwarrantable failure finding is inappropriate in this case
because Lucero was merely thoughtless and inattentive. Resp. Br. at 9. While Lucero’s injury
was certainly the result of carelessness, that carelessness is measured against the high standard of
care demanded of a supervisor. Lucero had an obligation to follow safety procedures and
exercise care to ensure the safety of himself and other miners, which included protecting them
from moving machine parts during maintenance. His failure to do so in the presence of

40 FMSHRC Page 828

subordinates was an aggravated breach of his duty of care. I find that the violation is properly
designated as an unwarrantable failure.
The Secretary also alleges that the violation was S&S. The Secretary has proven a
violation of a mandatory safety standard, satisfying the first Mathies element. The violation
involved the hazard that a miner could become entangled in moving machine parts. Given
Lucero’s proximity to the conveyor when it was activated, the hazard was likely to occur. The
hazard caused Lucero to receive a reasonably serious injury to his finger, satisfying the third and
fourth elements. I assess the proposed penalty of $4,377.00.
III. PENALTY
The principles governing the authority of Commission Administrative Law Judges to
assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i)
of the Mine Act delegates to the Commission and its judges “authority to assess all civil penalties
provided in [the] Act.” 30 U.S.C. § 820(i). The duty of proposing penalties is delegated to the
Secretary. 30 U.S.C. §§ 815(a), 820(a). The Secretary calculates penalties using the penalty
regulations set forth in 30 C.F.R. § 100.3 or following the guidelines for special assessments in
30 C.F.R. § 100.5. When an operator notifies the Secretary that it intends to challenge a penalty,
the Secretary then petitions the Commission to assess the penalty. 29 C.F.R. § 2700.28.
Commission judges are not bound by the Secretary’s penalty regulations or his special
assessments. Am. Coal Co., 38 FMSHRC 1987, 1990 (Aug. 2016). Rather, the Act requires that
in assessing civil monetary penalties, the judge must consider six statutory penalty criteria: the
operator’s history of violations, its size, whether the operator was negligent, the effect on the
operator’s ability to continue in business, the gravity of the violation, and whether the violation
was abated in good faith. 30 U.S.C. § 820(i). In keeping with this statutory requirement, the
Commission has held that judges must make findings of fact on the statutory penalty criteria.
Sellersburg Stone Co., 5 FMSHRC 287, 292 (Mar. 1983), aff'd, 736 F.2d 1147, 1152 (7th Cir.
1984). Once these findings have been made, a judge’s penalty assessment for a particular
violation is an exercise of discretion “bounded by proper consideration of the statutory criteria
and the deterrent purposes underlying the Act’s penalty scheme.” Id. at 294; see also Cantera
Green, 22 FMSHRC 616, 620 (May 2000). The Commission requires that its judges explain any
substantial divergence from the penalty proposed by the Secretary. Am. Coal, 38 FMSHRC at
1990. However, the judge’s assessment must be de novo based upon her review of the record,
and the Secretary’s proposal should not be used as a starting point or baseline. Id.
The history of assessed violations at Crusher No. 10 has been admitted into evidence and
shows 27 violations that became final orders in the 15-month period prior to the inspection. Ex.
1. Four involve equipment hazards, and eight involve problems with guarding. The parties agree
that the citations at issue were abated in good faith. The mine has not raised the defense of ability
to pay. The negligence and gravity have been discussed above with respect to each citation. The
penalties are assessed as follows:

40 FMSHRC Page 829

Citation No.

Originally
Proposed
Assessment

Assessed
Amount

Modification

Docket No. CENT 2017-0397
8968772
8968774
8968775
8968776

$3,939.00
$8,768.00
$533.00
$3,939.00

$2,000.00
$8,768.00
$533.00
$2,000.00

Modify negligence from high to moderate.
None.
None.
Modify negligence from high to moderate.
Modify likelihood of injury from reasonably
likely to unlikely. Remove S&S designation.
Modify negligence from high to moderate.

8968777

$533.00

$400.00

8968780
8968781
TOTAL

$533.00
$533.00
$18,778.00

$533.00
$0.00
$14,234.00

None.
Vacate.

$4,377.00
$4,377.00

None.

None.
Modify negligence from high to moderate.
None.
None.
Modify likelihood of injury from reasonably
likely to unlikely. Remove S&S designation.
Vacate.

Docket No. CENT 2017-0432
8968787
TOTAL

$4,377.00
$4,377.00

Docket No. CENT 2017-0433
8968761
8968762
8968771
8968773
8968778

$1,770.00
$533.00
$533.00
$1,770.00
$2,640.00

$1,770.00
$500.00
$533.00
$1,770.00
$1,800.00

8968779
TOTAL

$533.00
$7,779.00

$0.00
$6,373.00

IV. ORDER
Respondent is hereby ORDERED to pay the Secretary of Labor the sum of $24,984.00
within 30 days of the date of this decision.

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

40 FMSHRC Page 830

Distribution: (U.S. First Class Mail)
Felix Marquez, U.S. Department of Labor, Office of the Solicitor, 525 S. Griffin Street, Suite
501, Dallas, TX 75202
Charles W. Newcom, Sherman & Howard LLC, 633 17th Street, Suite 3000, Denver, CO 80202

40 FMSHRC Page 831

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
721 19TH ST. SUITE 443
DENVER, CO 80202-2500
TELEPHONE: 303-844-5266 / FAX: 303-844-5268

June 13, 2018
CIVIL PENALTY PROCEEDING

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

Docket No. SE 2017-252
A.C. No. 40-03297-441925

v.
JAMESTOWN QUARRIES,
Respondent.

Mine: Rocky Ridge Custom Crushing LLC

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

CIVIL PENALTY PROCEEDING
Docket No. SE 2017-253
A.C. No. 40-03297-442550

v.
ROCKY RIDGE CUSTOM CRUSHING
LLC,
Respondent.

Mine: Rocky Ridge Custom Crushing LLC

DECISION
Appearances:

Mary Sue Taylor, Esq., U.S. Department of Labor, Office of the Solicitor,
Nashville, Tennessee, for Petitioner
Howard Upchurch, Esq., Pikeville, Tennessee, for Respondent

Before:

Judge Simonton
I. INTRODUCTION

These cases are before me upon two petitions for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”),
against Jamestown Quarries and Rocky Ridge Custom Crushing, LLC, pursuant to the Federal
Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. §801.1 The petitions allege three
citations against Jamestown Quarries and one citation against Rocky Ridge Custom Crushing.
1

In this decision, the transcript, the Secretary’s exhibits, and Respondent’s exhibits are
abbreviated as “Tr.,” “Ex. G–#,” and “Ex. R–#,” respectively.

40 FMSHRC Page 832

The Respondents share common ownership, are located in close proximity, and stipulated that if
the court were to find that MSHA has jurisdiction over the Rocky Ridge Custom Processing
Shop, the Jamestown Quarries Garage, or both, then the associated citations were properly issued
and valid. Resp. Br. at 2; Tr. 8-9. For these reasons, the dockets were consolidated for a hearing
on the jurisdictional issue.
The parties presented testimony and documentary evidence at a hearing held in
Crossville, Tennessee on February 22, 2018. MSHA Inspector John Myers, Jr. testified for the
Secretary. Site Foreman Gabe Clayborn and co-owner Patrick Garrison testified for Jamestown
and Rocky Ridge (“Hereinafter Respondents”). The parties submitted post-hearing briefs, which
have been fully considered.
II. FINDINGS OF FACT
The Rocky Ridge Stone Quarry (“Quarry”) is located in Cumberland County, Tennessee.
The Quarry mines and produces dimensional stone, or sandstone, for resale in interstate
commerce. Tr. 16. Adjacent to the Quarry is a three-building complex that includes an office
trailer, the Jamestown Quarries Garage (“Garage”), and the Rocky Ridge Custom Processing
Shop (“Shop”). Tr. 113-14. All three operations conduct their administrative operations out of
the office trailer. Tr. 111. There is no dispute as to MSHA’s jurisdiction over the common office
space or the Quarry itself. Tr. 23-24.
The Quarry is entered by going down a road that passes next to the three-building
complex. Tr. 139-40. Along this road, a gated fence separates the three-building complex from
the Quarry and two warning signs are posted to the gate. Exs. G–14, 15; Tr. 45, 142. The first
sign warns of blasting danger in the Quarry and directs individuals to register at the office trailer,
receive the necessary site-specific hazard awareness training, or be accompanied by an
experienced miner when entering the premises. Ex. G–15. The second sign prohibits through
traffic and lists general traffic rules for the Quarry site. Ex. G–14.
The Jamestown Quarries Garage is located directly behind the office trailer and is
connected to the Shop by a common breezeway. Ex. G–2. The Garage is leased to Jamestown
Quarries by Rocky Ridge Stone Company, although both companies are commonly owned by
Patrick Garrison and Johnny Presley as Bedrock Partnership Holdings. Tr. 102, 173. The Garage
serves as a storage, repair, and maintenance building, in which Jamestown’s mechanics work on
equipment that is used in the course of the owners’ business ventures. Tr. 114-15; 174. The
Jamestown Quarry itself is located approximately 52 miles north of the Garage and is shut down.
Tr. 178-79.
The parties dispute whether any Rocky Ridge equipment is serviced inside the Garage.
The Respondents maintain that the Garage is not large enough to hold or service other equipment
related to the Rocky Ridge Quarry. Tr. 114-15; 162. However, Foreman Gabe Clayborn would
not unequivocally state that quarry equipment has never been serviced in the garage itself. Tr.
149-50. Inspector Myers testified that he had no doubts that Quarry equipment was maintained in
the Garage because it was located so close to the Quarry. Tr. 89. He noted that the Garage also
stored an inoperative rock breaker. Tr. 116. The rock breaker has been stored there for

40 FMSHRC Page 833

approximately two years to protect it from adverse weather. Id. Respondents testified that it
would be unable to use the breaker even if it was operable because it would be too difficult to
transport material from the Quarry to the Garage. Tr. 116-17.
The parties do not dispute that the Garage’s mechanics work on Quarry equipment in
general, however. The Garage has a MSHA Contractor Identification number so that its
employees may be on the Rocky Ridge Quarry site for five or more consecutive days. Tr. 17273. Clayborn testified that Jamestown registered for a contractor ID number so that the Garage’s
mechanics may travel to the quarry to maintain, repair, or weld any equipment that might require
service. Tr. 173-75. The mechanics use a service truck stocked with all of the tools and supplies
necessary to perform these functions at the Rocky Ridge Quarry, as well as other nearby
quarries. Tr. 176, 179. The truck is stored in the Garage. Id.
The Rocky Ridge Custom Processing Shop (“Shop”) is adjacent to the office trailer and
Garage to the south. Ex. G–2; Tr. 117. The Shop consists of two sections, separated by a
partition stretching approximately three quarters the length of the building. Tr. 125-26. The first,
larger section has a gabled roof and was constructed in 2012. Tr. 122. The entry way to the
gabled portion contains a sign that reads “Rocky Ridge Stone Co. Polishing & Finishing Shop.”
Ex G–6; Tr. 41, 129. The gabled section contains two large rock breakers that Respondent uses
to break, cut, and size rock. Tr. 124, 126. The second section has a flat roof and was constructed
in 2014. Tr. 126. This section contains a saw and polisher used for additional sizing and
finishing. Tr. 40-41, 126-27.
Rocky Ridge excavates the rock from the Quarry, breaks the rock, and brings some of the
rock into the Shop for additional cutting, sizing and finishing per customer orders. Tr. 131-32.
Respondents also break and size rock outside of the Shop, and they do not polish or finish all of
the rock that is excavated from the Quarry. Tr. 157. Rocky Ridge also removes some of the rock
from the building to be palletized outside of the building. Id. A significant amount of cut stone is
palletized outside of the Shop. Ex. G–8; Tr. 133-34.
In 2016, MSHA sent the Respondents a letter informing them that it had conducted an
analysis and determined that it had jurisdiction over the buildings pursuant to the Mine Act and
the 1979 MSHA-OSHA Interagency Agreement. Ex. R–5; Tr. 28-29, 169. Respondents received
the letter but interpreted its language to exclude the Shop and Garage from MSHA jurisdiction
based on certain terms within the Interagency Agreement. Ex. R–5; Tr. 167-69. While the
Respondents believed that OSHA had jurisdiction over the buildings, they acknowledged at
hearing that OSHA has never asserted jurisdiction over, nor inspected any area of the property.
Tr. 154-55, 172.

40 FMSHRC Page 834

The interpretational differences came to a head in early May 2017 when MSHA inspector
John Myers, Jr.2 inspected the Rocky Ridge Stone Quarry.3 Myers held two safety meetings; the
first took place in the Garage in front of approximately 15 employees, and the second took place
in the quarry yard in front of five employees. Tr. 20. Myers inspected the surface and the
common office building, but did not inspect the Garage or the Shop because management told
him that they were not part of the Quarry. Id. When Myers returned to the MSHA office, his
supervisor told him that MSHA had jurisdiction over the two buildings and instructed him to
return to the site to complete the inspection. Tr. 29. Myers conducted the second inspection on
May 8-9, 2017. Tr. 29. Mine management initially refused Myers entry to the buildings but
eventually allowed him to inspect the areas over their objections. Tr. 29-30.
Myers issued three citations to Jamestown Quarries for violations within the Garage.
Citation No. 8901448 alleged a violation of 30 C.F.R. § 56.4430(a)(1) for the operator’s failure
to properly store a propane tank and several spray cans containing flammable materials. Ex. G–
16. Citation No. 8901449 alleged a violation of 30 C.F.R. § 56.14100(a) for the operator’s failure
to adequately maintain a load lifting strap. Id. Citation No. 8901452 alleges a violation of 30
C.F.R. § 56.12008 for the failure to properly bush a 120-VAC control box. Id. Myers issued
Citation No. 8901451 to Rocky Ridge Custom Crushing LLC alleging a second violation of §
56.12008, this time in the Shop, for the operator’s failure to substantially bush a stone saw’s 120VAC control box. Ex. G–17.
The Respondents allege that MSHA does not have jurisdiction over either building. They
argue that the Garage performs no work for the Quarry, and that the Shop is explicitly exempted
from MSHA jurisdiction per the MSHA-OSHA Interagency Agreement. Respondents’ PostHearing Brief (“Resp. Br.”) at 8-9. The Secretary disagrees, arguing that the proximity of the
Shop and Garage to the Rocky Ridge Quarry and the work being done in each building is related
to milling and within MSHA’s jurisdiction. Secretary’s Post-Hearing Brief (“Sec’y Br.”) at 8-9.
The parties stipulated, for the purposes of this case, that if MSHA retains jurisdiction
over the Garage and the Shop, the four citations that comprise the two dockets were properly
issued and valid. Tr. 8-9. Based on the parties’ briefs and my review of the witness testimony
and the entire record, I find that MSHA’s jurisdiction over both buildings is proper and
accordingly affirm all four associated citations.

2

Inspector Myers has been an MSHA inspector for over 11 years, and began inspecting
mental/nonmetal mines in 2015. Tr. 13. He has over 20 years of mining experience. Tr. 14.
Myers completed training at the Mine Safety and Health Academy in Beaver, West Virginia,
underwent mine rescue training and instructor training, and has taught mine safety and foreman
classes. Id. He is a certified underground mine foreman in Kentucky, and was previously
certified as a surface and underground foreman in Virginia prior to letting the certification lapse.
Id.
3
Inspector Myers could not recall the exact dates of the first inspection, but noted that it
took place approximately a week prior to the May 8-9, 2017 inspection at issue. Tr. 17.

40 FMSHRC Page 835

III. CONCLUSIONS OF LAW
A. The Mine Act
The Mine Act provides that “[e]ach coal or other mine . . . and each operator of such
mine . . . shall be subject to the provisions of this Act.” 30 U.S.C. § 803.
The Act defines a “coal or other mine” as
(A) an area of land from which minerals are extracted in nonliquid
form . . . (B) private ways and roads appurtenant to such area, and
(C) lands, excavations, underground passageways, shafts, slopes,
tunnels and workings, structures, facilities, equipment, machines,
tools, or other property… including impoundments, retention
dams, and tailings ponds, on the surface or underground, used in,
or to be used in, or resulting from, the work of extracting such
minerals from their natural deposits in nonliquid form, . . . or used
in, or to be used in, the milling of such minerals, or the work of
preparing coal or other minerals, and includes custom coal
preparation facilities. In making a determination of what
constitutes mineral milling for the purposes of this Act, the
Secretary shall give due consideration to the convenience of
administration resulting from the delegation to one Assistant
Secretary of all authority with respect to the health and safety of
miners employed at one physical establishment.
30 U.S.C. § 802(h)(1).
The legislative history of the Act indicates that the intention of Congress was that “what
is considered to be a mine and to be regulated under this Act be given the broadest possibl[e]
interpretation.” S. Rep. No. 95-181, at 14 (1977). Congress was clear in its intent that if any
uncertainty existed to whether a facility or site should come under MSHA jurisdiction, those
doubts shall be resolved in favor of inclusion of a facility within the coverage of the Act. Watkins
Engineers & Constructors, 24 FMSHRC 669, 675-76 (July 2002).
Section 3(h)(1)(C) defines a “mine” to include “structures” and “facilities” used in
“milling” or “the work of…preparing coal or other minerals.” Id. The section also expressly
grants the Secretary the authority to determine what constitutes “mineral mining” under the Act.
30 U.S.C. § 802(h)(1); see also Watkins, 24 FMSHRC at 673 (citations omitted). Accordingly,
the language of Section 3(h)(1) “gives the Secretary discretion, within reason, to determine what
constitutes mineral milling, and thus indicates that his determination is to be reviewed with
deference by both the Commission and the courts.” Donovan v. Carolina Stalite Co., 734 F.2d
1547, 1552 (D.C. Cir. 1984). The Act does not require that the structures of facilities be owned
by a firm that also engages in the extraction of minerals from the ground or that they be located
on property such extraction occurs. Id. at 1552. However, the Court of Appeals for the Sixth
Circuit recently held that MSHA’s jurisdiction extends to such structures and facilities only “if

40 FMSHRC Page 836

they are in or adjacent to—in essence part of—a working mine. Maxxim Rebuild Co., LLC v.
FMSHRC, 848 F.3d 737, 740 (6th Cir. 2017).
B. The MSHA-OSHA Interagency Agreement
To provide further clarification on the language of section 3(h)(1)(C) the Secretary
defined “milling” in the 1979 MSHA-OSHA Interagency Agreement (“Interagency Agreement”)
as “the separation of one or more valuable desired constituents of the crude [crust of the earth]
from the undesirable contaminants with which it is associated.” 44 Fed. Reg. 22, 827 (Apr. 17,
1979), amended by 48 Fed Reg. 7, 521 (Feb 22, 1983). Appendix A of Agreement specifies that
MSHA’s authority over milling processes include “crushing, grinding, pulverizing, sizing,
concentrating, washing, drying, roasting, pelletizing, sintering, evaporating, calcining, kiln
treatment, sawing and cutting stone, heat expansion, retorting (mercury), leaching, and
briquetting.” Id. Only one of these activities must be conducted in order for MSHA to assert
jurisdiction over the facility or property. Jermyn Supply Co., LLC, 39 FMSHRC 1472, 1484
(July 2017) (citations omitted).
Relevant to this case, section 6(a) of the Agreement identifies that MSHA jurisdiction
over milling operations includes “stone cutting and stone sawing operations on mine property
where such operations do not occur in a stone polishing or finishing plant.” 44 Fed. Reg. at
22,828. Appendix A further defines “Custom Stone Finishing” to commence at the point “when
milling, as defined, is completed, and the stone is polished, engraved, or otherwise processed to
obtain a finished product and includes sawing and cutting when associated with polishing and
finishing. Id. at 22,830.
However, the Agreement acknowledges that “there will remain areas of uncertainty
regarding the application of the Mine Act, especially in operations near the termination of the
milling cycle and the beginning of the manufacturing cycle.” Id. Section B(4) provides that
“Under section 3(h)(1) of the Mine Act, the scope of the term milling may be expanded to apply
to mineral product manufacturing processes where these processes are related, technologically or
geographically, to milling.” 44 Fed. Reg. at 22, 828. In resolving these areas of uncertainty, the
Secretary should consider the processes conducted at the facility, the relation of all processes at
the facility to each other, the number of individuals employed in each process, and the expertise
and enforcement capability of each agency with respect to the safety and health hazards
associated with all processes conducted at the facility. Id.
The Agreement thus defers to the language of section 3(h)(1) instructing the Secretary to
“give due consideration to the convenience of administration resulting from the delegation…with
respect to the health and safety of miners employed at one physical establishment.” Id. The
Secretary’s interpretation of the term is therefore entitled to deference so long as it is reasonable.
See Watkins Engineers & Constructors, 24 FMSHRC at 673 (holding that Congress explicitly
left a gap in section 3(h)(1) of the Mine Act delegating to the Secretary the authority to interpret
what constitutes “milling,” and therefore that interpretation is entitled to Chevron deference so
long as it is reasonable).

40 FMSHRC Page 837

IV. DISPOSITION
There is no dispute that the Rocky Ridge Stone Quarry adjacent to the Garage and Shop
engages in “milling” as defined by the Interagency Agreement, and is thus subject to MSHA’s
jurisdiction. Rather, The Respondents contest whether that jurisdiction extends to the Garage and
Shop, respectively.
The Respondent contends that MSHA does not have jurisdiction over the Jamestown
Quarries Garage because it does not engage in milling on behalf of the Rocky Ridge Quarry, nor
does it service or maintain equipment related to the Quarry. Resp. Br. at 5. The Respondent
argues that the Garage lacks sufficient connection to the Rocky Ridge Quarry because they are
located on different properties and are not owned by the same entity. Id. The Respondent argues
that MSHA does not have jurisdiction over the Rocky Ridge Shop because the shop constitutes a
“polishing or finishing plant” under the Interagency Agreement and is therefore subject to OSHA
jurisdiction. Id. at 8.
The Secretary counters that the Jamestown Garage Quarry falls under MSHA’s
jurisdiction because it is located adjacent to the Rocky Ridge Quarry and does in fact provide
repair and maintenance services for the Quarry. Resp. Br. at 9. The Secretary argues that the
Rocky Ridge Processing Shop falls under MSHA’s jurisdiction because it located adjacent to the
Quarry and does not qualify as a “finishing plant” as defined under the Interagency Agreement.
The Secretary maintains that the presence of a single polisher among other equipment used to
break, cut, and size rock classifies the building as performing “milling” as defined by the
Agreement. Id. at 8-9.
Because the jurisdictional issues differ as to each facility, the court will address them in
turn.
A. The Jamestown Quarries Garage
The Jamestown Quarries Garage is primarily used for storage, repairs, and maintenance
work for Garrison’s and Presley’s various other businesses. It does not conduct “milling” as
defined in the Interagency Agreement, and so the issue is whether the Garage constitutes a
“structure” or “facilit[y] used in “milling” or “the work of…preparing coal or other minerals.” 30
U.S.C. 802(h)(1)(C).
As an initial matter, I reject the Respondent’s contentions that MSHA’s jurisdiction is
improper because the Jamestown Garage and Rocky Ridge Quarry are owned by separate entities
and located on different property. Resp. Br. at 9. The Act “does not require that [the] structures
or facilities be owned by a firm that also engages in the extraction of minerals from the ground or
that they be located on property such extraction occurs.” See Donovan v. Carolina Stalite Co.,
734 F.2d 1547, 1552 (D.C. Cir. 1984). Even if that were not the case, the Respondents’ alleged
ownership distinction is illusory. While Rocky Ridge Stone Company leased the Garage to
Jamestown Quarries, both of those entities, including the Quarry, are owned by Bedrock
Partnership Ownings. Tr. 102. Likewise, the Garage and the Quarry are adjacent to one another
and connected by ownership and by the access road to the Quarry.

40 FMSHRC Page 838

I thus turn to whether the Jamestown Quarries Garage’s relationship with the Rocky
Ridge Quarry subjects it to MSHA’s jurisdiction. In determining whether the Secretary properly
exercised jurisdiction over the Garage, the court must examine the location where the cited
conduct occurred and the nature of the conduct itself. Maxxim Rebuild Co., LLC v. FMSHRC,
848 F.3d 737, 740 (6th Cir. 2017) (holding that the jurisdiction of MSHA extends only to those
facilities and equipment adjacent to or essentially part of a working mine); see also Calmat Co.
of Arizona, 27 FMSHRC 617, 621 (Sept. 2005).
Inspector Myers issued three citations to Jamestown Quarries pertaining to the improper
storage and maintenance of equipment stored or operated in the Garage. Ex. G–16. In order to be
subject to MSHA jurisdiction, the Garage must have a geographical and functional relationship
with a working mine. The U.S. Court of Appeals for the Sixth Circuit’s recent decision in
Maxxim Rebuild Company, LLC emphasized the importance of the disputed building’s location
relative to a working mine site in jurisdictional analysis under the Mine Act. Maxxim, 848 F.3d
at 740. In that case, the Court found that MSHA did not have jurisdiction over a shop that made
and repaired mining equipment because it was not located near or part of a working mine. Id. at
744. The Court held that even though the shop made and repaired equipment to be used in
mining, the Act’s definitions extended only to things that one would see in or around a working
mine and not to equipment wherever it may be found or made. Id. at 742.
Here, the Jamestown Quarries Garage’s geographic proximity to and services rendered
for the Quarry distinguishes it from the Maxxim Rebuild shop and suggests that MSHA’s
jurisdiction is proper. Unlike the shop in Maxxim Rebuild, the Garage is located adjacent to the
fully operational Rocky Ridge Quarry and nearby a few other working quarries. Ex. G–2; Tr. 89,
179. Miners use the same road to access the Garage and the Quarry. Tr. 139-40.
Furthermore, the Garage performs services related to the work of preparing minerals at
the Rocky Ridge Stone Quarry. First, Jamestown’s mechanics have a consistent presence at the
Quarry. See United Energy Services, Inc., 35 F.3d 971, 975-76 (4th Cir. 1994) (holding that a
company that maintained a co-generation power plant was subject to MSHA jurisdiction because
its employees worked on the mine property daily in connection with mine equipment). The
mechanics work in the Garage and travel out to the Quarry to repair or maintain equipment. Tr.
173-75. The Garage has an MSHA Contractor ID Number so that its mechanics are permitted to
perform the repair and maintenance work at the quarry for over five consecutive days as required
under the Mine Act. Tr. 173-74. The employees also gathered at the garage when Inspector
Myers gave a safety talk during the first inspection. Tr. 20.
Respondents contend that the Garage only services equipment unrelated to the Quarry.
Resp. Br. at 3. However, Clayborn hedged this assertion at hearing, stating that “Rocky Ridge
may have been serviced at some point in that building at some point in time.” Tr. 150. Inspector
Myers also testified that he had no doubt that the Garage serviced quarry equipment because of
the locational proximity of the sites. Tr. 89.
Even if the Jamestown employees did not service Quarry equipment in the Garage, they
certainly stored Quarry equipment in it. Aside from the inoperable rock breaker, the Garage
houses a service truck that is used to perform repairs and maintenance at the quarry site,

40 FMSHRC Page 839

including welding. Tr. 176. The truck purportedly contains all of the equipment needed to
service equipment at the Quarry, and is stored in the garage. Tr. 176-77. That same truck may
service other adjacent mines as well. Tr. 179. These facts indicate that the Garage is not only
adjacent to the active Quarry but performs services to assist in the Quarry’s milling processes.
The Garage is therefore a facility used in the preparation of minerals as defined by the Act.
Accordingly, I find that MSHA has jurisdiction over the Jamestown Quarry Garage and
its contents.
B. The Rocky Ridge Custom Processing Shop
Unlike the Garage, there is no dispute that processes labeled as “milling” under the
Interagency Agreement take place in the Rocky Ridge Custom Processing Shop. The Shop is
located adjacent to the Rocky Ridge Stone Quarry and breaks, cuts, saws, sizes, and polishes
and finishes rock that is extracted from the Quarry. The citation at issue pertains to the saw, and
the Secretary normally need only show that one of the activities listed under the Agreement’s
definition of “milling” takes place in a facility to assert jurisdiction over it. See Jermyn Supply
Co., LLC, 39 FMSHRC 1472, 1484 (July 2017). However, the Interagency Agreement carves
out an exception to MSHA’s jurisdiction when cutting and sawing stone takes place in a “stone
polishing or finishing plant.” 44 Fed. Reg. at 22, 828. Unfortunately, the Interagency
Agreement does not define that term, and so the dispositive issue is whether the Secretary’s
determination that the Shop is not a “stone polishing & finishing plant” is a reasonable one. I
find that it is.
Respondents contend that the sign on the door reading “Rocky Ridge Stone Co. Polishing
& Finishing Shop” and the polishing machine are sufficient proof that the Shop is a “stone
polishing or finishing plant” subject to OSHA’s jurisdiction. Resp. Br. at 8-9. These factors
support the Respondents’ position, but the sign and the polisher are not the only two objects in
the Shop that must be considered. The mere fact that one portion of the Shop could be subject to
OSHA jurisdiction does not necessarily defeat the reasonableness of the Secretary’s
determination to the contrary. Cf. Cranesville Agg. Co. Inc., 878 F.3d 25, 35 (2nd Cir. 2017).
The makeup and function of the rest of the Shop suggests that the equipment in the entire
building as a whole is not exclusively dedicated to the finishing process. The Shop contains two
rock breakers and a saw used to cut and size the rock. Tr. 122-24. Rocky Ridge does not
process all of the rock extracted from the Quarry inside of the Shop, nor does it finish or polish
all of the rock that is broken in the Shop. Tr. 131-32, 156. While Rocky Ridge undoubtedly
finishes and polishes rock in the Shop, this activity accounts for only a portion of the Shop’s
work, and there is no indication as to how much polishing and finishing takes place in the Shop
in proportion to how much sawing and cutting takes place.
Respondents point to the Interagency Agreement’s definition of “custom stone finishing”
as clearly including the Shop. See Resp. Br. at 8-9; 44 Fed. Reg. at 22, 828. Yet the Agreement
does not lay out any specific guidelines as to when stone cutting and sawing ends and polishing
or finishing begins, nor to how much finishing and polishing activity and equipment is
necessary to constitute a “polishing and finishing plant.” What the Agreement does do is

40 FMSHRC Page 840

explicitly lend the Secretary discretion in these circumstances. The Agreement explicitly
accounts for areas of uncertainty “in operations near the termination of the milling cycle and the
beginning of the manufacturing cycle” and gives the Secretary the discretion to expand its
definition of milling to include such activities when geographically or technologically related to
milling. See 44 Fed. Reg. at 22, 828; see also U.S. Quarries Slate Products, Inc., 24 FMSHRC
124, 129 (Jan. 2002) (ALJ) (deferring to the Secretary’s assertion of MSHA’s jurisdiction over
mine-adjacent buildings holding finishing equipment).
This is clearly one of those circumstances, and where either MSHA or OSHA jurisdiction
may apply, Commission judges and courts will defer to the Secretary’s reasonable
determination considering the convenience of administration of his agencies. See Cranesville
Agg. Co., Inc., 878 F.3d 25, 35 (2nd Cir. 2017) (“Because the Secretary has the authority to
distinguish between mining and non-mining activities for the purposes of enforcement, when
the Secretary reasonably applies a functional analysis, the Secretary’s determination as to which
act governs is entitled to substantial deference”); Carolina Stalite Co., F.2d 1547 (D.C. Cir.
1984) (In situations where an entity is deemed to be subject to either MSHA or OSHA
regulations, the Secretary merely engages in an act of “adjusting the administrative burdens
between [his] various agencies”).
Here, the Secretary’s decision to assert MSHA’s jurisdiction over the Shop is reasonable.
While stone finishing and polishing occurs in the Shop, the breaking, cutting, and sizing
processes that take place within the Shop are technologically and geographically related to the
milling process. See U.S. Quarried Slate, 24 FMSHRC at 129. MSHA asserted jurisdiction over
the Shop in a 2016 letter to the Respondents and already exercises jurisdiction over the
remainder of the Rocky Ridge property. OSHA has never asserted jurisdiction over or inspected
the Shop or any other part of the property. Tr. 154-55, 167-68, 172. His determination therefore
aptly considered convenience of administration in declining to partition jurisdiction over a single
facility between multiple agencies.4
Accordingly, I find that MSHA has jurisdiction over the Rocky Ridge Custom Crushing
Shop.
V. PENALTY
It is well established that Commission administrative law judges have the authority to
assess civil penalties de novo for violations of the Mine Act. Sellersburg Stone Company, 5

4

The Commission has previously noted that adherence to strict geographical analysis in
determining jurisdiction could theoretically “permit an operator at a facility, where there is both
OSHA and MSHA-regulated work, to escape enforcement of one agency’s regulations by
moving the work to an area of the facility considered to be geographically outside of that
agency’s jurisdiction.” See Calmat Co. of Arizona, 27 FMSHRC 617, 621 (Sept. 2005). As in the
Calmat case, there is absolutely no allegation that such conduct has occurred here. Nonetheless,
the court is mindful that strictly requiring the Secretary to divide a single building between
MSHA and OSHA jurisdiction would increase the potential for such behavior.

40 FMSHRC Page 841

FMSHRC 287, 291 (March 1983). The Act requires that in assessing civil monetary penalties,
the Commission ALJ shall consider the six statutory penalty criteria:
(1) the operator’s history of previous violations, (2) the appropriateness of such
penalty to the size of the business of the operator charged, (3) whether the
operator was negligent, (4) the effect on the operator’s ability to continue in
business, (5) the gravity of the violation, and (6) the demonstrated good faith of
the person charged in attempting to achieve rapid compliance after notification of
a violation.
30 U.S.C. 820(i).
As noted above, the parties stipulated to the validity of the four citations if the Court
affirmed MSHA’s jurisdiction over the Shop and the Garage. Resp. Br. at 2; Tr. 8-9.
Accordingly, the proposed penalties of $116.00 for each of the four citations are appropriate
under section 110(i) of the Mine Act and are hereby AFFIRMED.
VI. ORDER
The three citations in docket SE 2017-252 are AFFIRMED, and Jamestown Quarries, is
ORDERED TO PAY a civil penalty of $348.00 within 30 days of the date of this order.5
The single citation in docket SE 2017-253 is AFFIRMED, and Rocky Ridge Custom
Crushing, LLC, is ORDERED TO PAY a civil penalty of $116.00 within 30 days of the date of
this order.

/s/ David P. Simonton
David P. Simonton
Administrative Law Judge

Distribution: (U.S. First Class Mail)
Mary Sue Taylor, Attorney, U.S. Department of Labor, Office of the Solicitor, 618 Church
Street, Suite 230, Nashville, TN 37219
Howard Upchurch, Attorney for Jamestown Quarries, Law Office of Howard L. Upchurch, P.O.
Box 381, Pikeville, TN 37367

5

Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION,
U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO
63179-0390

40 FMSHRC Page 842

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9933 / FAX: 202-434-9949

June 13, 2018
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. WEST 2017-0119
A.C. No. 04-01299-423919

v.
Sixteen to One Mine

ORIGINAL SIXTEEN TO ONE
MINE, INC.,
Respondent.

DECISION AND ORDER1
Appearances:

Isabella M. Finneman, Esq. ,Office of the Solicitor, U.S. Department of
Labor, San Francisco, CA 94103, for Petitioner2
Mr. Michael Miller, President, Original Sixteen to One Mine, Inc.,
Alleghany, California, for Respondent

Before:

Judge Moran

This docket is before the Court upon a petition for assessment of civil penalties under
section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). Two
citations are in issue. A hearing was held in Nevada City, California commencing on August 9,
2017. For the reasons which follow, the Court finds that both the alleged violation of 30 C.F.R. §
57.4131(a), a matter involving a claim that more than a one day’s supply of combustible
materials was stored within 100 feet of a mine opening, and the alleged a violation of 30 C.F.R.
§ 57.11051(a), involving a claim that an escape route was not maintained in safe, travelable
condition, were established.

1

Originally, Docket No. WEST 2017-0173 was heard with WEST 2017-0119.
Subsequently, the Secretary moved to dismiss all citations within Docket No. WEST 2017-0173.
The Court issued its Dismissal Order for that docket on January 11, 2018.
2

Ms. Laura Ilardi Pearson, Esq. appeared at the hearing for the Secretary. Subsequent to
the hearing, Attorney Pearson left the Solicitor’s Office for other employment. Attorney Isabella
M. Finneman submitted the post-hearing briefs for this docket.

40 FMSHRC Page 843

Violations at Issue
Introduction
At issue in Docket No. WEST 2017-0119 are two 104(a) citations, with a total proposed
penalty of $392.00.
Citation No. 8879804:
Citation No. 8879804 alleged a violation of 30 C.F.R. § 57.4131(a). That standard, titled
“Surface fan installations and mine openings,” provides: “(a) On the surface, no more than one
day's supply of combustible materials shall be stored within 100 feet of mine openings or within
100 feet of fan installations used for underground ventilation.”
The condition or practice identified in the 104(a) citation alleged:
Combustible materials were being stored within 100 feet of the entrance to Portal
2 located at the zero level at the mine. There was a pile of cut wooden 2 by 4s
located about 15 feet to the right of the entrance of Portal 2. A pile of timbers
were also located to the right of the portal entrance about 5 feet from the wooden
2 by 4s. Observed on the left side of the entrance of Portal 2 were two piles of
combustible materials consisting of timbers of various sizes. Both piles were
estimated to be less than 20 feet from the entrance of the mine. This condition
creates a hazard of smoke inhalation into the mine in the event of a fire. A miner
was working about 75 feet inside the mine at Portal 2. Standard 57.4131a was
cited 3 times in two years at mine 0401299 (3 to the operator, 0 to a contractor).
GX 2.
The inspector assessed the gravity as unlikely, the injury or illness that could reasonably
be expected to be lost workdays or restricted duty, not significant and substantial (“non-S&S”),
with one person affected. The Secretary proposed a civil penalty of $157.00.
Citation No. 8879805:
Citation No. 8879805 alleged a violation of 30 C.F.R. § 57.11051(a). That standard,
titled, “Escape routes” provides: “Escape routes shall be - (a) Inspected at regular intervals and
maintained in safe, travelable condition.”
The condition or practice identified in the 104(a) citation alleged:
The designated secondary escape way located in 21 tunnel of the mine was not
being maintained in a safe, travelable condition. There was an area in the escape
way that had a buildup of silt and mud. The buildup was estimated to be about 20
feet long, and extended out about 53 inches from the wall of the tunnel. The
buildup was about 3 feet high at its highest point located against the wall of the

40 FMSHRC Page 844

tunnel and about 6 inches high at its lowest point which was located in the travel
way. This condition impedes miners trying to escape through this route during the
event of an emergency, hampers the safe evacuation of injured miners being
assisted out, and has the potential of causing an injury to the miner. Standard
57.11051a was cited 2 times in two years at mine 0401299, to the operator.
GX 5.
The inspector assessed the gravity as reasonably likely, the injury or illness that could
reasonably be expected to be lost workdays or restricted duty, significant and substantial
(“S&S”), with one person affected.
As a subsequent action, the inspector modified the negligence alleged from high to
moderate, based on mitigating information presented by the operator. Id. The operator also
“removed a good portion of the buildup of silt and mud out of the travel way, thus terminating
the citation.” Id. The Secretary proposed a civil penalty of $235.00.
Findings of Fact
MSHA Inspector Julie Hooker, the issuing inspector, testified regarding the citations in
this docket. Tr. 29. Inspector Hooker became an authorized inspector in October 2015. Tr. 30.
The inspector has no prior mining experience. Tr. 32. On September 21, 2016, she inspected the
Respondent’s mine. Tr. 35. She was there in response to an EO4 anonymous hazard complaint.
With her at that time was her field office supervisor, Troy Van Wey, who also testified about the
citations. The hazard complaint alleged that the secondary escapeway was not safe. Tr. 36. A
second issue involved a miner working at “the zero level,” which term refers to where the upper
shop and the number one and two portal locations, each of which are on the surface. Tr. 37.
Citation No. 8879804
Inspector Hooker identified Citation Number 8879804, which she issued for
“combustible materials being stored within a hundred feet of the entrance to Portal Number 2,
citing 30 C.F.R. §57.4131a.” Tr. 38. She stated that the standard requires “that not more than one
day's use of [combustible] material can be stored within a hundred feet of the mine opening.” Tr.
38-39. She observed “a couple piles, to the left and to the right of the opening, and they were
within the -- they were less than a hundred feet. There was timbers [sic] that the miner had been
taking out, and there was new wood that he was installing. From what I understand, it had been
there -- he had been working there in that area for about two and a half weeks …” Tr. 39. The
miner referred to by the inspector was working inside the portal at that time. Id. The inspector
took photos of the material she observed. Tr. 39-40. In the photos, the Inspector identified old
timber that had been removed from the mine, and new wood as well; two-by-fours. Tr. 40. A
miner told her that the entry she observed was Portal Number 2, an entry into the mine where
that miner was currently working. Tr. 41. The miner informed Hooker that he had been working
at that location for two and a half weeks and that the wood had been placed there the previous
Friday, with the following Tuesday being the day she was performing her inspection. Id. In
determining that there was more than a one day supply of materials, she informed that she asked

40 FMSHRC Page 845

a miner how long the material had been there and how long he had been working there. The
miner’s response was that he had been working there for “about two and a half weeks.” Id.
Continuing to speak to Citation Number 8879804, GX 2, the Inspector stated that in her
evaluation, she marked the citation, under gravity, as unlikely, the injury or illness reasonably
expected as lost workdays or restricted duty, not S&S, and with one person affected. However,
she marked the negligence as “high.” In connection with those designations, the Inspector
acknowledged that she saw no ignition sources, that is, nothing that could ignite the wood. Tr.
41-42. As for the lost workdays or restricted duty designation, it was based on her observing one
miner working, but there was not a lot of wind that day. Therefore, she believed that, in the worst
case, there would probably be some mild smoke inhalation. Tr. 42. The distance from the portal
to the timbers was determined by the Inspector and her supervisor using a tape measure. Id. The
timber furthest from the opening was 20 feet. Tr. 43. High negligence was marked because the
mine had been cited for this condition “before in the same area.” Tr. 43-44. Other photos were
taken of the cited condition. These reflected some new lumber as well as lumber that had been
removed from the mine. GX 4; Tr. 44-45.
Upon cross-examination, the Inspector stated that she became an AR in October 2105. Tr.
48. Asked for the basis for her conclusion that old timbers were being stored, the inspector stated
that a miner informed they had been there since last Friday. Tr. 55. She did not know the hours
for the work crew at the mine. Id. Asked the basis for concluding that the mine was storing the
wood, and not, as the Respondent would later assert, that it was in transit, the Inspector stated
that a miner told her the old wood came from inside the opening and the new wood was for
laying track. Tr. 55. She again stated that she saw no signs of ignition sources and for that reason
marked the citation as unlikely. Tr. 56. The Inspector defined combustible as “anything that can
be ignited.” Id. She admitted to no experience being “involved in an operation where people are
repairing or renovating track, mine rail.” Tr. 57.
In terms of marking the violation as high negligence, the Inspector was asked how her
review of the mine’s prior citations for storing combustible material impacted her decision to
mark the violation as high negligence. Tr. 58. The Inspector stated that she had done a “thorough
review” of those prior citations and that the review included pictures of those prior violations. Tr.
59. However she conceded that the scene she viewed for this citation did not resemble those
prior violations. Id. The Inspector did not know if the air at the number 2 portal was exhausting
or intaking. Tr. 61. She conceded such information could make a difference in assessing who
could be harmed.
The Inspector was also asked if, from her background or training, she could distinguish
between storing something and having it in transit. She responded that storage occurs if
something is at a location for more than one day, while transit is using the material within that
one day. Tr. 63. She was then asked about distinguishing supplies from waste and she answered
that supplies are things one is going to use, while waste covers things that will not be used. Tr.
63-64.
On redirect, the Inspector stated that, for purposes of the standard she cited, the direction
of air flow to the portal does not matter. Tr. 64. Except for some cinder blocks she observed, the

40 FMSHRC Page 846

remainder of the material was combustible and it was more than a one day’s supply. Tr. 64-65.
Her conclusion about the material being present for more than one day was based upon the miner
who told her it had been there since the previous Friday and, as she was there on a Tuesday, four
days had elapsed. Tr. 65.
Respondent’s Mr. Miller then testified about this citation. Tr. 90. He stated that the
“respondent has extensive policies and procedures for handling storage material, material in
transit as well as the use and maintenance and repair of second exits. They are extensive, they're
written, they're in our policy manual.” Id. Respondent asserted that Inspector Hooker “did not
have the background and actual practical experience to really understand what she was
inspecting.” Tr. 91. Part of the Respondent’s position is that when MSHA comes to a mine, “they
should honor and respect the specifics of this particular mine or operation that they are
inspecting[,adding] [t]hat's also pretty clear in the language and intent of congress, site specific.”
Tr. 92.
Much of Mr. Miller’s testimony was essentially an objection to the manner in which
MSHA inspects. All of his contentions were reviewed, but not every comment deserves a
response where the Court finds that such comments are not relevant to the citations in issue.
Those issues are whether the standard was established as having been violated and, if so, the
appropriate penalty upon consideration of the statutory factors.
Mr. Miller stated that the zero level has two adits. It was the first adit that was
questionable and which was sealed according to prior inspectors. The mine was at that time
rehabilitating the number two adit. Thus, he asserted that, in the process of rehabilitating the
number two adit the inspectors viewed “a work in progress where they were taking, repairing
track. They had their supply of track ties right there where they brought them out. They put them
there where they come outside close to the portal. I would have stipulated that it was 20 feet.”
Tr. 94-95. Thus, he contended that the only place those “track ties could be would be right at the
outside stored there so they can walk out and get the track ties and put them in when they're
installing the rail.” Tr. 95.
As for the rotten lumber, he asserted they could not be considered “in storage.” Rather,
“it was a waste pile that is hauled off as needed. It could be every day, it could be every week. It
doesn't meet the language of that standard. It's not supplies as clearly Ms. Hooker stated. It
wasn't supplies. It's waste.” Id. Thus, he contended they were not stored. He expressed that the
idea of the standard “is to eliminate long-term storage of the materials that could have the
potential to ignite and then lead to an intake of air into the mine.” As this citation was issued in
September, the air is blowing out of the mine and therefore there was no possibility of any injury
to the miner who was working there at that time. Tr. 95-96. Regarding the claim that the material
had been there for four days, Miller contended that the small mine is only open from Tuesday

40 FMSHRC Page 847

through Fridays. Therefore, the waste pile was there at 5 p.m. on that Friday and the small
number of two-by-fours were there when the miner returned to work on Tuesday.3 Tr. 96.
On cross-examination, Miller confirmed that waste from the mine could be hauled off
every day or every week or just as needed, stating “[t]hat’s our policy and procedure.” Tr. 104.
He agreed that the waste cited in Citation No. 8879804 was wood, describing it as “very, very
old timber” that was being removed during the rehabbing process and that it was combustible.
Tr. 105-109.
Citation No. 8879805
The other matter in issue, Citation No. 8879805, was issued by the same inspector on
September 21, 2016. This was issued for an alleged violation of the designated secondary
escapeway4 not being in a safe, travelable condition. This conclusion was based upon finding a
“huge buildup of silt and mud that blocked passageway.” Tr. 66; GX 5; and GX 7 (photos).
Referring to the photos, the Inspector stated they show a buildup of mud and silt along the sides
of the escapeway. Tr. 67. That mud and silt was muddy and “sticky in certain parts” and she
opined that one could not walk on it without getting stuck. Id. The depth of the material ranged
from “probably six inches” near the water to “about three feet high” at its highest level. Id. The
depths were determined by using a tape measure. Mr. Van Wey assisted her in taking the
measurements. Id. Thus, the Inspector confirmed that she saw some portions of the escapeway
with water and mud up to three feet in depth. Tr. 68. Asked if this covered the entire bottom
surface of the escapeway, the Inspector answered by referring to one location to the right on a
photo that had the most buildup, stating that they measured that “to be about 52 inches from the
side of the tunnel there to where you see there the water. It was about 52 inches wide.” Tr. 68.
The Court asked if “in the secondary escapeway, were there areas where one could walk
away from the water and be in some small amount of water and still traverse.” The Inspector
answered, “[n]ot in that area that [she] took a picture.” Tr. 69. Asked how extensive this
condition was, that is, “[h]ow far did this water extend where you had an issue with its depth and
the mud,” the Inspector responded, “I believe it ran through the course of the whole escapeway,
3

Miller was perturbed that, to abate the citation, he “had to go and take those track ties
and put them back over in the shop and just get them, you know, a hundred feet away.” Tr. 97.
He continued, “[t]here was a pile of cut wood in two-by-fours. Those are track ties. We can
sometimes lay ten feet, we can sometimes lay hundred feet of rail. Depends on the circumstances
of what we're doing at that time. We put track ties every three or four feet. We put track ties
where we have a joint -- where the two tracks meet with fishplates. We have situations where we
will put them closer together. We have situations where maybe we can extend them out. So a
miner is going to have a supply that he thinks he can get through that day, and that varies. There
is no standard like eight ties or ten. There was no storage of supplies, there was no long-term
storage.” Tr. 98. Thus, it was Miller’s contention that the inspector’s lack of any practical
experience led to this issue.
4

The escapeway was identified as the secondary escapeway by the miner who
accompanied the inspector that day. Tr. 74.

40 FMSHRC Page 848

but we did not travel past that area.” She therefore conceded that she would have no way of
knowing how far the condition existed, stating, “[c]orrect, Not at that time, no.” Tr. 69. She then
admitted that her “at that time” remark actually meant she did not later learn more about the
extent of the condition. She therefore admitted that it was perhaps possible that the water she
observed only continued for a few feet. Tr. 70. However, the Inspector stated that she didn’t
proceed further because she considered it to be unsafe. Id.
The second photograph she took in connection with this citation was described as
“looking at the pipes that we saw laying in the water, and there's also the buildup there that you
can see that comes close to those pipes.” Tr. 70-71. When the Court inquired about the
Inspector’s location when she took photo three of four and whether that photo was taken from
the same location as photo two of four, the Inspector stated she was not sure and did not know.
Tr. 71. Then asked about photo four of four and the location where that was taken, the Inspector
expressed that it was more “two of four,” by which she meant both photos two and four of the
four photos were taken from the same location. Tr. 71-72. Continuing, for photos two and three
of the four, the Inspector stated that the pipe in those photos is normally there and that it is
located in escapeway’s walking area. Tr. 72. This also caused her concern because the pipe
created a tripping hazard along with the water and the mud. Tr. 73. However, upon questioning
by the Court, the Inspector stated that she would not have issued the citation based solely upon
the pipe’s presence. It was the combination of those factors, she explained, with the pipe
contributing to the unsafe condition of the escapeway. Id.
The Inspector marked the citation as “reasonably likely” because the miner told her that
he travelled that on a weekly basis. Tr. 74. Although she agreed that the condition had been that
way for more than a week, she did not offer the basis for that opinion. Id. In marking the injury
as “lost workdays or restricted duty as the type of injury or illness that could occur,” she based
that upon her view that “if they had to use that and running out of there in a hurried condition,”
then “they would probably get stuck in the mud,” and therefore sustain a muscle strain or a
twisted ankle producing lost workdays or restricted duty. Tr. 75. Regarding negligence, the
Inspector, after initialing marking it as high, modified it to moderate. Id. This change came about
because the miner told her they were working other projects, doing various things to try to
improve safety in the mine overall. Tr. 76.
On cross-examination, Mr. Miller asked the Inspector to explain her reference to
“emergencies.” The Inspector responded that she meant a fire or some blockage in the mine that
required miners to exit the mine via the secondary escapeway. The Inspector arrived at the
secondary escapeway through the mine’s main entrance. Tr. 80. There, she met Reed Miller who
informed that they were working exclusively at the 800 level. At that point she asked him to
identify the secondary escapeway for their use and was told it was the secondary tunnel. The
Inspector then advised that the escapeway would have to be inspected, as a hazard complaint had
been made. Tr. 81. Thus, her purpose, per the standard was to see if it was maintained in a safe
and travelable condition. Id.
When the Respondent suggested that if the Inspector had examined the records, it would
have revealed that there have been monthly inspections, each recorded by date and time and the
person who conducted the inspection, he asked if that would have changed the Inspector’s view

40 FMSHRC Page 849

of the citation. The Inspector responded it would not have changed her conclusion. Tr. 82.
Referencing that she was a new inspector, and had no underground mining experience, she was
asked for her opinion as to how long the mud she observed had been there. She responded that it
was present for more than a month. Id. She could not be more precise about how long the mud
had been present. Tr. 83. The Court then inquired about the issue, asking if the Inspector in
preparation for her inspection and reviewing the mine’s prior violation history, found other
citations that had been issued for not maintaining a secondary escapeway at this location. She
answered, “yes.” Tr. 84. In fact it was also in the 21 Tunnel. Tr. 85.
Miller then testified about the second citation, Citation No. 8879805. He began by
asserting that the 21 Tunnel “is an issue for many inexperienced … inspectors. This isn't the first
time someone has made a similar mistake of saying that you cannot travel and it's impeded and
with [the issuing inspector’s] pure speculations about how it could be hazardous to the health and
safety of a miner. It is inspected by MSHA rules once a month, and it has been ever since I've
been involved in mining.” Tr. 110-111. He then reviewed the history of the tunnel, adding that in
the past it had “ten times as much mill way sand in that tunnel, ten times or maybe fifty times as
much, it still passed inspection.” Tr. 111. Miller asserted that this issue had arisen before and that
those prior citations for that assertion were subsequently vacated. Tr. 112. Miller contended that
it is inspected each month and while there may be a little slough in it, it doesn’t impede travel.
Id. Miller also contested the Inspector’s claim that there was three feet of water and asserted that
the pipe did not create a hazard. Tr. 114. Thus, while he did not challenge the standard itself, he
did assert that it has been incorrectly interpreted by some inspectors and her claim that the
passageway was blocked. Tr. 114-115. Last, he stated that this is an escapeway, not a travelway,
with the latter being more restrictive. Tr. 117.
On cross-examination, Miller disagreed with the Inspector’s claim that there was three
feet of buildup in the walkway, where one travels, though he agreed there was buildup on the
sides, adding that such buildup had been there for at least 20 years. Tr. 117. He also agreed there
was water in the walkway, informing that it is the natural drain tunnel level, as it’s “the lowest
adit that comes out of the mine.” Tr. 118. However, he maintained that water would never
impede anyone from getting out of the mine. Id. As to the water depth there, Miller stated it was
never over his 12 inch boots. Id. In this instance, he maintained that the boots he had on at that
time just above his ankles. Tr. 119. As for the boots the Inspector wore that day, Miller agreed he
did not see the Inspector that day. Tr.120. Regarding the claim that there was mud in the
walkway, Miller disputed that, asserting that it was mill tailings. Tr. 123. Miller added that the
pipe referenced in the Inspector’s testimony sits on the floor of the cited tunnel and that it is not
suspended or floating at that location. Tr. 124.
Troy Van Wey then testified about these two citations, Citation Nos. 8879804 and
8879805. Van Wey is a field office supervisor for MSHA’s Vacaville, California office, a
position he has held since February 2015. Tr. 127. Van Wey has significant mining experience as
an MSHA inspector and as a miner in private industry. He has inspected the Respondent’s mine
about a dozen times. Tr. 130. He participated in Inspector Hooker’s inspection of the
Respondent’s mine on September 21, 2016. Tr. 131. Regarding Citation No. 8879804, Van Wey
stated that he saw the condition cited in that and that he agreed with Hooker’s evaluation of it,
including the gravity and negligence assessments. Tr. 132.

40 FMSHRC Page 850

Van Wey was then asked for his definition of combustible material, which he stated is
“[s]omething that will burn.” Tr. 132. He then described the cited materials as “[m]ostly old
timbers that they're using for support, I'm assuming, and then new timbers, new various sizes,
two-by-fours, I believe, four-by-fours, maybe some two-by-eights if I remember correctly.” Tr.
132.
Directed then to Citation No. 8879805, GX 5, Van Wey confirmed that he was present
when Inspector Hooker found that condition as well. Tr. 133. As with the other citation, he
agreed with all of Hooker’s evaluations in this citation too. Asked if he felt the condition was
unsafe, he responded, “Yes. It was perceived as maybe a slip/trip-type hazard.” Id. Specifically,
he stated “there was a bunch of fine material that had sloughed off one of the ribs and into the
walkway.” Tr. 133-134. He also did not attempt to walk through it, as he believed it to be unsafe.
Tr. 134. Asked to estimate how long the condition had existed, he responded, “there's a lot of
variables. It would depend upon the time of year. There's water that was running through the
escapeway. There's fine material, so for the water to carry those fines, and it was buildup, again a
guesstimate, maybe about three feet high at its highest point along the rib and sloped into the
walkway. I would say months for it to get to that stage.” Id. Thus, his estimate was in line with
that of Hooker’s. In terms of the water depth, Van Wey estimated it as “around ankle deep.” Id.
Referring to the photos associated with this citation, GX 7, he described it as showing “material
that's sloughing off from the right rib as I'm looking at it, it slopes off into the walkway, the
middle section that is the water that was running down the middle. There's also a pipe running
through the middle of that as well.” Tr. 135. Asked if one could traverse this safely, he answered,
“[n]ot without the hazard of slipping, tripping or falling.” Id. As the pipe was in the walkway, he
also considered it to be a hazard. Id.
On cross-examination, Van Wey was asked about the cited standard and its provision that
escape routes are to be “inspected at regular intervals and maintain safe, travelable conditions.”
To comply, the Inspector stated, the mine would need to inspect the escapeway on a regular basis
to see if it’s safe and travelable. Tr. 138. There is no paperwork requirement to document this
however. Id. He admitted that Hooker was a “fairly new inspector” and felt it was appropriate for
him to join her for the inspection, which arose from a hazard complaint. Tr. 139.
The Court noted that the abatement of the two citations is recorded on the same
documents. Tr. 141. Van Wey stated that the same escapeway had been cited in the past. Tr.
143. As for the issue of Hooker’s lack of mining experience, Van Wey defended his inspector,
stating that all inspectors receive a “tremendous amount of training before they're given their
authorized representative card.” Tr. 144- 145.
Discussion
Citation No. 8879804
Regarding Citation No. 8879804, and the claim that the Respondent violated 30 C.F.R.
§ 57.4131(a), it is the Secretary’s contention that the Respondent violated the cited standard
because used and new timbers were stored within 100 feet of a mine opening. Secretary’s PostHearing Brief (“Sec’s Br.”) at 4.

40 FMSHRC Page 851

The applicable provision from the cited standard, section 57.4131(a), titled “Surface fan
installations and mine openings,” provides: “(a) On the surface, no more than one day's supply of
combustible materials shall be stored within 100 feet of mine openings or within 100 feet of fan
installations used for underground ventilation.”5
The Secretary asserts that “[t]he old timbers and new 2 by 4’s fall within the definition of
combustible materials. These combustible materials had been left within 100 feet of Portal No. 2
for more than one day. The miner was exposed to the hazard while entering and exiting the Mine
through Portal No. 2 on the day of the inspection. Therefore, a violation of 30 CFR 57.4131(a)
has been established.”6 Id. at 5.
Speaking to the Respondent’s defense, that it was not storing the timbers at the cited
location, but was “transporting” them at the time that the citation was issued, the Secretary
acknowledges that the final rule for the cited standard expressed that it does not prohibit the
actual transit of combustible materials into the mine. Id. (citing 50 Fed. Reg. 4022-01, 4025
(Jan. 29, 1985)). However, the Secretary contends that the evidence demonstrated that the
Respondent allowed timbers to be stockpiled by Portal No. 2 and that it was not cited for transit
of timbers. Id.
The Secretary also notes the Respondent’s contention that it didn’t have more than a one
day’s supply of timbers at the cited portal location. While acknowledging the Respondent’s
argument that the phrase “more than one day” must mean more than 24 hours while the mine is
in operation, the Secretary responds that he is not aware “of any provision in Section 57.4131(a)
or the Secretary’s interpretive guidance that requires the Secretary to show that the Mine was in
continuous operation in order to establish that the cited condition existed for more than one day.”
Id. Even if that were accepted, the Secretary asserts that the “Respondent did not address the
stored timbers when the Mine resumed operation on the morning of the inspection.” Id. It is the
Secretary’s position that the “Respondent could have, at a minimum, begun the process of
moving the timbers further away from Portal No. 2 at the beginning of the shift prior to Inspector
Hooker’s arrival. Instead, Respondent continued the work of removing more timbers from the
Mine.” Id. at 6.
As to the Inspector’s gravity and negligence evaluation for this citation, the Secretary
acknowledges that the issuing Inspector determined that it was unlikely that the condition cited
5

Because the Respondent raised a separate section for this standard, section 57.4131(b),
the text of that provision is noted. It provides: “(b) the one-day supply shall be kept at least 25
feet away from any mine opening except during transit into the mine.” However, the Court
concludes that this subsection is not useful in resolving the cited provision.
6

The Secretary notes that “‘Combustible material’ is defined in 30 CFR § 57.2 as “…a
material that, in the form in which it is used and under the conditions anticipated, will ignite,
burn, support combustion or release flammable vapors when subjected to fire or heat [] [and that]
Section 57.2 also states: ‘Wood, paper, rubber, and plastics are examples of combustible
materials.’ Secretary’s Post-Hearing brief (“Sec’s Br.”) at 4. There is no genuine dispute about
the materials’ combustibility.

40 FMSHRC Page 852

would result in an injury or illness to a miner, as there were no ignition sources near the timbers
and it was unlikely for a fire to occur at the two timber stacks. Id. Further, in terms of the
expected injury should the timbers ignite and burn, such “flames would not be fanned and the
exposed miner would suffer from, at most, mild smoke inhalation,” and, at most, result in lost
workdays or restricted duty. Id.
However, the Secretary asserts that the Inspector correctly determined that the
Respondent was highly negligent because the Respondent had been cited for violating this
standard in the past.7 Id. at 7. Citing 30 C.F.R. § 100.3(d), a “high negligence” designation is apt,
the Secretary contends, where an operator “knows or should have known of the violative
condition or practice, and there are no mitigating circumstances which explain the operator’s
conduct in minimizing or eliminating a hazardous condition.” Id. Apart from its past violations
of the standard theory to support the Secretary’s high negligence claim, the Secretary also claims
that “Miller admitted during his testimony that he knew that his miner(s) placed the timbers near
to the portal and that the timbers are not always hauled away every day [by his testimony that]
[t]hey put [the timbers] there where they come outside close to the portal [and that he admitted]
[t]he rotten timber … was a waste pile that is hauled off as needed. It could be every day, it could
be every week.” Id. at 8 (citing Tr. 95:3-4 and 95:12-15). Given these considerations, the
Secretary “requests that a penalty of not less than $157 be assessed for Citation No. 8879804.”
Id.
Respondent’s Post-Hearing Brief (“R’s Br.”) challenges the Inspector’s assertion that the
wood had been within 100 feet of the portal for multiple days, as she included the weekend in
her calculation that the wood was present for four days. R’s Br. at 4. Respondent contends that
the Inspector’s total absence of mining experience contributed to her inaccurate evaluation. Also,
she did not know if the air at the portal was exhausting or intaking. Id. at 6.
The Court’s Determinations regarding Citation No. 8879804
The Court finds that the Secretary established the violation in this instance. The chief
reason for this conclusion it that the Mine Act is a remedial statute and therefore must be
construed liberally. As the Commission has observed,
The Federal Mine Safety and Health Act of 1977 is a remedial statute, the
‘primary objective [of which] is to assure the maximum safety and health of
7

The Secretary is correct in asserting that the operator had been cited for violating this
standard in the past. He notes, “[i]n May 2011, and again in May 2014, the Secretary cited
Respondent for storing timbers near a mine portal in violation of Section 57.4131(a). The ALJ
decisions affirming these citations can be found at Secretary of Labor v. Original Sixteen to One
Mine, Inc., 36 FMSHRC 2224, 2235 (Bulluck, ALJ) (August 20, 2014) (affirming citation issued
in May 2011 for “more than a day’s supply” of timbers stored 30 to 90 feet from the mine
portal), and Secretary of Labor v. Original Sixteen to One Mine, Inc., 38 FMSHRC 1019, 1043
(Moran, ALJ) (May 3, 2016) (affirming citation issued in May 2014 for timbers stored for more
than one day at a location that the parties stipulated was less than 25 feet from the mine portal).”
Id. at 7.

40 FMSHRC Page 853

miners.” U.S. Senate, Committee on Human Resources, Subcommittee on Labor,
Legislative History of the Federal Mine Safety and Health Act of 1977, 95th
Cong., 2d Sess. at 634 (1978). … In interpreting remedial safety and health
legislation, ‘[i]t is so obvious as to be beyond dispute that ... narrow or limited
construction is to be eschewed ... [L]iberal construction in light of the prime
purpose of the legislation is to be employed.’ St. Mary's Sewer Pipe Co. v.
Director, U.S. Bureau of Mines, 262 F.2d 378, 381 (3rd Cir. 1959); Phillips v.
Interior Board of Mine Operations Appeals, 500 F.2d 772, 782 (D.C. Cir. 1974),
cert. denied, 420 U.S. 938.” (1975).
UMWA v. Consolidation Coal Co. 1 FMSHRC 1300, 1302 (Sept. 1979).
This Court has noted,
In enacting the Federal Mine Safety and Health Act of 1977, Congress intended to
ensure safe working conditions for miners. The Commission and Courts of
Appeal have construed the application of the Mine Act liberally. One Circuit
Court held that ‘[s]ince the Act in question is a remedial and safety statute, with
its primary concern being the preservation of human life, it is the type of
enactment as to which a narrow or limited construction is to be eschewed.’ The
Commission, too, has held in multiple cases that the Mine Act, as a remedial
statute, must be interpreted broadly to further the Act's remedial goals. Thus,
close cases of interpretation of safety standards are to be resolved in favor of
furthering the goals of the Mine Act.
Lavarge Building Materials, 34 FMSHRC 3297, 3300-3301 (Dec. 2012) (ALJ).
Although a violation is found, there are problems with the Secretary’s position that, in the
Court’s estimation, bear upon the determination of the penalty, at least for this instance. The
reasons for this determination are severalfold. First, the standard itself plainly addresses a one
day’s supply of combustible materials, requiring that no more than that amount may be stored
within 100 feet of mine openings. The term “supply,” as a noun, is defined as “an amount or
quantity of something that is available to use.”8 Therefore, facially, it does not encompass waste
material. The standard could have been easily written to expressly prohibit all types of
combustible materials located within 100 feet of mine openings, but that is not within the literal
scope of the provision.
Further, fairly construed, the standard does not require that the one day’s supply must be
used up each day. Such language also could have been included within the standard’s
proscription but, as written, the standard allows the one day’s supply to be stored indefinitely

8

https://www.macmillandictionary.com/us/dictionary/american/supply.

40 FMSHRC Page 854

within 100 feet of a mine opening.9 Accordingly, at least as promulgated, the plain objective of
the standard is to allow a one day’s supply of combustible materials within 100 feet of a mine
opening, but not more than that amount. The one day’s supply limit is therefore a compromise
between allowing some combustible material but not more than that day’s supply, so that any
combustion would be limited to storage of that amount.
The question then becomes whether the Secretary established that there was more than a
one day’s supply of combustible material within 100 feet of the mine opening. In this regard,
neither Inspector Hooker, nor field office supervisor Van Wey, drew any distinction between
supply materials and waste materials; their focus was entirely upon the combustibility of the
material, not its nature. The Inspector identified combustible material but did not distinguish
between combustible new materials (i.e. supply materials) and old timber. The latter, as has been
explained, is not addressed by the standard. Although Hooker opined about how long the
material had been at that location, the Court has determined that the standard contains no
requirement that the one day supply of material be used up each day.10 As such there was no
testimony that the supply materials themselves amounted to more than a one day’s supply, nor
was there any rationale to explain how it was determined that such supply material was more
than a day’s worth. Instead, implicitly, the inspectors wrote into the standard words that do not
appear in it, to wit: that the supply materials must be used up each day.
Despite this, an examination of the rulemaking for this standard reveals a more expansive
intent of coverage. The proposed rule, which revised a previous version of the standard, stated
“The proposed standard would apply only to surface areas of underground mines. It would
restrict accumulation of combustible materials, but not prohibit their presence in transit or when
used, in the construction of mine installations. In addition, it would retain the existing provision
prohibiting dry vegetation within 25 feet of mine openings.” 48 Fed. Reg. 45336, 45338 (Oct. 4,
1983) (emphasis added).

9

Were it not for the remedial nature of the Mine Act, this construction of the standard’s
terms has a logical appeal. Consider this scenario: At the start of a day, a mine operator has a one
day’s supply of combustible materials which is within 100 feet of a mine opening. That material
remains there during the entire day until the last hour of work, when it is brought into the mine
for use the following day. During the time the material remained within 100 feet of the opening,
it would potentially be subject to combustion, but the standard does not prohibit its presence
during those hours nor does it require any anti-combustion steps to be employed while it remains
at that mine opening location.
10

Because the Court has determined that the one day’s supply need not be used up each
day, the issue of the number of days the material was there is not of consequence. However, even
if one were to conclude that such material must be used each day, the number of days this
material was stored is fairly subject to debate. This is because there was unrebutted testimony
that the mine did not operate on Friday or the weekend, reducing the number of days to one.

40 FMSHRC Page 855

The Final Rule also reveals that the emphasis addressed storage of combustible materials,
Section 57.4131 Surface fan installations and mine openings. This standard
revises § 57.4-42 and applies to surface fan installations and mine openings at
underground mines. It restricts storage of combustible materials in these areas
and prohibits dry vegetation within 25 feet of mine openings. In response to
commenters, the final rule clarifies that the standard addresses fan installations
used for underground ventilation. In addition, the final rule clarifies that the
standard does not prohibit the actual transit of combustible materials into the
mine. Some commenters stated that the standard should exempt materials used in
construction of mine installations. The standard addresses the storage of
combustible materials and does not prohibit their use in construction.
50 Fed. Reg. 4022, 4025 (Jan. 29, 1985) (emphasis added).
Accordingly, on the basis of the foregoing, the citation is AFFIRMED.11
Penalty Determination for Citation No. 8879804
The section 104(a) citation was marked as unlikely for gravity, non-significant and
substantial, with lost workdays or restricted workdays expected, and with one person affected.
The negligence was marked as “high.” The mine’s violation history is part of the record and was
considered by the Court. GX 1. The Secretary’s post-hearing briefs did not refer to penalty
factors other than the mine’s violation history, negligence, and indirectly, gravity, through the
Inspector’s significant and substantial designation. The Respondent’s mine is small. Good faith
in attempting to achieve rapid compliance was ascribed to the operator. Per Exhibit A, the
number of repeat violations for this standard is listed as two and there was no cognizable claim
that these two proposed penalties, if assessed, would have an effect on the operator’s ability to
continue in business.
Given the facial ambiguity of the words employed in the standard, the Court concludes
that the Respondent’s contentions cannot be dismissed as meritless. Therefore, the negligence is
determined to be low. Considering each of the statutory factors the Court concludes that a civil
penalty of $75.00 (seventy-five dollars) is appropriate to impose.

11

No doubt, in reaction to this decision, when MSHA next inspects the Respondent’s
mine, it will be attentive to this decision. Given that, the Court hopes that the Respondent will
avoid future litigation by taking the simple prophylactic step of ensuring that its supply material
and, for that matter, any combustible material, be located more than 100 feet from any mine
opening.

40 FMSHRC Page 856

Citation No. 8879805
Regarding Citation No. 8879805, and the claim that the Respondent violated 30 C.F.R. §
57.11051(a), it is the Secretary’s contention that the Respondent violated the standard by failing
to maintain the designated secondary escapeway in a safe, travelable condition. Sec’s Br. at 8.
The applicable section from the cited standard provides: “Escape routes shall be - (a) Inspected
at regular intervals and maintained in safe, travelable condition.” 30 C.F.R. § 57.11051(a).
As with the other cited standard, this matter also arose in the wake of a hazard complaint.
The Secretary maintains that Inspector Hooker’s testimony establishes a violation of the cited
standard. Id. at 9. The Secretary contends that Inspector Hooker believed in good faith that the
muddy and wet conditions extended through the course of this entire secondary escapeway. Id. at
9 (citing Tr. 69:14-18). The Secretary also asserts that, per her evaluation of the gravity and
negligence for this section 104(a) citation, it was reasonably likely that a miner traveling through
the cited 21 Tunnel in a mine emergency would get stuck in the muddy conditions and that the
expected injuries would be lost workdays or restricted duty. Id. at 10. The Secretary advises that
determination was based on two considerations: the accompanying miner’s statement that he
travelled the 21 Tunnel on a weekly basis and the Inspector’s good faith belief that the wet and
muddy conditions had existed for more than a week. Id. The Inspector also expressed that “if a
miner got stuck in the mud while hurrying through the 21 Tunnel in the event of a mine
emergency, the miner would sustain injuries resulting in lost workdays/restricted duty.” Id. This
conclusion was based on “her knowledge, training and experience that a miner would sustain
muscle strain or twisted ankle if he/she became stuck in the muddy conditions.” Id.
The Inspector’s negligence evaluation was initially deemed “high,” but she reduced it to
“moderate negligence” upon the exposed miner stating that the Respondent was working to
improve safety at the mine. The Secretary also notes that field office supervisor Troy Van Wey
testified that “Respondent had been cited numerous times prior to this inspection for a violation
of the same standard (Section 57.11051(a)) due to conditions in the 21 Tunnel that made it
impassable.” Id. at 10-11.
The Secretary concludes that at least moderate negligence was involved and that, when
considered with the significant and substantial characterization, the penalty assessed should at
least be $235.00. Id. at 11.
Respondent’s Post-Hearing Brief contends that Inspector Hooker’s complete lack of any
mining experience contributed to her erroneous conclusions about this citation. Respondent
claims that the 21 Tunnel passed inspection for a number of years and it was until recently that
MSHA started having issues with it. Respondent also challenged the Inspector’s claim that there
was up to three feet of water in that escapeway, asserting that he has never experienced water
going over his boots and the Inspector’s boots were only six inches deep, which he opined were
inadequate boots to be wearing. R’s Br. at 14. Respondent also contended that the two inspectors
had differing views of the water depth. Id.

40 FMSHRC Page 857

Discussion
Citation No. 8879805
The Court also finds that standard 30 C.F.R. § 57.11051(a) was established as violated.
The Court notes that the requirement to inspect at regular intervals was not part of the alleged
violation. Instead, it was the claim that the escape route was not being “maintained in safe,
travelable condition.” The testimony and the photographs, per GX 7, show some water in the
escapeway, but apart from the Inspector’s testimony, the photos themselves do not show a “huge
buildup of silt and mud that blocked passageway.” Even the Inspector was restrained in her
description, stating that the mud and silt was muddy and sticky in certain parts. Further, when
asked if the water and mud covered the entire bottom surface of the escapeway, Van Wey’s
response was that there was one location that had most of the buildup which was measured to be
about 52 inches from the side of the tunnel. A more fundamental problem was, when asked if the
condition ran the course of the whole escapeway, neither inspector could answer about the extent
of the problem. This was because neither inspector traveled past the area they observed. In fact,
Hooker admitted that the water she observed may only have continued for a few feet. The
presence of the pipe is a non-issue, because the inspectors were not claiming that was part of the
violation. Thus, the issue was about mud and water only, with the testimony placing emphasis on
the mud. As noted, the water, according to Van Wey was only “around ankle deep.” Tr. 134.
Even the mud, Van Wey disclosed, sloughed off the right rib into the walkway with water
running down the middle section of it.
The Court’s Determinations regarding Citation No. 8879805
Based on the credible testimony of the inspectors, the Court finds that the violation was
established. However, the Secretary’s proof of the extent of the condition was quite limited.
Accepting that the mud and water observed diminished safe and travelable conditions, the
evidence does not support a conclusion that this existed over a significant length of the escape
route. The burden of proof, including the extent of a violative condition is on the Secretary12 and,
as Hooker admitted, the condition may have extended only a few feet. Neither she nor Van Wey
knew the extent of the problem, electing not to travel beyond the point they encountered the
conditions.
Penalty Determination for Citation No. 8879805
The section 104(a) citation was marked as reasonably likely for gravity, and as significant
and substantial, with lost workdays or restricted workdays expected and with one person
affected. The negligence, first marked as “high” was later modified by the Inspector to
“moderate.” As noted above, the mine’s violation history is part of the record and was
considered by the Court. Ex. GX 1. The Secretary’s post-hearing briefs did not refer to penalty
12

The Secretary is required to prove all elements of the alleged violations by a
preponderance of the evidence, which requires the trier of fact to believe that the existence of a
fact is more probable than its nonexistence. RAG Cumberland Res. Corp., 22 FMSHRC 1066,
1070 (Sept. 2000) (internal citations omitted).

40 FMSHRC Page 858

factors other than the mine’s violation history, negligence, and indirectly, gravity, through the
Inspector’s significant and substantial designation. The Respondent’s mine is small, good faith in
attempting to achieve rapid compliance was ascribed to the operator. Per Exhibit A, the number
of repeat violations for this standard is listed as zero13 and there was no cognizable claim that
these two proposed penalties, if assessed, would have an effect on the operator’s ability to
continue in business.
Although it is difficult to assess the gravity, given the limited evidence of the extent of
the condition presented by the Secretary and taking into account Mr. Miller’s testimony on the
issue, the Court finds that the reasonable likelihood, and significant and substantial evaluation
were established,14 but in the context of a resulting lost workdays or restricted duty injury.
As for the moderate negligence designation, the Court notes that “[n]egligence is not
defined in the Mine Act. The Commission has found that ‘[e] ach mandatory standard thus
carries with it an accompanying duty of care to avoid violations of the standard, and an
operator’s failure to satisfy the appropriate duty can lead to a finding of negligence if a violation
of the standard occurred.’ A.H. Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983) … [and] [i]n
determining whether an operator meets its duty of care under the cited standard, the Commission
considers what actions would have been taken under the same or similar circumstances by a
reasonably prudent person familiar with the mining industry, the relevant facts, and the
protective purpose of the regulation.” Sims Crane, 39 FMSHRC 116, 118 (Jan. 2017) (ALJ
McCarthy).
Further, it is a given that “Commission judges are not required to apply the level-ofnegligence definitions in Part 100 penalty regulations and may evaluate negligence from the
starting point of a traditional negligence analysis rather than from the Part 100 definitions. …
Thus, in making a negligence determination, a Commission judge is not limited to an evaluation
of allegedly mitigating circumstances, but may consider the totality of the circumstances
holistically.” Id. (emphasis added).
The Court applies the holistic approach. Given the state of the evidence regarding the
limited established extent of the condition, the Court finds that the level of negligence is fairly
established as low.
13

Although the citation asserts that this standard was cited two times in the past two
years and noting that inspector Van Wey asserted that the escapeway had been cited in the past,
this is insufficient to establish as part of the violation history for this citation, given Exhibit A.
14

The violation, as noted, was established. The discrete hazard is the risk of injury to a
miner because the presence of the mud and water diminished safe and travelable conditions,
whether during a regular inspection of the escape route, or during the need to use that escapeway
in an emergency. The Inspector’s testimony, which the Court accepts as credible, supports the
conclusion that there is a reasonable likelihood that the violation will result in the hazard, that the
hazard contributed to would result in an injury and, with the expected injury being lost workdays
or restricted duty, such an injury is of a reasonably serious nature. Newton Energy, 38 FMSHRC
2033, 2036-39 (Aug. 2016).

40 FMSHRC Page 859

Upon consideration of all of the penalty factors, the Court finds that a civil penalty of
$68.00 (sixty-eight dollars) is the appropriate assessment.15
ORDER
For the reasons set forth above, Citation No. 8879804, which alleged a violation of 30
C.F.R. § 57.4131(a) is AFFIRMED and a civil penalty of $75.00 is imposed.
For the reasons set forth above, Citation No. 8879805, which alleged a violation of 30
C.F.R. § 57.11051(a) is AFFIRMED, and a civil penalty of $68.00 is imposed.
A total civil penalty of $143.00 is hereby imposed upon Respondent, Original Sixteen
to One Mine, Inc., for this violation. Payment is to be made to the Mine Safety and Health
Administration within 40 days of the date of this Decision. Upon timely receipt of payment, the
captioned civil penalty matters are DISMISSED.

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

Distribution:
Isabella M. Finneman, Esq., Office of the Solicitor, 90 Seventh Street, Suite 3-700,
San Francisco, CA 94103
Michael Miller, President, Original Sixteen To One Mine, Inc., P. O. Box 909,
Alleghany, CA 95910

15

As noted for the citation alleging combustible material storage, it is to be expected that
if subsequent violations of this standard are alleged, the Secretary will likely overcome the
evidentiary deficiencies identified in this decision and therefore the Court urges Mr. Miller to be
vigilant in maintaining safe and travelable conditions in the mine’s escape routes.

40 FMSHRC Page 860

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
721 19TH ST. SUITE 443
DENVER, CO 80202-2500
TELEPHONE: 303-844-5266 / FAX: 303-844-5268

June 28, 2018
CIVIL PENALTY PROCEEDING

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

Docket No. LAKE 2017-450
A.C. No. 12-02295-447106

v.
PEABODY MIDWEST MINING, LLC,
Respondent.

Mine: Francisco Underground Pit
DECISION

Appearances:

Edward V. Hartman, U.S. Department of Labor, Office of the Solicitor
230 S. Dearborn Street, Room 844, Chicago, Illinois 60604
Arthur Wolfson, Jackson Kelly PLLC, Three Gateway Center, Suite 1500,
401 Liberty Avenue, Pittsburgh, Pennsylvania 15222

Before:

Judge Simonton
I. INTRODUCTION

This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration, against Peabody Midwest
Mining, LLC, (“Peabody” or “Respondent”), pursuant to the Federal Mine Safety and Health Act
of 1977 (“Mine Act”), 30 U.S.C. §801.1 At issue is one citation alleging that Peabody violated its
Emergency Response Plan when it positioned a refuge chamber in the direct line of sight of a
working face. Ex. S–2.
The parties presented testimony and documentary evidence at a hearing held in
Henderson, Kentucky on March 28, 2018. MSHA Inspector Bryan Wilson testified for the
Secretary. Peabody Director of Safety and Compliance Chad Barras and section foremen Mark
Bedwell and Zeke Wilson testified for Respondent. After fully considering the testimony and
evidence presented at hearing and the parties’ post-hearing briefs, I affirm the citation as written
and assess a penalty of $50,000.00.

1

In this decision, the joint stipulations, transcript, the Secretary’s exhibits, and
Respondent’s exhibits are abbreviated as “Jt. Stip.,” “Tr.,” “Ex. S–#,” and “Ex. R–#,”
respectively.

40 FMSHRC Page 861

II. STIPULATIONS OF FACT
The parties jointly filed the following stipulations of fact in their prehearing reports:
1. Peabody Midwest Mining, LLC, is an “operator” as defined in Section 3(d) of the Federal
Mine Safety and Health Act of 1977, as amended (Mine Act), 30 U.S.C. § 803(d), at the
coal mine at which the citation at issue in these proceedings was issued.
2. The Francisco Underground Pit mine is operated by Respondent in this case, Peabody
Midwest Mining, LLC.
3. The Francisco Underground Pit mine is subject to the jurisdiction of the Mine Act.
4. At all relevant times, the products of the Francisco Underground Pit mine entered
commerce or products affect commerce, within the meaning of the Mine Act, 30 U.S.C.
§§ 802(b) and 803.
5. These proceedings are subject to the jurisdiction of the Federal Mine Safety and Health
Review Commission and its designated Administrative Law Judges pursuant to Sections
105 and 113 of the Mine Act, 30 U.S.C. §§ 815 and 823.
6. Section 316(b) of The Mine Act, 30 U.S.C. § 876(b) is a mandatory health or safety
standard as that term is defined in Section 3(l) of the Mine Act, 30 U.S.C. § 802(l).
7. Payment by Respondent of the proposed penalty of $44,546.00 will not affect
Respondent’s ability to remain in business.
8. The individual whose signature appears in Block 22 of the citation at issue in these
proceedings was acting in his official capacity and as an authorized representative of the
Secretary of Labor when the citation was issued.
9. A duly authorized representative of the Secretary served the subject citation and any
termination thereof upon the agent of the Respondent at the date and place stated therein,
as required by the Mine Act, and the citation and termination may be admitted into
evidence to establish its issuance.
10. The citation contained in Exhibit A attached to the Petition for Assessment of Penalty for
this docket is an authentic copy of the citation at issue in this proceeding with all
appropriate modifications and terminations, if any.
11. The subject refuge chamber was moved to entry no. 6 at the end of the day shift on July
18, 2017.
12. The exhibits listed in each party’s List of Witnesses and Exhibits are true and accurate
copies of the originals.

40 FMSHRC Page 862

III. FINDINGS OF FACT AND SUMMARY OF TESTIMONY
Peabody Midwest Mining, LLC, owns and operates the Francisco Underground Pit, a
bituminous coal mine located in Gibson County, Indiana. Peabody runs three working sections at
the mine, identified as Units 1, 2, and 3. Tr. 95. Each working section is divided into an A-Crew,
B-Crew, and C-Crew, and each crew occupies one of the three daily shifts; the day shift (7:00am
to 3:00pm), the afternoon shift (3:00pm to 11:00pm), and the midnight shift (11:00pm to
7:00am). Tr. 95-96. Each working section produces coal on two of the three shifts and is idle for
the third shift. Tr. 96-97. The idle shift crew is charged with setting up the section for
production. Tr. 97.
In compliance with Section 2 of the MINER Act, Peabody implemented an Emergency
Response Plan (“ERP”) designed to “provide for the evacuation of individuals endangered by an
emergency” or “provide for the maintenance of individuals trapped underground in the event that
miners are not able to evacuate the mine.” See 30 U.S.C. § 876(b)(2)(B). In order to prepare for
the latter scenario, Peabody’s ERP includes requirements for the positioning and maintenance of
two Refuge Chambers (“Chamber” or “Alternative”) 2 at each working section. Ex. S–2; Tr. 43,
81, 99. Specifically, the ERP provides:
Refuge chambers will not be placed in direct line of sight of the working face.
Where feasible, refuge chambers will not be placed in areas directly across from,
nor closer than 500 feet radially from belt drives, take-ups, transfer points, air
compressors, explosive magazines, seals, entrances to abandoned areas, fuel, oil,
or other flammable or combustible material storage.
Ex. S–2. Peabody Director of Safety and Compliance Chad Barras (“Barras”) helped
write Peabody’s ERP and testified to its development and implementation.3 Barras explained that
the line of sight provision is designed to protect the refuge chambers from damage or destruction
in the event of an ignition or explosion at the working face. Tr. 84-85. The chambers represent
the last resort in the event of an emergency, and at all times Peabody’s preferred emergency
response is total evacuation of the mine. Tr. 86.
In addition to the ERP’s requirements, the idle shift crew must also maintain the refuge
chambers within 1,000 feet of the working face to comply with 30 C.F.R. § 75.1506(c)(1). Tr.
2

A Refuge Chamber is an enclosed structure designed to provide 96 hours of oxygen for
miners to barricade in an emergency scenario where evacuation is not possible. Tr. 28. The
chamber at issue measures about 10-12 feet wide and can hold as many as 20 miners, and
contains various tools and supplies to assist in survival. Tr. 28, 31.
3

Chad Barras is the Director of Safety and Compliance for Peabody Energy, the parent
company of Peabody Midwest Mining. Tr. 74. He has worked for Peabody since 2004, and
currently oversees safety operations at all Peabody mines in the Americas. Id. His
responsibilities include conducting safety training and accident investigations, risk management,
and compliance and litigation. Tr. 74, 91. Prior to working at Peabody, Barras was a ventilation
engineer at MSHA. Tr. 75.

40 FMSHRC Page 863

99-100. As a working section advances, the idle crew section foreman will review the unit map
and determine when and to where the chambers should be moved. Tr. 100-01. The section
foreman will then plot the chambers’ new locations on the performance map. Tr. 37. All of the
section foremen use the performance map to plot the chambers, sumps, and bolted and unbolted
cuts, list needed supplies, and sign their visits to the area. Id.
During the week prior to the inspection at issue, Mark Bedwell II (“Bedwell”), section
foreman for the Unit 1 A-Crew, determined that the refuge chambers soon needed to be moved.
Tr. 94-97, 104-05. Normally, two miners can move the chambers in 30 to 45 minutes. Tr. 99100. At that time, however, Unit 1 experienced an influx of water and mud that hindered the
mine’s ability to move the chambers to a location that complied with the ERP and the relevant
Mine Act provisions. Tr. 102. Bedwell’s crew worked to pump out the water and spread loads of
bulk ash to try and solidify the ground to aid in moving the chambers. Ex. R–B; Tr. 106.
Mine conditions did not improve, however, and on July 18, 2017, Bedwell felt compelled
to move the chambers. Tr. 114-15. Bedwell was able to place the first refuge chamber into
crosscut #27 but did not believe that he could transport the second one into the 26 or 28 crosscuts
due to the muddy conditions. Tr. 113-14. Instead, he placed the second chamber in the travelway
approximately two feet off the rib and directly in the line of sight of the working face to comply
with section 76.1506(c)(1) and to ensure that the chambers remained in consecutive order.4 Ex.
R–A; Tr. 31-31, 113-14, 155-56. Bedwell plotted the chamber locations on the performance map
and planned to leave the chamber in the travelway for another couple of days until the belt and
power center needed to be moved again. Tr. 149-50. Bedwell testified that at the time he was not
aware that positioning the refuge chamber in the direct line of sight of the working face violated
Peabody’s ERP and would not have placed the chamber there had he known. Tr. 102, 148. He
also testified, however, that at least one member of upper management knew that he placed the
chamber in the travelway. Tr. 159.
On July 19, 2017, MSHA Inspector Bryan Wilson5 (“Inspector Wilson”) conducted a
standard quarterly inspection at the Francisco Underground Pit. Tr. 24. He was accompanied by
Peabody Safety Department employee Randy Hammond. Id. Since the second shift was running
at the time of the inspection, Inspector Wilson wanted to walk the beltline and its intake to
inspect the area while it was running coal. Id. The two walked past the unit power center at Entry
#6 when Inspector Wilson noticed the refuge chamber positioned in the travelway. Tr. 27-28.

4

While unclear if required by the ERP, the mine’s standard practice is to place the refuge
chambers in consecutive crosscuts so that miners would be able to locate them easily in an
emergency situation. Tr. 153, 155-56.
5

Bryan Wilson has been an MSHA inspector for over five years. Tr. 18. He previously
worked as a coal miner for Sunrise Coal, LLC for five years, spending three years as an
equipment operator and laborer, one year as an examiner, and one year as an examiner and fill-in
foreman. Id. Wilson completed training at the Mine Safety and Health Academy, and has taken
accident training and journeyman training. Tr. 19. He inspects approximately four mines per
year. Id.

40 FMSHRC Page 864

Inspector Wilson immediately recognized that the chamber’s position violated the mine’s
Emergency Response Plan. Tr. 28-29. Wilson believed that the mine could have placed the
chamber in crosscut #28, which already contained a high voltage tub and a slinger duster and
showed no obvious irregularities or adverse conditions unfit for holding the chamber. Tr. 33.
When Inspector Wilson asked Hammond why the refuge alternative was located in the
travelway and not in the crosscut, Hammond could not provide a satisfactory answer. Hammond
first responded that the ERP required placement out of the line of sight of the working face only
when feasible given the mine conditions. Tr. 29-30. Wilson knew this to be an incorrect reading
of the ERP. Id. When Wilson pressed Hammond a second time, Hammond replied “I got nothing
for you.” Tr. 34.
Inspector Wilson informed Hammond that he intended to issue a section 104(d)(1)
citation, and Hammond subsequently shut down the section and retrieved a foreman. Id.
Inspector Wilson and Hammond met foreman Zeke Wilson in entry #4. Tr. 35. When informed
of the violation, Inspector Wilson testified that Foreman Wilson was “shocked, surprised. His
eyes were – were big. He appeared that he couldn’t believe it.” Id.
Inspector Wilson gave the mine one hour and 15 minutes to abate the citation and move
the refuge chamber into crosscut #28. Id. During the abatement period, Inspector Wilson
returned to the spool area where he located the section’s performance map. Tr. 37. The map
showed the refuge alternative plotted in direct line of sight of the face. Id. Upon further review of
the map and other records, Wilson determined that the chamber had been in the travelway for at
least 24 hours. Tr. 48.
Neither party disputes that Peabody utilized ten miners and the entire 75-minute
abatement period to reposition the refuge chamber into crosscut #28. Tr. 172. However, the
parties disagree as to the extent of the undesirable conditions in the mine at the time of the
inspection. According to the Respondent, the abatement required significant additional steps to
cope with the conditions. The miners had to jerk and pull the chamber due to the mud and water
and feared that the chamber would drag against the rib because the scoop was sliding in the mud.
Tr. 169-70. Eventually, the miners attached a strap from the bucket of the scoop to the front of a
coal hauler to pull the chamber into the crosscut. Id. The miners removed the voltage tub and
slinger from the crosscut, centered the chamber, installed roof jacks, and reconnected the
communication and life lines. Tr. 40. Inspector Wilson disagreed and testified that he did not
observe severely adverse conditions or any notable difficulty repositioning the refuge chamber in
the crosscut. Tr. 40-41. Wilson did not observe any of the common issues that he associated with
the moving process, including scoops spinning out, ruts in the ground, or the need for timbers or
additional scoops. Id.
Inspector Wilson issued Citation No. 9105403 alleging a violation of 30 U.S.C. § 876(b).
The citation states:
The mine’s Approved Emergency Response Plan is not being complied with on
active #1 united. The Approved Emergency Response Plan states on page 9, first
paragraph, that refuge chambers will not be placed in direct line of sight of

40 FMSHRC Page 865

working face. Refuge Chamber serial #452089-04-13 was located between
crosscut #27 and #28, entry #6, MMU-011, approximately 480 feet outby the
working face in direct line of sight. Unit #1 was running and coal was being
extracted from the face and sent to the surface by belt conveyor. The operator
engaged in aggravated conduct constituting more than ordinary negligence. This
violation is an unwarrantable failure to comply with a mandatory standard.
Ex. S–1. He designated the citation S&S, reasonably likely to be fatal, and the result of
Peabody’s high negligence and unwarrantable failure to comply with the Mine Act. Id. The
Secretary proposed a civil penalty of $44,546.00. Id.
IV. DISPOSITION
The Secretary argues that the Respondent violated Section 316(b) by failing to follow its
Emergency Response Plan. Secretary’s Post-Hearing Brief (“Sec’y Br.”) at 9. The Secretary
contends that the violation was S&S because an explosion or ignition was reasonably likely to
damage or destroy a chamber located in the line of sight of the working face, thereby rendering it
unusable and exposing miners to serious injuries. Id. at 11-12. The Secretary also argues that the
high negligence and unwarrantable failure determinations are proper because multiple mine
employees knew or should have known that the position of the refuge chamber violated the ERP,
the condition existed for three shifts and would have existed longer but for the citation, and the
condition posed a significant danger to miner safety. Id. at 8, 13, 15-16. As such, the Secretary
requests that the court uphold citation as written and affirm the regularly-assessed penalty of
$44,546.00. Id. at 22-23.
Peabody contests the S&S, negligence, unwarrantable failure, and penalty designations.
Respondent’s Post-Hearing Brief (“Resp. Br.”) at 10. Respondent argues that the Secretary’s
S&S designation is improper because the particular facts and circumstances surrounding the
violation do not support the reasonable likelihood that miners would be unable to seek refuge in
the event of an explosion. Id. at 21-22. Peabody contends that the Secretary’s high negligence
designation is not appropriate because Foreman Bedwell took considerable measures to improve
the condition of crosscut #28 prior to the inspection and made a good faith mistake as to the
ERP’s refuge chamber requirements. Id. at 11-12. The Respondent further contends that the
unwarrantable failure designation is improper because Peabody was not placed on notice that
greater efforts were necessary to comply with the ERP provision, the cited condition was not
extensive, did not exist for more than 24 hours, and did not pose a high degree of danger. Id. at
14-18. As a result, the Respondent contends that the Secretary’s assessed penalty is excessive. Id.
at 24-25.
A. Citation No. 9105403
The parties do not dispute the material facts surrounding the violation. Section 316(b)
requires every underground coal mine to develop a written plan to provide for the evacuation of
all individuals in an emergency and provide for the maintenance of miners trapped underground
where evacuation is not possible. 30 U.S.C. § 876(b)(2). Peabody’s Emergency Response Plan

40 FMSHRC Page 866

explicitly states that “[r]efuge chambers will not be placed in direct line of sight of the working
face.” Ex. S–2.
Here, the refuge chamber was placed in the travelway toward the beltline in the #6 entry
in the direct line of sight of the working face. Ex. R–A; Tr. 27-29. Peabody’s witnesses admitted
at hearing that the refuge chamber’s placement was in contravention of the mine’s ERP. Tr. 92,
148, 177.
Accordingly, the fact of violation is affirmed.
B. Significant & Substantial
A violation is significant and substantial (S&S), “if based upon the particular facts
surrounding the violation there exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature.” Cement Division, National Gypsum
Co., 3 FMSHRC 822, 825 (Apr. 1981).
In order to uphold a citation as S&S, the Commission has held that the Secretary of Labor
must prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete safety
hazard—that is, a measure of danger to safety—contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood
that the injury in question will be of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC
1, 3–4 (Jan. 1984).
The Commission has held that the second element of the Mathies test addresses the extent
to which a violation contributes to a particular hazard. Newtown Energy, Inc., 38 FMSHRC
2033, 2037 (Aug. 2016). Analysis under the second step should thus include the identification of
the hazard created by the violation and a determination of the likelihood of the occurrence of the
hazard that the cited standard is intended to prevent. Id. at 2038. At the third step, the Secretary
must prove there was a reasonable likelihood that the hazard contributed to by the violation will
cause an injury, not a reasonable likelihood that the violation, itself, will cause injury. West
Ridge Resources, Inc., 37 FMSHRC 1061, 1067 (May 2015) (ALJ), citing Musser Eng'g, Inc., 32
FMSHRC 1257, 1280–81 (Oct. 2010. Evaluation of the four factors is made assuming continued
normal mining operations. U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984).
I have already found that Peabody Midwest violated section 316(b), a mandatory safety
standard, when it placed the refuge chamber in the direct line of sight of the working face in
contravention of its ERP. The first Mathies element is therefore satisfied.
I next turn to whether the violation was reasonably likely to contribute to the hazard
contemplated by the standard. As an initial matter, the Commission has recognized that
emergency standards “are different from other mine safety standards” because they are “intended
to apply meaningfully only when an emergency actually occurs. IGC Illinois, LLC, 38 FMSHRC
2473, 2476 (Oct. 2016) citing Cumberland Coal Res., LP, 33 FMSHRC 2357, 2367 (Oct. 2011),
aff’d 717 F.3d 1020 (D.C. Cir. 2013). Thus, when determining whether a violation of an
emergency standard is S&S, the violation should be considered in the context of the emergency

40 FMSHRC Page 867

contemplated by the standard and the court should assume the existence of the emergency when
defining the hazard. Id.
Section 316(b) requires mines to develop a plan to facilitate prompt emergency
evacuation or, when evacuation is impossible, ensure survival underground until rescue is
possible. The line of sight provision in Peabody’s ERP is intended to protect refuge chambers
from damage or destruction in the event of a large fire or explosion at the working face. Ex. S–2;
Tr. 84-85. The Commission has found that standards pertaining to refuge chambers are “intended
to apply in the context of an emergency so severe as to make an evacuation impossible, survival
outside of the refuge unlikely, and travel extremely difficult in the face of the smoke, debris, and
possible injury.” ICG Illinois, LLC, 38 FMSHRC at 2477 (finding that a mine’s failure to
position the refuge chamber within 1,000 feet of the nearest working face was S&S). Thus, the
contemplated discrete safety hazard is that in an emergency situation where evacuation is
impossible, miners would be unable to follow the ERP and access or utilize a refuge chamber.
Assuming an emergency in which evacuation is impossible, I find that Peabody’s failure
to comply with its ERP was reasonably likely to contribute to the discrete safety hazard of
miners being unable to use the refuge chamber. Inspector Wilson and Safety Director Barras
both testified that the ERP prohibits positioning the refuge chamber in the direct line of sight of
the working face because an explosion traveling outby could damage or destroy the chamber. Tr.
29-30, 84-85. The Francisco Underground Pit is a five-seam coal mine that liberates one million
cubic feet of methane daily, and any ignition would likely be significant. Tr. 90. The refuge
chamber was located in the direct line of sight and within 480 feet outby the working face. Ex S–
1. It is therefore reasonably likely that a chamber placed in the line of sight of the working face
would be subject to destruction or damage beyond use in the event of an explosion or ignition.
Peabody contends that the violation is unlikely to contribute to the hazard because the
mine would have to simultaneously experience (1) a buildup of methane and float dust, (2)
cutting in entry #6, (3) and an explosion with sufficient force to disrupt the refuge chamber.
Resp. Br. at 22. Furthermore, Peabody argues that more than 20 miners were only present at the
face during a hot-seat change6 and that work is not performed during those changes. Id. at 23.
Thus, Peabody argues that an ignition in which the use of both chambers would be necessary is
unlikely. Id.
Respondent’s argument fails to properly assume the emergency contemplated by the
standard. Consideration of whether the mine’s conditions are likely to cause an explosion at the
face is irrelevant because an explosion or ignition event must be assumed in the context of the
standard. Cumberland Coal Res., LP, 33 FMSHRC 2357, 2368 (Oct. 2011); See Warrior
Investments Co., Inc., 38 FMSHRC 651, 657 (Apr. 2016) (ALJ) (holding that a mine’s low
methane levels and the lack of fire, ignition, or explosion history are not relevant where the court
must presume the type of an emergency where a beacon reader on the chamber becomes
relevant). In this case, the court must presume the occurrence of a fire or ignition significant

6

A “hot seat change” occurs when the miners on a given shift stay at the working section
until the oncoming crew actually reaches the unit. Tr. 82-83.

40 FMSHRC Page 868

enough to prevent miners from evacuating the mine and rendering the chambers necessary for
refuge or survival.
Peabody’s claim that both chambers would only be necessary if an ignition occurred
during a hot-seat change and that no work is performed during those changes is not supported by
the ERP’s language or the record. The number of refuge chambers required in a given area is
dictated by the number of employees that may work in the area, and the ERP explicitly requires
two refuge chambers with the capacity to hold 20 miners apiece. Tr. 81-82. Barras testified that
both chambers are necessary because more than 20 miners can be present at the working face on
a given shift, not only during hot-seat changes. Id. Barras also noted that work does not
necessarily stop during those changes. Id. Even assuming that hot-seat changes were the only
time in which more than 20 miners could be at the working face, the refuge chamber was
positioned in the cited location for 24 hours and would have been there for another two days if
not for the citation. Tr. 48, 150. Assuming continuing mining operations, the chamber would
have been in the direct line of sight of the face for up to three days, over which nine hot-seat
changes could take place. Tr. 53, 150. The Secretary has satisfied the second Mathies element.
In the context of an ignition or explosion rendering evacuation impossible, the hazard of
miners being unable to effectively use a refuge chamber is reasonably likely to result in fatal
injuries. “Since refuge chambers are meant to ensure survival during an emergency which has
created inhospitable conditions, then common sense dictates that an inability to reach the refuge
chamber threatens miners’ survival.” ICG Illinois, 38 FMSHRC at 2481. The same logic applies
when miners are unable to utilize a damaged or destroyed refuge chamber. In such dire
circumstances miners would be reasonably likely to sustain serious if not fatal injuries. Aside
from the miners’ exposure to the triggering event that damaged the chamber, the potential
dangers posed by the compromised chamber could include the inability to communicate with the
surface, the lack of necessary equipment to perform first aid or other life-saving procedures, and
the lack of oxygen to survive in a heavy smoke-filled environment. Tr. 43-46. All of these
possibilities are reasonably likely to result in severe or fatal injuries. The third and fourth
elements of Mathies are therefore met.
Accordingly, I find that the violation was S&S.
C. Negligence and Unwarrantable Failure
Inspector Wilson designated the citation as high negligence and an unwarrantable failure.
The Commission has recognized the close relationship between a finding of high negligence and
a finding of unwarrantable failure. See Dominion Coal Corp., 35 FMSHRC 1652, 1663 (June
2013) (ALJ), citing San Juan Coal Co., 29 FMSHRC 125, 139 (Mar. 2007).
Under the Mine Act, operators are held to a high standard of care, and “must be on the
alert for conditions and practices in the mine that affect the safety or health of miners and to take
steps necessary to correct or prevent hazardous conditions or practices.” 30 C.F.R. § 100.3(d).
The Mine Act defines reckless disregard as conduct which exhibits the absence of the slightest
degree of care, high negligence as actual or constructive knowledge of the violative condition
without mitigating circumstances; moderate negligence as actual or constructive knowledge of

40 FMSHRC Page 869

the violative condition with mitigating circumstances; and low negligence as actual or
constructive knowledge of the violative condition with considerable mitigating circumstances. 30
CFR § 100.3: Table X.
The Commission and its judges are not bound to apply the part 100 regulations that
govern MSHA’s determinations addressing the proposal of civil penalties. Newtown Energy,
Inc., 38 FMSHRC 2033, 2048 (Aug. 2016), citing Brody Mining, LLC, 37 FMSHRC 1687,
1701–03 (Aug. 2015). The Commission instead employs a traditional negligence analysis,
assessing negligence based on whether an operator failed to meet the requisite standard of care.
Brody, 37 FMSHRC at 1702. In doing so the Commission considers what actions a reasonably
prudent person familiar with the mining industry, the relevant facts, and the protective purpose of
the regulation, would have taken under the same circumstances. Id. Commission judges are thus
not limited to an evaluation of mitigating circumstances but may instead consider the totality of
the circumstances holistically.” Id.; see also Mach Mining, 809 F.3d 1259, 1264 (D.C. Cir.
2016).
More serious consequences can be imposed for violations that result from the operator’s
unwarrantable failure to comply with mandatory health or safety standards under section 104(d)
of the Mine Act. Section 104(d)(1) states:
If, upon any inspection of a coal or other mine, an authorized
representative of the Secretary finds that there has been a violation
of any mandatory health standard…and if he finds such violation
to be caused by an unwarrantable failure of such operator to
comply with such mandatory health or safety standards, he shall
include such findings in any citation given to the operator under
this Act.
Unwarrantable failure is defined as aggravated conduct constituting more than ordinary
negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable failure is
characterized by such conduct as “reckless disregard,” “willful intent”, “indifference,” or the
“serious lack of reasonable care.” Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC
189, 193-94 (February 1991).
The Commission considers the following factors when determining the validity of
104(d)(1) and 104(d)(2) orders: (1) the length of time that the violation has existed and the extent
of the violative condition, (2) whether the operator has been placed on notice that greater efforts
were necessary for compliance, (3) the operator’s efforts in abating the violative condition, (4)
whether the violation was obvious or posed a high degree of danger and (5) the operator’s
knowledge of the existence of the violation. Consolidation Coal Co., 22 FMSHRC 340, 353
(Mar. 2000). All of the relevant facts and circumstances of each case must be examined to
determine if an actor’s conduct is aggravated, or whether mitigating circumstances exist. IO Coal
Co., 31 FMSHRC 1346, 1351 (Dec. 2009).

40 FMSHRC Page 870

1. Operator’s Knowledge of the Violation
An operator’s knowledge of a violation is an important factor in unwarrantable failure
analysis and is a requirement for a finding of high negligence under 30 C.F.R. § 100.3. Maryan
Mining, LLC, 37 FMSHRC 1715, 1723 (Aug. 2015) (ALJ). Where an agent of an operator has
knowledge or should have known of a safety violation, such knowledge should be attributed to
the operator. Martin Marietta Aggregates, 22 FMSHRC 633, 637 (May 2000). The knowledge or
negligence of an agent may be imputed to the operator. Id.
I find that the operator had knowledge of the violation. Mark Bedwell was Section
Foreman of the A-Crew on Unit 1 and in charge of moving and plotting the chambers’ positions
on the performance map. Tr. 102, 138, 148. He admitted at hearing that he was unaware of the
ERP’s line of sight requirement. Tr. 128. While I credit Bedwell’s testimony that he would not
have placed the chamber there had he known it was in violation of the ERP, this assertion does
not excuse his lack of familiarity with the ERP, a document crucial to ensuring the safety of
Peabody’s miners. Tr. 148. The record shows that Bedwell was familiar with other mine policies
and Mine Act requirements as to the chambers’ positioning, and as a section foreman should
have known to avoid placing the chamber in the line of sight of the working face. Tr. 149, 151,
155-56. As an agent of Peabody, his negligence is imputed to the operator.
Even assuming, as Respondent contends, that Bedwell acted in good faith, other members
of Peabody mine management knew or should have known that the refuge chamber was
positioned in violation of the ERP. The refuge chamber sat in the direct line of sight of the
working face for 24 hours and was subject to three pre-shift examinations by section foremen,
none of whom took any steps to move the chamber or to notify Bedwell to do so. Ex. S–2, S–4;
Tr. 48-51. Most concerning, Bedwell provided undisputed testimony that mine manager Mike
Butler, a member of upper management, knew that the refuge chamber was positioned in the
travelway but took no action and provided no direction or assistance to ensure compliance. Tr.
159-60. Peabody therefore knew or should have known of the violation.
2. Duration of the Violation
The refuge chamber existed in the direct line of sight of the working face for 24 hours.
Tr. 48. The area was subject to three pre-shift examinations by different section foremen during
that time and was plotted on the performance map. Ex. S–4; Tr. 48-53. Furthermore, Foreman
Bedwell testified that if it weren’t for the citation, the chamber would have remained in the same
spot for at least a couple more days. Tr. 150.
3. Extent of the Violation
The violation was extensive. The refuge chamber was large and could hold as many as 20
miners for up to 96 hours in an emergency situation. Tr. 28, 31. It constituted half of the refuge
chambers required by the mine’s ERP in the area. The refuge chamber’s position would impact
the entire crew at the working section in an emergency situation and could affect two crews
during a hot-seat change. Tr. 82-83. Should the chamber be damaged or destroyed during an

40 FMSHRC Page 871

emergency, multiple miners could be subjected to serious or fatal injuries because they could not
access or utilize the chamber.
More importantly, I find that the violation was extensive due to the widespread failure of
multiple members of mine management to recognize or address the situation. See M-Class
Mining, LLC, 39 FMSHRC 1013, 1030 (May 2017) (ALJ) (finding a violation extensive where
five members of mine management had the knowledge and multiple opportunities to comply
with a standard but failed to do so). As discussed above, these employees were aware of the
chamber’s position and should have known that it violated the ERP. Tr. 48-51, 104, 159-60.
Nonetheless, the chamber remained in the violative position for 24 hours, and if not for the
citation it would have remained there for another couple of days. Tr. 150.
This combination of ignorance and knowing inaction on the part of management suggests
that the operator was either highly negligent in training its section foremen on the ERP, highly
negligent in executing the ERP, or both. Foreman Bedwell’s unfamiliarity suggests a lack of or
deficiency in training on effective preparation and execution of the ERP. Bedwell testified that
he had read the ERP but did not remember the cited provision, and had never been trained on the
ERP. Tr. 128-29, 148. Barras also failed to recall instituting any training on the ERP. Tr. 91.
Yet the record shows that only Bedwell was unaware of the terms, and makes no
indication as to why the other members of management failed to act. At best, those individuals
were also inadequately trained and did not recognize the violative condition. At worst, those
other members were aware of the violative condition and did nothing. Particularly concerning is
Bedwell’s acknowledgment that Mine Manager Mike Butler was aware of the chamber’s
position and took no action to provide direction to Bedwell or any other section foreman. Tr.
159-60.
In all, four members of mine management failed to act on multiple occasions despite
knowing that the refuge chamber was placed in the direct line of sight of the working face.
Whether due to deficient training or willful inaction, Peabody’s negligent conduct was extensive.
4. Obviousness of the Hazard and Degree of Danger
The hazard was obvious. The language of the ERP is clear that refuge chambers cannot
be placed within the direct line of sight of the working face. Ex. S–2. Any miner familiar with
the ERP would have immediately recognized the violative condition. Not only was the chamber
clearly visible to all of the miners that worked in Unit 1, but it was plotted on the performance
map available to management. Tr. 37, 149-50. Inspector Wilson testified as to multiple Peabody
employees and management members being surprised or in shock when finding out that the
chamber was positioned in the travelway in direct line of sight of the working face. Tr. 35, 13842.
As discussed in relation to the S&S finding, the chamber’s placement posed a high
degree of danger to miners at the working section. Barras and Wilson testified that in an
emergency the refuge chamber is the last resort for miners to seek immediate protection and
survive until rescue is possible. Tr. 46, 86. The mine’s placement of the refuge chamber exposed

40 FMSHRC Page 872

it to damage or destruction in the event of an ignition at the face. An irreparably damaged or
destroyed refuge chamber has no safety value in an emergency situation. The chamber’s
placement was therefore highly dangerous.
5. Abatement Efforts
Abatement efforts relevant to the unwarrantable failure analysis are those made prior to
the issuance of the citation or order. Consolidation Coal Co., 35 FMSHRC 2326, 2342-43 (Aug.
2013); New Warwick Mining Co., 18 FMSHRC 1568, 1574 (Sept. 1996).
Here, Peabody knew or should have known of the violation but did not move the chamber
out of the line of sight of the working face until Inspector Wilson issued the 104(d)(1) citation.
Ex. S–4; Tr. 159-60. If not for the citation the chamber would have remained in the violative
condition for at least another two days. Tr. 150.
I reject Peabody’s contention that Bedwell’s efforts to improve conditions in the working
section using pumps and ash constitute a mitigating circumstance. Resp. Br. at 11. Although I
credit the testimony of the Respondent’s witnesses that wet and muddy conditions existed at the
mine, those same conditions existed the next day when Peabody successfully moved the refuge
chamber into crosscut #28 to abate the citation. Tr. 33, 114, 167. Although it took longer than
usual to move the chamber into the crosscut during abatement, Peabody was still able to do so in
a relatively short period of time, and part of the delay was due to the need to remove the
equipment already placed in the crosscut. Tr. 35, 40, 114, 167. Respondent could have properly
positioned the chamber in the crosscut prior to the inspection if it wished to dedicate the time and
manpower to ensure compliance with the ERP, but did not do so until cited. Abatement is
therefore not a mitigating factor in this case.
6. Notice to the Operator that Greater Efforts Were Necessary for Compliance
The notice factor of the unwarrantable failure analysis pertains to previous citations,
directives, and communications prior to the violation at issue that notify the operator of
hazardous conditions or practices. Consolidation Coal Co., 22 FMSHRC 2326, 2342 (Aug.
2013); IO Coal Co., 31 FMSHRC 1346, 1353-55 (Dec. 2009).
Here, there is no evidence Peabody was placed on notice of the need for greater
compliance in the past.
7. Conclusion
Based on the foregoing, especially the operator’s knowledge of the violation, mine
management’s extensive negligence in training its employees to understand and execute the
ERP, and the violation’s obviousness and high degree of danger, I find that Peabody engaged in
aggravated conduct constituting more than ordinary negligence. Though Peabody was not placed
on notice of the need for greater compliance, the placement of the chamber was a clear violation
of the ERP, a crucial document to miners’ safety and well-being in the mine. While the violation
only existed for 24 hours, it would have existed for at least another 48 hours if not for the citation

40 FMSHRC Page 873

and was either missed or ignored by multiple agents of the operator. In essence, Peabody failed
to take a thorough and cautious approach to implementing its ERP and did not offer any credible
mitigating factors.
Accordingly, I find that the violation constituted an unwarrantable failure, and for the
same reasons find that Peabody’s negligence was high.
V. PENALTY
It is well established that Commission administrative law judges have the authority to
assess civil penalties de novo for violations of the Mine Act. Sellersburg Stone Company, 5
FMSHRC 287, 291 (March 1983). The Act requires that in assessing civil monetary penalties,
the Commission ALJ shall consider the six statutory penalty criteria:
(1) the operator’s history of previous violations, (2) the appropriateness of such
penalty to the size of the business of the operator charged, (3) whether the
operator was negligent, (4) the effect on the operator’s ability to continue in
business, (5) the gravity of the violation, and (6) the demonstrated good faith of
the person charged in attempting to achieve rapid compliance after notification of
a violation.
30 U.S.C. 820(I).
The Secretary proposed a regularly assessed penalty of $44,546.00. Peabody had one
previous violation of section 316(b) over the past two years and was not assessed additional
points for violation history. See Sec’y Br. at 22. The parties stipulated that payment of the
proposed penalty of $44,546.00 will not affect Respondent’s ability to remain in business. Jt.
Stip. # 7. Peabody immediately dedicated ten miners and over an hour of time to abate the
condition following the issuance of the citation. Tr. 62-63, 150, 172. However, Peabody also
admitted that if not for the citation the refuge chamber would have likely remained in the direct
line of sight of the working face for another couple of days. Tr. 150.
I discussed my gravity and negligence findings in greater detail above. Peabody violated
the standard and the violation was S&S and reasonably likely to be fatal. I affirmed the
Secretary’s high negligence and unwarrantable failure designations because at least four
members of mine management including the mine manager knew or should have known of the
violation and failed to act. Of particular concern is upper management’s knowledge of the
violation, and its failure to act or to properly train its section foremen on the ERP’s terms and
their importance.
In light of the above, the court believes that the proposed penalty is not sufficient given
the context and severity of the violation. Section 316(b) is intended to maximize miners’ chances
of survival in the face of an emergency, and the refuge chambers represent the miners’ last resort
in such circumstances. Yet Peabody showed little regard for the chamber’s vulnerable position
and its importance to effectively executing the ERP if the need arose. Despite being able to move
the chamber with slightly more time and manpower than usually required, Peabody elected not to

40 FMSHRC Page 874

act and would have left the chamber in the direct line of sight of the working face for even
longer. These decisions put miners’ lives at risk. After considering the penalty criteria, I assess a
penalty of $50,000.00.
VI. ORDER
Respondent is hereby ORDERED to pay the Secretary of Labor the total sum of
$50,000.00 within 30 days of this order.7

/s/ David P. Simonton
David P. Simonton
Administrative Law Judge

Distribution: (U.S. First Class Mail)
Edward V. Hartman, Esq., U.S. Department of Labor, Office of the Solicitor, 230 South
Dearborn Street, Suite 844, Chicago, Illinois 60604
Arthur Wolfson, Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1500, 401 Liberty
Avenue, Pittsburgh, PA 15222

7

Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION,
U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO
63179-0390

40 FMSHRC Page 875

FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., NW, SUITE 520N
WASHINGTON, DC 20004-1710
Telephone: (202) 434-9950 FAX: (202) 434-9954

June 29, 2018
CIVIL PENALTY PROCEEDINGS

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

Docket No. SE 2015-0285
A.C. No. 22-00035-380097

v.

Docket No. SE 2015-0418
A.C. No. 22-00035-387993

OIL-DRI PRODUCTION COMPANY,
Respondent.

Mine: Ripley Mine and Mill

DECISION AND ORDER
Appearances: Daniel T. Brechbuhl, U.S. Department of Labor, Office of the Solicitor, Denver,
CO, for the Petitioner;
Douglas A. Graham, Oil-Dri Corporation of America, Chicago, IL, for the
Respondent.
Before:

Judge L. Zane Gill

These proceedings under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (1994), involve 14 citations issued by Inspectors Michael LaRue and John Howerton
during their MSHA E01 inspections in March and June 2015, at the Ripley Mine and Mill near
Ripley, Tippah County, Mississippi. SE 2015-0285 comprises 11 citations written by Inspector
LaRue on March 18, 23, and 24, 2015: Citation Nos. 8820563, 8820564, 8820565, 8820567,
8820568, 8820569, 8820571, 8820573, 8820574, 8820575, and 8820576. SE 2015-0418
comprises the remaining three citations issued by Inspector Howerton on June 22 and 23, 2015:
Citation Nos. 8818317, 8818319, and 8818320. The Ripley mine processes clay material. The
trial was held in Memphis, Tennessee, on March 8 and 9, 2016.
I. PROCEDURAL HISTORY
Of the 14 citations issued by Inspectors LaRue and Howerton, 12 were presented for
decision. Citation No. 8818317 (Howerton), involving a dispute over fire extinguisher inspection
records, was vacated during the hearing on motion by Respondent. (Tr.164:16-19) In addition,
Respondent agreed to accept and pay a penalty of $100.00 for Citation No. 8820576 (LaRue),
involving a missing accident report. (Tr.18:18-19:7)

40 FMSHRC Page 876

The 12 remaining citations were grouped for presentation and discussion into a collection
of seven housekeeping violations,1 two dust truck violations,2 and three stand-alone violations:
the first alleging that an over-the-road driver tarped his load without fall protection (Citation No.
8818320); the second alleging inadequate lighting in the verge storage tank area (Citation No.
8820571); and, the third alleging that a pre-use inspection of a work area had not been done
(Citation No. 8820575).
The housekeeping citations allege violations of 30 C.F.R. § 56.20003(a). Citation No.
8820571 (inadequate lighting) alleges a violation of 30 C.F.R. § 56.17001. The first dust truck
citation, No. 8820573, alleges a violation of 30 C.F.R. § 56.14100(c), and the second, No.
8820574, alleges a violation of 30 C.F.R. § 56.14101(a)(3). The examination of working places
citation, No. 8820575, alleges a violation of 30 C.F.R. § 56.18002(a). Finally, the fall protection
citation, No. 8818320, alleges a violation of 30 C.F.R. § 56.15005.
II. STIPULATIONS
The parties read the following stipulations into the record:
1.

Oil-Dri Production Company (“ODPC”) was at all times relevant to these
proceedings engaged in mining activities at the Ripley Mine and Mill in or near
Ripley, Mississippi.

2.

ODPC’s mining operations affect interstate commerce.

3.

ODPC is subject to the jurisdiction of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (The “Mine Act” or “Act”).

4.

ODPC is an “operator” as that word is defined in section 3(d) of the Mine Act, 30
U.S.C. § 803(d), at the Ripley Mine and Mill (Federal Mine I.D. No. 22-00035)
where the contested citations in these proceedings were issued.

5.

The Administrative Law Judge has jurisdiction over these proceedings pursuant to
section 105 of the Act.

6.

On or about March 18, 2015, through June 23, 2015, Mine Safety and Health
Administration (“MSHA”) Inspectors Michael LaRue and John Howerton were
acting as duly authorized representatives of the United States Secretary of Labor,
assigned to MSHA, and were acting in their official capacity when conducting the
inspection and issuing the citations from dockets SE 2015-0285 and 0418, at issue
in these proceedings.

1

Inspector Howerton wrote one housekeeping violation, Citation No. 8818319, and
Inspector LaRue wrote the other six: Citation Nos. 8820563, 8820564, 8820565, 8820567,
8820568, and 8820569.
2

Citation Nos. 8820573 and 8820574.

40 FMSHRC Page 877

7.

The citations at issue in these proceedings were properly served upon ODPC as
required by the Act and were properly contested by ODPC.

8.

The citations at issue in these proceedings may be admitted into evidence by
stipulation for the purpose of establishing their issuance. Materials published on
MSHA’s website or otherwise published by MSHA may also be admitted into
evidence by stipulation for the purpose of establishing their issuance and
availability. The truthfulness or relevancy of any statements asserted therein is not
stipulated to by the parties.

9.

ODPC demonstrated good faith in abating the violations.

10.

Without ODPC admitting the propriety or reasonableness of the penalties
proposed herein, the penalties proposed by the Secretary in this case will not
affect the ability of ODPC to continue in business.
III. DECISION SUMMARY

A.

Docket No. SE 2015-0418
1. Citation No. 8818317 – Fire Extinguisher Annual Inspection
Respondent did not violate 30 C.F.R. § 56.4201(a)(2). The citation is vacated.
2. Citation No. 8818319 – Old Clay Shed

Respondent violated 30 C.F.R. § 56.20003(a) by failing to keep the old clay shed clean
and orderly. The disarray described in the violation narrative created a slip–trip–fall hazard to
miners. The violation was unlikely to result in a lost-workday or restricted-duty injury for one
person. The violation was the result of moderate negligence. The assessed penalty is $100.00.
3. Citation No. 8818320 – Flat Bed Truck (#456)
Respondent violated 30 C.F.R. § 56.15005 when an over-the-road truck driver failed to
use safety belts and lines where there was a fall danger. The irregular surface on the top of the
truck bed created a slip–trip–fall hazard to the driver. The violation was reasonably likely to
result in a permanently disabling injury for one person. The violation was significant and
substantial (“S&S”). The violation was the result of no negligence. The assessed penalty is
$130.00.
B.

Docket No. SE 2015-0285
1. Citation No. 8820563 – New Agg Discharge Cooler

Respondent violated 30 C.F.R. § 56.20003(a) by failing to keep the new Agg discharge
cooler clean and orderly. The material accumulation described in the violation narrative created a
slip–trip–fall hazard to miners. The violation was reasonably likely to result in a lost-workdays
or restricted-duty type injury for one person. The violation was S&S. The violation was the result
of moderate negligence. The assessed penalty is $634.00.

40 FMSHRC Page 878

2. Citation No. 8820564 – RVM Discharge End Platform
Respondent violated 30 C.F.R. § 56.20003(a) by failing to keep the RVM discharge end
platform clean and orderly. Accumulated material, tools, and spray cans in the work area created
a slip–trip–fall hazard to miners. The violation was unlikely to result in a lost-workdays or
restricted-duty injury for one person. The violation was the result of moderate negligence. The
assessed penalty is $127.00.
3. Citation No. 8820565 – Ground Level of the Old Agg Scrubber
Respondent violated 30 C.F.R. § 56.20003(a) by failing to keep the ground level of the
old agg scrubber clean and orderly. An accumulation of material on the ground level of the old
agg scrubber created a slip–trip–fall hazard to miners. The violation was reasonably likely to
result in a lost-workdays-or-restricted-duty-type injury for one person. The violation was S&S.
The violation was the result of moderate negligence. The assessed penalty is $634.00.
4. Citation No. 8820567 – Third Floor of the Mill Building
Respondent violated 30 C.F.R. § 56.20003(a) by failing to keep the third floor of the mill
building clean and orderly. Deep material accumulation and a chair in a passageway on the third
floor of the mill building created a slip–trip–fall hazard to miners. The violation was unlikely to
result in a lost-workdays or restricted-duty injury to one miner. The violation was the result of
moderate negligence. The assessed penalty is $127.00.
5. Citation No. 8820568 – Walkway Around the 4 & 5 Pre-Grind Mills
Respondent violated 30 C.F.R. § 56.20003(a) by failing to keep the walkway around the
4 & 5 pre-grind mills clean and orderly. Deep accumulations covering floor irregularities on the
walkway around the 4 & 5 pre-grind mills created a slip–trip–fall hazard to miners. The violation
was reasonably likely to result in a lost-workdays or restricted-duty injury to one miner. The
violation was S&S. The violation was the result of high negligence. The assessed penalty is
$2,107.00.
6. Citation No. 8820569 – Ground Level of the Mill Building
Respondent violated 30 C.F.R. § 56.20003(a) by failing to keep the ground level of the
mill building clean and orderly. Significant material accumulations created a slip–trip–fall hazard
to miners. The violation was reasonably likely to result in a lost-workdays or restricted-duty
injury to one miner. The violation was S&S. The violation was the result of high negligence. The
assessed penalty is $2,107.00.
7. Citation No. 8820573 – Dust Truck Tagging
Respondent violated 30 C.F.R. § 56.14100(c) by failing to remove a Ford L9000 dust
truck from service after defects affecting safety were observed during a pre-operational
examination. Significant clay dust on the truck’s windshield created a visibility hazard. The
violation was reasonably likely to result in a fatal injury to one miner. The violation was S&S.
The violation was the result of moderate negligence. The assessed penalty is $1,944.00.

40 FMSHRC Page 879

8. Citation No. 8820574 – Dust Truck Air Brakes
Respondent violated 30 C.F.R. § 56.14101(a)(3) by failing to maintain functional air
brakes on the Ford L9000 dust truck. The leak in the air brakes created a loss-of-control hazard.
The violation was reasonably likely to result in a fatal injury to one miner. The violation was
S&S. The violation was the result of moderate negligence. The assessed penalty is $1,944.00.
9. Citation No. 8820571 – Illumination of Verge Storage Tank Area
Respondent violated 30 C.F.R. § 56.17001 by failing to provide sufficient lighting around
the verge storage tanks. Deep mud accumulations and low visibility created a slip–trip–fall
hazard. The violation was reasonably likely to result in a lost-workdays or restricted-duty injury
to one miner. The violation was S&S. The violation was the result of moderate negligence. The
assessed penalty is $585.00.
10. Citation No. 8820575 – Working Place Examination of Verge Storage Tank
Area
Respondent violated 30 C.F.R. § 56.18002(a) by failing to inspect and conduct a pre-shift
working place examination of the verge storage tank area. Deep mud accumulations under and
around the verge storage tanks created a slip–trip–fall hazard. The violation was reasonably
likely to result in a lost-workdays or restricted-duty injury to one miner. The violation was S&S.
This violation was the result of high negligence. The assessed penalty is $1,944.00.
11. Citation No. 8820576 – MSHA Injury Report Form 7000-1
Respondent withdrew contest of the penalty at hearing. The assessed penalty is $100.00.
IV. GENERAL LEGAL PRINCIPLES
A.

Burden of Proof

The Secretary bears the burden of proving all elements of a citation by a preponderance
of the credible evidence. In re: Contests of Respirable Dust Sample Alteration Citations, 17
FMSHRC 1819, 1838 (Nov. 1995), aff’d sub nom. Sec’y of Labor v. Keystone Coal Mining
Corp., 151 F.3d 1096 (D.C. Cir. 1998); Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152
(Nov. 1989); Jim Walter Res., Inc., 30 FMSHRC 872, 878 (Aug. 2008) (ALJ) (“The Secretary’s
burden is to prove the violations and related allegations, e.g., gravity and negligence, by a
preponderance of the evidence.”); see also Jim Walter Res., Inc., 36 FMSHRC 1972, 1976-77
(Aug. 2014) (holding that to prove his imputed negligence is proper, the Secretary must describe
the specific action an operator did not take to meet the requisite standard of care). In general, this
preponderance standard “means proof that something is more likely so than not so.” In re:
Contests of Respirable Dust Sample Alteration Citations, 17 FMSHRC at 1838.

40 FMSHRC Page 880

B.

Negligence

The Mine Act creates a strict liability enforcement model,3 and, as a result, negligence is
not an essential part of the calculus to determine an operator’s liability. When an MSHA
inspector observes conditions that create mine hazards or otherwise fall short of the Act’s
requirements, a citation is required, irrespective of fault. Negligence, however, is central to the
assessment of civil penalties 4 and to the evaluation of unwarrantable failure and flagrant
violations.5
Negligence is considered in light of the action that would have been taken under the same
circumstances by a “reasonably prudent person familiar with the mining industry, the relevant
facts, and the protective purposes of the regulation.” Brody Mining LLC, 37 FMSHRC 1687,
1702 (Aug. 2015). An operator is negligent if it should have known that its actions (or failure to
act) would cause a violation. Id. at 1704. Considerations regarding negligence include “the
foreseeability of the miner’s conduct, the risks involved, and the operator’s supervising, training,
and disciplining of its employees to prevent violations of the standard in issue.” A. H. Smith
Stone Co., 5 FMSHRC at 15.
The operator may be charged with varying degrees or levels of negligence, which
becomes an important consideration during the penalty assessment. The Commission has
described that ordinary negligence may be characterized by “inadvertent,” “thoughtless,” or
“inattentive” conduct. Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987). A finding of
high negligence, however, “suggests an aggravated lack of care that is more than ordinary
negligence.” Topper Coal Co., 20 FMSHRC 344, 350 (Apr. 1998); E. Assoc. Coal Corp., 13
3

“If [. . .] the Secretary or his authorized representative believes that an operator of a coal
or other mine subject to this chapter has violated this chapter [. . .], he shall [. . .] issue a citation
to the operator.” 30 U.S.C. § 814(a). This court has held that “[t]he Mine Act is a strict liability
statute, and an operator is liable for a violation of a mandatory safety standard regardless of its
level of fault.” Brody Mining, LLC, 33 FMSHRC 1329, 1335 (May 2011) (ALJ) (citing Spartan
Mining Co., 30 FMSHRC 699, 706 (Aug. 2008); Asarco, Inc., 8 FMSHRC 1632, 1634-36 (Nov.
1986), aff’d, 868 F.2d 1195 (10th Cir. 1989)); see also A.H. Smith Stone Co., 5 FMSHRC 13, 15
(Jan. 1983) (holding that each mandatory standard has an accompanying duty of care to avoid
violations of the standard, and an operator’s failure to meet that duty can lead to a finding of
negligence if a violation occurs).
4

Section 110(i) of the Mine Act requires that in assessing penalties, one criterion that
must be taken into account is “whether the operator was negligent.” 30 U.S.C. § 820(i); see also
Asarco, 8 FMSHRC at 1636, aff’d, 868 F.2d 1195 (10th Cir. 1989) (“[T]he operator’s fault or
lack thereof, rather than being a determinant of liability, is a factor to be considered in assessing
a civil penalty.”).
5

Although the same or similar factual circumstances may be included in the
Commission’s consideration of an operator’s misconduct with regard to an unwarrantable failure
finding and the Commission’s evaluation of an operator’s negligence for purposes of assessing a
civil penalty, the concepts are distinct and subject to separate analysis. See Black Diamond Coal
Mining Co., 7 FMSHRC 1117, 1122 (Aug. 1985).

40 FMSHRC Page 881

FMSHRC 178, 187 (Feb. 1991). In particular, the Commission has held that an operator’s
intentional violation constitutes high negligence for penalty purposes. Consolidation Coal Co.,
14 FMSHRC 956, 969-70 (June 1992). Also, actual knowledge of violative conditions and the
failure to act in light of that knowledge amount to high negligence. Deshetty, employed by Island
Creek Coal Co., 16 FMSHRC 1046, 1053 (May 1994). Moreover, mine management is held to a
higher standard of care because they are tasked with the safety of their miners and must also set
an example for miners under their direction. Midwest Material Co., 19 FMSHRC 30, 35 (Jan.
1997); Wilmot Mining Co., 9 FMSHRC 684, 688 (Apr. 1987).6
Negligence is defined in Part 100 as “conduct, either by commission or omission, which
falls below a standard of care established under the Mine Act to protect miners against the risks
of harm.” 30 C.F.R. § 100.3(d).7 MSHA’s Part 100 also takes into account mitigation, stating
that “MSHA considers mitigating circumstances which may include, but are not limited to,
actions taken by the operator to prevent or correct hazardous conditions or practices.” Id.
Accordingly, reckless negligence is present if “[t]he operator displayed conduct which exhibits
the absence of the slightest degree of care.” Id. High negligence is when “[t]he operator knew or
should have known of the violative condition or practice, and there are no mitigating
circumstances.” Id. Moderate negligence is properly attributed to the operator if “[t]he operator
knew or should have known of the violative condition or practice, but there are mitigating
circumstances.” Id. Low negligence is appropriate when “[t]he operator knew or should have
known of the violative condition or practice, but there are considerable mitigating
circumstances.” Id. No negligence is appropriate if “[t]he operator exercised diligence and could
not have known of the violative condition or practice.” Id. MSHA’s definitions of negligence and
corresponding degrees in part 100 are not binding on Commission judges but are helpful in
evaluating culpability. Brody Mining, 37 FMSHRC at 1701-03 (holding that Commission judges
are not bound to apply MSHA’s negligence definitions in 30 C.F.R. Part 100).
Mitigation becomes an important consideration when analyzing the level of negligence
attributable to the operator. Essentially, mitigation is something the operator does affirmatively,
with knowledge of the potential hazard being mitigated, that tends to reduce the likelihood of an
injury to a miner. This includes actions taken by the operator to prevent or correct hazardous
conditions. While mitigation is an important consideration, an ALJ is not constrained to an
evaluation of “mitigating” circumstances but is charged to consider the “totality of the
circumstances holistically.” Mach Mining, LLC v. Sec’y of Labor, 809 F.3d 1259, 1264 (D.C.
Cir. 2016) (citing Brody Mining, 37 FMSHRC at 1702).
6

There is an exception to this principle that applies in limited circumstances. The
Commission has held that where an operator takes reasonable steps to prevent accidents and the
“erring supervisor unforeseeably exposes only himself to risk,” a finding of no negligence will
be upheld, but if an operator was blameworthy in respect to hiring, training, safety procedures or
the accident itself, there may be a negligence finding. NACCO Mining Co., 3 FMSHRC 848,
850-51 (Apr. 1981). Notably, the Commission has never applied the NACCO exception to
preclude a finding of unwarrantable failure or to mitigate the civil penalty assessment for an
unwarrantable failure violation.
7

“A mine operator is required [. . .] to take steps necessary to correct or prevent
hazardous conditions or practices.” 30 C.F.R. § 100.3(d).

40 FMSHRC Page 882

C.

Gravity

The gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), is
most often viewed in terms of the seriousness of the violation. Sellersburg Stone Co., 5
FMSHRC 287, 294 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984). The seriousness of a
violation can be evaluated by comparing the violated standard and the operator’s conduct with
respect to that standard in the context of the Mine Act’s purpose of limiting violations and
protecting the safety and health of miners. See Harlan Cumberland Coal Co., 12 FMSHRC 134,
140 (Jan. 1990) (ALJ). The Commission has recognized that the determination of the likelihood
of injury should be made assuming continued normal mining operations without abatement of
the violation. See U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985).
However, the gravity of a violation and its S&S nature are not the same. The Commission
has pointed out that the “focus of the seriousness of the violation is not necessarily on the
reasonable likelihood of serious injury, which is the focus of the S&S inquiry, but rather on the
effect of the hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC 1541, 1550 (Sept. 1996).
The gravity analysis can include the likelihood of an injury but should focus more on the
potential severity of an injury and the number of miners potentially injured. The analysis should
not equate gravity, which is an element that must be assessed in every citation or order, with
“significant and substantial,” which is only relevant in the context of enhanced enforcement
under Section 104(d). See Quinland Coals, Inc., 9 FMSHRC 1614, 1622 n.l1 (Sept. 1987).
D.

Significant and Substantial

A violation is S&S “if, based on the particular facts surrounding that violation, there
exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
To establish an S&S violation, the Secretary must prove: “(1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard—that is, a measure of danger to safety—
contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will
result in an injury; and (4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote
omitted); see also Buck Creek Coal, Inc. v. Fed. Mine Safety & Health Admin., 52 F.3d 133, 13536 (7th Cir. 1995) (affirming ALJ’s application of the Mathies criteria); Austin Power, Inc. v.
Sec’y of Labor, 861 F.2d 99, 103-04 (5th Cir. 1988) (approving the Mathies criteria).
The Commission has recently explained that in analyzing the second Mathies element,
Commission Judges must determine “whether, based upon the particular facts surrounding the
violation, there exists a reasonable likelihood of the occurrence of the hazard against which the
mandatory safety standard is directed.” Newtown Energy, Inc., 38 FMSHRC 2033, 2038 (Aug.
2016). In evaluating the third Mathies element, the Commission assumes the hazard identified in
the second Mathies element has been realized and determines whether that hazard is reasonably
likely to cause injury. Id. at 2045 (citing Knox Creek Coal Corp. v. Sec’y of Labor, 811 F.3d 148,
161-62 (4th Cir. 2016); Peabody Midwest Mining, LLC, 762 F.3d 611, 616 (7th Cir. 2014); Buck
Creek Coal, 52 F.3d at 135).

40 FMSHRC Page 883

The Commission has further found that “the absence of an injury-producing event when a
cited practice has occurred does not preclude a determination of S&S.” Musser Eng’g, Inc., 32
FMSHRC 1257, 1281 (Oct. 2010) (citing Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec.
2005); Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 1996)). The Commission
has also specified that evaluation of the reasonable likelihood of injury should be made assuming
continued normal mining operations. U.S. Steel Mining, 7 FMSHRC at 1130 (quoting U.S. Steel
Mining Co., 6 FMSHRC 1573, 1574 (July 1984)). Finally, it is well settled that redundant safety
measures are not to be considered in determining whether a violation is S&S. Knox Creek Coal,
811 F.3d at 162; Cumberland Coal Res., LP, 717 F.3d 1020, 1029 (D.C. Cir. 2013); Buck Creek
Coal, 52 F.3d at 136; Brody Mining, 37 FMSHRC at 1691; Cumberland Coal Res., LP, 33
FMSHRC 2357, 2369 (Oct. 2011).
E.

Penalty

A mine operator is subject to a civil penalty for a violation of a standard promulgated by
MSHA at its mine. 30 U.S.C. § 820. The purpose of imposing penalties is to provide a “strong
incentive for compliance with the mandatory health and safety standards.” Nat’l Indep. Coal
Operators’ Ass’n v. Kleppe, 423 U.S. 388, 401 (1976).
Congress’ purpose in enacting the penalty component of the Act was to create
deterrence, stating, “[t]o be successful in the objective of including [sic] effective and
meaningful compliance, a penalty should be of an amount which is sufficient to make it more
economical for an operator to comply with the Act’s requirements than it is to pay the penalties
assessed and continue to operate while not in compliance.” S. Rep. No. 95-181, at 90 (1977).
Part 100 establishes two types of proposed penalties: (1) regular formula assessments and
(2) special assessments. The Secretary is seeking regular formula assessments for all of the
citations in these two dockets. Regular formula assessments are governed by 30 C.F.R. § 100.3.
Pursuant to this section, the Secretary assigns a point value for each of the six criteria based on
the designations associated with the particular violation. The points are then added together and
the penalty is proposed based on the point total according to the point table contained in section
100.3. When this procedure for assessment is used, the operator is provided an “Exhibit A,”
which lists the points for each criterion and shows how the proposed penalty was calculated.
The principles governing the authority of Commission administrative law judges to
assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i)
of the Mine Act delegates to the Commission and its judges the “authority to assess all civil
penalties provided in [the] Act.” 30 U.S.C. § 820(i). The Act delegates the duty of proposing
penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the
Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess
said penalty. 29 C.F.R. § 2700.28.
Under section 110(i) of the Mine Act, the Commission is to consider the following when
assessing a civil penalty: (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 in abatement of the violative condition. 30 U.S.C.
§ 820(i). Thus, the Commission alone is responsible for assessing final penalties. See Sellersburg

40 FMSHRC Page 884

Stone Co., 736 F.2d at 1151-52 (“[N]either the ALJ nor the Commission is bound by the
Secretary’s proposed penalties [. . .] we find no basis upon which to conclude that [MSHA’s Part
100 penalty regulations] also govern the Commission.”); see also Am. Coal Co., 35 FMSHRC
1774, 1819 (June 2013) (ALJ).
The Commission has repeatedly held that substantial deviations from the Secretary’s
proposed assessments must be adequately explained using the section 110(i) criteria. E.g., Hubb
Corp., 22 FMSHRC 606, 612 (May 2000); Cantera Green, 22 FMSHRC 616, 620-21 (May
2000) (citations omitted); Sellersburg Stone Co., 5 FMSHRC at 293. A judge need not make
exhaustive findings but must provide an adequate explanation of how the findings contributed to
his or her penalty assessments. Cantera Green, 22 FMSHRC at 621.
F.

Regulatory Interpretation and Fair Notice8

Where the language of a regulatory provision is clear, the provision must be enforced as
written unless the regulator clearly intended the words to have a different meaning or
enforcement would produce absurd results. Hecla Ltd., 38 FMSHRC 2117, 2122 (Aug. 2016);
Austin Powder Co., 29 FMSHRC 909, 913 (Nov. 2007); see Pfizer Inc. v. Heckler, 735 F.2d
1502, 1509 (D.C. Cir. 1984) (“Under settled principles of statutory and rule construction, a court
may defer to administrative interpretations of a statute or regulation only when the plain meaning
of the rule itself is doubtful or ambiguous.”).
To the extent a regulation is silent or ambiguous on a particular point, the Commission
follows the doctrine of deference established in Bowles v. Seminole Rock and Sand Company,
325 U.S. 410 (1945), and reaffirmed in Auer v. Robbins, 519 U.S. 452 (1997). See, e.g., Hecla,
38 FMSHRC at 2122; Tilden Mining Co., 36 FMSHRC 1965, 1967 (Aug. 2014), aff’d, 832 F.3d
317 (D.C. Cir. 2016). Under this doctrine, the promulgating agency’s interpretation of the
regulation is entitled to full deference (referred to as Auer deference) unless the interpretation is
unreasonable, plainly erroneous, or inconsistent with the regulation, or there is reason to suspect
it does not reflect the agency's fair and considered judgment on the matter. See, e.g., Drilling &
Blasting Sys., Inc., 38 FMSHRC 190, 194-97 (Feb. 2016) (declining to defer to plainly erroneous
interpretation); Hecla, 38 FMSHRC at 2122-25 (deferring to reasonable interpretation); Tilden
Mining, 36 FMSHRC at 1967-68 (same); Twentymile Coal Co., 36 FMSHRC 2009, 2012-13
(Aug. 2014) (declining to defer to unreasonable interpretation).
If there is reason to suspect that an agency’s interpretation does not reflect its fair and
considered judgment, the interpretation is not entitled to full Auer deference but is still entitled to
a measure of deference proportional to the “thoroughness evident in its consideration, the
validity of its reasoning, its consistency with earlier and later pronouncements, and all those
factors which give it power to persuade.” Christopher v. SmithKline Beecham Corp., 567 U.S.
142, 159 (2012) (citing United States v. Mead Corp., 533 U.S. 218, 228 (2001) and Skidmore v.
Swift & Co., 323 U.S. 134, 140 (1944)).
In evaluating the merits of a proposed regulatory interpretation, the Commission has
considered factors such as whether the interpretation is consistent with the language and ordinary
8

Much of this section is “borrowed” nearly intact from Judge McCarthy’s excellent
summary in Cemex Southeast, LLC, 38 FMSHRC 2806, 2814-16 (Nov. 2016) (ALJ).

40 FMSHRC Page 885

usage of the cited standard, whether it harmonizes with the purpose and structure of the
regulations, and whether it furthers the policy goals of the Mine Act, particularly the Act’s
safety-promoting purposes. See, e.g., Hecla, 38 FMSHRC at 2122-25 (analyzing the language of
the regulation, the regulation’s specific purpose, and the general policy goals of the Mine Act,
particularly the goal of promoting safety); Natty & Hamilton Enters., 38 FMSHRC 1644, 164851 (July 2016) (adopting an interpretation that was consistent with the language of the
regulation, as determined by reliance on dictionary definitions and prior case law that
harmonized with the regulatory scheme and furthered the goals of the Mine Act); Twentymile, 36
FMSHRC at 2012-13 (rejecting an interpretation that was not suggested by the language of the
standard or its regulatory history and that did not advance mine safety); Wolf Run Mining Co., 32
FMSHRC 1669, 1681-82, 1685-86 (Dec. 2010) (analyzing one ambiguous term with reference to
the broader regulatory context, including analogous regulations, and adhering to another
ambiguous term’s customary technical usage, as demonstrated by a mining dictionary and the
testimony of knowledgeable witnesses); Daanen & Janssen, Inc., 20 FMSHRC 189, 193-94
(Mar. 1998) (analyzing regulatory language with reference to ordinary dictionary meanings, the
Mine Act’s safety-promoting goals, the PPM, the Secretary’s past application of the regulation,
and the regulatory structure); Island Creek Coal Co., 20 FMSHRC 14, 19-24 (Jan. 1998)
(evaluating the ordinary meaning of the regulatory language, “contextual indications,” including
the meaning of similar language in other regulations, and the Mine Act’s purposes).
Even if an agency's interpretation of a regulation is reasonable, fundamental due process
considerations preclude adoption of that interpretation without fair notice. See Hecla, 38
FMSHRC at 2125; Am. Coal Co., 38 FMSHRC 2062, 2075 (Aug. 2016); Energy W. Mining Co.,
17 FMSHRC 1313, 1317-18 (Aug. 1995). In Mine Act proceedings, this means that before the
Secretary can penalize a mine operator for a violation of a safety standard, the operator must be
placed on notice of what conduct the standard forbids or requires such that it has an opportunity
to act accordingly. See Hecla, 38 FMSHRC at 2125 (“To comport with due process, laws must
‘give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so
that he may act accordingly.’”) (citing Grayned v. City of Rockford, 408 U.S. 104, 108
(1972)); Energy W., 17 FMSHRC at 1318 (same); Mathies Coal Co., 5 FMSHRC 300, 303 (Mar.
1983) (“[E]ven a broad standard cannot be applied in a manner that fails to inform a reasonably
prudent person that the condition or conduct at issue was prohibited by the standard.”).
To resolve issues of notice, the Commission applies an objective standard, the
“reasonably prudent person” test. Hecla, 38 FMSHRC at 2125; Sunbelt Rentals, Inc., 38
FMSHRC 1619, 1627 (July 2016); Energy W., 17 FMSHRC at 1318. 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.” Ideal
Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990). In determining whether a party had adequate
notice of regulatory requirements, a wide variety of factors may be relevant to the inquiry,
including the text of the regulation, its placement in the overall regulatory scheme, its regulatory
history and purpose, the consistency of the agency's enforcement, whether MSHA has published
notices informing the regulated community with ascertainable certainty of its interpretation, and
whether the operator would have been aware of the requirement of the standard because of
past case precedent. See Sunbelt Rentals, 38 FMSHRC at 1627; Wolf Run Mining, 32 FMSHRC
at 1682; Lodestar Energy, Inc., 24 FMSHRC 689, 694-95 (July 2002); Island Creek Coal, 20
FMSHRC at 25.

40 FMSHRC Page 886

V. OTHER PRELIMINARY CONSIDERATIONS
A.

The Housekeeping Violations
1. The Meaning of “At All Mining Operations”

The Respondent makes an umbrella argument directed at all housekeeping citations
issued in these two dockets: “The language ‘at all mining operations’ has substantive meaning,
and restricts application of the standard to areas of the mine where actual ‘mining operations’
take place.” (Resp’t Br. 43)
Respondent argues that prior Courts have failed to appreciate the significant limitation
that the clause “At all mining operations” creates in the housekeeping standard, 30 C.F.R.
§ 56.20003(a). (Id.) Respondent argues that, consistent with earlier regulation covering
housekeeping, the clause actually limits MSHA to citing this standard “in” and “around” the pit
where mining occurs. (Id.) As all of the citations in these dockets occurred outside of “mining
operations,” by Respondent’s definition, they all must be vacated. (Id.)
Respondent attempts to misdirect by claiming to raise an issue of first impression and by
kludging together an argument based on an apparent language change in a section of the
Congressional Record. The language change, which is unexplained in the Congressional Record,
seems to shift the focus of the housekeeping standard from areas “in and around the mine and
plants” to only “in and around the mine.” Another way Respondent expresses it is that the
change in the language signifies an intended change in the focus of the standard, one that
excludes any areas not considered engaged in a “mining” activity as opposed to milling or
anything arguably not “mining.” (Id. at 43-44)
I reject this argument. First, the case cited in support of the change simply does not say
what Respondent claims it says. Respondent cites to Madison Granite Company, 1 FMSHRC
1906 (Nov. 1979) (ALJ), as “recognizing that the phrase ‘in and around the mine’ restricted
coverage to the mine itself and did not cover a crusher, which was not in the mine pit itself.”
(Resp’t Br. 44) In Madison Granite, the inspector issued a citation after observing a crusher
operator not wearing his hard hat in the crusher area. 1 FMSHRC at 1911. The cited standard
was 30 C.F.R. § 55.15-2, which read, “[a]ll persons shall wear suitable hard hats when in or
around a mine or plant where falling objects may create a hazard.” Id. The ALJ in that case
vacated the citation after concluding that MSHA had not shown by a preponderance of the
evidence that “the employee was in an area where falling objects may create a hazard.” Id. at
1912. Nowhere in that decision did the Judge state or imply what Respondent claims: that the
crusher was not “in and around the mine.” Respondent’s interpretation of this case is either
misdirection or an error in research and drafting.
Second, the changed language seems more likely to be an attempt to conform the new
statement of the standard to the interpretation given to the term “mining” as stated in the
definitional section of the Act and which is used routinely in determining MSHA’s jurisdictional
reach. In other words, the change in language reflects an understanding that “mining” is defined
in the Act to include ancillary functions, such as milling. Contrary to Respondent’s argument, it
is meant to clear up any interpretation that would limit the standard to only “mining” areas. What
is intended is clarification that the focus of the standard is on functions and not areas. Any

40 FMSHRC Page 887

function that is covered by the definition of “mining” in the Act is covered by the housekeeping
standard. It is an error to focus on physical areas and to argue that because a violation is found
in an area that is not considered a place where the act of mining is done, e.g., a plant or other
workplace, it is not covered by the housekeeping standard. The proper interpretation is to look to
whether the violation occurred as part of an activity that falls within the Act’s definition of
“mining.” Inasmuch as the functions performed at the Respondent’s Ripley facility fall under a
proper interpretation of “mining,” a housekeeping violation occurring during the performance of
such a “mining” function is covered, irrespective of the area where it is carried out.
2. The March 18, 2015 Housekeeping Violations are Not Duplicative
Prior to the hearing, Respondent filed a motion for summary decision asking the court to
rule that the six housekeeping citations in SE 2015-0285 were duplicative and should be
subsumed under a single violation.9 The motion was denied on February 22, 2016.
At and after the hearing, Respondent again argued that the six housekeeping citations in
SE 2015-0285 should be collapsed into a single citation because they were written by Inspector
LaRue in a two-hour period during his inspection on March 18, 2015, in an area loosely referred
to as the “mill plant area.” (Resp’t Br. 45) Respondent contended that the cited areas were not
distinct enough to warrant separate violations, and that the inspector could not increase the
negligence level of later-cited violations of the standard based on his decision to write multiple
citations. (Id. at 45-47) I reject Respondent’s multiple violation argument again.
In its briefing, Respondent identified only two distinct areas at the Ripley mine site: the
“mill plant area” and the “pit area.” (Id. at 38, citing Tr.346:4-6) It argued that the entire area
covered by LaRue’s housekeeping citations should be taken as a single location because it was
the work area of a single miner per shift (Id., citing Tr.398:15-23; 399:7-10) and was covered by
a single workplace inspection. (Id., citing Tr.402:7-9) In essence, Respondent argued that
because it considered the mill plant area a discrete work area, LaRue should have known and
recognized this operational characteristic and limited his housekeeping enforcement accordingly.
In the context of this case, this view is too opportunistic and arbitrary to be convincing. How
LaRue approached this enforcement is more relevant than Respondent’s operational definition.
Inspector LaRue testified that the source of the clay accumulations described in his
housekeeping violations was from significant equipment leakage (Tr.236:5-16), and he did not
believe he had the authority to “force [ODPC] to [. . .] plug [the] holes.” (Tr.257:4-6) Instead, he
cited the plant for housekeeping violations. He issued separate citations because the violating
areas were either geographically separate, e.g., part of a different building, or were in the vicinity
of a separate piece of equipment, although in the same building. (Tr.228:22-229:16) He also
understood that MSHA’s directives only justified combining separate violations into a single
citation when they were associated with a single piece of machinery. (Tr.229:9-11)
According to Inspector LaRue, the six housekeeping citations he wrote were in separate
locations. (Tr.260:6-262:1) Citation Nos. 8820563 and 8820564 (Exhibits S–2 and S–3) describe
conditions in separate buildings (Tr.212:2-12), and Citation Nos. 8820564 and 8820565 describe
conditions in areas about 150–200 feet apart. (Tr.218:7-11) LaRue was not able to see the other
9

Citation Nos. 8820563, 8820564, 8820565, 8820567, 8820568, and 8820569.

40 FMSHRC Page 888

cited areas from the location of Citation No. 8820567 (Tr.228:22-229:11) or Citation No.
8820568. (Tr.241:21-242:11) Citation No. 8820569 was at the ground floor level underneath the
mill buildings. (Tr.248:8-10) He opted against writing all the housekeeping violations as one
citation because, to him, they happened in different areas of the plant. (Tr.261:2-262:1)10
The authority Respondent relies on to support its argument that LaRue’s housekeeping
citations should be compressed into a single event is inapposite. That case, Western Fuels-Utah,
Inc., 19 FMSHRC 994 (June 1997), applies to a single violating condition that could have been
cited under more than one standard. The Commission stated:
[O]ur determination that the two citations are duplicative is not
based on our premise that every violation of 15(d) is also a
violation of 14(a). Our inquiry does not stop there. Rather, we ask
whether MSHA is citing the operator on the basis of more than one
specific act or omission. Had MSHA put on evidence of additional
deficiencies that violated the general regulation, instead of relying
on the identical evidence (lack of sufficient reservoirs) used to
support the violation of the specific standard, we would not have
found them duplicative.
Id. at 1004 n.12.
Western Fuels does not apply to the facts of this case. Here, instead of there being two
citations under different standards for the same violating condition, there are multiple citations
under the same standard for different violating conditions. Moreover, there is differing evidence
relating to the location and nature of the accumulated material instead of identical evidence
supporting more than one citation.
Port Costa Materials, Inc., 16 FMSHRC 1516 (July 1994) (ALJ), also cited by
Respondent in support of its single citation argument, pays respect to the guidance regarding
multiple violations found in Section 104(a) of the Mine Act:
[W]here there are multiple violations of the same standard which
are observed in the course of an inspection and which are all
related to the same piece of equipment or to the same area of the
mine, such multiple violations should be treated as one violation,
and one citation should be issued.
Id. at 1518 (emphasis added).
The judge in Port Costa found value in the citation “grouping” done by the Secretary,
which he considered a valid exercise of prosecutorial discretion. Id. at 1519. His focus in
10

The remaining housekeeping violation, Citation No. 8818319 (SE 2015-0418), was
written by Inspector Howerton on June 22, 2015, during an E01 regular inspection of the Ripley
Mine. Howerton observed pallets of equipment and maintenance debris covering the floor of the
Old Clay Shed. (Tr.55:12-24; Ex. S–17) Respondent does not contend that this citation should be
grouped with the others.

40 FMSHRC Page 889

resolving the grouping issue was whether multiple violations could be abated by a single
remediation. Id. at 1520. Aside from being only advisory for this court, this is merely an ad hoc
means of referencing the need to pay attention to the provision in Section 110(a) of the Mine Act
that “[e]ach occurrence of a violation of a mandatory health or safety standard may constitute a
separate offense.” 30 U.S.C. § 820(a); see also Tazco, Inc., 3 FMSHRC 1895, 1897 (Aug. 1981);
Spurlock Mining Co., 16 FMSHRC 697, 699 (Apr. 1994). It does not require nor convince me to
adopt a “single abatement” test.
The single abatement approach suffers from the same conceptual confusion as
Respondent’s contention here. Respondent argues that because it defined the work area at the
Ripley facility as a single location—despite its size, its layout, and the fact that it housed
multiple milling functions—any number or nature of violations found in that arbitrarily
designated area should be considered a single event. It is an extension of this notion to consider
the abatement of any number of separate violations in an arbitrarily-defined area as a single
event since it occurs in a “single location.” This approach may fit certain fact patterns, but it is
not a principled way to approach the issue. It is too facile to be of more than occasional use.
When the facts of a case lend themselves to the “single abatement” approach, it appears to be
useful. But, when, as in this case, the single abatement approach depends on the operator’s selfserving definition of what constitutes a working area, it is of little analytical use. Whether
multiple violations can be abated in a single pass can be a factor to consider but is not
dispositive.
MSHA’s obligation to write a separate citation or order for each distinct violating
condition found during an inspection originates from 30 U.S.C. § 820 (a)(1): “Each occurrence
of a violation of a mandatory health or safety standard may constitute a separate offence.” The
use of the word “may” allows for some discretion on the part of the issuing inspector, as was
discussed in Port Costa above. However, Port Costa is not enough to convince me that
abatement efforts are the best criterion on which to base a decision whether a group of citations
should be deemed duplicative. Additional guidance comes from MSHA’s Program Policy
Manual (“PPM”), which deals with an inspector’s discretion and provides guidance as to when
related violations may be combined into a single citation. Abatement is but one factor, in
addition to those illustrated in the PPM, that an MSHA inspector can use to guide him- or herself
in issuing grouped or individual citations. Ultimately, the decision whether to issue individual
citations for multiple violations of the same standard is within the ambit of the inspector’s
discretion. As for situations whose fact scenarios deviate from those illustrated in the PPM, the
inspector’s discretion carries much weight.
Making the operator’s definition of what constitutes a separate “area” of a mine the
decisive factor in determining whether an individual or grouped citation should be issued, as
Respondent urges, shifts too much weight to the operator’s side of things and away from the
Mine Act’s mandate that the Secretary’s designated inspectors must make that call. As a result,
the authority cited in support of Respondent’s single-location/single-event argument is not
persuasive.
As before, I reject Respondent’s contention that LaRue’s housekeeping citations are
duplicative. There is sufficient difference in the location of each violation and in the impact of

40 FMSHRC Page 890

the material accumulations on discrete equipment, work areas, walkways, and facilities to
support LaRue’s decision to cite each discrete condition as a separate violation.
B.

Universal Penalty Adjustment

Inspector LaRue referenced Respondent’s previous housekeeping violations on March
18, 2015, as one of the reasons he ascribed “high negligence” to Citation Nos. 8820568 and
8820569. (Tr.243:21-244:10; 255:12-13) Respondent argues that this resulted in an
impermissible “pyramiding” of penalties. (Resp’t Br. 47) Respondent incorrectly conflates
“repeat” assessments and enhancement of negligence for Citation Nos. 8820568 and 8820569 in
its argument when it accused LaRue of using the prior citations from the same inspection “to
enhance the ‘repeat’ assessment.” (Id.) Exhibit A of the petition for the assessment of civil
penalty for Docket No. SE 2015-0285 shows that no penalty points were given for repeat
assessments (“RPID”) for Citation Nos. 8820563, 8820564, 8820565, 8820567, 8820568, and
8820569. Additionally, although LaRue mentioned the housekeeping violations he cited earlier
in the day, as discussed fully in the sections below, they were just one of a confluence of factors
he used to justify the increase of negligence from moderate to high for Citation Nos. 8820568
and 8820569. (Tr.243:21-245:9; 255:10-257:12)
While I do not find any problems with Inspector LaRue’s negligence determinations or
the RPID score, I do note that the Violations Per Inspection Day (“VPID”) calculation on March
18, 2015, was noticeably and significantly high, which may have factored into Respondent’s
claim that penalties for the housekeeping violations were “pyramided.”
The VPID is calculated by first dividing the number of violations that have been paid,
finally adjudicated, or have become final orders during the Violation History Period11 by the
number of inspection days.12 Once that number is calculated, it is applied to Table VI of 30
C.F.R. § 100.3(c)(1) and converted into a penalty point scale ranging from 0 to 25.
Here, the VPID on March 18, 2015, was 2.14, resulting in a maximum 25 points. See
History of Previous Violations; Violations Per Inspection Day (VPID); Repeat Violations Per
Inspection Day (RPID) for Oil Dri Production Company Mine ID 2200035, MSHA (last visited
Oct. 2, 2017), https://arlweb.msha.gov/drs/ASP/MineInspectionDay.asp [hereinafter Oil Dri
VPID Scores]. This score differed significantly from the VPID of either of the days immediately
surrounding it: The VPID on March 17 was 1.43 (14 points); the VPID on March 19 was 1.67
(16 points). Id. This is not an immaterial consideration. With a VPID of 25 points, the six
housekeeping citations issued on March 18, 2015, resulted in a proposed penalty of $12,772.00,
after good faith discounts. By contrast, applying the VPID score on March 17, 2015, only a day
earlier, would have amounted to penalties totaling $5,292.00, after good faith discounts.
11

The “Violation History Period” covers the preceding 15 months. 30 C.F.R. § 100.3(c).

12

“Inspection Days” are calculated by dividing the total MSHA on-site inspection hours
for Authorized Representatives of the Secretary for certain types of inspection activities by five.
History of Previous Violations: Violations Per Inspection Day (VPID); Repeat Violations Per
Inspection Day (RPID), MSHA (last visited Oct. 2, 2017), https://arlweb.msha.gov/drs/ASP/
MineAction.asp. Any remainder amount increases the number of inspection days by one. Id.

40 FMSHRC Page 891

The reason for this discrepancy has to do with the timing of a series of five final orders13
that were added to the violation history table on March 17, 2015, the day immediately preceding
the March 18th inspection. Mine Citations, Orders, and Safeguards for Mine ID: 2200035,
MSHA (last visited Oct. 2, 2017), https://arlweb.msha.gov/drs/ASP/MineAction.asp. Although
all five of the newly added orders were issued ten months earlier in May 2014 and terminated in
May/June 2014, the fact that they became final for history calculation purposes on March 17,
2015, affected the March 18th VPID calculations. Id. They caused the VPID ratio numerator to
increase from 10 to 15 violations. Had Inspector LaRue conducted the very same inspection one
day earlier, on March 17, the VPID would have been 1.43 (14 points). Instead, because the
inspection took place on March 18, the VPID changed, due to circumstances outside the control
of the mine operator, and resulted in a 141% increase in the penalty.
The following day, March 19, 2015, the VPID dropped to 16 points. See Oil Dri VPID
Scores. This happened because Inspector LaRue’s March 18, 2015, inspection, although only one
day earlier in real time, accounted for two inspection days under the formula. As such, although
the numerator for the VPID calculation on March 19 was the same as that on March 18 (i.e., 15
violations), the denominator (i.e., nine inspection days) was larger, resulting in a lower VPID
score of 1.67.
These conditions created a “perfect storm” scenario for a short-lived spike in the VPID
on March 18, 2015. While the MSHA formula for calculating the VPID is generally fair and
equitable, the process cannot be deemed fair in the rare instance where the mere order of
operations or the random timing of an investigation—issues completely outside the control of the
mine operator—yields vastly different results.
For these reasons, I find that the VPID algorithm on March 18, 2015, resulted in an
unpredictable and unfair outcome. Accordingly, I hold that a lower VPID of 15 penalty points—
a figure between March 17th’s 14 points and March 19th’s 16 points—is more appropriate and
shall be applied to the six housekeeping citations issued on March 18, 2015.
VI. THE CITATIONS
A.

Citation No. 8818319 – Old Clay Shed
Docket No. SE 2015-0418
Exhibit S–17 (Tr.50:25-51:23)

The Secretary alleges that Respondent violated 30 C.F.R. § 56.20003(a) by failing to
keep the ground floor at the Old Clay Shed clean and orderly. The standard requires that all
mining operation workplaces, passageways, storerooms, and service rooms be kept clean and
orderly.

13

Citation Nos. 8810931, 8810927, 8810929, 8810934, and 8810928.

40 FMSHRC Page 892

1. Violation
Inspector Howerton issued housekeeping Citation No. 8818319 during his June 22, 2015
E01 inspection. (Ex. S–17) He documented pallets of maintenance and production equipment
and debris covering the floor of the old clay shed, which was being used for maintenance storage
at the time. (Tr.54:8-15; Ex. S–17) He concluded that floor obstructions blocked access to
shelves used to store parts and created a slip–trip–fall hazard for anyone using the area.14
(Tr.56:3-6) The supporting photos taken by Howerton at the time of the inspection (Ex. S–17, at
4-6) show the extent of the disarray in the building and support his assessment that there were
hazards. This is particularly salient in comparison with the post-abatement photo, which shows
the area in an obviously cleaned and orderly condition. (Ex. S–17, at 7; Tr.62:1-20)
Respondent offered the following explanation why the old clay shed area was in such
disarray and why it should not be considered a working area: (1) The materials located in this
area were obtained from a closed plant in Florida and were being kept in this area until it could
be decided what was worth salvaging (Resp’t Br. 42, citing Tr.60:18-19; 171:14-172:2); (2) the
decision could not be made because the maintenance supervisor position was unfilled (Id., citing
Tr.61:14-25); (3) the only “storeroom” operated at the Ripley mine and mill was overseen by
Delaney and was not in this area (Id., citing Tr.170:19-171:7); (4) if this area were ever accessed,
a miner must use a forklift (Id., citing Tr.174:18-175:8); and, (5) before someone actually
worked in the area to sort through the salvaged materials, they would conduct a safety inspection
and “make the scene safe before they would start working.” (Id. at 42-43, citing Tr.176:1-13)
The old clay shed is a large building (Tr.100:1-22; 169:19-25; Ex. R–1), which
Respondent approximates at 16,000 square feet. (Resp’t Br. 42) Exhibit S–17, page 5 shows
storage racks approximately 80 to 100 feet long where maintenance items were stored. Howerton
considered this area a working area because of the need to go there to obtain items used in
normal milling operations. (Tr.53:12-54:3) Howerton also considered it a storeroom because
there were stored maintenance items there. (Tr.54:8-15)
According to Howerton, miners had to walk over (Tr.56:7-13) or drive a forklift around
pallets to access the dry goods, super sacks,15 and maintenance items stored in the shed.
(Tr.53:20-25; 54:19-56:16; 59:1-16; Ex. S–17, at 4-6) Howerton concluded that miners could not
get to the racks without walking on and over items strewn on the floor (Tr.55:16-24), which
subjected them to a slip–trip–fall hazard. (Tr.55:25-56:6; 59:24-60:15)
I find Howerton’s rationale for considering this area a working area and storeroom more
convincing than the Respondent’s explanation why it was not. I conclude that the old clay shed
was a working area and storeroom, and the disarray described in the violation narrative and
shown in the photos in Exhibit S–17 constitutes a violation of 30 C.F.R. § 56.20003(a).
14

Howerton noted that this area was a “limited use area” that was “only used to store
spare parts.” (Ex. S–17, at 3) However, he concluded that it was used regularly as a workplace
and a storage area. (Tr.53:12-54:3)
15

A “super sack” is a large capacity plastic bulk storage bag. Flexible Intermediate Bulk
Container, WIKIPEDIA (last visited Oct. 3, 2017), https://en.wikipedia.org/wiki/Flexible_
intermediate_bulk_container.

40 FMSHRC Page 893

2. Gravity
Howerton designated the gravity of this violation as “unlikely” because miners accessed
the area infrequently. (Tr.60:16-25; Ex. S–17, at 1, 3) Howerton did not see anybody working in
this area at the time. (Tr.60:21-25; 100:6-7) He believed that the most likely injury would be an
ankle or limb sprain injury, which would involve lost workdays or restricted duty (Tr.61:1-5),
and that only one person would be involved. (Tr.61:6-13) I concur and conclude that an injury
was unlikely to occur, could reasonably be expected to result in lost workdays or restricted duty,
and was limited to only one person.
3. Negligence
Howerton rated the negligence at “moderate” because only maintenance personnel went
into the building and the mine was operating one maintenance supervisor short at the time.
(Tr.61:14-21) If the staffing level had been at the normal count, Howerton would have assessed
the negligence at “high” since the condition was obvious. (Tr.61:21-25) I concur and conclude
that “moderate” is the appropriate negligence designation for this violation.
4. Penalty
The Secretary proposed a penalty of $100.00 for this violation. I have reviewed and
confirmed the data in Exhibit A to the Secretary’s Petition for Assessment of Civil Penalty
showing the number of production hours for the mine and the mine controller, the number of
prior violations per inspection days, the number of repeat violations, the number of persons
affected, the negligence points, the likelihood points, and the good faith point reductions. Based
on my gravity and negligence findings, and considering but not relying on the point calculation
in 30 C.F.R. § 100.3, the Secretary’s proposed penalty of $100.00 is supported and reasonable. I
assess a penalty in that amount.
B.

Citation No. 8818320 – Flatbed Truck (#456)
Docket No. SE 2015-0418
Exhibit S–18 (Tr.62:21-63:16)

The Secretary alleges that Respondent violated 30 C.F.R. § 56.15005 when a contract
driver failed to use safety belts and lines while attempting to tarp his flatbed truck where there
was a danger of falling. The standard requires that safety belts and lines be worn when persons
work where there is a danger of falling.
1. Violation
On June 23, 2015, Inspector Howerton observed a contract driver of a flatbed truck
standing on his loaded trailer without fall protection. (Tr.64:1-65:5) Howerton testified that the
driver was standing on an irregular surface and could have slipped while attempting to pull a tarp
over the load. (Tr.70:22-25) Howerton estimated that, had he slipped, the driver would have
fallen over ten feet to the ground from the position he was standing in. (Tr.71:9-16) Gibens was
with Howerton at this time and also observed the contract driver. (Tr.63:22-64:5) Upon seeing

40 FMSHRC Page 894

the driver standing on the loaded truck without fall protection, Gibens immediately ran towards
the driver and told him to get down off of the truck. (Tr.64:6-7) Howerton testified that Gibens
rushed over to the truck driver to request that he get down from the truck “quicker than
[Howerton] did.” (Tr.64:13-14) During an interview with the driver of the truck, it was
confirmed that he was not an ODPC employee and did not work at the mine. (Tr.65:6-23; 65:2123) Howerton confirmed through plant records that the driver had been given appropriate sitespecific training, as well as express instructions about how he could safely tarp his truck using
company-provided fall protection. (Tr.85:16-21; 120:21-24) This was corroborated by the driver
himself upon questioning by Gibens. (Tr.65:14; 182:9-20) Written material provided to the truck
driver stated that the plant expressly prohibited tarping without use of such fall protection. (Ex.
R–3, at 2) Additionally, the available fall protection gear was operational and clearly visible to
truckers entering or exiting the facility. (Tr.72:5-14; 123:19-124:24; 125:2-10)
Respondent does not dispute Howerton’s account that the flatbed truck driver was
standing on his loaded trailer without tie-off protection. It states in its brief that there are no
significant credibility determinations required as Howerton and Gibens both testified consistently
concerning the key aspects of the event in question. (Resp’t Br. 23) Instead, Respondent argues
that the citation should be vacated because the safety belts and lines standard cited does not
apply here. (Id.) First, Respondent argues the truck driver was not a “miner,” citing to the
definition of “miner” found in 30 C.F.R. § 46.2(g)(2), which explicitly excludes commercial
over-the-road truck drivers. (Resp’t Br. 28) Respondent also cites to the 2012 and 2014 Safety
Belts and Lines Program Policy Letters (“PPL”), which both state that the purpose is to “enhance
consistency and protection of miners” and that the provisions are in place “to protect miners
from fall hazards.” (Id. at 29-31, citing Exs. R–19, 20) (emphasis in original) Respondent argues
that such language “exclude[s] coverage of the Standard to non-miners and those doing tasks
outside of normal mining activities.” (Resp’t Br. 31) (emphasis in original) While examining the
PPL at hearing, Howerton maintained that section 56.15005 deals with any personnel that come
onto mining property, which includes anybody working on the mine site. (Tr.109:3-15) The
Secretary did not brief any of these issues.
I am unpersuaded by Respondent’s arguments. First, Respondent attempts to misdirect by
citing to the definition of a “miner” used in section 46, which sets forth training and retraining
requirements of miners and other persons at shell dredging, sand, gravel, surface stone, surface
clay, colloidal phosphate, and surface limestone mines. 30 C.F.R. § 46.1. Here, however, the
cited standard was under part 56 subpart N – Personal Protection. 30 C.F.R. § 56.15005. Part
56’s purpose and scope section states in part, “[t]he purpose of these standards is the protection
of life, the promotion of health and safety, and the prevention of accidents.” 30 C.F.R. § 56.1.
There is no indication that the part 56 standards only concern the protection of miners’ lives or
miners’ health and safety. Likewise, the definition section in part 56 does not define “miner,” nor
does it contain any exclusion for commercial over-the-road truck drivers similar to that cited by
Respondent. See 30 C.F.R. § 56.2.
Second, the Commission has long held that enforcement guidelines, such as PPM or PPL,
are not binding on the Secretary or the Commission. See Warrior Coal, LLC, 38 FMSHRC 913,
921 (May 2016) (“we note that it is well established that policy manuals are not officially
promulgated and do not prescribe rules of law that are binding on the Commission or its
Judges.”); D.H. Blattner & Sons, Inc., 18 FMSHRC 1580, 1586 (Sept. 1996) (“As the judge

40 FMSHRC Page 895

correctly pointed out, the Enforcement Guidelines and the PPM are not binding on the Secretary
or the Commission.”); King Knob Coal Co., 3 FMSHRC 1417, 1420 (June 1981), citing Old Ben
Coal Co., 2 FMSHRC 2806, 2809 (Oct. 1980) (“[T]he Manual’s ‘instructions are not officially
promulgated and do not prescribe rules of law binding upon [this Commission].’”) Where there
is a discrepancy between a regulation and an interpretative document, the “express language of a
statute or regulation ‘unquestionably controls’ over material like a field manual.” King Knob
Coal Co., 3 FMSHRC at 1420, citing H.B. Zachry Co. v. OSHRC, 638 F.2d 812, 817 (5th Cir.
1981). While it is true that these PPLs use the word “miners,” the plain language of the
regulation states that “persons,” not “miners,” are to wear safety belts and lines when they work
where there is a danger of falling. In addition to the part 56 purpose and scope section discussed
above, I note that the other sections of subpart N also explicitly refer to “persons.” For example,
section 56.15002 states that “[a]ll persons shall wear suitable hard hats [. . .].” 30 C.F.R.
§ 56.15002 (emphasis added). Section 56.15003 states that “[a]ll persons shall wear suitable
protective footwear [. . .].” 30 C.F.R. § 56.15003 (emphasis added). Section 56.15004 states that
“[a]ll persons shall wear safety glasses, goggles, or face shields or other suitable protective
devices [. . .].” 30 C.F.R. § 56.15004 (emphasis added). In fact, the word “miner” does not
appear anywhere in subpart N. See 30 C.F.R. §§ 56.15001-15020. As there is no dispute that the
contract driver is a “person,” this ends this line of inquiry.
Respondent alternatively argues that the citation should be vacated because MSHA’s
policy failed to provide fair notice that it was required to provide safety belts and harnesses for
non-employees. (Resp’t Br. 32-33) Here, the plain language of the regulation is clear: Safety
belts and lines shall be worn when persons work where there is danger of falling. 30 C.F.R.
§ 56.15005. Accordingly, I determine that the operator was provided with adequate notice of its
requirements. See Austin Powder Co., 29 FMSHRC at 919 (operator had adequate notice of the
regulation because the meaning of the regulation was clear based on its plain language); Jim
Walter Res., Inc., 28 FMSHRC 983, 988 n.6 (Dec. 2006) (“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.”).
Additionally, ODPC’s contention that it did not have fair notice that the safety belts and
lines regulation applied to over-the-road truckers is at odds with the available evidence. As
ODPC described in its brief, it had created an “extensive program to prevent falls at the mine by
non-employees such as the over-the-road trucker.” (Resp’t Br. 24) This included site specific
training on fall protection for each new trucker who arrived at the plant (Id., citing Tr.183:24187:3), written instructions provided to each trucker (Id., citing Ex. R–3), a large sign that
drivers drove by upon entering the plant, which included tarping restrictions (Id. at 24-25), and a
tarping station with all of the necessary fall protection materials, instructions, and another sign
reinforcing the tarping protection requirements. (Id. at 25, citing Ex. R–4; Tr.72:5-73:8; 122:414; 123:19-124:12) It is incongruous to think that ODPC went through such exacting safety
standards to ensure that visiting truck drivers were safe from falling only to now argue that it did
not have notice that the safety standard actually applied to these very drivers.
I conclude that the contract driver standing on the loaded trailer of his flatbed truck
without fall protection constituted a violation of 30 C.F.R. § 56.15005.

40 FMSHRC Page 896

2. Gravity and S&S
Howerton designated the gravity of this violation as “Reasonably Likely” because the
driver was attempting to pull a tarp over the load while standing on bags of Oil-Dri product,
which created an irregular surface. (Tr.70:19-71:1) He believed that this could reasonably result
in a slip if the driver lost his balance. (Tr.70:25-71:4) Howerton believed that, in the event of a
slip, the driver could face an approximate ten-foot fall from the top of the truck (Tr.71:18-25; Ex.
S–18, at 2-3), which could reasonably be expected to result in a permanently disabling injury.
(Tr.71:9-16) Such a fall and subsequent injury would affect one person, in this case the contract
driver. (Tr.72:3-4) I concur that the injury was reasonably likely to occur, could reasonably be
expected to result in a permanently disabling injury, and was limited to only one person.
I have found an underlying violation of 30 C.F.R. § 56.15005. The driver was not
wearing proper fall protection. This contributed to a slip–trip–fall hazard, which I find was
reasonably likely to occur given the irregular surface he was standing on. Assuming the
occurrence of the hazard, I find a ten-foot fall from the top of the truck would reasonably likely
result in an injury. The injury would be of a reasonably serious nature, likely resulting in a
permanently disabling injury. Accordingly, I conclude this violation was S&S.
3. Negligence
The Secretary alleges that ODPC exhibited low negligence. In his brief, the Secretary
states that “the evidence established that Respondent knew or should have known of the cited
condition because the contract driver had just loaded and climbed on top of the truck’s load.”
(Sec’y Br. 56) The sole justification for low negligence cited by the Secretary is a transcript
page, which contains a large quote from Howerton:
But [the driver] was not in that area. [The driver] was in the area
where they’re loading other trucks and putting it on. And normally
I think the procedure is to, you know, to drive around to the area
where you’re going out the gate around the plant or however they
get around to that—that area. But [the driver] wasn’t in that area.
He was right up close to where they were getting loaded. They
were, you know, company guys loading trucks with forklifts and
stuff in the area and a couple of maintenance guys over in the
corner when we saw it.
(Tr.72:14-25)
However, the Secretary fails to explain exactly how Respondent could have better
prevented this incident in his brief. The Secretary does not deny that Respondent had precautions
in place. ODPC’s precautions included the following: (1) site specific training on fall protection
requirements for new truckers (Tr.183:24-187:3); (2) written instructions given to each trucker
(Ex. R–3); (3) a tie-off poster (Tr.72:11); and, (4) a tarping station with the necessary fall
protection materials, instructions on how to use the fall protection materials, and another sign
referring to the fall protection requirements located next to the area where all trucks are weighed
upon arrival and departure from the plant. (Ex. R–4; Tr.72:5-25; 122:4-14; 123:19-124:12)
Notably, Howerton testified that he did not see any defects in the harness or cable systems

40 FMSHRC Page 897

(Tr.125:5-7), he did not see any problems with the location of the tarping area (Tr.125:8-10), and
even went as far as to say that ODPC did a “fairly good job” on their site specific training.
(Tr.125:13-17) Further, Howerton testified that Gibens ran to stop the driver before he did
(Tr.125:18-22) and did exactly what he was expected to do in that situation. (Tr.126:14-17)
While the Secretary’s brief is conclusory and lacking specifics, I note that Howerton
provided three reasons at hearing why he thought ODPC was negligent. First, Howerton testified
that the driver was not proficient at English, suggesting that ODPC’s safeguards were
insufficient in this case. (Tr.65:12-14; 127:12-15) Second, on cross examination, Howerton
stated, “[i]t was also brought to my attention that you have the area around the other side of the
building where [the truck driver] should have been told to go [. . .] this is the reason I made [the
negligence] low.” (Tr.122:9-14) Finally, Howerton justified the low negligence designation
because it was a “fairly busy area” with “other trucks in the area” and “[s]omebody should have
said something to [the truck driver] before he even got up there.” (Tr.127:19-24) For the reasons
outlined below, I am not convinced that ODPC exhibited any negligence.
First, the mere fact that the driver’s proficiency in English was questionable does not
establish whether the truck driver was unaware of the rules or understood the rules but simply
chose to disregard them. Further, Gibens testified that the truck driver was able to respond to his
questions and was subsequently retrained (Tr.182:12-20), which suggests the driver was at least
minimally proficient in English. Given all of the safeguards that were in place at the time,
including what appear to be visual instructions (Ex. R–4), I am unconvinced that ODPC would
have enough cause to believe that more needed to be done to ensure that this particular driver
understood the safety belt rules.
Second, the fact that the truck driver was about to tarp his truck in the wrong area is not
automatically attributable to ODPC’s negligence. Again, in full consideration of the record
before me, there is simply no way to determine whether the truck driver failed to follow the rules
because ODPC was negligent, because the driver did not understand, or because the driver
disregarded the rules.
Finally, I am not convinced by Howerton’s contention that workers in the area could have
acted to prevent the driver from standing on his truck. Howerton stated that “company guys”
were loading trucks with forklifts in the area (Tr.72:22-25), but he also testified that there was
nobody in the immediate area helping the driver. (Tr.126:19-127:2) (emphasis added) Even if I
assume that ODPC workers were generally in the area and close enough to see, the Secretary has
failed to establish that the driver at issue was standing on his truck long enough for a nonnegligent worker to notice. At the time Howerton and Gibens spotted the driver standing on top
of the truck, the tarp was still folded up in front of the vehicle (Ex. S–18, at 3; Tr.84:1-3) and the
driver had not lifted the tarp up or started to unfurl it. (Tr.128:2-14) A viewing of the credible
evidence, particularly the photo taken at the time of the citation, leads me to conclude that the
driver had just climbed up on his trailer when Howerton and Gibens spotted him. ODPC would
be negligent if workers had seen or had an opportunity to see the driver standing on his truck
without the appropriate safety belts and lines and done nothing. That does not appear to be the
case here.

40 FMSHRC Page 898

Even though attempting to tarp a truck bed while standing on an uneven surface without
fall protection certainly was a display of negligent and risky behavior on the part of the driver,
the Secretary failed to sufficiently establish that Respondent could have done more to prevent the
violation from occurring. The burden is on the Secretary to prove by a preponderance of the
evidence all of the claims he brings. He has failed to do so here. For these reasons, I determine
that Respondent exhibited no negligence in this instance.
4. Penalty
I have reviewed and confirmed the data in Exhibit A to the Secretary’s Petition for
Assessment of Civil Penalty showing the number of production hours for the mine and the mine
controller, the number of prior violations per inspection days, the number of repeat violations,
the number of persons affected, the negligence points, the likelihood points, and the good faith
point reductions. Based on my gravity and negligence findings, and considering but not relying
on the point calculation in 30 C.F.R. § 100.3, the Secretary’s proposed penalty of $285.00 is
decreased to $130.00. I assess a penalty in that amount.
C.

Citation No. 8820563 – New Agg Discharge Cooler
Docket No. SE 2015-0285
Exhibit S–2 (Tr.194:20-195:9)

The Secretary alleges that Respondent violated 30 C.F.R. § 56.20003(a) by failing to
keep the ground floor at the “new agg” discharge cooler clean and orderly. The standard requires
that all mining operation workplaces, passageways, storerooms, and service rooms be kept clean
and orderly.
1. Violation
During a regular E01 inspection of the Ripley facility on March 18, 2015, Inspector
LaRue observed accumulated material on the ground floor at the new agg discharge cooler.
(Tr.194:7-10; 197:21-22; Ex. S–2) LaRue observed footprints where miners had used the area as
a walkway to get from one point to another and determined that this area was a passageway,
subject to the housekeeping standard. (Tr.204:15-205:11) LaRue could not recall the type of
work performed in this area. (Tr.205:4-6) The accumulated material was about six inches deep
and covered an area of about 12 feet by 20 feet. (Tr.198:9-20) LaRue observed that the material
was damp and retained distinct footprints. (Tr.198:14-16) He concluded from the large amount
of material, that the accumulation had existed for more than one shift. (Tr.200:18-201:2)
The citation was terminated the same day. (Tr.207:3-5) Respondent removed the
accumulated material with a skid loader and shovels. (Tr.207:7-12) The before and after photos
(Ex. S–2, at 4-5) show the extent of the material accumulation (with footprints) before clean-up
and the tidy condition of the area after the abatement cleanup.
LaRue testified that he considered the cited condition to be an S&S violation. (Tr.206:29) Specifically, LaRue determined that the area was covered by wet, slippery material, which
concealed the underlying uneven floor surface with anchor bolts and cement pillars at the base of

40 FMSHRC Page 899

the columns. (Tr.202:6-15; 204:5-11; Ex. S–2, at 5) Footprints in the accumulated material
indicated that miners had transited the area, creating an inference that serious injuries were
reasonably likely to occur had the condition been allowed to continue. (Tr.204:15-19). Inspector
LaRue concluded that a miner could fall and catch a knee or hand on a bolt, or simply trip and
fall (a foot-level fall) and suffer a twisted ankle or knee, or possibly tear an ACL, which would
result in lost workdays or restricted duty. (Tr.205:21-206:1) LaRue determined that one person
would be exposed to the cited condition because only one person would likely be hurt before the
condition was identified and corrected. (Tr.206:10-16)
LaRue classified the negligence level as moderate because, even though the violation was
obvious and extensive, there had only been one housekeeping violation prior to this inspection
and the operator did not offer any mitigating evidence or argument to justify a lower negligence
classification. (Tr.206:17-207:2; 208:15-16) The Secretary proposed a penalty of $1,412.00. (Ex.
S–1)
The Respondent countered that although LaRue claimed the clay was near a ladder
(Tr.199:21-23), the picture of the location (Resp’t Br. 40, citing Ex. S–2, at 4-5) shows that the
ladder could be accessed without walking through the accumulated material. Respondent argues
the picture shows there is a drive-thru roadway nearby, which eliminates any need to access this
area as a passageway. (Id., citing Ex. S–2, at 4) Additionally, Respondent argues the picture
shows angled steel supports in the top, right corner, which deter anyone from walking through
this area. (Id., citing Ex. S–2, at 5)
I cannot agree with the Respondent’s characterization of what the photos show. The mere
presence of numerous footprints, apparent in the photo at Exhibit S–2, page 4, undercuts the
argument that the area need not be transited on foot at all or that no one would walk through the
area because of the steel support beams in the way. I find that the material accumulation created
a hazardous violation of the cited standard. I credit the evidence presented by the Secretary
substantially more than that from the Respondent because it accords more closely with the
evidence as a whole.
Based on the above, I find the accumulation of material described above constituted a
violation of 30 C.F.R. § 56.20003(a).
2. Gravity and S&S
The elements of gravity at the level of reasonable likelihood are satisfied. The
accumulated material created a slip–trip–fall hazard. The accumulations were extensive, deep,
and damp in some places. Additional trip hazards were concealed by the accumulations. As
discussed above, the accumulations were located on a passageway. At least one miner was
subjected to this hazard as shown by the footprints in the material. I conclude that this violation
created a hazard that was reasonably likely to result in an injury, which could reasonably be
expected to result in lost workdays or restricted duty for one miner.
I have found an underlying violation of 30 C.F.R. § 56.20003(a), a mandatory safety
standard. The accumulation of material, its extent, location, and slippery state contributed to a
slip–trip–fall hazard. (Tr.204:5-11) It was reasonably likely that this hazard would occur given
the extensiveness of the accumulations, the uneven flooring, and the existence of concealed

40 FMSHRC Page 900

anchor bolts and cement pillars at the base of the columns. Assuming the occurrence of the footlevel fall hazard, I find it would reasonably likely result in a joint injury of the type LaRue
outlined in his testimony. (Tr.204:9-11) The injury would be of a reasonably serious nature,
likely resulting in lost workdays or restricted duty. Accordingly, I conclude this violation was
S&S.
3. Negligence
The violation was the result of moderate negligence. The violating condition was
extensive, 12 by 20 feet and some six inches deep (Tr.198:9-20; Ex. S–2, at 3), and obvious, as
evidenced by the existence of multiple footprints in the material. The condition had existed at
least one shift before being cited and was in an area where a pre-work examination had been
performed. (Tr.200:18-201:2; 208:9-13) Given the obviousness and extensiveness of the
accumulations, Respondent’s management either knew or should have known it existed and
should have taken remedial measures on their own. However, ODPC only had one housekeeping
violation prior to this inspection. In consideration of the totality of circumstances, I conclude that
ODPC exhibited only moderate negligence.
4. Penalty
I have reviewed and confirmed the data in Exhibit A to the Secretary’s Petition for
Assessment of Civil Penalty showing the number of production hours for the mine and the mine
controller, the number of prior violations per inspection days, the number of repeat violations,
the number of persons affected, the negligence points, the likelihood points, and the good faith
point reductions. Based on my gravity and negligence findings, and considering but not relying
on the point calculation in 30 C.F.R. § 100.3, as adjusted to account for the VPID distortion
discussed above, the Secretary’s proposed penalty of $1,412.00 is decreased to $634.00. I impose
a penalty in that amount.
D.

Citation No. 8820564 – RVM Discharge End Platform
Docket No. SE 2015-0285
Exhibit S–3 (Tr.208:20-209:16)

The Secretary alleges that Respondent violated 30 C.F.R. § 56.20003(a) by failing to
keep the RVM discharge end platform clean and orderly. (Ex. S–3; Tr.210:4-12) The standard
requires that all mining operation workplaces, passageways, storerooms, and service rooms be
kept clean and orderly.
1. Violation
During the mine inspection on March 18, 2015, LaRue climbed up a ladder onto the
RVM discharge end platform and observed accumulated material, two cans of spray foam, and
some tools, situated so as to partially block the way onto the platform. (Tr.210:16-23; 218:18-23;
Ex. S–3) He entered this area from a separate building where the “new agg” discharge cooler
discussed in Citation No. 8820563 was located. (Tr.210:7-9; 212:6-22) LaRue determined that

40 FMSHRC Page 901

the area was a working place because the tools, other items, and the footprints in the material
indicated to him that miners had been working in the area. (Tr.210:24-211:14; Ex. S–3, at 4)
The citation was terminated on March 19, 2015, after Respondent removed the material
and other items. (Tr.216:19-217:3) Exhibit S–3, pages 4 and 5 show the significant difference
between the clean and orderly condition in the termination photo and the violating condition
photo. (Tr.428:17-429:1) Inspector LaRue determined the following: (1) The cited condition
created a slip–trip–fall hazard (Tr.214:24-25); (2) the hazard was unlikely to occur because a
person would have to climb up the ladder to reach the violating area, there was a clear walkway
around the material, and a miner would most likely have three points of contact after climbing to
the platform (Tr.214:18-215:11); (3) assuming the foot-level-fall hazard, a possible joint or
muscle injury would follow, which would result in at least lost workdays or restricted duty
(Tr.215:12-14); and, (4) an injury would likely affect only one person. (Tr.215:17-20) LaRue
found moderate negligence, citing the fact that the condition was not obvious from ground level
as a mitigating circumstance. (Tr.214:8-10; 215:22-25) However, the footprints in the material in
conjunction with the tools and spray cans showed that people had been there, supporting the
conclusion that it was a working area. (Tr.215:25-216:6) The Secretary proposed a penalty of
$285.00. (Ex. S–1)
I find the accumulation of material, tools, and spray cans described above constituted a
violation of 30 C.F.R. § 56.20003(a).
2. Gravity
Inspector LaRue determined that the cited condition created a slip–trip–fall hazard.
(Tr.214:24-25) He determined, however, that the foot-level fall hazard was unlikely to occur
because a person would have to climb up the ladder to reach the violating area, there was a clear
walkway around the material, and a miner would most likely have three points of contact after
climbing to the platform. (Tr.214:18-215:11; Ex. S–3, at 4) Additionally, LaRue’s notes mention
the area at issue was only accessed for maintenance as needed. (Ex. S–3, at 3) Respondent adds
that an injury would be unlikely because access is blocked by a bolted panel directly across from
the ladder, the spray cans and tools were left by the panel to open and reseal it, and the tools and
materials are not directly at the top of the access ladder. (Resp’t Br. 40, citing Ex. S–3, at 4) I
agree with LaRue and Respondent that the hazard was unlikely to result in injury. If a foot-level
fall were to occur, however, it would likely result in a joint or muscle injury, which could
reasonably be expected to result in at least lost workdays or restricted duty. (Tr.215:13-14) The
injury would likely only affect one person. (Tr.215:17-20)
3. Negligence
LaRue found moderate negligence, citing the extensive amount of trash and material on
the floor and the fact that there was evidence that workers were up in the area after the spill.
(Tr.215:22-216:6; Ex. S–3, at 3) LaRue noted the fact that the condition was not obvious from
ground level as a mitigating circumstance. (Tr.214:8-10; 215:22-25)
I consider as evidence of mitigation the counter points raised. Considering the totality of
the circumstances, I concur with LaRue that ODPC exhibited moderate negligence here.

40 FMSHRC Page 902

4. Penalty
I have reviewed and confirmed the data in Exhibit A to the Secretary’s Petition for
Assessment of Civil Penalty showing the number of production hours for the mine and the mine
controller, the number of prior violations per inspection days, the number of repeat violations,
the number of persons affected, the negligence points, the likelihood points, and the good faith
point reductions. Based on my gravity and negligence findings, and considering but not relying
on the point calculation in 30 C.F.R. § 100.3, as adjusted to account for the VPID distortion
discussed above, the Secretary’s proposed penalty of $285.00 is decreased to $127.00. I impose a
penalty in that amount.
E.

Citation No. 8820565 – Ground Level of the Old Agg Scrubber
Docket No. SE 2015-0285
Exhibit S–4 (Tr.217:14-21)

The Secretary alleges that Respondent violated 30 C.F.R. § 56.20003(a) by failing to
keep the ground level of the old agg scrubber area clean and orderly. (Ex. S–4) The standard
requires that all mining operation workplaces, passageways, storerooms, and service rooms be
kept clean and orderly.
1. Violation
During the E01 inspection on March 18, 2015, Inspector LaRue observed accumulated
material on the ground level of the old agg scrubber (Tr.219:7-9), an area adjacent to the RVM
discharge area, covered by the previous citation, Citation No. 8820564 (Ex. S–3), but
approximately 150–200 feet away. (Tr.217:24-218:11) The area was part of a separate structure.
(Tr.218:10-11)
LaRue testified that on approach the accumulated material was obvious and extensive in
size. (Tr.221:2-9) At first glance he did not recognize a hazard, but when he put the toe of his
boot into the material, he found it was “extremely slick.” (Tr.219:6-9) He noted in his field notes
that the facility’s site hazard awareness sheet recognized that the material could be slippery when
wet. (Ex. S–4, at 3; Tr.197:3-14; 222:16-23; 433:11-434:2) He also noted footprint tracks and
drag marks as though someone had dragged something through the material. (Tr.219:15-220:7;
Ex. S–4, at 4-5)16 He concluded that miners had passed through the area to get from one point to
another. (Tr.220:12-13) He understood that miners used the area as a passageway to access a
drain valve for an adjacent containment. (Tr.220:8-22) He could not say how long the condition
had existed by looking at the area or from talking to Superintendent Gibens who accompanied
him on the inspection (Tr.220:23-221:1), but he believed that management was aware of this
condition and considered it a recurring problem. (Tr.222:10-223:17)
The citation was terminated on March 19, 2015, after Respondent removed the material.
(Tr.225:4-18; Ex. S–4, at 2) Inspector LaRue noted the difference between the condition in the
16

LaRue testified about seeing two sets of footprint tracks at one point (Tr.219:15-24),
but only a single set of tracks at another. (Tr.224:20) This apparent contradiction does not
change my analysis.

40 FMSHRC Page 903

violation photo and the orderly condition in the termination photo. (Tr.225:8-12; Ex. S–4, at 4-6)
LaRue determined that the cited condition created a safety hazard that was reasonably likely to
result in serious injury involving lost workdays or restricted duty and that it potentially affected
one person. (Ex. S–4, at 1) LaRue testified that the accumulation of wet, slippery mud on the
uneven ground created a slip–trip–fall hazard. (Tr.223:20-25; Ex. S–4, at 3) LaRue determined
that an injury was reasonably likely to occur based on miner exposure to the slippery surface,
evidenced by footprints in the material. (Tr.223:18-224:1; Ex. S–4, at 5) LaRue testified that the
lost workdays or restricted duty designation was appropriate because a miner could fall and catch
a knee or hand on a bolt or simply trip and fall at foot-level, suffering a twisted ankle or knee
joint, or perhaps a torn ACL. (Tr.224:4-5) LaRue determined that one person was affected by the
cited condition because only one person would likely be hurt before the condition was identified
and corrected. (Tr.224:13-16) LaRue concluded that this violation was S&S. (Tr.224:8-10)
LaRue found moderate negligence due to factors he considered mitigating, e.g., the material was
not very thick, he could not tell how long it had been on the ground, and there was no history of
similar violations. (Tr.224:17-225:3) The proposed penalty for this violation is $1,412.00. (Ex.
S–1)
Respondent argues that the citation should be vacated based on the following: (1) The
area where this condition was found is less than 200 feet from the prior citation (Resp’t Br. 41,
citing Tr.218:7-11); (2) LaRue did not see any miners working in the area; he merely saw
footprints that showed someone had been there at some prior time (Id., citing Tr.219:15-24 and
Ex. S–4); (3) LaRue said he determined the material was slick by dipping his boot tip in it, but he
did not testify that access to the area occurred while the material was wet (Id., citing Tr.221:2225); and, (4) the slickness of the material was contradicted by Gibens, who testified that the
product would not be slick unless it was a very thin layer, which this was not. (Id., citing
Tr.433:11-434:14)
I have already determined that this citation will not be vacated on the basis that it cited a
condition in an area that Respondent believes should be considered part of another area. In full
view of Respondent’s contentions, I find that the material was slippery as tested by LaRue and
recognized to be so by Respondent in its site awareness documentation. I find that the
accumulation of material described above constituted a slip–trip–fall hazard to miners and
violated 30 C.F.R. § 56.20003(a).
2. Gravity and S&S
LaRue determined that the hazard underlying this violation was reasonably likely to
result in injury to a single miner that would involve lost workdays or restricted duty. I concur in
his assessment. I am aware that Respondent contests the slickness of the material, but on balance
I am convinced by the weight of the evidence that the accumulated material was slick and
reasonably likely to cause a miner traversing it to slip and fall and incur an injury to his joints. I
conclude that LaRue’s gravity determination of “reasonably likely” to result in lost workdays or
restricted duty for a single miner is appropriate.
I have found an underlying violation of 30 C.F.R. § 56.20003(a), a mandatory safety
standard. The material accumulation, its extent, location, and slippery state contributed to a slip–
trip–fall hazard. (Tr.223:20-224:1) It was reasonably likely that this hazard would occur given

40 FMSHRC Page 904

the fact that miners traversed the area. Assuming the occurrence of the foot-level-fall hazard, I
find that it would reasonably likely result in a foot-level fall causing a joint injury of the type
LaRue outlined in his testimony. (Tr.224:2-5) The injury would be of a reasonably serious
nature, possibly resulting in lost workdays or restricted duty. I conclude this violation was S&S.
3. Negligence
Management is deemed to have been aware of this violation. The accumulation was
conspicuous and large. (Tr.221:4-9) According to statements attributed to Gibens and Larry
Gurley, the second shift supervisor, management was not able to maintain consistent
housekeeping compliance due to a staff shortage. (Tr.397:13-17; 443:5-7; 476:2-15) LaRue
based his “moderate” negligence allegation on what he considered to be mitigating
circumstances, including the following: (1) The accumulated material was not very thick; (2)
there was only one set of footprints in the material (see supra text accompanying note 16); he
could not tell how long the material had been in place; (3) Gibens had claimed another point of
mitigation which LaRue could not recall, but took into consideration; and, (4) there were
relatively few housekeeping violations in Respondent’s violation history. (Tr.224:18-225:3) I
concur with the inspector’s evaluation of negligence and find that this violation involved
moderate negligence.
4. Penalty
I have reviewed and confirmed the data in Exhibit A to the Secretary’s Petition for
Assessment of Civil Penalty showing the number of production hours for the mine and the mine
controller, the number of prior violations per inspection days, the number of repeat violations,
the number of persons affected, the negligence points, the likelihood points, and the good faith
point reductions. Based on my gravity and negligence findings, and considering but not relying
on the point calculation in 30 C.F.R. § 100.3, as adjusted to account for the VPID distortion
discussed above, the Secretary’s proposed penalty of $1,412.00 is decreased to $634.00. I impose
a penalty in that amount.
F.

Citation No. 8820567 – Third Floor of the Mill Building
Docket No. SE 2015-0285
Exhibit S–5 (Tr.227:5-7)

The Secretary alleges that Respondent violated 30 C.F.R. § 56.20003(a) by failing to
keep the third floor of the mill building clean and orderly. (Tr.227:24-228:2; Ex. S–5) The
standard requires that all mining operation workplaces, passageways, storerooms, and service
rooms be kept clean and orderly.
1. Violation
During his E01 inspection on March 18, 2015, Inspector LaRue observed material on the
third floor walkway of the mill building. (Tr.228:5-15; Ex. S–5) Gibens accompanied LaRue on
this portion of the inspection. (Tr.228:9-10; 435:9-12) Inspector LaRue entered the mill building
from the old agg scrubber, a separate building, as discussed in relation to Citation No. 8820564.

40 FMSHRC Page 905

(Tr.228:5-8) On the third floor of the mill building, near the screen room, he saw deep
accumulated material on the floor with footprints and a chair in the middle. (Tr.228:10-21) It
appeared to him that the chair had been placed there so a person could take a break. (Tr.228:1315; 231:21-232:1) The material ranged from three to six inches deep. (Tr.228:19-21; Ex. S–5, at
3) LaRue considered this an obvious and extensive slip–trip–fall hazard. (Tr.229:25-230:11; Ex.
S–5, at 3-5) He testified about the difference between the violation photos and those showing the
area after it was cleaned. (Tr.234:4-9; Ex. S–5, at 4-7) The citation was terminated on March 19,
2015, when Respondent removed the material. (Tr.234:13-17; Ex. S–5, at 2)
LaRue appropriately characterized the area in question as a workplace and passageway.
According to LaRue, Gibens had indicated to him at the time that Respondent stored screens
used in support of the mining operation in this area and miners traveled this area to get from one
point to another and to gather the screens. (Tr.232:2-14) I find that the combination of the deep
material accumulation and a chair in the passageway created a slip–trip–fall hazard. This
condition was a violation of 30 C.F.R. § 56.20003(a).
2. Gravity
LaRue determined that the cited condition created a slip–trip–fall hazard that was
unlikely to result in injury. (Tr.232:15-233:2)17 He felt that an injury resulting from this hazard
would probably involve a muscle or joint injury (Tr.233:3-6), would likely result in at least lost
workdays or restricted duty (Tr.233:3-6), and would affect one person because only one person
would be hurt before the condition was identified and corrected. (Tr.233:7-9) The inspector
testified that even though miners were exposed to this hazard, as shown by the footprints, an
injury was unlikely because of how infrequently anyone went into the area—one person every
eight to ten weeks (Tr.228:20-21; 232:18-20)—and because the material was light silt.
(Tr.232:20-21) LaRue did not consider this violation S&S.
I concur with LaRue’s gravity determination. This violation was unlikely to result in a
lost-workdays or restricted-duty injury to a miner.
3. Negligence
LaRue felt this violation resulted from “moderate” negligence. Once a person climbed to
the area in question, the accumulations were very obvious and covered an extensive area.
(Tr.233:11-12; Ex. S–5, at 3) He factored in the mitigating effect of the out-of-the-way location
of the accumulations to reach moderate negligence. (Tr.233:12-16) I concur.
4. Penalty
I have reviewed and confirmed the data in Exhibit A to the Secretary’s Petition for
Assessment of Civil Penalty showing the number of production hours for the mine and the mine
controller, the number of prior violations per inspection days, the number of repeat violations,
the number of persons affected, the negligence points, the likelihood points, and the good faith
point reductions. Based on my gravity and negligence findings, and considering but not relying
17

LaRue mentioned in his field notes that this was a low visibility area because his
glasses fogged while he was there. (Ex. S–5, at 3) He did not mention this in his testimony.

40 FMSHRC Page 906

on the point calculation in 30 C.F.R. § 100.3, as adjusted to account for the VPID distortion
discussed above, the Secretary’s proposed penalty of $285.00 is decreased to $127.00. I impose a
penalty in that amount.
G.

Citation No. 8820568 – Walkway Around the 4 & 5 Pre-Grind Mills
Docket No. SE 2015-0285
Exhibit S–6 (Tr.236:20-237:2)

The Secretary alleges that Respondent violated 30 C.F.R. § 56.20003(a) by failing to
keep the walkway around the 4 & 5 pre-grind mills clean and orderly. (Ex. S–6; Tr.237:4-6) The
standard requires that all mining operation workplaces, passageways, storerooms, and service
rooms be kept clean and orderly.
1. Violation
During his inspection of the mine on March 18, 2015, Inspector LaRue observed material
with footprints on the walkway around the 4 & 5 pre-grind mills. (Tr.237:8-20; Ex. S–6) Gibens
accompanied Inspector LaRue on this portion of the inspection. (Tr.237:24-25; 244:14-17) The
pre-grind mills area is separate from the mill building discussed in Citation No. 8820567.
(Tr.242:3-15) This area is close to the control room—the nerve center of the mine—where mine
management spends significant time. (Tr.238:21-240:4) LaRue observed a sizeable buildup of
material with heavy foot traffic, as evidenced by the multiple footprints. (Tr.237:15-20; Ex. S–6,
at 4-5) The accumulated material covered and hid angle iron motor floor supports and floor plate
height differences, both of which created a trip hazard. (Tr.238:11-20; Ex. S–6, at 4-6)
LaRue considered this area both a passageway and a working place because miners not
only used it to come and go to check motors, instrumentation, or a heat lamp nearby, but also
conducted inspections, maintenance, and other types of work in the area. (Tr.241:4-18)
The citation was terminated on March 19, 2015, after the accumulations were removed.
(Tr.246:3-9; Ex. S–6, at 2) Inspector LaRue testified to the difference between the pre- and postabatement photos showing the extent of the violating condition. (Tr.245:13-25; Ex. S–6, at 4-6)
The photos also show the depth of the accumulated material. The material was deep enough to
nearly cover a set of handrails about forty-two inches in height. (Tr.240:16-20; Ex. S–6, at 4)
The Respondent argues that LaRue did not see anyone working in the area, and the
“walkway” was not used to access the nearby control room. (Resp’t Br. 42, citing Ex. S–6)
I find that the deep accumulations covering floor irregularities created a trip hazard as
alleged by Inspector LaRue. This was a violation of 30 C.F.R. § 56.20003(a).
2. Gravity and S&S
LaRue determined that the cited condition created a safety hazard that was reasonably
likely to result in serious injury because of the significant buildup of silt material concealing
uneven ground with trip hazards. (Tr.238:10-20; 239:16-19; 240:13-20; 242:18-22) The miners

40 FMSHRC Page 907

who left the footprints were exposed to the hazard. (Tr.242:20-22) LaRue confirmed that a trip or
fall could result in a twisted ankle, twisted knee joint, or a torn ACL and result in lost workdays
or restricted duty. (Tr.243:9-11) LaRue also determined that one person would be affected by the
violation because he believed the condition would be identified and corrected before anyone else
was injured. (Tr.243:17-20) I concur with LaRue that this violation was reasonably likely to
result in a lost-workday or restricted-duty injury to one miner.
I have found an underlying violation of 30 C.F.R. § 56.20003(a), a mandatory safety
standard. The extent and location of the material accumulation greatly contributed to a slip–trip–
fall hazard. (Tr.238:10-20; 239:16-19; 240:13-20; 242:18-22; Ex. S–6, at 4-5) It was reasonably
likely that this hazard would occur given the number of personnel exposed to the area and the
size of the material accumulation. Assuming the occurrence of a foot-level-fall hazard, I find that
it would reasonably likely result in a joint injury of the type LaRue outlined in his testimony.
(Tr.243:9-11) The injury would be of a reasonably serious nature, likely resulting in lost
workdays or restricted duty. I conclude this violation was S&S.
3. Negligence
Inspector LaRue rated the negligence for this violation as “high” because mine
management was aware of and had multiple opportunities to correct this hazard considering its
proximity to the control room, how it grew in size over multiple shifts, and its obvious nature.
(Tr.238:23-239:19; 240:5-9; 244:5-6; 440:7-10) Inspector LaRue testified that the extensiveness
of the accumulation suggested a “callous attitude” by Respondent. (Tr.245:23-25)
Respondent contends that the “high” negligence designation was based on the frequency
of housekeeping citations, which, except for a single prior event, reflected only the other
housekeeping citations written during this inspection. (Resp’t Br. 42, citing Tr.243:21-244:10) I
note there is partial support in the record that Inspector LaRue considered the previous
housekeeping citations in issuing the high negligence designation for Citation No. 8820568. For
example, in his notes under the justification section for his high negligence determination,
Inspector LaRue wrote, “repeated violations of same regulation.” (Ex. S–6, at 3) Inspector
LaRue also testified that his frustration level was increasing by the time he issued Citation No.
8820567, having previously issued four housekeeping citations earlier that day. (Tr.233:20234:4) Nevertheless, I find there is sufficient justification, notably the obviousness given the
extensiveness of the material accumulations and proximity to the control room, to warrant a high
negligence determination for Citation No. 8820568 without reference to any other housekeeping
violations.
4. Penalty
I have reviewed and confirmed the data in Exhibit A to the Secretary’s Petition for
Assessment of Civil Penalty showing the number of production hours for the mine and the mine
controller, the number of prior violations per inspection days, the number of repeat violations,
the number of persons affected, the negligence points, the likelihood points, and the good faith
point reductions. Based on my gravity and negligence findings, and considering but not relying
on the point calculation in 30 C.F.R. § 100.3, as adjusted to account for the VPID distortion

40 FMSHRC Page 908

discussed above, the Secretary’s proposed penalty of $4,689.00 is decreased to $2,107.00. I
impose a penalty in that amount.
H.

Citation No. 8820569 – Ground Level of the Mill Building
Docket No. SE 2015-0285
Exhibit S–7 (Tr.247:10-19)

The Secretary alleges that Respondent violated 30 C.F.R. § 56.20003(a) by failing to
keep the ground level of the mill building clean and orderly. (Ex. S–7) The standard requires that
all mining operation workplaces, passageways, storerooms, and service rooms be kept clean and
orderly.
1. Violation
During his inspection on March 18, 2015, Inspector LaRue observed material with
footprints on the ground floor level of the mill building. (Tr.248:8-10; 249:4-5; Ex. S–7) Gibens
accompanied LaRue on this portion of the Inspection. (See Tr.452:22-455:14) This area was on
the ground level underneath the mill building, separate from the pre-grind milling area discussed
in Citation No. 8820568. (Tr.248:3-10)
As he was approaching the mine prior to starting the inspection, LaRue observed a dust
cloud emanating from this area of the milling facility. (Tr.250:23-251:3) When he entered the
mill building, he noted that the material completely covered the concrete floor.18 (Tr.252:4-7)
The buildup area was so large that LaRue could not capture it in a single photo; rather, three
photos were required to show the extent of material accumulation in the area. (Tr.248:18-24) It
was deep enough—12 to 18 inches—to create a trip hazard. (Tr.252:23-25; 258:1-15; Ex. S–7, at
4) The area in question was on the ground floor of the main milling portion of the mine; miners
would often be in and around it. (Tr.252:10-20) It was very close to the break room, thus obvious
in LaRue’s opinion. (Tr.253:3-10) LaRue was certain the material had built up over more than
one shift; he suspected it had been forming for days, weeks, or possibly months. (Tr.253:13-23)
From this, he concluded that mine management had numerous opportunities to find and correct
this hazard given how close it was to the break room, its large size, and its obvious nature, but
they made no apparent effort to address the condition. (Tr.253:3-254:2)
LaRue considered the cited area a passageway—miners used it to get from one point to
another, including the nearby break room and other areas of the main mill building. (Tr.249:6-8;
252:12-20) Although there was a ladder in the area, which typically denotes an access point to
another work platform or workplace, LaRue found it to be inconsequential, and he did not give it
much weight. (Tr.250:13-15)
18

LaRue’s handwritten notes on MSHA Form 4000-49E state, “[r]aw mill ground floor [.
. .] housekeeping not maintained on approx 50% of the ground floor.” (Ex. S–7, at 4) At hearing,
however, he testified that “it was a hundred percent coverage. When I say a hundred percent
coverage, at no point in that field of view could I see the concrete underneath it.” (Tr.252:5-7) I
have reviewed the photographic evidence and conclude that this discrepancy—whether there was
fifty percent or one hundred percent coverage—does not affect my ultimate analysis.

40 FMSHRC Page 909

The citation was terminated on March 23, 2015, when Respondent removed the material.
(Tr.259:21-22; Ex. S–7, at 3) LaRue testified that he had to extend the termination period
multiple times because of the extensiveness of the material accumulation. (Tr.259:3-22) The preand post-abatement photos show the extent of the violation and corroborate LaRue’s testimony.
(Tr.256:19-257:3; Ex. S–7, at 5-8)
LaRue determined that the cited condition contributed to a safety hazard that was
reasonably likely to result in injury resulting in lost workdays or restricted duty for one person.
(Ex. S–7, at 1) LaRue determined that ODPC exhibited high negligence. (Id.) The Secretary
recommended a penalty of $4,689.00. (Ex. S–1)
Respondent pointed out that LaRue did not identify any miners working in the area
during the inspection (Resp’t Br. 42, citing Tr.252:13-14), and that he rated the negligence
element as “high” due to the multiple violations of housekeeping cited during this inspection.
(Id., citing Ex. S–7, at 4) Larue’s evidence of the nature and extent of the material accumulation
is uncontested. (Tr.453:1-10, 20-23; 454:3-7)
I find that the accumulation was as described above by LaRue, it created a slip–trip–fall
hazard, and it constituted a violation of 30 C.F.R. § 56.20003(a).
2. Gravity and S&S
LaRue determined that the cited condition contributed to a safety hazard that was
reasonably likely to result in injury for the following reasons: (1) deep footprints indicated that
miners had walked through the material (Tr.252:12-14; 254:21-22); (2) the 12- to 18-inch
accumulated material would stop a miner’s normal forward motion, causing them to fall
(Tr.258:1-12); and, (3) the material was extensive, covering uneven ground and concealing trip
hazards. (Tr.254:20-21; 258:9-15; Ex. S–7, at 4) LaRue determined that any injury resulting
from this hazard was reasonably likely to result in lost workdays or restricted duty because
miners could fall and catch a knee or hand on a bolt or simply trip and fall at foot level, suffering
a twisted ankle, twisted knee joint, or a torn ACL. (Tr.205:21-206:1; 255:1; Ex. S–7, at 4) LaRue
determined that only one person would be affected because he assumed the condition would be
identified and corrected before anyone else was injured. (Tr.255:6-9)
On cross-examination, Gibens agreed there was extensive material coverage on the
ground, footprints were observed throughout the spilled material, and the material was 12 to 18
inches deep. (Tr.453:1-7, 20-23)
I find that the Secretary has proved that the hazard created by the cited conditions was
reasonably likely to cause an injury to at least one miner, and that the resulting injury would
most likely be serious enough in nature to lead to lost workdays or restricted duty.
I have found an underlying violation of 30 C.F.R. § 56.20003(a), a mandatory safety
standard. The material accumulation’s extent, depth, and location contributed to a slip–trip–fall
hazard. It was reasonably likely that this hazard would occur because miners were walking
through the extensive and thick material accumulation, as evidenced by numerous footprints.
Assuming the occurrence of the foot-level fall hazard, it would reasonably likely result in a joint
injury of the type LaRue outlined in his testimony. Such an injury would be of a reasonably

40 FMSHRC Page 910

serious nature, possibly resulting in lost workdays or restricted duty. I conclude this violation
was S&S.
3. Negligence
The entire floor area on the ground level of the mill building was covered by 12 to 18
inches of accumulated material. (Tr.252:2-25; see Ex. S–7, at 4-7) There was no vantage point
from which LaRue could see any of the floor through or around the material. (Tr.252:5-7) This
area was in the main milling portion of the mine, frequented by miners. (Tr.252:17-20) The
proximity to the break room and the presence of traffic footprints support LaRue’s conclusion
that the condition was obvious and had been ignored long enough for material to accumulate to
this depth. (Tr.253:1-254:17)
On cross-examination, Gibens stated that he disagreed with LaRue’s notes that the area is
accessed daily by plant personnel. (Tr.453:11-13) Gibens agreed, however, that 50% of the
ground floor was covered by the accumulated material, there were footprints throughout the
spilled material, the material was 12 to 18 inches deep, and the condition was very obvious.
(Tr.453:1-23) Gibens also disagreed with LaRue’s notes that the company made no effort to
correct or mitigate the hazard. (Tr.453:17-19) Gibens stated that the company made efforts to
clean this specific area as they had more manpower and time. (Tr.454:13-455:1) In stating that
the company was making efforts to correct the situation, Gibens admitted that the company knew
about this problematic area for quite a while. (Tr.455:4-9)
As it did with Citation No. 8820568, Respondent contends that the “high” negligence
designation was impermissibly based on the frequency of housekeeping citations written during
this inspection. (Resp’t Br. 42, 47) I again note that there is partial support in the record that
Inspector LaRue factored the previous housekeeping citations that day in issuing the high
negligence designation for Citation No. 8820569. For example, in his notes under the
justification section for his high negligence determination, Inspector LaRue wrote, “multiple
violations for housekeeping this inspection.” (Ex. S–7, at 4) Nevertheless, the exhibit picture is
indeed worth a thousand words. Upon viewing the photographic evidence, I find there is
sufficient justification—notably the obviousness and extensiveness of the material
accumulations, which required three photographs to capture its panoramic enormity—to justify a
high negligence determination for Citation No. 8820569 without reference to any other
housekeeping violations. What is more alarming to me is that Gibens admitted that the company
knew about the problematic area for “quite a while” (Tr.455:4-6) but did not take preventative
steps to limit access to the area. (Tr.254:4-10; 455:10-14) Viewing the totality of the
circumstances, I agree with the Secretary and conclude that ODPC exhibited high negligence in
this instance.
4. Penalty
I have reviewed and confirmed the data in Exhibit A to the Secretary’s Petition for
Assessment of Civil Penalty showing the number of production hours for the mine and the mine
controller, the number of prior violations per inspection days, the number of repeat violations,
the number of persons affected, the negligence points, the likelihood points, and the good faith
point reductions. Based on my gravity and negligence findings, and considering the point
calculation in 30 C.F.R. § 100.3, as adjusted to account for the VPID distortion discussed above,

40 FMSHRC Page 911

the Secretary’s proposed penalty of $4,689.00 is decreased to $2,107.00. I impose a penalty in
that amount.
I.

Citation No. 8820573 – Dust Truck Tagging
Docket No. SE 2015-0285
Exhibit S–10 (Tr.277:14-279:20)

The Secretary alleges that Respondent violated 30 C.F.R. § 56.14100(c) by failing to
remove the Ford L9000 dust truck from service after safety defects were observed during preoperational examinations. The standard requires that “[w]hen defects make continued operation
hazardous to persons, the defective items including self-propelled mobile equipment shall be
taken out of service and placed in a designated area posted for that purpose, or a tag or other
effective methods of marking the defective items shall be used to prohibit further use until the
defects are corrected.” 30 C.F.R. § 56.14100(c).
1. Violation
During the inspection on March 24, 2015, Inspector LaRue cited Respondent for failing
to remove the Ford L9000 dust truck from service after safety defects (dirty windshield and
inoperable wipers) were observed during pre-operational examinations. (Ex. S–10) Gibens
accompanied Inspector LaRue on this portion of the inspection. (Tr.455:21-24)
During the previous night’s inspection on March 23, 2015, LaRue saw the Ford L9000
dust truck when he issued the inadequate lighting violation citation, No. 8820571, in the verge
storage tank area. (Tr.282:4-22; see discussion infra Section VI. K.) He made a video recording,
which shows the dust truck parked up at the top of the ramp near the mine entrance. (Tr.282:23283:9; Ex. S–9, at 1:30; see also Ex. R–1)
During the morning inspection on March 24, 2015, LaRue noticed the dust truck had
been moved from its previous place on the ramp. (Tr.282:5-14) LaRue found the truck parked
under the dust chute19 in front of the verge storage tank area next to the main building.
(Tr.279:22-25) At the hearing, I estimated, based on my observation of the video recording and
the mine map, that the distance the dust truck traveled was 100 yards or less.20 (Tr.328:8-11; Exs.
S–9, R–1) LaRue responded that the estimate was a fair assessment. (Tr.328:12-13)

19

Gibens explained at hearing that the Ford L9000 dust truck is backed under the dust
chute whenever ODPC changes products. (Tr.403:4-5) The clay wastes in the tanks are flushed
out into the dust truck to ensure there is no cross-product contamination. (Tr.403:5-8) However,
because the dock is also used for the loading of bulk trucks, the Ford L9000 is normally pulled
out from the loading dock and positioned up the ramp. (Tr.403:17-404:6)
20

Upon closer review of Exhibit S–9 in relation to Exhibit R–1, it appears that I
misspoke at hearing. Although I said “100 yards,” which Inspector LaRue agreed with, given
Inspector LaRue’s walking speed in the video, the truck appears to be closer to 100 “feet” away
from the dust chute. This correction does not materially alter any part of my analysis.

40 FMSHRC Page 912

LaRue noticed a significant21 amount of clay dust on the windshield, which was
observable even from a distance. (Tr.289:13-20; Ex. S–10, at 3-5) LaRue interviewed Teddy
Hall, a kiln operator, who explained that he had driven the truck to the dust chute at about 7:30
a.m. (Tr.282:10-12; 286:6-8; 314:22-315:5; 406:23-407:1; Ex. S–10, at 2) Hall said that he tried
unsuccessfully to run the wipers to clear the dust off the windshield before moving it into the
position shown in the photographs on pages 3, 4, and 5 of Exhibit S–10. (Tr.282:12-14; see Ex.
S–10, at 3-5) Other miners were operating a Bobcat in the verge storage tank area directly behind
the dust chute as Hall backed the truck into place. (Tr.287:11-18)
Two days earlier, on March 22, 2015, a pre-operational examination was conducted for
the dust truck (Ex. S–10, at 7), which identified the truck’s lights, the truck’s windshield wipers,
and “obvious damage or leaks” as problems. (Id.) The following notes were written in the
description section: (1) “head light [sic] busted”; (2) “windshield wipers don’t work”; and, (3)
the truck was to be “tagged out after dark.” (Tr.285:10-16; Ex. S–10, at 7) The pre-operational
examination appears to have been signed by Teddy Hall. (Ex. S–10, at 7)
Instead of removing the truck from service, Respondent placed a tag on the steering
wheel, which stated, “DANGER—DO NOT OPERATE.” (Tr.285:20; Ex. S–10, at 6) The tag
did not specify, however, why the truck should not be operated. (Tr.285:7-9; 287:1-9; Ex. S–10,
at 6) Hall confirmed that he was aware of the tag on the steering wheel but had driven the truck
nonetheless. (Tr.286:3-9)
LaRue concluded that the truck had been operated, i.e., moved to the dust chute location
(Tr.282:4-22), with the windshield so dirty from accumulated dust as to obscure driver visibility
(Tr.280:6; 289:15-20; Ex. S–10, at 4-5), without the headlights being repaired (Tr.285:11-16),
and contrary to the admonition on the tag not to operate the truck. (Tr.285:5-287:9; Ex. S–10, at
6-7) LaRue testified that the company explained to him that dust and material commonly
impedes normal operation of the wipers. (Tr.281:10-12) Often times, the dust gets into the
windshield wiper motor itself. (Tr.281:12-13) Typically, ODPC remedies this by either blowing
it out with air or washing it down with water. (Tr.281:13-15; 404:13-14; 405:7-13; see also
Resp’t Br. 9) In this instance, however, ODPC tried the normal method to no avail (Tr.281:6-16);
instead, according to LaRue, they had to “get in there and actually work on it” before the wipers
were functional again. (Tr.281:16-18)
The first clause of section 56.14100(c) states, “[w]hen defects make continued operation
hazardous to persons, the defective items including self-propelled mobile equipment shall be
taken out of service and placed in a designated area posted for that purpose [. . .].” 30 C.F.R. §
56.14100(c) (emphasis added). Here, Respondent did not take the truck out of service.
The second clause of the standard provides an alternative: “[A] tag or other effective
method of marking the defective items shall be used to prohibit further use until the defects are
corrected.” Id. (emphasis added). Two issues are raised by this: (1) Was there a defect?; and, if
so, (2) did Respondent properly tag or mark the defect to prevent further use until the defect was
corrected?
21

LaRue noted that 90% of the windshield was covered by clay dust. (Ex. S–10, at 2)
Gibens agreed with this assessment at hearing. (Tr.456:22-24)

40 FMSHRC Page 913

Respondent argues in its brief that “neither the headlight nor the wipers were defects that
made continuous operation of the truck hazardous.” (Resp’t Br. 12) Respondent did not consider
the windshield wipers defective because, in its view, the wiper motor was never broken—it was
just unable to overcome the friction created by the clay material without water. (Resp’t Br. 9 n.2)
According to Gibens, even a brand new wiper motor could not wipe away the clay dust without
having the windshield first sprayed with water. (Tr.405:14-19) Gibens also testified that the
windshield on the day of this citation was cleaned by simply adding water and turning on the
wipers. (Tr.407:9-12)
LaRue considered the windshield wiper problem sufficient in itself to justify tagging the
truck out of service. (See Tr.285:13-16; 288:10-18) I agree. From the moment the pre-operation
examination noted “wipers don’t work” on March 22, 2015, until they were actually working
properly again on March 24, 2015, the wipers were, for all relevant purposes, “defective.”
During this window of time, both Hall and LaRue had attempted to get the wipers to work to no
avail (Tr.282:12-14; 374:23-25), and, critically, Hall had operated the truck. (Tr.282:10-12;
290:1-3) Moreover, Gibens’ recollection of how the wipers were fixed was contradicted by
LaRue’s testimony that the normal method of washing the windshield with water was ineffective
that day. (Tr.281:12-16) According to LaRue, they had to “get in there and actually work on it to
get it going again.” (Tr.281:16-18) I credit LaRue’s recollection that more effort than normal was
required to get the wipers functioning. Accordingly, I find the wipers on the truck were
defective.
Irrespective of the condition of the windshield wipers, it is important to note that the dirty
windshield itself can be considered a defect, as its existence made continued operation of the
truck hazardous to miners. (Tr.280:15-20) LaRue testified that the obscured visibility on the
windshield was a defect in this particular scenario. (Tr.280:2-6) Indeed, LaRue responded on
cross-examination that as long as the windshield was clean before the truck was operated, even if
it was cleaned with a squeegee, he would not have cited it. (Tr.375:11-14) The fact that the truck
was operated with a dirty windshield remains uncontested. Accordingly, I find the dirty
windshield itself to be a defect.
Next, Respondent argues that affixing the tag to the steering wheel and noting the issues
elsewhere was a sufficient response to the truck’s defects (Resp’t Br. 13), and, in any event, the
tag on the steering wheel was conditional: It was only intended to address the broken headlight
and only applied after dark. (Tr.408:3-9; Resp’t Br. 9) Respondent did not tag the truck out for
the windshield wipers or the dirty windshield because, as discussed above, it did not think they
were defective.
In order for a miner to be adequately informed about the limited conditions under which
the truck could or could not be driven given the cryptic notation on the tag itself —“Do Not
Operate”—he or she would have to refer to the examination records to get a fuller view of the
limitations. This is not an effective means of dealing with equipment defects as serious as these.
Respondent was aware of the intent of the regulation and its duty to appropriately tag this
truck out of service, as evidenced by the tag found on the steering wheel. However,
Respondent’s failure to effectively remove the truck from service shows that it did not take its
duty to conduct an effective pre-operational examination seriously. Respondent tried to create an

40 FMSHRC Page 914

appearance of compliance by noting the defects in its examination records and hanging a tag on
the steering wheel, but it failed to actually take the truck out of service, clearly because it wanted
to defer correcting the problems while it continued to make the truck available to use for this
dust collection function. This half measure would allow Respondent to operate the truck
indefinitely, leaving the defects unaddressed. This is not the intent of the regulation. Indeed, the
insufficiency of Respondent’s actions is evident given that the truck was driven despite having
the “Do Not Operate” tag affixed to the steering wheel and a significant amount of clay dust
plastered onto its windshield.
This is not to say there is anything per se improper about a conditional tag. Indeed,
LaRue testified that he would not have had a problem with the conditional tag if it were properly
marked—clearly demarcating that the truck was not to be used from dusk till dawn due to a
broken headlight—and if the broken headlight was the only defect on the truck. (Tr.287:25288:18) The error here was Respondent’s failure to appropriately recognize the hazard presented
by the dirty windshield and remove the dust truck from service until the defect could be
remedied. This constitutes a violation of the standard.
The Secretary has proved by preponderant evidence the existence of a defect that made
continued operation of the truck hazardous to miners and the Respondent’s failure to take the
machine out of service. Cemex De P.R., 36 FMSHRC 1386, 1417 (May 2014) (ALJ) (citing Dix
River Stone, Inc., 32 FMSHRC 1779, 1784 (Nov. 2010) (ALJ)). Accordingly, I conclude
Respondent violated 30 C.F.R. § 56.14100(c).
2. Gravity and S&S
I agree with Inspector LaRue that this violation was reasonably likely to result in injury
to a miner. The dust truck was operated in the defective condition in an area where other miners
were working, including those who were operating the Bobcat outside the verge storage tank
area. (Tr.287:11-18) The dirty windshield compromised Hall’s ability to see optimally either to
the front or back. (See Ex. S–10, at 3-5) 22 In this case, Hall backed the truck from where it had
been on the ramp the night before into its position under the dust chute (Tr.282:10-12; 286:6-8;
314:22-315:5; 406:23-407:3; Ex. S–10, at 2), a distance of approximately 100 feet. (Tr.328:8-14;
see supra text accompanying note 20)
Respondent argues that an injury would be unlikely because the truck had a dirty front
windshield, which did not affect its ability to safely reverse under the dust chute (Resp’t Br. 12),
and, in any event, its windshield would have been cleaned before moving forward. (Id. at 13) I
do not find this argument compelling for two reasons.

22

Although LaRue did not specifically cite the Respondent for the rearview mirrors being
obscured by the same dust found on the windshield, he recalled they were dirty. (Tr.376:5) I
infer from several tangential references to the mirrors made by the parties as they discussed that
Hall had to look through the windshield or used the mirrors instead, and the fact that the
Respondent indicated that its practice was to use a water hose to clean off the windshield and the
mirrors before the truck was moved, that the mirrors were equally as dirty as the windshield.
(Tr.375:15-376:4; 404:11-14; 406:9-15)

40 FMSHRC Page 915

First, Respondent’s argument that the truck only traveled in reverse while it had a dirty
front windshield requires that I draw the inference that the extensive accumulation of clay dust
on the windshield occurred while the dust truck was on the ramp. While that is certainly possible,
given how much dust was already on the windshield when Hall backed the truck down the ramp
(Tr.282:15-22), I find it is more reasonable to infer that much of the buildup of clay dust on the
windshield occurred while the dust truck was under the dust chute at some point prior to being
parked on the ramp on March 23, 2015.23 Indeed, Respondent echoes my sentiments that the dust
chute, not the ramp, was the likely cause of the dusty windshield: “Nor is it surprising that a
truck literally gathering dust in a loading dock would quickly develop a dusty windshield.”
(Resp’t Br. 13) If that is the case, somebody necessarily drove the dust truck forward from the
dust chute with an obscured, dusty windshield before parking it on the ramp on or before March
23, 2015. Although only a short distance of 100 feet, it was in close to proximity to foot traffic
from the nearby verge storage tank area, the main building, and the parking lot. (Tr.279:24280:1; 290:7-18; see also Exs. S–9 & S–10; Ex. R–1)
Second, the dust truck was operated with a significant amount of clay dust obscuring the
windshield so there is no guarantee miners would have actually cleaned the windshield before
operating the truck again. (See Tr.282:5-20; 289:25-290:3) Although Teddy Hall was not the
normal operator of the truck (Tr.407:1-3), the fact that he was unaware of how to clean the
windshield and was also the employee apparently in charge of conducting the pre-operation
examination on March 22, 2015 (see Ex. S–10, at 7), leaves open the distinct possibility that the
dust truck would be operated again before having its windshield cleaned. The truck’s normal
path took it from the dust chute through the mine’s plant area where there was often foot traffic
because of the proximity to a parking lot, the administration building, and the break room in the
administration building. (Tr.289:21-290:18; 319:17-320:1) Gibens agreed that the dust truck was
operated around foot traffic at the loading point and is normally driven to the other side of the
plant to dump. (Tr.457:13-16) If the windshield were not cleaned prior to a dump run, miners on
foot would have reasonably likely been exposed to danger.
LaRue concluded that if a miner were struck by the truck as it moved on the work site,
the injury could reasonably be expected to be fatal. (Tr.290:25-291:4) Again, I agree. Another
citation, No. 8820574, addresses the issue of the condition of the brakes on this truck. See
discussion infra Section VI. J. Without deciding for the moment whether the Secretary has
proved that the dust truck brakes were defective, I find that even if the dust truck’s brakes were
operating optimally, any contact between the dust truck and a miner on foot or even on a piece of
equipment smaller than the dust truck carries a high likelihood of fatal injury. I agree with LaRue
that even if the truck were being driven no more than five to ten miles per hour, an impact with a
pedestrian could cause death. (Tr.291:2-4; 320:2-15) I also agree that any injury arising from this
violation would affect only one miner. (Tr.291:10-14)
I have found an underlying violation of 30 C.F.R. § 56.14100(c), a mandatory safety
standard. The operator’s failure to properly remove the Ford L9000 dust truck from service after
23

I suppose there is a non-zero possibility of a third alternative: The truck could have
developed the significant coat of dust on its windshield at some other location at the mine and
reversed all the way back to the top of the ramp. This seems not only highly unlikely but would
also constitute incredibly reckless behavior.

40 FMSHRC Page 916

defects affecting safety were observed contributed to a discrete safety hazard that the driver
would be unable to see while driving. Based on the extensiveness of the clay dust on the
windshield, as evidenced by the photos and testimony at hearing, I find the hazard was
reasonably likely to occur.
Assuming the occurrence of the hazard that the driver would have limited visibility, I find
it reasonably likely that an injury of a serious nature, possibly resulting in death, would occur
because the dust truck was operated near areas with heavy foot traffic and working miners.
Accordingly, I conclude this violation was S&S.
3. Negligence
LaRue designated the negligence for this violation as “moderate.” (Tr.291:15-292:13)
The March 22, 2015 pre-operation examination and “Do Not Operate” tag affixed to the truck’s
steering wheel demonstrate that ODPC’s management was fully aware of the defects on this dust
truck. (Tr.285:5-24; Ex. S–10, at 7) Further, any reasonably prudent person familiar with the
mining industry, the facts of this case, and the protective purpose of 30 C.F.R. § 56.14100I
would have followed the clear directive of the regulation and taken the truck out of service rather
than attempt to excuse the half measure of a “conditional” tag out for only one of the truck’s
defects as Respondent did here. LaRue gave an unconvincing explanation of why he considered
the negligence in this situation to be no more than “moderate.” He listed many of the things that
would support a finding of “high” negligence (Tr.289:13-20; 291:16; 292:1-8), but he ultimately
concluded that the negligence rating should be reduced to “moderate” because the violating
condition had not lasted more than four hours before he cited it. (Tr.291:15-24) I am not in full
agreement with this evaluation, but I will not alter his official negligence rating of “moderate.”
4. Penalty
I have reviewed and confirmed the data in Exhibit A to the Secretary’s Petition for
Assessment of Civil Penalty showing the number of production hours for the mine and the mine
controller, the number of prior violations per inspection days, the number of repeat violations,
the number of persons affected, the negligence points, the likelihood points, and the good faith
point reductions. Based on my gravity and negligence findings, and considering but not relying
on the point calculation in 30 C.F.R. § 100.3, the Secretary’s proposed penalty of $1,944.00 is
appropriate. I impose a penalty in that amount.24
J.

Citation No. 8820574 – Dust Truck Air Brakes
Docket No. SE 2015-0285
Exhibits S–11 and S–14 (Tr.312:22-313:11) and Exhibit R–21 (Tr.315:18-316:12)

The Secretary argues that Respondent violated 30 C.F.R. § 56.14101(a)(3) by failing to
properly maintain all braking systems on the Ford L9000 dust truck. The standard applies to self24

There is no need to adjust this penalty for the VPID distortion identified in relation to
the housekeeping violations. The VPID calculation for this violation does not have the same
defect.

40 FMSHRC Page 917

propelled mobile equipment and requires that all such equipment have a service brake system
capable of stopping and holding the equipment with its typical load on the maximum grade it
travels. The pertinent section of the regulation simply requires that all mobile equipment braking
systems be maintained in functional condition.
1. Violation
LaRue issued Citation No. 8820574 on March 24, 2015, alleging that Respondent failed
to properly maintain the air pressure on the service brakes of the Ford L9000 dust truck, which
allegedly affected the operator’s ability to stop the vehicle when activated. (Tr.317:8-13; Ex. S–
11) This is the same dust truck mentioned in Citation No. 8820573. (Tr.312:10-15) Gibens
accompanied Inspector LaRue on this portion of the inspection. (Tr.455:21-24)
LaRue opted to do a thorough inspection of the dust truck after dealing with the
obstructed windshield and ODPC’s failure to properly take the truck out of service. (Tr.313:1822) LaRue wanted to test the truck’s air brake system,25 but the truck could not be moved to
perform for the test prescribed in the regulation because it was tagged out. (Tr.372:13-14; see 30
C.F.R. § 56.14101(b)) Accordingly, LaRue deemed it appropriate to use an alternative test
method—a “stomp” test26—under the authority of 30 C.F.R. § 56.14101(b)(5), which allows an
inspector to rely on “other available evidence to determine whether the service brake system
meets the performance requirement of this standard.” (Tr.313:21-314:2; 371:2-372:21)
LaRue enlisted the truck’s driver to assist in performing the brake test. The driver started
the engine and allowed air pressure to build up. (Tr.313:20-22) LaRue testified that he preferred
to run the test with the engine on to simulate a more natural condition with the air compressor
pumping air into the system. (Tr.318:17-25) The driver then stomped on and held the service
brake pedal while LaRue checked for pressure drop-off on the pressure gauge on the truck’s
dashboard. (Tr.313:23-314:8; 409:8-10) LaRue testified that from his experience, he expected
25

Air brakes use compressed air and are comprised of three different braking
components: the service brake, the parking brake, and the emergency brake. (Ex. R–21, at 5-1)
An air compressor adds air into the system by pumping air into air storage tanks. (Id.) The air
compressor governor instructs the air compressor to pump more air into the system if the tank
pressure falls to the “cut-in” pressure level (around 100 psi) and to stop pumping if the tank
pressure rises to the “cut-out” pressure level (around 125 psi). (Id.) The service brake system
“applies and releases the brakes when you use the brake pedal during normal driving.” (Id.) The
“foundation brakes” include the brake chamber, the pushrod, the slack adjuster, camshaft, s-cam,
brake shoes, and drum brakes. (Id. at 5-2) When a driver presses down on the service brake, i.e.,
the brake pedal, compressed air is forced into the service brake side of the brake chamber. (Id.)
This air pressure initiates a sequential chain reaction—involving the pushrod, slack adjuster,
camshaft, s-cam, brake shoes, and brake drum—which causes the vehicle to stop. (Id.) When the
brake pedal is released, the compressed air is exhausted out of the system, thereby reducing the
air pressure in the tanks. (Id.) This lost air pressure is restored by the air compressor. (Id.)
Pressing and releasing the pedal unnecessarily can let air out faster than the compressor can
replace it. (Id.) The service brake component is the primary concern in this citation.
26

With the “stomp” test, the driver holds his foot on the brake pedal while watching the
pressure gauge to see if the pressure drops faster than is permissible. (Tr.409:6-10)

40 FMSHRC Page 918

any system checked in this manner to have an initial pressure drop of between 10 and 15 psi
from the normal operating value of 110 to 120 psi. (Tr.314:1-4; see also Ex. R–21, at 5-7 (noting
expected normal pressure drops during testing)) LaRue waited until after the initial 10 to 15 psi
pressure drop to start his measurement. (Tr.314:5-6) LaRue testified that, to his knowledge, a
drop in pressure of six psi within a 60 second period would qualify as a failure. (Tr.319:1-5) He
observed the air pressure drop nearly 30 psi—from 90 psi to near 60 psi—in less than a minute
(Tr.314:6-8), but stopped the test before discovering whether the truck’s air pressure alarm
would sound. (Tr.410:11-16) Additionally, LaRue also heard an audible air leak while standing
in the doorway of the operator’s cab. (Tr.314:9-11; Ex. S–11, at 2) From this, he concluded that a
component of the brake system was not functioning properly in violation of the regulation.
(Tr.314:15-17; 368:13-21) The citation was terminated by replacing the defective brake
chamber. (Tr.321:20-322:2)
This truck had a manufacturer-installed air pressure alarm system, which, according to
LaRue, was calibrated to activate if air pressure dropped below 60 psi. (Tr.317:21-318:2)
According to the Mississippi Professional Driver’s Manual for Commercial Driver Licenses,
there is a possibility that an air pressure warning signal might not work, causing a pressure drop
without the operator knowing it. (Tr.316:14-25; Ex. R–21, at 5-6) At this point, whether the
alarm system sounds or not, “uncontrolled actuation” of the air brakes occurs. (Tr.317:7-20) If
this occurs, the air brakes become less effective, but it is still possible to drive the truck long
enough to stop it safely. (Tr.316:23-317:13; 322:10-23; 369:19-21; 411:14-19; Ex. R–21, at 5-3)
As pressure continues to drop below the trigger point, typically 20 to 30 psi, the emergency
spring brake system is designed to “pop out” and engage, which stops the truck.27 (Tr.318:3-6;
see Ex. R–21, at 5-3)
As a preliminary matter, I conclude LaRue’s stomp test was an acceptable methodology
of “determin[ing] whether the service brake system meets the performance requirement of the
standard” given that a “Do Not Operate” tag was affixed to the steering wheel. See 30 C.F.R.
§ 56.14101(b)(5) (stating other available evidence may be used by an inspector if the equipment
is not capable of traveling at least 10 miles an hour). The test produced reliable, relevant data and
detected a significant air leak in a component of the brake system, which required replacement to
restore the brakes to full function.
Section 56.14101(a)(3) requires that “all braking systems [. . .] shall be maintained in
functional condition.” The Commission established a definition of “functional condition” in
Nally & Hamilton Enterprises, Inc., noting that “functional” means “‘capable of performing;
operative.’” 33 FMSHRC 1759, 1763 (Aug. 2011) (citing The American Heritage Dictionary of
the English Language 711 (4th ed. 2009)); see also Wake Stone Corp., 36 FMSHRC 825, 827
(Apr. 2014) (using the Nally & Hamilton Enterprises, Inc. definition of “functional” for section
56.14132(a)). Applied directly to section 56.14101(a)(3), an ALJ colleague stated, “[t]he
adjective ‘functional’ connotes something being able to perform its regular function, that is, it
[connotes] something being able to work as intended (see Webster’s Third New International
27

Air brakes actually use air pressure to release the vehicle’s parking brake (i.e., the
mechanical spring brake), allowing the vehicle to move. (Ex. R–21, at 5-3) If there is an air
pressure failure, the failsafe condition is for the spring brakes to engage and stop the truck.
(Tr.367:24-369:9; Ex. R–21, at 5-3)

40 FMSHRC Page 919

Dictionary 921 (1986) (Webster’s).” Daanen & Janssen, Inc., 18 FMSHRC 1796, 1807 (Oct.
1996) (ALJ).
Respondent argues there was an insufficient basis for LaRue to conclude the truck’s
brakes were not maintained in “functional condition” and that LaRue’s conclusion was arbitrary
and incorrect. (Resp’t Br. 10-11) I am unpersuaded. In Grace Pacific Corporation, a case cited
to by both parties, a water truck at an aggregate mine had an air leak in its brake system that
dropped system pressure by 28 psi when tested for one minute with the engine off.28 35
FMSHRC 3722, 3723 (Dec. 2013) (ALJ). The judge agreed with the Secretary and concluded
that a psi “lower than the acceptable level, leaving the brakes ineffective” to be indicative that
brakes were not maintained in “functional condition” and, therefore, in violation of section
56.14101(a)(3). Id. at 3724. Here, the drop in air pressure in one minute, 30 psi, was even greater
than that in Grace Pacific Corporation. Furthermore, the brake test in this case was conducted
with the engine on, allowing the air compressor to add more air into the system. (Tr.318:17-25)
Had LaRue opted to test the air brakes with the engine off like in Grace Pacific Corporation, the
air pressure could have dropped even more.
Respondent next cites to various failsafe and alarm systems on the truck that would alert
the driver that the air pressure in the brakes was too low and argues that the integrated system
was functional. (Resp’t Br. 6-7, 11) Had LaRue determined that the defect did not rise to the
level of rendering the brakes non-functional and therefore not a violation of the regulation, he
would have had to ignore the intent of the regulation and the Commission’s precedent on this
point. In Secretary of Labor v. Daanen & Janssen, Inc., the Commission was faced with the
question of how to interpret the language of 30 C.F.R. § 56.14101(a)(3) given “at least two
plausible and divergent interpretations.” 20 FMSHRC 189, 192 (Mar. 1998). The Secretary
argued that “the plain language of the standard mandates a finding of violation when a
component of the braking system is not maintained in functional condition, regardless of whether
the braking system is capable of stopping and holding the vehicle.” Id. at 192. The Commission
found the Secretary’s interpretation reasonable for four reasons.
First, because the term “system” entails an “interrelationship of component parts, it
follows that for the system to be considered functional, each of its component parts must be
functional.” Id. at 193 (emphasis added).
Second, the Secretary’s interpretation was preventative and sought to cure equipment
defects before serious accidents occurred, in line with the Mine Act’s goal of protecting the
safety of miners. Id.
Third, the Secretary’s interpretation was consistently applied through the implementation
of the PPM. Notably, the PPM provided, “[s]tandard [56].14101(a)(3) should be cited if a
component or portion of any braking system on the equipment is not maintained in functional
28

Although the Grace Pacific decision did not specify whether the brakes were tested
with the engine running or not, Citation No. 8691005 reads, “[t]he water truck brake system had
an air leak that dropped system pressure about 28 psi when tested for one minute with the engine
not running.” Government Ex. 1, at 1, 35 FMSHRC 3722 (Dec. 2013) (ALJ) (Docket No. WEST
2013-0162) (emphasis added).

40 FMSHRC Page 920

condition even though the braking system is in compliance with (1) and (2) above.” Id. at 194
(citations omitted).
Fourth and finally, the Secretary’s interpretation gave meaning to all subsections of the
standard. Id. Under the Secretary’s interpretation, subsection (a)(1) is a performance standard,
while subsection (a)(3) is a maintenance standard. Id. (emphasis added).
The Commission’s ruling in Daanen & Janssen makes it clear that subsection (a)(3) is
different than subsections (a)(1) and (a)(2) and that a braking system may violate (a)(3) even
though it passes the performance tests in (a)(1) and (a)(2). Thus, I conclude that the air leak that
LaRue’s stomp test detected in one of the dust truck’s pressure canisters rendered the truck’s
braking system non-functional and constituted a violation of 30 C.F.R. § 56.14101(a)(3).
2. Gravity and S&S
The Secretary argues that it is reasonably likely that an injury would occur, that the injury
could reasonably be expected to be fatal, and that one miner would be affected. The Secretary
also alleges this citation was S&S. The Secretary describes two possible situations that could
result in injury to a miner: (1) an increase in the truck’s stopping distance; or (2) the emergency
spring brake activating. (Sec’y Br. 44-45, citing Ex. R–21, at 5-6, 5-9) In the event that the
emergency spring brake were activated, the Secretary depicts a worst-case scenario where “such
a loss of air pressure is going to result in the driver losing full control of the vehicle.” (Id. at 45)
(emphasis added) Additionally, the Secretary argues the condition would not have been found or
corrected before an accident occurred. (Id., citing Tr.319) Finally, the Secretary alleges the dust
truck was regularly used to haul dust and operated around foot traffic with poor visibility, which
would have contributed to serious injuries had normal practices been continued. (Id.)
Respondent does not dispute there was a leak in the right front rear brake chamber or that
the air pressure dropped from 90 psi to 60 psi during LaRue’s test; rather, Respondent argues
that an injury would be unlikely because the truck had only been backed up a short distance to
the loading dock, the truck traveled at a low rate of speed, and there was no evidence of foot
traffic in the area when the truck was moved. (Resp’t Br. 11, citing Tr.459:15-18) Respondent
also argues injury would be unlikely because the brake system had an integral, dual-level failsafe
mechanism: (1) a low-pressure alarm that would alert the driver, giving the him or her sufficient
time to bring the truck to a controlled stop; and (2) the automatic emergency spring brake to lock
the truck down. (Resp’t Br. 7, 11-12).
On this point, I find serious inadequacies with both the Respondent and Secretary’s briefs
and the arguments in them. The Respondent focuses nearly exclusively on the facts at the time of
the citation and relies heavily on redundant safety measures, both contrary to Commission
precedent. The Commission has long held that an evaluation of the likelihood of injury should be
made “in terms of continued normal mining operations,” not just the snapshot at the moment of
the citation. U.S. Steel Mining, 7 FMSHRC at 1130. The Circuit Courts and Commission have
also held that redundant safety measures are irrelevant to all elements of the S&S analysis,
including the likelihood of an injury. Cumberland Coal, 717 F.3d at 1029; Knox Creek Coal, 811
F.3d at 162; Buck Creek Coal, 52 F.3d at 136; ICG Ill., LLC, 38 FMSHRC 2473, 2481 (Oct.
2016); Brody Mining, 37 FMSHRC at 1691; Cumberland Coal, 33 FMSHRC at 2369.

40 FMSHRC Page 921

The Secretary’s brief, on the other hand, reaches conclusions with only a trivial
consideration of the context and particular facts in this case. Both of the injury-producing
scenarios the Secretary describes—an increase in the stopping distance or the emergency spring
brake activating—require the air pressure in the system to drop below 60 psi. In contemplating
the likelihood of injury here, it is important to consider that the brakes were “double
chambered,” which means the air leak only occurred when the driver put his foot on the brake
pedal. (Tr.409:18-20; 411:12-13) It is also imperative to acknowledge the role the air compressor
and governor play in regulating and restoring air pressure. Indeed, the reason that Inspector
LaRue ran the “stomp” test with the dust truck engine on, despite the Mississippi Professional
Driver’s Manual instruction to “turn off the engine” (Ex. R–21, at 5-7), was that it simulates
“more of a natural condition” because “[t]he compressor is constantly building [air pressure] up.”
(Tr.318:21-23) The Secretary did not mention either of these points in his brief.
The Secretary also failed to discuss with any specificity how the truck’s speed, distance
traveled, and frequency of use affect the likelihood of injury. At hearing, Gibens testified the
maximum on-site speed allowed was 15 miles per hour (Tr.412:5-6), but the average speed
driven was estimated at 10 to 12 miles per hour. (Tr.412:10) Additionally, Gibens testified that,
depending on the season, the truck was driven as much as two times per day and as infrequently
as once a week or less. (Tr.403:12-14) On days when the truck was operated, it was driven less
than 500 yards a day. (Tr.411:18) The Secretary did not discuss any of these factors but simply
concluded, “[t]he vehicle was used regularly [. . .].” (Sec’y Br. 45)
The Secretary also failed to discuss factors that would bolster his argument. For example,
the Secretary did not discuss the terrain of the Ripley Mine and Mill, a consideration that is often
relevant in brake citation cases, despite discussion of it in the record. See, e.g., Grace Pacific, 35
FMSHRC at 3724 (mentioning the water truck operated on a grade of five to 10 percent);
Freeport McMoran Morenci, Inc., 35 FMSHRC 172 (Jan. 2013) (ALJ) (finding an accident was
likely given the truck had non-functional brakes and traveled at 35 miles per hour on dirt and
gravel haul roads with 10 percent grade and a continuum of hills); Dix River Stone Inc., 29
FMSHRC 186, 197 (Mar. 2007) (ALJ) (stating “the road’s grades must be kept in mind” where
the haul truck was parked on a slope with a grade range of four to six percent but would travel in
areas with a 10 percent grade and several turns, including a sweeping, long U-turn); Tide Creek
Rock Inc., 24 FMSHRC 201, 211 (Feb. 2002) (ALJ) (stating that even if a front-end loader with
non-functioning brakes only traveled down a hill one percent of the time, it establishes the
seriousness of violation). Although LaRue did not measure the grade since it did not seem
relevant to him at the time (Tr.325:23-24; 326:2-5), a noticeable slope leading out from the dust
chute is clearly visible in the video. (Ex. S–9, at 1:25) Gibens confirmed at hearing that the truck
traveled uphill and around the plant from the dust chute to the dump area. (Tr.413:6-12)
Nor did the Secretary discuss in any detail how the load would affect the truck’s ability to
brake; instead, the Secretary’s brief merely states the vehicle was used “to haul dust.” (Sec’y Br.
45) Other judges have factored the effect a heavy load has on the ability of a vehicle to brake,
especially when traveling on a grade. See, e.g., Knife River Constr., 36 FMSHRC 2176, 2178-79
(Aug. 2014) (ALJ) (concluding that a truck with partially defective brakes “carrying a heavy
load upon a steep grade” could reasonably likely cause a serious injury to miners); Freeport
McMoran Morenci, 35 FMSHRC at 175 (discussing possibility of “brake fade” when trucks
operate on a grade, particularly when carrying a heavy load); Nelson Quarries, Inc., 30

40 FMSHRC Page 922

FMSHRC 254, 283-84 (Apr. 2008) (ALJ) (finding S&S where truck with defective parking
brake traveled over grades of up to twelve percent and often traveled with a load of rocks). Here,
the citation indicates the truck was used to remove residual material during switchovers, and
LaRue’s notes state that the truck was “observed full.” (Ex. S–11, at 1-2)
Lastly, the Secretary thrice notes the truck was “operated around foot traffic” (Sec’y Br.
40, 45-46), but he leaves out important details, which provide context and substance. LaRue
testified at hearing that he was told by management that the dust truck was driven from the dust
chute near the verge storage tank area, through the plant by the parking lot, down a road between
the main administration building and the break room building, and ultimately dumped the dust
on the other side of the plant. (Tr.319:17-25) The dust truck’s path brought it in close proximity
to both foot and equipment traffic. (Tr.319:25-320:1) Gibens on cross examination agreed that
the dust truck was operated around foot traffic at the loading point and was normally driven to
the other side of the plant. (Tr.457:13-16; 459:2-4)
This is a close call. Taking the facts and arguments as outlined in the Secretary’s brief, I
would be inclined to believe that “uncontrolled actuation,” i.e., air pressure of 60 psi or lower,
was unlikely to occur and, accordingly, an injury would be unlikely. However, upon
consideration of the entirety of the record before me—notably the fact that the truck carried a
heavy load, traveled uphill from the dust chute to the dump point on the opposite side of the
mine, and traveled in close proximity to foot traffic—I can understand how a driver of the dust
truck could step on his brake pedal frequently enough to reduce air pressure in the system to
dangerous levels. Assuming continued normal operation without abatement of the air leak, I find
it reasonably likely that an injury would occur. My conclusion is strengthened by the fact that the
front windshield of the truck was covered by a significant amount of clay dust, obscuring
visibility for the truck driver. See discussion supra Section VI. I. 1.
With regard to the Secretary’s contention that an injury could reasonably be expected to
be fatal for one miner, I concur for the same reasons discussed above in Citation No. 8820573.
See discussion supra Section VI. I. 2.
I have found an underlying violation of 30 C.F.R. § 56.14101(a)(3), a mandatory safety
standard. The leak in the air brake system on the Ford L9000 contributed to a discrete safety
hazard that the driver would lose control of the vehicle. For the reasons stated above, particularly
because the truck traveled while carrying a heavy load uphill, I find it reasonably likely the air
pressure in the system would drop to levels where the hazard would occur. Assuming the
occurrence of the hazard, I conclude it is reasonably likely an injury would follow, especially
given that the truck was operated in close proximity to foot and equipment traffic. Because of the
size of the Ford L9000 dust truck, I find the injury would be of a reasonably serious nature,
possibly resulting in a fatality. Accordingly, I conclude this violation was S&S.
3. Negligence
The Secretary maintains that this violation arose from moderate negligence. LaRue
testified the air leak was audible even with the engine running. (Tr.314:10-11; Ex. S–11, at 2) He
also testified the leak was extensive: dropping 30 psi in 60 seconds. (Tr.314:6-8; Ex. S–11, at 2)
However, he testified that he could not show that Respondent had knowledge of the brake defect

40 FMSHRC Page 923

or that it had reason or occasion to have such knowledge. (Tr.321:8-17) Additionally, LaRue
could not show exactly how long the leak existed. (Tr.321:10-16; Ex. S–11, at 2) For him, this
mitigated the negligence designation to the moderate level.
Respondent argues that moderate negligence is not appropriate because the brake
deficiency was not previously known. (Resp’t Br. 6, 9) In support of Respondent’s argument, I
note there is no indication in the record before me that the failsafe low-air-pressure alarm system
had ever sounded, and, as LaRue confirmed, the air pressure level had not yet dropped low
enough to trigger the alarm during his stomp test. Additionally, the pre-operation examination
for the dust truck from March 22, 2015, did not mark “Brakes” or “Parking Brake” as being
problematic, despite noting other problems with the truck. (Ex. S–10, at 7) Nevertheless,
considering the totality of the circumstances and for the reasons stated below, I find sufficient
support in the record to establish that the citation was the result of moderate negligence.
First, the citation notes that standard 56.14101(a)(3) was previously cited two times in
two years at the mine. (Ex. S–11, at 1) Previous repeated violations and warnings from MSHA
should place an operator on “heightened alert” that more is needed to rectify the problem. IO
Coal Co., 31 FMSHRC 1346, 1356 (Dec. 2009), citing New Warwick Mining Co., 18 FMSHRC
1568, 1574 (Sept. 1996). However, both of these previous citations were issued to a contractor,
thus reducing any actual notice given to ODPC.
Next, although the checkboxes for “Brakes” and “Parking Brake” were not marked as
problematic, I note that “Obvious Damage or Leaks” was marked on the dust truck’s preoperation examination. (Ex. S–10, at 7) Curiously, neither party discussed this at the hearing nor
was it covered in the briefs. It is not clear from the limited reference—a single photo taken by
LaRue of the pre-operation examination—whether Hall was referencing the damaged headlight,
the leak in the air brake, or something else. Accordingly, this fact neither helps nor hinders a
finding of negligence.
The most convincing factors in support of a moderate negligence determination are the
extent and obviousness of the leak. Gibens agreed with LaRue that the air pressure bled down
from 90 psi to 60 psi in one minute with the engine running. (Tr.458:21-459:1) Gibens also
testified they measured the drop in air pressure while watching the air gauge on the truck’s
dashboard. (Tr.409:8-9) Given how quickly air left the system while pressing the brake pedal, a
reasonably prudent driver would have recognized that something was wrong had he or she
checked the air gauge while driving.
LaRue’s testimony also indicates the leak should have been obvious. LaRue testified that
he was standing in the doorway of the operator’s cab while the driver was conducting the stomp
test. (Tr.313:21-314:10) From that position, LaRue could hear the audible leaking of the air.
(Tr.314:10-11; Ex. S–11, at 2) With no direct refutation by Gibens at hearing, Respondent
attempts to undermine LaRue’s testimony in its reply brief:
[T]he Secretary outrageously claims that an air leak in the right
rear brake chamber could be heard from the left doorway of the
cab. Sec’y Br. at 44 (citing Tr. 313). There is simply no testimony
on page 313 about hearing an air leak. Even if such testimony
existed, it is questionable whether any weight should be given to

40 FMSHRC Page 924

this testimony given that LaRue did not record this key finding in
his field notes (S. 14, at 14), and it requires this Court to believe
that someone standing outside the front left side of a running truck
would be able to hear a leak on the opposite side of the truck.
Sec’y Br. at 46 (stating that the citation was terminated by
replacing the right rear brake chamber). S. 11, at 1.
(Resp’t Reply Br. 20) (emphasis in original)
I find multiple errors with Respondent’s argument. First, Respondent is correct that there
is no testimony regarding an audible air leak on page 313 of the transcript; however, had
Respondent checked the next page, it would have seen that LaRue testified that he could “hear
the audible leaking of air.” (Tr.314:10-11) Second, contrary to Respondent’s claim, LaRue did
record this key finding in his notes. In the negligence section of his Citation/Order
Documentation worksheet (MSHA Form 4000-49E) under “Justification,” LaRue wrote,
“Audible air leak.” (Ex. S–11, at 2) Finally, although Respondent frames the broken chamber as
the “right rear brake chamber,” the record states the leak came from the “right rear, front brake
chamber” (Ex. S–11, at 1) and “right front rear brake chamber.” (Tr.321:20-322:2) Respondent’s
choice to remove the word “front” comes across as a semantic attempt to distance LaRue from
the leaking brake chamber. In any event, I am convinced that LaRue could hear an air leak over
the roar of the engine, especially given how extensive the leak was. Accordingly, I credit
LaRue’s testimony that the air leak was audible from the driver’s position with the engine
running.
Viewing the totality of the circumstances, especially given the leak was audible and
extensive, I conclude the respondent exhibited moderate negligence.
4. Penalty
I have reviewed and confirmed the data in Exhibit A to the Secretary’s Petition for
Assessment of Civil Penalty showing the number of production hours for the mine and the mine
controller, the number of prior violations per inspection days, the number of repeat violations,
the number of persons affected, the negligence points, the likelihood points, and the good faith
point reductions. Based on my gravity and negligence findings, and considering but not relying
on the point calculation in 30 C.F.R. § 100.3, the Secretary’s proposed penalty of $1,944.00 is
appropriate. I impose a penalty in that amount.29
K.

Citation No. 8820571 – Illumination of Verge Storage Tank Area
Docket No. SE 2015-0285
Exhibits S–8 and S–9 (Tr.301:24-302:7)

29

There is no need to adjust this penalty for the VPID distortion identified in relation to
the housekeeping violations. The VPID calculation for this violation does not have the same
defect.

40 FMSHRC Page 925

The Secretary alleges that Respondent violated 30 C.F.R. § 56.17001 by failing to
provide sufficient lighting around the verge storage tanks.30 (Tr.301:1-5; Exs. S–8, S–9) The
standard states, “[i]llumination sufficient to provide safe working conditions shall be provided in
and on all surface structures, paths, walkways, stairways, switch panels, loading and dumping
sites, and work areas.” 30 C.F.R. § 56.17001.
1. Violation
Inspector LaRue issued Citation No. 8820571 on March 23, 2015, alleging that three
lights were not working at and around the verge storage tanks. (Ex. S–8, at 1) Specifically, the
Tank 10 light was out, the Tank 9 light shone up but would not shine down,31 and the light on the
south side of the verge building was out. (Id.) Exhibit S–9 is a video LaRue made of the area
after dark, showing the conditions described in the citation and in his testimony. (Tr.301:6-17)
The Secretary argues that the scenes captured in the video accurately show (1) the relative lack
of illumination in the area; (2) the accumulated material on the floor with miner footprints; and,
(3) the general location, dimensions, and arrangement of structures relevant to LaRue’s
determination that what he saw and filmed created a slip–trip–fall hazard, which was
compounded by the lack of adequate lighting. (Sec’y Br. 34-36; Tr.301:14-17; Ex. S–9)
LaRue testified about the layout of the area and the condition of the floor. (Tr.303:3304:12) The floor surface was part concrete, part plate steel. (Tr.300:3-12) It was ramped up in
places and down in others. (Tr.303:10-11) The floor was covered by wet material showing
footprints from traffic through the area. (Tr.303:3-7) LaRue testified that miners periodically
transited the area to perform maintenance and to access the Main Control Center (“MCC”).32
(Tr.303:18-24)
LaRue determined the verge storage tank area was a working area because maintenance
work was done there on a periodic but regular basis. (Tr.309:25-310:14) He also determined that
the area included surface structures, a path, and a walkway. (Tr.309:4-16) No measures had been
taken to restrict access to the area to daytime only. (Tr.305:12-14; 310:2-4) Under normal and
continuing mining conditions, miners could travel through or work in that area day or night,
without restriction, to get parts, use the elevator, or to access the MCC room. (Tr.309:23-310:14)
By interviewing Respondent’s management and hourly employees, LaRue determined
that of the five employees in the verge storage tank area at the time of the citation, two
supervisors and one hourly employee did not have flashlights as a back-up measure; the other
two (hourly employees) did. (Tr.304:21-305:11)
30

For a discussion about the “verge” product, see discussion infra Section VI. L. 1.

31

While the written citation states, “tank 9 light would not shine down only up,” I note
that the video evidence only shows a non-lit light in Tank 9. (Ex. S–9, at 3:20) While observing
Tank 9 in the video, Inspector LaRue commented, “[t]his light was not working. The electrician
is currently working on it.” (Id. at 3:20-3:23) During the filming, no further comment was made
regarding the specific defect with the light in Tank 9.
32

The MCC is the main electrical control room, which houses breakers and control
switches for various parts of the plant. (Tr.267:4-6; 303:18-22; 362:25-363:7)

40 FMSHRC Page 926

Based on his familiarity with an earlier and, in his opinion, similar fatality case in
Georgia and his knowledge about safe and acceptable light levels in similar work installations,
LaRue concluded there was insufficient illumination in the verge tank area to provide safe
working conditions. (Tr.308:8-309:3) He did not have or use a light measuring meter to back up
his assessment (Tr.364:13-18); however, he was generally aware that a light intensity level of 30
lumens was accepted as a safe illumination level for manufacturing and warehouse facilities.
(Tr.308:18-20) LaRue testified that from his experience dealing with issues of adequate
illumination, he had a sense of when the illumination level was below 30 lumens. (Tr.308:11-17)
He believed that the light level in the verge storage tank area was below 30 lumens in the cited
area. (Tr.308:18-22)
The following summarizes my impressions when viewing the video, Exhibit S–9.
Starting at 2:21, the video shows how dark the stairway is that leads down to the verge loadout
area. The stairway is an access way for the MCC. LaRue uses his flashlight to point out features
in the area; the lighting is so poor that nothing would be visible without the flashlight. The
distance in linear feet that is in the dark is not very great—it appears to be less than 20 feet. (Ex.
S–9, at 2:59) Tanks 7 and 8 have sufficient lighting to navigate safely. (Id. at 3:00) Exiting Tank
8, there is a slick walkway and accumulated mud. (Id. at 3:09) The lighting is too dark to see any
detail. LaRue uses his flashlight again in this area to show the floor and the accumulations. (Id. at
3:12) The entire distance from Tank 8 to Tank 9 is in darkness. (Id. at 3:16) LaRue shows a nonfunctioning ceiling light in Tank 9 with his flashlight. (Id. at 3:22) The area under Tank 10 is too
dark to see without a flashlight. (Id. at 3:30) Multiple footprints are visible. The area leading to
Tank 10 is too dark to transit safely. A light is burned out in Tank 10. (Id. at 3:35) With the
exception of Tanks 7 and 8, the entire area shown in the video is too dark to walk through safely
without a flashlight. It appears to be a maze of passageways comprising tens of yards of distance.
Without the flashlight, it would not be possible to see any detail on the floor. (Id. at 3:45)
Outside the tank area, looking away from the verge tanks, it is too dark to see the floor safely.
(Id. at 4:00) LaRue points out another non-functioning light in the distance. (Id. at 4:04) There is
another green light off to the right side, but it does not provide enough light to make it safe to
walk in the area where he is taking the video.
Respondent asserts there was sufficient lighting in the verge area based on Gurley’s
testimony. (Resp’t Br. 35, citing Tr.471:18-19; 473:9-18; 474:9-14) Though Respondent
concedes that the light in Tank 10 was out and another light in Tank 9 was directed up and away
from the floor area (Id.), Gurley testified that the MCC’s internal lights were working
(Tr.471:20-24), there was enough light for him to see where the steps were in the staircase going
down to the verge area (Tr.471:15-19), and there was more than enough lighting to provide
sufficient illumination outside the verge tanks. (Tr.473:12-18; 474:9-14; 475:2-4) Respondent
attempts to discredit Inspector LaRue’s lumen assessment by arguing “[t]he subjective opinion of
an MSHA inspector is insufficient to establish a violation.” (Resp’t Br. 37, citing Lehigh Sw.
Cement Co., 33 FMSHRC 340, 342 (Feb. 2011) (ALJ) (vacating illumination citation where
inspector failed to use a light meter)). Contrary to Respondent’s argument, an experienced
inspector can give opinion estimates of a technical nature based on his experience. See, e.g.,
Centre Crown Mining, LLC, 33 FMSHRC 428, 435 (Feb. 2011) (ALJ) (where the court credited
an Inspector’s expert opinion that the volume of air flow fell below the required minimum based
on his unmeasured observation). It is important to note here that Lehigh Southwest, which
Respondent has cited to, does not stand for the proposition that an MSHA inspector must use a

40 FMSHRC Page 927

light meter to determine the sufficiency of light in a room. The judge held in that case that “one
must take into consideration the work being performed in the cited area” to determine “whether
the illumination was sufficient to ‘provide safe working conditions.’” Lehigh Sw. Cement Co., 33
FMSHRC at 343. There, the cited area functioned primarily as a breakroom for miners rather
than as a traditional working area. Id. Additionally, based on the photographic evidence and
testimony, the judge found that natural light entered the room from a doorway and windows and
there was ambient light from a television in the room. Id. The judge concluded after looking at
the photographs that the room was “not so dark that it presented a significant hazard to miners,
especially considering the purpose of the room.” Id.
I have viewed the video evidence and, especially considering the purpose of the area,
hold that LaRue’s unmeasured assessment of light levels is admissible and convincing.
Furthermore, after viewing the video, I conclude there was insufficient lighting to provide safe
working conditions everywhere in the verge area at night except at Tank 7 and Tank 8. My
conclusion is bolstered by the fact that but for the flashlight Inspector LaRue used to light his
path in the video, it would have been nearly impossible to see.
Respondent next contends that, even if the area was too dark to provide safe working
conditions, supplemental lighting was easily available, whether in the form of portable lights,
flashlights, or personal cellphones. (Resp’t Br. 35-36). I am not persuaded. Although the record
indicates that portable, temporary lights were obtained and used in the verge area to terminate the
citation (Tr.310:18-21; 365:23-366:14; Ex. S–8, at 2), nothing in the record suggests they would
have been used in the area but for LaRue’s citation. Respondent’s assertion that flashlights
would be used by miners in the area at night is also unsupported by the record: Only two of five
night-shift employees questioned by LaRue were carrying flashlights. (Tr.305:7-11; Ex. S–8, at
4) Notably, two of the three employees who did not have flashlights were supervisors.
(Tr.305:10; Ex. S–8, at 4) Finally, Respondent’s suggestion that workers could use personal
cellphones to illuminate the area (Resp’t Br. 36, citing Tr.365:13-15) is similarly unconvincing.
While cellphone usage is now ubiquitous, I note the standard’s language instructs that
illumination sufficient to provide safe working conditions “shall be provided.” Presumably, the
operator, not the individual miner, shall do the providing. I hesitate to believe that the drafters of
the regulation intended for operators to pass this significant responsibility to its workers.
Respondent also claims that the verge storage tank area is not a work area because verge
storage and loading are not usually done during evening hours. (Resp’t Br. 34) Additionally,
Respondent states the area is rarely accessed and the only reason to access the area is for
greasing of a bulk loading bucket conveyor for the verge product that ran through the area. (Id.,
citing Tr.303:13-21; 418:18-419:16) Respondent argues this work was done by a contractor
during daytime hours, when natural light provided sufficient illumination in all areas. (Id., citing
Tr.363:17-19; 470:4-19)33
Key to the resolution of this issue is the nature and location of the MCC. Previous
Commission decisions require that analysis of a sufficient lighting controversy focuses on the
33

However, the record shows that although the maintenance work was done by
contractors, the bulk loading of the verge product was done by regular plant employees.
(Tr.419:6-9)

40 FMSHRC Page 928

specific facts of the case. It is significant whether work is actually or likely done at night in a
given area, and whether there are alternatives or work-arounds that would give miners the option
to work and move about without accessing the contested area. For example, in Capitol
Aggregates, Inc., 3 FMSHRC 1388 (June 1981) (cited by Respondent), the Commission’s ruling
focused on whether there was an available alternative to miners that would allow them to
perform a needed function without having to transit a poorly lit area. The Commission held that
the existence of a work-around possibility undercut the inspector’s determination that the work
place in question was not safely lit. Id. at 1390. Miners could, but did not have to, access the
cited area to do essential functions at night. Id.
Here, there is little doubt that the MCC is an area where “work” is or may be performed
any time the plant is in operation.34 Although the Respondent downplayed the significance of the
total-plant switching and monitoring functions done from the MCC (Tr.471:25-472:5), there is
no evidence to support nor argument proffered that access to the MCC through the verge area
was not essential to the safe operation and control of the entire plant facility. (See Tr.267:1-6)
The MCC contains alarms and read-outs for material depths and production speed which, in
LaRue’s opinion, would need to be checked frequently. (Tr.239:7-13) It is beyond peradventure
that any time the plant operates, it is essential that the switching circuits in the MCC must be
accessible because of the crucial need to be able to use them to perform lock-out/tag-out and
reset overloads. (Tr.303:18-22; 309:19-20; 472:2-3)
The MCC was the only place where essential plant operations could be done, e.g.,
switching off electrical equipment for safety purposes. (Tr.267:3-6; 303:18-24; 309:17-20;
471:25-472:5) If it were necessary to switch off equipment at night, the only place to do it was at
the MCC. (Tr.310:7-11) The MCC could only be accessed through the verge storage tank area
(Tr.471:20-22; Ex. S–9, at 1:14, 2:46), where Inspector LaRue determined the lighting was
insufficient and the floor conditions created a slip–trip–fall hazard.35 The evidence also confirms
that personnel working in the verge storage tank area accessed the MCC area as needed.
(Tr.362:25-363:7) In addition to the contract personnel who performed periodic maintenance
there, regular employees who loaded bulk verge also transited the verge storage tank area as
needed. (Tr.269:18-270:4; 418:18-419:9) Notably, contrary to Respondent’s assertion that
nobody worked in the area at night, Gurley testified that the maintenance person who worked in
the verge area worked the second shift, 5:00 p.m. to 1:00 a.m., a period during which it would be
dark for at least half of the time. (Tr.470:15-471:4)
In this case, the existence of substantial material accumulations and the footprints in them
suggests that either there was no workable means of avoiding the cited area, or, as a matter of
practice, miners chose to and were allowed to move through the area. This, combined with the
presence of the MCC in the area, makes it convincingly likely that such traffic occurred at night
when the lighting was such as seen in the video. (Ex. S–9) Admittedly, based on the record
before me, there is no way to determine with certainty that the footprints visible in the
34

The plant was operating twenty-four hours a day, seven days a week at the time of this
citation. (Tr.464:19-21)
35

LaRue testified that he did not see anyone going into or out of the MCC during his
inspection. (Tr.362:21-24)

40 FMSHRC Page 929

accumulated material were made at night. Nevertheless, even assuming that all of the foot traffic
that made the prints occurred during daylight hours, there is sufficient evidence that people could
transit or access the verge storage tank area at night—whether to merely go from one point to
another, to do maintenance work, or to access the MCC room—to establish that the passageways
and work areas in the vicinity of the verge tanks at night were not sufficiently lit or cordoned off
to make it safe for a person to move through or work in the area.
Based on the above, I find there was insufficient illumination provided to provide safe
working conditions in the cited area at night. This constituted a violation of 30 C.F.R.
§ 56.17001.
2. Gravity and S&S
Inspector LaRue determined that an injury was reasonably likely to occur. (Tr.306:4-18;
Ex. S–8, at 1, 4) I concur. Despite Respondent’s arguments to the contrary, I find it reasonably
likely that personnel would transit the cited area at night given the essential nature of the
functions controlled by the adjacently located MCC. Additionally, Gurley testified that the
maintenance person who worked in the verge area worked the second shift, between 5:00 p.m.
and 1:00 a.m. (Tr.470:15-471:4) I also note that no barricades or other means of preventing
access and exposure at night were in place at the time the citation was issued. (Tr.305:12-21) The
area was dark and had wet, slippery mud on uneven ground with tripping hazards, which would
have likely contributed to an injury had normal practices been continued. (Tr.306:4-20; Ex. S–9,
at 2:38-3:12) I also concur with LaRue’s conclusion that the resulting injury—a muscle or joint
injury—could reasonably be expected to result in lost workdays or restricted duty for one person.
(Tr.306:18-307:14; Ex. S–8, at 1, 4)
I have found an underlying violation of 30 C.F.R. § 56.17001, a mandatory safety
standard. The lack of adequate lighting in the verge tank area created a discrete safety hazard that
a miner could slip, trip, or fall as a result of the poor lighting. It is reasonably likely that
personnel would transit the area at night given the location of the MCC and the essential nature
of the functions it controlled. It is also reasonably likely that the poor lighting conditions would
result in a slip, trip, or fall hazard, especially given the obscured and uneven floor surface and the
accumulation of verge material on the floor. Assuming the occurrence of the hazard, it is
reasonably likely that an injury would result. The injury would be of a reasonably serious nature,
possibly a muscle or joint injury resulting in lost workdays or restricted duty. I conclude this
violation was S&S.
3. Negligence
Inspector LaRue evaluated the negligence for this violation as “moderate” because the
darkened area was obvious, observable from multiple points, and the number of non-functioning
lights was extensive. (Tr.307:23-308:3; Ex. S–8, at 1, 4) Although LaRue did not note any
mitigating circumstances, he nonetheless felt the citation did not warrant a high negligence
designation. (Tr.307:17-22) In his brief, the Secretary argues that the Court should consider high
negligence and at least affirm the moderate negligence designation. (Sec’y Br. 38)
The numerous footprints in the accumulated material on the work area floor are evidence
that Respondent’s management had reason to be aware of actual or potential foot traffic through

40 FMSHRC Page 930

this area. Notably, the essential plant-wide functions controlled from the MCC made it likely that
personnel would transit the area at all times, including nighttime hours. Additionally, the
violation was extensive: three lights were not functioning. The fact that remedial action was
required should have been obvious, especially when juxtaposing the lighting in Tanks 7 and 8
and the darkness in Tanks 9 and 10. (See Ex. S–9, at 2:55-3:40) I note that the Secretary did not
establish how long the violation lasted. LaRue’s field notes state “unknown existence.” (Ex. S–8,
at 4) Considering the totality of the circumstances, I agree with Inspector LaRue and conclude
that this violation was the result of moderate negligence.
4. Penalty
I have reviewed and confirmed the data in Exhibit A to the Secretary’s Petition for
Assessment of Civil Penalty showing the number of production hours for the mine and the mine
controller, the number of prior violations per inspection days, the number of repeat violations,
the number of persons affected, the negligence points, the likelihood points, and the good faith
point reductions. Based on my gravity and negligence findings, and considering but not relying
on the point calculation in 30 C.F.R. § 100.3, I find the Secretary’s proposed penalty of $585.00
is appropriate. I impose a penalty in that amount.36
L.

Citation No. 8820575 – Working Place Examination of Verge Storage Tank Area
Docket No. SE 2015-0285
Exhibits S–12 and S–9 (Tr.276:3-9; 301:24-302:7)

The Secretary alleges that Respondent violated 30 C.F.R. § 56.18002(a) by failing to
designate a competent person to examine the verge storage tank area for safety or health hazards.
(Tr.264:22-265:5; Ex. S–12) The standard requires that a “competent person designated by the
operator [ ] examine each working place at least once each shift before miners begin work in that
place, for conditions that may adversely affect safety or health.” 30 C.F.R. § 56.18002(a).
1. Violation
Inspector LaRue issued Citation No. 8820575 on March 24, 2015. He was accompanied
by Gibens during this portion of his inspection. (Tr.459:22-25)
The verge storage tanks37 are used to store “verge,” a “finished good” produced by the
plant. (Tr.418:17) The product is a refined granule made from clay fines that is extruded and
spheronized to be perfectly round. (Tr.416:14-417:21) After the product is made, it is stored in
bulk at the verge tanks until it is loaded on trucks and in railcars for shipment. (Tr.417:22-418:4)
The tanks are essentially large bins made of solid material. (Tr.473:4-8) The tanks are not used in
the making of this product, only its post-production storage. (Tr.418:5-7)
36

There is no need to adjust this penalty for the VPID distortion identified in relation to
the housekeeping violations. The VPID calculation for this violation does not have the same
defect.
37

For a visual image of the verge storage tank area, see Exhibit S–9 starting at 2:50.

40 FMSHRC Page 931

While observing the verge storage tank area the night before on March 23, 2015, LaRue
noted almost one hundred percent coverage of footprints in wet mud/clay. (Tr.266:23-267:15;
268:3-12; see Ex. S–9, at 2:50) After questioning management and rank-and-file personnel,
LaRue realized that no workplace examination occurred in the area over the past year because
nobody was able to produce records of the examination and nobody claimed that such records
existed. (Tr.267:16-22; 269:3-4; 273:7-9) The various groups—verge personnel, maintenance
personnel, and bagging personnel—each deflected the responsibility when asked. (Tr.269:5270:4)
The next morning on March 24, 2015, LaRue continued to attempt to determine who was
responsible for conducting workplace examinations in the verge storage tank area. (Tr.270:1416) LaRue met with Mr. Cox, Superintendent Gibens, and Billy Albertson, a supervisor.
(Tr.270:23-271:10; Ex. S–12, at 2) None of these individuals disputed that the verge storage tank
area was a working place, which indicated to LaRue that they understood the regulation the same
way he did. (Tr.361:4-9) LaRue recalls that Cox of the production department was eventually
deemed to be responsible for the area. (Tr.270:16-18) Cox thought the verge department was in
charge of conducting workplace examinations in the area. (Tr.270:23-25) After the citation was
terminated, management decided that the verge department would be responsible for working
place examinations in the area going forward. (Tr.275:18-23; Ex. S–12)
Inspector LaRue testified that he thought Citation No. 8820575 was appropriate because
people were working in and traveling through the verge storage tank area, justifying its being
classified as a working place. (Tr.272:10-15) Albertson told LaRue that maintenance contractors
were assigned to do lubrication work on the elevator and equipment in the verge area at least
once a week. (Tr.271:8-21; 356:20-357:4) In addition to these independent contractors
(Tr.469:19-470:8), Gibens testified that plant employees would occasionally go in for the
purpose of “loading the bulk.” (Tr.419:6-9) Although Gibens was specifically responsible for the
processing department (Tr.181:8-10), he estimated that fifty to sixty percent of verge business
involved bulk bags, which did not require the storage tanks. (Tr.417:24-418:2) Gibens testified
he agreed with LaRue’s notes that Respondent failed to ensure examinations were being done in
violation of section 56.18002(a). (Tr.461:5-8) Additionally, he agreed with the statement that the
verge group thought that maintenance was doing the inspection and vice versa. (Tr.460:23461:4)
Respondent argues that this citation should be vacated for the following reasons: (1) 30
C.F.R. § 56.18002(a) limits the requirement to perform workplace exams to “mining or milling”
areas, and the verge area was neither (Resp’t Br. 14); (2) the verge storage tank area is a postproduction storage location merely waiting for bulk shipment off premises and, therefore, not a
“working place” (Id.); (3) it had in place an SOP that determined, in reference to MSHA’s thenrelevant PPL, the verge area was not covered by the regulation (Id. at 15-16); (4) the
maintenance workers who worked in the verge storage tank area were non-miner contractors (Id.
at 17); (5) only maintenance and repair activities took place there, and these activities are not
covered by the requirement (Id. at 20); and, (6) even if the verge storage tank area were a
working place, ODPC did not have fair notice. (Id. at 19-20) I shall address each of these
arguments below.

40 FMSHRC Page 932

(a) The Verge Storage Tank Area is in the “Mining or Milling” Process
First, the regulation can only apply if the verge tank area is determined to be part of a
mine. The Mine Act at 30 U.S.C. § 803 states, “Each coal or other mine [. . .] shall be subject to
provisions of this [Act].” At 30 U.S.C. § 802(h)(1)(C), Congress defined the term “other mine”
as “lands, [. . .] structures, facilities, equipment, machines, tools, or other property [. . .] used in,
or to be used in, the milling of [. . .] minerals, or the work of preparing [. . .] minerals [. . .].”
(emphasis added). For this purpose and paraphrasing somewhat, the area must be a location
where milling or preparing of minerals is done, or comprise structures, facilities, or equipment
used in the work of preparing or milling minerals.
Second, the preparation and storage of the verge product must come under the definition
of milling. Milling operations are covered by Section 3(h)(1) of the Mine Act, but not defined
there. The definition is found in the MSHA–OSHA Interagency Agreement38 in Appendix A:
Milling is the art of treating the crude crust of the earth to produce
therefrom the primary consumer derivatives. The essential
operation in all such processes is separation of one or more
valuable desired constituents of the crude from the undesired
contaminants with which it is associated.
MSHA–OSHA IA, 44 Fed. Reg. at 22,829. The types of milling processes over which MSHA has
jurisdiction under the Interagency Agreement include crushing, grinding, pulverizing, sizing,
concentrating, washing, drying, roasting, pelletizing, sintering, evaporating, calcining, kiln
treatment, sawing and cutting stone, heat expansion, retorting (mercury), leaching, and
briquetting. Id.
These authorities provide some contour to the definition of “milling,” but it is still
ambiguous. Section 802(h)(1) of the Mine Act provides helpful guidance in this situation. 30
U.S.C. § 802(h)(1). In making a “determination of what constitutes mineral milling [. . .], the
Secretary shall give due consideration to the convenience of administration resulting from the
delegation to one Assistant Secretary of all authority with respect to health and safety of miners
employed at one physical establishment.” Id. The legislative history of the Mine Act reveals a
congressional intent to interpret what is considered to be a mine broadly and resolve
jurisdictional doubts in favor of coverage under the Mine Act. S. Rep. No. 95-181, at 14 (1977),
reprinted in Senate Subcomm. on Labor, Comm. on Human Res., 95th Cong., Legislative
History of the Federal Mine Safety and Health Act of 1977, at 602 (1978); see Dicaperl Minerals
Corp., 28 FMSHRC 720, 726 (July 2006) (ALJ).
Further analysis is required to determine whether the Secretary’s interpretation of
“milling” deserves deference. If it does, it takes us one step closer to interpreting whether the
38

The Interagency Agreement is an agreement entered into between MSHA and OSHA
to “delineate certain areas of authority, set forth factors regarding determinations relating to
convenience of administration, provide a procedure for determining general jurisdictional
questions, and provide for coordination between MSHA and OSHA in all areas of mutual
interest.” MSHA & OSHA, Interagency Agreement, 44 Fed. Reg. 22,827 (Apr. 17, 1979),
amended by 48 Fed. Reg. 7,521 (Feb. 22, 1983) [hereinafter MSHA–OSHA IA].

40 FMSHRC Page 933

verge storage tank area should be considered a “working place” for enforcement purposes.
Deference is accorded to “an agency’s interpretation of the statute it is charged with
administering when that interpretation is reasonable.” Energy W. Mining Co. v. FMSHRC, 40
F.3d 457, 460 (D.C. Cir. 1994) (citing Chevron, U.S.A., Inc. v. Nat. Res. Defense Council, Inc.,
467 U.S. 837, 844 (1984)); see also Sec’y of Labor v. Cranesville Aggregate Co., 878 F.3d 25
(2d. Cir. 2017) (noting that Secretary’s reasonable determination regarding which conditions are
to be regulated by MSHA and which by OSHA is entitled to “substantial deference”). The
agency’s interpretation of the statute is entitled to affirmance “as long as that interpretation is
one of the permissible interpretations the agency could have selected.” Watkins Eng’rs &
Constructors, 24 FMSHRC 669, 673 (July 2002) (citations omitted). When an agency “fills in a
space” in a statute it is charged with administering, its interpretation is given Chevron deference.
Id.
LaRue concluded that the verge tanks were being used in a milling process when he cited
the plant for a violation. (Tr.360:3-5) His point of reference was the then-relevant PPL. (Ex. R–
18)39 LaRue conceded that he had no idea why the area was called “verge” or what was in the
tanks. (Tr.265:14-22) But at the hearing, he explained that, to his understanding, the verge area
was the final part of the milling process. (Tr.360:19-20)
Jurisdictional cases provide a starting point for my analysis. The decision in Donoho Clay
Company, 3 FMSHRC 2381 (Oct. 1981) (ALJ), departed significantly from what had seemed to
be a core characteristic of a milling operation under the Interagency Agreement, i.e., separating
more valuable constituents of the crude material. As such, Donoho provides guidance as to
whether verge storage can constitute “milling.” The production of Meltzona, a product made at a
similar point in the preparation cycle and very similar in composition to verge pellets, was
determined to be a milling operation. Meltzona was made from a naturally occurring refractory
clay that required principally milling processes to produce a marketable product, very similar to
the verge product in this case. The issue in Donoho was whether the operator’s plant was a
milling operation, and therefore part of a “mine” under section 3(h)(1) of the Act and subject to
MSHA’s jurisdiction, or whether it was a refining operation, and therefore subject to OSHA’s
jurisdiction under the MSHA–OSHA Interagency Agreement.
Donoho’s mixing and blending of clay with other products was not seen strictly as an
“essential operation,” a defining characteristic of a milling process as mentioned in the
Interagency Agreement. It did not increase the purity of the clay—but simply changed its nature
and level of refractoriness. Similarly, Respondent’s production of verge from waste clay fines,
which had already been refined to produce other clay products, did not increase the purity of the
clay but simply formed it into a size and shape that was necessary for its use in various products
or processes.
The Donoho decision focused more on the continuity of process and less on the apparent
arbitrariness such a narrow “essential operation” analysis would impose. The “essential
39

MSHA’s PPL in place at the time of the inspection states that “working places” must
be inspected. (Ex. R–18) It uses the definition of “working place” found at 30 C.F.R. § 56.2:
“any place in or about a mine where work is being performed.” This is broad enough on its face
to encompass milling activities, but there is no specific reference to milling.

40 FMSHRC Page 934

operation” test was distinguished as contrary to the language in the Act’s legislative history that
encouraged MSHA to assert jurisdictional authority over facilities and processes where
convenience and ease of enforcement were served.
It is not apparent from the Donoho decision whether the Meltzona product was ultimately
packaged or kept in bulk for shipment to customers, but it is clear that the process of making the
products, Meltzona in Donoho and verge here, can be considered a milling operation, and
therefore part of a “mine” under section 3(h)(1) of the Act and subject to MSHA’s jurisdiction.
The processing of the two products is identical for analytical purposes. I conclude that the
production of verge is a milling operation and is covered by the Mine Act.
The next step is to determine whether storage of the verge product is also covered under
the Mine Act as a milling activity. The Interagency Agreement expands the scope of what can be
considered a milling process “to apply to mineral product manufacturing processes where those
processes are related, technologically or geographically, to milling.” MSHA–OSHA IA, 44 Fed.
Reg. at 22,828. The Secretary has also recognized that “[n]otwithstanding the clarification of
authority provided by Appendix A, there will remain areas of uncertainty regarding the
application of the Mine Act, especially in operations near the termination of the milling cycle
and beginning of the manufacturing cycle.” Id.40
In Austin Powder Company, 37 FMSHRC 1337, 1355 (June 2015) (ALJ), a broad reading
of the Act supported the inclusion of a storage area under MSHA’s jurisdiction. The storage
facility contained explosives used both at the subject quarry and at other sites. It was within onetenth of a mile of the rest of the mine, and was geographically close enough to the area where
minerals were actually extracted to be included in the definition of a mine.
Respondent’s production of verge spheres from waste clay material that has been
“milled” is in the grey area between milling and manufacturing. Nonetheless, the Mine Act and
related documents provide sufficient clarity about what to do in this situation. The technical
difference between milling and manufacturing does not stand in the way of ease of application,
particularly where, as here (and in Austin Powder), the storage is done in the same physical area
where the milling is done. The argument that storage is not part of milling is inconsequential in
light of the Act’s preference for unified MSHA coverage of processes related to mining and
milling activities. See VenBlack, Inc., 7 FMSHRC 520, 534 (Apr. 1985) (ALJ). I conclude that
verge storage is sufficiently related to milling to satisfy the Mine Act’s preference for unitary
MSHA coverage.
(b) The Verge Storage Tank Area Conforms to the Definition of a “Working
Place”
Per the authorities cited above, MSHA’s interpretation of what constitutes a “working
place” is entitled to full deference unless the interpretation is unreasonable, plainly erroneous, or
inconsistent with the regulation, or there is reason to suspect it does not reflect the agency’s fair
40

The Commission has also observed that “‘milling’ and ‘preparation’ can be perceived
as words used, in a loose sense, interchangeably to describe the entire process of treating mined
minerals for market.” Kerneos, Inc., 37 FMSHRC 719, 721 (Apr. 2015) (ALJ) (internal citations
omitted).

40 FMSHRC Page 935

and considered judgment on the matter. See discussion supra Section IV. F. The working place
examination standard was “drafted in general terms in order to be broadly adaptable to the
varying circumstances of a mine” and, therefore, is appropriate for application of the reasonably
prudent person standard. Sunbelt Rentals, Inc., 38 FMSHRC 1619, 1627 (July 2016) (quoting
FMC Wyo. Corp., 11 FMSHRC 1622, 1629 (Sept. 1989)).
Respondent reiterated the position in its briefs that the verge storage tank area is a
“storage tank,” (Resp’t Br. 14, 16, 18-19; Resp’t Reply Br. 21, 23-24), or “storage area,” (Resp’t
Reply Br. 23), but not a “working place.” Within the definition section for surface metal and
nonmetal mines, the verge storage tanks only appear to fit into five possible categories: (1)
storage facility; (2) storage tank; (3) magazine; (4) travelway; or, (5) working place. I will
consider each in turn.
A storage facility is defined as “the entire class of structures used to store explosive
materials. A ‘storage facility’ used to store blasting agents corresponds to a BATF Type 4 or 5
storage facility.” 30 C.F.R. § 56.2. A storage tank is defined as “a container exceeding 60 gallons
in capacity used for the storage of flammable or combustible liquids.” Id. A magazine is defined
as “a facility for the storage of explosives, blasting agents, or detonators.” Id. As mentioned
previously, verge is a spheronized “finished good” made from extruded clay fines. (Tr.416:14417:21) It is not a blasting agent. It is not a liquid. It is not an explosive. Therefore, the verge
storage tank area conforms to none of these storage-based definitions.
Similarly, the verge storage tank area does not meet the criteria to be categorized as a
“travelway.” A travelway is defined in the regulation as a “passage, walk or way regularly used
and designated for persons to go from one place to another.” 30 C.F.R. § 56.2 (emphasis added).
While the existence of numerous footprints in wet mud suggests that the area was frequented,
there is no indication in the record that the area was designated for persons “to go from one place
to another.” Thus, the verge storage tank area is not properly characterized as a travelway.
A working place is defined as “any place in or about a mine where work is being
performed.” Id. Independent contractors performed maintenance duties and Respondent’s plant
employees loaded bulk product at the verge storage tank area. (Tr.419:6-9; 469:19-470:8) Here,
given the options listed above, the verge storage tank area is best described by the “working
place” definition. Accordingly, I conclude that the Secretary’s interpretation of “working place,”
as applied by Inspector LaRue when he issued this citation, is reasonable and entitled to
deference. The verge storage tank area was appropriately considered a “working place.”
(c) Respondent’s SOP is not Dispositive in Determining Whether the Verge
Area is a “Working Place”
The Respondent published and followed an internal workplace examination SOP for the
Ripley plant. (Ex. R–2; Tr.399:16-400:21) Respondent argues that under the SOP, all areas
where miners worked “in the mining and milling processes” were required to be inspected each
shift. (Resp’t Br. 15-16, citing Ex. R–2) Respondent additionally states in its brief that ODPC
policy specifically referenced the MSHA PPL on workplace inspections in effect at the time this
citation was issued. (Id. at 16, citing Tr.400:4-13) Respondent argues it derived an interpretation
of what constituted a mining or milling process from the PPL and determined, based on that

40 FMSHRC Page 936

definition, that verge storage was excluded, which relieved it of any obligation to perform preuse examinations in that part of its operation. (Id. at 16, 23)
The Respondent’s SOP does not change the focus of this analysis.41 Its identification of
areas that were subject to working place examinations is not binding and is less reasonable than
the Secretary’s, particularly inasmuch as it is clearly self-serving, at least under these facts.
Defining the verge storage tank area so as to exclude it from the working place examination
requirement relieves the Respondent of the expense and administrative bother of having to staff
and execute this function and is further afield from the “reasonable miner” test customarily
applied to these disputes than is the Secretary’s conclusion that the verge storage tank area was a
working place.
(d) The Independent Contractors who did Weekly Maintenance Work were
Miners Subject to the Mine Act
Respondent emphasizes that only contracted maintenance workers worked in the verge
storage tank area. (Resp’t Br. 15, 17; Resp’t Reply Br. 23) Respondent refers to the contracted
maintenance workers as “non-miners.” (Resp’t Br. 20) However, the fact that the maintenance
workers at the verge storage tanks were independent contractors does not negate their status as
miners. Section 3(g) of the Mine Act states that a “miner” is “any individual working in a coal or
other mine.” 30 U.S.C. § 802(g) (emphasis added). See also Nat’l Indus. Sand Assoc. v.
Marshall, 601 F.2d 689, 704 (3d Cir. 1979) (“As its standard, the statute looks to whether one
works in a mine, not whether one is an employee or nonemployee or whether one is involved in
extraction or nonextraction operations.”); Cyprus Empire Corp., 15 FMSHRC 10, 14 (Jan. 1993)
(“In the Mine Act, [. . .] Congress chose to define miners as individuals who work in a mine,
rather than as employees of an operator.”) While there are exceptions for contracted workers
who perform maintenance work in other areas of the regulations,42 no similar exception to the
definition of “miner” exists for Part 56. Since the verge storage tanks are an extension of the
milling facilities as discussed above, and since the contracted maintenance workers worked
there, it follows that the maintenance workers are miners under the Mine Act.
In any event, the operative word in the definition of a “working place” is the word
“work.” I note that the definition of a “working place” does not include a requirement that the
work is performed by a “miner.” 30 C.F.R. § 56.2. Similarly, the PPL in effect at the time of the
citation explains that the phrase “working place” applies to those locations at a mine site “where
persons work in the mining or milling processes.” (Ex. R–18) The contracted maintenance
workers undoubtedly fit this description.
41

Based on a thorough review of Respondent’s Workplace Examinations SOP, Exhibit
R–2, I am doubtful of Respondent’s sincerity that it relied on the 2014 PPL in believing the
verge storage tank area was not a working place. A full discussion can be found below. See
discussion infra Section VI. L. 3.
42

For example, Part 46 makes an exception to the definition of “miner,” stating that
maintenance or service workers who do not work at a mine site for a frequent or extended period
are not “miners” for the purposes of the mandatory training/retraining requirements. 30 C.F.R.
§ 46.2(g)(2).

40 FMSHRC Page 937

(e) The Definition of “Working Place” used at the Time of the Citation was
Broad Enough to Include Areas Where Maintenance Work was Performed
Respondent next argues the verge storage tank area is not a “working place” because the
area was only accessed weekly for routine greasing by contractors (Resp’t Br. 15, citing
Tr.356:20-25) and maintenance activities do not constitute “work.”43 (Resp’t Br. 14, 17, 20) As
authority to bolster its claim, Respondent cites to MSHA’s evolving policy regarding the
enforcement of section 56.18002(a), as outlined in MSHA’s PPLs. See (Ex. R–17 (Program
Policy Letter No. P15-IV-01, “Examination of Working Places” (effective date July 22, 2015)));
(Ex. R–18 (Program Policy Letter No. P14-IV-01, “Examination of Working Places” (effective
date March 25, 2014))); MSHA, Final Policy on Examination of Working Places, 61 Fed. Reg.
42,787 (Aug. 19, 1996) [hereinafter 1996 PPL]; MSHA, Examination of Working Places, 60
Fed. Reg. 9,987 (Feb. 22, 1995) [hereinafter 1995 Proposal].
In 1995, MSHA issued a public notice for a change in the definition of a “working
place.” Respondent highlights the following sentence in the proposed draft definition: “The
working place for an individual assigned to perform maintenance or repair duties, for example, is
the area where the individual performs the maintenance or repair work.” 1995 Proposal, 60 Fed.
Reg. at 9,988. Respondent notes that the 1996 PPL deleted the references to maintenance and
repair work from the 1995 proposed draft language. (Resp’t Br. 20) Respondent argues that
based on this omission, which was carried forward to the 2014 PPL that was in effect at the time
of the citation, it is appropriate to assume that maintenance and repair activities were not
intended to be included as “work” for purposes of section 56.18002(a). (Id.) Respondent also
notes that MSHA updated its working place inspection PPL, effective July 22, 2015, to
specifically include areas where work is performed on an infrequent basis, such as areas accessed
primarily during periods of maintenance or clean-up. (Id. at 21; see Ex. R–17, at 2) Respondent
argues that the explicit addition of “maintenance” work in the 2015 PPL further evidences that
the scope of “working place” did not include maintenance work at the time Citation No. 8820575
was issued on March 24, 2015. (Id.) I disagree.
First, Respondent’s contention that the 1995 draft language reference to maintenance and
repair duties delineates the scope of what constitutes “work” misreads the purpose of the
sentence. The 1995 draft language stated, “[t]he working place for an individual assigned to
perform maintenance or repair duties, for example, is the area where the individual performs the
maintenance or repair work.” 1995 Proposal, 60 Fed. Reg. at 9,988 (emphasis added). The
following sentence in the draft language clarifies this focus by stating, “[f]or an operator to be in
compliance, that area would need to be examined by a competent individual for hazardous
43

Respondent is careful in its briefs to frame the tasks that were done in the verge area as
maintenance and cleanup “activities” and not “work.” (Resp’t Br. 14, 20-21; Resp’t Reply Br.
21, 23-24) However, it appears Respondent had a momentary lapse of memory when describing
those same activities a few pages later for Citation No. 8820571, the illumination violation.
There, Respondent wrote, “[t]o the extent that the [verge storage tank area] was accessed, that
access was for greasing of a bulk loading conveyor for the Verge product that ran through the
area. Tr.303:13-21; 418:18-419:16. This work was done by a contractor during daytime hours [.
. .].” (Resp’t Br. 34) (emphasis added)

40 FMSHRC Page 938

conditions and any hazardous conditions would need to be promptly corrected.” Id. (emphasis
added). The focus of this example sentence is not to describe the scope of what constitutes
“work”; rather, the focus is to explain that the working place inspection must take place in the
area where the work is performed.
Next, because the 1996 PPL and subsequent 2014 PPL did not explicitly list maintenance
or repair duties as “work,” Respondent concludes it is appropriate to assume there was no
intention to include them. (Resp’t Br. 20) Based on the totality of the 1995 draft language,
however, I find that it is more appropriate to interpret “work” broadly. In the paragraphs that
precede the “maintenance or repair duties” proposed draft language, MSHA stated its reason for
proposing new language for standard 56.18002:
However, in a 5-year period, MSHA has investigated 17 serious
and fatal accidents where working place examinations were not
conducted or were inadequately conducted. In a significant number
of these accidents, failure to conduct working place examinations
was a contributing cause. Therefore, rigorous working place
examinations are a fundamental accident prevention tool for the
mining industry.
1995 Proposal, 60 Fed. Reg. at 9,988. Notably, a similar variant of this language was ultimately
kept in the 1996 PPL.44 Respondent’s narrow interpretation of the 1996 and 2014 PPLs
disregards the history of accidents that served as the impetus for MSHA’s 1995 proposed
language. Additionally, the 2014 PPL that was in effect at the time this citation was issued
defined “working place” as “any place in or about a mine where work is being performed.” (Ex.
R–18, at 2) (emphasis added). Given the broad language used here, had MSHA intended
maintenance or repair work to not constitute “work” for the purposes of section 56.18002, they
would have listed it. Instead, no specific exceptions are mentioned.
Finally, the explicit inclusion of new language referencing maintenance work in the 2015
PPL does not mean, as Respondent argues, that the 2014 PPL necessarily excluded areas
accessed primarily during periods of maintenance or cleanup. The inclusion of the phrase
“maintenance or cleanup” in 2015 did not expand the scope of “work”; it merely clarified an

44

The 1996 PPL stated the following in its background section:
Failure to conduct working place examinations has been a
contributing cause of a significant number of recent accidents. In
the 5-year period from 1988–1992, MSHA has investigated 17
serious and fatal accidents where working place examinations were
not conducted or were inadequately conducted and were found to
have contributed to the cause of the accident.

1996 PPL, 61 Fed. Reg. at 42,788.

40 FMSHRC Page 939

already broad standard.45 For these reasons, I find that the phrase “working place,” as used in the
2014 PPL, was broad enough to include those areas where maintenance work was performed,
despite not being explicitly listed.
(f) Respondent’s Employees Conducted Non-Maintenance Work Activities in
the Verge Storage Tank Area
Even assuming Respondent is correct regarding MSHA’s intention at the time this
citation was issued to not include maintenance and repair activities as conduct triggering
workplace inspection requirements, Respondent’s argument fails because it improperly
characterizes the work that mine employees conducted at the verge storage tanks. Respondent
states in its brief that only maintenance and cleanup activities took place in the verge storage
tank area (Resp’t Br. 14) and that only contractors doing greasing maintenance for a non-miningrelated function ever entered the area. (Id. at 17) Notably, Respondent argues that “no miners”
worked in the verge storage tank area. (Id.) This is untrue. Superintendent Gibens stated at the
hearing that, in addition to the maintenance personnel, plant employees would go into the verge
storage tank area for the purpose of “loading the bulk.” (Tr.419:6-9) “Loading the Bulk” is
properly characterized as work. Further, the record suggests that this amount of work was not
trivial. Superintendent Gibens, although stating that he is responsible for processing and does not
specifically work in the verge group, estimated that fifty to sixty percent of verge sales were in
the form of bulk bags. (Tr.417:24-418:2) The storage tanks, however, were for bulk product.
(Tr.418:3-4) Presumably, based on the testimony at hearing, the remaining verge product that
was not sold as “bulk bags” was sold as “bulk.” Thus, up to fifty percent of verge was bulk
product stored in the verge storage tanks. As mentioned before, this bulk product was loaded into
trucks and railcars by plant employees. (Tr.419:6-9) Albeit not constantly or consistently,
Respondent’s witness’ own statement indicates that employees worked in the verge storage tank
area.46 Since work was performed at the verge storage tank area, it is properly characterized as a
working place. For the reasons stated, the verge storage tanks were an appropriate site requiring
a workplace examination.
(g) Respondent had Fair Notice
Respondent argues that MSHA failed to give fair notice that the verge storage tanks
required working place inspections. Respondent states that at least 14 inspections over seven
years failed to express concern that working place inspections were not taking place at the verge
storage tank area. (Resp’t Br. 19)

45

As a more relatable example, if my local dog park has a sign that says, “dogs allowed
between 8 a.m. and 8 p.m.” and then later amends the sign to read, “dogs, including Irish
Wolfhounds and Rhodesian Ridgebacks, allowed between 8 a.m. and 8 p.m.,” the addition of the
phrase “including Irish Wolfhounds and Rhodesian Ridgebacks” did not expand the scope. Irish
Wolfhounds and Rhodesian Ridgebacks were always welcome in the park because they are, by
all reputable accounts, dogs.
46

For additional testimony by Gibens regarding the bulk loading process, see Tr.403:17-

404:6.

40 FMSHRC Page 940

The mere fact that the verge storage tank area was not cited for workplace inspection
violations in the previous seven years does not negate the fact that Respondent should have
realized that MSHA had jurisdiction and that a workplace inspection was required. Furthermore,
MSHA cannot be estopped from enforcing its regulations simply because it did not previously
cite the mine operator. See Mainline Rock & Ballast, Inc. v. Sec’y of Labor, 693 F.3d 1181, 1187
(10th Cir. 2012) (citing Emery Mining Corp. v. Sec’y of Labor, 744 F.2d 1411, 1416-17 (10th
Cir. 1984)). The Mine Act is a strict liability statute. As long as a regulation is sufficiently
specific that a reasonably prudent person, familiar with the conditions the regulation is meant to
address and the objective the regulation is meant to achieve, would have fair warning of what the
regulation requires, then the due process requirements for notice are satisfied. Id. at 1187 (citing
Walker Stone Co. v. Sec’y of Labor, 156 F.3d 1076, 1083-84 (10th Cir. 1998)).
LaRue credibly testified that Gibens, Cox, and Albertson did not contest that the verge
storage tank area was not part of the working place inspection area when he issued the citation.
(Tr.361:4-9) Moreover, Respondent’s own witness’ statements contradict Respondent’s
argument that it did not have fair notice that the verge storage tank area was subject to section
56.18002(a). Superintendent Gibens agreed at hearing that management failed to ensure
examinations were being done in the verge storage tank area (Tr.461:5-8) and should have been
aware that examinations were not being done if they reviewed current work exam areas.
(Tr.462:1-7)
For the reasons stated above, I conclude a reasonably prudent person would have
recognized that the verge storage tank area was subject to the working place inspection
requirements of section 56.18002(a). Accordingly, Respondent’s fair notice argument fails.
Based on the above, I conclude the verge storage tank area was a working place as
contemplated by 30 C.F.R. § 56.18002(a) and the failure to conduct a working place examination
constituted a violation of the standard.
2. Gravity and S&S
Inspector LaRue determined that an injury was reasonably likely to occur. (Tr.273:10-19;
Ex. S–12, at 1-2) I concur. Contrary to Respondent’s contention that the area was rarely accessed
or worked in, Inspector LaRue testified that there was almost one hundred percent coverage of
footprints in wet mud throughout the verge storage tank area. (Tr.267:11-15; 268:3-4) This is
corroborated by video evidence taken the night before. (Ex. S–9, at 2:38-3:12) LaRue testified
that although the wet mud in the verge storage tank area was comprised of “more of a coarse
material,” it was still on a smooth steel plate, which would create a slipping, tripping, or falling
hazard. (Tr.268:13-15)
I find it reasonably likely that personnel working in the area—whether loading the bulk
or conducting maintenance work—could slip, trip, or fall and sustain an injury. I also concur
with LaRue’s conclusion that the resulting injury—a muscle or joint injury—could reasonably be
expected to result in lost workdays or restricted duty for one person.
I have found an underlying violation of 30 C.F.R. § 56.18002(a), a mandatory safety
standard. The Commission has instructed that “the starting point for determining the hazard is
the actual cited section” and is found “in terms of the prospective danger the cited safety

40 FMSHRC Page 941

standard is intended to prevent.” Newtown, 38 FMSHRC at 2038. Unlike most safety standards,
section 56.18002(a) does not have a particular hazard associated with it. Rather, the purpose of
section 56.18002(a) is to detect and prevent “conditions which may adversely affect safety or
health.” In this instance, the discrete safety hazard was the possibility of a miner slipping,
tripping, or falling on wet mud in the verge storage tank area.
The operator’s failure to conduct a proper workplace examination contributed to the risk
of a slip–trip–fall hazard. Such a hazard would reasonably likely occur, particularly in light of
the fact that the area was often frequented as evidenced by the abundance of footprints.
Assuming the occurrence of the foot-level-fall hazard, I find it reasonably likely that an injury of
a reasonably serious nature, possibly resulting in muscle or joint injuries leading to lost
workdays or restricted duty, would occur. I conclude this violation was S&S.
3. Negligence
The Secretary alleges that the violation was the result of high negligence. The “high”
negligence designation “suggests an aggravated lack of care that is more than ordinary
negligence.” Brody Mining, 37 FMSHRC at 1703 (quoting Topper Coal Co., 20 FMSHRC 344,
350 (Apr. 1998)). ODPC had been cited for the same standard twice before in two years, which
signaled to LaRue that Respondent was placed on notice. (Tr.277:2-9; Ex. S–12, at 1)
Additionally, LaRue thought the extensive footprints in the wet mud in the area made it obvious
that a workplace exam should have been conducted. (Tr.267:11-15; 275:10-13) LaRue detailed
in his notes that there was an “on going [sic] practice of not inspecting” the verge storage tank
area based on the fact that nobody was able to produce a workplace examination from the
previous 12 months. (Tr.273:7-9; Ex. S–12, at 2) Inspector LaRue also testified that he provided
multiple opportunities for supervisory staff to disclose mitigating circumstances as good reasons
for Respondent’s failure to complete workplace examinations in the area, but none were
presented. (Tr.274:14-275:9) Superintendent Gibens agreed at hearing that management should
have been aware that examinations were not being done in the verge storage tank area if they had
reviewed current work exam areas (Tr.462:1-7), but he disagreed that there was an ongoing
practice of not inspecting the area. (Tr.461:18-21)
Respondent argues that it was not aware that the verge storage tank area needed to be
inspected. (Resp’t Br. 23) As support, Respondent points to the fact that although the verge tanks
have been in existence for seven years, at least 14 inspections failed to express concern that
working place inspections were not taking place there. (Id. at 19) Additionally, Respondent
argues that it had an “elaborate” working place SOP, which referenced MSHA guidance. (Id. at
21, 23) Respondent states this constituted a “significant mitigating circumstance.” (Id. at 23) For
these reasons, Respondent contends that the negligence should be lowered to low or no
negligence. (Id. at 21)
Although Inspectors’ previous representations about compliance with a regulation do not
estop MSHA from issuing future citations, detrimental reliance on an inconsistent interpretation
is properly considered in mitigating the penalty. See Nolichuckey Sand Co., 22 FMSHRC 1057,
1063-64 (Sept. 2000); U.S. Steel Mining Co., 6 FMSHRC 2305, 2310 (Oct. 1984) (noting that
detrimental reliance may be considered in mitigation of penalty). Similarly, if the operator was
misled—either with inconsistent enforcement of the regulatory provision or with ambiguous

40 FMSHRC Page 942

interpretations in the agency manual—that circumstance may reduce the level of negligence.
Mach Mining, 809 F.3d at 1266, citing Mettiki Coal Corp., 13 FMSHRC 760, 770-71 (May
1991).
As belabored in the sections above, Respondent’s claim that it did not have actual
knowledge that the verge storage tank area was a working place is inconsequential as a
reasonably prudent person familiar with the mining industry, relevant facts, and protective
purpose of the regulations would have recognized that section 56.18002(a) applied.
I am also not persuaded that Respondent detrimentally relied on previous inspector
representations. Except for the fact that the verge storage tank area was not previously cited
under section 56.18002, nothing in the record evidences that an MSHA inspector intimated the
area was not part of the “mining or milling processes,” the activities conducted there did not
constitute “work,” or the area was exempted in some other way.
Similarly, I am not persuaded that Respondent detrimentally relied on the 2014 PPL in its
understanding of the working place examination standard. Respondent suggests a reliance on the
2014 PPL when it stated in its brief that the “Ripley Policy specifically referenced the MSHA
PPL on workplace inspections that was in effect at the time of the inspection [. . .].” (Resp’t Br.
16) (emphasis added) Respondent then dedicated the next five pages delving into the history of
the PPL and its linguistic nuances. (See Id. at 16-21) However, contrary to Respondent’s claim in
its brief, the SOP never actually referenced the 2014 PPL. Section 12 of the SOP (“References”)
lists three sources: (1) MSHA Part 46 Training Plan at Location; (2) MSHA Standard, 30 C.F.R.
§ 56.18002, Examination of Working Places; and, (3) MSHA’s Program Policy Manual. (Ex. R–
2, at 7) There is no mention of the 2014 PPL, let alone any PPL, anywhere in the SOP.
I also note other oddities that undermine Respondent’s claim that it had a genuine belief
the verge storage tank area was not a “working place” based on MSHA materials at the time the
citation was issued. In its post-hearing brief, Respondent states, “under [the workplace
examination SOP], all areas where miners work ‘in the mining and milling processes’ were
expected to be inspected each shift.” (Resp’t Br. 15-16) However, the phrase “in the mining or
milling processes” only appears in Appendix D of the SOP, which provides a sample record form
that examiners and auditors need to fill out. Respondent’s SOP does not define “mining” or
“milling.” It does not carve out any exceptions. It does not, for example, delineate the point at
which milling ends nor does it reflect Respondent’s currently-held view that not all centrallylocated areas in a milling facility are considered part of the milling process. Similarly, the SOP
did not use qualifying language to suggest a nuanced understanding of “work”—with
maintenance and repair activities being considered “non-work.” Section 2.1 of the SOP states the
scope of “workplace examinations” is “where work is being performed during scheduled work
hours.” (Ex. R–2, at 1) Section 6.2.1, in the “Instructions and Procedures” section, broadly states
that “Oil-Dri expects workplace examinations to be conducted in all ‘working places.’” (Id. at 3)

40 FMSHRC Page 943

(emphasis in original) Unfortunately, the definitions for “working places” or “work” were not
included in the exhibit that was admitted.47
Based on a plain reading of Respondent’s working place examination SOP, I am unable
to find convincing support that Respondent held a belief about working places consistent with
that espoused at and after hearing. Put bluntly, there is nothing more than a scintilla of evidence
in the SOP to suggest that Respondent relied on MSHA representations and interpreted the
working place examination standard to exempt the verge storage tank area. My deduction is
strengthened by the fact that Gibens, Cox, and Albertson did not contest that the area was a
working place at the time the citation was issued (Tr.361:4-9) and the fact that Gibens agreed at
hearing that management should have been aware that examinations were not being done there if
they reviewed current work exam areas. (Tr.462:1-7)
Given the above, I agree with the Secretary that the violation was the result of high
negligence.
4. Penalty
I have reviewed and confirmed the data in Exhibit A to the Secretary’s Petition for
Assessment of Civil Penalty showing the number of production hours for the mine and the mine
controller, the number of prior violations per inspection days, the number of repeat violations,
the number of persons affected, the negligence points, the likelihood points, and the good faith
point reductions. Based on my gravity and negligence findings, and considering but not relying
on the point calculation in 30 C.F.R. § 100.3, I find the Secretary’s proposed penalty of
$1,944.00 is appropriate. I impose a penalty in that amount.48

47

Of the 13 pages in the Workplace Examination SOP, only pages 1, 3, 5, 7, 9, 11, and
13 were submitted. The definition section, which started on the bottom-half of page 1,
presumably continued on to page 2 and contained a definition for “working place.” I find it
strange given the centrality of the “working place” definition in this citation that Respondent
would choose to omit its standardized version.
48

There is no need to adjust this penalty for the VPID distortion identified in relation to
the housekeeping violations. The VPID calculation for this violation does not have the same
defect.

40 FMSHRC Page 944

VII. ORDER
It is ORDERED that Citation No. 8818320 be MODIFIED to reduce the negligence
from “Low” to “None.”
It is further ORDERED that Citation No. 8818317 be VACATED.
WHEREFORE, it is further ORDERED that Oil-Dri Production Company PAY a total
penalty of $12,483.00 within forty (40) days of the date of this Decision.49

/s/ L. Zane Gill
L. Zane Gill
Administrative Law Judge

Distribution:
Daniel Brechbuhl, Esq., Office of the Solicitor, U.S. Department of Labor, Cesar E. Chavez
Memorial Building, 1244 Speer Boulevard, Suite 216, Denver, CO 80204-3598
brechbuhl.daniel.t@dol.gov
Douglas A. Graham, Esq., Laura G. Scheland, Esq., Oil-Dri Corporation of America, 410 N.
Michigan Avenue, Suite 400, Chicago, IL 60611-4293
douglas.graham@oildri.com

49

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

40 FMSHRC Page 945

ADMINISTRATIVE LAW JUDGE ORDERS

40 FMSHRC Page 946

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
721 19TH STREET, SUITE 443
DENVER, CO 80202-2536
303-844-3577/FAX 303-844-5268

May 22, 2018
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of LOUIS SILVA, JR.,
Applicant

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. WEST 2017-265-DM
MSHA No. RM MD 2017-05

v.

Morrison Plant

AGGREGATE INDUSTRIES WRC, INC.,
Respondent

Mine ID 05-00864

ORDER DISSOLVING ORDER OF TEMPORARY REINSTATEMENT
ORDER OF DISMISSAL
This matter is before me on an application for temporary reinstatement filed by the
Secretary of Labor (“Secretary”) on behalf of Louis Silva, Jr, pursuant to section 105(c)(2) of the
Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(c)(2), against
Aggregate Industries WRC, Inc. Silva was terminated from his position with Aggregate
Industries on January 19, 2017.
On March 20, 2017, I granted the parties’ Joint Motion to Approve Terms of Economic
Reinstatement and I ordered Aggregate Industries to provide temporary economic reinstatement
to Silva. The terms of the reinstatement are described in the motion. As of this date, my order of
temporary reinstatement is still in effect.
On April 17, 2018, following an evidentiary hearing, I issued a decision dismissing Louis
Silva’s underlying discrimination complaint in Docket No. WEST 2017-482-DM. 40
FMSHRC_____ (April 2018) (ALJ). Section 113(d)(l) of the Mine Act states: "The decision of
the administrative law judge ... shall become the final decision of the Commission 40 days after
its issuance unless within such period the Commission has directed that such decision shall be
reviewed .... " 30 U.S.C. § 824(d)(l). No party filed a petition for discretionary review with the
Commission under section 113(d)(2)(A) and the Commission did not order the case for review
under section 113(d)(2)(B). 30 U.S.C. § 823(d)(2)(A) & (B). As a consequence, my decision in
WEST 2017-482-DM will become a final decision of the Commission on May 27, 2018.
In Sec’y on behalf of Bernardyn v. Reading Anthracite Co., 21 FMSHRC 947 (Sept.
1999), the Commission held that a judge’s order of temporary reinstatement must remain in
place until his decision on the merits of the discrimination complaint becomes a final decision of
the Commission. Because I determined that Aggregate Industries did not discriminate against
Silva, he is no longer entitled to temporary economic reinstatement.

40 FMSHRC Page 947

For the reasons discussed above, my March 20, 2017 order of temporary economic
reinstatement is hereby DISSOLVED effective May 27, 2018 and Aggregate Industries is no
longer required to comply with the terms of the parties’ Joint Motion to Approve Terms of
Economic Reinstatement as of that date. Consequently, this proceeding is hereby DISMISSED.

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

Distribution:
Karen W. Bobela, Esq., Office of the Solicitor, U.S. Department of Labor, 1244 Speer
Boulevard, Suite 515, Denver, CO 80204
Matthew M. Linton, Ogletree, Deakins, Nash, Smoak & Stewart, PC, 1700 Lincoln Street,
Suite 4650, Denver, Colorado 80203
RWM

40 FMSHRC Page 948

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9956 / FAX: 202-434-9949

May 31, 2018
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. YORK 2018-4-M
A.C. No. 07-00059-449176

v.
PENNSY SUPPLY INC.,
Respondent

Mine: Bay Road Plant #7

ORDER GRANTING MOTION TO AMEND
Before: Judge Rae
This case is before me upon the Secretary’s petition for assessment of civil penalty under
section 105 of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815.
On April 24, 2018, I set this matter for hearing on June 12, 2018, in Dover, Delaware.
On May 21, 2018, the Secretary filed a motion seeking to amend two citations contained
in this docket, Citation Nos. 8802227 and 8802228, to allege the violations as section 104(d)
citations with high negligence. (Mot. at 1.) Both citations were originally alleged as section
104(a) citations with moderate negligence. (Id.) The Secretary contends the amendments seek
only to change the negligence and add an unwarrantable failure designation to each citation. (Id.
at 2.) The Secretary states that he discovered new evidence during discovery that warrants the
proposed amendments. (Id. at 3.) The Secretary also asserts that the amendments are not a result
of bad faith, nor would they prejudice the Respondent or cause undue delay. (Id. at 3–4.)
The Respondent timely filed a response on May 22, 2018, asserting that the proposed
amendments would require the Respondent to conduct further discovery and would therefore
prejudice the Respondent and delay the hearing. (Resp. at 2.) The Respondent also argues that
the proposed amendments are made in bad faith and that the Secretary has not offered any
plausible excuse as to why the amendments could not have been made earlier. (Id. at 1–2.)
The Commission has held that modification of a citation is analogous to the amendment
of pleadings under Federal Rule of Civil Procedure 15(a), which states that leave for amendment
“shall be freely given when justice so requires” unless the moving party has been guilty of bad
faith, has acted for the purpose of delay, or where the trial of the issue will be unduly delayed.
Wyoming Fuel Co., 14 FMSHRC 1282, 1290 (Aug. 1992) (quoting Fed. R. Civ. P. 15(a)). Delay
alone is not a sufficient basis upon which to deny a motion to amend, even when such motion
comes on the eve of trial. Cypress Empire Corp., 12 FMSHRC 911, 916 (1990) (“Delay alone,
regardless of length, does not bar a proposed amendment if the other party is not prejudiced.”)

40 FMSHRC Page 949

In this case, the Respondent acknowledged receipt of the Secretary’s motion on May 21,
2018, approximately three weeks before the scheduled hearing. (Resp. at 1.) The Respondent has
not raised any basis to find actual prejudice or reason for delay in this proceeding in its response
to the Secretary’s motion. The Secretary avers that there are no new facts upon which the
modification is sought, and the basis for reassessing the negligence is based upon information the
Secretary learned during the discovery process, indicating that the facts were equally available to
the Respondent, if not in the possession of the Respondent.
Based on the above, I conclude that the Secretary’s proposed amendments are not made
in bad faith, to delay this proceeding, or prejudicial to the Respondent. I also find that the
Respondent has not demonstrated actual prejudice as a result of the amendment to the negligence
allegations. Accordingly, the Secretary’s motion to amend the petition is hereby GRANTED.
In granting the Secretary’s motion, the Secretary is hereby ORDERED to make the
MSHA inspector available for a supplemental deposition telephonically, or otherwise, at the
Respondent’s discretion. The deadline for submitting a supplemental witness and exhibit list by
the Respondent is extended until close of business on June 11, 2018. The hearing will be
conducted on June 12, 2018, as scheduled.

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

Distribution:
Maria del Pilar Castillo, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis
Center, 170 S. Independence Mall West, Suite 630E, Philadelphia, PA 19106
David M. Toolan, Esq., Oldcastle Law Group, 900 Ashwood Parkway, Suite 700, Atlanta, GA
30338
/ivn

40 FMSHRC Page 950

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004-1710
PHONE: (202) 434-9933 FAX: (202) 434-9949

June 4, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. WEVA 2018-0165
A.C. No. 46-01436-455014

v.
THE OHIO COUNTY COAL COMPANY,
Respondent.

Mine: Ohio County Mine

ORDER REGARDING MOTION TO CERTIFY FOR INTERLOCUTORY REVIEW
Before: Judge Moran
The Secretary of Labor has filed a motion (“Motion”) to certify for interlocutory review
this Court’s Decision Denying Settlement in this docket. The Court’s Decision denying
settlement is included within this Order. The Secretary seeks the following question for
certification for interlocutory review: “Whether the ALJ erred as a matter of law in rejecting as
“facts in support” of the proposed settlement: (1) by the Secretary’s stated enforcement priorities,
and (2) the Secretary’s identification of the facts disputed by the operator pertaining to the cited
violations.” Motion at 1-2.
The Commission procedural rule pertaining to interlocutory review provides that
“Interlocutory review by the Commission shall not be a matter of right but of the sound
discretion of the Commission.” 29 C.F.R. 2700.76(a). The Court certifies that its ruling denying
settlement “involves a controlling question of law and that in [its] opinion immediate review will
materially advance the final disposition of the proceeding.” Id. at 29 C.F.R. 2700.76(a)(1)(i).
While the Court grants the Secretary’s Motion, pursuant to 29 C.F.R. 2700.76(d), “Scope
of review,” it does adopt the characterization of the question, as framed by the Secretary. The
Scope of Review provision provides “Unless otherwise specified in the Commission's order
granting interlocutory review, review shall be confined to the issues raised in the Judge's
certification or to the issues raised in the petition for interlocutory review.” Id.
As noted, in its Motion the Secretary described the question as “Whether the ALJ erred as
a matter of law in rejecting as “facts in support” of the proposed settlement: (1) by the
Secretary’s stated enforcement priorities, and (2) the Secretary’s identification of the facts
disputed by the operator pertaining to the cited violations.”

40 FMSHRC Page 951

The first question is one the Commission presently has under reconsideration in Secretary
of Labor v. The American Coal Company, LAKE 2011-13. The second question, in the Court’s
view, is an incomplete recounting of the issue. It is true that the justification for the 55%
reduction provides, in its entirety, that the “Respondent argued that the operator was unaware of
the cited practice, which was committed by an hourly employee. The inspector’s notes confirm
that the foreman was not present when the violation occurred. In consideration of the above, the
Secretary agrees to a reduction in negligence and a corresponding reduction in the penalty to
$2,438.00 pursuant to Part 100.” Secretary’s Motion for Decision and Order Approving
Settlement, May 4, 2018 at 4 (emphasis added).
The Court, as reflected in its May 7, 2018 Decision Denying Settlement Motion,
examining each of the citations involved in the settlement posed a question in that denial,
regarding the nature of two citations, 9090883 and 9090884, which were issued on October 27,
2017, within minutes of one another. It noted that “[t]he problem is that the justification for the
55 % reduction for No. 9090883 does not square with the information contained in Citation No.
9090884, unless the Secretary is asserting that these citations do not relate to the same piece of
equipment. This is so because, for Citation No. 9090883, the Secretary declares that the
Respondent “argue[s] that the operator was unaware of the cited practice, which was committed
by an hourly employee.” Motion at 4 (emphasis added). Yet, Citation No. 9090884 does not
indicate an incorrect practice. Rather it indicates a defect with the machine’s ATRS, as it would
not pivot to allow both pads to contact the roof, a function which the machine should have the
ability to do.” Decision at 2. On that basis, the Court concluded that the Motion was
insufficiently supported.
It is the Court’s view that its inquiry about the relationship, if any, between the two
citations, Nos. 9090883 and 9090884, was a reasonable inquiry, consonant with its
responsibilities under Section 110(k) of the Mine Act. Pursuant to 29 C.F.R. 2700.76(d), “Scope
of review,” the Court’s granting of interlocutory is confined to this issue in its certification,
namely the reasonableness of its inquiry to the parties regarding the settlement motion.
Accordingly, the Secretary’s Motion to certify for interlocutory review is GRANTED.
SO ORDERED.

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

40 FMSHRC Page 952

Distribution:
Robert S. Wilson, Esq., U.S. Department of Labor, 201 12th Street South, Suite 401, Arlington,
VA 22202-5450
Wm. Allen McGilton, Murray Energy Corporation, 46226 National Road, St. Clairsville, OH 43950

40 FMSHRC Page 953

APPENDIX
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004-1710
PHONE: (202) 434-9933 | FAX: (202) 434-9949

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 2018-0165
A.C. No. 46-01436-455014

v.
THE OHIO COUNTY COAL COMPANY,
Respondent.

Mine: Ohio County Mine

DECISION DENYING SETTLEMENT MOTION
Before: Judge Moran
The Secretary has filed, through a Conference and Litigation Representative (“CLR”),1 a
Motion for Decision and Order Approving Settlement (“Motion”). For the reasons which
follow, the Motion must be denied.
This docket involves 5 (five) citations, for which a 55% reduction, and modification of
the negligence from moderate to low, is being sought for one2 of the citations: Citation No.
9090883. That citation, asserting a violation of 30 C.F.R. § 75.202(b), states:
During the investigation of an accident that occurred on October 3, 2017, it was
determined through interviews and by a recreation of the accident scene that both
ATRS pads were not in contact with the roof while roof bolting was being
1

The CLR has not complied with 29 C.F.R. § 2700.3, addressing who may practice per
subsection (b)(4), “Other persons,” which provides that “[a] person who is not authorized to
practice before the Commission as an attorney under paragraph (a) of this section may practice
before the Commission as a representative of a party if he is: … (4) Any other person with the
permission of the presiding judge or the Commission.” The CLR has not sought permission from
the presiding judge to practice for this docket. The routine statement from the non-lawyer CLR
asserts that they are “authorized to represent the Secretary of Labor in this proceeding, in
accordance with the enclosed Notice of Appearance.” This does not recognize that the
authorization to practice before the Commission comes from the presiding judge, not the
Secretary.
2

The Motion provides for the other four citations to be settled for the originally proposed
amounts. That does not negate the need for a proposed penalty reduction to be supported.

40 FMSHRC Page 954

performed in the #2 entry of the 4-West B Setup Entry section. During the bolting
process, the right side ATRS pad was in contact with the roof, but the left side pad
could not touch due to potting out of the roof. Due to the left side pad not
contacting the roof, the miner placing the drill steels into and out of the drill
pod (from the right side of the machine) would’ve been reaching past roof support
into the unsupported area. Both pads need to be touching the roof to create a
supported area where the drill pod is located.
Citation No. 9090883.
The citation listed the gravity as highly likely, fatal, and significant and substantial, with
one person affected. The negligence, as noted, was marked as “moderate.”
The official file does not reveal anything about the nature of the accident alluded to in
the Citation. In the name of “transparency,” a term for which the Secretary invokes support, this
information should have been provided. Despite this shortcoming, more is learned about the
matter through Citation No. 9090884, which is also part of this docket. That Citation states:
The operator failed to maintain the Company #15 Fletcher single head roof bolter
(serial # 2012043) on the 4-West B Setup Entry section. During the investigation
of an accident that occurred on October 3, 2017, the ATRS on the machine would
not pivot to allow both pads to contact the roof when uneven roof is present.
According to the manufacturer’s approval, the ATRS should have the ability to
tilt 15 degrees in either direction so that the pads can contact the roof in varying
conditions. The ATRS is also approved at its rated capacity when both pads are
touching the roof. The machine was removed from service per K-order #
9124865-03 to correct the condition. Standard 75.1725(a) was cited 13 times in
two years at mine 4601436 (13 to the operator, 0 to a contractor).
Citation No. 9090884.
The two citations, 9090883 and 9090884 were issued on October 27, 2017, within
minutes of one another. The problem is that the justification for the 55 % reduction for
No. 9090883 does not square with the information contained in Citation No. 9090884,
unless the Secretary is asserting that these citations do not relate to the same piece of
equipment. This is so because, for Citation No. 9090883, the Secretary declares that the
Respondent “argue[s] that the operator was unaware of the cited practice, which was
committed by an hourly employee.” Motion at 4 (emphasis added). Yet, Citation No.
9090884 does not indicate an incorrect practice. Rather it indicates a defect with the
machine’s ATRS, as it would not pivot to allow both pads to contact the roof, a function
which the machine should have the ability to do.

40 FMSHRC Page 955

Therefore the Motion is insufficiently supported.3 Within seven days, the parties
are directed to advise the Court whether a sufficiently supported amended settlement will
be provided. If such an amended settlement will not be forthcoming, this matter will be
set for a prompt hearing.

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

3

Per usual, the Secretary presents his usual mantra that he “has evaluated the value of the
compromise . . . . etc.,” with the end game being that he does not have to provide facts in support
of penalty reductions to the Commission. One does wonder, however, in light of section 110(k)
of the Mine Act, a provision which was new with that Act, exactly what the Secretary believes
that provision does require and how the boiler-plate language employed in all of his settlements
provides useful information beyond that presented under prior federal mine safety statutes.

40 FMSHRC Page 956

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
721 19TH ST. SUITE 443
DENVER, CO 80202-2500
TELEPHONE: 303-844-5266 / FAX: 303-844-5268

June 5, 2018
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. LAKE 2018-155
A.C. No. 11-02752-29033 A

v.
BRADLEY PATE, employed by THE
AMERICAN COAL COMPANY,
Respondent.

Mine: New Era

ORDER DENYING RESPONDENT’S MOTION FOR SUMMARY DECISION
Before: Judge Simonton
This case is before me upon the Secretary’s petition for assessment of civil penalty issued
in accordance with the provisions of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (“Mine Act”) and 29 C.F.R. § 2700.20 et seq. At issue is Bradley Pate’s
(“Respondent” or “Mr. Pate”) motion for summary decision, which also asks the court to deem
Mr. Pate’s First Requests for Admission (“First Requests”) admitted due to the Secretary’s
untimely response to those requests. For the reasons below, I deny the Respondent’s motion.
I. Factual & Procedural Background
On January 24, 2017, MSHA issued Citation No. 9038849 to The American Coal
Company, a corporate mine operator, pursuant to section 104(d)(1) of the Mine Act. The citation
alleged violation of 30 C.F.R. § 75.1216(b) 1 for a failure to securely block a diesel powered
front end loader while the loader was in raised position. The operator contested the associated
civil penalty in docket LAKE 2017-346, and the docket was stayed pending MSHA’s
investigation into the individual liability of Mr. Bradley Pate under Section 110(c) of the Mine
Act.
On March 22, 2018, the Secretary filed a petition for Assessment of Penalty against Mr.
Pate pursuant to Sections 110(c) and (i) of the Mine Act. Pursuant to Section 110(c), the petition
alleged that Mr. Pate “knowingly authorized, ordered or carried out a violation of the mandatory
standard of 30 C.F.R. § 75.1726(b).” Respondent Brad Pate’s Motion for Summary Decision

1

30 C.F.R. § 75.1726(b) provides “No work shall be performed under machinery or
equipment that has been raised until such machinery or equipment has been securely blocked in
position.”

40 FMSHRC Page 957

(“Resp. Mot.”), Ex. A. Mr. Pate timely filed an Answer to the Petition, and the court later
consolidated Mr. Pate’s docket with LAKE 2017-346.
On April 4, 2018, Mr. Pate, through counsel, served his First Requests for Admission
(“First Requests”) on the Secretary. Resp. Mot. at 2. The Secretary served his Responses on May
7, 2018, eight days after the 25-day deadline prescribed by Commission Rule 58(b), 29 C.F.R. §
2700.58(b). On that same day, allegedly minutes prior to receiving the Secretary’s admissions,
Mr. Pate filed his motion for summary decision. Secretary’s Motion to Withdraw Admissions
and Response in Opposition to Respondent’s Motion for Summary Decision (“Sec’y Opp.”) at 3.
The Secretary filed his Response in Opposition to Summary Decision on May 18, 2018, and on
May 31, the Respondent filed his Reply.2
The Respondent alleges that the Court must deem his First Requests admitted because the
Secretary failed to answer or object to the Requests within the 25-day deadline prescribed by
Commission Rule 58(b). Resp. Mot. at 2-3. Because the First Requests pertain to information
necessary for the Secretary to prove its allegation against Mr. Pate, Respondent argues that
deeming the Requests admitted would resolve any disputed issues of material fact and would
entitle Mr. Pate to summary dismissal as a matter of law. Id. Nonetheless, Respondent contends
that even if the First Requests are not deemed admitted or the Court grants the Secretary’s
motion to withdraw the admissions, Mr. Pate is entitled to summary decision as a matter of law.
See Respondent Brad Pate’s Response in Opposition to the Secretary’s Motion to Withdraw
Admissions and Reply in Support of Motion for Summary Decision (“Resp. Rep.”) at 8.
The Secretary argues that the Court retains discretion to determine whether the
Respondent’s First Requests should be admitted due to the Secretary’s untimely response. Sec’y
Opp. at 2-4. The Secretary argues that the Requests should not be deemed admitted because the
responses were submitted a mere eight days late and were provided to the Respondent on the
same day that the above motion was filed. Id. at 3. If the Court were to deem the Requests
admitted, the Secretary moves in the alternative for leave to withdraw the admissions pursuant to
Rule 58(b). Id. at 4. Finally, should the Court both deem the First Requests admitted and deny
the Secretary’s motion for leave to withdraw, the Secretary contends that summary decision is
not appropriate because numerous genuine issues of material fact still exist. Id. at 7.
II. Summary Decision Standard
The Court may grant summary decision where the “entire record…shows: (1) That there
is no genuine issue as to any material fact; and (2) That the moving party is entitled to summary
decision as a matter of law.” 29 C.F.R. §2700.67(b); see also UMWA, Local 2368 v. Jim Walter
Res., Inc., 24 FMSHRC 797, 799 (July 2002); Energy West Mining, 17 FMSHRC 1313, 1316
(Aug. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986), which interpreted
Fed.R.Civ.P. 56).

2

The Respondent filed a Motion for Leave to File a Reply simultaneously with the Reply
itself. After review, the motion for leave is GRANTED, and the Respondent’s Reply was
considered in full in this decision.

40 FMSHRC Page 958

The Commission has analogized its Rule 67 to Federal Rule of Civil Procedure 56, which
authorizes summary judgments upon a proper showing of a lack of a genuine, triable issue of
material fact. Hanson Aggregates New York, Inc., 29 FMSHRC 4, 9 (Jan. 2007). A material fact
is “a fact that is significant or essential to the issue or matter at hand.” Black's Law Dictionary
(9th ed. 2009, fact). “There is a genuine issue of material fact if the nonmoving party has
produced evidence such that a reasonable factfinder could return a verdict in its favor.”
Greenberg v. Bellsouth Telecommunications, Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (citation
omitted).
The court must evaluate the evidence “in the light most favorable to … the party
opposing the motion.” Hanson Aggregates, 29 FMSHRC at 9. Any inferences drawn “from the
underlying facts contained in [the] materials [supporting the motion] must be viewed in the light
most favorable to the party opposing the motion.” Id. Though the moving party bears the initial
burden of informing the court of the basis for its motion, it is not required to negate the
nonmoving party’s claims. Celotex, 477 U.S. at 323. “When the moving party has carried its
burden under Rule 56(c), its opponent must do more than simply show that there is some
metaphysical doubt as to the material facts .... Where the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Scott v.
Harris, 550 U.S. 372, 380 (2007) (citation omitted).
III. Discussion
A. Respondent’s Motion to Deem his First Requests Admitted
The Respondent argues that the court should deem its First Requests to be admitted
because the Secretary filed its response to his requests eight days after the prescribed 25-day
limit. Resp. Mot. at 3-4. Respondent argues that the court should look at both Commission Rule
58(b) and Rule 36 of the Federal Rules of Civil Procedure to hold that the untimely filing
requires admission of its Requests. Id.
29 C.F.R. § 2700.58(b) provides:
Any party, without leave of the Judge, may serve on another party a written
request for admissions. A party served with a request for admissions shall respond
to each request separately and fully in writing within 25 days of service, unless
the party making the request agrees to a longer time. The Judge may order a
shorter or longer time period for responding. A party objecting to a request for
admissions shall state the basis for the objection in its response. Any matter
admitted under this is conclusively established for the purpose of the pending
proceeding unless the Judge, on motion, permits withdrawal or amendment of the
admission.

40 FMSHRC Page 959

Regarding time to respond to Requests for Admissions Rule 36 of the Federal Rules of
Civil Procedure states:
A matter is admitted unless, within 30 days after being served, the party to whom
the request is directed serves on the requesting party a written answer or objection
addressed to the matter and signed by the party or its attorney. A shorter or longer
time for responding may be stipulated to under Rule 29 or be ordered by the court.
Fed. R. Civ. P. 36(a)(3).
The court declines to deem the Respondent’s Requests as admitted in these
circumstances. As an initial matter, the court finds that Commission Rule 58 does not require
requests for admission to be deemed admitted merely because the response to those requests was
untimely. See Michael Wilson v. Armstrong Coal Co., Inc., 40 FMSHRC 221, 227 (Jan, 2018)
(ALJ) (holding that Commission Rule 58 permits the Judge to determine when a party must
respond to Requests for Admissions, and thus it is unnecessary to look to the Federal Rules to fill
in a perceived gap regarding when Requests should be deemed admitted.) The Rule does not
speak to when, if ever, requests for admission must be deemed admitted. Rather, the Rule grants
Commission Judges the discretion to determine whether a longer or shorter time period for
responding is proper, and thus gives Judges the discretion to determine when requests should be
admitted.3 Id.
Respondent argues that the mere fact that an ALJ may adjust the time for filing responses
to admissions “should not relieve the party from following the Commission’s rules or eliminate
the need for a mechanism to encourage or enforce compliance.” Resp. Rep. at 4. Respondent
continues that Commission judges do retain some discretion in the matter, but that such
discretion should be used even handedly and not simply when it favors the Secretary’s position.
Id. The Court agrees wholeheartedly with these contentions and notes that the case law provided
by the Respondent (and cited by both parties) indicates that previous judges have used their
discretion consistently and according to the circumstances surrounding the case.
As a general course of practice, Commission Judges have deemed untimely responses
admitted when the non-requesting party failed to respond to requests or motions on multiple
occasions or for significant periods of time. In Raymond Sand and Gravel, 34 FMSHRC 1456,
1457 (June 2012) (ALJ), for example, the court did deem the Secretary’s request admitted after a
mere six-day delay. However, aside from the late filing, the court noted that the operator also
ignored an email from the court and failed to respond to the Secretary’s motion for summary
judgment. Id. In Mariposa Aggregates, 1997 WL 138295, at *2 (FMSHRC Mar. 1997) (ALJ),
the court deemed the amended requests admitted after the operator failed to respond to the
Secretary’s amended motions for three months. Thus, Judges are inclined to deem late responses
admitted when circumstances go well beyond untimely filing and impede the discovery and
litigation process as a whole.

3

The Court notes that Federal Rule of Civil Procedure Rule 36 also gives the
court discretion to order a shorter or longer response time. Fed. R. Civ. P. 36(a)(3).

40 FMSHRC Page 960

Commission Judges have been less inclined to admit requests outright in cases where the
non-requesting party has shown willingness to participate in the litigation and discovery process
or does in fact respond to a Request, albeit in an untimely manner. See Armstrong Coal Co., Inc.,
40 FMSHRC at 226-27 (declining to deem disputed requests admitted despite a 367-day delay in
response because discovery continued and pleadings were filed); Durbin Coal, Inc., 22
FMSHRC 1150 (Sept. 2000) (ALJ) (declining to deem untimely answered and disputed requests
admitted because less drastic remedies, such as directing supplemental responses or deferring
resolution of issues until a later date, still existed). Commission case law thus demonstrates that
its Judges have utilized their discretion evenhandedly and based on the procedural circumstances
of the case. The mere fact that these past cases have benefited the Secretary does not suggest
otherwise.
Here, the facts and current procedural posture in the instant case suggest that deeming the
First Request admitted would be a harsh outcome, especially in support of a summary decision
motion. The Secretary filed its responses to Mr. Pate’s requests on May 7, 2018, eight days after
the 25-day deadline (or three days after the 30-day deadline prescribed in Federal Rule 36) and
the same day that Respondent filed his motion for summary decision. See Sec’y Opp. at 3. The
delay was due to the Secretary’s unintentional failure to calendar the response deadline, and
there is no indication that he has been generally unresponsive throughout the course of litigation
or discovery. Id. Furthermore, the court sees no indication that the 8-day delay prejudiced the
Respondent in any manner or drastically affected the discovery or litigation schedule.
Respondent argues that the Secretary was further non-compliant because the late
responses were substantively inadequate and did not comply with Rule 58(b). Resp. Rep. at 5.
The court declines to consider the adequacy of the Secretary’s responses in determining whether
summary judgment is appropriate. The proper time to resolve discovery disputes is not within a
motion for summary decision, and the court notes that there are “other, less drastic, and here
more appropriate alternatives” than deeming the Requests admitted when a party objects to the
sufficiency of the responses. See Durbin Coal, Inc., 22 FMSHRC 1150 at *3. (Sept. 2000) (ALJ).
In sum, to deem the requests admitted despite the fact that the Secretary has already
submitted its late responses seems extreme given the present stage of discovery. The court
therefore declines to deem the Requests admitted, and for that reason need not entertain the
Secretary’s motion for leave to withdraw the admissions.4
Accordingly, the Respondent’s Motion to deem its First Requests admitted is DENIED,
and for these same reasons, the Secretary’s request for leave to withdraw the admissions is
DENIED.

4

The court wishes to stress that this order should not in any way be viewed as a statement
condoning the Secretary’s untimeliness, nor does it give the Secretary license to ignore the
requirements of Rule 58(b). The court will view any future violations in a more critical light
absent good cause.

40 FMSHRC Page 961

B. Summary Decision
The Commission has stated that summary decision is an extraordinary procedure, and has
analogized it to Rule 56 of the Federal Rules of Civil Procedure, under which granting summary
decision is authorized only upon proper showings of a lack of genuine, triable issues of material
fact.” West Alabama Sand & Gravel, Inc., 37 FMSHRC 1884, 1887 (Sept. 2015) (citations
omitted). In considering a motion for summary decision, a Judge’s role is limited to a
determination of whether the case can be decided without resolving factual disputes, and may not
weigh the evidence or engage in fact-finding beyond the facts established in the record. Id.
Given the court’s above denial of the Respondent’s motion on the First Requests and
viewed in the light most favorable to the non-moving party, it is clear that genuine issues of
material fact exist in this case. The Secretary’s Response to Respondent’s First Requests for
Admission identifies various disputes regarding Mr. Pate’s statements regarding his actions and
directions to Mr. Clark prior the accident, Mr. Clark’s actions prior to the accident, and the
condition of the mine and the end loader at the time of the accident.5 See Sec’y Opp., Ex. B.
These disputes all speak directly to Mr. Pate’s liability under section 110(c) and cannot be
resolved based on the information before without improperly weighing the evidence.
Separate and apart from the facts in the First Request, the Secretary identified a number
of factual disputes that bear directly on Mr. Pate’s liability under section 110(c) and the cited
standard. See Sec’y Opp. at 9-16. Those factual disputes include, but are not limited to, whether
the position of the end loader relative to Mr. Pate prevented him from noticing the absence of
cribbing, whether lighting conditions at the time of the accident affected Mr. Pate’s ability to
notice that the end loader was not cribbed, and whether standard cribbing methods exist at the
mine. Id. These issues speak directly to whether Mr. Pate should have noticed the absence of
standard cribbing practices, whether those practices exist at the mine, and whether mine
conditions indicate that Mr. Pate knew or should have known that the front end loader was not
properly cribbed at the time of the accident.
On a broader scale, the statements of Mr. Pate and MSHA Special Investigator Phillip
Stanley offer conflicting testimony on these material facts and many others. See Sec’y Opp., Exs.
A, B. Most notably, this case turns on whether Mr. Pate “knowingly authorized, ordered, or
carried out” the violation. Resp. Rep. at 16. At this time the court has little to no evidence before
it beyond the conflicting testimony regarding the conditions at the mine and the facts
surrounding the accident and Mr. Pate’s actions. The court would thus have to resolve conflicts
in testimony to make the fact-finding and credibility determinations required to determine Mr.
Pate’s state of mind at the time of the accident, and summary decision is not the proper means by
which to make those determinations. See KenAmerican Resources, Inc., 38 FMSHRC 1943,

5

Respondent argues that the Secretary’s Response to Mr. Pate’s First Request do not
support his list of Disputed Material Facts because the Secretary did not actually deny any of the
Requests. Resp. Rep at 11. The court disagrees. The Court reads the Secretary’s refusal to admit
the truth of Mr. Pate’s statements as a denial of the substance of those statements. See Sec’y
Opp., Ex. B.

40 FMSHRC Page 962

1953 n. 11 (Aug. 2016) (“[A] hearing, with the opportunity to observe a witness’ demeanor, is
the proper venue to determine intent and credibility, not a summary decision motion”).
Respondent contends that the Secretary’s attached Declaration of Phillip Stanley should
not be considered because he did not have “personal knowledge” of the accident in accordance
with Rule 67. Resp. Rep. at 8-9. The court disagrees and notes that Mr. Stanley does have
personal knowledge of the accident investigation that prompted the Secretary to file the petition
against Mr. Pate in the first place. Mr. Stanley conducted his own interview with Mr. Pate and
states that facts he found during his investigation contradicted Mr. Pate’s statements during that
interview. See Sec’y Opp., Ex. A at 3-4. Inspector Stanley also has personal knowledge of
standard mining practices that are relevant to determining Mr. Pate’s liability under section
110(c). Again, all of those factors are disputed and material in this case, and rest on
determinations of witness credibility and additional fact-finding that the court is restrained from
making in entertaining a motion for summary decision.
Furthermore, even assuming that no dispute in material facts exists based on the
Secretary’s responses to the First Requests, the court refuses to disregard the findings of
MSHA’s investigation and award Mr. Pate summary judgment in the action against him simply
because he was the only one present at the time of the accident. Mine Inspectors are rarely, if
ever, present at mines at the time of serious accidents, and to rule in this manner would not only
be contrary to the presumption of viewing the facts in light most favorable to the non-moving
Secretary, but would severely hinder MSHA’s ability to enforce 110(c) actions and bring them to
hearing.
I therefore find that multiple genuine issues of material fact still exist and that summary
decision is not appropriate at this time.
Accordingly, the Respondent’s Motion to Deem its First Discovery Requests as admitted
is DENIED. Furthermore, Respondent’s Motion for Summary Decision is DENIED.

/s/ David P. Simonton
David P. Simonton
Administrative Law Judge

40 FMSHRC Page 963

Distribution: (U.S. First Class Mail and e-mail)
Travis W. Gosselin, Attorney, U.S. Department of Labor, Office of the Solicitor, 8th Floor, 230
South Dearborn Street, Chicago, IL 60604
Jason Hardin, Attorney, Fabian VanCott, 215 South State Street, Suite 1200, Salt Lake City, UT
84111
Joseph M. Kellmeyer, Attorney for Bradley Pate, Thompson Coburn LLP, One US Bank Plaza,
St. Louis, MO 63101

40 FMSHRC Page 964

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004-1710
PHONE: (202) 434-9933 | FAX: (202) 434-9949

June 5, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. WEVA 2017-0220
A.C. No. 46-06618-427999

v.
ROCKWELL MINING, LLC,
Respondent.

Mine: Gateway Eagle Mine

ORDER REGARDING MOTION TO CERTIFY FOR INTERLOCUTORY REVIEW
Before: Judge Moran
The Secretary of Labor has filed a motion to certify for interlocutory review this Court’s
Decision Denying Settlement in this docket. (“Motion”) The Motion incorrectly lists the docket
number as “WEVA 2018-0220,” but the correct docket number is WEVA 2017-0220. The
Court’s Decision Denying Settlement is included within this Order as an appendix.
The Commission procedural rule pertaining to interlocutory review provides that
“[i]nterlocutory review by the Commission shall not be a matter of right but of the sound
discretion of the Commission.” 29 C.F.R. § 2700.76(a). The Secretary seeks the following
question for certification for interlocutory review: “[w]hether the ALJ erred as a matter of law in
rejecting as ‘facts in support’ of the proposed settlement: (1) the Secretary’s stated enforcement
priorities, and (2) the Secretary’s identification of the facts disputed by the operator pertaining to
the cited violations.”1 Motion at 1 (emphasis added).
The Motion states that “[t]his case involves a question of law as to whether the ALJ
interpreted Commission Rule 31(b)(1)’s phrase ‘facts in support’ too narrowly.” Motion at 2.
However, the Motion is an oddity because, although the Secretary acknowledges that
“Commission Rule 31(b)(1) (29 C.F.R. § 2700.31(b)(1)) requires a settlement motion to include
‘facts in support’ of the penalty agreed to by the parties,” the Motion never identifies the facts in
support of the penalty reduction which the Secretary contends were interpreted too narrowly. Id.
at 1.
The Court certifies that its ruling denying settlement “involves a controlling question of
law and that in [its] opinion immediate review will materially advance the final disposition of the
proceeding.” 29 C.F.R. § 2700.76(a)(1)(i). The Court grants the Secretary’s Motion, but on the
1

It is noted that the Secretary presented the same language in this motion as it did in in
its motion seeking interlocutory review for WEVA 2018-0165, Sec. v. Ohio County Coal, filed
the same day as this case.

40 FMSHRC Page 965

basis that “[u]nless otherwise specified in the Commission’s order granting interlocutory review,
review shall be confined to the issues raised in the Judge's certification .…” 29 C.F.R. §
2700.76(d). Here, examining the twin bases relied upon by the Secretary as potential error by the
Court, as noted above, the “facts in support” of that claim are “(1) the Secretary’s stated
enforcement priorities, and (2) the Secretary’s identification of the facts disputed by the operator
pertaining to the cited violations.” Motion at 1.
As to the first basis, the Court views that it is inherently presently before the Commission
in its reconsideration of Secretary of Labor v. The American Coal Company, LAKE 2011-13.
With regard to the second question posed by the Secretary in his motion for interlocutory review,
namely whether the Court erred as a matter of law in rejecting the Secretary’s identification of
the facts disputed by the operator pertaining to the cited violations, that basis was explained in
the Court’s May 9, 2018 denial of the settlement.
For each of the three citations proposed for reduction, the Secretary makes the same
incantation, to wit: “Taking into account the Respondent’s arguments, as well as the
uncertainties of litigation, the Secretary has agreed to a reduced penalty.” Secretary’s November
30, 2017 Motion to approve settlement, regarding Citation Nos. 9068232, 9070540, and
9070542.
In rejecting the settlement, the deficiencies were explained by the Court:
For the latter two of the three citations discussed above, the Secretary provided no
substantive or case-specific information following the Respondent’s contentions.
The repeated allusion to uncertainties of litigation does nothing to help the Court
discern whether there is a legitimate dispute of fact or law at issue here.
For the first citation, Citation No. 9068232, the Secretary noted that “no rock dust
was observed in the cracks in the ribs indicating that the cracks were fairly
recent.” Motion at 3. While this additional information is at least somewhat
helpful for the Court, the Secretary goes on to repeat the formulaic statement,
“Taking into account the Respondent’s arguments, as well as the uncertainties of
litigation, the Secretary has agreed to a reduced penalty.” Id. The Court has no
representation from the parties that there is a legitimate dispute on any issue of
fact or law. Indeed, while the Court could infer from the representations regarding
Citation No. 9068232 that there would be evidence regarding the condition
developing recently, which would therefore be relevant to the level of negligence
on behalf of the operator, the Secretary acknowledges this only obliquely.
Again, the Secretary declined to provide any substantive information with regard
to the proposed changes for Citation Nos. 9070540 and 9070542.
Decision Denying Settlement at 3.
The Court expressed in its Decision Denying Settlement that “[i]f this settlement
motion were held to be sufficiently supported, then the Secretary will effectively have no

40 FMSHRC Page 966

obligation to provide the Commission with any real information in the context of
settlements.” Id. at 3-4.
Notwithstanding the Court’s view that the first issue is inherently before the Commission
in American Coal, and that, for the second issue, the motion failed to identify the disputed facts
and further that it is insufficient for the Secretary to merely identify the Respondent’s
contentions, the Court still concludes that immediate review will materially advance the final
disposition of the proceeding. Thus, as confined to the issues raised in this certification, the
question is whether a settlement must be accepted without the Secretary forthrightly
acknowledging that the Respondent has identified legitimate issues of fact, which matters are in
dispute and which can only be resolved by the hearing process, or by simply acknowledging that
the assertions made by the Respondent are acknowledged to be fact. Instead, the Secretary’s
Motion to Approve Settlement only offers “[t]aking into account the Respondent’s arguments,”
without any affirmative statement about their worth. Motion to approve settlement at 3-4. It is
the view of this Court that it is too coy for the Secretary to merely identify facts disputed by the
operator, as a motion for settlement must do more, if section 110(k)’s requirements are to have
genuine meaning.
Pursuant to 29 C.F.R. § 2700.76(d), “Scope of review,” the Court’s granting of
interlocutory is confined to the issue in its certification, as described above.
Accordingly, the Secretary’s Motion to certify for interlocutory review is GRANTED.
SO ORDERED.

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

Distribution:
Robert S. Wilson, Esq., U.S. Department of Labor, 201 12th Street South, Suite 401, Arlington,
VA 22202-5450
John R Opperman, CMSP GSP, Safety Manager, Blackhawk Mining LLC, 3228 Summit Square
Place, Suite 180, Lexington, KY 40509

40 FMSHRC Page 967

APPENDIX
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004-1710
PHONE: (202) 434-9933 | FAX: (202) 434-9949

May 9, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 2017-0220
A.C. No. 46-06618-427999

ROCKWELL MINING, LLC,
Respondent.

Mine: Gateway Eagle Mine

DECISION DENYING SETTLEMENT
Before: Judge Moran
This case is before the Court upon a petition for assessment of a civil penalty under
section 105(d) of the Federal Mine Safety and Health Act of 1977. On November 30, 2017 the
Secretary filed a motion to approve settlement. For the following reasons, the factual support
presented for the proposed penalty reductions is inadequate, and the motion must be denied.
Seven citations are involved in this docket. The settlement motion proposed penalty
reductions for three citations, and the Respondent agreed to pay the proposed penalties for three
more, with no modifications. The motion also informed the Court that the Secretary had decided
to vacate Citation No. 9070543, which alleged a violation of 30 C.F.R. § 75.400-2. The total
proposed penalty amount was $6,977.00, and the proposed settlement is for $5,232.00. This
amounts to a 25% reduction from the total proposed penalty.
Citation No. 9068232, which alleged a violation of 30 C.F.R. § 75.202(a), was proposed
for a penalty reduction from $446.00 to $244.00. This citation alleged that,
on the CO #2 section, 012/013 MMU, the rib area of the #3 entry, on the inby
right rib corner across from the loading point, has not been supported or otherwise
controlled to protect persons from hazards related to fall of the rib. When
checked, the rib corner was found cracked and loose. When the rib was pulled, the
corner fell in two pieces. When measured, one piece was approximately
18”x21”x10” and was rectangular in shape and the second piece was
approximately 12”x21”x9” and was triangular in shape.
Citation No. 9068232 (formatting added).

40 FMSHRC Page 968

The Secretary alleged that this violation was S&S, reasonably likely to result in lost
workdays or restricted duties for one person, and the result of moderate negligence.
In support of the proposed penalty reduction for this citation, the motion stated,
the Respondent argues that the evidence would establish that it was not negligent.
The Respondent was taking steps to control the ribs by installing rib bolts
throughout the section as needed. Furthermore, the cited conditions likely
occurred since the most recent examination in the area. The Secretary notes that
no rock dust was observed in the cracks in the ribs indicating that the cracks were
fairly recent. Taking into account the Respondent’s arguments, as well as the
uncertainties of litigation, the Secretary has agreed to a reduced penalty.
Motion at 3.
Citation No. 9070540, which alleged a violation of 30 C.F.R. § 75.380(d)(4), was
proposed for a penalty reduction from $2,598.00 to $2,000.00. The citation alleged that,
The operator failed to maintain 6 foot of clearance on the branch line leading from
secondary escapeway lifeline to the section refuge chamber, on 1 Section (010
and 011 MMU), in that upon arrival to the section a 6 man Diesel mantrip was
observed parked under the branch line leading from the secondary escapeway
lifeline to the section refuge chamber.
Citation No. 9070540.
The Secretary alleged that this violation was S&S, reasonably likely to result in
permanently disabling injuries for 10 persons, and the result of moderate negligence.
In support of the proposed penalty reduction for this citation, the Motion stated,
the Respondent argues that the evidence would establish that it was not negligent
because there is no evidence as to how long the referenced mantrip was parked
beneath the branch line or that management was aware of its presence. Taking
into account the Respondent’s arguments, as well as the uncertainties of litigation,
the Secretary has agreed to a reduced penalty.
Motion at 3-4.
Citation No. 9070542, which alleged a violation of 30 C.F.R. § 75.604(b),was proposed
for a penalty reduction from $666.00 to $443.00. The citation alleged that,
The operator failed to effectively insulate and seal a permanent splice in the
energized 995 volt trailing cable suppling [sic] power to the Co.# 251 continuous
mining machine located on the right side of the 1 Section (010and 011MMU), in

40 FMSHRC Page 969

that an opening was observed in the permanent splice exposing the energized
insulated inner conductors.
Citation No. 9070542.
The Secretary alleged that this violation was S&S, reasonably likely to result in
permanently disabling injuries for one person, and the result of moderate negligence.
In support of the proposed penalty reduction for this citation, the Motion stated,
the Respondent argues that the levels of gravity and negligence were overwritten.
The Respondent would argue that the violation should not have been issued as
S&S because there were no exposed inner leads in the splice. Respondent also
argues that the cable is being moved on a continuous basis and the damage to the
splice likely occurred sometime after the most recent weekly electrical
examination. Taking into account the Respondent’s arguments, as well as the
uncertainties of litigation, the Secretary has agreed to a reduced penalty.
Motion at 4.
Discussion
The Court has considered the representations submitted in this case and concludes that
the proffered settlement is not appropriate under the criteria set forth in section 110(i) of the Act.
The Court recognizes that the penalty reduction proposed here is relatively modest, but as it has
explained before, Commission approval under section 110(k) is not simply about dollars. For the
latter two of the three citations discussed above, the Secretary provided no substantive or casespecific information following the Respondent’s contentions. The repeated allusion to
uncertainties of litigation does nothing to help the Court discern whether there is a legitimate
dispute of fact or law at issue here.2
For the first citation, Citation No. 9068232, the Secretary noted that “no rock dust was
observed in the cracks in the ribs indicating that the cracks were fairly recent.” Motion at 3.
While this additional information is at least somewhat helpful for the Court, the Secretary goes
on to repeat the formulaic statement, “Taking into account the Respondent’s arguments, as well
as the uncertainties of litigation, the Secretary has agreed to a reduced penalty.” Id. The Court
has no representation from the parties that there is a legitimate dispute on any issue of fact or
law. Indeed, while the Court could infer from the representations regarding Citation No. 9068232
that there would be evidence regarding the condition developing recently, which would therefore

2

The Court notes that Attorney Robert Wilson began representing the Secretary in this
matter on October 12, 2017 and filed the instant motion. As such, Mr. Wilson is well aware from
previous denials of inadequately supported motions of the type of information the Court requires
from the Secretary in order to meet the Commission’s responsibilities under Section 110(k) of
the Mine Act, assuming of course that such representations obtain in this case.

40 FMSHRC Page 970

be relevant to the level of negligence on behalf of the operator, the Secretary acknowledges this
only obliquely.
Again, the Secretary declined to provide any substantive information with regard to the
proposed changes for Citation Nos. 9070540 and 9070542. If this settlement motion were held to
be sufficiently supported, then the Secretary will effectively have no obligation to provide the
Commission with any real information in the context of settlements.3
WHEREFORE, the motion for approval of settlement is DENIED.
The parties are ORDERED to confer with the Court within ten (10) days of this order so
that a conference call may be held to set this matter for a prompt hearing.

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

Distribution:
Robert S. Wilson, 1201 12th Street South, Suite 401, Arlington, VA 22202-5450
John R. Opperman, Blackhawk Mining LLC, 3228 Summit Square Place, Suite 180, Lexington,
KY 40509
/KP

3

This is consistent with the Secretary’s extraneous statement that that he has weighed the
matter, considered the cost of going to trial, formed the belief that he has maximized his
prosecutorial impact, and settled the matter, which in his sole judgment, is on appropriate terms,
and which ends with his unusual conclusion that even if he won at trial, and even if the judgment
were greater than the settlement, such a result would not necessarily be a better outcome. Motion
at 2.

40 FMSHRC Page 971