MAY AND JUNE 2008

COMMISSION ORDERS
05-01-2008
05-01-2008
05-01-2008
05-08-2008
05-08-2008
05-08-2008
05-08-2008
05-08-2008
05-08-2008
05-08-2008
05-16-2008
05-16-2008
05-16-2008
05-16-2008
05-19-2008
05-20-2008
05-22-2008
05-22-2008
05-27-2008
05-29-2008
06-06-2008
06-06-2008
06-11-2008
06-18-2008
06-18-2008
06-18-2008
06-18-2008
06-23-2008

Warrior Coal, LLC.
W asbington Rock Quarries, Inc.
Banner Blue Coal Company
Cargill Deicing Technology
Empire Iron Mining Partnership
Tilden Mining Company, LLC.
Barrick Goldstrike Mines, Inc.
Polycor Colorado Stone Quarries
Teck-Pogo, Inc.
Spartan Mining Company, Inc.
James Hamilton Construction
Twentymile Coal Company
James Hamilton Construction
Eastern Associated Coal, L~C.
H.B. Mellott Estate, Inc.
Kaw Valley Sand & Gravel, Inc.
Elk Run Coal Company, Inc.
McElroy Coal Company
AAA Ready-Mix, 11
Dana Mining Company, Inc.
Lyons Salt Company
Simmons Fork Mining, Inc.
Elk Run Coal Company, Inc.
Red River Coal Company, Inc.
U.S. Borax, Inc.
Mass Transport, Inc.
U.S. Silica Company
Climax Molybdenum Company

KENT 2008-470
WEST 2008-336-M
VA
2008-95
CENT 2008-218-M
LAKE 2008-210-M
LAKE 2008-269
WEST 2008-374-M
WEST 2008-475-M
WEST 2008-754-M
WEVA 2008-704
CENT 2008-347-M
WEST 2008-375
WEST 2008-547-M
WEVA 2008-488
PENN 2008-190-M
CENT 2008-412-M
WEVA 2008-434
WEVA 2008-513
WEST 2008-383-M
WEVA 2008-510
CENT 2008-332-M
WEVA 2008-538
WEVA 2008-492
2008-258
VA
WEST 2008-997-M
WEVA 2008-425
WEVA 2008-703
WES.T 2008-473-M

Pg.345
Pg.349
Pg.353
Pg.356
Pg.359
Pg.363
Pg.366
Pg.370
Pg.373
Pg. 376
Pg. 380
Pg.384
Pg.388
Pg.392
Pg.396
Pg.399
Pg. 402
Pg.405
Pg.409
Pg. 413
Pg.416
Pg. 419
Pg.423
Pg.427
Pg.430
Pg. 433
Pg.436
Pg.439

CENT 2006-205-M
KENT 2008-469-R

Pg.443
Pg.457

KENT 2006-506-D

Pg.459

KENT 2006-506-D
PENN 2006-143-R
YORK 2007-52-D
PENN 2008-257-R
WEVA 2008-327

Pg.500
Pg.504
Pg.523
Pg. 532
Pg.535

ADMINISTRATIVE LAW JUDGE DECISIONS
05-08-2008
05-13-2008
05-19-2008
06-05-2008
06-09-2008
06-13-2008
06-20-2008
06-20-2008

Nelson Quarries, Inc.
Webster County Coal, LLC.
Sec. Labor o/b/o Lawrence Pendley
v. Highland Mining Co., LLC. (Interim)
Sec. Labor o/b/o Lawrence Pendley
v. Highland Mining Co., LLC. (Final)
Haines & Kibblehouse, Inc.
Michael A. Fulmer v. Mettiki Coal Corporation
Emerald Coal Resources, LP
White Buck Coal Company
i

...

06-24-2008
06-25-2008

SCP Investments, LLC.
Sec. Labor o/b/o Daniel R. Brusca
v. Twentymile Coal Company

SE 2006-148-M

Pg.544

WEST 2008-1099-D

Pg. 552

SE
2008-148-M
WEST 2008-229-M

Pg.563
Pg.567

ADMINISTRATIVE LAW JUDGE ORDERS

05-08-2008
05-30-2008

SCP Investments, LLC.
Southern Nevada Paving

ii

MAY AND JUNE 2008

There were no cases in which REVIEW was either granted or denied.

iii

COMMISSION ORDERS

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

May l, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. KENT 2008-470
A.C. No. 15-17216-131881

v.

Docket No. KENT 2008~471 ·
A.C. No. 15-17216-129480

WARRIOR COAL, LLC

BEFORE: Duffy, Chairman; Jordan and Young, Commissioner8 1
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) (''Mine Act"). On January 31, 2008, the Commission received from·Warrior
Coal, LLC
arrior") two letters seeking to reopen penalty assessments that had become final
orders of the Com.mission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).2

e'W

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

t Commissioner Robert F. Cohen, Jr. assumed office after this case had been filed. A
new Commissioner possesses legal authority to participate in pending cases, but such
participation is discretionary. Mid-Continent Res., Inc., 16 FMSHRC 1218 n.2 (June 1994). In
the interest of efficient decision making, Com.missioner Cohen has elected not to participate in
this matter.

2

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers KENT 2008-470 and KENT 2008-471, both captioned Warrior
Coal, LLC, and both involving similar procedural issues. 29 C.F.R. § 2700.12.
30 FMSHRC 345

On October 18 and November 15, 2007, the Department of Labor's Mine Safety and
Health Administration ("MSHA") issued Proposed Penalty Assessment Nos. 000129480 and
000131881 , respectively, to Warrior for several citations. Warrior states that on November 16,
2007, it timely sent to MSHA its contest of the proposed penalties for 17 of the citations listed in
Proposed Penalty Assessment No. 000129480. The operator explains that it failed to timely
contest proposed penalties listed in Proposed Assessment No. 000131881 due to the "mine
Holiday shutdown" and the employment of temporary clerical help during December 2007.
As to Proposed Penalty Assessment No. 000129480, the Secretary's response does not
state whether the contest qf the proposed penalties were received, but she does not oppose
reopening the matter. The Secretary states that she does not oppose Warrior's request to reopen
Proposed Penalty Assessment No. 000131881.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section lOS(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (".!WR"). In evaluating requests to
reopen final section 105(a) orders, the .Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F .R.
§ 2700.1(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
&e Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

30 FMSHRC 346

Having reviewed Warrior's requests, in the interests ofjustice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether good cause exists for
granting relief from the final orders. Ifit is detennined that such relief is appropriate, this case
shall proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part
2700.

~t-~-

M~u~, Commiss~

30 FMSHRC 347

Distribution:
Kevin Vaughn
Director of Safety & Training
Warrior Coal, LLC.
57 J. E. Ellis Road
Madisonville, KY 42431
W. Christian Schumann, Esq.
Office of the Solicitor
U .S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296

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

30 FMSHRC 348

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

May 1, 2008
SECRETARY OF LABOR
M1NE SAFETY AND HEALTH
ADMJNISTRATION (MSHA)

.Docket No. WEST 2008-336-M
A.C. No. 45-03455-126242

v.
WASHINGTON ROCK QUARRJES, INC.

BEFORE: Duffy,. Chairman; Jordan and Young, Commissioners 1

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health.Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On January 16, 2008, the. Commission received from
Washington Rock Quarries, Inc. ("Washington Rock") a motion to reopen a penalty assessment
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an·operatorwho 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).
Washington Rock states that from December 2006 through March 2007, the Department
of Labor's Mine Safety and Health Administration ("MSHA") issued it approximately 51
citations. The operator asserts that as it received the proposed assessments for the citations, it

Commissioner Robert F. Cohen, Jr. assumed office after this case had been filed. A
new Commissioner possesses legal authority to participate in pending cases, but such
participation is discretionary. Mid-Continent Res., Inc., 16 FMSHRC 1218 n.2 (June 1994). In
the interest of efficient decision making, Commissioner Cohen has elected not to participate in
this matter.
t

30 FMSHRC 349

timely contested them. It states that the 11 cases involving the citations issued between
December and March are currently pending before an administrative law judge. According to
Washington Rock, the parties stipulated that all of those proceedings should be stayed pending
the special assessment of penalties for citations 6396328 and 6396329 (which Washington Rock
claims it intended to contest when they arrived). The proceedings were consolidated and stayed.
Washington Rock further states that during the last week of September 2007, one of its
employees, Brittany Perkins, received proposed assessments for several citations, including
citations 6396328 and 6396329. The operator asserts that Perkins was not involved in contesting
the citations issued between December and March. According to Washington Rock, Perkins
showed the proposed assessments to Harry Hart, the president of Washington Rock. Hart told
her that Washington Rock was contesting citations 6396328 and 6396329, and not contesting the
other three citations. Perkins understood Hart to mean that Washington Rock had already taken
the steps necessary to contest citations 6395328 and 6396329. In late November she gave Emily
Hart (who was responsible for contesting the citations) a number of documents for filing,
including the proposed assessments for citations 6396328 and 6396329. The operator claims that
this was the first time that Emily Hart saw that.MSHA had proposed special assessments for
these citations. She immediately sent a letter to MSHA to contest the assessments and request a
hearing. However, Washington Rock received correspondence from MSHA stating that the
proposed penalty had become a final order on November 9, 2007. The Secretary states that she
does not oppose Washington Rock's request for relief.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become :final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Conunission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ('<the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed.that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

30 FMSHRC 350

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

30 FMSHRC 351

Distribution:
Paul M . Nordsletten, Esq.
Davis Grimm Payne & Marra
701 Fifth Avenue, Suite 4040
Seattle, WA 98104 ·
W. Christian Schumann, Esq.
Office of the Solicitor
U .S. Department of Labor
1100 Wilson Blvd., 221ld Floor
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U .S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Admini~ative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D .C. 20001 -2021

30 FMSHRC 352

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

May 1, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. VA 2008-95
A.C. No. 44-07046-122850

v.
BANNER BLUE COAL COMPANY

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

§ 801 et seq. (2000) (''Mine Act"). On January 28, 2008, the Commission received from
Banner Blue Coal Company ("Banner Blue") 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).
On March 28, 2008, the Commission received from Banner Blue a ''notice of withdrawal
of motion to re-open," in which the operator asked that its motion to re-open be withdrawn and
that the Commission dismiss this proceeding.

1

Commissioner Robert F. Cohen, Jr. assumed office after this case had been filed. A
new Commissioner possesses legal authority to participate in pending cases, but such
participation is discretionary. Mid-Continent Res., Inc., 16 FMSHRC 1218 n.2 (June 1994). In
the interest of efficient decision making, Commissioner Cohen has elected not to participate in
this matter.
30 FMSHRC 353

Banner Blue's request is granted, and, accordingly, this proceeding is dismissed.

-

30 FMSHRC 354

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

30 FMSHRC 355

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

SUITE9500
WASHINGTON, DC 20001

May8, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. CENT 2008-218-M
A.C. No. 16-00509-130582

v.

CARGILL DEICING TECHNOLOGY
BEFORE: Duffy, Chairman; Jordan and Young, Commissioners~

ORDER
BY TIIE COMMISSION:
This matter arises under the Federal Mine.Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act''). On January 17, 2008, the Commission received a letter from
Cargill Deicing Technology ("Cargill'') requesting that the Commission reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section I 05(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On November 1, 2007, the Department of Labor's Mine Safety and Health
Administration (''MSHA'') issued to Cargill a proposed assessment (A.C. No. 000130582),
proposing civil penalties for ten citations. It appears that Cargill paid the proposed penalties for
1

Commissioner Robert F. Cohen, Jr., assumed office after this case had been filed. A
new Commissioner possesses legal authority to participate in pending cases, but such
participation is discretionary. Mid-Continent Res., Inc., 16 FMSHRC 1218 n.2 (June 1994). In
the interest of efficient decision making, Commissioner Cohen has elected not to participate in
this matter.

30 FMSHRC 356 .

nine of the citations and did not pay the proposed penalty for Citation No. 6240831. In its letter,
Cargill requests a hearing on Citation No. 6240831 . Cargill submits that it previously requested
a conference with MSHA on the citation, but that it was subsequently informed that MSHA did
not have a record of that request. Cargill states that "[d]ue to clerical error [MSHA] suggested .
that [it] re-fax the request . . . for a hearing [to the Commission]." The Secretary of Labor states
that she does not oppose Cargill's request for relief. For convenience, the Secretary attaehed a
copy of the proposed assessment, noting which penalties had been paid.
We have held that in appropriate circwnstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the ·
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief ·
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F .R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure''); JWR, 15 FMSHRC at 787. We have also observed that defau1t is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respon~ the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
We conclude. that Cargill failed to provide a sufficiently detailed explanation for its
failure to timely return the proposed assessment form contesting the proposed penalty for
Citation No. 6240831. Accordingly, in the interests ofjustice, and in consideration of the
unopposed nature of Cargill's request, we remand this matter to the Chief Administrative Law
Judge for a determination of whether good cause exists for Cargill's failure to timely contest the
penalty proposal and whether relief from the final order should be granted. If it is determined
that such relief is appropriate, this case shall proceed pursuant to the Mine Act and the
Commission's Procedural Rules, 29 C.F.R. Part 2700.
\

30 FMSHRC 357

Distribution:
Antonde Branch
Operations Coordinator
Cargill Deicing Technology
P.O. Box 106
Avery Island, LA 70513
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N .W., S~te 9500
Washington, D.C. 20001-2021

30·FMSHRC 358

FEDE~ MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY A~NUE, NW
SUiTE9500
WASHINGTON, DC 20001

May8, 2008
.

'

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMiNISTRATION (M.SHA)

Docket No. LAKE 2008-210-M
A.C. No. 20-01012-133277

v.
EMPIRE IRON MINING PARTNERSiiIP

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

§ 801 et seq. (2000) ("Mine Act"). On March 4, 2008, the Commission received from Empire
Iron Mining Partnership ("Empire") a motion by counsel seeking to reopen a penalty assessment
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
In January and March 2007, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued a citation and order, respectively, to Empire. On December 5,
2007, MSHA issued proposed penalties for the citation and order. Empire states that it intended
to contest the citation and order and the related penalties. According to Empire, because of a

1

Commissioner Robert F. Cohen, Jr., assumed office after this case had been filed. A
new Commissioner possesses legal authority to participate in pending cases, but such
participation is -dis~retionary. Mid-Continent Res., Inc., 16 FMSHRC 1218 n.2 (June 1994). In
the interest of efficient decision m.aking, .Commissioner Cohen has eleeted not to participate· in ·
this matter.
·
30 FMSHRC 359

miscommwrication between counsel and Empire's safety manager, the contest of the proposed
assessment was never sent. The Secretary state~ that she does not oppose the reopening of the
penalty assessments associated with either the citation or the order.2
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR'). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a finar order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

2

By letter dated March 19, 2008, Empire's counsel responded to the Secretary's letter of
March 12, 2008, and clarified that Empire was requesting to reopen the penalty associated with
the order, as well as the citation, and; therefore, it was amending the request for relief in its
motion to explicitly include the penalty associated with the order.

30 FMSHR.C 360

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

30 FMSHRC 361

Distribution:
R. Herny Moore, Esq.

Jackson Kelly, PLLC
Three Gateway Center

Suite 1340
40 I Liberty Avenue
Pittsburgh, PA 15222
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nc1 Floor
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, V-A. 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

30·FMSHRC 362

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

_ May8, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA)

Docket No. LAKE 2008-269
A.C. No. 20-00422-127318

v.
TILDEN MJNING COMPANY, LLC

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners'
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) {"Mine Act"). On March 14, 2008, the Commission received from Tilden
Mining Company, LLC {''Tilden") a motion by counsel seeking to reopen a penalty assessment
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On January 28, 2008, the Department of Labor's Mine Safety and Health Administration
(''MSHA") issued to Tilden a proposed penalty assessment relating to an order. According to
Tilden, it had previously contested the order. Tilden further states that it intended to contest the
penalty. However, according to Tilden, its safety manager was unable to timely contest the

1

Commissioner Robert F. Cohen, Jr., asswned office after this case bad been filed. A
new Commissioner possesses legal authority to participate in pending cases, but such
participation is discretionary. Mid-Continent Res., Inc., 16 FMSHRC 1218 n.2 (June 1994). In
the interest of efficient decision making, Commissioner Cohen has elected not to participate in
this matter.
30 FMSHRC 363

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

for

30 FMSHRC 364

Distribution:
Arthur M. Wolfson, Esq.
R. Herny Moore, Esq.
Jackson Kelly, PLLC
Three Gateaway Center
Suite 1340
401 Liberty Ave.
Pittsburgh, PA 15222
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washingto~ D.C. 20001-2021

JO FMSHRC 365

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

May8, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 2008-374-M
A.C. No. 26-01089-118111

v.
BARRICK GOLDSTRIKE MINES, INC.

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners'
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act''). On January 31, 2008, the Commission received from Barrick
Goldstrike Mines, fuc. ("Barrick") a motion by counsel seeking to reopen a penalty assessment
that bad become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On December 30, 2006, the Department of Labor's Mine Safety and Health
Administration (''MSHA") issued Citation No. 6394157 to Barrick. Barrick states that,
subsequently, it timely filed a contest of the citation and a contest of a proposed penalty of $60
set forth in Proposed Assessment No. 000115861 related to Citation No. 6394157. Barrick

1

Commissioner Robert F. Cohen, Jr., assumed office after this case had been filed. A
new Commissioner possesses legal authority to participate in pending cases, but such
participation is discretionary. Mid-Continent Res., Inc., 16 FMSHRC 1218 n.2 (June 1994). In
the interest of efficient decision making, Commissioner Cohen has elected not to participate in
this matter.
30 FMSHRC 366

explains that, by letter dated May 18, 2007, MSHA informed Barrick that it was removing
Citation No. 6394157 from Proposed Assessment No. 000115861 and thatMSHA would reassess the penalty 1Ulder a new MSHA case ni.Imber. The operator submits that, subsequently, it
was informed that Barrick was delinquent in paying a penalty 6f$5,000 for Citation No.
6394157, which was set forth in Proposed Assessment No. 000118117. Barrick states that prior
to receiving the delinquency notice, it had not received Proposed Assessment No. 000118117.
Upon investigating the matter, Barrick was informed by MSHA that it had postal tracking
information indicating that Proposed Assessment No. 000118117 had been delivered to the
operator, but that MSHA could not produce such documentation. The Secretary states that she
does not oppose th~ reopening of the penalty assessment.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
1Ulcontested assessments that have become final Commission orders 1Ulder section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under-which, for example, a party could be entitled to relief
from a final order of the Commissfon
the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("'the Comrnissipn 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. S-erv~., Inc., f1 FMSHRC 1529, 1530 (Sept. 1995).

on

30 FMSHRC 367

Havipg reviewed Barrick' s request, in the interests ofjustice, we remand this :rp.atter to
the Chief Administrative Law Judge for a determination of whether good cause exists for
Barrick' s failure to timely contest the penalty pr.o posal and whether relief from the final order
should be granted. If it is determined that such reli~f is appropriate, this case shall proceed
pursuant totheMine Act and the Commission's Procedural Rules, 29 C.F.R Part 2700.

30 FMSHRC 368

Distribution:
Michael T. Heenan, Esq.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
2400 N Street NW, 5th Floor
Washington, DC 20037
Anthony J. Marcavage, Esq.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
2400 N Street., N. W., 5th Floor
Washington, D.C. 20037"
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021 ·

·30 FMSHRC 369

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

May8, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2008-475-M
A.C. No. 05-04438-129279

v.
POLYCOR COLORADO STONE
QUARRIES

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners'
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On February 25, 2008, the Commission received from
Polycor Colorado Stone Quarries (''Polycor'') a motion made by counsel to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On October 17, 2007, the Department of Labor's Mine Safety and Health Administration
issued Proposed Assessment No. 000129279 to Polycor, proposing penalties for 12 citations that
had been issued to the company earlier in the year. According to Polycor1 it intended to contest
1

Commissioner Robert F. Cohen, Jr., assumed office after this case had been filed. A
new Commissioner possesses legal authority to participate in pending cases, but such
participation is discretionary. Mid-Continent Res.. Inc., 16 FMSHRC 1218 n.2 (June 1994). In
the interest of efficient decision making, Commissioner Cohen has elected not to participate in
this matter.
30FMSHRC 370

the penalties. However, Polycor states that, due to a misunderstanding between it and its counsel
regarding the scope of counsel's engagement in representing Polycor in contest proce~gs, a
contest of the proposed assessm~nt was not filed Wltil January 14, 2008, well after the contest
was due. The Secretary states that she does not oppose Polycor' s request to reopen the proposed
penalty assessment.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc. , 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure Wlder which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a sh~wing of good cause for a failure to
timely respond, the case may be reopened ·and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Polycor's motion, in the interests of justice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether goo<;t.cause exists for
Polycor' s failure to timely contest the penalty proposal and whether relief from the final order
should be granted. If it is determined that such relief is appropriate, this case shall proceed
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

~·®~

Michael F.D)Chairm~

ss10ner

30 FMSHRC 371

Distribution:
James J. Gonzales, Esq.
Holland & Hart, LLP
555 Seventeenth St., Suite 3200
P.O. Box 8749
Denver, CO 80201-8749
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22"d Floor
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S: Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law .Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

30 FMSHRC 372

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

May8, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) .

Docket No. WEST 2008-754-M
A.C. No. 50-01642-136446

v.
TECK-POGO, INC.

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

§ 801 et seq. (2000) (''Mine Act"). On March 31, 2008, the Commission received from TeckPogo, Inc. ("Teck-Pogo") a motion by counsel seeking to reopen a penalty assessment that may
have become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U .S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On January 24, 2008, Teck-Pogo received a proposed assessment from the Department of
Labor's Mine Safety and Health Administration (''MSHA'') as a result of 56 violations.
According to Teck-Pogo, on February 25, it mailed a contest of the assessment to MSHA, which
received it on February 29. Teck-Pogo further states that the MSHA's Office of Assessments
1

Commissioner Robert F. Cohen, Jr., assumed office after this case had been filed. A
new Commissioner possesses legal authority to participate in pending cases, but such
participation is discretionary. Mid-Continent Res., Inc., 16 FMSHRC 1218 n.2 (June 1994). In
the interest of efficient decision making, Commissioner Cohen has elected not to participate in
this matter.
30 FMSHRC 373

treated the contest as untimely filed. In response to Teck-P.ogo, the Secretary now states that the
proposed assessment was timely contested. The Secretary. further states that, because she will
process the case as timely contested, the Commission should dismiss the request to reopen as
moot.
Having reviewed Teck-Pogo' s request and the Secretary' s response, we conclude that the
proposed assessment at issue has not become a final order of the Commission because TeckPogotimely contested it. We deny Teck-Pogo's motion as moot and remand this matter to the
Chief Administrative Law Judge for further proceedings as appropriate pursuant to the Mine Act
and the Commission's Procedural Rules, 29 C.F.R . Part 2700. See Lehigh Cement Co., 28
FMSHRC 440, 441(July2006).

·ssioner

30 FMSHRC 374

Distribution:
Laura E. Beverage, Esq.
Jackson Kelly PLLC
1099 18th Street, Suite 2150
Denver, CO 80202
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22"d Floor
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

30 FMSHRC 375

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

May8, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEVA 2008-704
A.C. No. 46-08738-127002

v.
SPARTAN MINING COMPANY, INC.
BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 1
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On March 14, 2008, the Commission received from Spartan
Mining Company, Inc. ("Spartan") a motion by counsel seeking to .reopen .a penalty assessment
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On September 12, 2007, the Department of Labor's Mine Safety and Health

Ad.ministration (''MSHA") issued a proposed assessment to Spartan as a result of 70 violations at
the Diamond Energy Mine. According to Spartan, it faxed the proposed assessment to its
attorneys. However, Spartan maintains that a clerical employee at the law firm mistakenly failed

1

Commissioner Robert F. Cohen, Jr., assumed office after this case had been filed. A
new Commissioner possesses legal authority to participate in pending cases, but such
participation is discretionary. Mid-Continent Res., Inc., 16 FMSHRC 1218 n.2 (June 1994). In
the interest of efficient decision making, Commissioner Cohen has elected not to participate in
this matter.
30 FMSHRC 376

to transmit the assessment to the attorney responsible for filing. the contest. Spartan states that
the contest therefore. was·not timely filed and that it did not learn about the problem until it
received a notice ofunpaid penalties. The Secretary responds by noting that she notified Spartan
by letter dated December 13, 2007, that the civil penalties were delinquent but that Spartan did
not file a motion to reopen until March 14, 2008, some three months later. The Secretary states
that once an operator discovers that it has failed to file a notice of contest through mistake or
inadvertence, it should file a notice to reopen promptly. The Secretary concludes by stating that
she does not oppose Spartan's motion to reopen the assessment.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessment~ that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHR.C 782, 786-89 (May 1993) (".!WR"). fu evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Proc~ure"); .!WR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits pennitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

30 FMSHRC 377

Having reviewed Spartan's request, in the interests ofjustice, we remand this matter to
the Chief Administrative Law Judge {or a determination of whether good.cause exists for .
Spartan's failure to timely contest the penalty propo~als and whether relief from the final orders
should be granted. If it is detennined that such relief is appropriate, this case shall proceed.
pursuant to ~e Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

ss10ner

30 FMSHRC 378

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

30 FMSHRC 379

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

SUITE9500
WASHINGTON, DC 20001

May 16,2008
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. CENT 2008-347-M
A.C. No. 29-01968-121878

v.
JAMES HAMILTON CONSTRUCTION

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners1
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) (''Mine Act"). On March 4, 2008, the Commission received from James
Hamilton Construction ("Hamilton") a motion by counsel seeking to reopen a penalty assessment
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U .S.C. § 815(a).

On July 18, 2007, Hamilton received Citation No. 6246489 issued by the Department of
Labor's Mine Safety and Health Administration ("MSHA"). Following receipt of the citation,
Hamilton states that it misplaced the citation in a file in another docket and forwarded it to
counsel. Hamilton further states that, upon auditing its files, its counsel determined that it failed

1

Commissioner Robert F . Cohen, Jr. assumed office after this case had been filed. A
new Commissioner possesses legal authority to participate in pending cases, but such
participation is discretionary. Mid-Continent Res., Inc., 16 FMSHRC 1218 n.2 (June 1994). In
the interest of efficient decision making, Commissioner Cohen has elected not to participate in
this matter.

30 FMSHRC 380

to contest the proposed assessment because it misplaced the citation.
The Secretary states that she does not oppose the reopening of the assessment. However,
she further notes that Hamilton has filed another request to reopen, Docket No. WEST 2008-547M, that also involves misplaeement of documents. The Secretary concludes that Hamilton
should take.steps to ensure that it timely contests penalty assessments in the future. The
Secretary also riotes that Hamilton paid the penalty at issue on February 16, 2008.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR."). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR., 15 FMSHRC at 787. We have also observed that default is a
harsh remedy. and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

30 FMSHRC 381

Having reviewed Hamilton's motion to reopen and the ·Secretary's response thereto, we
conclude that Hamilton has failed to provide any specific explanation to justify its failure to
timely contest the proposed penalty assessment} Moreover, Hamilton has not submitted a reason
why it waited four months after the delinquency letter was issued before it filed its motion
seeking relief. Finally, Hamilton has failed to explain why it paid the proposed penalty in full, if
it intended to contest it or the underlying citation. Accordingly, we deny without prejudice
Hamilton's request. See James Hamilton Construction, 29 FMSHRC 569, 570 (July 2007).3

2

It appears from the wording of its motion that Hamilton's counsel is confused about the
difference between a citation and a proposed penalty assessment. The proposed penalty
assessment is the multiple page form that MSHA sends to the operator proposing penalties for
alleged violations issued with the listed citation numbers. An operator may contest a proposed
penalty assessment simply by indicating on the assessment form which cit<ttion nwnbers it
chooses to contest. A citation is a document issued by an MSHA inspector to an operator
describing an alleged violation that gives rise to a proposed penalty assessment.
3

On this date, we similarly deny without prejudice three other requests to reopen where
operators have failed to provide meaningful explanations for their failure to timely contest
proposed penalty assessments. In .the event that Hamilton chooses to refile its request to reopen,
it should disclose with specificity its grounds for relief.
30 FMSHRC 382

Distribution:
Jeffrey A. Dahl, Esq.
Keleher & McLeod, PA
P.O. Box AA
Albuquerque, NM 87103
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22"d Floor
Arlington, VA 22209-2296

Myra James, Chief
MSHA
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

30 FMSHRC 383

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

May 16, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 2008-375
A.C. No. 05-03836-127865

V.

TWENTYMILE COAL COMPANY

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners1
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) (''Mine Act"). On January 31, 2008, the Commission received from
Twentymile Coal Company ("Twentymile'') a letter requesting that the Commission reopen a
penalty assessment that had become a final order of the Commission pursuant to section 105(a)
of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On October 2, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000127865 to Twentymile, proposing penalties for
18 citations, including Citation No. 7620939. Twentymile states that the mine promptly
processed and forwarded the assessment to Twentymile's corporate office.for payment, but that
1

Commissioner Robert F. Cohen, Jr., assumed office after this case had been filed. A
new Commissioner possesses legal authority to participate in pending cases, but such
participation is discretionary. Mid-Continent Res., Inc., 16 FMSHRC 1218 n.2 (June 1994). In
the interest of efficient decision making, Commissioner Cohen has elected not to participate in
this matter.
30 FMSHRC 384

due to a processing error, the penalties that Twentymile was not contesting were not paid until
November 2007. Twentymile requests reopening so that it can contest one of the p~alties set
forth in Proposed Assessment No. 000127865. ·
The Secretary states that she does not oppose Twentymile' s request to reopen and notes
for clarity that the only penalty that is unpaid is for Citation No. 7620939. She submits that the
operator recently filed a motion in Docket No. WEST 2008-257 that was based on the same
grounds for relief as the subject request. The Secretary explains that the operator must take
different actions to either pay penalties or to contest proposed penalties, and that a delay in
payment should not result in the untimely contest of a proposed penalty.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc. , 15 FMSHRC 782, 786-89 (May 1993) ("JWR."). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F .R.
§ 2700.1 (b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure''); JWR., 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

30 FMSHRC 385.

While Twentymile's request for relief addresses the mistake that led to the late payment
of the uncontested penalties, it does not explain the company's separate failure to return the
assessment form to MSHA in order to contest the penalty that it states it intended to contest.
Consequently, we deny Twentymile's request without prejudice. See Twentymile Coal Co., 29
FMSHRC _ , slip op. at 2, Docket No. WEST 2008-257 (April 4, 2008) (citing Marsh Coal
Co., 28 FMSHRC 473, 475 (July 2006)).2

2

On this date, we similarly deny without prejudice three other requests to reopen where
operators have failed to provide meaningful explanations for their failure to timely contest
proposed penalty assessments. In the event that Twentymile chooses to refile its request to
reopen, it should disclose with specificity its grounds for relief.
· 30 FMSHRC 386

Distribution:
Lisa French
Safety Assistant
Twentymile Coal Company
29515 Routt County Road, #27
Oak Creek, CO 80467
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
MyraJatnes,Chief
Office of Civil Penalty Compliance
MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health.Review Commission
601 New Jersey Avenue, N.W., ·suite 9500
Washington, D.C. 20001-2021

' .

30 FMSHRC 387

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

May 16, 2008
SECRETARY OF LABOR.
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 2008-547-M
A.C.No.02-03171-121951

v.
JAMES HAMILTON CONSTRUCTION

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 1
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) (''Mine Act"). On Marc~ 4, 2008, the Commis5ion received from James
Hamilton Construction ("Hamilton") a motion by counsel seeking to reopen a penalty assessment
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On March 27, 2007, Hamilton received Citation No. 6415836 issued by the Department
of Labor's Mine Safety and Health Administration ("MSHA''). Following receipt of the citation,
Hamilton states that it intermingled the citation with other citations and failed to contest it. On
November l , 2007, Hamilton was notified that the civil penalty associated with the citation bad

1

Commissioner Robert F. Cohen, Jr., assumed office after this case had been filed. A
new Commissioner possesses legal authority to participate in pending cases, but such
participation is discretionary. Mid-Continent Res., Inc., 16 FMSHRC 1218 n.2 (June 1994). Jn
the interest of efficient decision making, Commissioner Cohen has elected not to participate in
this matter.
30 FMSHRC 388

become delinquent. However, Hamilton notes that the delinquency notice was incorrectly filed
with other citations that have since been settled. According to Hamilton, upon review of the file,
·
it discovered that the matter had not been resolved.
The Secretary states that she does not oppose the reopening of the assessments. However,
she further notes that Hamilton has filed another request to reopen, Docket No. CENT 2008-347M, that also involves misplacement of documents. The Secretary concludes that Hamilton
should take steps to ensure that it timely contests penalty assessments in the future.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR'). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the ca5e may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., ~nc., 17 FMSHRC 1529, 1530 (Sept. 1995).

30 FMSHRC 389

Having reviewed Hamilton's motion to reopen and the Secretary's response thereto, we
conclude that Hamiltqn has failed to provide any specific explanation to justify its failure to
timely contest the proposed penalty assessment. Hamilton has attached, as an exhtl>it to the
motion, a notice of delinquency and in its motion provided an explanation of counsel's
~shandling of that document. However, in .o rder to lay the predicate for relief from default,
Hamilton needs to explain why it failed to respond to the proposed penal_ty assessment, rather
than addressing the.delinquency notice. Accordingly, we deny without prejudice Hamilton's
request. See Ja11J,es Hamilton Construction, 29 FMSHRC 569, 570 (July 2007).2

2

On this date, we similarly deny without prejudice three other requests to reopen where

operators have failed to provide meaningful explanations for their failure to timely contest
proposed penalty assessments. In the event that Hamilton chooses to refile its request to reopen,
it should disclose with specificity its grounds for relief

30 FMSHRC 390

Distribution:
Jeffrey A. Dahl, Esq.
Keleher & McLeod, PA
P.O. Box AA
Albuquerque, NM 87103

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

30 FMSHRC 391

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

May 16, 2008
SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMJNISTRATION (MSHA)

v.

Docket No. WEYA 2008-488
A.C. No. 46-05295-133374

EASTERN ASSOCIATED COAL, LLC

BEFORE: Duffy, Chairman; Jordan and Young, Commission~ 1
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On January 31, 2008, the Commission received from Eastern
Associated Coal, LLC ("Eastern") a motion by counsel seeking to reopen a penalty assessment
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On December 5, 2007, the Department of Labor's Mine Safety and Health Administration
issued Proposed Penalty Assessment No. 0000133374 to Eastern, which proposed civil penalties
for several citations. In its request, Eastern states that it intended to contest the proposed
penalties for five of those citations. It submits that "due to a clerical error," it failed to timely file

1

Commissioner Robert F. Cohen, Jr., assumed office after this case had been filed. A
new Commissioner possesses legal authority to participate in pending cases, but such
participation is discretionary. Mid-Continent Res., Inc. , 16 FMSHRC 1218 n.2 (June 1994). In
the interest of efficient decision making, Commissioner Cohen has elected not to participate in
this matter.

30 FMSHRC 392

its contest of the proposed penalties.

In re5ponse, the Secretary states 1hat the operator failed to adequately explain its failure to
timely contest the proposed penalty assessment. She requests that the Commission direct the
operator to provide a detailed explanation as to why it believes that reopening is warranted.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure unqer which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700. l (b) (''the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR., 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

30 FMSHRC 393

Having reviewed Eastern' s motion to reopen and the Secretary's response thereto, we
agree with the Secretary that Eastern has failed to provide a sufficiently detailed explanation for
its failure to timely contest the proposed.penalty assessment Eastem's conclusory statement that
its failur~ to timely file was due to "clerical error'' does not provide the Commission with an
adequate ~asis to justify reopening" Accordingly, we.deny with9ut .prejudi~e Eastern's request.
See James Hamilton Constr., 29 FMSHRC 569, 570 (July 2007).2

'.

Mic

2

On this date, we similarly deny without prejudice three other requests to reopen where
operators have failed to provide meaningful explanations for their failure to timely contest
proposed penalty assessments. In the event that Eastern chooses to re.file its request to reopen, it
should disclose with specificity its grounds for relief.
30FMSHRC 394

Distribution:
EricR Waller, Esq.
Patriot Coal Corp.
P.O. Box 1233
Charleston, WV 25324
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296

Myra James, Chief
Office of Civil Penalty Compli~ce

MSHA
U.S. Department of Labor
1100 Wilson Blvd., 22nc1 Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

30 FMSHRC 395

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

May 19, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. PENN 2008-190-M
A.C. No. 36-08895-129558

v.
H.B. MELLOTT ESTATE, INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY TIIE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) (''Mine Act'). On February 8, 2008, the Commission received from
H.B. Mellott Estate, Inc. ("Mellott") a letter seeking to reopen a penalty assessment that may
have become a final order of the Commission pursuant to section IOS(a) of the Mine Act, 30
U .S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On October 18, 2007, the Department of Labor's Mine Safety and Health Administration
(''MSHA") issued Proposed Assessment No. 000129558 to Mellott, proposing penalties for
seven citations that had been issued to the operator earlier in the year. The company states that it
paid three of the penalties, and submits a copy of its canceled check to MSHA as proof. As for
the other four penalties, Mellott contends that it indicated on the assessment form that it was
contesting those penalties and includes a copy of the form showing as much. The operator states
that it does ..not know why the Review Commission did not receive the hearing request."
In response, the Secretary states that she does not oppose reopening the proposed
assessment as to the four penalties. She points out, however, that it is not clear from Mellott's

30 FMSHRC 396

request to reopen where it sent the penalty contest. She restates from the assessment form the
different MSHA addresses to which contests and payments are to be sent.
We have held that in appropriate circumstances, we posse~s jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). ·Jim
Walter Res., Inc., 15 FMSHRC 782, 78.6-89 (May 1993) ("JWR'). In evaluating requests to.
reopen final section 105(a) orders, the Commission has found guidaiice in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F .R.
§ 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing.of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Mellott' s reqiiest, in the interests ofjustice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether Mellott timely contested the
penalty proposal and, if not, whether good cause exists for granting relief from the final order. If
it is determined that such relief is appropriate, this case shall proceed pursuant to the Mine Act
and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

Robert F. Cohen, Jr., Commissioner

30 FMSHRC 397

Distribution:
John G. Adams, SCP
Manager
H.B. Mellott Estate, Inc.
100 Mellott Drive, Suite 100
Warfordsburg, PA 17267

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

30 FMSHRC 398

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

May20, 2008

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

Docket No. CENT 2008-412-M
A.C. No. 14-00894-118141

V.

Docket No. CENT 2008-413-M
A.C. No. 14-01667-118250

KAW VALLEY SAND & GRAVEL, INC.

· · BEFORE: Duffy, Chainnan; 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. (2000) ("Mine Act"). 1 On March 20, 2008, the Commission received from Kaw
Valley Sand and Gravel, Inc. ("Kaw Valley'') a letter seeking to reopen two penalty assessments
that may have become final orders of the Commission pursuant to section 105(a) of the Mine
Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
Kaw Valley states that, on June 5, 2007, it submitted contests of two penalty assessments
that had been issued by the Dep~ent of Labor's Mine Safety and Health Administration
(''MSHA"). The proposed penalty assessments were apparently issued to Iµw Valley on
May 16, 2007. With its request for relief, Kaw Valley submitted a Federal Express tracking
1

Pursuant to Commission Procedural Rule 12, 29 C.F.R. § 2700.12, on our own motion,
we hereby consolidate Docket Nos. CENT 2008-412-M and CENT 2008-413-M, as both dockets
involve similar procedural issues and similar factual backgrounds.

30 FMSHRC 399

receipt that indicates that the contests were delivered on JWle 6 to MSHA's Arlington, Virginia
office. Kaw Valley also states that it has been receiving Wlwarranted collection calls. In
response, the Secretary concedes that the contests were delivered to MSHA and signed for by an
MSHA employee; however, the Secre~aiy further states that MSHA' s Civil Penalty Compliance
Office has no record of having actually received the contest documents.
Having reviewed Kaw Valley's·request and the Secretary's response, we conclude that
the proposed assessments at issue have not become final orders of the Commission because Kaw
Valley timely contested them. We deny Kaw Valley's motion as moot and remand this matter to
the Chief Administrative Law Judge for further proceedings as appropriate pursµant to the Mine
Act and the Commission's Procedural Rules, 29 C.F.R. Part 270.0. See Lehigh-Cement Co., 28
FMSHRC 440, 441 (July 2006).

Robert F. Cohen, Jr., Commissioner

30 FMSHRC 400

Distribution:
Alan R. Teutemacher
Safety Director
Kaw Valley Companies, Inc.
5600 Kansas Ave.
Kansas City, KS 66106
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judgt'. Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021
··

30 FMSHRC 401

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JE.RSEY AVENUE, NW

SUITE9500
WASHINGTON, DC 20001

May22, 2008
SECRETARY OF LABO~
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEVA 2008-434
A.C. No. 46-08923-127245

V.

ELK RUN COAL COMPANY, INC.

BEFORE: Duffy, 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. (2000) ("Mine Act"). On January 31, 2008, the Commission received from Elk
Run Coal Company, Inc. (''Elk Run") a motion by counsel seeking to reopen a penalty
assessment that may have become a final order of the Commission pursuant to section 105(a) of
the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On September 13, 2007, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued Proposed Assessment No. 000127245 regarding Citation Nos.
7268835, 7273090, and 7273091 to Elk Run. Elk Run states that it timely sent its contest of the
proposed penalties for all three citations on October 18, 2007, as indicated by an attached
certified mail receipt. However, Elk Run fails to state when it received the assessment. Elk Run
alleges that it intended to pay the assessment for Citation No. 7273090, but that it inadvertently
failed to pay the assessment. On a date unstated, Elk Run later received a delinquency notice for
payment of all three proposed penalties set forth on Proposed Assessment No. 000127245. The
operator submits that, upon investigating the matter, it discovered that MSHA did not have its
contest of Proposed Assessment No. 000127245. The Secretary states that she does not oppose
the reopening of the penalty assessment.

30 FMSHRC 402

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section lOS(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("the Commission and its Judges shall .be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR., 15 FMSHRC at 787. We .l~ave also observed that default ·is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
·
Having reviewed Elk Run' s request, in the interests ofjustice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether Elk Run timely contested the
penalty proposal and, if not, whether good cause exists for granting relief from the final order. If
it is detennined that such relief is appropriate, this case shall proceed pursuant to the Mine Act
and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

/

Robert F . Cohen, Jr., Commissioner

30 FMSHRC 403

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

30 FMSHRC 404

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

May22, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTII
ADMINISTRATION (MSHA)

"Docket No. WEYA 2008-513
A.C. No. 46-01437-112645

v.
MCELROY COAL COMPANY

BEFORE: Duffy, 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. (2000) ("Mine Act''). On February 6, 2008, the Commission received from
McElroy Coal Company ("McElroy'') a motion made by counsel to reopen a penalty assessment
that may have become a final order of the Commission pursuant to section 105(a) of the Mine
Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U .S.C. § 815(a).
In May 2006, the Department of Labor's Mine Safety and Health Administration
(''MSHA") issued six orders to McElroy, and on March 5, 2007, issued Proposed Assessment
No. 000112645, which proposed penalties for each of those orders. According to McElroy, by
letter dated March 16, 2007, a copy of which is attached to the motion to n,:open, McElroy
notified MSHA that it was contesting all of the penalties.

While the Secretary states that she does not oppose McElroy' s request to reopen, she
notes that she has no record of receiving McElroy' s letter contesting the penalty assessment. She
further notes that MSHA notified McElroy by letter dated June 22, 2007, that it was delinquent in
paying the assessment. She states that McElroy sent a faxed contest to MSHA on August 31,
30 FMSHRC 405

2007, but the Sec~etary does not include a copy of that fax or addres.s whether it was a new
contest or a copy of the March 16 contest letter McElroy has now submitted to the Commission.
The Secretary states that it sent a second delinquency letter to McElroy on October 4, 2007,
which explained that the August 31 contest was ~.~t too late to be accepted.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In eyaluatingrequests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final ord~ of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing.of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

30 FMSHRC 406

Having reviewed McElroy' s request, in the interests of justice, we remand this matter to
the Chief Administrative Law Judge for a detennination of whether McElroy timely contested the
penalty proposal and, if not, whether good cause exists for granting relief from the final order.
Before granting such relief, the judge should require McElroy to more fully explain its
communications with MSHA regarding this assessment between the time the assessment was
issued in March 2007 and its filing of the request to reopen in February 2008. After that, if it is
detennined that relief from the final order is appropriate, this case shall proceed pursuant to the .
Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

~

({)_
.
,
MichaelF~~""':>
~\n
t

.

.

.

~df;;~

Robert F. Cohen, Jr., Commissioner

30 FMSHRC 407

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

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor ·
1100 Wilson Blvd., Room 2220
~lington, VA_ 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22205)-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

30 FMSHRC 408

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

SUITE9500
WASHINGTON, DC 20001

May27, 2008

SECRETARY OF LABOR, ,
MINE SAFETY AND HEALTH
ADMJNISTRATION (MSHA)
Docket No. WEST 2008-383-M
A.C. No. 45-03627-128809

v.
AAA READY-MIX INC. JI

BEFORE: Duffy, Chairm~; 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. (2000) ("Mine Act"). On February 1, 2008, the Commission received from AAA
Ready-Mix Inc. JI ("AAA") a motion by counsel seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).

AAA states that it is a small operator that was first inspected by the Department of
Labor's Mine Safety and Health Administration ("MSHA") over the course of three days in April
2007. As a result, MSHA issued 13 citations to AAA. The company states that it resolved to
seek review of all of the citations, and anticipated that the citations would be the subject of a
single case. However, only eight of the citations were the subject of the first penalty assessment,
issued by MSHA on June 6, 2007. AAA contested all eight of the penalties, but those penalties
became the subject of two dockets when the Secretary filed two petitions for assessment of
penalties, one for six of the penalties and another for the other two penalties.

30 FMSHRC 409

It was not until October 10, 2007, that MSHA issued Proposed Assessment No.
000128809, which proposed penalties for four of the five remaining citations. AAA states that it
never received that assessment and first learned that the assessment had been issued when it
received a delinquency notice with respect to those penalties in January 2008.

The Secretary states that she does not oppose the reopening of the assessment as to the
four penalties. Nevertheless, the Secretary attaches to her response documentation that Proposed
Assessment No. 000128809 was delivered to AAA on October 17, 2007, and signed for by "M.
Hansen." On the initial proposed assessment that AAA timely contested, "Marilyn Hansen" is
shown as the AAA representative to whose attention that assessment was sent.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR'). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F .R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

30 FMSHRC 410

Having reviewed AAA' s request, in the interests ofjustice, we remand this matter to the
Chief Administrative Law Judge for a detennination of whether good cause exists for AAA's
failure to timely contest the penalty proposal and whether relief from the final order should be
granted. Ifit is detennined that such relief is appropriate, this case shall procee4 pursuant to the
Mine Act and the Commission' s Procedural Rules, 29 C.F.R. Part 2700.

. ....

.Robert F. Cohen, Jr., Commissioner

30 FMSHRC 411

Distribution:
Michael T. Heenan, Esq.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
2400 N Street NW, 5111 Floor
Washington, DC 2003 7
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Lab9r
1100 Wilson Blvd., Room 2220 ·
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
U.S. Department of Labor, MSHA
1100 Wilson Blvd., 2200 Floor
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

30 FMSHRC 412

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

May29, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

DockefNo. WEYA 2008-510
A.C. No. 46-04387-121572

v.

DANA MINING COMPANY, INC.

BEFORE: Duffy, 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. (2000) (''Mine Act''). On February 6, 2008, the Commission received from Dana
Mining Company, Inc. (''Dana Mining") a motion made by counsel to reopen a penalty
assessment that may have become a final order of the Commission pursuant to section 105(a) of
the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Co~ssion. 30 U.S.C. § 815(a).
On July 10, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000121572 to Dana, proposing penalties for 26
citations that had been issued to the company during the preceding months. Dana Mining states
that on July 23, 2007, its safety director, Gary Dixon, returned the contest (orm to MSHA
indicating its intent to contest 12 of the proposed penalties and that it paid the remainder of the
penalties on August 1, 2007. However, evidence of the alleged July 23, 2007, notice of contest
was not included in the motion. In addition, Dana Mining's counsel separately submitted the
form to contest one of those 12 penalties, and the contest submitted by counsel is presently the
subject of Docket No. WEV A 2007-662. Dana Mining states that it subsequently began
receiving delinquency notices that included the 11 penalties it believes it had contested. The
30 FMSHRC 413

Secretary's response does ilot state whether the initial notice of contest was received; but does
not oppose reopening thi~ matter as to tJie 11 penalties.
We have held that in appropriate circum~ces, we possess jurisdiction to reopen
uncontested assessments that have become final ~ommission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). Jn evaluating requests to
reopen 1inal section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of <;ivil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR., 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case .may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995.).
Having reviewed Dana Mining's request, in the interests of justice, we remand this matter
to the Chief Administrative Law Judge for a determination of whether Dana Mining timely
contested the penalty proposal and, if not, whether good cause exists for granting relief from the
final order. Before granting such relief, the judge should require Dana Mining to provide
evidence of the July 23, 2007, notice of contest by Mr. Dixon. After that, if it is determ1ned that
such relief is appropriate, this case shall proceed pursuant to the Mine Act and the Commission's
Procedural Rules, 29 C.F .R Part 2700.

Michael

Robert F. Coh~ Jr., Commissioner

30 FMSHRC 414

Distribution:
Ronald M. Miller
Dana Mining Co., Inc.
308 Dents Rwt Road,
Morgantown, WV 26501
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor .
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review ~ommission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

30 FMSHRC 415

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

June 6, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2008-332-M
A.C. No. 14-00413-122218

v.
LYONS SALT COMPANY
'

BEFORE: Duffy, 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. (2000) ("Mine Act"). On February 28, 2008, the Commission received from Lyons
Salt Company ("Lyons Salt") a motion by counsel seeking to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On July 17, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment to Lyons Salt for eight citations that had been
issued to the operator in March and May of2007. Lyons Salt states that it intended to contest
three of the penalties, but that the form indicating that intent never reached MSHA's Civil
Penalty Compliance Office in Arlington, Virginia, because the form was mistakenly included
along with Lyons Salt's payment of the other five penalties that was sent to MSHA's Pittsburgh
office.
The Secretary states that she does not oppose the reopening of the assessment as to those
three penalties. The Secretary notes that she notified Lyons Salt by letter dated October 26,
2007, that it was delinquent in paying the assessment at issue in full. Lyons Salt gives no
30 FMSHRC 416

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

Robert F. Cohen, Jr., Commissioner

30 FMSHRC 417

Distribution:
Cole A. Wist, Esq.
Patton Boggs LLP
1801 California Street
Suite4900
Denver, CO 80202
W.- Christian Schumann, Esq.
Office ofthe Solicitor
U.S. Department of Labor
1100 Wilson Blvd.
Room2220
Arlington, VA 22209-2296

Myra James, Chief .
Office of Civil Penalty Compliance

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

30 FMSHRC 418

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

June 6, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEYA 2008-538
A.C. No. 46-08582-118898

v.
SJMMONS FORK MINING, INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Co)J.en, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) (''Mine Act"). On February 14, 2008, the Commission received from
Simmons Fork Mining, Inc. ("Simmons Fork'') a motion by counsel seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On May 29, 2007, the Department of Labor's Mine Safety and Health Administration
issued a proposed penalty assessment to Simmons Fork for three citations that had been issued to
the operator in January and April of 2007. Simmons Fork had contested the citations, and the
three contest proceedings were stayed pending the assessment of penalties. Simmons Fork states
that, consequently, it expected that its counsel in the contest proceedings would be notified by the
Secretary when the assessments were issued, but its counsel was not notified. Simmons Fork
also states that it has no record of receiving the proposed penalty assessment.
The Secretary states that she does not oppose the reopening of the assessment. The
Secretary notes that proposed penalty assessments are always mailed directly to the operator, and
that it is the operator's responsibility to forward the assessment to its counsel. The Secretary also
30 FMSHRC 419

attaches to her response documentation that the assessment was delivered on June 4, 2007, to
Charleston, WV, the city shown as Simmons Fork's addre$S on the proposed assessment. The
Secretary also states that she notified Simmons Fork by letter dated August 30, 2007, that it was
delinquent in paying the assessment atissue. Simmons Fork gives no explanation why it took
over five months to take action once it received the letter advising that it was delinquent in
paying the penalties.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., !nc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR''). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure' '); JWR., 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

30.,F MSHRC 420

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

Robert F. Cohen, Jr., Commissioner

30 FMSHRC 421

Distribution:
Julia K. Shreve, Esq.
Jackson Kelly PLLC
1600 Laidley Tower
P.O. Box 553
Charleston, WV 25322
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296

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

30 FMSHRC 422

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

June 11, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEYA 2008-492
A.C. No. 46-07009-127178

v.
ELK RUN COAL COMPANY, INC.

BEFORE: Duffy, Chairman; Jordan and Young;Commissioners1

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) (''Mine Act''). On January 28, 2008, the Commission received from Elk
Run Coal Company, Inc. ("Elk Run") a motion to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On July 24, 2007, the Department of Labor's Mine Safety and Health Administration
(''MSHA") issued citation numbers 7270248, 7270249, and 7270250 to Elk Run. On or about
September 13, 2007, MSHA issued a proposed penalty assessment to Elk Run, which included
proposed penalties for these citations. Elk Run states that soon after receiving the proposed
1

Commissioner Robert F. Cohen, Jr., assumed office after this case had been filed. A
new Commissioner possesses legal authority to participate in pending cases, but such
participation is discretionary. Mid-Continent Res., Inc., 16 FMSHRC 1218 n.2 (June 1994). In
the interest of efficient decision making, Commissioner Cohen has elected not to participate in
this matter.
30 FMSHRC 423

penalty assessment, its safety director faxed the penalty assessment form to Elk Run's counsel.
Elk Run explains that its counsel consulted with the mine foreman, who directed counsel to
contest the assessments for these three citations. Elk Run asserts that on or about October 18,
2007, its attorney timely contested the other penalties that the operator intended to contest, but
inadvertently failed to contest the penalties for these three citations, due to her clerical error.

Elk Run claims that this omission was discovered on October 22, 2007 and that it
immediately reported it to MSHA's Office of Assessments. Elk Run asserts that "Ci~tion
Number 7270248 is now closed, and Citation Numbers 7270249 and 7270250 are now
delinquent."· The Secretary states that she does not oppose Elk Run's request for relief.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence ori:nistake. 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).

30 FMSHRC 424

Having reviewed Elk Run' s motion and the Secretary's response thereto, in the interests
ofjustice, we reman4 this matter to the Chief Administrative Law Judge for a determination of
whether good cause exists for Elk Run's failure to timely contest the penalty proposal and
whether relief from the final order should be granted. On remand, the judge should determine
the status of the three penalties at issue (including the penalty for the citation referred to as
"closed" by Elk Run' s counsel). If it is determined that such relief is appropriate, this case sha.J.I·
proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

30 FMSHRC 425

Distribution:
Ramonda C. Lyons, Esq.
Dinsmore.& Shohl, LLP
P. 0. Box 11887
900 Lee Street, Suite 600
Charleston, WV 25339
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of.Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

30 FMSHRC 426

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

SUITE9500
WASHINGTON, DC 20001

June 18, 2008
SECRETARY OF LABOR;
.
M1NE SAFETY AND HEALTII
ADMINISTRATION (MSHA)

Docket No. VA 2008-258
A.C. No. 44-06199-135474

v.
RED. RJYER COAL COMPANY, INC.
BEFORE: Duffy, Chairman; Jordan, Young, and Coh~n, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801 et seq. (2000) ("Mine Act''). On May 1, 2008, the Commission received from Red River
Coal Company, Inc. (''Red River'') a letter seeking to reopen a penalty assessment that may have
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a). of the Mine Act, an operator who wishes to contest a proposed
penalty must notify ~e Secretary o(Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator.fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On January 8, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued ·Proposed Assessment No. 000135474 to Red River, which proposed civil
penalties for several citations. Red River states that it mailed its contest of the proposed
assessment on February 5, 2008, but that it did not receive a response from MSHA until it
received a letter from MSHA dated April 9, 2008, stating that Red River had failed to timely
contest the proposed assessment. While the Secretary states that she does not oppose Red
River's request to reopen, she notes that she has no record ofreceiving Red River's contest of the
penalty assessment.
·

·3 0 FMSHRC 427

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May i993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) (..the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also.observed that default is a
harsh remedy and that, if the .defaulting party can make a showing of good cause for a failure to
timely resp<?nd, .the case may be reopened and appropriate proceedings on the merits perinitted.
See Coal Prep. St!!rvs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Red River's request and the Secretary's response, in the interests of
justice, we remand this matter to the Chief Administrative Law Judge for a determination of
whether Red River timely contested the penalty proposal and, if not, whether good cause exists
for granting relief from the final order. If it is determined that relief from the final order is
appropriate, this case shall proceed pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700.

Robert F. Cohen, Jr., Commissioner

30 FMSHRC 428

Distribution:
Karen L. Johnston, Esq.
Jackson Kelly PLLC
1099 18th Street
Suite 2150
Denver, CO 80202
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

30 FMSHRC 429

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

June 18, 2008

SECRETARY OF LABO~
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. WEST 2008-997-M
A.C. No. 04-00743-139453

U.S. BORAX, INC.

BEFORE: Duffy, 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. {2000) ("Mine Act"). On May 14, 2008, the Commission received from U.S.
Borax, Inc. {''U.S. Borax") a motion by counsel seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105{a) of the Mine Act, 30 U.S.C.
§ 81 5{a).
Under section l 05{a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815{a).
On February 12, 2008, the Department of Labor's Mine Safety and Health Administration
{''MSHA") issued Proposed Assessment No. 000139453 to U.S. Borax, ~hich proposed civil
penalties for several citations. U.S. Borax states that its safety manager timely filed a contest of
the proposed assessment on approximately February 22, 2008. The operator further submits that,
on approximately May 2, it called the Department of Labor's Office of the Solicitor to determine
the location of the Petition for Assessment of Penalty related to the proposed penalties that it was
contesting. After being infonned that the Solicitor's office had no record of the matter, U.S.
Borax discovered, upon further investigation, that it had inadvertently sent its contest of the
30 FMSHRC 430

proposed assessment to "100 Wilson Boulevard," rather than to "1100 Wilson Boulevard." The
Secretary states that she does not oppose U.S. Borax's request to reopen the proposed
assessment.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res.; Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). Jn evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a finaf order ofthe Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.1 (b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure'.' ); JWR, 15 FMSHR.C 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 ments permitted.
See Coal Prep. Sms., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
·
Having reviewed U.S. Borax's request and the Secretary's response, in the interests of
justice, we remand this matter to the Chief Administrative Law Judge for a determination of
whether good cause exists for U.S. Borax's failure to timely contest the penalty proposal and
whether relief from the final order should be granted. If it is determined that .s uch relief is
appropriate, this case shall proceed pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C..F.R. Part 2700.

Robert F. Cohen, Jr., Coi&nissioner

30 FMSHRC 431

Distribution:
William D. Humphreys, President
Red River Coal Co., Inc.
P .O. Box 668
Norton ,VA 24273
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 .W ilson Blvd., Room 2220
Arlington, VA 22209-2296

Myra James, Chief
Office of Civil Penalty Compliance

MSHA

.

U.S. Department of Labor
1100 Wilson Blvd., 25 Floor
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washin~on,_D.C . 20001-2021

30 FMSHRC 432

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

June 18, 2008

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

v.

Docket No. WEYA 2008-425
A.C. No. 46-05649-118643 C479

MASS TRANSPORT INC.

BEFORE: Duffy, 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. (2000) ('"Mine Act"). On January 18, 2008, the Commission received from
"Delbarton Preparation Plant, Mass Transport Inc." a motion from counsel requesting to reopen a
penalty asses~ment that had become. a final order of the Commission pursuant to section 105(a)
of the Mine Act, 30 U.S.C. § 815(a). ·
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815{a).
On May 23, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000118643 to Mass Transport Inc. for various
violations that allegedly occurred at the Delbarton Preparation Plant. The motion states that
Proposed Assessment No. 000118643 was not timely contested because MSHA mailed the
proposed penalty assessment to the wrong address. Although the Secretary does not oppose the
request to reopen, she notes that the proposed penalty assessment and the delinquency notice
were mailed to the address of record at the time of assessment. The Secretary states that Mass
Transport Inc. should check the mailing address it provided to MSHA to be sure that it is up-todate.

30 FMSHRC 433

The motion.filed by counsel sets fo~ conflicting and confused information identifying
the movant in the motion to reopen and the facts of this case. Jn the caption of the motion,
counsel identify the respondent as "Delbarton Preparation Plant," and identify the mine as "Mass
Transport Jnc."1 (The caption is wrong in both re~ects.) In the motion itself, cowisel state that
the motion is brought by "Delbarton Preparation Plarit, Mass Transport Inc. ('Delbarton')," and
note that "Mass Transport Inc. is owned and operated by Logan County Mine Services, Inc., but
is a contractor for Delbarton Preparation Plant and was doing work for Delbarton at the time the
citation was issued." Counsel state that the proposed penalty assessment was issued to
"Delbarton" on about May 23, 2007, and that the Proposed Assessment ''was mailed to ·Mass
Transport Inc." at an address ''which is not, and has never been, either the mailing address or
physical address of either Delbarton or Mass Transport."
According to its terms,:the·proposed penalty assessment was issued only to Mass
Trarisport Inc. Thus, the request to reopen should have been filed solely by Mass Transport Inc.
We deny the motiori to reopen because counsels' motion is unacceptably confused and erroneous
in several respects and does not even make clear what entity is actually filing the motion. In
particular, counsel have not established that the movant, as identified in the motion to reopen,
has standing to make this request.
·
·

·.. .: ·

Robert F. Cohen, Jr., .Commissioner .

1

Although the caption of the motion to reopen identifies the respondent as ''Delbarton
Preparation Plant," the Commission's Docket Office issued a docketing notice that correctly lists
Mass Transport fuc. as the respondent.

30 FMSHRC 434

Distribution
Ramonda C. Lyons, Esq.
Dinsmore & Shohl, LLP
P.O. Box 11887
900 Lee Street, Suite 600
Charleston, WV 25339
W. Christian Schumann, Esq.
Office of.the.Solicitor
U.S. Department ofLabqr
1100 Wilson Blvd.
Room2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washiiigton, D.C. 20001-2021

30 FMSHRC 435

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

WASHINGTON, DC 20001

June 18, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMJNISTRATION (MSHA)
Docket No. WEVA 2008-703
A.C. No. 46-02805-117438

v.
U.S. Sll,ICA COMPANY

BEFORE: Duffy, 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. (2000) ("Mine Act"). On March 3, 2008, the Commission received from U.S.
Silica Company (''U.S. Silica") a letter in which it requested 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 I05(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On May 8, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed assessment to U.S. Silica. According to U.S. Silica, it then
checked the boxes by two of the citations listed on the assessment form and returned it to MSHA
by certified mail. However, U.S. Silica states that subsequent assessments indicated that the
contested citations still had outstanding penalties.

In response, the Secretary states that the tracking report from the U.S. Postal Service
indicates that the notice of contest was sent to MSHA's payment processing office in Pittsburgh,
Pennsylvania. The Secretary further states that all notices of contest must be sent to MSHA' s
Civil Penalty Compliance Office in Arlington, Virginia. The Secretary concludes by stating that
she does not oppose the reopening of the assessment.
30 FMSHRC 436

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

Robert F. Cohen, Jr., Commissioner

30 FMSHRC 437

Distribution:
Chris Bxyan, CMSP
Safety Mngr.
U.S. Silica Company
P.O. Box 187
Berkeley Springs, WV 25411·0187
W. Christian.Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd.
Room 2220
Arlington, VA -22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-2296
Chief Administrative Law Judge Rob~ J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

30.FMSHRC 438

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

June 23, 2008

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2008-473-M
A.C. No. 05-00790-131007

v.
CLIMAX MOLYBDENUM COMPANY

BEFORE: Duffy, Chairman; Jordan, .X"oung, and Cohen, Commissioners
ORDER
BY THE COM:MISSION:
This matter arises under the Federal Mine.Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On February 22, 2008, the Commission received from
Climax Molybdenum Company ("Climax") a motion by counsel seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On November 7, 2007, the Department of Labor's Mine Safety and Health
Administration issued a proposed penalty assessment to Climax for 31 citations that had been
issued to the operator in June and September of2007. Climax states that it intended to contest
the penalty for Citation No. 6416449, but failed to do so in a timely manner because of mistake
and inadvertence on its part.
The Secretary initially responded to the motion by noting that CJimax' s motion failed to
explain what the "mistake and inadvertence" was or why it occurred, and also did not identify
facts, which, if:proven on reopening, would constitute a me~torious defense to the citation or the

30 FMSHRC 439

penalty proposed. Climax thereupon filed a motion for extension of time to supplement its
motion to reopen. That motion is hereby granted.
Climax later filed a response to the Secretary's response to the motion to reopen. 1
Therein, Climax explained, in an affidavit, that, when its Safety Specialist who processed the
proposed penalty assessment was told by the Climax Safety Manager not to pay the penalty
proposed for Citation No. 6416449, he believed that the Safety Manager would file the contest
fonn for that penalty. The Safety Manager did not do so, however. Climax did not furnish
evidence of why the safety manager failed to contest the penalty. The Secretary thereafter filed a
letter stating that she does not oppose reopening the case as to the penalty proposed for Citation
No. 6416449.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section l05(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

1

The Commission encourages parties seeking reopening to do as Climax has done, and
provide further information in response to pertinent questions raised in the Secretary's response.
Otherwise, the Commission may have no choice but to deny those motions to reopen.
30 FMSHRC 440

Having reviewed Climax, s request and the Secretary,s responses, in the interests of
justice, we remand this matter to the Chief Administrative Law Judge for a determination of . ·
whether.good cause exists for Climax, s failure to timely contest the penalty proposal and whether
relief from the final order should be granted. The Chief Administrative Law Judge .should obtaj.n
from Climax evidence as to the circumstances concerning why the Safety Manager did not
contest the penalty assessment. If it is determined that relief from the final order is appropriate,
this case shall proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29
C.F.R. Part 2700.

~e_~

~rdan, collfiitssioner

Robert F. Cohen, Jr., Commissioner

30 FMSHRC 441

Distribution: ·
Timothy.R. Olson, Esq.
Jackson Kelly PLLC
1099 18th Street
Suite 2150 :
Denver, CO 80202
W. Christian Schwnann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlingto~ VA 22209-2296

Myra James, Chief.
Office of Civil Penalty Compliance
MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington; VA 22209-2296

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

30 FMSHR..C 442

ADMINISTRATIVE LAW JUDGE DECISIONS

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

May8, 2008
CIVIL PENALTY PROCEEDINGS

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

Docket No. CENT 2006-205-M
· A.C. No. 14-01597-77364-01
Plant 4

v.

Docket No. CENT 2006-209-M
A.C. No. 14-01277-80289-01
Plant 3

NELSON QUARRIES, INC.,
Respondent

Docket No. CENT 2006-236-M
A.C. No. 14-01277-80289-02
Plant 3

DECISION

Appearances:

Jennifer Casey, Esq, and Kristi Henes, Esq., Office of the Solidtor, U.S.
Department of Labor, Denver, Colorado, and Ronald Pennington,
Conference & Litigation Representative, Mine Safety and Health
Administration, Denver, Colorado, for Petitioner;
Paul M. Nelson, Nelson Quarries Inc., Gas, Kansas, for Respondent.

Before:

Judge Manning

These cases are before me on three petitions for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration (''MSHA"),
against Nelson Quarries, Inc. (''Nelson Quarries") pursuant io sections 105 and 110 of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§SIS and 820 (the "Mine Act"). The
cases involve 50 citations issued under section 104(a) of the Mine Act. An evidentiary hearing
was held in Topeka, Kansas. These cases were heard along with 16 other Nelson Quarries cases.
My decision in the other cases was issued on April 7, 2008, 30 FMSHRC _-_(April 2008).
The parties engaged in settlement discussions following the issuance of that decision. These
discussions successfully resolved all remaining issues in the present cases. A discussion of the
events leading up to the issuance of the cit~tions in these cases can be found in my April 2008
decision, which is incorporated herein by reference.
·

30 FMSHRC 443

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. CENT 2006-205-M, Plant 4.
1. On Novemb~r 16, 2005, fuspector Dustan Crelly issued Citation No. 6291255 alleging

a violation of section 56.14107(a). (Ex. G-57). The alternator on a Caterpillar 773B haul truck
was not guarded. fuspector Crelly determined that an injury was unlikely but that any injury
would likely be permanently disabling. He determined that the violation was not S&S and that
the negligence was moderate. The safety standard provides that "(m]oving machine parts shall
be guarded to protect persons from contacting gears, sprockets, chains, drive, head, and takeup
pulleys, flywheels, co~pling, shafts, fan blades, and similar moving parts that can cause injury."
The Secretary.proposes a penalty of$60.00 for this citation.
Inspector Crelly testified that he issued the citation because a miner could contact the fan
on the alternator.and other moving parts. (Tr. 921). He believed that people could enter this area
when the engine were running, such as when checking for oil leaks. (Tr. 923, 991 ). A miner will
also often perform his preshift examination with the engine running. Id. He admitted that a
miner could look at the ground under the vehicle to see if oil were leaking.
Mine Superintendent Michael Peres testified that, during a previous inspection, fuspector
Crelly told him that alternator belts on Dresser and Euclid trucks needed to be guarded but not on
Caterpillar trucks because the operator does not need to place himself near the alternator when
checking fluid levels. (Tr. 1025-26). .
For the reasons set forth with respect to Citation No. 6317432 in Docket No. CENT
2006-203-M in my April 2008 decision, this citation is affirmed. A penalty of $60.00 is
appropriate.
2. On November 16, 2005, fuspector Crelly issued Citation No. 6291256 alleging a
violation of section 56.14107(a). (Ex. G-58). The alternator on a different Caterpillar 773B haul
truck was not guarded. fuspector Crelly determined that an injury was unlikely but that any
injury would likely be pennanently disabling. He determined that the violation was not S&S and
that the negligence was moderate. The Secretary proposes a penalty of $60.00 for this citation.
fuspector Crelly' s testimony with regpect to this citation is the same as with respect to the
previous citation.
My findings and conclusions are the same as they were for Citation No. 6291255, above.
·
A penalty of $60.00 is appropriate.
3. On November 16, 2005, Inspector Crelly issued Citation No. 6291258 alleging a
violation of section 56.14107(a). (Ex. G-59). The citation alleges that the guard on the south
side of the tail pulley on Belt 13A was not adequate. fuspector Crelly determined that an injury
was unlikely but that any injury would likely be fatal. He determined that the violation was not

30 FMSHRC 444

S&S and that the negligence was moderate. The Secretary proposes a penalty of $60.00 for this ·
citation.
Inspector Crelly testified that the self-cleaning tail pulley was accessible through a hole
on the top that was 6 inches wide and 33 inches long. The tail pulley was about 14 inches from
the edge of the guard. (Tr. 928, 995). Someone could come in contact with the moving parts
during maintenance, cleanup, or inspection of the area. Other areas on the equipment were
adequately guarded. Peres testified that the cited area was very small and that other structures
were in the way. (Tr. 1030, Ex. R-205b).
I agree with Mr. Peres that the evidence shows that the opening is small and not easily
accessed. I affirm the citation but find that it was not serious and that the company's negligence
was low. A penalty of $40.00 is appropriate.
4. On November 16, 2005, Inspector Crelly issued Citation No. 6291261 alleging a
violation of section 56.14107(a). (Ex. G-60). The citation alleges that the tail pulley on the belt
under the 602 screen was not adequately guarded. Inspector Crelly determined that an injury was
unlikely but that any injury would likely be fatal. He determined that the violation was not S&S
and that the negligence was moderate. The Secretary proposes a penalty of $60.00 for this
citation.
Inspector Crelly testified that the smooth tail pulley was not completely guarded. The
inspector believed that the guard was not high enough to completely protect the area. (Tr. 996).
Mr. Peres testified that the distance between the ground and the top of the existing guard was
almost seven feet. (Tr. 1037; Ex. R-205c). He also testified that the structure surrounding the
cited opening provided some guarding. Peres helped build this screen and he testified that it had
been in this condition since 1995 and had been inspected by MSHA many times. (Tr. 1038). No
citations have been previously issued for this condition.
I credit the testimony of Mr. Peres that the opening was not easily reached and it had not
been previously cited. I affirm the citation but find that it was not serious and that the company's
negligence was low. A penalty of$40.00 is appropriate.
5. On November 16, 2005, Inspector Crelly issued Citation No. 6291263 alleging a
violation of section 56.14107(a). (Ex. G-61). The citation alleges that the guard on the selfcleaning tail pulley on the belt under the 611 screen was not adequately guarded. Inspector
Crelly determined that an injury was unlikely but that any injury would lik~ly be fatal. He
determined that .the violation was not S&S and that the negligence was moderate. The Secretary
proposes a penalty of $60.00 for this citation.
He testified that the opening was about 16 inches wide and 24 inches high. The fins of
the tail pulley were recessed about 15 inches from the existing guard. (Tr. 634). Peres testified
that, as with the previous citation, this screen has been in service for many years without

30 FMSHRC 445

receiving a citation for the condition cited by Inspector Crelly. (Tr. 1041-42; Ex. R-205d). The
screen has not been modified since it was built and it is placed in the same configuration
whenever it is moved to a new location.
I credit the testimony of Mr. Peres that the opening was not easily reached and that it had
not been previously cited. I affirm the citation but find that it was not serious and that the
company's negligence was low. A penalty of$40.00 is appropriate.
6. On November 16, 2005, Inspector Crelly issued Citation No. 6291265 alleging a
violation of section 56.14112(b). (Ex. G-62). The citation alleges that the guard on the east side
of the self-cleaning tail pulley on belt No. 7 was not secured. Inspector Crelly determined that an
injury was unlikely but that any injury would likely be fatal. He determined that the violation
was not S&S and that the negligence was moderate. The safety standard provides that "guards
shall be securely in place while machinery is being operated, except when testing or making
adjustments which cannot be performed without removal of the guard." The Secretary proposes
a penalty of$60.00_for this citation.
· Inspector Crelly testified that the bolts used to _secure the guard were missing. (Tr. 936).
The area was 12 inches high, 16 inches long and the area was 28 inches above the ground. (Tr.
936, 997). Peres did not observe the loose guard. (Tr. 1070; Ex. R-205e).

I find that the Secretary established a violation. A penalty of $60.00 is appropriate.
7. On November 16, 2005, Inspector Crelly issued Citation No. 6332080 alleging a
violation of section 56.12004. (Ex. G-63). The citation alleges that the female end of the yellow
extension cord in the main generator trailer had the outer jacket pulled out exposing the inner
condv.ctors to mecJianical damage. These conductors did not appear to be damaged. Inspector
Crelly determined that an injury was unlikely but that any injury would likely be fatal. He
determined that the violation was not S&S and that the negligence was moderate. The safety
standard provides, in part, that "electrical conductors exposed to mechanical damage shall be
protected." The Secretary proposes a penalty of $60.00 for this citation.
Inspector Crelly testified that the extension cord was being stored in the generator trailer.
It was not being used at the time of the inspection, but he believed that it had been previously
used. (Tr. 938). The electtical cord was subject to mechanical damage where the outer jacket
had been pul~ed back.

I .find that the Secretary established a violation. A penalty of $60.00 is appropriate.
8. On November 16, 2005, Inspector Crelly issued Citation No. 6332081 alleging a
violation of section 56.12004. (Ex. G-64). The citation alleges that the male end of the black
extension cord in the main generator trailer had the outer jacket pulled out exposing the inner·
conductors to mechanical damage. These conductors did not appear to be damaged. Inspector

30 FMSHRC 446

Crelly determined that an injury was unlikely but that any injury would likely be fatal. He
determined that the violation was not S&S and that the negligence was moderate. The Secretary
proposes a penalty of $60.00 for this citation. The inspector's testimony with respect to this
citation is the·same as above.
I find that the Secretary established a violation. A penalty of $60.00 is appropriate.
9. On November 16, 2005, Inspector Crelly issued Citation No. 6332082 alleging a
violation of section 56.14107(a). (Ex. G-65). The citation alleges that the external accessory
drive, alternator, and the bottom of the cooling fan on the front of the main generator engine were
not guarded. People are not in the area when the generator is running. Inspector Crelly
determined that an injury was unlikely but that any injury would likely be permanently disabling.
He determined that the violation was not S&S and that the negligence was moderate. The
Secretary proposes a penalty of $60.00 for this citation.
Inspector Crelly testified that only part of the cooling fan and other moving parts was
guarded. (Tr. 946-48, 998). There was limited space in the generator trailer so that someone's
clothing could get pulled into the moving parts. Peres estimated that the cited opening was about
three to four inches wide. (Tr. 1044).
I find that the Secretary established a violation.. A penalty of $60.00 is·appropriate.
10. On November 16, 2005, Inspector Chrystal Dye issued Citation No. 6291658
alleging a violation of section 56.14107(a). (Ex. G-68). The citation alleges that the fan belts for
Caterpillar engine No. 111 needed additional guarding on the back side and that the alternator
needed a complete guard to prevent persons from becoming entangled in moving machine parts.
She noted that the trailer door is kept closed during operation. Inspector Dye determined that an
injury was unlikely but that any injury would likely be fatal. She determined that the violation
was not S&S and that the negligence was moderate. The Secretary ·proposes a penalty of $60.00
for this citation.
The parties agreed that I should base my decision for this citation on the evidence
presented with respect to Citation No. 6317432 in Docket No. CENT 2006-203-M in my April
2008 decision. The exposure was not great for this engine because it was inside a trailer. Based
on that evidence, I find that the Secretary established a non-serious violation. A penalty of
$40.00 is appropriate.
11. On November 16, 2005, Inspector Dye issued Citation No. 6291659 alleging a
violation of section 47.41 (a). (Ex. G-73). The citation alleges that the diesel tank for the
Caterpillar engine No. 111 was not labeled for its contents. Inspector Dye determined that an
injury was unlikely but that any injury would likely be fatal. She determined that the violation
was not S&S and that the negligence was moderate. The safety standard provides that a mine

30 FMSHRC 447

"operator must ensure that each container of a hazardous chemical has a label . . . with the
appropriate information." The Secretary proposes. a penalty of $60.00 for this citation..
The parties agreed that I should base my decision for this citation on the evidence
presented with respect to Citation Nos. 6291573, 6291636, and 6291639 in Docket Nos. CENT
2006-200-M and CENT 2006-202-M in my April 2008 decision. Based on that evidence, I find
that the Secretary established a non-S&S violation of the safety standard. A penalty of$60.00 is
appropriate.
12. Prior to the hearing, the Secretary agreed to vacate Citation Nos. 6291268, 6291661,
and 6291663. After the hearing; the parties agreed to settle Citation Nos. 6291651, 6291652,
6291653, 6291656, 6291657, and 629164 for a total penalty of$252.00.

B. CENT 2006-209-M, Plant 3.
1. On November 2, 2005, Inspector Dye issued Citation No. 6291599 alleging a violation
of section 56.141 OO(b). (Ex. G-84). The citation alleges that there were several safety defects on
the·Caterpillar 796C haul truck exposing persons to safety and health hazards. The tether strap
for the door was not being used and the window would not roll up. Inspector Dye determined
that an injury was unlikely but that any injury would likely be fatal. She determined that the
violation was not .S&S and that the negligence was moderate. The safety standard states that
damaged windows shall be replaced if the absence of a window would expose the equipment
operator to hazardous environmental conditions which would affect the ability of the equipment
operator to safely operate the equipment. The Secretary proposes a penalty of $60.00 for this
citation.
Inspector Dye testified that the operators of this truck were exposed to dust, rain, snow,
wind, noise, and flying rocks. (Tr. 1388). She asked the equipment operator to move the
window up and he could not do it. (Tr. 1410). The window was fixed and a door stop .was
installed to abate the citation. She has observed rocks flying off belts and other equipment at
other operations. MSHA has not issued citations for excessive noise at the plant. Mr. Peres
testified that the windows slide up and down. {Tr. 1442). Rocks do not fly off conveyor belts or
the crusher except when rock is being dumped. A truck would have to be passing by for that to
happen.
I credit Inspector Dye's testimony that, when she asked the truck driver to close the
window, he could not do so. The Secretary established a non-S&S violati~n. The driver was
exposed to dust. A penalty of$60.00 is appropriate..
2. On November 2, 2005, l:pspector Dye issued Citation No. 6291603 alleging a violation
of section 56.12002. (Ex. G-96). The citation alleges that there were seven knock-outs missing
on the distribution boxes in the electrical trailer which exposed persons to electric shock hazards.
Inspector Dye determined that an injury was unlikely but that any injury would likely be fatal.

30 FMSHRC 448

She determined that the violation was not S&S and that the negligence was moderate. The safety
standard states that electric controls and switches shall be of approved design and construction
and shall be properly installed. The Secretary proposes a penalty of $60.00 for this citation.
Because the knock~outs were missing there were holes in the distribution boxes. (Tr.
1393; Ex. G-96c). The boxes were in the motor control room. The knock-outs were on the top
of the distribution boxes so the hazard was not great. Nevertheless~ lime dust, which is
corrosive, can get into the boxes anci small animals can attempt to nest in the boxes. Small .
animals can also chew on conductors that are outside of the boxes. (Tr. 1414). Mr. Peres
testified the holes created by the knock-outs were about six feet above the floor. (Tr. 1444). Any
electrical components are six to eight inches·inside the holes. The distribution boxes are cleaned
of dust and dirt about every other month. Small animals have not built nests inside distribution
boxes at the plant.
The hazard created by having holes in the fop of the distribution boxes in the electrical
trailer were minimal given their height. The controls in' the distribution boxes were not properly
installed in violation of the standard. 'The gravity and negligence were very low. A penalty of
$10.00 is appropriate.
3. On November 2, 2005, Inspector Dye issued Citation No. 6291608 alleging a violation
of section 56.11002. (Ex. G-97). The citation alleges that 10 of the 24 steps·going up to the
crusher shack were bent and broken, which exposed niiners to trlp and fall hazards. Inspector
Dye determined that an injury was unlikely but that any injury would likely be permanently
disabling. She determined that the violation was not S&S and that the-negligence was moderate.
The safety standard provides "crossovers, elevated walkways, elevated ramps, and stairways shall
be of substantial·construction provided with handrails, and maintained in good condition." The
Secretary proposes a penalty of $60.00 for this citation.
The inspector was concerned that someone could trip and fall ascending or descending
the stairs. (Tr. 1397; Ex. Q.:.97d). The· staircase was sixteen feet high. The stairs were made of
angle iron and expanded metal. She believed that some of the welds on the stairs had come
loose. (Tr. 1416). The areas where the .steps had separated had never been welded. (Tr. 1448).
The hazard created by this violation was minimal, as demonstrated by the photographs
taken by the inspector. (Exs. G-97c & 97d). The gravity and negligence were fow. A penalty of
$10.00 is appropriate.
4. On November 7, 2005, Inspector Dye issued Citation No. 6291612 alleging a violation
of section 56.12040. (Ex. G-98}. The citation alleges that there were exposed energized
components in the 14 distribution boxes in the electrical trailer. The citation was modified to
indicate that an injury was not likely and that the violation was not S&S. The negligence was
designated as moderate. The safety standard states that operating controls shall be installed so

30 FMSHRC 449

that they. can be operated without danger of contact with energized conductors. The Secretary
proposes a penalty of$60.00 for this citation.
The inspector testified that when the doors to the distribution boxes were opened, the
components within the boxes were exposed. (Tr. 1401; Ex. G-98c). Breakers and motor starters
were in these boxes. The plant was not energized at the time of the inspection. These conditions
created an electrocution hazard. There may be instances where a paramedic or fireman could be
required to enter the electrical trailer. (Tr. 1417). Peres testified that the power woul~ be shut
down in tlie event of an accident. (Tr. 1449). He also stated that the motor control center has
been used for 15 years in this condition and it has never been cited. He stated that he has even
discussed the distribution boxes with MSHA inspectors during previous inspections.
This citation is similar to Citation No. 6317446 issued by Inspector Thomas Barrington in
Docket No. CENT 2006-203-M in my April 2008 decision. For the same reasons, I find that the
Secretary established a violation. Anyone who opened the cabinets to test a circuit breaker, for
example, faced a risk of an electric shock hazard. The wires and terminals for the circuit
brealcers were totally exposed. Circuit breakers are operating controls. The fact that the
company had never been cited for this condition simply reflects that its plants had never been
subject to a rigorous electrical inspection. A penalty of $60.00 is appropriate.
,· .
5.. On "November 8, 2005, Inspector Dye issued Citation No. 6291628 alleging a violation
of section 56.9300(a). (Ex. G-99). The citation alleges that berms on the west side of the crusher
were not.maintained at mid-axle height for the largest piece of equipment in the area. The
citation was modified to indicate that an injury was not likely and that the violation was not S&S.
The negligence was designated as moderate. The safety standard provides that ''berms or
guardrails shall be provided and maintained on the banks of roadways where a drop-off exists of
sufficient grade or depth to cause a vehicle to overturn or endanger persons in equipment." The
Secretary proposes a penalty of $60.00 for this citation.
'

The inspector testified that the road is used for mobile equipment to travel to and from
the crusher and the pit. (Tr. 1404). She estimated the drop-off to be about 10 to 20 feet. The
berms were between 26 and 28 inches high while some of the equipment using the road,
including front end loaders, had mid-axle heights of 36 to 38 inches. (Tr. 1406). She took
several ~easurements. (Tr. 1421 ). The violation was serious because, if a vehicle were to roll
down the embankment, the operator could sustain serious injuries. She observed tire tracks
within nine feet of the berm.
Peres testified that driving nine feet away from a berm does not
create a hazard. (Tr. 1452).

Mr:

The safety standard applies to the cited roadway despite its width. The Secretary
established a violation, but it was not serious. A penalty of$60.00 is appropriate.
6. On November 2, 2005, Inspector Dye issued Citation No. 6291600 alleging a violation
of section 56.14107(a). (Ex. G-86). The citation alleges that the alternator and fan belts were not

30 FMSHRC 450

guarded on the Caterpillar 773B haul truck to prevent persons from becoming entangled in
moving machine parts. Inspector Dye detenilined that an injury was unlikely and that any injury
would likely be fatal. She determined that the violation was not S&S and that the negligence was
moderate. The Secretary proposes a penalty of $60.00 for this citation.
The parties agreed that I should base my decision for this citation on the evidence
presented with respect to Citation No. 6317432 in Docket No. CENT 2006-203-M in my April
2008 decision. Based on that evidence, I find that the Secretary established a non-S&S violation
of the safety standard. Alternator and fan belts on trucks are requrred to be guarded, but the
violation wa8 ·not serious because the chance of accidental contact was not very great. A penalty
of $60.00 is appropriate.
7. On November 2, 2005, Inspector Dye issued Citation No. 6291602 alleging a violation
of section 56.12018. (Ex. G-95). The citation alleges that the distribution boxes for the
crossover conveyor belts were not labeled to identify which units they control. Inspector Dye
determined that an injury was unlikely and that any injury would likely be fatal. She determined
that the violation was not S&S and that the negligence was moderate. The safety standard
requires that principal power switches be labeled to show which units they control unless
identification can be made readily by location. The Secretary proposes a penalty of $60.00 for
this citation:
The:parties agreed that I should base my decision for this citation on the evidence
presented with respect to Citation No. 6317443 in Docket No. CENT 2006-228-M in my April
2008 decision. Based on that evidence, I find that the Secretary established a non-S&S violation
of the safety standard. I credit the evidence presented by the Secretary with respect to citations
alleging a violation of section 56.12018. A penalty of$60.00 is appropriate.

· 8. On November 8, 2005, Inspector Dye issued Citation No. 6291629 alleging a violation
of section 56.4501. (Ex. G-100). The citation alleges that there was no shutoff valve on the 80gallon diesel fuel tank on the north side of the mine road near the lake. The inspector determined
that an injury was unlikely but that it could lead to a fatal accident. She determined that the
violation was not S&S and that the negligence was moderate. The safety standard provides that
"fuel lines shall be equipped with valves capable of stopping the flow of fuel at the source...."
The Secretary proposes a penalty of $60.00 for this citation.
The parties agreed that I should base my decision for this citation on the evidence
presented.with respect to Citation No. 6291580 in Docket No. CENT 2006:-200-M in my April
2008 decision. Based on that evidence, I find that the Secretary established a non-S&S' violation
of the safety standard. A penalty of$60.00 is appropriate.
9. On November 8, 2005, Inspector Dye issued Citation No. 6291631 alleging a violation
of section 56.4101. (Ex. G-101). The citation alleges thanhe company failed to provide a sign
prohibiting smoking or an open flame at the 80-gallon diesel fuel tank at the six-inch water pump

30FMSHRC 451

on the.north side of the mine road. The inspector determined that an injury was unlikely but that
it could lead to a fatal accident. She determined that the violation was not S&S and that the
negligence was mo.derate. The·safety standard provides that "readily visible signs prohibiting
smoking and open flames shall be posted where a fire or explosion-hazard exists." The Secretary
proposes a penalty of $60.00 for this citation.
The parties agreed that I should base my decision for this citation on the evidence
presented with respect to Citation No. 6291588 in CENT 2006-200-M in my April 2008
decision. Based on that evidence,·I find that the Secretary established a non-S&S violation of the
safety standard. The safety standard is clear on its face. Because of the actions of the Kansas
Fire Marshal and the fact that previous MSHA inspections had not identified the violation, I
reduce the negligence to low. A penalty of$40.00 is appropriate.

10. Nelson Quarries withdrew it contest of Citation No. 6291596 at the hearing. (Tr.
1146). After the hearing,-the parties agreed to settle Citation Nos. 6291598, 6291605, 6291606,
6291609, 6291616, 6291617, 6291622, 6291624, and 6291626 for a total penalty of$378.00.

C. CENT 2006-236--M, Plant 3.
l. On November 8, 2005, Inspector Dye issued Citation No. 6291627 alleging a violation
of section 56.9301. (Ex. G-125). The citation alleges that the stop block at the dump site, which
is 17 inches tall, had been compromised by a buildup of material, exposing truck operators to
overtraveling hazards. After a conference, it was determined that an injury was unlikely but that
any injury would likely be fatal. The negligence was moderate. The safety standard provides, in
part, that berms or bumper blocks shall be provided at dumping locations where there is a hazard
of overtravel. The Secretary proposes a penalty of $60.00 for this citation.
Inspector Dye testified that trucks back up to dump rock into the crusher and the stop
block was not effective because loose rock had filled up the area. (Tr. 1425-26; Ex. G-125c).
The material that had been allowed to build up formed a little ramp. She determined that there
was a danger of overtravel. The citation was abated by removing the loose rock. The trucks
back up the ramp at a slow speed. (Tr. 1435). Mr. Peres testified that the purpose of the stop
block was not comprQmised by the material on the ramp. (Tr. 1453). A truck operator could still
determine that he should not back any further when he reaches the stop block.
The purpose of a stop·block is to let the truck driver know that he is at the end of the
ramp. Although there was an accumulation of material, an experienced dtjver would still be able
to determine that he was at the ~nd of the ramp. (Ex. G-125c). Although it was unlikely that a
driver would travel too far, the stop block was compromised to a certain extent. I find that the
Secretary established a violation but that it was not serious. A penalty of $40.00 is appropriate.
2. On November 8, 2005, Inspector Dye issued Citation No. 6291634 alleging a violation
ofsection 56.12034. (Ex. G-128). The citation alleges that the fluorescent bulbs in the scale

30 FMSHRC 452

house were not guarded to prevent persons from being exposed to shock and bum hazards. The
lights were within seven feet of the floor. She determined that an injury was unlikely and that the
negligence was moderate. The safety standard provides that portable extension lights and other
lights that, by their location present a shock or bum hazard, shall be guarded. The Secretary
proposes a penalty of $60.00 for this citation.
The cited fixture had two bulbs. Inspector Dye could reach up and touch them. (Tr.
1432). It was not likely that anyone would be carrying anything in the scale house that would hit
or break the lights. I find that the fluorescent bulbs in the scale house did not present a shock or
bum hazard. This citation is vacated.
3. On November 8, 2005, Inspector Dye issued Citation No. 6291630 alleging a violation
of section 47.41(a). (Ex. G-126). The citation alleges that the 80-gallon fuel tank at the 6-inch
water pump on the north side of the mine road was not labeled for its contents. Inspector Dye
determined that an injury was unlikely but that any injury would likely be permanently disabling.
She determined that the violation was not S&S and·that the negligence was moderate. The
Secretary proposes a penalty of $60.00 for this citation.
The parties agreed that I should base my decision for this citation on the evidence
presented with respect to Citation Nos. 629.1573, 6291636, and 6291639 in Docket No. CENT
2006-200-M and CENT 2006-202-M in my April 2008 decision. Based on that evidence, I find
that the Secretary established a non-S&S violation of the safety standard. A penalty of $60.00 is
appropriate.
4. Prior to the hearing, the Secretary agreed to vacate Citation Nos. 6291601 and
6291632. Nelson Quarries agreed to withdraw its contest of Citation No. 6291633. {Tr. 1423).
After the hearing, the parties agreed to settle Citation Nos. 6291613, 6291615, 6291620,
6291621, and 6291623 for a total penalty of $210.00.

II. APPROPRIATE CIVIL PENALTIES
Section 11 O(i) of the Mine Act sets out six criteria to be considered in determining
appropriate civil penalties. Plant 3 had a history of 6 paid violations in the two years prior to
June 28, 2005, Plant 4 had a history of21 paid violations in the two years prior to November 16,
2005. (Ex. G-136). Most of these previous violations were non-S&S. Nelson Quarries is a
rather small operator and its quarries are small. All of the violations were abated in good faith.
Nelson Quarries did not establish that the penalties assessed will have an adverse effect on its
ability to continue in business. My gravity and negligence findings are set forth above. Ifl did
not discuss gravity or negligence with respect to a citation, then the inspector's determinations
are affirmed. Based on the penalty criteria, I find that the penalties set forth below are ·
appropriate.

30 FMSHRC 453

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

30C.F.R. §

Penalty

56.14107(a)
56.14107(a)
56.14107(a)
56.14107(a)
56.14107(a)
56.14112(b)
47.44(b)
56.14107(a)
56.14112(b)
56.14112(a)(l)
56.14112(b)
56.14107(a)
56.14107(a)
47.4l(a)
47.44(b)
56.14107(a)
56.14107(a)
56.12004
56.12004
56.14107(a)

$60.00
60.00
40.00
40.00
40.00
60.00
Vacated
42.00
42.00
42.00
42.00
42.00
40.00
60.00
Vacated
Vacated
42.00
60.00
60.00
60.00

CENT 2006-205 -M, Plant 4
6291255
6291256
6291258
6291261
6291263
6291265
6291268
6291651
6291652
6291653
6291656
6291657
6291658
6291659
6291661
6291663
6291664
6332080
6332081
6332082
CENT 2006-209-M, Plant 3
. 6291596
6291598
6291599
6291600
6291602
6291603
6291605
6291606
6291608
6291609
6291612

56.14100(b)
56.14107(a)
56.14100(b)
56.14107(a)
56.12018
56.12002
. 56.14112(b)
56.14107(a)
56.11002
56.14112(b)
56.12040

30 FMSHRC 454

60.00
42.00
60.00
60.00
60.00
10.00
42.00
42.00
10.00
42.00
60.00

6291616
6291617
6291622
6291624
6291626
6291628
6291629
6291631

56.14107(a)
56.14107(a)
56.14107(a)
56.14107(a)
56.14107(a)
56.9300(a)
56.4501
56.4101

42.00
42.00
42.00
42.00
42.00
60.00
60.00
40.00

47.44(b)
56.14112(b)
56.14107(a)
56.14112(b)
56.14107(a)
56.14112(b)
56.9301
47.41(a)
56.18002(a)
56.12034
56.30(a)

Vacated
42.00
42.00
42.00
42.00
42.00
40.00
60.00
Vacated
Vacated
60.00

TOTAL PENALTY

$2,060.00

CENT 2006-236-M, Plant 3
6291601
6291613
6291615
6291620
6291621
6291623
6291627
6291630
6291632
6291634
6291633

Accordingly, the citations contested in these cases are AFFIRMED, MODIFIED, or
VACATED as set forth above and Nelson Quarries, Inc., is ORDERED TO PAY the Secretary
of Labor the sum of $2,060.00 within 40 days of the date of this decision. Upon payment of the ·
penalty, these proceedings are DISMISSED:

Richard W. Manning
Administrative Law Judge
Distribution:
Jennifer Casey, Esq., and Kristi Henes, Esq, Office of the Solicitor, U.S. Department of Labor,
1999 Broadway,. Suite 1600, Denver, CO 80202 (Certified Mail)
Ronald Pennington, Conference & Litigation Representative, Mine Safety and Health
Administration, P.O. Box 25367, Denver, CO 80225-0367 (First Class Mail)
30 FMSHRC 455

Paul M. Nelson, P.O. Box 334, Jasper, MO 64755 (Certified Mail)
Kenneth L. Nelson, President, Nelson Quarries, Inc., P.O. Box 100, Gas, KS 66742-0100
(Certified Mail)
RWM

30 FMSHRC 456

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

May 13, 2008
WEBSTER COUNTY COAL, LLC,
Contestant

v.
SECRETARY OF LABOR,
Mine Safety and Health
Administration, MSHA,
Respondent

CONTEST PROCEEDING
Docket No. KENT 2008-469-R
Citation No. 6696632; 01/04/2008

Dotiki Mine
Mine ID 15-02132
SUMMARY DECISION

On March 12, 200~, Respondent, Webster County Coal, LLC, (WCC) filed amotjon for
summary decision in the captioned proceeding, seeking vacation of Citation No. 6696632. 'J;'he
citation alleges a violation of the standard at 30 C.F.R. § 50.20(a) and charges as follows:
The company failed to complete and submit an MSHA # 7000-1 (Mine Accident, Injury, and
Illness Report) for the roof fall that occurred at crosscut #63 ofthe 3rd South East Sub-Mains
cut through. The fall was found on December 4, 2007, by MSHA inspector.
30 C.F.R. § 50.20(a) provides, in relevant part as follows:
Each operator shall maintain at the mine office a supply ofMSHA Mine Accident, Injury,
and Illness Report Form 7000-1 .... The principal officer in charge ofhealth and safety at the
mine or the supervisor of the mine area in which an accident... occurs, ... shall complete or
review the form in accordance with the instructions and criteria in§§ 50.20-1through50.20-

7.
An "accident", as relevant hereto, is defined as "[a]n wtplanned roof fall at or above the
anchorage zone in active workings where roof bolts are in use; or, an unplanned roof or rib fall in
active workings that impairs ventilation or impedes passage." 30 C.F.R. § SQ.20(h)(8). "Active
workings" are defined by the Secretary as "[a]ny place in a coal mine where miners are normally
required to work or travel." 30 C.F.R § 75.2. WCC argues .that it is entitled to summary decision
because the cited roof fall was not, in any event, a reportable accident under Section§ 50.20(a) since
the area in question was not part of the mine's "active workings" as defined in Section 75.2.
Under Commission Rule 67, 29 C.F.R. § 2700.67, a summary decision may be granted if
the entire record, including the pleadings, depositions, answers to interrogatories, admissions, and
declarations, shows: ( 1) that there is no genuine issue as to any material fact; and (2) that an that the
moving party is entitled to swnmary decision as a matter of law. I find that WCC is entitled to
swnmary decision because the undisputed facts do not establish as a matter oflaw that a violation
existed as charged.
30 FMSHRC 457

In this regard, it is undisputed that the area ofthe mine where the subject roof fall occurred
had previously been "dangered off' bywee on November 13, 2007, because ofbad roofconditions.
There is no dispute that miners were therefore not permitted as of that date to work or travel in the
dangered off area. See Cypress Empire Corporation 12 FMSHRC 911, 917 (May 1990).
Accordingly miners would notbe "normally required to work or travel" in such an area. Thus, the
area at issue was not, as ofNovember 13,. 2007, within the "active workings" of the mine under 30
e.F.R. § 75.2 and the roof fall that subsequently occurred was therefore not an "accident" within the
meaning of 30 e.F .R. § 50.2(b)(8). Moreover the roof fall was accordingly not reportable under 30
e.F.R. § 50.20(a). There was therefore no violation of 30 C.F.R. § 50.20(a). .The motion for
summary decision must therefore be granted and Citation No. 6696632 must be vacated. Under the
circumstances there is no need to discuss wec•s alternative argument for vacating the citation.
In reaching this conclusion I have not disregarded the Secretary's argument that, under the
foregoing analysis, the operator could avoid reporting any rooffall simply by subsequently dangering
offthe affected area. The facts herein are distinguishable however in thatit is Undisputed in this case
that the subject area was dangered off before, not after, the roof fall occurred.
ORDER

Contest Docket No. KENT 2008-469-R is granted and Citation No. 6696632 is hereby
vacated.

G, .
f

i

, .
.

Gary
lick
'
Administrative Law Judge
(202) 434-9977
Distribution: (Certified Mail)
Daniel W; Wolff, Esq., Crowell & Moring LLP, 1001 Pennsylvania Avenue NW, Washington;
DC ·20004-2595
Christian P. Barber, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219-2456
"
·
/lh

30 FMSHR.e 458

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

May 19, 2008
SECRETARY OF LABO~

DISCRiMJNATION PROCEEDING

MINE SAFETY AND HEALTII
ADMINISTRATION (MSHA), on
behalf of LAWRENCE L. PENDLEY,
Complainant

Docket No. KENT 2006-506-D
MADI CD 2006-02

v.

IDGHLAND MINING COMPANY, LLC;
Respondent

. Mine ID 15-02709
Highland No. 9 Mine

SECRETARY OF LABOR,

DISCRIMINATION PROCEEDING

MINE SAFETY AND HEALTII
ADMINISTRATION (MSHA}, on
behalf of LAWRENCE L. PENDLEY,
Complainant

Docket No. KENT 2007-383-D
MADI CD 2007-05

.·

v.
HIGHLAND MINING COMPANY, LLC;
DAVID WEBB, LARRY MILLBURG and
SCOTT MAYNARD as AGENTS,
Respondents

Mine ID 15-02709
Highland No. 9 Mine

INTERIM DECISION ON LIABILITY
Before:

Judge Barbour

These consolidated cases are before me on discrimination complaints brought by the
Secretary of Labor, acting through her Mine Safety and Health Administration (MSHA), on
behalf of Lawrence Pendley. The Secretary filed the complaints against Highland..Mining
Company, LLC (Highland) and its alleged agents, David Webb, Larry Millburg, and Scott
Maynard, pursuant to section l_QS(c) of the Federal Mine Safety and Health. Act of 1977, as
amended. 30 U.S.C. § 815(c) ("Min~ Act or Act"). Pendley is a miner who works in

30 FMSHRC 459

maintenance and parts supply at the Highland No. 9 Mine. 1 Tr. 60. On December 21, 2005,
Pendley was suspended from work for three days without pay (Docket No. KENT 2006-506-D).
After the suspension had run its course, he returned to the mine and continued to work until
March 21, 2007, when he again was suspended. He was discharged on March 24, 2007 (KENT
2007-383-D). In her complaints, the Secretary charges Pendley was s~spended and discharged
because of nwnerous safety complaints he made to mine management and to MSHA. The
Secretary seeks, inter alia, the expungement of Pendley's employment records; Pendley's
permanent reinstatement to the same positjon he held prior to his discharge or to a comparable
position; payment to Pendley of the back wages, benefits, and expenses lost due to his discharge;
payment of interest; and the assessment of an aggregate civil penalty of $60,000 against
Highland.2
Following Pendley's discharge, the Secretary petitioned for his temporary reinstatement,
which I granted. Secretary on behalfofLawrence Pendley v. Highland M.ining Company, LLC,
29 FMSHRC 424 (May- June 2007). Pendley has since worked at the mine. However, the
Secretary alleges the company has continued to violate section 105(c) by subjecting him to
ongoing.harassment and disparate treatment (Docket No. KENT 2007-383-D). The Secretary
requests an order directing the company to cease its unlawful actions. She also requests any
agent found to have committed violations of section 105(c) be ordered_to cease the same. Sec.
Br. 57-60.
For its part, Highland admits Millburg and Maynard are its agents, but denies Webb is.3
Highland acknowledges it was aware Pendley filed complaints with MSHA about various

1

Prior to March 2007, Pendley worked for 25 years in the mining industry, tl)e last four
years at the Highland No. 9 Mine, where he started as a roof bolter. After six months, he
switched to the maintenance and supply position he has held since. Tr. 61. Pendley' s position is
commonly referred to as "maintenance parts runner." Tr. 62.
2

The Secretary requests $20,000 be allocated to any violation of section 105(c) found in
Docket No. KENT 2006-506-D and $40,000 be allocated to any violation found in Docket No.
KENT 2007-383-D. Sec. Br. 59-60.
At relevant ~es Larry Millburg was the superintendent of the mine and Scott Maynard
was the assistant superintendent. During part of those times, David Webb was the operations
manager of the mme. As such, ~e was the mi.ne's highest ranking officer and the person in
charge of approving disciplinary actions, although he usucµly "delegate[ed) out" implementation
of the discipline. Tr. 605. However, after May 2006, Webb became director of Kentucky
operations for Peabody Energy Company. As the director, Webb is in charge of three deep mines
Peabody controls in Kentucky, one of which is the Highland Mine. With the change in jobs has
come a change in duties. Since May 2006, Webb has not been involved directly in disciplinary
actions at the Highland Mine, although he has been made aware of"anything ... other than
standard normal disciplines." Tr. 607-608.
3

30 FMSHRC 460

conditions and incidents at the mine. It also agrees Pendley was suspended on December 21,
2005, and on March 21, 2007, and was discharged on March 24, 2007. However, it denies
Pendley was suspended and discharged because he made safety-related complaints or otherwise
exercised his section 105(c) rights. Rather, the company asserts it acted for legitimate business
reasons. ·
The cases were heard in Evansville, Indiana. For the reasons set forth below, I find the
Secretary has established Highland and David Webb discriminated against Pendley when they
suspended him for three days on December 21, 2005 (Docket No. KENT 2006-506-D), but I also
find that Pendley was properly suspended on March 21, 2007, and that his subsequent discharge
did not violate the Act (Docket No. KENT 2007-383). In addition, I find the Seeretary did not
establish Pendley has-been discriminated against since his ·discharge (Docket No. KENT 2007383-D).
.
. ,

BACKGROUND
As indicated, the cases arise from a series of complaints filed by Pendley with the
Secretary and by the Secretary with the Commission. The Secretary's first complaint, Docket
No. KENT 2006-506-D, was filed on September 22, 2006. Subsequently, it was settled, and I
approved the settlement and dismissed the case. However, on April 3, 2007, the Commission
vacated my actions because Pendley was not a party to the settlement. The Commission returned
the case to me. In the meantime, Pendley had been.discharged, and the Secretary filed the
application for Pendley's temporary reinstatement, which was ·docketed as KENT 2007-265-D.
After a hearing on the merits of the temporary reinstatement ·proceeding. The Secretary filed the
second discrimination complaint, KENT 2007-383-D. A hearing then was convened on the
merits of Docket No. KENT 2006-506-D and KENT 2006-383-D. The hearing also involved the
temporary reinstatement proceeding, in that the parties agreed the written record of the temporary
reinstatement proceeding would be considered part of the record of the hearing on the Secretary's
discrimination complaints.4 Tr. 8-9.

Subsequent to Pendley's reinstatement and prior to the hearing on the merits· of the
complaints, the Secretary supplemented her allegations of discrimination in Docket No. KENT
2007-383-D by filing an amended complaint asserting Highland continued to discriminate
against P~ndley by shifting his work assignments, by assigning work he could not complete, by
applying different overtime rules to him, and by failing to reinstate -h is full benefits.· Not
surprisingly, Highland disagreed with the Secretary's allegations.

4

In this decision the transcript of the hearing on the temporary reinstatement application is
designated as ''TRH Tr." and the transcript of the hearing on the discrimination complaints is· designated as "Tr."
·
30 FMSHRC 461

THE DECISION'S ANALYTICAL FRAMEWORK
The Secretary's complaints are based on various incidents, most of which involve
Pendley and a fellow miner, Jack Creighton5; and Pendley and mine effice personnel. Numerous
witnesses testified about the incidents. Some of the testimony overlapped. A lot of it conflicted.
The chronology of events frequently was not specific and - to my mind at least - Pendley's and
the Secretary's allegations were not always clear, making it difficult to get a ''handle" on the
case.
This stated, a reasonable way to sort through the conflicting and overlapping record is
chronologically to describe the incidents .and the responses of the company and MSHA, to review
the legal principles governing the resolution of discrimination allegations, to summarize the
parties' arguments, to apply the principles and arguments to the record, and to determine if the
record supports finding the company's reactions to the incidents violated the Act.

THE INCIDENCES OF ALLEGED DISCRIMATION
~

THE COMPANY'S AND MSHA'S RESPONSES THERETO
I. THE PARTS DELIVERY INCIDENT
As a maintenance and parts ~er at the mine, Pendley was responsible for stocking the
underground maintenance shack with needed parts and supplies. According to Pendley, trouble
with Creighton began in May 2005, when Creighton used "foul language" to tell Pendley
management; not Pendley, was responsible for selecting the materials to be delivered to the
underground supply shack. Tr.66. Pendley believed Creighton was angry.because Creighton felt
Pendley was making work for him. Id. Creighton maintained Pendley wanted him to load boxes
ofPendley's food (cookies, potato chips and popcorn) and to send the boxes into the mine.
Creighton refused. ("[I]fI send . .. [Pendley's) food in, I'd have to send 200 mens['] food in."
Tr. 761 .) Creighton testified he asked Pendley, "[D]o you want me to supply coal mines or do
you want me to supply a snack bar?" Tr. 761.
Pendley reported the incident to supervisor Rodney Baker and to other management
officials. Baker said he would talk to Creighton. Tr. 67. As .Pendley recalled, the management
officials emphasized·it was Pendley·' s job to order parts and supplies; and it was Creighton's job
to deliver and send them. Tr. 66-67. A few days later, Baker told Pendley he had spoken with

5

According to Steven Tramel, a maintenance worker who worked with both Pendley and
Creighton, Creighton was "a little different." Tr. 505. Tramel described Creighton as having "a
smart attitude." Id. He also was given to playing practical jokes on other miners - things like
tying miners' boots together. Tr. 506. In addition, Bernard Alvey, who went to high school with
Creighton, described him as having a "sharp tongue." Tr. 525.
30 FMSHRC 462

Creighton.

II. THE TRUCK INCIDENT
Pendley maintained shortly after the May 2005 incident Pendley' s truck was damaged in
the mine parking lot. Pendley reported the incident to Highland shift foreman Steve Bockhorn
and to operations' manager Scott Maynard. Tr. 74, 80. Pendley testified the truck exhibited a
''very large" dent. Tr. 262. The estimated repair cost was $900. Tr. 262. Pendley recalled
Maynard telling him the damage appeared to be the result ofvandalism.6 Id. According to
Pendley, after he reported the incident,. Webb told him not to take anything into his own hands
and to report further incidents.
Webb testified he frrst.met Pendley when Pendley came into Webb's office and told him
about the truck. Webb asked Pendley ifPendley had any thoughts about who might have
damaged it. Pendley responded he did, but he did not want to state names because he did not
know for sure. Pendley just wanted Webb to be aware of what happened on mine property. Tr.
609. Webb told Pendley mine employees would "keep a lookout," and if the damage continued,
the company would consider putting a security camera in the parking lot. Tr. 609-610.

III. THE BLEACH INCIDENT
Pendley testified around the same time someone opened his locker in the bathhouse and
poured bleach on his clothing. Tr. 68. Pendley thought it was Creighton, a charge Creighton
denied. Id., 807; see also Tr. 261-262. Pendleytestified he again complained to Baker.
Creighton told fellow miners Pendley was "crying," and, according to Pendley, Creighton said, ·
"I'll give you something to cry about." Id.
The incident was known to Scott Maynard, the assistant superintendent, who testified
Pendley spoke with him about someone "put[ting] bleach on his clothes." Tr. 933. Maynard
discussed the incident with Creighton, who told Maynard he had no idea what Maynard was
talking about. Tr. 934; see also Tr. 955. Maynard asserted he "never could
find . .. anyone to confirm the story." Tr. 934. .

· IV.. THE DIRT INCIDENT
Subsequently, another incident occurred in the bathhouse. James Allen, the mine safety
manager, testified Pendley told him dirt was swept intentionally in front of his locker. Allen
believed the incident could have been safety-related if the dirt was-"enough that ... [Pendley]

6There was a dispute over the extent of the " damage." Maynard testified the ·~damage"
looked like rose bush scratches, and other witnesses supported this view. See Tr. 263, 932-933;
see also Tr. 513-514, 704.
30 FMSHRC 463

could have tripped and stumbled." Tr. 704.
According to Creighton, it was not dirt, but ·ra~er muck that was left in front ofPendley's
locker. Although Creighton usually hosed down the bathhouse floor, he was sure he did not
leave the muck, because on the day of the incident someone else hosed the floor. Tr. 766.
V. THE HOSE INCIDENT
~other incident followed.

Steve Storm, a belt splicer, was in the bathhouse with
Pendley when Creighton was hosing.down the floor. According to Storm, Creighton was moving
toward Pendley when Pendley walked between Creighton and a row of lockers and "got his feet
and probably pants legs sprayed a little bit." Tr. 743. (In Creighton' s version, Pendley had "a
little [water] splashed on his boots." Tr. 762.) Creighton maintained Pendley walked toward
him even though he could have gone another way. 7 Tr. 765.

VI. THE "GUN" INCIDENT
The "gun" incident came next. Creighton testified he knew Pendley had gone to
Creighton's supervisor and complained. "So" said Creighton, one day in the bathhouse "after I
heard [about] him complaining, I walked halfway back [to Pendley' s locker] .. . thr[ ew] a piece
of paper towel on the floor and told him there is something to cry about . . . [and] that' s when he
reached up in his locker in his hard hat and pulled out what I perceived to be a.weapon." Tr. 767.
Creighton continue4, ''I.told hiIJl . .. *
*
*
* I [will] shove it down . . . [your]
throat or make . .. [you] eat it, something on that order." Tr. 769. Creighton maintained Pendley
"started mouthing" at him, but Creighton walked away. Id.
Creighton did not complain to Webb about the incident until two or three weeks after it
happened. Tr. 818. When he ultimately spoke with Webb about it, Webb remembered him
saying Pendley either threatened he had a gun or acted as though he had a gun in his locker. Tr.
612, 616.
VD. THE CAP LAMP INCIDENTS
Throughout the summer of 2005, Pendley testified he experienced more incidents ofwhat

7

Pendley was not the only one who sometimes got wet when Creighton hosed the floor.
Storm also·was sprayed on occasion. He testified Creighton did not stop for anyone. Tr. 746.
As Creighton saw it, if others got wet, it was because he had "a quitting time and .. . [he]
want[ed] to get out." Tr. 809. Creighton denied the way he hosed down the floor lead to
altercations with others,.although he admitted when miners got wet; they "bark[ed) a little bit."

Id.

30 FMSHRC 464

he believed might be Creighton inspired harassment. Pendley had trouble with his cap lamp. At
times he felt "bad" bulbs purposely were put in his lamp. Tr 72. He testified it was ''very
uncommon" to have as much trouble with a lamp. Tr. 230. At one point, he stored his lamp and
locked it in place. Later that night or during the folloWing day, -so~eone cut the lock and took
the lamp. Tr. 231.
'

VIII. THE NONSPECIFIC HOIST INCIDENTS
At the mine, men and supplies were lowered underground via the hoist. The miners rode
in and out on man l6ad cars, which usually were coupled in a series. One of the cars {the brake
car) contained the brakes for the man load cars. One group of controls for.the hoist was located
on a control panel which was in a shed (the "slope shack") on the surface. The slope shack was
some distarice from the portal. Tr. 70-71 .. Another group was located in the hoist house, which
was
uphill from the slope shackand further from the portal.
Among·the controls at the slope shack and the hoist house was an "E-stop" button {an
emergency stop button), which, if pushed, brought the man load cars to an abrupt halt. Tr. 70.
There were other E-stop buttons in the front compartment of some man load cars and
underground at the bottom of the slope. See Tr. 938.
Pendley maintained when Creighton was at the controls of the hoist and Pendley was
waiting to board the man load to ride into the mine, Creighton sometimes would send in the cars
without Pendley. 'Or, sometimes Creighton would stop the man load, and Pendley would have to
.get out and restart it. Tr. 70. Pendley did not identify the specific dates and/or times when the
incidents happened; rather, he referred them as a "continuous thing." Tr. 81. Maynard
confirmed Pendley spoke with him about "numerous incidents [of] the slope car being stopped
and started." Tr. 933.

IX. THE MOTORIZED EQUIPMENT INCIDENTS
Pendley further asserted there were occasions when Creighton traveled close to him on a
motorized cart (a "golf cart"). Pendley testified Creighton told him to watch out or he would be
run over. Tr. 74; see also 78-79. Pendley stated he was "on guard pretty well continuously''
when around Creighton. Id.; see also Tr. 78. Pendley added, once when Creighton "ran right
past me real close at a pretty good speed," another -m iner, Lap Lewis, saw the incident and said
he did not understand why management failed to do something about Creighton's "close calls."
Tr. 78-79.
Maynard testified Pendley spoke with him about Creighton trying to run him over. Tr.
933. According to Maynard, he checked the complaints, but "never could find any witnesses to
·
anything or anyone to confirm the stor[ies]." Tr. 934

30 FMSHRC 465

X. THE FORKLIFT INCIDENT
Pendley also asserted there was a specific incident when Creighton threatened to run him
over with a fork lift. The incident occurred when_ Creighton was operating a fork lift on .t he
surface. There was a pallet of materials on the fork lift which had to be loaded onto one of the
man load cars. Pendley stated Creighton pulled the fork lift up to the man load, and Lap Lewis
stood in front of the fork lift and loaded the materials directly off the fork lift onto the man load
car. Then, according to Creighton, Pendley, who was waiting to board the man load car to go
underground, noticed Lewis loading the materials on one of the cars. Rather than wait at the man
load area to board the man car, Pendley decided to "just .. . walk up [to where the car was being
loaded] and sit down on . .. [the car] until they released [it] to go in the [mine]." Tr. 1064-65.

In Pendley's version of the incident, he 'just walked up there and stopped at the edge . ...
[where Lewis] was ... unloading [supplies from the fork lift]. When [Lewis] got done unloading
... [Lewis] walked back up towards [Creighton]," and·Pendley then walked behind Lewis. Tr.
1067-68. Pendley was adamant he only walked where Lewis walked. Tr. 290, 1087. Although
he agreed he could have walked around the fork lift and entered the car from the o~er side, he
beljeved it would have involved stepping over the hoist rope, something he maintained was a
safety hazard. Tr. 1086-87. In any event, he "felt like either way they would have accuse[d him]
... of going the wrong way." Tr. I 090. As Pendley remembered, when he ''walked through
where ... Lewis had been standing," Creighton threatened to run him over. Tr. 209.
Creighton remembered the incident differently. Creighton testified he pulled up to within
a foot or two of the car and "all of a sudden here appears Pendley . ·.. where he ha[d] no business
being." (Tr. 777), between the car and fork lift. Creighton maintained he said to Pendley, "[H]ey,
get the hell out of the way before you get run over." Id. Pendley backed out and then again
"placed himselfpetween the forklift and ... [another] car." Id. Creighton testified Pendley
called him ''yellow" and then "called [him] out." Tr. 777-778. Creighton stated he, "just grinned
and flipped ... [Pendley] off ... (and] then ... left." Tr. 778.
Creighton was certain Pendley walked between the fork lift and the car. In Creighton's
~ew, by placing himself between the fork lift and the car, Pendley risked serious injury in the
event the fork lift's brakes failed or its throttle stuck. Tr. 822; see also Tr. 208.
For his part, Pendley was sure Creighton said a lot more than be testified to. Pendley
recalled Creighton's "open[ing] the door [of the fork lift] and . .. yelling.and cussing." Tr. 1068.
Pendley avoided making eye contact with Creighton. Id. He was "absolutely" concerned·for his
safety, because ''whenever someone tells you ... that would be a good way to get run over or I'm
going to run over you, with all that had went on concerning the statements that he made against
me in the past, it's .... a continuous concern." Tr. 1069.
Maynard learned of the forklift incident and discussed it with Creighton, who told
Maynard he had no idea what Maynard was talking about. Tr. 934; see also Tr. 955. Webb, then
30 FMSHRC 466

the operations manager, also learned of the incident, although he could not recall who told him.
Tr. 664. James Allen, the mine safety manager, also remembered hearing about it and speaking
with Creighton and another miner, perhaps Lewis. Tr. 704, 721-722. Allen detennined Pendley
had passed between the forklift and the man load car. He also determined Pendley did·not have
to walk where he did. He could have sat in another seat in the man load and avoided passing
between the forklift and the man car. Tr. 704-705. Allen remembered Creighton stating he never
came "dangerously close" to Pendley. Tr. 723.
XI. HIGHLAND'S INITIAL RESPONSE
As a result of Pendley's complaints (primarily about Creighton), and Creighton's
complaints about the ''gun incident," management officials held a meeting at which both men
were present.8 Pendley remembered the meeting as occurring around the late summer or early
fall of2005, as did Webb. Tr. 78, 613. Maynard was present, as was Jesse O'Rourke, who was
the mine superintendent before Larry Millburg took the position. The union was represented by
Ron Shaffuer, the president of the union local; and "Shug" Dyer, the union safety committee
chairman. Tr. 76.

According to Creighton, he and Pendley were talked to separately and then were brought
together. Webb testified both men were asked what was going on between them and what their
problems were. The "gun incident" and others were discussed, including Pendley's assertion
Creighton was trying to run him over.9 Tr. 615, 770, 772-773.
Management officials told Pendley they would.look into his complaints. They also
asked Pendley if they could check his locker for a gun.10 Tr. 76, 1206. At the close of the
meeting, Webb told Pendley and Creighton he was giving each of them a written warning. Tr.
177; 199.
Webb testified, aftet Pendley and Creighton left, management and union officials agreed
the warning should be strong and it should put Pendley and Creighton on notice that future
incidents would not be tolerated and future altercations were not acceptable. Tr. 617. As a

8

1t was not only mine management officials who knew of the conflicts involving Pendley

and Creighton, mine mechanic Clarence Powell testified "everyone" at the mine knew about
them. Tr. 491.
9

According to Pendley, at some point during the discussion of the gun incident, Creighton
again said he was going to "shove a gun down ... [Pendley's) throat." Tr. 77; 205 . .Pendley said
to Webb, "[N]ow, do you see what I'm dealing with." Id.
°Fendley's locker was checked, as was Creighton's, and no guns were found. Tr. 77~ 207,

1

612 ..
30 FMSHRC 467

result,.the warning letters were issued. The letters, which were dated October 7, 2005, were
identical. They stated "verbal abuse, disregard for safety rules and threatened violent behavior to
a co-miner" would not be tolerated. Tr. 621; Resp. Exhs. 9 and I 0. The letters also stated they
were a "last and final written warning" and "[a]ny further abuse, altercations or violations of
Company Safety and Work Rules may lead to ... suspension with intent to discharge." Resp.
Exhs. 9 and 10.
Pendley testified, after leaving the meeting, he went to Jesse O'Rourke's and Dave
Webb's offices, shook hands with each and told them ''I d9n't feel like I deserve this ...
warning but if that's what it takes to solve this problem I'll accept it." Tr. 201. Webb believed
Pendley ')ust wanted to kind of reaffirm . . . that things had ... gotten out of proportion and he
just wanted everything to settl.e down." Tr. 618. Webb stated he told Pendley, "that's all we
want, too." Tr. 618.
Creighton took a different and more pragmatic course. On October 10, Creighton met
With Webb and requested his letter have a "sunset date." Tr. 623-624. Webb agreed if Creighton
did not engage in any of the conduct mentioned in the letter for six months, the letter would be
removed from Creighton's personnel file. Id., Tr. 785; see also Tr. 625. Pendley made no such
req"Qest of Webb, or of anyone else.
XII. THE MAN LOAD INCIDENT OF NOVEMBER 29
After the October meeting and letters, more than a month came and went without
another il}cident, but the lull was ·broken on November 29, 2005. On that date, a man .load car
was sitting on a side.track waiting to have a supply car attached before being sent into the mine.
Once the cars were coupled, they were brought to the man load area, the point where miners
usually got on. Tr. 83-84. Pendley, who was waiting to go underground, proceeded to the area.
The cars arrived and Pendley climbed aboard. To send the cars into the mine, someone had to
pull a cord adjacent to the cars. Pendley was the only miner aboard. He pulled the cord, the
hoist s~ed, and the man load cai:s moved down the slope into the mine. Pendley was sitting in
the front seat of the middle car. Tr.1072.
Creighton was working in the yard. He had dropped a load of supplies at the slope shack.
Creighton saw Pendley get onboard and go underground. Tr. 786. Asked what he did after
Pendley went underground, Creighton responded, "I might have went in and ate. I might have
went to the supply house.... I probably got on a forklift." Tr. 787. Asked if he went to the
hoist house where a hoist control panel was located, Creighton said ''No." Id. Asked if he went
to the slope shack, the site of another control panel, Creighton replied, ''Not that I recall.,, Id.
The particular car on which Pendley was riding did not have a radio to communicate
with the surface. Tr. I 072. Therefore, when the cars came to a lurching stop a third to a half of
the way down the slope, Pendley could not call for help. Tr. 210. As the cars halted, Pendley
was thrown forward. He leaned t~ his right in order not to fall out of the car. He testified he felt
30 FMSHRC 468

bis back muscles and neck muscles "pull." Tr. 86. Then, he "gathered [himself] together" and
waited. Id. He stated, "I didn't know when . . . [the cars] would start again or if . . . [the hoist]
was broke[n] or what happened . . . so . . . I just stayed in the car." Tr. 86-87. He estimated five
or ten minutes passed as he "held on in case something else ... happen[ed]." Tr.1075. Pendley
did not leave the car. Tr. 87, 98, 211. Then, the cars resumed their descent, and at the bottom
they came to a slow and nonnal stop. Tr. 87, 218, 1074.
Pendley asked Brian Phillips, who was working at the bottom, if he stopped the cars.
Phillips said, "no." Tr. 87, 318, 1074; see also Tr. 310. Phillips told Pendley no one at the
bottom had stopped them. Id. , Tr. 287-288.
Whether or not the cars stopped as Pendley claimed was a subject of much conjecture.
Pendley suspected Creighton caused the cars to stop by pushing an E-stop button, but Creighton
denied it. In fact, Creighton did not believe the cars stopped suddenly. He thought the brakes on
the brake car would have set if the cars stopped and, according to Pendley, they had not set. Tr.
788; see also Tr. 793.
Scott Maynard was more specific in expressing his doubts. While he conceded
"[s]omeone could [have] stop[ed] the brake car from the hoist house and restart[ed] it without
setting the brakes on the .. . [brake]car" (Tr. 964), he maintained there was a "roll back
mechanism" on the man load cars and if the man load stoped abruptly, the hoist cable would
stretch and then contract causing the cars to "spring back." Tr. 975. He maintained, "[a]ny
change in direction when the car[s are] in motion will automatically set your emergency brakes.
It's called a roll back safety device." Tr. 975-976. Once the brakes set, a person had to get out of
the man load and release the brakes on the brake car. Like Creighton, Maynard noted Pendley
stated he did not leave the car. Tr. 976.
Michael Moore, the MSHA inspector who conducted quarterly inspections of the hoist
and man load mechanisms, questioned Maynard's opinion that a roll back would set the brakes
on the brake car. He testified "the ability of a roll back to set the brakes on the brake car was
taken out [of the system] in the early 1980s." Tr. 1045. If Pendley was traveling down the slope
and someone pushed an E-stop button in the hoist house or at the slope shed, the cars would halt
suddenly, but the brakes on the brake car would not necessarily be affected. Tr. 323-324; see
also Tr. 336, 1042. Thus, Moore believed Pendley might well have been able to remain in the
car afer the man load came to an abrupt stop.
Moore also explained why Pendley was thrown forward. In Moore's opimon~ when the
cars came to a sudden stop, "it would give you a jolt . .. and your body would try to move." Tr.
324-325. Moreover, if, as was the case, the man load contained a car carrying supplies, the
added weight on the supplies would make the 'jolt" even stronger. Tr. 325-326. Moore
believed a stop such as that described by Pendley easily could injure a miner. Tr. 324.
After Phillips assured Pendley no one on the bottom pushed the E-stop, Pendley went to
30 FMSHRC 469

work. Tr. 91 . However, his back bothered him. Greg Moody was Pendley's supervisor that day.
Pendley told Moody what happened, and he described the problem with his back. Moody said
Pendley "ought to have it checked." Id. Pendley then noticed his left ann was "tingling." Id.
Moody asked Pendley to help him complete an accident report, and Moody took Pendley to the
surface, to the commons area room adjacent to the mine offices. Pendley again told Moody
about the man load stopping abruptly, about being thrown forward and to the right, and about the
subsequent pain in his back and the tingling in his ann. After Moody transcribed what Pendley
said, he asked Pendley to read and sign the report if he agreed with it, which Pendley did. 11 Tr.
91-92.
Other miners were in the area when Pendley and Moody were working on the report,
including Creighton and Randy Wolfe. WoJfe worked in Highland's safety department. .Tr. 9293. According to Pendley, Creighton said of Pendley, "(A]in't nothing wrong with him. He ain't
hurt or nothing." 12 Tr. 93. At that point, Wolfe suggested Pendley move to the safety
department, which Pendley did. Others came to the safety department and inquired how Pendley
felt. Wolfe, too, asked Pendley how he felt. Tr. 93-94. Pendley maintained he told Wolfe he
"pulled" his back when he was thrown forward and to the right, but he first felt back pain when
he reached ov~r to retrieve items from the car floor once the car reached the bottom of the
slope. 13 Tr. 216.
A short while later Pendley was taken by ambulan~e to a hospital, where x-rays were
taken and pain medication was administered. At the hospital, ·Pendley was told he should see a
doctor at a specific clinic in Henderson, Kentucky. Tr. 95. Pendley did as directed. The doctor
told.him to take a few days off work and then go back. He also instructed Pendley to come back
to the clinic ifhe had more back trouble. Tr. 98-99.

As a result of this advice, Pendley stayed off work for several days. Tr. 99. When he
returned be asked Lap Lewis if Lewis was in the man load control area on November 29. Lewis,
said he was not, but that Creighton was in the area. Lewis thought Creighton sent Pendley
underground. Pendley responded, "no .. . I sent myself underground." Tr. 100. Pendley knew
of no reason why Creighton was in the control area

11

Pendley testified, when he later asked for a copy of the report, the mine safety manager,
Jim Allen, told him the report was "company material" and Pendley could not have a copy. Tr.
96, 224. In addition, Pendley maintained Allen said more than once what.Pendley said had
happened could not be accurate. Id. Pendley stated Allen told him the hoist was checked out by
"the hoist people," who concluded the accident "hadri't happened." Tr. 218, 222. According to
Pendley, Allen added cryptically, "[W]e' ve all got good jobs here." Tr. 222, 244.
12

Creighton did not recall saying anything. Tr. 824.

13

He denied he told Wolfe the car "didn't rapidly stop." Tr. 216.
30 FMSHRC 470

·Webb heard about the incident-the next-morning. As he recalled, "one of the theories ...
being kicked around" was someone hit the R-stop button causing the incident. Tr. 628 . Webb
and the company decided to have the hoist inspected by contract electricians to ascertain if the
hoist and its safety features had worked properly.. Tt..- 629, 669: The electricians tried, but were
unable to find out whether an E-stop had been pushed, causing the man load cars to stop. Tr.
629.. However, they found all of the hoist system's safety and other features were functioning as
they should. Tr. 966. The electricians reported to·mine safety manager Allen the host had not :
malfunctioned and, in fact, could not have malfunctioned as Pendley claimed. Tr. 692.
After the electricians reported their findings, Webb learned there was an allegation
Creighton bad pushed an E-stop button. Tr. 628;-see also Tr. 669-670. He stated if he had been
sure Creighton had caused the hoist to stop he would have considered Creighton's action to be a
''bad safety offense" and he would "probably [have] taken very strong disciplinary action." Id.
Webb could not recall whether or not he spoke with Creighton about it. Tr. 669-670. However,
based on the electricians' report, he doubted an E-stop button had been pushed. He took no
action against Creighton.

XIII. PENDLEY'S DECEMBER 2005 COMPLAINT TO MSHA
Following the incident, Pendley filed a complaint with MSHA. Kirby Smith, an MSHA
senior special investigator, was assigiled to investigate the complaint. Smith testified, when
Pendley came to MSHA on December 15, he spoke with Smith and others about "a whole list of
things."14 Tr. 45. According to Smith, Pendley expressed concern about "the operation of
the ... hoist and ... an accident that occurred to him on ... [November 29]." Tr. 27. He also
complained of "harassment . . . at the [mine] that he had been reporting to management with no
effect." Id. Pendley asked for a copy of Highland's rep·o rt of the November·29 incident, but
MSHA officials had not received a report. 15 Tr. 47.
MSHA then sent Inspector Michael Moore to inspect the hoist. Tr. 326. Like the
electricians hired by Highland, Moore found -n othing wrong-with it. He also found nothing
wrong with the brake car. Id. Unlike the electricians, Moore concluded "the incident could have
occurred just as ... Pendley described." Tr. 32.
Smith, who accompanied the inspector, believed it was "common knowledge" that

14

Five months prior to that, Pendley started keeping detailed notes about what happened
at the mine. Tr.196. He did so because of problems he was having with Creighton. Tr.198.
15

W ebb stated the company had not filed a report because Highland officials were not
sure the hoist stopped suddenly and an accident "actually occurred." Tr. 629. Allen maintained
the company was not neglecting its reporting duties. Rather, it was in the process of
investigating the incident in order to complete the report if one was required. Tr. 684.
30 FMSHRC 471

Pendley had gone to MSHA and, thus, h~ initiated Moore's inspection. 16 Tr. 48, see also Tr.
28, 47. However, when Pendley was asked by a miner if he had ·spoken with MSHA about the
hoist, Pendley said he had not. He was afraid if he .said he talked to MSHA, the information
would be conveyed promptly to mine management. Tr. 102-103.
During the inspection, Moore ~ked about the November 29 incident and whether or not
High~and filed an accident report. Allen produced an intra-company memo which stated the
company had not yet determined if the incident was an accident. Tr. 684. Nonetheless, on
December 20, MSHA cited Highland for a Part 50 violation. The citation alleged Highland
failed to report the November 29 incident within 10 days of its occurrenc.e. 1.7 Tr. 28; Gov't
Exh. l. MSHA was concerned Highland was not reporting.all accidents as required. So, the
agency conducted an audit of the company's compliance with the Part 50 requirements and
issued four more citations, each charging instances where accidents were not reported.

XIV. THE SIGN-IN INCIDENT
AND

THE SECRETARY'S FIRST DISCRIMINATON COMPLAINT
No sooner had Pendley complained to MSHA than another incident occurred, one which
lead directly to Pendley' s first suspension from work. Pendley testified in the latter part of 2005,
he regµlarly worked 12-hour days, his usual eight-hour shift, plus four hours of overtime (two
hours before his shift and two hours at its end). Tr. 108-109. On December 21, his shift started
at 3 :00 p.n;i, but Pendley got to the mine at approximately 12:30 p.m . because he intended to go
to work at 1:00 p.m. The sign-in book was kept in the commons area room. Pendley signed in
between 12:50 p.m. and 12:55 p.m., went to the bathhouse, got some materials and headed for
the man load boarding area. He intended to go underground. Tr. 108, 111-112. When he signed
in, Pendley indicated the time was 1:00 p.m.18
On the way to the man load area, Pendley saw Lap Lewis, who told Pendley the cars were
underground and it would be "a few minutes" before they returned. Tr. 113-114. It was cold,
and Pendley did not want to wait outside. He and Lewis walked into the commons area room to

16

Pendley testified a fellow miner overheard Shug Dyer and Ron Shaffuer saying he bad
"gone to the federal about the hoist situation." Tr. 101.
17

Mandatory reporting regulations at 30 C.F .R. Part 50 require an operator to report
certain accidents within a prescribed period.
1

~The chairman of the union safety committee, Shug Dyer, explained under the
company/union contract, a miner's pay began once he or she signed in. Tr. 446. According to
Pendley, almost everyone rounded.his or her sign-in time to the nearest hour.

30 FMSHRC 472

wait. 19 Tr.114. Miner Joe Adamson came into the room and signed in. According to Adamson,
it was around 1:00 p .m. Pendley had signed in immediately before Adamson. Tr. 368.
Prior to signing in, Adamson saw Webb walking up and down a hallway outside the
room. He testified Webb "looked weird." Tr. 369. Pendley testified Adamson asked if he,
Pendley, was getting ready to go underground. When Pendley stated he was, Adamson said he
wanted to go underground with Pendley. Adamson left the commons area room, went to the
supply area, and then returned. Id. Pendley was sitting in a chair against the wall, and Lewis and
Adamson were in front of him, about six to eight feet away. Tr. 116. According to Adamson, if
the weather was cold, miners usually waited inside the commons area room, where they could see
the man load cars through a window.20 Tr. 377. However, Pendley was sitting in such a way he
could not see through the window. Tr. 243.
Pendley testified, Webb walked into the room and asked Pendley if he was paying
Pendley "to sit there."21 Tr. 245; see also Tr. 1062. Adamson stated he and Lewis did not speak
to Webb, but Pendley testified he told Webb he was waiting for the man load so he could go
underground. Id., 244, 245, 374, 1062. According to Pendley, Webb responded, ''Not on my
time[,] you're not." Tr. 117. Then, Webb turned and walked away. Id.
Pendley, Lewis and Adamson left the commons area room and walked outside to the man
load area. Pendley estimated the cars came up at about 1:30 p.m. Pendley and Adamson
boarded, and they road underground. Tr. 117-118.
Webb had a different version of events. He testified between 1: 15 p .m. and 1:30 p.m., he
waked through the commons area room and saw Pendley sitting on a chair against the wall.
Pendley was four or five feet away from Webb, and Webb did not recall anyone else in the
room.22 Tr. 631-632, 639; See Resp. Exh.11. Webb intended to go to the mine manager' s office
9Pendley described the commons area room as ''wide open.·~ He estimated it measured
20 feet by 30 feet. Tr. 115-116.
1

20

Shug Dyer termed it "standard practice" for miners to sign in and wait in the room. Tr.

446.
21

Adamson's description of what Webb said was somewhat different. He testified Webb
told Pendley "he didn't pay . . . him to sit and drink coffee and all like that.~' Tr. 370. Adamson
claimed he was "stunned" by Webb' s remarks because Pendley was doing a normal thing by
waiting in the commons area room. Id.
22

As previously noted, the sign-in incident ultimately lead to Pendley' s suspension by
Webb. After Pendley was suspended-, Webb was reminded by Ron Shafiher that other miners
were in the room with Pendley. Webb told Shaffner he did not see the others, but if Shaffner
would give him their names, he would suspend them too. Tr. 645. Not surprisingly, neither
30 FMSHRC 473

to check maps, but when he saw Pendley, Webb decided to look at the sign-in book because he
''wanted to see what Pendley was doing sitting there." Tr. 636. Webb-maintained, it was ''kind
of odd to see a guy sitting there at that time of day." Id.
Webb testified he asked Pendley why he was sitting in the room. He said to Pendley, "I
don't think you should be sitting here on my time. I think you ought to be heading towards the
hoist, toward the underground." Tr. 637. Webb maintained Pendley did not respond. 23 Rather,
Pendley got up and walked to the sign-in book and leaned over it. Webb assumed Pendley was
changing his time. Tr .638. At that point, Webb turned and left the room to go to his office. Id.
. Webb stayed in his office for about an hour. Then, he walked back to the commons area
room where he checked the sign-in book to determine if Pendley had in fact changed his time.
The book still showed Pendley signed in at I :00 p.m. In Webb's opinion, by not changing his
time, Pendley was being insubordinate. Tr. 639. He had falsified a company record. Webb
called underground, and told a management official he wanted to see Pendley in his offic.e.24 Tr.
640.
After working up to two hours, Pendley was notified to return to the surface, where he
was directed to report to Webb's office. At the office, Pendley found Webb; Shug Dyer, the
safety committee chairman; Ron Shaffner, the union local president; and Scott Maynard, the
assistant superintendent.

As Dyer remembered the meeting, Webb spoke with Pendley about why Pendley had not
caught the man load cars to go underground. Then, he asked Pendley for his side of the story.
Pendley looked at Dyer and Shaffuer and told Webb he had "nothing further to say until . . . [he
got] better representation." Tr. 444.
As Pendley recalled the meeting, Webb also said Pendley would be suspended for three

Shaffuer, nor anyone else, gave the names. Tr. 647. Webb admitted the room was "an open area
... [with] no obstructions." Tr. 651. He did not know why he saw only-Pendley. Tr. 650-652.
23

0n cross-examination Webb agreed Pendley might have said he was waiting for the
man load cars. In any event, Webb was adamant he ''told [Pendley] he need(ed] to be out ... [at
th~ man load area] ... not inside the room." Tr. 655; see also Tr. 656.
24

Webb agreed, as a general rule, if a miner signed in at 1:00 p.m. and waited outside for
the hoist to come up, the miner would be paid for the time he waited. Tr. 653. Webb stated he
"had an objection with ... Pendley [on December 21) . .. because after he signed the book, he
should have been out at the hoist. There's a shelter there to wait for the hoist ... that's where he
should have been waiting ... not inside the building . ... especially after 20 minutes." Tr. 654655.

30 FMSHRC 474

days for falsifying a company record (i.e., the sign-in book). Tr. 247. Webb then handed
Pendley a suspension letter.25 Id. Pendley testified far from remaining silent, he told Webb he
denied the charges and that he did not falsify the sign-in book. Tr.119, 244. Dyer told Pendley
he should tell Webb more. Tr. 120, 456. So, according to Pendley, he stated again he did not
falsify anything and he felt he needed representation. Tr.120. Shaffuer told Pendley he and Dyer
were all the representation Pendley had, and Pendley responded, ''I feel . . . I need better because
I've denied what I've been accused of." Tr. 122.
Webb' s version of the meeting was not too different from Pendley' s. Webb remembered
telling the group why he felt Pendley was insubordinate, and asking Pendley if he had a
"different version.'' Tr. 64 1. ·Pendley responded, ''I'm not going to talk to you or say anything
until I get better representation." Tr. 641, see also Tr. 642. Webb explained to Pendley, under
the union contract, the union representatives had to be there and had to represent him. Tr. 642643. Webb then read to Pendley Webb's version of the events of the day and explained he was
suspending Pendley because of insubordination. He added, he asked Pendley, "Am I wrong in
my decision? Tell me where I'm off." Tr. 643. Pendley did not reply.
Webb then issued Pendley the suspension letter he had prepared before the meeting. Tr.
643-644; Resp. Exh. 13. Even though the letter was written before the meeting, Webb
maintained Pendley "absolutely had a last chance ... . [I]f he had any objections to . . . [the
letter] he needed to respond .. . we could have either modified ... [the] letter or thrown it away."
Tr. 657. However, Pendley' s only response was he wanted to know the dates when the
suspension would take effect. Tr. 644.
After the meeting concluded, the union·officials and Pendley left Webb's office. Dyer
urged Pendley to return to return and speak with Webb about the suspension, but Pendley would
not. 26 Tr. 247-248. Rather than explain why he had not, as Webb thought, falsified his tinie,
Pendley went home. He then saw a doctor, who suggested he take a full week off. ·Pendley
returned to work during the first week in January. Tr. 124.

2

sAs far as Pendley knew, no one had ever been suspended for waiting for the man load
cars in the commons ·a rea room. Tr. 195. Pendley maintained the "real" reason he was
suspended was because Webb thought he complained to MSHA about Highland' s failure to
report the November 29 incident. Jn fact, Pendley claimed a miner named Troy Cowan told him
he heard Webb say he knew Pendley was the one who complained to MSHA about Highland's
failure to file an accident report and that MSHA came to the mine and cited the company because
of Pendley. Tr. 237-239; 283. However, Cowan, the second shift production supervisor, denied
he told Pendley any such thing or said the company was going to "get" Pendley because he
complained. Tr. 848.
·
26

Dyer testified that Shaffner also urged Pendley to go back and speak with Webb
("[L]et's go back in there and . . . get if straightened out right now:" Tr. 456).

30 FMSHRC 475

Once back, Pendley maintained he was given different and increased duties. Tr.126. In
fact, he testified, by the end of 2006, he bad been assigned almost entirely different duties than
those he held prior to being suspended. Tr. 136. For instance, he was asked to hand load a pallet
and move it, rather than to use a fork lift. Tr. 131-132. Although he admitted moving the pallet
did,not create a safety issue, he felt there were "a lot of things that could have been shared with
other employees that were being put on me." Tr. 132.
Pendley again went to MSHA and complained he was suspended because he requested a
copy of the company's accident report. Pendley also said he intended to have the union file a
grievance for him. According.to Pendley, Shaffuer told Pendley he would file it, but never did.
Tr. 248-239. Rather, Pendley quoted Shaffuer as· stating Webb threatened to suspend the other
miners who were in the commons area room with Pendley if Shaffuer filed a grievance. Tr. 250.
. On September.25, 2006, the Secretary, after having investigated Pendley's allegations,
fi.1¢ her first disc~ation complaint on Pendley's·behalf (Docket No. KENT 2006-506). The
Secretary asserted Pendley was suspended "for making safety complaints." CompIt. 2.

XV. THE OFFICE EMPLOYEES INCIDENT
While Docket No. KENT 2006-506-D was pending before the Commission, two
incidents oc~~ed that lead to the company's subsequent decision to suspend and discharge
Pendley. One of the incidents was triggered by yet another problem with overtime.
On or just before March 19, 2007, Pendley learned Fay Hubbert, who was in charge of
payroll at the mine, questioneq overtime pay Pendley believed he was owed. Pendley was upset.
He went to the office of Sheila Gaines, Hubbert' s supervisor. Pendley and Gaines discussed the
situation. Gaines described Pendley as agitated and "very upset" because of what he perceived to
be Faye Hubbert's unauthorized questioning of his pay.27 TRH Tr. 232. As it turned out,
Hubbert was doing her job. Gaines, Hubbert's supervisor, explained, among Hubbert's duties
was a requirement to review all claims for overtime and make sure they were accurate. TRH Tr.
232-233, 246. According to Gaines, Pendley argued Hubbert had no such right. TRH Tr. 234.
He told Gaines, Hubbert was doing ~gs that were not "right," that Gaines would be held
accountable. Id.; see also TRJlTr. 235. Gaines rem~mbered Pendley saying, "You're going to
take the fall." TRH Tr. 235. What Pendley said and the way he said it made Gaines (eel "very
nervous." TRH Tr. 235. AD employee who worked down the hall told Gaines she was ready to
bring in another miner because Pendley was "getting so loud" the employee thought Gaines
"might need some help." TRH Tr. 236. Pendley le~ put Gaines "felt like [the discussion]
wasn't over." ·TRH 235. Gaines was right.
·
Two days later Pendley returned to continue the discussion. ·Gaines heard "loud voices,

27

Pendley was, in fact, subsequently paid for the subject overtime. Tr. 235.

30 FMSHRC 476

in the payroll office." TRH Tr. 239.· She heard Hubbert tell Pendley he needed to speak with
Millburg. Millburg now was handling all questions regarding overtime pay.28 Tr. 239. She
described the conversation as "heated." Id. It was just before I :00 p.m., and Pendley had not yet
signed in. Tr. 144. Pendley then appeared at the door of Gaines's office. He wanted to speak
with her, but Gaines explained she was busy. TRH Tr. 239-240. Pendley entered the office
anyway. He was canying a copy of a mine sign-in sheet and his·pay stub. Pendley told Gaines
he was not being paid properly. Gaines told him if he would leave the sheet and stub she would
look into the matter, but Pendley kept insisting his pay was inaccurate. He finally left when
Gaines received a telephone call. TRH Tr. 240.
·
Pendley then looked for Millburg. Millburg was \Jnavailable, and Pendley headed for the
bathhouse to get ready to·go to work. · Pendley got dressed, donned his hard hat and light, and
traveled toward the man load area. The man load cars were moving toward the area, and Pendley
waited for them. However, instead of stopping for Pendley, the cars continued past him into the
mine. Tr. 150-151. Lewis explained the cars did not stop because ''the federal people have been
called to go ... in the [mine]" for a section 103(g) inspection.29 Tr. 152·.
Pendley noticed an MSHA inspector; as well as union and company personnel, sitting in
one of the cars.30 Tr. 152. Pendley maintained Lewis told him he would have to wait for the next

28

Millburg testified, after he began working at the mine in March 2006, he limited miners
to one hour.of overtime at the beginniµg of the shift and one h9ur at the end of the shift. He did
so because miners were coming and going at all hours and the company needed to keep better
traCk of the hours worked. Millburg described the situation at the mine as one in which overtime
was ''being abused," and "everybody was doing whatever they wanted." Tr. 1025.
9Under se.c tion 103(g) of ~e Act, a miner who believes a particular condition ~t a mine
violates the Act or regulations may request an inspe~tion, and the inspecto~ is required to keep
confidential the miner's name. 30 U.S.C. § 813(g).
2

3

°Tll.e MSHA inspector was Anthony Fazzolare. Tr. 344. He testified the section 103(g)
complaint that triggered the inspection concerned allegedly hazardous accumulations of
combustible materials along a belt line. Tr. 344. Fazzolare learned of the complaint ~er ~e
completed a regular inspection of the mine. He notified mine safety supervisor Randy Duncan
and union safety cominittee chairman Shug Dyer, and·he went to the man 19ad area with Duncan
and Dyer. Tr. 2 347. It was around 1:00 p.m. Tr. 355; see also Tr. 458. Dyer did not recall
anyone being around when Fazzolare told him about the complaint. Tr. 459. Nor did Fazzolare
recall seeing Pendley near the man load area, although Dyer did. Tr. 459. Dyer thought Pendley
could have gotten on their man car if he had wanted to. Certainly, no one told Pendley not to
board the car. Tr. 460-461. Lap Lewis lowered the inspection party underground, and the three
men traveled to the subject belt line, where Fazzolare found what he believed were prohibited
accwnulations of combustible coal and coal dust. He orally issued a citation to the company for
30 FMSHRC 477

man load. Tr.1050. .Rather than wait, Pendley walked to the office area to again look for
Millburg. Tr. 152; 1053. (Pendley knew it would be 15 to 20 minutes before the man load
returned and he could board a car. Id.) ·

In the meantime, Gaines had called Hubbert and asked her to come to Gaines' s office.
~Tr. 140. Hubbert arrived, and a short time later so did.mine office employee Roger Wise.

TRH Tr. 240-241 . Suddenly, Pendley reappeared, and began discussing the company's rules for
overtime pay and how they should be applied. TRH Tr. 241, 264. Gaines described Pendley as
"agitated" and ''very loud." Tr. 241. Hubbert agreed he was "loud." TRH Tr. 264. Wise
testified Pendley "kept getting louder and louder and louder." TRH Tr. 278. Hubbert stated she,
Gaines and Wise "kept trying to explain [the overtime rules] to [Pendley] . .. and he . . .
questioned it. And of course, he was told we did.n 't.make the rules, that Larry Millburg [did] [and] he needed to go to see Larry Millburg." TRH Tr. 264-265. But, according to Gaines,
Pendley insisted over. and over the rules were ''illegal." TRH Tr. 242. As the situation
continued, everyon.e began speaking at once. TRH Tr. 281. According to Hubbert, Pendley ')ust
kept on and on." TRH Tr. 265; see also TRH Tr. 278. Gaines·stated, "it just didn't appear like
we were getting through to him, and I thought it was going to go on forever .... it was just out
of control." Id. Wise described Pendley as not being able to "listen to reason." TRH Tr. 278.
Pendley came over to Wise and. '~gQt in [Wise' s] f~ce." TRH; Tr..279. Hubbert felt very
uncomfortable. TRH Tr. 265. Gaines finally said, "that's enough. We don't have time for this
conversation anymore. You need to talk to Larry (Millburg] if you've got a problem . . . [T]his is
over." TRH Tr. 242; see also TRH Tr. 265. Hubbert then left the office. Pendley pressed the
discussion with Wise, who told Pendley he was not "going to stand . .. and listen to [it]." TRH
Tr. 242. Then, Wise left. His intention was to find'Millburg· and have him handle the situation.
TRH Tr. 280. As Wise explained, "Normally, we don't have that type of aggression . . . in the
office.'' Id.
Left alone with Pendley, Gaines testified, although she did not believe he would hit her,
she felt intimidated. Pendley was "mad" and "upset." TRH Ti. 243. He continued to talk to her
about his pay situation; and Gaines continued to tell him he should speak with Millburg. She
then turned her back on Pendley, and he finally left. Id.
Wise and Hubbert returned to Gaines' office, and they locked the doors. Hubbert stated,
"[W]e didn't want him coming back." TRH Tr. 266. Wise toid.the others he would get
Millburg and have Millburg ''take control of the situation." TRH°Tr. 244. However, Millburg
was underground. Id. Later that afternoon Gaines reported the incident to Millburg. TRH Tr.
280.

a violation of 30 C.F.R. § 75.400, which prohibits accumulations of combustible materials.
30 FM$HRC 478

XVI. THE FINAL RUN~IN WITH CREIGHTON
After the incident, Pendley returned to the man load area to go underground. Lap Lewis
was waiting to ..hook a car up." Tr. 156. The man load in which Pendley was supposed to ride
was located at the charger, above the spot where Pendley was waiting. Creighton was sitting on a
golf cart in the slope shack where controls to the man load were located on an electrical control
panel.31 The cart was parked very close to the controls. Rather than walk up to where
Creighton was, Pendley testified he ')ust stood there waiting
for ... [Creighton] to bring the car[s] down." Tr. 156.
Pendley waited for "quite a period of time." Tr. 157. When the cars didn't come,
Pendley walked toward Creighton. Pendley intended to use the controls to send the cars to the
man load area because he believed Creighton had no intention of sending them to him. Id.
Pendley testified, as he walked toward the slope shack, he had one hand up. Tr. I 054.
Pendley reached the shack and leaned into the narrow space between the cart and the controls.
He intended.to push the man load button and send the cars to the man load. Pendley stated, "I
leaned over ... to where the control panel was .... and there was no alarm on it ... or no tag or
anything, so .... I punched the man.load (button] ... [and] Creighton .... put his arm against
me pushing my [right] arm away from ... where I bad punched [the button]."32 Tr. 159-160; see
also Tr. 1054-55, 1070. Pendley stated, "When he put his arm against me, I just took my arm
and raised his arm up away from me." Tr. 160. Pendley added, Creighton "started hollering.. . .
for [foreman] Rodney Baker." Tr. ·160-161; see also Tr. 1055. Pendley maintained he did not
contact Creighton except to touch his arm. He did not "even make eye contact" with him. Tr.
160. Pendley also testified, after he punched the man load button, Creighton said to him there

31

The slope shack :was open-ended. The hoist control panel contained about 15 buttons,
including an E-stop button ~d call_buttons that could send the cars to the charger or to the man
load area. Tr. 556, 579. The control panel was on the wall closest to the mine opening and
adjacent to the shack opening furthest from the hoist house. Tr. 556. To push the man load call
button, a person had to be in front of the control panel. Tr. 556-557. In addition to the control
panel, the shack usually contained a golf cart, which was primarily used to transport supplies. Tr.
554, 572. There was a man load caffbutton outside the slope shack and a person did not have to
go inside the shack to hit the call button unless the man load cars were at the charger, which they
were when Pendley was waiting for them. Tr. 571, 586-587.
32

By looking for an alarm indicator or a tag, Pendley maintained he was checking to see if
a test of the hoist was underway. .Tr. 1093. There was conflicting testimony as to whether these
indicators always were used to indicate a test. Outside maintenance man Joseph Courtney
testified, normally they were. Tr. 295. MSHA Inspector Michael Moore testified he had
conducted an examination of the hoist system with Courtney when they were not. Tr. 329; see
also Tr. 330. ·

30 FMSHRC 479

was a hoist test going on. Tr. 1055.
Creighton offered a different version of the events. He testified he was in the slope shack
looking at the control panel. The ~ab of the golf cart was aligned with the panel. Tr. 796. There
was a distance of approximately two feet between the cart and the wall of the shack. According
to Creighton, the man load was underground when the surface foreman and the outside mechanic
came to the slope shack to tell him they were on their way to the hoist house. They added when
the man load came out of the mine, they would conduct a safety test of the hoist. Tr. 797. After
they left, the only other miner in the area was Lap Lewis. Lewis was at the switch about 30 to 35
feet from Creighton. Upon completion of the hoist test, Lewis, who, according to Creighton,
knew about the test, was going to hook up another man load to drop supplies into the mine. Tr.
798-799. Creighton's role in the test was to monitor the slope shack control pannel.
The man load came out from underground and the test commenced. Creighton waited for
a call from the hoist house to tell him the test was completed. · Tr. 801-802, 829. Creighton
described what.happened next: "Here comes Pendley .... I'm at the controls. The test is going
on. ... . I'm leaning against the golf cart." Tr. 803. According to Creighton, Pendley stood five
to eight feet from him, Pendley waited a minute and twenty seconds, then he "charge[d] in . ..
and shoved me out of the way." 33 Tr. 804. Creighton maintained Pendley used both arms. .
Creighton testified he yelled, "[H]ey, CT.....d damn it. They're doing a test at the hoist
house. They're doing a test.~' Tr. 805. Pendley, having pushed Creighton beyond the end of the
golf cart, did not respond. He just stood in front of the control box. Creighton stated he could
tell Pendley \\'.as not going to let him back in front of the controls, so Creighton went to the
telephone next to the control box and called the surface foreman and rep<>rted what had
happened. Id., Tr. 806.
Rodney Barker, the foreman, came in his truck. As Creighton described it, Barker
stopped, got out and tried to reason with Pendley, but Pendley, in Creighton's ~puiion was "not
going to listen to anybody." Tr. 806. Barker asked the men to separate. Id.
Lewis confirmed Creighton's assertion a hoist test was underway when the confrontation
occuried. Tr. 543. "[T]he test .. . was still in process ... then Pendley turned around and
shoved [Creighton] out of the way and scootched his self in there where Jack couldn't get to the
controls. So Jack started hollering for Barker .. . and Barker . . . [came] over there and talked to
[them]." Id. ; see also Tr. 552, 580: 34 ·
·

33

Creighton knew exactly how·long Pendley waited, because Creighton reviewed
Highland's surveillance tape. Tr. 804.
34

Lewis 's version of events.also was informed by watching the video surveillance tape.
He did so at Millburg' s direction and with Millburg. Tr. 494; see also Tr. 495. Lewis stated he
30 FMSHRC 480

After Barker arrived, Pendley testified, he told Barker his version of what happened..
Creighton told Barker that Pendley interfered with the hoist and put miners in danger. Tr. 163;
see also Tr.174. According to Pendley, several times Creighton put his finger in Pendley's face.
Pendley asked Barker to tell him to stop. Tr. 163-164.
Meanwhile, the man load cars had come down to the man load area. Creighton continued
to point at Pendley, and Pendley again asked Barker to instruct him not to. Barker said Pendley
should get on a car and Creighton should move away. He also again instructed both to stay away
from one another. Tr. 166. Pendley boarded a car as directed and proceeded underground. Tr.
166.
Millburg, who bad been underground, came out of the mine. It was 2:01 p.m. (Millburg
knew the time from viewing the surveillance tape.) Tr. 1004-05, 1013. As soon as he was on the
surface, Creighton saw him and motioned to him. Millburg asked Creighton what he wanted.
Creighton was "upset," according to Millburg. Tr. l 005. Creighton told Millburg "they [were]
making a safety check on the hoist and [Pendley came] out .. . and just pushed me out of the way
He just shoved me out of the way and tried to take control of the hoist." Tr. 1005-06.
To Millburg, the important thing was Pendley shoved Creighton and interfered with the
test 'Tr. 1007. Millburg then spoke·with Lap Lewis, who confirmed·what Creighton·said. Id.
Millburg also spoke with Barker,.who told him the test was just finishing when the incident
happened. Tr.1029-30. Millburg went to his office. There, Sheila Gaines told him about the
incident with the office employees. Millburg drafted a letter suspending Pendley, subject to
discharge. Tr. 1010, Resp. Exh. 26.
While-this was happening on the surface, Pendley was working underground. Shortly
after beginning work, he received a call from Steve Bockhorn, his foreman, instructing him to
come out of the mine and report·to Millburg's office. It was between 3:00 p.m. and 4:00 p.m,
Pendley met Shaffuer and Dyer who told him they were going with him. 35 Tr. 170.

and Millburg reviewed the tape "a week or two" after the incident. Tr. 563. The pertinent
portion of the video was played in the courtroom as Lewis watched. Lewis described the scene
depicted on the video. It showed Pendley standing some distarice from the shack and then
advancing toward the slope shack. · Although Lewis maintained the video showed Pendley
pushing Creighton, I found it to be inconclusive as to who pushed first. Tr. 561.

35

Prior to this, Millburg consulted with Webb and explained to Webb what he believed
Pendley had done. Because of the argument with the office staff, because of the altercation with
Creighton and because Pendley interfered with the hoist test, Millburg told Webb "he was going
to discharge [Pendley)." Tr. 674. Webb agreed discharge was an appropriate discipline. Id.
30 FMSHRC 481

When the three reached the office, in addition to Millburg, they found assistant
superintendent Scott Maynard and union safety committee member David Acker. According to
Pendley, Millburg told him he would be given a letter of suspension with intent to discharge, and
then Millburg handed him the letter. Tr. 171; Gov't Exh. 4. Pendley testified he responded by
denying the accusations. Tr. 172; see also Tr. 3.
However, Millburg testified Pendley did not say anything.

Q.: [W]hen you saw ... Pendley at 3:45 (p.m.] and gave him
the letter, you .didn't talk to him about what happened, did
you?
A: No. I read him exactly what the charges [were] on the letter,
and then .. . I gave him a copy of the letter and then I sat
there and waited for him to make his statement and anything
he wanted to say. He got up and walked out of the room.
Tr. 1015.
Millburg also testified that at the close of the meeting Shaffner asked Pendley ifhe had anything
to say, and Pendley did not respond.. After Pendley walked out, Acker asked if Pendley could
come back and say something later. (Acker speculated Pendley had gone to call his lawyer.)
Millburg said Pendley could return.
Once Pendley, Shaffuer, and Dyer left Millburg' s office, they headed for the bathhouse.
Shaffner told Pendley he should go back and speak with Millburg, which Pendley did. Tr.176177. P~dley maintained he fully discussed the "accusations" with Millburg and Maynard.
(Maynard was still in the office.) With regard to harassing the office staff, he emphasized the
meeting in the mine office earlier in the day involved a discussion ·o f his pay. With regard to
interfering with the hoist sa.{~ty check, he emphasized he looked for indicators a test was in
progress and there were none. With regard to assaulting Creighton, he denied it happened.
Tr.177; see also Tr. 1032-33. Pendley left Millburg' s office, changed his clothes, and went
home. Tr. 178.
Prior to and during all of this, Fazzolare had conducted the section 103(g) inspection and
found conditions he believed violated section· 75.400.36 Fazzolare did not come up from

Webb told Millburg, ''You do what you need to do .... I'm leaving it up to you." Tr. 1029.
36

Contrary to MSHA's usual practice, before going underground Fazzolare did not give
Highland management officials a copy:of the section 103(g) complaint. Smith explained
Fazzolare had inadvertently written the complainant' s name on the complaint, and he did not
.

30 FMSHRC 482

underground until 2:40 p.m (Tr. 1013), after which he reduced the orally issued citation to
writing. Millburg gave Pendley the letter stating he was suspended, with intent to discharge, at
about 3:45 p.m. or 3:50 p.m. Tr. 1014; Gov't Exh. 4. Millburg stated he was given the citation
Fazzolare had written around 4:45 p .m. Id. Thus, at the time he decided 'to suspend and
discharge Pendley, he did not know Fazzolare bad issued a citation to Highland. However,
MSHA investigator Smith believed·the section 103(g) complaint, inspection, and subsequent
citation of Highland were a reason for Pendley's suspension and subsequent discharge, because
the "time line of events" were ')ust too close to be coincidental." Tr. 39.
The day following his suspension, Pendley filed a complaint with MSHA. As previously
mentioned, the complaint lead to MSHA' s filing of a second complaint of discrimination (KENT
2007-265-D). Pendley's suspension and discharge also lead to the Secretary's successful petition
to temporarily reinstate Pendley (KENT 2007-383-D). However, far from putting an end to
Pendley's and the Secretary's complaints, Pendley's reinstatement triggered more Secretarial
allegations of discrimination.

XVII. THE EVENTS SUBSEQUENT TO REINSTATEMENT
According to Smith, following his reinstatement Pendley complained to the Secretary
about numerous incidences of discrimination. He charged his supervisors were "bird-dogging?'
him, in that he was being "supervised real close ... to see that he [was] actually doing what ...
[mine management] told him to do." Tr. 40. He also charged he was given work assignments
that differed from those he held before he was suspended and discharged and that his workload
had increased to the point he could not complete his assigned tasks.37 Tr. 184. He further
complained his job duties were posted on a mine bulletin board for all to see. See Tr. 189-190.
Mechanic Clarence Powell agreed Pendley was closely supervised. He stated, "[A] lot of
times when you ... see ... Pendley pull in for parts or deliver us parts, it wouldn't be just a few
minutes, mine foreman would come in ... and that didn't happen ... like that before." Tr. 486.
According to Powell, the "bird-dogging'' was carried out maiD.1.y by Steve Bockhorn, the foreman
on Pendley's shift. Tr. 487.
Bockhorn, however, maintained it was his job to ensure everyone on the shift did bis or
her job so the mine operated smoothly. Tr. 855. Prior to Pendley's suspension, Bockhorn
testified Pendley "did his job well." Tr. 858. But, according to Bockhorn, Pendley did not feel
he was getting support from anyone at the mine concerning his·problems with Creighton.
Bockhorn and Pendley discussed "everything that was supposedly bappenmg to . . . [Pendley

want to breach the complainant's confidentiality. Tr. 37-38, 52, 53-54
37

Smith maintained, "if you want to fire somebody, you give them more than they can do
and watch them close." Tr. 40.
30 FMSHRC 483

because ofj ... Cre~ghton," but Bockhorn could not substantiate any of the incidents. Tr. 860.
Therefore, he trj.ed to keep Pen<iJ.ey focused on his job. Id.
With regard to his job assignments, Pendley pointed out he was assigned to wash
equipment and to take oil to each.unit. Tr. 184. Prior to his reinstatement he only occasionally
had to wash equipment. After, it was a daily task. Tr. 258. He admitted, however, that Steve
Bockhorn '1>ossibly could have" told him if he didn't have time to do his washing duties it was
"okay." Tr. 259-260. James Baxter, Pendley's.maintenance supervisor, noted "a lot" of other
miners also had to wash equipment. Id.
Pendley also maintained the duty to supply oil "absolutely" affected his ability to fulfill
.his other responsibilities. Tr. 186. When a miner asked Pendley why he was not getting supplies
delivered, Pendley replied, "I've got an oil ride and I've got a parts ride. I've got two vehicles.
When I'm gone on an oil ride, then I cannot be delivering parts." Tr. 255.
Pendley believed the "added" duties were outside those allowed by the union contract.
He testified he complained to union president Ron Shafther about it, and Shaffuer told him there
"ought to be at least two people doing what you're doing." Tr. 1082. However, Pendley agreed
the duties are not written in the contt:act and that all were within his job classification. He also
agreed management could tell a miner what he or she should do within a job classification "as
long as they do it in an.appropriate way and everybody is treated the same." Tr. 1083.
Bockhorn testified Pendley never complained to him about being overloaded with work.
Tr. 875. B_o ckhom also noted that -p rior ~o being suspended .and discharged, Pendley regularly
chose to work overtime hours (10 to 12 hour days). See Tr. 291. Consequently, he had more
time to accomplish his tasks. After he was reinstated, Pendley chose not to work overtime.38
Id.
Bockhorn also maintained, after Pendley was reinstated.he did not do his job as he had
prior to his discharge. He was much slower. See,.Tr. 887. Assistant superintendent Scott
Maynard testified he had complaints from all of the shift managers about the slow nature of
Pendley's work. Tr. 931. Maynard stated he told the managers to just have Pendley do bis job.
He never g~ve orders for them to b~ tough on Pendley. Tr. 931-932.
Boc~om's assessment of Pendley's post-reinstatement work ethic was shared by David

Howell, a shift foreman who worked with Pe~dley before and after bis discharge. Howell
described Pendley after his reinstatement as "a completely different employee as far as work
habits." Tr. 899. He offered to help Pendley, but Pendley did not accept the offer. For example,

38

Pendley testified he was afrrud if he worked overtime, he would be assigned even more
duties. Tr. 291.

30 FMSHRC 484

Howell, after referencing his contemporaneous notes (see Resp. Exh. 20), cited an instance on
JWle 14, 2007, when needed parts were not delivered by Pendley. Tr. 901. Howell described a
discussion that ensured the following day:

I called [Pendley] to come down to the fuel station.
I was down there, and I had a discussion with him
. . . . I just wanted to say ... hey, are you having
any problems .... Well, as soon as I started to
say something ... he got kind of excited with me.
I said, now hold it just a minute ... ; I want to have
a professional conversation here .... because if
you have an issue, I want to help you out .... I
want to try to help get these parts delivered. What
are the problems we're having. And he stated to me
he didn't have time to•do all .the jobs that he had
been assigned to do. And I told him ... if you don't
have time at the end of the shift to get something
done ... let me know .... so I have an idea of what
... the problem is so we don't have to have a
discussion on it. I can get someone else to do it
... but we've still go to get the work done, and
to this day, he never called me.
Tr. 902-903.
Howell also observed, since his reinstatement Pendley drove his equipment "extremely slow like
he's got no urgency whatsoever to get anything delivered." Tr. 906. Howell believed Pendley
needed to better manage his time. "He [did] it in the past. And that's what I requested [he] do."
Tr. 908. Howell added, "I was ... try[ing] to help him ·... get the job done." Tr. 918. Howell
noted those who performed Pettdley's job between his discharge and reinstatement completed
their assignments. Tr. 916.
With regard to the posting of his job duties on the bulletin board, Pendley maintained he
never had a list of duties given to him before; nor had his duties been posted previously. See Tr.
189-190, Gov't Exh. 5. The bulletin board was located where everyone coming in and out of the
commons area room could see the list. Tr.190.
Bockhorn believed the job duties letter was put up because on the first day Pendley was
back at work Pendley questioned a task he was assigned to do. Millburg testified Maynard told
him there was confusion about Pendley's exact duties and Maynard felt he needed "to just lay it
out exactly what [Pendley' s] duties [were] so there [would] be no questions." Tr. 992.
Therefore, Pendley and .t he other parts runners who did jobs the same or similar to Pendley' s
were given letters describing their duties. Tr. 871-872. Pendley' s letter was the only one posted
30 FMSHRC 485

on the bulletin board. Bockhorn had no idea who put the letter on the board. Tr. 876. H~wever,
when Pendley complained to Bockhorn, Bockhorn immediately tQOk it down. Tr. 877; see also
Tr. 191. ("I felt if it was supposed to be posted, it would.have been on the inside of the board,
not taped ... outside." Tr. 877.)39

THE LAW
In part because it recognized cases arising under the discrimination provisions of the
Mine Act often involve conflicting allegations of discriminatory conduct, based on disputed facts
and inferences, the Commission long ago set out principles and guidelin~s to help parties and
judges analyze whether there has been compliance with section 105(c)(l). It began by noting
section 105(c)(l) provides a miner, or representative of miners, cannot be discharged,
discriminated against or interfered with in the exercise of his or her statutory rights because: the
miner or miners representative (1) "has filed or made a complaint under or related to this Act,
including a complaint ... of an alleged danger or safety or health violation;" (2) "is the subject of
medical evaluation and potential transfer under a standard published pursuant to section 101;" (3)
"has instituted or caused to be instituted any proceeding under or related to this Act or has
testified or is about to testify in any such proceeding;" or (4) has exercised "on behalf of himself
or others ... any statutory right afforded by this Act." 30 U.S;C. § 815(c)(l). The Commission
then set forth in detail what the complainant must do to establish a prima facie case of
discrimination under section 105(c)(1 ). The miner or miner's representative must show: (1) he
or she engaged in a protected activity; and (2) the adverse action of which he or she complains
was motivated in any part by that activity. Driessen v. Nevada Gold.fields, Inc., 20 FMSHRC
324, 328 (April 1998); Secretary on behalf ofRobinette v. United Castle Coal Co., 3 FMSHRC
803 (April 1981); Secretary on behalfofPasula v. Consolidation Coal Co., 2 FMSHRC 2786
(October 1080), rev'd on other grounds sub nom Consolida.tion Coal Co. v. Marshall, 663 F.2d
1211 (3~ Cr.·1981). The operator may rebut the primafacie case by showing either that no
protected activity occurred or that the advetPe action was in no part motivated by the protected
activity. Pasula, 2 FMSHRC at 2799-800. If the operator cannot rebut the primafacie case in
this.manner; it, nevertheless, may defend affumatively by proving it was also motivated by the
miner's unprotected activity and would have taken the adverse action for the unprotected activity
alone. Id. at 2800; Robinette, 3 FMSHRC at 817-818; see also Eastern Assoc. Coal Corp. v.
FMSHRC, 813 F.2d 639, 642 (41h Cir. 1987).
The Commission also recognized the complainant might not be able to offer direct
evidence adverse action taken against him or her was motivated in any part by protected activity.
In Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (November 1981), rev'd on other grounds
sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983), it stated "[d]irect
evidence ofmotivation is rarely encountered; more typically, the only available evidence is

39

James Baxter, Pendley's maintenance foreman, testified, "[A]s soon as ... [Bockhorn]
saw it, he took it down realizing.~ . that it wasn't supposed to be there." Tr. 434.
30 FMSHRC 486

indirect." The Commission then articulated circumstantial items from which discriminatory
intent might be inferred: for example, knowledge of protected activity; hostility towards
protected activity; coincidenc·e of time between the protected activity and the adverse action; and
disparate treatment. Id.
Finally, the Commission cautioned its judges that their.analysis of an operator' s business
justification for adverse action should be restrained, stating: "Once it appears that a proffered
business justification is not plainly incredible or implausible, a finding of pretext is
inappropriate.... [J]udges should not substitute for the operator's business judgement [their]
views on 'good' business practice or on whether a particular adverse action was 'just' or 'wise.'
Cf NLRB v. Eastern Smelting & Refining Corp., 598 F.2d 666 (1st Cir.1979). The proper focus
... is whether a credible justification figured into motivation and, if it did, whether it would have
led to the adverse action apart from the miner's protected activities... . [T]he question is whether
the reason was enough to have legitimately moved [the] operator to have disciplined the miner."
Cf R- W Service System Inc., 243 NLRB 1202, 1203-04 (1979) (articulating an analogous
standard). Chacon ar 2516-17.·
Applying these principles and instructions in a straightforward manner can help to
organize, simplify and (hopefully) make inteUigible this record, which is rife with numerous
charges, testimonial conflict, and innuendo. fu sorting through the record, it helps to keep in
mind the case arises directly out of: (1) personal animosity between Creighton, a work-yard
bully; and Pendley, his passive-aggressive nemesis; (2) Highland's managerial failure to put an
effective end to the miners' clashes; and (3) Pendley's and.Creighton's aggressive oral and
physical posturing.40 It also helps to remember, although Highland's failure at conflict resolution
fell seriously short ofnianagerial "best practices," it did not necessarily violate ·the Mine Act.
Rather, and as previously stated, the question of whether violations of section 105(c) of the Act
occurred must be answered within the context ·o f the analytical structure set forth by the
Commission.

40

The Secretary, not surprisingly, places all blame for the vanous conflicts on Creighton's
"provocative and oftentinies dangerous behaviors." Sec. Bt. 6. The Secretary overreaches. As
the saying goes, "it takes two," and the record amply demonstrates that while not always the
actual initiator of the incidents, Pendley often played the role of provocateur, by voluntarily
placing himself in situations where·he knew his presence was likely to provoke trouble.
30 FMSHRC 487

THE SECRETARY'S ARGUMENTS
Counsel for the Secretary argues Pendley engaged in protected behavior by complaining
to management and MSHA "about a number of things." Tr. I 097. Counsel cites complaints
about the hoist stopping repeatedly, Pendley' s cap lamp being tampered with, and physical
threats. Counsel also maintains Pendley "clearly communicated these complaints to
management, not once, not twice, but a number of times." Id. Counsel asserts management was
aware of the complaints and knew Pendley.might continue complaining to MSHA in the future.
Id.
Counsel argues the first adverse action Pendley suffered due to his.protected activity was
his three-day suspension from work in December 2005. According to counsel, he was suspended
because MSHA issued a citation to Highland the day before (the Part 50 citation) based on what·
Webb believed to be Pendley' s complaint. Tr. 1098.
Counsel also makes general allegations regarding "a long line of harassing conduct
against Pendley'' that became worse after each complaint he filed. Tr. l 098. Counsel cites
continual harassments and physical threats from Creighton and terms it, "a pattern of behavior
which ... [Highland] at least implicitly encouraged by its inaction and which certainly
constitute[d) a safety hazard or safety concern." Id. Counsel implies Pendley was subject to
disparate treatment because Creighton never was "substantially disciplined." Id.
The second adverse actions suffered by Pendley were his suspension and discharge.
Counsel states the reasons given for the actions - the incident in the office and the altercation
with Creighton while an alleged hoist test was ongoing - were ''just an excuse.'' Tr. 1098.
Counsel argues they were not "enough to give mine management a reason to fire . . . Pendley."
Tr. 1098. .Counsel asserts other miners had "issues" with Fay Hubbert, and the. run-in with
Creighton was not solely caused by Pendley. Tr. 1098-99.

In counsel's opinion, if the company had really investigated the incident involving
Creighton and Pendley at the slope shack, it would have found "a portioning of the fault was not
simple . .. and ... Pendley alone was ... not responsible for the incident. Tr. 1099. Yet, ''he
alone was discharged and he alone was punished." Id. The company's quick decision to suspend
and fire Pendley - a decision made shortly after finding out about the two incidents -- did not
leave time for even a minimal investigation. Tr. 1099. Moreover, the company did not consider
disciplining Creighton even though Creighton had a history of conflicts with Pendley and even
though Creighton "didn't seem ... completely innocent." Tr. 1100.
Counsel further asserts, prior to deciding to suspend and discharge Pendley, Millburg
knew about the citation issued that day as a result of the section I 03(g) complaint and inspection.
Tr. 1098.
Finally, counsel argues, following Pendley' s reinstatei:nent, management has engaged in
30 FMSHRC 488

continuing adverse action against Pendley by changing bis job assignments and ''bird-dogging"
him. Tr. 1100. In sum, counsel states Pendley ''was discriminated against and ... retaliated
against and . ·. : was treated·disparately . . . because he made safety concerns known to
management ; . .. [I)f . . . Pendley had not made bis complaints to MSHA, he wouldn' t have
been suspended in December of 2005 and he would not have been discharged in March of 2007."
Tr. 1 lOL In other words, "Highland officials suspended and fired Pendley because of bis
participation iii protected activity." Tr. 1101.

IDGHLAND'S COUNTER ARGUMENTS
Counsel for Highland counters the Secretary has the burden of proof regarding Pendley' s
three- day·suspension, and she has presented no evidence Webb, the person who decided to
suspend Pendley, had any knowledge Pendley complained to MSHA. Rather, counsel maintains
Webb had a "legitimate business reason" for the suspension, in that Pendley refused to explain
why he was waiting in the commons area room, and W·e bb, therefore, made his decision to
suspend on the knowledge he had at the time. Tr. 1102.
· As for harassment by Creighton, counsel ·argues the claim is not cognizable under the ·
Mine Act. In any event, the company did not treat Pendley and Creighton the same, because it
had insufficient proof to discharge or suspend Creighton for actions he allegedly took against
Pendley. In the instance where it had proof, the company issued a written warning to Creighton
(as well as to Pendley). Tr. 1103.
As for Pendley' s suspension and discharge, there were numerous witnesses to the
incidents of March 19 and March 21. The witnesses confllllied Pendley was abusive to the office
personnel, shoved Creighton and potentially interfered with the hoist test. These episodes of
unacceptable behavior constituted sufficient business reasons to suspend and discharge Pendley.
Tr: 1104. Counsel further notes there was no evidence Millburg knew of the section 103(g)
complaint when he made his decision to suspend and discharge Pendley. Moreover, while
Millburg knew of Pendley's prior discrimination complaints, the Secretary did not show they ·
played a role.in Millburg's decision. Tr. 1104. ·
As for alleged adverse action taken against Pendley since his reinstatement, counsel
argues the company is pennitted·to direct its work force as it sees fit, and there is no evidence
Pendley' s job assignments were given in a discriminatory manner. Tr. 1105.

THE RECORD AND ANALYSIS
KENT 2006-506-D
The essence of the Secretary's complaint ·is that Pendley was suspended for three days
"for making safety complaints to MSHA." See's Discrim. Compl't 2;·see also Sec. Br. 27. I
agree, with the caveat I als.o conclude he was suspended for making protected complaints to
30 FMSHRC 489

management.
On December 20, 2005, Pendley's regular shift began at3:00 p.m. As was then the
custom at the mine, his pay began when he signed in. Tr. 446. On December 20, 2005, Pendley
signed in at 1:00 p.m. (Pendley testified the actual time he signed the book was between 12:50
p.m. and 12:55 p.m., but, as was common, he rounded the time to the nearest hour. Tr. 108.)
Pendley, like other miners, regularly worked 12-hour days - his eight-hour shift, plus two hours
of overtime before the shift and two hours after. Tr. 108-109. Because the man ioad cars were
underground and it was cold, Pendley and Lewis waited in th~ commons area room for the cars to
come up. Tr. 114. (Adamson and safety committee chairman Shug Dyer credibly testified it was
a usual practice for miners to wait in the room. Tr. 33 7, 446.) They were soon joined by
Adamson, who signed in shortly after Pendley, and who also indicated his starting time was 1:00
p.m. Tr. 369
Having evaluated the testimony, I conclude Webb had to know why Pendley was waiting
in the room. As the mine's operations manager, it is reasonable to conclude he was aware of the
practice of miners to wait there for the man load, especially when it was cold. He also had to be
aware it was common for miners to work two hours of overtime before the start of their shifts
and to round the time when they signe~ in. Even though Pendley was sitting where he could nqt
see the man load cars wh,en they came up, there were at least two other miners in the room who
could, one of whom (Adamson) also signed in at 1:00 p .m. Webb's testimony he did not see
Lewis and/or Adamson simply defies belief. The room was open. There as nothing to obstruct
Webb's view.
Webb's assertion that he concluded Pendley.was trying to be·paid for time he did not
work also is not credible. Nor is Webb's assertion Pendley falsified a company record. There
was no basis for Webb to assume Pendley changed the time he signed.in. While I credit Webb's
testimony that Pendley walked over to the sign-in book and leaned over it after Webb spoke with
him, Webb's assumption Pendley changed his time when he returned.to the book was.not a
reasonable one to make. Tr. 638. As Webb well knew, Pendley haq signed in the way he usually
did when he worked overtime. Since on the afternoon of December 20, Pendley had done
nothing out of the ordinary, there was no reason for him to change anything. Rather than change
his time, it was more likely Pendley was checking to make sure he signed in as usual and/or to
see when Adamson signed in. Thus, Webb's assertion Pendley was suspended for falsifying a
company record rings hollow.
Moreover, the fact no others were dis<;:iplined,.especially Adamson, who signed in shortly
after Pendley, strongly suggests Pendley was treated differently than the other miners. While
Pendley initially was not forthcoming at the·subsequent meeting he had with Webb, Dyer, and
Shaffuer, I credit his testimony that he at least denied Webb's charges. Tr. 119, 244. I further
find Pendley's obvious unhappiness with his union representatives-is beside the point. Tr. 122,
641-642. The issue is not Pendley's differences with the union (which apparently were ·
considerable), but whether Webb'~ business justification for suspending Pendley was legitimate.
30 FMSHRC 490

Given the lack of any credible business reason for Pendley's suspension, I conclude the
record supports inferring some incidences of protected activity in fact motivated Webb and the
justification Highland offered was a pretext.
This is not to say, however, all of the incidents the Secretary alludes to or offered
testimony about rise to the level of protected activity. Several do not involve complaints about
alleged dangers or about safety or health violations. Rather, they reflect work allocation disputes,
unexplained property damage, ongoing animosity between Pendley and Creighton, or a
combination of two of the three. In this regard, the parts delivery dispute was clearly a
confrontation about job duties. The truck incident, while obviously upsetting to Pendley, was, as
Maynard properly observed, vandalism (Tr. 262) with no connection to a safety.complaint or to
an: alleged regulatory violation. The dirt incident was a case of petty harassment, as were the
bleaching and hose incidents. (Allen's observation the dirt incident could have been safetyrelated if the dirt was "swept up enough that . .. [Pendley] could have tripped and stumbled" is
totally speculative, and even if the dirt or muck by Pendley' s locker was enough to have tripped
him, ·finding the incident to be safety related would stretch the meaning of protected activity
beyond reasonable boundaries (Tr. 704), and the same is true of the hose incident, which, while
annoying to Pendley, hardly can be found to have posed a hazard.

I also conclude the cap lamp incidents were not related to protected activity. In the first
place, Pendley's testimony was very vague regarding specific incidents involving bis cap lamps;
and although he testified about a specific incident when his cap lamp apparently was stolen, he
did not (and presumably could not) testify he ever lacked a functioning lamp when he traveled·
and worked w:iderground. Tr. 390-392; see Tr. 230. The evidence supports finding Highland's
miners checked their lights·before proceeding underground and needed replacements or repairs
always were made then and there. Tr. 50.
Other incidents raised by the Secretary were safety related. The gun incident was a
serious incident and one that certainly had safety ramifications. However, it cannot be found to
have played a part in Webb's motivation. Rather, the record fully supports finding management
recognized the serious safety issues it posed and dealt with them when it addressed the incident
(and others), by meeting with both men and issuing Written warnings to both. Tr.· 177, 199;
Resp's Exhs. 9 and 10. Moreover, it was Creighton, not Pendley, who reported the incident,
and, thus, it'was Creighton, not Pendley; who engaged in protected activity.
Complaints involving the abrupt halting of man load cars were protected. Abruptly
stopping the cars on their descent into the mine endangered the safety of anyone aboard, as the
incident of November 29, 2005, showed. Mine management was aware of Pendley's complaints
in this regard. See, e.g., Tr. 933. Given the discrediting of Webb's ostensible reason for
suspending Pendley, it is reasonable to infer these·safety complaints played·a part in Webb's
decision.

I find the same is true regarding the motorized equipment incidents. The operation·of
30 FMSHRC 491

motorized equipment in dangerous proximity to a miner is an obvious safety hazard. Complaints
about such incidents were protected. Management knew of Pendley's concerns (Tr. 933), and I
do not credit Maynard's assertion he "never could find any witnesses or anything or anyone to
confirm the stor[ies]." Tr. 934. The record does not reflect he discussed the matters with Lap
Lewis, an employee Maynard knew, and an employee who, according to Pendley, was an
eyewitness to at least one such incident. Tr. 78-79. Jn the face of the company's failure to
establish a legitimate business reason to suspend Pendley, it is reasonable to infer Pendley's
complaints in this regard were a motivational factor.

I also :find Pendley' s complaints regarding the specific fork lift incident were protected.
Creighton maintained Pendley purposely placed himself in a possible pinch point (Tr. 777), and I
find this was so. Although Pendley testified walking over the hoist cable to get to the other side
of the man load car was a safety hazard, he could have walked a longer way around ·and safely
reached the other side, or he could have waited and sat in another car. Tr. I 086-87. Pendley
claimed he only walked where Lewis had (see Tr. 290, 1087); but, even if true, it was no excuse
for Pendley to enter the dangerous area. · Pendley was wrong to be there, but his conduct was
perfectly in keeping with his propensity to voluntarily go where an incident with Creighton was
likely to occur.
Nonetheless, Creighton was wrong as well; for I find Creighton threatened to run Pendley
over. Creighton's claim he told Pendley "get the hell out of the way before you get run over" (Tr.
777) was not as consistent with Creighton's character as the more direct threat alleged by
Pendley. Moreover, Pendley's response as described by Creighton - calling Creighton "yellow"
and "calling [him] out"- is a response that has the ring of truth if Pendley's version of
Creighton's threat is credited. I find it reasonable to infer Pendley's complaints about
Creighton's threat played a role in Webb's decision to suspend Pendley. It was a way to punish
Pendley for continually complaining about Creighton's unsafe practices.
Pendley's testimony regarding the specific hoist incident was compelling and credible,
and I find on November 29, 2005, the man load cars came to an abrupt halt while Pendley
proceeded underground and that Pendley was thrown forward. Pendley suspected it was
Creighton who punched·the E-stop, causing the cars to come to halt. Creighton denied it (Tr.
791 ); and because the brakes on the brake car did not set and because a post-event evaluation of
the hoist revealed nothing wrong with the.system, High.land's management doubted Pendley's
story. I find the doubts were genuine. The testimony revealed a lack of full understanding by
High.land's employees concerning whether br~es on the brake car locked if the E-stop button
was pushed and the man load cars came to a sudden halt. (If the brakes lOcked, the man load cars
could not have continued to the bottom of t,b.e slope without some one - presumably Pendley releasing the brakes on the brake car, which he did not do.) Both Highland's management
employees and its rank-and-file employees believed activation of the E-stop would cause the
brakes to lock, as Lap Lewis testified, "most of the time." Tr. 566-568; see, e.g., Tr. 301 (Joseph
Courtney); 453-454 (Bob Perry); 960-961; 964; 975-976 (Scott Maynard) 418. However,
Inspector Michael Moore's explanation of the hoist's braking and stopping mechanisms was
30 FMSHRC 492

more persuasive, and I find, as he testified, pushing the E-stop could have caused·the man load
cars to come to a sudden stop without locking the brakes on the brake car. Tr. 323-324; 1Q42;
1044-46. In other words, I find it reasonable to conclude the accident.occurred as Pendley
explained and management's legitimate doubts do not undermine Pendley's credibility.41
Thus, Pendley's complaints about the incident were protected. Highland's business
justification for subsequently suspending Pendley was not credible and, lacking any other
reasonable explanation, I find Pendley's protected complaints about the incident played a
motivational role in Webb's decision to suspend Pendley.
Finally, there is no doubt Pendley's complaints to MSHA caused Highland to receive five
citations for violations of the mandatory Part 50 reporting requirements. The first citation related
to the November 29 hoist incident.. The incident involved Pendley. · Pendley already had asked
Highland for, and been denied, a copy of the accident report he filled out. Tr. 96, 224. Suddenly,
MSHA also was asking for a report of the incident and then was auditing the. company for Part 50
compliance. Webb must have been at least annoyed, if not more. He also must certainly have
put ''tWo and two together" and concluded Pendley had gone to MSHA about the report. There
being no credible business justification or other reasonable explanation for Pendley's suspension,
I conclude Pendley's protected complaints to MSHA over the report played a role in Webb's
decision.42
For these reasons, I conclude Webb and the company discriminated against Pendley when
Highland suspended him for three days on December 21, 2005. I also conclude at the time he
suspended Pendley, Webb was an agent of Highland. Webb took part in the decision to

41

There is no question that the sudden stopping of the hoist car endangered Pendley.
There also is no question given Pendley's suspicion Creighton caused the stoppage,: Highland
failed to deal effectively with the situation. From an employee relations standpoint, Webb's
response was wanting, to say the least. He knew Pendley suspected Creighton, but Webb did not
remember speaking to Creighton about th~ incident, and I infer he did not. .Tr. 669-670. Webb
stated he only would take "very strong disciplinary action" against Creighton if he was certain
Creighton caused the incident. Tr. 628. Since certainty was virtually imppssible to establish, it
meant Webb effectively did nothing with regard to the Creighton. However, while Highland was
guilty of bad management, its failure did not violate the. Act. Section I 05(c) was not designed to
remedy work-force disputes and smooth employee relations. As the Commission long ago
recognized, the Act is not ·a n employment statUte. See, e.g., Chacon v. Phe.lps Dodge, 3
FMSHRC at 2517.
4

2The Secretary also offered testimony about two incidents whose relevance and import
totally escapes me and about which I make no findings - a nighttime inquiry to Pendley from an
unidentified person regarding a storage trailer (Tr. 272-274) ·and Pendley's alleged discovery of a
dummy With a noose around its neck. Tr. 194; see also Tr. 849. ·
30 FMSHRC 493

implement the suspension and Webb carried out the decision. He was then the operations
manager of the mine. He was the. mine's highest ranking officer. He was in charge of approving
disciplinary actions. Tr. 605. These factors establish Webb was acting on behalf of the company
and as its agent.

KENT 2007-265-D
The Secretary maintains Highland suspended and discharged Pendley after Pendley
pursued and litigated his earlier complaint before the Commission. She also points out March 21
- the day he was suspended with intent to discharge - Fazzolare investigated the section 103(g)
complaint and issued the citation for accumulations of combustible material. In addition, by
March 21, Highland management knew Pendley had moved the Commission to reopen KENT
2006-506-D, which I had dismissed, believing it settled. See Sec. Br. 2-3. Knowledge ofthese
factors, plus knowledge ofPendley's many complaints, motivated Highland to act adversely
against Pendley. I disagree.
Pendley' s confrontations with·members of the mine office staff on March 19 and March
21 were credibly (and vividly) described by Gaines, Hubbert and Wise. The picture that emerged
from their description is of an emotional employee utterly lacking in self control, to the point of
disrupting their work and making them nervous for their own well being. Gaines credibly
described Pendley on March 19 as ''very upset" because of what he perceived to be Faye
Hubbert's unauthorized questioning of his pay. TRH Tr. 232. Although she explained Hubbert
was only doing what her job required, Pendley would not accept the answer. TRH 234. He
suggested Gaines, Hubbert's supervisor, would be held accountable for Hubbert's "misdeeds,"
and he did so in such a loud voice another employee who worked some distance from Gaines
thought she might need help. TRH Tr. 236. Gaines described Pendley as.making her feel ''very
nervous," and I believed her. Pendley's raised voice, his observations regarding Hubbert and his
threatening of Gaines by innuendo were not acceptable office behavior. Gaines's apprehension
·
was a reasonable reaction.
All .o f this was bad enough, but worse followed. Two .days later, Pendley again
confronted the staff about his overtime pay. He began by again raising his voice with Hubbert.
TRH 239. ·Later he continued in the same vein with Gaines, Hubbert., and Wise. According to
the highly credible Gaines, he was "agitated" and "very loud." TRH Tr. 278. Wise and Hubbert
agreed. TRH Tr. 264, 278. Gaines described Pendley's participation as "out of control." TRH
Tr. 242. He was "mad" and "upset." TRH Tr. 243. Hubbert was very uncomfortable, and Wise
felt Pendley's behavior to be aggressive and unusual. TRH Tr. 280. To prevent another incident,
the employees locked the office. TRH Tr. 266.

The office incidents of March 19 and March 21 played critical roles in Millburg's
decision to suspend Pendley with an intent to discharge, and well they should. Pendley was
disruptive, irr_ational, and orally aggressive. An employer need not tolerate an employee raising
his or her voice to other employee~ and totally disrupting their work. Nor should an employer
30 FMSHRG494

brook a situation where a group of employees rationally believe they need to lock their doors
against an unreasonable fellow employee. After the incident of March 19, Pendley knew
Hubbert and Gaines did not have the authority to resolve overtime pay issues. He knew he ·
needed to speak with Millburg. Yet, on March 21, he persisted in raising the matter again and
again in a loud, agitated and irrational way.
On October. 7, 2005, Pendley was warned in writing ''verbal abuse,, on his part might
lead to his suspension with intent to discharge. Resp. Exh. 10. Although he was on notice of the
consequences, he persisted in the very behavior about which he was warned. Perhaps he just
could not help himself, but he certainly knew his behavior could lead to the discipline he
ultimately received. Pendley acted at his peril, and it was proper for Millburg to consider
Pendley' s office confrontations as a basis for suspension with intent to discharge.
Of course, Millburg had another compelling reason to act, because fresh from the
confrontation with Gaines, Hubbert, and Wise, Pendley had yet another run-in with his long-time
antagonist, Creighton. Pendley maintained, after he rushed up and into the slope shack, he did
not shove Creighton, that Creighton first touched him. Tr. 160. However, Lap Lewis testified it
was Pendley who pushed Creighton, a contention Creighton echoed. Tr. 543, 580, 804. While
the testimony is in conflict as to who first pushed whom, there is no doubt the altercation would
have been avoided if Pendley had not chosen to place·himself in a situation where he was toe to
toe with Creighton. Pendley did not have to charge the slope shack. He could have waited and
asked a supervisor to instruct Creighton to send the man load to him. Given his past history with
Creighton, he had to know by entering the shack he was putting himself in a situation where an
altercation was all but certain to occur. He entered anyway, and with predictable results. He also
entered despite the fact he had been warned further altercations could lead to his suspension with
an intent to discharge. Resp. Exh. 10.
Regardless of who "started it," the fact Millburg knew Pendley facilitated the altercation
by advancing upon Creighton, coupled with the fact Millburg knew of Pendley' s oral
confrontation with Hubbert, Gaines, and Wise was enough to institute the discipline about which
Pendley had been warned. Pendley already had been given a "last and final ... warning." Resp.
Exh. 10. Another was not required.43

In upholding Pendley' s suspension and termination, I also find the Secretary failed to

43

Although Millburg also based his decision to suspend and discharge Pendley in part on
Pendley's interference with a hoist test, I do not find this reason crucial to the validity of the
disciplinary action. It was enough, in my view, that Pendley was involved in the oral altercation
with the office employees and the physical altercation with Creighton. Moreover, I credit
Pendley' s testimony there was no alarm indicator or tag to indicate a hoist test was underway.
Tr. 159, 162, 1054-55, 1070, 1093. Also, Creighton did not advise Pendley of the test until after
they were in physical contact. Tr. 804-805.
30 FMSHRC 495

establish the 103(g) inspection taking place on March 21 had anything to do with man~gement's
decision. · As Highland accurately points out, Millburg did not know about the section! 03(g)
inspection and the resulting citation until after he made the decision to suspend Pendley. See
Resp. Br. 26-29. Moreover, the Secretary did not show Millburg knew who actua,lly requested
the inspection and, with approximately 70 miners working underground, there are too many
"suspects" for knowledge to be implied. See Resp. Br. 27 n. 15. When I reinstated Pendley, I
noted the Secretary's evidence regarding Highland's alleged section 103(g) motivation could
"charitably be described as 'weak."' 29 FMSHRC at 428. Time did not improve the Secretary's
case.

· POST-REINSTATEMENT COMPLAINTS
The Secretary amended her last filed discrimination complaint (Docket No. KENT 2007265-D) to charge more discrimination, interference and disparate treatment as a result of
Pendley' s reinstatement. 44
The Secretary alleged Pendley was assigned additional duties, was "bird-dogged" by
management officials, and had his job assignments posted on the mine bulletin board. Sec. Br. 4.
She argued the additional assignments made it difficult for him to complete all of his duties, and
his treatment was disparate in that "no other miners were treated in this manner, with the
exception of other miners who also had complained about safety issues at the mine." Id.
Highland responded the Secretary failed to offer any evidence of adverse action. Resp.
Br. 32-33. According to Highland, Pendley did not suffer any disciplinary action as a result of
his post-reinstatement job performance. Id. 33. Rather, Pendley was treated with "kid gloves"
after his return. Id. I agree with Highland, and find the Secretary has not established any
actionable adverse action against Pendley since his reinstatement.
Inspector Smith testified following reinstatement, Pendley complained about his
work.load. The essence of Pendley?s complaints, like those made by the Secretary, was he had
too many work assignments to complete his duties and he was being followed and closely
supervised ("bird-dogged"). Tr. 40. However, the record reveals, after Pendley was reassigned
Highland only did what it was entitled to do when assigning him work and when supervising

44

Highland objected to taking evidence on what it correctly characterized as ''new acts of
discrimination after the temporary reinstatement." Tr. 20. Counsel noted.the complaints had not
been investigated by the Secretary, and the Secretary had not filed a formal complaint with the
Commission as the Act requires. Tr. 20-21. I overruled the objection and allowed the evidence.
I stated, "It seems. to me ... from a pragmatic standpoint, all of us ... are facing ... a neverending stream of allegations ;µid ..._this is one way to put an end to it ... I would like to hear as
much of the evidence as I can ... with regard to the allegations and hopefully issue a decision
that will bring this matter to a close." Tr. 22-23.
30 FMSHRC 496

him. An operator can direct its work force as it sees fit within the terms·ofthe Act and its labor
contracts. Here, none of the duties assigned Pendley upon his return were outside the Act, the
company/union contract or Pendley's job classification. Some of the tasks may have been
different from those he had before his suspension and termination, but, as even Pendley agreed,
they were proper duties to assign him. 45 Tr. 1081.
While an assignment of duties outside the labor agreement or an assignment of more
tasks than can be accomplished in a normal work period conceivably can constitute adverse
actions, in this instance the Secretary has not been able to overcome two problems. First, as
noted, the evidence establishes the tasks Pendley was assigned fit squarely within the labor
agreement. Second, the record does not support finding Pendley was assigned more tasks than he
reasonably could accomplish in an eight~hour·workday. 46 Even if this was not the case, the
evidence offers no support for finding Peridley's job assignments were designed to punish him
for seeking reinstatement or for other protected activity. Nor was he ever punished for failing to
complete the assignments. On the contrary, the evidence suggests no adverse consequence
attached to his unfilled duties. See, e.g., Tr. 255, 259-260.

As for being ''bird-dogged," the allegations seem to involve the supervision of the pace of
Pendley's work. There was a significant amount of testimony offered concerning management's
concerns about the time it took Pendley to do this work after he was reinstated, and it is fair to
conclude Pendley worked at a slower pace when he returned to the mine. Tr. 867-869, 906.- On
the whole, the testimony supports finding the company's concerns about the Pendley's work pace
were legitimate and, therefore, Pendley's post-reinstatement supervision was not improper.
Finally, although the posting ofPendley's job duties on the mine bulletin board was
unprecedented, the "duties letter" was removed as soon as Pendley complained to his supervisor,
Steve Bockhorn. Tr. 190,.261. It would be a stretch indeed to find this mistake, which was
quickly and fully rectified, constituted adverse action.

45

Actually, more than the assignment of specific tasks, Pendley seemed to believe the jobs
were not evenly distributed between him and other mechanics. ("[T]here was no reason it all
should have been put on me." Tr. I 081 ). The proper balance ofjob distributions is a matter for
union and management to debate and, ifneed be, to resolve. It is not a matter for the
Commission and its judges.
46

0ne basis for finding what reasonably could be accomplished in a standard workday
would have been to compare Pendley' s pre-reinstatement work with his work following
reinstatement. However, such a comparison is not possible given the fact Pendley was assigned
different tasks and, more importantly, given the fact Pendley regularly worked overtime prior to
his reinstatement and chose not to work overtime following his reinstatement. Tr. 291.

30·FMSHRC 497

For these reasons, I .find the Secretary d,id not establish Pendley was discriminated against
following his reinstatement.

ORDER
Based on my conclusion Highland and Webb discriminated against Pendley when he was
suspended from work on December 20, 2005, the discrimination complaint docketed as KENT
2006-506-D IS GRANTED. Within ten days of the date of this decision counsel for the
Secretary IS ORDERED to confer with counsel for Highland to determine the appropriate back
pay and interest to be awarded Pendley for the days he missed work as a result of his illegal
suspension. The parties shall also confer and agree regarding any other relief required to make
Pendley whole for the time he was illegally suspen~ed. Within 15 days of the date of this
decision counsels shall report tlie results of their discussions to me jointly in writing, and I will
issue .a decision and order awarding the agreed-upon relief Ifcounsels are unable to agree, they
shall jointly advise .m e in writing within 15 days of the.~ate of this decision, and I will issue an
order regarding the taking of additional evidence on the issue of relief.
Within 30 days of this decision becoming final, Highland IS ORDERED to pay a civil
penalty of$5,000 for its violation of section 105(c) (Docket No. KENT 2006-506-D). In
assessing this civil penalty, I find Highland is large in size and the penalty will not affect
Highland'·s ability to continue in business.47 While I find the violation was serious, I do not agree
with the Secretary that Highland's ~actions . .. should ... support the highest finding ofgravity."
Sec. Br. 60. There is no evidence.Pendley's suspension affected the safety of other miners or
"chilled" the exercise of the statutory rights by other miners; as claimed by the Secretary. Id. I
also find, while Webb's decision to suspend Pendley was based on his failure to take full regard
of Pendley's section 105(c) rights, it was not an action whose sole motivation was to punish
Pendley for his protected activity. Rather, while Pendley's continuing protected complaints were
a factor in Webb's overall motivation, I conclude ·W ebb also was genuinely annoyed by what he
perceived to be Pendley's "sitting on company time." See Tr. 370. Finally, I do not find the
Secretary's assertion regarding the company's history of previous violations ("According to
MSHA records, since December 2005, Highland has four outstanding [s]ection lOS(c)
complaints pending against it in addition to ... [the subject] complaints relating to .. . Pendley"
(Sec. Br. 60)) warrants increasing the penalty to more than $5,000.

47

0n March 6, 2006, I denied.Highland's motion to strike Quarterly Mine Employment
and Coal Production Reports the Secretary submitted with her brief. Order Denying Highland's
Mot'n to Strike. The Secretary argued the reports w~re submitted merely ·to assist in determining
the size of the operator as appropriate for civil penalty assessment pwposes. I advised Highland
it would have an opportunity to comment on the relevance of the reports if I held the company
violated the Act. In assessing this civil penalty I have not sought Highland's comments because
the record, even without the reports, establishes Highland is large in size. The mine has an
underground workforce of approximately 70. More impo~tly, the mine is controlled by
Peabody Energy. Thus, Highland~s large size cannot·be seriously questioned. Tr. 607.
30 FMSHRC 498

Further, and effective immediately, David Webb IS ORDERED to cease and desist from
interfering with the section 105(c) rights of Pendley while he remains in Highland's employ, and
to desist from interfering with the same rights of all other miners employed by Highland.
Finally, based on my conclusion Highland and its a~ents did not discriminate agaihst
Pendley when he was suspended on March 21 , 2007, and when he subsequently was discharged,
the discrimination complaint docket~ as KENT 2007-383-D IS DENIED AND DIS~~SED.
The Secretary's allegations of post-reinstatement discrimination lodged in connection with
Docket No. KENT 2007-383-D ARE FOUND TO BE TOTALLY LACKING IN MERIT.
Pendley's reinstatement WILL REMAIN IN EFFECT until this decision BECOMES
FINAL.

):Jw1d f, ~~
David F. Barbour
Administrative Law Judge
(202) 434-9980
Distribution:
James B. Crawford, Esq., Jonathan R Hammer, Esq., U.S. Department of Labor, Office of the .
Solicitor, 1100 Wilson Blvd., 22nc1 ~loor West, Arlington, VA 22209-2247
Melanie J. Kilpatrick, Esq., Marco M. Rajkpvich, Jr., Esq., Rajkovich, Williams, 'Kilpatrick &
True, PLLC, 2333 Alumni Park Plaza, Suite 310, Lexington, KY 40517
/ej

30 FMSHRC 499

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

June 5, 2008

DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINrsTRATION (MSHA), o;n
behalf of LAWRENCE L. PENDLEY,
Complainant

Docket No. KENT 2006-506-D
MADI CD 2006-02

v.

IDGHLAND MINING COMPANY, LLC;
Respondent

Mine ID 15-02709
Highland No. 9 Mine

SECRETARY OF LABOR, MSHA, on
behalf of LAWRENCE PENDLEY,
Complainant

TEMPORARY REINSTATEMENT
Docket No. KENT 2007-265-D
MADI CD 2007-05

v.

HIGHLAND MINING COMPANY, LLC,
Respondent

Mine ID 15-02709
Highland 9 Mine

SECRETARY OF LABOR,
MINE SAFETY AND HEALTII
ADMINISTRATION (MSHA)~ on
behalf of LAWRENCE L. PENDLEY,
Complainant

DISCRIMINATION PROCEEDING
Docket No. KENT 2007-383-D
MADI CD 2007-05

v.
lilGHLAND MINING COMPANY, LLC;
DAVID WEBB, LARRY MILLBURG and
SCOTI MAYNARD as AGENTS,
Respondents

Mine ID 15-02709
Highland No. 9 Mine

DECISION

Appearances: James Brooks Crawford, Esq., Jonathan R. Hammer, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, on behalf of the Complainant
Marco M. Rajkovich, Jr., Esq., Melanie J. Kilpatrick, Esq., Lexington, Kentucky,
on behalf of the Respondents
30 FMSHRC 500

Before:

Judge Barbour

These cases are be.fore me on discrimination complaints brought by the Secretary of
Labor, acting through her Mine Safety and Health Administration (MSHA), on behalf of
Lawrence Pendley and upon an application for temporary reinstatement filed by the Secretary for
Pendley. The complaints asserted Highland and its agents, David Webb, Larry Millburg, and
Scott Maynard, illegally suspended P~dley and terminated his employment in violation of
section105(c) of the Federal Mine Safety and Health Ac.t.of 1977, as amended. 30 U.S.C.
§ 815(c). The application, which was filed pursuant to section 105(c)(2) of the Act, 30 U.S.C.
§ 815(c)(2), sought Pendley' s temporary reinstatement to the position he held prior to his
suspension and termination.
On May 30, 2007, I granted the applipatio~ and temporarily reinstated Pendley. 29
FMSHRC 424 (May-June 2007). On May 19, 2008, I issued an interim decision on liability, a
decision incorporated herein by reference. 30 FMSHRC _ _ (May-June 2008). In the interim
d~cision I ruled Highland Mining Company, LLC (Highland) and its agent, David Webb,
unlawfully discriminated against Pendley, w1'en Highland suspended Pendley fr<?m.wor~ in
December 2006, and I granted the Secretary's and Pendley' s complaint of discriinination (Docket
No. KENT 2006-506). I ordered counsels to confer to determine the appropriate back pay and
interest to be awarded Pendley and to agree on any other relief required.to make Pendley whole
for the time he was illegally suspended.
..
~.

In compliance with the order, counsefs and Pendley have agreed as follows:
1. The total wages lost for the.time of suspension from
the afternoon of December 21, 2005 and three days
amount to $1186.53. This total amount is based
upon an average of 12.5 working hours per day including 27.75 hours of regular pay at $19.215 per
hour an4 20 hours of overtime at $28.823 per hour
pay and a 4 hour holiday correction of 4 hours at
$19.21.5 per hour,pay for a _total of 51._75 hours
and a total pay amount of$1186.53.

~· Inferest in the total amount of $219.(95] [ 1] was calculated
~ summarized in Exhibi~ A up to June 6, 2008, using
the OPM guidelines for backpay annual interest rates
by quarter that are based on IRS official rates pursuant

1

The parties' Statement.of Damages lists the total interest amount as $219.46.
Statement of Damages 1. The parties' attached calculations sheet (Exhibit A) lists the interest
amount as $219.95. Counsel for the Secretary has orally advised me $219.95 is the correct
amount.
30 FMSHRC 501

to 5 U.S.C. [§] 5596 and 5 CFR [§] 550.801-808.
See also Secretary v. Arkansas-[Carbona] Company,
. 5 FMSHRC 2042 (D~ember 1983). The interest is
to accrue up to. the day of pa:Yriient.
3. The parties, including Mr. Pendley, have further
review~d these mattel'S and no other damages or
cost amounts have been claimed or incurred during
or because of the December 21, 2005 suspension.
Statement of Damages 1-2.
ORDER

In view of the parties' agreement, within 30 days of the date of this decision, Highland IS
ORDERED to pay Pendley a total amount of$ I 406.48. If payment is made after June 6, 2008,
Highland·also IS ORDERED to pay 3:IlY additional interest that has accrued between June 6 and
the actual date of payment.
In addition, and as set forth in the interim decision, Highland IS ORDERED to pay a
civil penalty of $5,000 for its violation of section 105(c). Upon payment of the damages and
interest to Pendley and upon payment of the civil penalty, Docket No. KENT 2006-506-D IS
DISMISSED.
.
Further, David Webb, Highland's ~gent, is reminded he HAS BEEN ORDERED to
cease and desist from interfering with the sectionl05(c) rights ofPendley while he remains in
Highland's employ and to cease and desis~ from i11terfering with the s~e rights of all other
miners employed by Highland: .. ·
In the interim decision I also found Highland had not discriminated against Pendley when
it suspended him from work on March 21, 2007, and when it subsequently terminated his
employment. Therefore, I DENIED AND DISMISSED Docket
KENT 2008-383-D.

No.

Finally, I noted Pendley's reinstatement (KENT 2Q07-265-D) would REMAIN IN
EFFECT until this decision, of which the interim decision has become a part, BECOMES
FINAL. When that happens, KENT 2007-265-D also is DISMISSED.

fa/dfe6~
David·F. Barbour
Administrative Law Judge
(202) 434-9980

30 FMSHRC 502

...

Distribution:
James B. Crawford, Esq., Jonathan R. Hammer, Esq., U.S. Department of Labor, Office of the
Solicitor, 1100 Wilson Blvd., 22nd Floor West, Arlington, VA 22209-2247
Melanie J. Kilpatrick, Esq., Marco M. Rajkovich, Jr., Esq., Rajkovich, Williams, Kilpatrick &
True, PLLC, 2333 Alumni Park Plaza, Suite 310, Lexington, KY 40517
/ej

30 FMSHRC 503

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

June 9, 2008
HAINES & KIBBLEHOUSE, INC.,
Contestant

.C ONTEST PROCEEDING
Docket No. PENN 2006-143-R
Citation No. 6029599; 03/01/2006

v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTII

Pyramid Materials
Mine ID 36-08977

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

CIVIL PENALTY PROCEEDING

ADMINISTRATION (MSHA),

Docket No. PENN 2006-288-M
A. C. No. 36-08977-94161

Petitioner

v.
PYRAMID MATERIALS-DN/HAINES
& KIBBLEHOUSE, INC.,
Respondent

Pyramid Materials

DECISION
Appearances: Linda Thomasson, Esq. and Paul Marone, Esq., U.S. Department of Labor,
Philadelphia, PA, on behalf of the Secretary
John Austin, Jr., Esq., Patton Boggs, LLC, Washington, DC, on behalf of Haines
& Kibblehouse, Inc.
Before:

Judge Barbour

These are consolidated contest and civil penalty proceedings brought pursuant to sections
105 and 110 of the Federal Mine Safety and Health Act of 1977 ("Mine Act" or "Act'') (30
U.S.C. §§ 815, 820). In the contest proceeding (Docket No. PENN 2006-143-R) the company,
Haines and Kibblehouse, Inc. (H&K), contests the validity of Citation No. 6029599, issued
pursuant to section 104(a) of the Act (30 U.S.C. § 814(a)). 1 The citation, which was issued on

'Section 104(a) states in pertinent part:

30 FMSHRC 504

March 1, 2006, charges the company with a violation of 30 C.F .R. § 56.16009, a mandatory
safety standard for metal and non-metal surface mines stating: ''Persons shall stay clear of
suspended loads." The citation also charges the violation was a significant and substantial (S&S)
contribution to a mine safety hazard, in that it resulted irt a fatal injury. Further, it asserts the
violation was caused by the company's high negligence. H&K contends the citation does not set
forth a violation of section 56.16009, or, if it does; the citation's allegations.of gravity and
negligence are erroneous.
In the civil penalty proceeding (Docket No. PENN 2006-288-M), the Secretary petitions
for the assessment of a penalty of $42,000 for the alleged violation of section 56.16009. The
Secretary asserts the violation not only occurred and contributed to the death of one miner, but
was reasonably likely to fatally injure two others. The company denies the allegations.
Following docketing of the cases, answers were filed. The matters were assigned to me
and I consolidated them for trial. I heard them in Westchester, Pennsylvania.

STIPULATIONS
At the hearing the parties agreed to the following stipulations:

1. H&K is an operator as defined in Section 3(d) of . . .
[the Act] at the Pyramid·Materials Quarry [(the
Quarry)] where the [citation] . . . at issue in·this
proceeding were issued.

2. The operations of the . . . [q]uarry are subject to
the jurisdiction of the Mine Act.

3. This proceeding is subject to the jurisdiction of the .. .
Commission and its designated Administrative Law
Judge pursuant to Sections 104 and 113 of the ·Mine
Act.

If, upon inspection or investigation, the
Secretary or his authorized representative
believes that an operator of a ... mine subject
to this Act has violated .. . any mandatory
health or safety standard . . . or regulation
shall, with
promulated pursuant to this Act,
reasonable promptness, issue a citation to the
operator.

he

30 FMSHRC 505

4. Inspectors from the Mine Safety and Health
Administration [(MSHA)] were acting as representatives
of the Secre~ of Labor [(Secretary)] when they issued
the citation ... to·[H&K].

5. The [citation] ... [was] properly served by a duly
authorized representative of the Secretary ... upon
the agents of [H&K].

6. True copies of the citation ... were served upon H&K.,
or its agents, as required by the Mine Act.
7. The Assessed Violation History report reflecting the
history of violations ofH&K is an authentic copy
and may be .a dmitted as a business record of .... [MSHA].

8. The imposition of the proposed civil penalty of$42,000
will have no effect on H&K's ability to remain in
business.
9. The appropriateness of the penalty, if any, to the size
of [H&K's] business should b~ based on the fact that
in 2005, Pyramid Materials Mine had 13,176 hours
worked and H&K had [473,375] hours worked.[2]
10. H&K was assessed.a total of21 citations based on
13 inspection days in the 24 months immediately
preceding the issuance of the [citation] . .. in this
case.

11. The .. . [citation and continuations] issued.to H&K,
contained in Government Exhibits 5 through 8,
are authentic copies of the ... [citation and continuations] at issue in this proceeding, and may be
admitted into evidence for the purpose of establishing
their issuance.
12. [H & K] stipulate[s] to the authenticity of all the

2

Counsel for the Secretary stated she initially erred in reporting the number of hours
worked at H&K's facilities. The actual number was 473,375, not 226,753 as she first stated. Tr.
372. Stipulation No. 9 was amended on the record to conform to the actual number. Tr. 373374.
30 FMSHRC 506

government exhibits and to the admissibility
of government Exhibits I through 17 and 34
through 45.
13. On February 13, 2006, Charles R. Davis, ill was
the victim of a fatal accident that occurred at the
.. . [q]uarry.
14. The accident occurred on the catwalk platform
of the Gator jaw crushers A and B, located at
the secondary plant at the . . . [q]uarry.
15. The handrail of the lower crushing section was
approximately four feet tall, and had a gap
approximately four feet wide to allow access to
the flight of metal stairs.
16. At all relevant times herein, Mr. Davis was
a supervisory employee of [H&K] at the
. . . [q]uarry.
17. On the day of the accident, Mr. Davis reported to
work at 7 :00 am., his normal starting time.
18. Mr. Davis' planned work for the day included
dismantling the ... [B] crusher .. . for repairs.
19. Mr. Davis discussed this task with [H&K]
employees Michael S. Yorden, a loader operator;
and David A . Velas, a mechanic.
20. Prior to the accident, Mr. Davis, Mr. Yorden,
and Mr. Velas removed snow and ice from the
lower crushing section catwalk platform, and
removed guards from the ... [B] crusher in preparation
for the work.
21 . The pitman assembly body was constructed of
heavy cast metal with an assembly weight of
7,100 pounds.[3]
·

3

A "pitman" is defined as ''the vertical member linking the eccentric shaft with the
toggles between the frame and the lower end of the movable jaw" of a jaw crusher. American
30 FMSHRC 507

22. A single . . . lifting lug was ... on top of
the pitman assembly [see Gov't. Exh. 43].
23. Thomas Heenan was the operator of the crane
involved in the accident.
24. At the time of the accident, Mr. Heenan had
worked as a crane operator for 18 years. 4

25. Mr. Heenan ha[d] several crane operator
certifications.
26. On the day of the accident, Mr. Heenan arrived at
the crane at approximately 10:00 a.m.
27. After the crane was set up to perform the work,
five crane picks were made. [5]
28. The first pick was to remove a ladder that provided
access to the screen deck above the crusher; the
second pick was to remove a steel plate at the crusher;
the third and fourth picks were to remove the bearing
caps on the pitman assembly; and the fifth and final pick
was [to remove] the pitman assembly.
29. At the time of the accident, as the pitman assembly
was being lifted, it swung and struck Mr. Davis.
30. Mr. Davis died .. .· as a result of the ... accident.
31. Mr. Davis' death was caused by crushing

Geological Institute, Dictionary ofMining, Mineral, and Related Terms (2d ed. 2006) 409
(D.MMT.). The pitman at issue was between four to five feet long. Tr. 239.
4

The crane was owned by AmQuip Corporation. See RELATIONSIDP BETWEEN
H&K AND AMOUIP, infra. Heenan had been employed by Amquip for 13 years. Tr. 169.
5

A "crane pick'' involves the crane operator positioning the crane boom over and above
an object, the crane operator lowering the hoist line to the object, a miner attaching the hoist line
to the object, and the crane operator activating the hoist to lift and move the object. The crane's
"boom" i$ essentially a ''beam attached to [the crane]." D.MMT. at 60. It allows a crane to lift
distant and elevated objects.
30 FMSHRC 508

blunt force trawna due to being struck by
the pitman assembly. ·
Joint Exh. I; Tr. 31-36.
RELATIONSfilP BETWEEN H & KAND AMOUIP

H&K hired ArnQuip Corporation (ArnQuip) to provide the crane and crane operator at the
quarry. As a result of its investigation of the accident, MSHA issued citations to AmQuip,
charging violations of various safety standards. These citations were contested by Amquip in
Dockets No. PENN 2006-293-M and PENN 2007-11-M. The cases were at one time consolidated
with the subject -cases. However, prior to the hearing, 'the Secretary and AmQuip settled Dockets
No. PENN 2006-293-M and PENN 2007-11-M, and the AmQuip dockets were dismissed.
AmQuip is not a party to the present proceeding.
THE EVENTS OF FEBRUARY 13, 2006
On February 13, 2006, Michael Yorden and Charles Davis arrived at the mine at 7:00 a.m.
Davis, the foreman and supervisor, instructed Y orden on the job duties for the day. He told
Yorden a crane was coming to remove the pitman from the Gator B crusher, and the area should be
made ready. Although he never had removed a pitman before, Yorden was trained.and
experienced in the operation and maintenance of the crusher. Tr. 146, 151; see also Tr. 307-308.
The first task was to clear snow and ice from the work area, including the base of the Steps leading
to the crusher platform, the steps, and the work platfomi (a deck that measured approximately 10
feet by 15 feet (Tr. 196)). Tr. 130. Removing the snow and ice took approximately an hour.
While Yorden and Davis were cleaning the work area, or shortly after they :finished,
mechanic David Velas arrived to a8sist in changing out the pitman. The men gathered the
necessary tools, brought them to the platform, and began to remove parts of the crusher so the
pitman could be lifted. They were able to take off the shims, tension rods, toggle plates, guards
over the flywheels, and a catwalk in front of the box containing the pitman (the "stone box"). Tr.
134. They also had to remove a ladder going to the primary screen platform, two bearing caps, and
two pieces of the stone box. Id. Because these items could not be removed without using the
crane, the men waited for the crane to arrive. Tr. 134-135.
After the crane reached the area, it was positioned to lift the items. Yorden testified,
when facing the crusher, the crane was located to the crusher's right. Tr. 136; see Gov't Exh. 38.
The stairway from the ground to the woikdeck was between the crusher and the crane. Tr. 137.
The boom of the crane extended from the crane over the stairway to a point above the crusher.
Id.; Tr.159-161.
As stated in Stipulation 28, the crane's first pick was the laddedeading to the platform on
the primary screener. Yorden testified the hoist cable was attached to tiie ladder by a sling or

30 FMSHRC 509

chain (be did not remember which), and the ladder was burned free of the crusher structure with
an acetylene torch. Heenan then was given a hand signal to hoist. 6 Heenan lifted and swung the
boom, which in turn lifted and swung the ladder off the crusher structure. Heenan lowered the
ladder to the ground. Tr. 137-138.
The next pick was the front of the stone box.7 The front was bolted into the sides of the
box. Y orden attached the hoist cable to the front, and the men proceeded to remove the bolts. A
hand signal was given to Heenan, who lifted the front and set it on the ground. Tr. 139, 279
There still was another piece ofthe box that had to be removed before the pitman could
be lifted. Again, the bolts holding the piece to the remaining parts of the box were loosened, the
hoist cable vvas attached to the piece, and it was lifted, swung away from the crusher, and set on
the ground. Tr. 140.
Next, the bolts holding the bearing caps in place were removed. The hoist cable was
hooked to the caps, which were picked up by the crane and set ·down on the platform. Tr. 144145. All of the lifts by Heenan required a number of band signals. Tr. 279. Davis and Yorden
gave some of those signals, and Velas also gave some. Id. Heenan followed all of the signals,
and he did so shortly after they were given to him. Tr. 189. Yorden had worked with Heenan on
prior occasions and never found him to work unsafely. Tr. 164. Heenan testified none ofH&K's
employees complained about the way he did his job. Tr. 189.
Once the bearing caps were removed, the pitman was. ready to be lifted. The deck was
not entirely clear of other equippient. In addition to the bearing caps, it contained shims for the
crusher, a bucket holding.an impact.gun, and equipment that either was a part of a guard for a
flywheel or a part of the crusher. Tr. 142-145; Gov't Exh. 34.
To lift the pitman,.the men first attached the hoist cable to the pitman's lifting lug.
Tr. 145. The operation and maintenance manual for the crusher contained an illustration titled
"Pitman Removal and Replacement." Gov't Exh. 3 at 29/58. Yorden described the illustration
as ')'ecommended rigging for removing a pitman." Tr. 150. The pitman was not rigged as

6

Hoisting means "the raising or lowering of the boom." D.MMT. .263. Velas did not
recall who gave the signal to hoist (Tr. 278), but he explained signals were necessary so the crane
operator would "know what to do." Tr. 225.
7

Velas thought the next pick was "possibly the guards." Tr. 279. It seems likely Velas
was referring to the front of the box. (The stipulation describes it as "a steel plate." Stip. 28.)
Whatever the object w~, it weighed between 50 and 70 pounds. It was about four feet long and
two feet wide. Tr. 289.
30 FMSHRC 510

depicted in the illustration. 8 Tr. ·151.
From the operator's compartment of the crane, Heenan could see the platform where
Davis, Yorden, and Velas were working. Tr: 164. Upon being signaled, Heenan hoisted the
pitman approximately ten inches. The lift was slightly off vertical because the cable·was
deflected about a foot by the end of the upper·catwaJk for the primary screener. 9· Tr. 151-152.
Because the deflection of the hoist cable was visible, Yorden thought Davis was aware the
pitman could not be lifted in a completely vertical manner. Tr. 152.
After being lifted about ten inches, the base of the pitman was still not freed of the
crusher. Its lower part was jammed against the toggle seats. Heenan estimated the pitman was
stuck for a little more than an hour. Tr. 193-194. During that time, Heenan was given "multiple
signals" ("it was up and down, it was traveling, it was swinging') as Davis, Yorden and Velas
worked to free the pitman. Id. Heenan could see the H&K employees trying to pry the pitman
loose. Tr. 194; see also Tr. 15J-.154, 243-247, 280. At one point, Heenan saw Davis throw his
pry bar to the deck. Tr. 195.
Finally, one of the lifts freed the pitman. Heenan raised it several inches. Tr. 154; see
also Tr. 155. Although the pitman was hanging free·and three-fourths of it was above the upper
edge of the crusher frame, one-fourth of it remained inside the frame, the practical effect of
which was confinement of the pitman by the frame. Tr. 253-254.
According to Velas, the cable continued to contact the outside edge ofthe overhead
catwalk; and because, as he stated, it "never [was] good.to have a crane cable on an object," the
men agreed to have Heenan move the boom of the crane (to have him ''boom up'') and, thus, to
have him move the cable away from the edge of the overhead walkway. Tr. 254-255. Y orden
stated he had no reason to believe Heenan would actually move the pitman while the miners were
on the platform. Tr. 165.
At this point, Velas, who was standing against the handrail of the deck, gave Heenan the
signal to boom up.10 Tr. 255-256. Heenan responded, and Velas stayed on the deck to make sure

8

This fact was not amplified on by the·parties and apparently was not a significant causal
factor in the events that followed.

9vorden was not sure the deflection was caused by the cable touching the upper catwalk
platform. Tr.153. He testified, the cable could be "an inch off that catwalk so your cable isn't
rubbing and still not be a vertical pick." Tr. 152-153. However, Velas was sure. He maintained
that during the entire time the men were conducting the lifts, the crane' s cable was contac~ing the
outside edge of the upper catwalk; Tr. 242. Velas also testified he told Davis about it. ·rr. 243.
10

According to Heenan, Davis gave the signal, but V elas' s testimony was more detailed
and persuasive regarding the events of February 13, and I credit his account. Tr. 207.
30 FMSHRC 511

the pitman was coming out of the crusher frame. The pitman rose a few inches and Velas started
to head for the stairs. 11 Tr. 258-259; see also Tr. 297.
Heenan raised·the boom, which caused the pitman to rise above its restraints. Freed from
them, the pitman started to swing in a pendulum-like motion. Tr. 208; 216-217. Heenan saw the
men "scattering," and he tried to lift the load above their heads. Tr. 197.
Prior to the pitman being lifted, Yorden, like Velas, started walking toward the stairs. He
intended to get off the platform. Just before he reached the stairs, he tu.med and saw the pitman
coming toward him. He dropped to the platform. The pitman grazed his ear and moved on. Tr.
155-156.
Davis was standing at the top of the stairs. Velas moved toward him to go down. Davis
allowed Velas to go first. Tr. 259. ·When Velas was at the first step, the pitman pushed him, and
he was·thrown about three-fourths of the way down the stairs. Tr. 259-260. He landed a few
steps from the bottom. Tr. 261. Velas looked back and saw Davis, who was near the top of the
stairs, falling toward him. Tr. 262. Velas also saw Yorden lying on the deck. Tr. 263. Velas
caught Davis and carried him to the·ground. Davis was unconscious. Tr. 263. Yorden got up
and rushed to help Velas. Velas and Yorden waited for an ambulance to arrive. Davis was taken
to a hospital, where he:was pronounced dead.
Davis, as the company's supervisor, was "in charge ... for safety, for production, for
maintenance. Everything." Tr. 305. He was responsible for training miners. He took re.fresher
training classes like everyone else, including Yorden and Velas. Tr. 313, 317; Gov'tExh's. 18 at
2, 25, 26, 27. One of the topics of their training was "Crane Safety." Tr. 323; Gov't Exh. 19 at
53. The instructional booklet for the training listed "safe work practices [that] should be
followed to prevent accidents when using an overhead crane." Gov't Exh. 19 at 55. Among the
practices was "[p]osition hoists directly over the load to keep lines vertical and to prevent loads

i"1Velas described the critical moments of the final lift as follows:

After we had cabled up the last time, I saw
everything looked goo~, I believe I turned
to the crane operator and gave him the
signal to boom up. Then we had all started
walking towards the steps.
Tr. 285.
Velas thought he had started for the steps shortly before he gave the signal to boom up. Id.

30 FMSHRC 512

from swinging when hoisted." Id. All three miners had taken the training a few weeks before the
accident.

MSHA'S INVESTIGATION
MSHAassigned Inspector James Logan to lead its investigation of the accident. Tr. 4243. Logan arrived at the mine·on February 14, 2006, between 7:00 and 7:30 a.m. Upon his
arrival he met with John Dagner and Tom Shilling, two other MSHA employees, who briefed
him on the accident. Tr. 43-44. Other MSHA employees, Robert Carter, Phil McCabe, and
Mike Shaughnessy, soon arrived to assist with the investigation. In addition, two persons from
MSHA's Education Field Services Department came to review the company's training records.
Tr. 44, 47.
During the course of the investigation, Logan and the other MSHA personnel interviewed
those involved in the accident and management officials. MSHA officials also asked Heenan to
place the boom and the cable in the same positions they had been in at the time of the accident.
See Tr. 199-200. In addition, McCabe, a mechanical engineer employed by MSHA's Mine
Equipment Safety Division, examined the eq:uipnient involved. He found no mechanical defects.
Tr. 337-338.
Logan met with Frank Bardonaro, the general manager of AmQuip. Bardonaro told
Logan it was not possible for the pitman to have "popped loose" from the frame in which it was
lodged. Had it done so, as the hoist line took the load "it would have overloaded the 9,000
pound capacity and put the crane into an overload situation." 12 Tr. 329; see also Gov 't Exh. 13
at 11-12. Since loads can only be lowered in an overload situation, it would have been
impossible for Heenan to have hoisted and swung the pitman after the accident, something he
did. 13 Tr. 329; see also Tr. 332.
Logan concluded the accident occurred because the location of the upper catwalk above
the crusher did not allow a vertical pick. Therefore, when the load was lifted, the deflection of
the cable caused the pitman to travel horizontally. See Tr. 72-73; Gov't Exh. I. Logan also
concluded a violation of section 56.16009 occurred because the workers had not cleared the work
area prior to signaling the crane operator to move the pitman. As a result, they "expos[ed)

12

Although the pitman weighed 7,100 pounds, Logan believed the c_o mbined weight of the
pitman, "the rigging pieces, the hook ofthe·crane, and the . .. portion of the crane cable between
the pitman and the top of the boom" had to be near the crane's 9,000-pound capacity. Tr. 330 .
13

Logan explained, "From.my understanding of cranes . . . when a crane goes into an
overload situation, the only thing that the system in the crane will allow the operator to do is
lower it to the ground to make it safe. It will not allow . . . [the operator] to hoist . .. [the load),
to swing it, [or] do any other motions with it." Tr. 332.
.

30 FMSHRC 513

themselves to the suspended load. " 14 Tr. 68.
Logan believed the violation was caused by the company' s high negligence. Davis, a
properly trained supervisor, allowed workers to be in harm' s way because once lifted and freed of
restraint, the pitman had to travel across the work platform towards the stairway the employees
were required to use to exit. Tr. 78. Davis failed to ensure that the employees were clear of the
area before the signal was given to lift the pitman. Logan believed Davis and the others should
have known the direction the pitman would travel once the boom up signal was given. Tr. 80-81 .

THE ISSUES
The primary issues are whether H&K violated section 56.16009, and, if so, the amount of
the civil penalty that must be assessed. The penalty must be based on the statutory civil penalty
criteria. While the parties have stipulated to some of the criteria, the gravity of the violation and
the negligence of H&K remain at issue and must be determined. In addition, a finding must be
made as to the S&S nature of the violation.

THE VIOLATION
CITATION NO.
6029599

DATE
03/01/2006

30 C.F.R. §
56.1.6009

PROPOSED PENALTY
$42,000

Citation No. 6029599 states:

A fatal accident occurred at this mine on
February 13, 2006, while workers were
dismantling the crusher at the secondary
plant. A crane was being used to lift the
pitman assembly from the crusher. As the
pitman assembly was being lifted, it ~g,

14

Robert Carter, a supervisory inspector for MSHA, sat in on some of the interviews
MSHA conducted during the investigation. He also reviewed and commented upon MSHA's
draft accident report. Tr. 354-355. Carter, who at the time of the bearing had 29 years of
experience with MSHA, also believed the cause of the accident was "the result of the crane
operato~ ~oving the pitman prior to the employees leaving the platform." · Tr. 356. In Carter's
opinion, if an experienced crane operator received a signal to move equipment while people were
in the area, he or she should not do so while people were present. Id. Moreover, Carter believed
Davis had ·not met his responsibility to make sure procedures were in place keeping persons clear
of suspended loads, and he did not ensure the platform was clear of persons before the hoisting of
the pitman commenced. Tr. 358-360.

30 FMSHRC 514

and struck the supervisor. The task
proceeded although the supervisor and two
co-workers were not clear of the suspended
load.
Gov't Exh. 5.
The Secretary maintains the facts squarely fit the words of the standard. She begins by
noting those words: ''Persons shall stay clear of suspended loads." She argues the definitions of
"load" and "suspended" clearly encompass the pitman. Sec. Br. 17. She then notes the
Commission's judges in applying the words "stay clear of' have looked to whether employees
are located in an unsafe area, and argues "the path which a suspended load would necessarily
travel would be an unsafe area." Id. at 15. She further asserts the record contains "ample
evidence" Davis, Y orden, and Velas failed to stay clear of a suspended load as the pitman swung
along the deck. Id., Sec. Br. 17-19.
H&K argues the Secretary did not meet her burden of proving the violation by a
preponderance of the evidence. Rather, the Secretary presented "contradictory evidence"
regarding how the accident occurred, first by maintaining the load suddenly broke free and
swung, striking and killing Davis, and second by maintaining the load was hanging free and
loose when H&K's employee gave a hand signal to move it. H&K Br. 4. H&K continues:
"Because in the first instance [(i.e., the load suddenly broke free)] there would be.no viofation of
[section 56.16009], the Secretary has not proven it is more likely tlian not that a violation
occurred." Id. In H&K's view, "[t]he case .. . is not about a matter of evidence·presented by the
Secretary being opposed by ... [H&K], but rather is one in which the evidence offered by the
Secretary was in stark contradiction to other evidence also introduced by the Secretary," and
" [w ]hen.the Secretary's evidence is contradictory, the Secretary has failed to show that it is more
likely than-not that one of the versions is correct and the citation should be vacated." Id. at 4-5; ·
see also H&K Br. 7. Put another way, "[t ]he Secretary has·the burden of proving by a
preponderance of the evidence that a violation of the cited standard occurred .... [and] when the
Secretary presents conflicting testimony on the existence of a violation, the Secretary has not
carried her burden." Id. at 5 . .
H&K also states, "[j]ust prior to the accident, the crane operator freed the pitman from
the housing so that it was hanging freely, but it was still between the side panels of the crusher
housing." H&K Br. 8. Because it was then ''within the confines of the two side walls of the
housing'' it was "clearly not 'suspended' within the meaning of the 30 C.F.R § 56.16009." Id.
Thus, at the time the employees turned to leave the platform, there was no suspended load.
Finally, even were it decided the Secretary could prove by a preponderance of the evidence the
pitman was a "suspended load," the Secretary did not prove that Davis, Y orden, and Velas failed
to stay clear of the load to the extent requir~ by the regulation, because persons working around
a load when it becomes suspended have a reasonable.amount of time to move away before they
can be said to not be clear of the load. Id. at 10. "Being near a suspended load during the brief
30 FMSHRC 515

period of time it takes to move from the area does not constitute a violation of 30 C.F.R. §
56.16009." Id. Rather, the regulation requires the miners to clear the area once a load becomes
suspended, which is what Davis, Y orden and Velas were doing when the accident occurred. Id.
at 11. In H&K's view, the accident was the result ofHeenan's ..unfortunate choice to exercise
poor judgment at a critical moment." Id.

ANALYSIS
I agree with H&K that analysis of whether a violation occurred should begin with the
words of the regulation, but that is where our agreement ends, for I conclude the Secretary has
successfully established a violation of the standard, and that she has done so on two equally
plausible .bases.

THE FIRST BASIS
When confronting a matter involving regulatory interpretation, judges begin with the
words of the regulation and, unless the words are otherwise defined, interpret them "as taking
their ordinary contemporary common meaning." Perrin v. United States, 444 U.S. 37, 100 S.
Ct. 311 (1979); see 2A Sutherland, StattJtory Construction§§ 47.01, 47.28. If the meaning is
unambiguous, the language is usually conclusive. See Consumer Prod. Safety Comm 'n .v. GTE
Sylvania, Inc., 447 U.S. 102, 108 (1980). This is not to say the practical effects of the
interpretation are ignored. When those effects conform to and further the purpose of the
regulation, the results bolster the regulation's plain meaning. When the practical effects do not
further the purpose, judges must carefully consider whether the-evidence compels a conclusion
the words do not mean what they seem to say.
Section 56.16009 is. straightforward. ''Persons shall stay clear of suspended loads." A
"load" is defined as "a mass or weight supported by something." Webster's Third New
International Dictionary (2002) at 1325. The noun ..load" is modified by the adjective
"suspended," and when used as an adjective "suspended" is defined as being ''held in
suspension." Id. at 2303. Thus, a "suspended load" is a mass or weight supported by something
that is being held in suspension. To be held in suspension is to be in the "state of being hung."
Id. "Hung" is the past tense of"hang," which is defined as "to fasten so as to allow free motion
within given limits Qn a point of suspension." Id. at 1029. Thus, I conclude a "suspended load"
is a mass or weight fastened to allow free motion within the given limits of its point of
suspension or support, and this is the same meaning I would reach if! interpreted the standard by
applying "suspend" as a verb instead of "suspended" as an adjective. 15

As the parties point out, the verb "suspend'~ is defined as "[t]o hang so as to be free on
all sides except at the point of support." Sec. Br. 14-15 (citing to Webster's at 2303); H&K. Br. 7
(citing to Webster's at 2303).
15

30FMSHRC 516

This grammatical' exegesis no doubt makes turgid reading, but behind it is a clear salutary
purpose. Hanging loads having free motion can swing within a specific arc or radius. The
standard's goal is to prevent persons from being hit by such lOads through barring persons from
locating within a hanging load's possible arc or radius. The logic is simple and irrefutable.
When persons are outside the limits of a load's point of suspension, they will not be:struck and
injured or struck and killed when the load moves freely.

In my view, to find a violation of the standard,.I need look no further th.an Stipulation 28,
which states: "[a]t the time of the accident, as the pitman assembly was being lifted, it swung
and struck . . . Davis. The pitman was a "load," the fact it was being lifted and swung means it
was "suspended," and the fact it struck Davis means he was not "clear" of the load.

THE SECOND BASIS
Alternatively, if! look beyond the plain words of the standard, I find an implied
obligation on the part of the operator that Davis, H&K' s·agent, did not meet, and I conclude his
failure in this regard violated the standard:
Here, the testimony establishes the load - the pitman - was lifted approximately ten
inches, but then jammed against .the toggle seats. Velas and Yorden worked to free it with pry
bars:. Tr. 153-154. The pitman was lifted by Heenan in conjunction with their efforts, and the
pitman came loose. However, Heenan stopped lifting before the pitman was free of the sides of
the frame containing it. Tr. 154-155. At that point the pitman was suspended within the
meaning of the standard. It was not touching the toggle seats or the sides of the frame. ·It was
hanging fee .. But the extent of the pitman's possible swing was severely restrained by the frame.
The men on the deck were outside the arc or radius of the possible swing. Thus, H&K was at
that point in time in compliance with the standard. But when Heenan subsequently '-'boomed up"
he raised the pitman above the sides of the frame, and Davis, Yorden, and Velas were Ii0 longer
outside of the possible swing of the suspended pitman. They were not clear of the load, as the
unsuccessful scramble to avoid the pitman showed.
I conclude section 56.16009, like·marty of the standards promulgated under the Mine Act,
contains ·the sub silentio requirement the operator ascertain the specific prohibition of the
standard and determine whether a hazard exists. Since it is clear the hazard against which the
standard-is directed is that of a person being struck by a hanging load, the question is whether a
reasonably prudent person familiar with the ind'ustry and the protective ptirposes ofthe standard
would have recognized that under the circumstances then existing on the platform, H&K was
required to ensure Davis, Yorden and Velas stayed clear of the arc or radius of the pitman's
possible swing. In short, as the pitman moved outside the confines of the frame, was H&K
required to ensure the men stayed clear of the load? To put the question another way, would a
reasonably prudent mine operator familiar with the operation of a crane and the conditions under
which the pib'1an was ~ifted e~sure the men were offthe·platform when the pitman cleared the
frame? I conclude the answer is "yes."

30 FMSHRC 517

The testimony establishes the boom up signal was given to Heenan by Velas. Tr. 256.
The three men were on the platform when this was done. Heenan responded by raising the
pitman, an action that resulted in Davis's death. Tr. 258-259; see also Tr. 356. The standard is
meant to prevent just this kind of accident. H&K maintains ''Heenan could clearly see the
platform and the individuals on the platform ... [Therefore, H&K's] employees could not
reasonably be expected to anticipate that the·crane operator would move the pitman while' they
were still standing on the platform." H&K Br. 11. However, the pib'nan was attached to the
cable and although the goal was to move the cable away from the upper catwalk, moving the
cable necessarily meant the pitman would also move.
Davis was in charge of the crew. He was acting on behalf of H&K. He had a duty to
ensure the pitman's removal was carried out safely. As Yorden testified, hand signals were
necessary for all of the picks (Tr. 335), and the record supports finding that during the course of
the procedure to replace the pitman, signals were repeatedly given to Heenan, and he quickly
responded. Tr.139, 154, 188, 192, 193, 236, 237, 251-252;279. H& K's ·assertion Heenan
"knew not to move the load while ... [H&K's] employees were on the platform" is not
supported by the record. It seems certain prior to the fatal pick, loads were moved many times in
response to hand signals while employees were on the platform. Given these work practices,
given the fact the pitman was sure to move when Heenan "boomed up," and given the fact the
movement could possibly free the pitman .from its restraints, in my opinion ·a reasonable
supervis~r would have a.qticipated: (1) that Heenan would-have responded promptly when the
signal was given, and; (2) that the pitman might thus be liberated.

I accept Velas's testimony the hoist cable was deflected by the overhead catwalk and that
it was pointed out to Davis. Tr. 243. The deflection also was visibly obvious. Tr. 152. A
reasonably prudent supervisor familiar with the lifting of loads would have anticipated the
deflection might prevent a straight lift when Heenan boomed up and might cause the load to
swing horizontally. This is especially true.of a supervisor like Davis, whose recent refresher
training included a reminder of the potential hazards ofjust such a situation. Tr. 313, 317, 323,
Gov't Exh. 19 at 55, Gov't Exh. 25.
In sum, given all of the circumstap.ces involving the lift, I find a reasonably prudent
supervisor would have made sure everyone on the platform was off and out of the way of the
possible swing of the load as it was lifted. 16 I am aware the same logic might compel a
conclusion the men should have been removed from the platform during some of the prior lifts as
well. ~ut, H&K was cited for a violation of section 56.16009 solely for the lift involving the
accident, and I can only decide. the case before me. In failing to ensure he and his men were out

16

Practically, this means DaVis probabiy should have removed hims'elf and the others
from the possible path of the load before the signal was given.
30 FMSHRC 518

of the way, Davis and, thus, H&K violated the standard. 17

s&s AND GRAVITY
An S&S violation is a violation "of such nature as could significantly and substantially
contribute to the cause and effect of a ... mine safety or health hazard." 30 U.S.C. § 814(d). A
violation is properly designated S&S, "if, based upon the particular facts surrounding a violation,
there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness
of a reasonably serious nature." Cement Div., Nat 'l Gypsum Co., 3 FMSHRC 822, 825 (April
1981 ). To establish the S&S nature of a violation, the Secretary must prove: (1) the underlying
violation; (2) a discrete safety hazard - that is, a measure of danger to safety- contributed to by
the violation; (3) a reasonable likelihood the hazard contributed to will result in an injury; and (4)
a reasonable likelihood the injury will be of a reasonably serious nature. Mathies Coal Co., 6
FMSHRC 3-4 (January 1984); accord Buck Creek Coal Co., Inc. 52 F. 3d 133, 135.(7th Cir.
1995); Austin Power Co., Inc. v. Sec'y ofLabor, 81 F. 2d 99,103 (5th Cir. 1988) (approving
Mathies·criteria).

it is the third element of the S&S criteria that is the source of most controversies
regarding S&S findings. The element is established only if the Secretary proves "a reasonable
likelihood the hCiZard contributed to Will result in an event in which there is an injuiy." U.S. Steel
Mining Co., Inc., 7 FMSHRC 1125, 1129 (August 1985). Further, an-S&S determination must
be based on the particular facts surrounding the violation and must be made in the context of
continued normal mining operations. Texasgulf, Inc., 10 FMSHRC 1125 (August 1985); U.S.
Steel, 7 FMSHRC at 1130.
Finally, the S&S -nature of a violation and the gravity of a violation are not synonymous.
The Commission has' pointed out that the "focus of the seriousness ofthe·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 (September 1996).
The Secretary established the violation was S&S. She proved H&K violated section
56.16009. She also proved there was a measure of danger·to safety, in that failing to ensure the
men were outside the path of the suspended 7, 100 pound pitman subjected them·to the danger of
being hit. Moreover, she established there was a reasonable likelihood the hazard contributed to
(that of being hit) would result in the type of accident that occurred. Removal and replacement

17

In reaching this conclusion, I specifically reject H&K's "contradictory evidence"

argument. H&K Br. 4-7. It is my re~ponsibility to evaluate the totality of the evidence offered
and determine if a preponderance of it supports finding the violation occurred. Here, I h~ve
found it does, that ~e Secretary has met her burden of proof and established H&K Violated the
standard.
30 FMSHRC 519

of the pitman required numerous lifts. It was easy, as the accident showed, for Heenan either to
misread the signals he was given or to lift the pitman too far out of its constraints. Failing to
guard against these mistakes by moving the men outside the pitman's possible path made the
resulting accident reasonably likely. Further, given the weight of the pi1lnan, the Secretary
established it.was reasonably likely the nature of any resulting injury would be serious, if not
fatal.

In assessil)g the gravity of the violation, I note its effect - Davis's death - and find it was
very serious.

NEGLIGENCE
Inspector Logan found the violation was the result ofH&K's high negligence. Gov't
Exh. 5; Tr. 77. As the inspector explained, Davis "allowed workers to be in hann's way when
they started to actually hoist the pitman ... to r~move it from the platfonn" and he "failed to
ensure . .. all the employees were clear of the area before the signal was ... given to remove the
pitman." Tr. 77. The Secretary argues, by failing to ensure he and the others were not out of the
pitman's possible path when it was lifted, Davis failed to exercise reasonable care. Sec. Br. 2. I
agree. Davis was the supervisor.. He was in charge of the removal and rq>lacement operation.
Reasonable care required him to contemplate what would happen if the lift Heenan was signaled
to undertake carried the pitman fully out of its constraints: Reasonable care required him to
remove himself and his men from the path the pitman might take under those circumstances.
However, I also recognize the lack of care was not restricted to Davis. As H&K points
out, Heenan could clearly see the platfonn and the people on it. He knew, or he should have
known, not to lift the pitman while the men were in its possible path. Thus, b9th men failed to
exercise the care required by the circumstances, and their joint failures cost Davis his life.

CIVIL PENALTY CRITERIA
IDSTORY OF PREVIOUS VIOLATIONS
With regard to the history of pi:evious viol~tions, the parties stipulated in the 24 months
before the issuance of the citation there were 21 citations issued in 13 inspection days. Stip.17;
Gov't Exh. 11; Tr. 367. I view this as a medium history of previous violations.

With regard to the size of the mine, the parties stipulated in the last full year before the
citation was issued (2005), th~re were 13, 176 hours worked at the mine. Stip. 8; Tr. 368.
Counsel for th~ _Secretary described this as a "relatively small mine." Tr. 368. (Counsel for
H&K described it as ''very small." Tr. 371.) With regard to the controlling entity, H&K, the
parties agreed it had 473,375 hours worked. See Stip. 8,
372, 373-374, 369. Counsel for the

Tr.

30 FMSHRC 520

Secretary described H&K as of a ')nedium size." Tr. 369. Given the stipulations and
explanations, I find that H&K' s business is of a medium size.

ABILITY TO CONTINUE IN BUSINESS
With regard to the-effect of the penalty on H&K' s ability to continue in business, the
parties stipulated imposition of the proposed penalty will have no effect. Stip. 7.

GOOD FAITH IN ACHIEVING COMPLIANCE
Following issuance of the citation, H&K provided all mine employees with crane safety
training. In addition, it reviewed the requirements of section 56.16009 with them. It did these
things in a timely manner. Gov't Exh. 7. I find the company demonstrated good faith in
achieving rapid compliance.

CIVIL PENALTY ASSESSMENT
CITATION NO.
6029599

DATE
03/01/2006

30 C.F.R. §
56.16009

PROPOSED PENALTY
$42,000

I have found the violation was very serious. I also have found it was the result of Davis's .
and, thus, the company's, lack of care. These findings, and the findings regarding the other civil
penalty criteria, would warrant assessment of the penalty proposed by the Secretary, but for
another factor that must be considered - Heenan's neglig~nce. As I have found, the fatal
consequences of the violation were not solely due to Davis's and H&K's lack of care, Heenan
was jointly responsible, and his inexplicable co-negligence, in my view, calls for a le~ser penalty
than that proposed. Given these findings and considerations, I conclude a civil penalty of
$30,000 is appropriate.

ORDER
The secretary has proven the violation of section 56.16009 alleged in Citation No.
6029599. H&K's notice of contest of the citation IS DENIED and Docket No. PENN 2006-143- .
R IS DISMISSED. H&K SHALL PAY a civil penalty of $30,000 for the violation within 40
days of the date of this decision. Upon payment of the penalty, Docket No. PENN 2006-288-M
also IS DISMISSED.

])~;df ~- ---"'"'r~
David F. Barbour.
Administrative Law Judge

30 FMSHRC 521

Distribution: (Certified)
Paul A. Marone, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center,
Suite 630E, 170 S. Independence Mall West, Philadelphia, PA 19106-3306
Linda Thomasson, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center,
Suite 630E, 170 S. Independence Mall West, Philadelphia, PA 19106-3306
John D. Austin, Jr., Esq., Patton Boggs, LLP, 2550 M Street NW, Washington, DC 20037
/ej

30 FMSHRC 522

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

June 13, 2008

MICHAEL A. FULMER

DISCRIMINATION PROCEEDING

Complainant,

v.
METTIKI COAL CORPORATION,
Respondent

Docket No. YORK 2007-52-D
MORG CD 2007-01
Mettiki Mine
Mine ID 18-00621'

ORDER GRANTING RESPONDENT'S MOTION FOR SUMMARY DECISION
This case is before me on a complaint of discrimination filed by Michael A. Fuhner
(''Fulmer") pursuant to section 105(c)(3) of the Federal Mine Safety and Health Act of 1977. .
30 U.S.C. § 815(c )(3). Fuhner alleges that Mettiki Coal Corporation (''Mettiki'') subjected him
to adverse work assignments as a result of his election to receive protection from dusty w~rk
environments under 30 C.F.R. § 90.100 (''Part 90"). Mettiki moved for summary decision on
several grounds. Mettiki' s arguments were rejected, except for its charge that Fulmer's
discrimination complaint was not timely filed with the Secretary. Fulmer was ordered to show
justifiable circumstances for his late filing, and Mettik.i responded. For the reasons that follow, I
find that Fuhner has failed·to establish justifiable circumstances for his failure to timely file his
discrimination complaint, that Mettiki has suffered prejudice as a result, and that Mettiki is
entitled to judgment as a matter oflaw.
Facts 1
On August 25, 2003, after being placed on a production shift, Fulmer notified MSHA that
he intended to exercise his right under Part 90 to work in area(s) of the mine that complied with
Part 90 respirable dust limitations. MSHA notified Mettik.i and, on October 8, 2003, Fulmer was
reassigned to work as an outby foreman in areas of the mine where sampling established that
respirable dust concentrations were in compliance with Part 90 requirements.

From October 8, 2003 to May 7, 2006, Fulmer's work shifts/assignments were
continuously changed. In addition to his weekend outby shift, he worked production, longwall,
conveyor belt and the return airways - areas where he believed that he was.exposed to high levels
of respirable dust. On May 8, 2006, Fulmer ceased working in the mine due to a decline in his

1

The facts are considered in the light most favorable to Fulmer, the party opposing the
motion. The statement of facts is based upon several submissions by Fulmer, chiefly the
Affidavit of Michael A. Fulmer, dated February 14, 2008, and his December 26, 2007, response
to the Show Cause Order directing him to show justifiable circwnstances for the delay in filing.
30 FMSHRC 523

health, and went on short-term disability. Fulmer did not return to work. In October 2006, he
filed for Long Term Disability ("LTD"), which became effective on November 8, 2006, officially
ending his employment with Mettiki Coal.
After he stopped working in May 2006, Fulmer phoned the local MSHA office and made
an appointment to meet and "see if [he] had any remedy" for the way he had ·been treated. On
July 3, 2006, he visited the MSHA field office in Oakland, Maryland, and met with inspector
Phillip ''Bud" Wilt. He explained what had happened, and that he "felt what [he) went through
was discrimination." Wilt took a book out of his desk, and showed him that he could file a
complaint of discrimination pursuant to section I 05(c) of the Act. There was no discussion of a
deadline for filing a complaint. Fulmer "decided to take time to think about his options," and
did not file a complaint at that time: Had he been informed of the 60-day deadline, he would
have filed a complaint immediately.
He subsequently decided to file a complaint, and made an appointment to meet with Wilt
and his ~upervisor, Jerry Johnson, in September of2006.2 However, Wilt called and rescheduled
the appointment, first to October, and then to November 7, 2006. At that time, Fulmer met with
Wilt and Johnson and executed a discrimination complaint form. When Fulmer inquired when
the investigation would start, Johnson requested that it be put off until after hunting season and
the holidays, to which Fulmer agreed. On January 3, 2007, Fulmer again met with Wilt, who he
understood had been assigned to investigate his complaint. He then signed another
discrimination complaint f~rm, reciting the same or similar facts as in the previous complaint.
The November 2006 complaint apparently was not treated as officially filed by MSHA. The
January 3, 2007, complaint was assigned "Case Number MORG-CD-2007-1."
By letter dated March 2, 2007, MSHA informed Fulmer that it found no violation of the
Act and advised him of his right to file a complaint with the Commission pursuant to section
105(c)(3). Fulmer then filed the instant complaint.
Analysis
Commission Procedural Rule 67, 29 C.F.R. § 2700.67, provides that a motion for
summary decision shall be granted only if the entire record shows that there is ')lo genuine issue
as to any material fact" and that "the moving party is entitled to summary decision as a matter of
law." 29 C.F.R. § 2700.67(b).

.F ulmer has m~de inconsistent claims regarding the scheduling of the meeting. He
asserted in his response to the Show Cause Order that it was initially scheduled for October 2006.
He states in his February 14, 2008, Affidavit that the original appointment was in September
2006.
2

30 FMSHRC 524

Section I05(c)(2) of the Act states that:
Any miner . . . who believes that he has been discharged, interfered with,
or otherwise discriminated against by any person in violation of this
subsection may, within 60 days after such violation occurs, file a
complaint with the Secretary alleging such discrimination."
The Commission has held that the 60 day time limit in section 105(c)(2) of the Act is not
jurisdictional and that non-compliance may be excused on the basis ofjustifiable circumstances.
Hollis v. Consol. Coal Co., 6 FMSHRC 21(Jan.1984); Herman v. IMCO Serv., 4 FMSHRC
2135 (Dec. 1982). As the Commission stated in Herman, 4 FMSHRC at 2138-39:
The placement ofliniitations on the time-periods during which a plaintiff
may institute legal proceedings is primarily designed to assure fairness to
the opposing party by:
Preventing surprises through the revival of claims that have
been allowed to slumber until evidence has been lost,
memories have faded, and witness have disappeared~ The
theory is that even if one -h as a just claim it is unjust not to
put the adversary on notice to defend within the period of
limitations and that the right to be free of stale claims in
time comes to prevail over the right to prosecute them.

-:

Burnett v. NY. Central R.R. Co., 380 U.S. 424, 428 (1965), quoting R.R.
Telegraphers v. REA, 321 U.S. 342, 348-49 (1944).
The cases dealing with justification for delays in filing identify several factors that may be
considered, and include but are not limited to, complainant's capacity or ability to initiate and
pursue such a remedy,3 complainant's awareness of his rights under the Act,4 and, the length of
the delay and whether it has resulted in prejudice to a respondent. If a respondent can
demonstrate that critical evidence, e.g., a witness or document, is no longer available because of
the delay, a complaint may be dismissed even ifjustifiable circumstances can be established.

3

Sinnott v. Jim Walter Res., Inc., 6 FMSHRC 2445 (Dec. 1994) (ALJ).

4

Sinnott; Hollis; Secy ofLabor on behalfofFranco v. W.A. Morris Sand & Gravel,
Inc., 18 FMSHRC 278 (Feb. 1996) (AlJ) (delay of 107 days justified by prompt filing after
complainant first became aware of rights under the Act); Secy ofLabor on behalfofSmith v. Jim
Walter Res., Inc., 21 FMSHRC 359 (Mar. 1999) (AlJ) (10 month delay excused by filing within
65 days of first learning·of rights under section 105(c)); Sec y ofLabor on behalfof Gay v. IkerdBandy Co.,.18 FMSHRC 341 (Mar. 1996) (ALJ) (3 month delay excused by filing 1 day after
first learning of section 105(c) rights).
30 FMSHRC 525

Prejudice is also inherent in any delay, because witnesses' recollections fade. See Sinnott, supra
(delay of over 3 years ..inherently prejudicial"). Consequently, the lengthier the delay, the
stronger the jus~fication required to overcom,e it. See Avilucea v. Phelps Dodge Corp., 19
FMSHRC 1064, 1067 (June 1997) (AU) (''very special circumstances" required to justify delay
of over 2 years). All such factors must be weighed to reach the ultimate determination of
whether, on the facts of the particular case, the delay was justified. Hollis, supra; Herman,
supra.
Justifiable Circumstances
The essence ofFulmer's complaint is that Mettiki retaliated against him because of his
filing for Part 90 status, and that the discrimination began when Mettiki was notified of his Part
90 election on October 8, 2003, and continued until he went on short-term disability on May 8,
2006.5 Accordingly, any actionable adverse actions would have occurred. between those dates.
Under section 105(c)(2), Fulmer should have filed a complaint within 60 days of the first
act of discrimination. Although he has not specifically itemized the dates upon which
discriminatory work assignments were made, if the first one occurred. on October 8, 2003, he
should have filed a discrimination complaint on or before December 7, 2003. He also should
have filed a discrimination complaint within 60 days of any subsequent discriminatory act. A
complaint for discrimination occurring on May 8, 2006, when he stopped working for Mettiki,
should have been filed on or before July 7, 2006. His November 7, 2006, complaint was
submitted to MSHA almost three years after the fi,rst, and four months after the last, filing
deadline.
His claim ofjustifiable circumstances is based, virtually exclusively, on a claimed lack of
knowledge of his rights under the Act.6 As he stated in his December 26, 2007, response to the

s Fulmer's allegations have been inconsistent. His November 7, 2006, MSHA complaint
states that the discrimination started when he returned to work on March 10, 2003, after a period
of sh~~-term disability to receive treatment for a recurrence of cancer. Resp. Mot. Att. 9. His
January 3, 2007, complaint states that the discrimination began after he opted for Part 90 status
on August 25, 2003. Resp. Mot. Att 10. In an Affidavit, dated November 8, 2007, responding to
Mettiki's motion, he asserted that his shifts were changed from October 8, 2003 to May 7, 2006.
6

Fulmer does not claim any incapacity or inability to have timely filed a discrimination
complaint. He worked for many years as a foreman, and exhibited an awareness and.ability to
pursue rights related to his employment. He was very knowledgeable about his rights under Part
90. He initially deferred his election ofPart 90 status because·he was able to change work
ass~gnments to an outby weekend shift job. When he was reassigned to a production shift, he
promptly notified MSHA of his decision to seek Part 90 status, and successfully achieved that
goal. He alsQ has pursued a claim for black lung benefits, on which a hearing was scheduled for
June 12, 2008, before a Department of Labor Administrative Law Judge. In conjunction with his
30 FMSHRC 526

Show Cause Order directing him to show justifiable circumstances for his delay in filing, ''To be
truthful ..., I did not know exactly what my rights were." His February 14, 2008, Affidavit,
provided after he had obtained counsel, is more explicit. He disclaims knowledge that
discrimination based upon Part 90 status was illegal, knowledge about the process for filing a
complaint, knowledge of a filing deadline, and that he ever had "particular training orjob
assignment dealing with miners' rights."
'
As directed in the December 1J, 2007, Show Cause Order, Fulmer must "establish ·
justifiable circumstances for failing to file his MSHA discrimination complaint within 60 days·of
any alleged act of discrimination upon which he bases his claims." Fulmer was fully aware of his
Part 90 rights, and understood at the time of each work assignment that he believed subjected
him to excessive respirable dust that his rights had been violated. He claims that, had he known
about his rights under section I 05(c), he would ·have timely made a complaint to MSHA after
each instance of discr:iniiilation.
·
His earlier statements, however, contradict that assertion. Documents attached to his
response to a July 16, 2007, Show Cause Order demonstrate that he deliberately chose not to take
any action to challenge what he believed were Mettiki' s Violations. A letter attached to ·his
response states:7
Due to my chemo/radiation treatments, I had to miss a lot of work and each time
my cancer returned I had to miss even more. I felt I owed that company, so I did
not complain the way I should have. ·
. . . I was a supervisor for 25 years and I aJways said, "if you make waves, you
will sink your oWn. boat'' and now I'm being told by your office because I didn't
make them I still sunk my boat. Is that fair?

While Fulmer was most likely referring to his decisions not to complain to Mettiki or
MSHA about violations of his Part 90 rights, it is clear that in addition to talcing no steps to
address those violations, he also made no attempt to determine whether he could pursue some
other remedy, e.g., a complaint of discrimination, a right that he should have been aware of.

securing disability benefits from Mettiki, he has pursued a claim for Social Security disability
benefits. It is apparent that Fulmer had the capacity to initiate a claim for discrimination
throughout the pertinent time period.
7

April 9, 2007, letter from Fulmer, in response to a March 2, 2007, letter from MSHA
advising him that it did not find discrimination as alleged in his complaint. Copies of both letters
were submitted in response to a July 16, 2007, Order to Show Cause.

30 FMSHRC 527

Mettiki generally provided, instruction on miners' rights in its :µmual refresher training
sessions·.8 Fulmer attended those sessions .every year from at least 1994, through ~006, with the
exception of 2005. Instructions on miners' rights were definitely included in the sessions from
1996 through 2001, and most lilcely in other years. The training includ¢ references to an MSHA
pamphlet entitled "A Guide to Miners' Rights and Responsibilities Under the Federal Mine
Safety and Health Act of 1977." The pamphlet was distributed at the training sessions or made
available in the safety office. Pamphlet excerpts, including the 60-day filing time limit were
presented as transparencies during the training sessions. The time limits related to claims of
discrimination under section 105(c) of the Act are high],ighted in the pamphlet.

It is clear that Fulmer should have been aware of his right to file a discrimination
complaint with respect to the adverse action that Jie believed were taken because of his exercise
ofMine Act rights. He had been specifically advised·ofhis right to file a discrimination
.
complaint, and the associated time limits for doing so, during annual refresher training sessions.9
Materials explaining the process were readily at hand. He had many opportunities to speak to
MSHA inspectors in private regarding actions he believed were unlawful.

In a similar case, a fellow Administrative.Law Judge held Utat .a.m~ner ass.erting lack of
knowledge of his Mine Act rights as justifiable circumstances for a delay in filing is under an
obligation to make meaningful and good faith efforts to ascertain such rights. Gross v. Leeco,
Inc. , 7 FMSHRC 219, 229 (Feb . .1985) (AIJ).
Is a miner who believes he has been discriminated against entitled to
remain in long-tenn ignorance of his rights and remedies because of inactio~ lack
of initiative, or reasonable good-faith effort? I conclude that in the situation such
as that involved here, where a miner's filing delay is not occasioned by a specific
justification such as - or similar to - those enumerated in. the Acf s legislative
history, and is explained primarily by lack ofknowledge of the rights provided for
in the Act, there exists an obligation.to make meaningful and good faith efforts to
ascertain such rights. Such efforts should be of a nature to create a realistic
.. opportunity for finding oµt one's rights, should commence within a reasonable
-time after the employer' s alleged discriminatory action, and be continuing until
the miner is infonned one way or the other.

Facts re.lated to training on miners' rights are based on the Mar~h 28, 2008, Affidavit
of Horace J. Theriot. Mettiki' s Resp. to Comp. Supp. Brief. Ex. 1.
8

9

While Fulmer asserts in his February 14, 2008, Affidavit, that he never had any
"particular" training dealing with miners' right~,, I do not find that assertion sufficient to create a
genuine issue with resp~ct to whether he rec~ived. such training. Mettiki has provided records of
training, signed by Fulmer. . .. ·
30 FMSHRC 528

While this decision is not binding precedent, I agree with the rationale, which is
consistent with principles generally applicable in the context of equitable tolling oflimitations
periods. 10 This case does not involve a latent injury, or later-disclosed wrongful conduct. Fulmer
was aware, ·at the time of each allegedly wrongful work assignment, that he was the victim of
illegal conduct, and was concerned for his health because of his medical history. He knew that.
the assignments violated his rights ·under Part 90, and that he could have notified MSHA of those
violations. He had ample opportunity to do so. He also should have been aware of his right to
pursue a discrimination claim, including the 60-day time limit for filing a complaint. If he did .
not recall the specifics of his training~ he could have easily obtained all of the pertinent
information, the MSHA pamphlet was readily available and he had many opportunities to discuss
his concerns with MSHA inspectors.
It was not until July 7, 2006; sixty days after he stopped working at Metti.k4 that he took
the step of bringing his.concerns to MSHA, and was specifically advised that he could file a
claim of discrimination under section 105(c)(2) ·of the Act. While he·claims that he was not told,
and had no knowledge, of the 60-day filing deadline, that information was also readily available.
He stated that he was shown a book that stated that he could file a discrimination claim. Jn the
Act, the 60-day time limit is contained in the same sentence that provides for the filing of a claim
of discrimination. The limitation period is highlighted in the MSHA pamphlet. Any reasonable
inquiry by Fulmer would have disclosed the limitations period. Neither party has cited precedent
on the issue of whether lack of knowledge of the limitation period for the filing of a claim, as ·
opposed to lack of knowledge of Mine Act rights, can toll the limitations period, i.e., amount to
justifiable circwnstances. Assuming that it could, I find that Fulmer should have known of the
filing limitation well before he visited MSHA. In the exercise of due diligence, he should easily
have been able to ascertain his rights 1inder the Act, including the filing .deadline,.within weeks
of August 23, 2003, when the allegedly adverse actions began. By January of2004, at the latest,
he is charged with knowledge of his Mine Act rights.

10

See, e.g., E.E.O.C. v. O'Grady, 857 F.2d 383, 393-94 (7th Cir. 1988) (appropriate to
toll limitations period .applicable to Age Discrimination in Employment Act claim until
reasonable plaintiff should have known of facts that would support charge of discrimination);
Demars v. General Dynamics Corp., 779 F.2d 95, 97, 99 (1st Cir. 1985) (six-month limitations
period in National Labor Relations Act may be tolled for fraudulent concealment, if plaintiff fails
to timely discover facts despite exercise of due diligence - summary judgment for defendant
affirmed where plaintiff made no meaningful inquiry for nearly three years); Price v. United
States, 775 F.2d 1491, 1°494 (11th Cir. 1985)(cause of action under Federal Tort Claims Act
accrues when plaintiff, in exercise of reasonable diligence, should be aware that injury is
connected to some act of defendant); Weger v. Shell Oil Co., 966 F.2d 216, 218 (7th Cir. 1992)
(under Illinois law, limitations period tolled until plaintiff reasonably should know injury was
wrongfully caused, burden then ·on plaintiff to ·inquire further as to existence of cause of action).
30 FMSHRC '529

Prejudice · ·
Mettiki claims that, because the ·mine closed in October 2006, it is '\utlikely'' that it will
be able to locate witnesses and records necessary to rebut Fu]mer.' s claims. It also asserts, in the
Affidavit of Horace J. Theriot, ·its manager of human resources and safety, that it does not have
records documenting precisely what area.of the mine Fulmer was assigned to, or whom he
worked with, during the time of the alleged discrimination. It does. not assert that the
unavailability of such records is attributable to.any delay .i n the filing of Fulmer's discrimination
complaint. 11 Undoubtedly, recollections about routine events such as work assignments and
conditions will have faded; However, .Mettiki has not shown concrete prejudice attributable to
delays chargeable to Fulmer.
While Mettiki has not, at this time, demonstrated the kind of material prejudice that might
defeat a showing ofjustifiable circumstances, the considerable de.ays chargeable to Fulmer
would most likely result in prejudice due to faded recollections of events, such as Fulmer's work
assignments and the-conditions he was subjected to. Fulmer asserts, for ~xample, that he was not
the subject of any dust sampling during his allegedly discriminatory assignments. Consequently,
in the absence of records quantifying respirable dust levels at such locations and times, available
evidence as of November 2006, when Fulmer executed the first complaint form, would most
likely have been limited to workers' recollections of events ranging from more than three years to
six months in the past.
Conclusion
Fulmer alleges that he was :subjected to discriminatory work assignments that were
illegal, both under.Part 90 and section 105(c) of the Act, beginning on October 8, 2003,- and
ending on May 8, 2006. He made an informed and considered decisi~n.not to complain or to
ascertain the existence of any other remedy for actions which he knew at the time violated his
Part 90 rights. He had received training on miners' rights under the Act and, with very little
effort, could have ascertained that he could file a complaint of discrimination pursuant to section
105(c) of the Act. He waited for nearly three years after the first adverse action, and some sixty
days after the last one, to inquire about his Mine Act rights. After being advised that he had a
right to file a discrimination complaint, he continued to defer, considering his options, and
allowed another 60 days to pass before a scheduled appointment with MSHA, ostensibly to file a
Delays chargeable to Fulmer run from January 2004~ when he should have been aware
of his right to ·file a coqiplaint, and from sixty days after any subsequent discriminatory work
assignment, to November 7, 2006. ·While Mettiki apparently was not notified ofFulmer's
complaint until sometime after January 3, 2007, it appears to accept that Fu.l mer cannot be
charged with MSH.t.\.'s failure to accept and act on.the complaint he executed·on November 7,
2006, assuming that it was tendered to MSHA at that time. See Sec '.Y ofLabor on behalfof
Bennett v. Kaiser Aluminum and Chem. Corp., 3 FMSHRC 1539 (June 1981) (AU); Franks v.
Bowman Trans. Co., 495 F.24 398, 404-0~ (5th Cir.) cert. den. 419 U.S. 1050 (1974).
11

30 FMSHRC 530

complaint. While, he could have waiked in to any MSHA office and filed a claim at any time, he
allowed another 60 days to go by while the appointment was rescheduled, and finally executed a
complaint form on November 7, 2006.
Through the exercise of due diligence, he should have been aware of his Mine Act rights,
including the filing limitations period, as of January 2004, at the latest. He chose to take no
action. He has failed to establish justifiable circumstances for the late filing of his discrimination
complaint. In addition, Mettiki has suffered some prejudice to its ability to defend, especially as
to the older claims:
ORDER

Based upon the foregoing, I find that there exists no genuine issue as to any material·fact,
and that Mettiki Coal is entitl~ to judgment as a matter oflaw. Accordingly, the Complaint of
Discrimination is hereby DISMISSED. :

/)

'

· ~~·
/e
-- E. ZWiinski
.
.
Michael
Adminis~e Law Judge
.__../' ·

Distribution (Certified Mail):
Michael Fulmer, 2039 Maryland Highway, Mountain Lake Park, MD 21550
Timothy M. Biddle, Esq., Crowell & Moring LLP, 1001 Pennsylvania Ave., N.W., Washington,
D.C. 20004-2595
Nathan J. Fetty, Esq., Appalachian Center fqr the Economy and the Environment, P.O. Box
2260, Buckhannon, WV 26201

30 FMSHRC 531

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.V'{., Suite·950Q
Washington, D.C. 20001
202-434-9981frele · 202-434-9949/Fax

June 20, 2008
CONfEST PROCEEDINGS · ·

EMERALD COAL'RESOURCES, LP
Contestant

Docket No. PENN 2007-257-R
Citation No. 7020004;05/25/2007
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Respondent

Emerald No. 1 Mine
Mine ID 36-05466 .

CUMBERLAND COAL RESOURCES, LP,:
Contestant
Docket No. PENN 2007-258-R
Citation No. 7020005;05/25/2007
v.

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

Cumberland Mine
· · Mine ID 36-05018

CIVIL PENALTY PROCEEDINGS
Docket No. PENN 2008-71
A.C. No. 36-05466-130159

v.

EMERALD COAL RESOURCES, LP,
Respondent

No. I

30 FMSHRC 532

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

Docket No. PENN 2008-72
A.C. No. 36-05018-1301°58

v.
CUMBERLAND COAL RESOURCES LP, : .
Respondent

Cumberland Mfue

DECISION APPROVING SETTLEMENT

Before: Judge Zielinski
These cases are before me on Notices of Contest and Petitions 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). The subject citations were issued by the Department ofLabor's Mine Safety and
Health Administration ("MSHA") to Emerald Coal Resources, LP, and Cumberland Coal
Resources, LP, pursuant to section 316(b)(2)(G) of the Federal Mine Safety and Health Act of
1977, as amended by the Mine hnprovement and New Emergency Response Act of 2006, 30 ·
U.S.C. § 876(b)(2)(G). The validity of the citations was affirmed in Emergency Response Plan
Dispute Proceedings before the Commission. 29 FMSHRC 956 (Dec. 2007), affirming
29 FMSHRC 542 (June 2007) (ALJ). Civil penalties in the amount of $250.00 were later
assessed for each citation, and were timely contested by the operators.
The parties have negotiated an agreed resolution of the cases arid, by motion, seek
approval of the settlement agreement. The Secretary has agreed to modify the citations to specify
that there was "no likelihood" of injury, "no lost workdays" would be expected, and that no
miners were exposed to a hazard as a result of the violations. I addition the Secre~ has agreed
to modify the citations to specify that the violations were not significant and substantial and that
there was no negligence associated with the circumstances underlying the citations. The
operators have agreed to pay the originally assessed penalties in the amount of $250.00 each.
I have considered the representations and evidence submitted and conclude that the proffered
settlement is appropriate under the criteria set forth in section 11 O(i) of the Act.
WHEREFORE, the motion for approval of settlement is G~D, and it is
ORDERED that the citations are hereby amended as proposed in the motion-'and that
Respondents, Emerald Coal Resources, LP, and Cumberland Coal Resources, LP, each pay a
penalty of$250.00 within 30 days.

?l

.~

.

'

'

.--·

,

/

Michael ~~ki
Administran ve Law Judge

30 FMSHRC 533

Distribution:
Stephen Turow, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22nd
Floor, Arlington, VA 22209-2296

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

30 FMSHRC 534

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

June 20, 2008
CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 2007-327
A. C. No. 46-08365-109357

v.
Grassy Creek No. 1

WHITE BUCK COAL COMPANY,
Respondent

DECISION
Appearances: Karen M. Torre, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia, for Petitioner;
Carol Ann Marunich, Esq., Dinsmore & Shohl, LLP, Morgantown, West Virginia,
for Respondent.
Before:

Judge Hodgdon

This case is before me on a Petition for Assessment of Civil Penalty brought by the
Secretary of Labor, acting through her Mine Safety and Health Administration (MSHA), against
White Buck Coal Company, pursuant to section 105 of the Federal Mine Safety and Health Act of
1977, as amended, 30 U.S.C. § 815. The petition alleges five violations of the Secretary's
mandatory health and safety standards and seeks a penalty of $5,272.00. A trial was held in
Beckley, West Virginia. For the reasons set forth below, I affirm the citations, modifying one, and
assess a penalty of $4,848.00.

Backeround
The Grassy Creek No. 1 Mine is an underground coal mine operated by White Buck Coal
Company in Nicholas County, West Virginia. MSHA Inspector James A. Starcher conducted a
quarterly inspection of the mine in August 2006. On August 2, the inspector issued two citations
concerning the trailmg cables on two shuttle cars in th~ mine. On August 8; he issued a citation ·
pertaining to the trailing cable on a roof bolting machine. .
On November 15, 2006, MSHA Inspector Roger Bennett conducted a spot inspection at
the mine. As part of the inspection he issued a citation regarding the dust collection system on a
roof bolting machine. Coincidentally, the operator had collected a respirable dust sample on the
same roof bolter the day before.

30 FMSHRC 535

When tested, the dust sample showed that the level ofrespirable dust was 7.233 mg/m3,
considerably over the limit of 1.5 mg/m3• As a result, the operator was required to submit five
additional dust samples for the roof bolting machine. The samples were collected on December 4,
5 and 6, 2006. They also exceeded the applicable limit. Consequently, a citation alleging a
violation of the respirable dust standards was issued on December 21, 2006.
To abate the violation, the operator was to submit five more samples which complied with
the standard. When.the operator failed to submit any additional samples by the deadline·set, a
104(b) order, 30 U.S.C. § 814(b), was issued on January 9, 2007. The citation was subsequently
abated and the order terminated on January 24, 2007.
The Respondent contested the five citations and the order and the matter was set for trial.
Prior to the trial, the Petitioner filed an Motion for Partial Summary decision. The motion was
granted to the extent the operator was found to have committed all of the violations. (Tr. 5.)
. In addition, prior to the talcing of evidence, the Respondent withdrew its contest of
Citation No. 9967903, the respirable dust citation, as well as the attendant 104(b) order. (Tr. 6-7 .)
By withdrawing the contest, the citation and order became affinnable without the presentation of
evidence by the Secretary.
Therefore, the issues contested at the trial, and which will be discussed in this decision, are
whether the four remaining violations were "significant and substantial," the level of negligence
involved in the four violations and the appropriate penalty for each of the five violations. The
violations will be discussed in the order issued.

Findin&s of Fact and Conclusions of Law
Citation No. 7251446
This citation alleges a violation of section 75.517, 30 C ..F.R. § 75.517, in that: "The 480
volt cable provided for the No. 2 Joy shuttle car s/n ET 17495 in service in the 002-0 MMU,
contained 2 damaged places in the outer jacket exposing insulated power and ground wires." (Jt.
Ex. 1.) Section 75.517 requires that: "Power wires and cables, except trolley wires, trolley feeder
wires, and bare signal wires, shall be insulated adequately and fully protected."
Inspector Starcher·testified that during his August 2, 2006, inspection of the mine, he
observed that the outer jacket of the cable from the No. 2 Joy shuttle car was damaged in two
places, exposing insulated power and ground wires. (Tr. 14-16.) He said that he was able to.
observe this condition while he was standing over the cable that had been laid out on the mine
floor. (Tr. 56.) He further related that at least one of the damaged areas_had been previously
repaired with tape. (Tr. 56-57.) The Respondent does not contest that this condition violated the
regulation. (Resp. Br. at 2.) In addition, as noted above, I have already found that the violation
·
existed.

30 FMSHRC 536'

Si~ificant and Substantial

The inspector found this violation to be "significant and substantial." A "significant and
substantial" (S&S) violation is described in section 104(d)(l) of the Act, 30 U.S.C. § 814(d)(l), as
a violation "of such nature as could significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard." A violation is properly designated S&S "if,
based upon the particular facts surrounding that violation, there exists a reasonable likelihood that
the hazard contributed to will result in an injury or illness of a reasonably serious nature." Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981)

In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Commission enumerated four criteria
that have to .be met for a violation to be S&S. See also Buck Creek Coal, Inc. v. FMSHRC, 52
F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861F.2d99, 103-04 (5th Cir.
1988), ajf'g Austin Power, Inc., 9 FMSHRC 2015, 2021 ·(Dec. 1987) (approving Mathies criteria).
Evaluation of the criteria is made in terms of "continued normal mining operations." U.S. Steel
Mining Co., Inc., 6 FMSHRC 1573, 1574(July1984). The question of whether a particular
violation is S&S must be based on the particular facts surrounding the violation. Texasgulf, Inc.,
10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
In order to prove that a violation is S&S, the Secretary must establish: (1) a violation of a
safety standard; (2) a distinct safety hazard contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood
that the injury will be of a reasonably serious nature. Mathies, 6 FMSHRC at 3-4.

The inspector testified that he found the violation to be S&S because the 480 volts
conducted by the cable, if contacted by a miner, would cause permanently disabling injuries such
as nerve damage or loss of fingers, if it were not fatal. (Tr. 22.) He stated that the insulation on
the inner wires in the cable is softer and weaker than the outer jacket which is designed to protect
the inner wires that actually conduct the electricity. (Tr. 17.) He opined that even a pinhole·size
hole in the inner insulation would be sufficient to shock a miner if he handled it. (Tr. 18-19.) In
this connection, he said that the cable is regularly contacted by miners in either handling it to
move it, to hang it for the passage of other equipment or by stepping on it to pass over it. (Tr. 1921, 49, 53.) Finally, Inspector Starcher testified that the roadways were wet, increasing the danger
to those handling the cable and that, although provided by the operator, the miners did not wear
rubber gloves, which would have protected them, while working in the mine. (Tr. 18-20, 59.)
The Respondent argues that the Secretary has not shown a reasonable likelihood that this
violation would result in an injury of a reasonably serious nature. The operator points out the
following factors to support this assertion: (1) The inspector did not check the inner insulation for
any holes or damage and, therefore, cannot prove that there were any; (2) There was a ground
fault breaker at the power center which would knock the circuit breaker if a miner came in contact
with an exposed wire and reduce the likelihood of shock; (3) Shuttle car cables are handled less
frequently than continuous miner cables or roof bolter cables; (4) If the damaged area of the cable
were on the reel, a miner could not come in contact with it; and (5) The cable was de-energized at
30 FMSHRC 537

the time the inspector wrote the citation.

. In U.S. Steel, the operator similarly argued that there was no likelihood of serious injury
when the outer jacke.t of a cable was tom, but there was no evidence that the inner insulation had
been:compromised. 6 FMSHRC at 1574. The Commission held that because "the mining
environment is harsh," the "damage to the outer layer of insulation weakened the protection
afforded by the inner layer," thus the "case properly was designated 'significant and substantial' in
that there was a reasonable likelihood that the condition of the trailing cable could contribute,
significantly and substantially, to the cause and effect of a safety hazard." Id. at 1575.
The operator also asserted that a ground fault system in the cable made an injury unlikely.
Holcijng that "[t]he ground fault system is designed to deenergize the trailing cable if a power wire
comes in contact with the ground wire," the Commission approved the judge's :finding that despite
such a system an "electrical shock of some degree could occur." Id. at 1574 n.2.
Citing·U.S. Steel, the Commission has subsequently reaffirmed that the "argument that
reasonable likelihood of injury cannot be established if the record lacks direct evidence of
damaged interior conductors or proof of the existence of exposed, uninsulated wire is inconsistent
with Commission precedent." Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1287 (Dec.
1998). Attempting to distinguish these cases, the Respondent notes that U.S. Steel involved the
trailing cable of a continuous·miner and Harlan Cumberland involved the trailing cable of a roof
bolter, while this case involves the trailing cable of a shuttle car. According to the Respondent,
this is important because "it is well known that roof bolter cables and continuous miner cables are
handled far more frequently than shuttle car cables." (Resp. Br. at 5.) This does not mean,
however, that energized shuttle car cables are not handled in the normal course of mining
operations.

In this case, continued normal mining· operations would have been expected for at least
several more shifts. The company had a policy of inspecting the cables for damage on Tuesday
and Thursday.evenings. (Tr. 126.) The violation occurred on a Wednesday. (Tr. 156.) At least
one shift had occurred since the most recent inspection. None of the company employees had
apparently noticed the damage to the cable, as it was lying on the mine floor, when the inspector
saw it. F4ially, the cable would not have been inspected before it was reeled up and put into use
at the beginning of the next shift. (Tr. 169.)
Talcing all of these factors into consideration, and giving particular weight to the
inspector' s testimony, I find that the Secretary has established a reasonable likelihood that a
serious injury would have resulted from this violation. Accordingly, the violation is "significant
and substanti~I."

Citation No. 7251448
This citation alleges a violation of section 75.605, 30 C.F.R. § 75.605, because:
30·FMSHRC 538

The 480 volt cable provided for the No. 1 shuttle car sin ET
17501 in service in the 001-0 MMU was not clamped to the cable
reel of1he machine to protect the cable from damage and to prevent
strain on the electrical connections. The cable[']s outer jacket had
been pulled thru the restraining clamp exposing insulated power and
ground wires.
(Jt. Ex. 2.) Section 75.605 requires that: ''Trailing cables shall be clamped to machines in a
manner to protect the cables from damage and to prevent strain on the electrical connections."
Inspector Starcher testified that the trailing cable is connected to the shuttle car by
threading the cable through a guide, known as a "doughnut," on the cable reel to the inside of the
reel where it is spliced to wires from the shuttle car. (Tr. 34.) The "doughnut" slides back and
forth on the reel to insure that the cable is wound evenly on the reel. (Tr. 35-36.) The protected
cable is attached to the reel by a restraining clamp to protect the cable from damage and to prevent
strain on the spliced connection. (Tr. 34-36.) During his inspection, the inspector noticed that the
restraining clamp was not attached to the reel and the cable's outer jacket had been pulled through
the clamp, exposing the inner insulated power and ground wires. (Tr. 33, 36.) That this was a
violation of the regulation is not contested by the Respondent. {Resp. Br. at 9.)

Significant and Substantial
Inspector Starcher testified that the violation was S&S because if the cable was not
clamped to the reel, strain would be placed on the wire connections when the cable was reeled in,
possibly severing the spliced connections and creating a shock hazard. (Tr. 40, 79.) In addition, if
there was damage to the inner insulation it could result in electricity being conducted through the
shuttle car so that "the individual that could be walking by that could touch it and be shocked.
The individual that would be sitting on the shuttle car and getting off of it could also be shocked."
{Tr. 65.)
The Respondent points out that the clamp is insulated by a rubber covering or insulated
paint and is located inside the reel which is inside a reel box. (Tr. 64, 140.) Further, ifthe wires
were completely pulled out of the splice the shuttle car would de-energize. (Tr. 66.) Therefore,
the company argues, there is little likelihood that a miner would·come in contact with the bare
wires or that the shuttle could become energized by coming in contact with the bare wires.

In this instance, I find that the operator has the better argument. The Secretary has failed
to demonstrate that the confluence of events necessary to result in a serious ·iajury·is likely.
Accordingly, l find that this violation was not "significant and substantial" and will modify the
citation appropriately.

30 FMSHRC 539

Citation No. 7251449
This citation alleges a violation of section 75.517 in that: ''The energized trailing cable on
the Fletcher twin head roof bolting machine sin 97029, operating in the face of the No. 9 entry on
the 003-0 MMU had the outer protective jacket damaged and the inner insulated conductors were
exposed. The roadways were wet." (Jt. Ex. 3.) Inspector Starcher discovered the damage to the
cable, which was on the left side of the dust box, while it was lying on the floor. (Tr. 45, 72.) As
with the -p revious citations, the violation is not contested. (Resp. Br. at 13.)

Significant and Substantial

In addition to the previously stated reasons he gave for all of the cable violations being
S&S, the inspector testified that the roof bolting machine cable is frequently handled by miners,
either to hang it from the roof during use or to allow for the passage of other equipment. (Tr. 4344.) He noted that roof bolter operators are under pressure to perform their function rapidly and
are, ~erefore, less likely to notice damage to the cable, which-could also be obscured by the dirt
and dust in the area. (Tr. 74, 146.)
The Respondent gave essentially the same arguments for this violation not being S&S as it
did for Citation No. 7251446. For the same reasons that I found that citation to be S&S, I find
that this violation was "significant and substantial." Indeed, the evidence is stronger with regard
to this violation in view of the fact that the roof bolting machine cable is handled more frequently
than the shuttle car cable.
Citation No. 7260338
This cita~on sets out a violation of section 72.630(b), 30 C.F.R. § 72.630(b), because:
The dust collection system provided for the Fletcher roof
bolting machine, serial no. 96044-2005332, in service on the
operatjng 001 -0 MMU, was no~ being properly maintained. The
roof bolting machine was installing bolts in the No. 4 face and drill
dust visible to the eye was exhausting.from the rear of the machine
into the last open cro_sscut. When examined, there was fine white
powdery dust located on the clean side of the filtering system.

(Jt. Ex. 4.) Section 72.630(b) provides that: "Dust collectors shall be maintained in permissible
and operating conditio!l."
·
While conducting a spot inspection of the mine on November 15, 2006, Inspector Roger
Bennett observed a Fletcher roof bolting machine installing roof bolts in the No. 4 face. Drill dust
was "blowing out of the back of the mufflers,, of the machine. (Tr. 88.) The dust was blowing
away from the operator and toward the No. 3 left entry where a miner operator and a shuttle car
operator were working with the bits on the continuous miner. (Tr. 94.) This led the inspector to
30 FMSHRC 540

believe that the dust collection system was not operating properly, so he had the machine stopped
so he could inspect.it. On closer inspection, he found a white, powdery dust behind the dust
filters in an area that was supposed to be clean. (Tr. 89.) The Respondent does not contest that
this was a violation of section 72.630(b). (Resp. Br. at 16.)

Significant and Substantial
Inspector Bennett testified ~t the roof bolter was a designated area for respirable dust
testing in the mine. (Tr. 91.) He further stated that the area was on a lower respirable dust
standard of 1.5 milligrams per cubic meter, rather than the baseline standard of 2 milligrams per
cubic meter, because there was silica from quartz pr~ent. (Tr. 91-i.) Finally, he testified that
drill dust was blowing out of the back of the machine and miners were working down wind of it.
(Tr. 94.) The inspector said that the fact that the inhalation of respirable dust, over time, causes
pneumoconiosis (black lung) or silicosis, incurable lung diseases which result in permanently
disabling conditions, lend him to conclude that the violation was S&S. (Tr. 93.)
In further support of finding this violation to be S&S, the Secretary points out that the dust
samples taken on the same machine the day before turned out to be considerably above the
permissible standard; that the samples taken three weeks later were also out of compliance; and
that it was not until samples taken in the middle of January 2007 that the area was shown to be in
compliance. Therefore, she argues, "since bimonthly samples are to.be considered representative
of exposure levels for the sampling period, it is appropriate to presume that the area was out of
compliance for the entire bimonthly period and that the violative condition of the roof bolter filter
cited in Citation 7260338 contributed to that hazard." (Sec. Br. at 25.)
On the other hand, the Respondent asserts that violation was not S&S because the roof
bolter's ineffeqtive condition could had happened as it was moved from one area to another and
water, designed to absorb dust, splashed.out of the box. Or the water could have evaporated.
Further, the operator argues, th,e miners down wind of the Qolterwere 120 to 140 feet away and
the mine did not have low air readings at the time, decreasing the likelihood of suspe.I)Sion of the
dust in the air. fu all of these scenarios, the Respondent asserts, the exposure to the dust would
have been limited. Finally, the operator notes that inspector did not test the dust blowing out of
the roof bolter for respirable dust.
There is no doubt that a violation of the respirable dust standards, sections 70.100 or
70.101, 30 C.F.R. §§ 70.100 or 70.101, is presumed to be "significant and substantial." US. Steel
Mining Co., Inc., 8 FMSHRC 1274, 1281(Sept.1986); Consolidation Coal Co., 8 FMSHRC
890, 899 (June 1986). This citation, however, does not involve a violation of a respirable dust
standard. Therefore, nothing can be presumed.
Nevertheless, like the dust standards, section 72.630 was promulgated by the Secretary to
protect miners from exposure to harmful respirable dust. Thus, in the introduction to the
promulgation of this rule, the Secretary noted that during drilling, "there is the potential for
extremely high exposures in short periods of time to both miners doing the ... drilling and to
30 FMSHRC 541

other miner8 in the immediate areas. Air Quality Standards for Abrasive Blasting and Drill Dust
Control, 59 Fed. Reg. 8318 (February 18, 1994). The Secretary went on to state that: "The ·
development of silicosis and pneurnoconiosis among underground coal miners has been well
documented, particularly among roof bolters and transportation workers." Id. at 8322 (emphasis
added). Finally, the Secretary set out that "§ 72.630 is a work practice standard that does not
require sampling." Id.
Based on this, I ·find the company's arguments unavailing. I find that the violation
contributed to a discrete health hazar~ silicosis or pnewnoconiosis. I further find that, in the
context of continued normal mining operations, it was reasonably likely that this would contribute
to the development of lung disease no matter how short the exposure. Finally, I find that the
seriousness of these diseases is beyond question. Accordingly, I find that the violation was
"significant and substantial."1
.

Civil Penalty Assessment
The.Secretaryhas proposed penalties of$5,272.00 for these five violations. However, it is
the judge's independent responsibility to determine the appropriate amount of penalty in
accordance· with the six penalty criteria set out in section l lO(i) of the Act, 30 U.S.C. § 820(i).
Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, l151 (7th Cir. 1984}; Wallace Brothers, Inc.,
18 FMSHRC 481, 483-84 (Apr. 1996).

In this connection, I find that the Grassy Creek No. 1 mine is a medium size mine and its
controlling entity, Massey Energy Co.., is a medium size company. (Govt. Ex. 10, Pet. Ex; A.) I
further find that the operator has an average history of previous violations. (Govt. Ex. 10, Pet. Ex.
A.) There is no evidence·that payment of these penalties will adversely affect the company's
ability to remain in business and I so find. Likewise, there is no evidence that the operator did not
demonstrate good faith iri. attempting to abate the violations, with the exception of Citation No.
9967903, so I find that the company did demonstrate good faith. With regard to Citation No.
9967903, it.appears that a 104(b) order, 30 U.S.C. § 814(b), had to be issued shutting down the
roof bolter before the operator brought it into compliance.
Turning to gravity, I find that Citation Nos. 7251446, 7251449, 7260338 and 9967903 are
serious violations that they could have resulted in serious injuries or life threatening illnesses.
Citation No. 7251448, however, was not so serious. Finally, I agree with the inspectors that these
violations were the result of''moderate" negligence on the part of the operator. The violations
were readily apparent to the·inspectors, but obviously had not been observed by the company's
employees. On the other hand, it is clear that the operator was making additional efforts in an
attempt to reduce the number of cable violations.

1

While not necessary to reach this finding, the problems with this particular roof bolting
machine evidenced by Citation No. 9967903, which occurred before and after this violation,
certainly strongly support it.
30 FMSHRC 542 ·

. . Ta1cing all of these factors into consideration, I conclude that the following penalties are
appropriate: · (1) Citation No. 7251446, $524.00; (2) Citation No. 7251448, $100.00; (3) Citation
No. 7251449, $524.00; (4) Citation No. 7260338,. ~p14.00; and (5) Citation No. 9967903,
$3,086.00.

Order

In view of the above, Citation Nos. 7251446, 7251449, 7260338 and 9967903 are
AFFIRMED; Citation No. 7251448 is MODIFIED, by deleting the "significant and substantial"
designation, and is AFFIRMED as modified. White Buck Coal Company is ORDERED TO
PAY a civil penalty of $4,848.00 within 30 days of the date of this decision.

01..bi#~
T. Todd Hodgdon
Administrative Law Judge

Distribution:· (Certified Mail)
Karen M. Torre, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
Arlington, VA 22209-2247
Carol Ann Marunich, Esq., Dinsmore & Shohl LLP, 215 Don Knotts Blvd, Suite 310,
Morgantown, WV 26501
/sr

30 FMSHRC 543

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

June 24, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTJµTION (MSHA),
Petitioner

v.
SCP INVESTMENTS, LLC,
Respondent

CIVIL PENALTY PROCEEDINGS
Docket No. SE 2006-148-M
A.C. No. 40-03268-80642
Docket No. SE 2006-163-M
A.C. No. 40-03268-82949
Old County Quarry
DISMISSAL ORDER

These matters concern 12 citations that were"issued as a result of an inspection of the
Old County Quarry conducted by Mine Safety and Health Inspector (MSHA) Jeffrey Phillips on
December 14, 2005. The Secretary of Labor ("the Secretary") proposes a $1,087 .00 civil penalty
for these citations. The Secretary is represented by counsel. The respondent, SCP Investments,
LLC ("SCP"), is appearing prose.

I. Background
The Old Cmmty Quarry is a rock crushing facility operated by SCP. Pat Stone
is the managing partner of SCP. According to Stone, the mine commenced operations in
September 2005. Section 109(d) of the Federal Mine Safety and Health Act of 1977, as amended
(''the Mine Act"), requires a mine operator to file with the Secretary the name and address ofthe
mine, as well as the name and address of the person who controls the mine. 30 U.S.C. § 819(d).
Consistent with the statutory provisions of section 109(d), Part 41 of the Secretary's regulations
requires mine operators to file a Legal Identity Report Form within 30 days of the opening
of a new mine. 30 C.F.R. §§ 41.10, 41.ll(a).
Section 103(f) of the Mine Act, 30 U.S.C. § 813(f), provides both the miner operator,
and a miners' representative, with the opportunity to accompany a mine inspector during a mine
inspection. At the time of Phillips' December 14, 2005, inspection, SCP had not filed the
required Legal Identity Report Form registering the facility as an active mine. Consequently,
Phillips ordered Stone to leave the mine property rather than allow Stone to accompany him
during the mine inspection.
Before a miner begins working at a mine, section 46.5(b) of the Secretary's regulations
requires not less than 4 hours new miner training, including instruction addressing site-specific
hazards. 30 C.F.R. § 46.5(b). However, miners who have not completed new miner training
30 FMSHRC 544.

may work at the mine if an experienced miner can observe the new ·miner perfonning his work in
a safe manner. 30 C.F .R. § 46.5(a).·· Phillips reportedly ordered Stone off of mine property
because Stone had not received Part 46.5 new miner training. Stone, oii behalf of SCP, objects to
not being allowed to remain on mine property during the inspection. 1.
. As,a threshold matter, "[t]he right to accompany an inspector on all 103 inspections has
been consistently·recognized by the Commission and the courts." Consolidation Coal Co.,
16 FMSHRC 713, 719 (Apr. 1994). The failure to complywithMSHA filing requirements
is not a basis for denying section 103(f) ''walkaround rights." Emery Mining Corporation,
I 0 FMSHRC 276, 277 (Mar. 1988) (failure of a non-employee miners' representative to file
identifying information required by.30 C.F.R. Part·40 does not pennit an operator to refuse the
representative entry to its mine.for purposes of exercising section 103(f) walkaround rights).
Nor is a general good faith belief that an area to be inspected is too dangerous an adequate
justification for denying walkaround rights. Consol. Coal, 16 FMSHRC at 718-19.
II. Show Cause Orders
To detennine whether Stone's statutorywalkaround right was properly denied,
on March 31, 2008, a Show Cause Order was issued requiring the Secretary to identify ·
any regulation that warranted Phillips' denial of Stone's right to observe the inspection.2
30 FMSHRC 341. Specifically, the Secretary was requested to identify any regulation that
supported the denial' ofStone's walkaround rights. In addition, the Secretary was asked to
provide any Interpretive Bulletin or Memorandum addressing her implementation of the
walkaround rights in section 103(f) that justified the denial of Stone's participation.
The Secretary was also requested to identify, by specific reference to her regulations,
the requisite training that must be completed by a miners' representative, or a mine operator,
before he is allowed .to be present' during an inspection. Finally, the Secretary was ordered to
identify, with specificity, the hazards that Stone would have been exposed to if he had observed
Phillips' December 14, 2005, inspection of this surface mine facility.·

1

As ·discussed herein, Part 46 new miner training is not materiai because the issue is not
whether Stone was qualified to engage in mining.· Rather, the issue is whether Stone was eligible
to accompany Phillips on the inspection. Nevertheless, even individuals who have not completed
new miner training are allowed to remain at a mine site if accompanied by an experienced miner.
30 C.F.R. § 46.5(a). As an authorized MSHA iilspector, Phillips possesses the skills of an
·
experienced miner.
2

An Order to Show Cause and a Further Order to Show Cause were issued in this matter.
The Secretary's response to the initial Order is cited as "Sec '.Y Resp." The Secretary's response
to the further Order is cited as "Sec·y Resp. fl"
30 FMSHRC 545

The Secretary's response to the Order to Show Cause was filed on April 21, 2008.
However, the Secretary did not provide the specific information requested. Instead, the Secretary
relied on an inspector~s broad discretion to pre~lude walkaround rights when necessary to protect
the s3fety of miners. Secy Resp. at 7.
Stone' s reply to tlie Secretary's initial response to the Order to Show Cause was filed on
May 5, 2008. Stone related that Phillips denied his request to observe the inspection, that .
Phillips escorted him off of mine property, and that he was denied the opportunity to re-enter the
mine site to retrieve keys that were left in several loaders.
Given the lack of specifics in the Secretary's response to the Order to Show Cause, a
Further.Order to Show Cause was issued on May 8, 2008, requiring the Secretary to specifically
respond to the requested information in order to determine if the denial of Stone' s right to
observe the inspection was an abuse of discretion. 30 FMSHRC _ . A response was filed by the
Secretary on May 29, 2008. The Secretary's response to the requested information is
swnmarized below:
(1) The Secretary should identify the regulations that support Phillips' denial of Stone's
right to observe the inspection.
. The Secretary responded that she is relying on the training requirements set forth
in 30 C.F.R. § 46.5 (new miner training) and 30 C.F .R § 46.11 (site-specific
hazard awareness training).

Secy Resp. llat 1.
(2) The Secretary should provide any Interpretive Bulletin or Memorandum addressing
her implementation of the walkaround rights in section 103(f) that justifies the denial of
Stone's right to be present during the inspection.
The Secretary responded that she is relying on the Interpretive Bulletin set forth at
43 Fed. Reg. 17546 (April 25, 1978). That bulletin interprets Section 103(f) of
the Mine Act, 30 U.S.C. § 813(f), and states, in pertinent part, as follows:
Considerable discretion must be vested in inspectors in dealing with the different
situations that can occur during an inspection. While every reasonable effort will
be made in a given situation to provide opportunity for fullparticipation in an
inspection by a representative of miners, it must be borne in mind that the
inspection itself always takes precedence. The inspector's primary duty iS
to carry out a thorough, detailed, and orderly inspection.

Secy R~sp. II at 1-2 (emphasis added).

30 FMSHRC 546

(3) The Secretary should state whether or not a person who is not a miner, that is selected
by miners as theirauthorized representative, is entitled to section 103(f) walkaround
rights.
The Secretary noted that her regulations regarding representatives of miners,
which implement Section 103(t) of the Act, are set forth in 30 C.F.R Part 40.
Section 40. l(b)(l) defines ''representative of miners" as "[a]ny person or
organization which represents two or more miners at a coal or other mine for the
purposes of the Act[.]"· The Secretary conceded that section 103(f) of the Mine
Act and section 40. l (b)(1) of her regulations traditionally have been interpreted to
mean that a non-miner may be a representative of miners and may participate in
an inspection. See Thunder Basin Coal Co. v. FMSHRC, 56.F.3d 1275, 1278-81
(10th Cir. 1995); Kerr-McGee Coal Corp. v. FMSHRC, 40 F.3d 1257, 1262-65
(D.C. Cir. 1994); Utah Power & Light Co. v. Secretary ofLabor, 897 F.2d 447,
449-52 (10th Cir. 1990).

Sec '.Y Resp. ll at 2.
(4) The Secretary should specify, by specific reference to her regulations, the requisite
training that must be completed before a miners' representative, or a mine operator, is
allowed to be present during an inspection.
·.
The Secretary responded that Section 46.11 requires site-specific.hazard awareness
training "for any person who is not a miner as defined by § 46.2 .. . but is
present at a mine site[.]" MSHA can and normally does require that a miners'
representative receive hazard training under Section 46.11 before being allowed to
participate in.an inspeetion.

Sec '.Y Resp. II at 2.
(5) The Secretary should identify, with specificity, the hazards that Stone would have been
exposed to if he had accompanied Phillips during this surface mine inspection.
The Secretary responded that the specific hazards to which Stone would have been
exposed to if he had been allowed to participate in the inspection are irrelevant
because Phillips was required to act before he began the inspection.
Assuming, for the sake of argument, that the specific hazard~ to which Stone
would have been exposed are relevant, the Secretary relied generally on tlie hazards
posed by the cited .violations such as inadequate toilet facilities and a lack of traffic
signs and signs prohibiting smoking. The Secretary did not cite any meaningful
risk of exposure to hazards.

Sec '.Y Resp. II at 4-5.

30FMSHRC 547

(6) Noting that dismissal is a harsh sanction, the Secretary was requested to suggest what
sanction should be imposed, other than vacating the citations and dismissal of this
proceeding, if Phillips abused his discretion and Stone's section 103(f) rights were
violated.
The Secretary responded that even if~pector Phillips' action with respect to
Stone was an abuse of discretion, dismissal is an impermissible sanction.
The Secretary did not suggest any meaningful alternative sanctions.

Sec '.Y Resp. II at 5.
III. Discussion and Evaluation
a. The Secretary's Regulations
and Interpretive Bulletin
Resolution of whether Stone's section 103(f) statutory right was unjustifiably denied is
found in .the language of the statute. Section I 03(f) of the Mine Act provides, in pertinent part,
"[s]ubjectto regulations issued by the Secretary, a representative. of the operator .and a
representative authorized by his miners shall be given an opportunity to accompany" an
MSHA inspector during an inspection.3 30 U.S.C. § 813(£) (emphasis added). Consistent
with this statutory provision, the Commission has recognized that the walkaround right is a
qualified right that may only be curtailed by.the Secretary's regulations. Consol. Coal,
16 FMSHRC at 718.
However, the Secretary has not proffered any regulation that supports the denial of Stone's
section 103(f) right of accompaniment. In this regard, the Secretary's reliance on Stone's lack
of section 46.5 new miner training, and section 46.11 hazard training, is misplaced. With respect
to section 46.5, significantly, the Secretary concedes miner training is not a prerequisite for
observing an inspection. The Secretary admits non-miners, who are designated as representatives
of miners, are entitled to section 103(f) walkaround rights. Moreover, the issue of miner training
is not material as the issue is not Stone's qualifications to perform mining activities. Rather, the
issue is Stone's right to observe an inspection.

3

Section I 03(f) does not mandate that an inspector must be accompanied by a mine
operator during an inspection. Thus, I am cognizant that the failure of a mine operator to
accompany an inspector is not a jurisdictional bar to the issuance of citations for violations of
the Secretary's mandatory safety standards observed during the inspection. See Emery Mining,
10 FMSHRC at 289. However, section 103(£) provides the "opportunity" for the mine operator
to exercise its right to be present during an inspection. This right cannot arbitrarily be denied.
In other words, the jurisdiction to enforce does not provide a license to abuse.
.

30 FMSHRC 548

Similarly, the Secretary cannot find support for Phillips' actions in her hazard training
regulation. Section 46.l l(f) provides:

Site-specific hazard awareness training is not required for any person who is
accompanied at all times by an experienced miner who is familiar with hazards
specific to the mine site.
30 C.F.R. § 46.l l(f) (emphasis added).
Surely, Inspector Phillips is a qualified, "experienced" mining official who is well aware
of mine safety issues. Thus, contrary-to the Secretary's assertion, hazard training is not required
if the walkarotmd person is accompanied by an experienced·miner. fu reaching this conclusion,
I am not trivializing the importance oftraining. However, Stone's lack of training under these
circumstances did not justify the denial of his right to accompany the inspector.
Finally, the Secretary' s relevant publicized interpretive memorandum states that
"every reasonable effort" to provide the opportunity for "full participation in an inspection" shall
be afforded to section 103(f) walkaround participants. See 43 Fed. Reg. 17546. Contrary to the
Secretary's policy, the denial ofStone~s right to observe the inspection under the circumstances in
this case lacked a concerted effort to encourage full participation.
b. Specific Hazards
The Commission has noted that Congress did not curtail walkaround rights in
dangerous situations, even during inspections seeking to determine if an imminent danger exists.
Consol. Coal, 16 FMSHRC at 718. Thus, a general belief that an area to be inspected is too
dangerous is not an adequate justification for denying walkaround rights. Id. at 718-19.
However, in extraordinary circumstances, the Secretary retains the right to preclude·participation
in inspections "where necessary to protect the safety of miners" because of discrete safety hazards.
Id. at 719.
The hazards associated with the cited conditions in the subject citations, that are relied on
by the Secretary to justify Phillips' action, posed no significant danger to Stone. For example, the
health and safety hazards created by no on-site toilet facilities, inadequate guarding, an absence of
traffic signs, a lack of' 'no smoking" signs, and fire extinguishers that were not periodically tested,
clearly did not present any w alkaround dangers. Jn the absence of any extraordinarily hazardous
conditions, the Secretary has not presented a rational basis for the denial of.Stone~s walkaround
right. Rather, it is apparent that the denial of Stone's walkaround right primarily was predicated
on SCP's failure to timely file a Legal Identity Report, rather than dictated by a concern for
Stone' s safety. Accordingly, there are no adequate safety concerns that support the denial of
Stone' s walkaround right.

30 FMSHRC 549

c. Abuse of Discretion
The broad discretion accorded inspectors with respect to how they conduct inspections
must be balanced with the fundamental right of a mine operator to be present during an
inspection. While the decision to allow walkaround rights is committed to the broad discretion of
an inspector, his discretion is not unfettered and may not be abused. The Commission has noted
that an "abuse of discretion" occurs when "there is no evidence to support the decision or ifthe
decision is based on an improper understanding of the law." Energy West Mining Co.,
18 FMSHRC 565, 569 (April 1996) (citations omitted).
Phillips' reported belief that Stone's lack of section 46.5 new miner training rendered him
ineligible to observe the inspection is a misunderstanding of the law. As the Secretary concedes,
even non-miners have section 103(f) walkaround rights. Moreover, the Secretary's reliance on
Stone's lack of site-specific hazard training is undermined by the provisions of section 46. l l(f)
that allow Stone to participate in the inspection without hazard training if he is accompanied by a
qualified and experienced person.
Finally, contrary to the Secretary's assertion, the fact that a mine inspector may not have
knowledge of site-specific hazards prior to an inspection is not a basis for denying walkaround
rights to representatives of miners or mine operators. Although Phillips may not have been
familiar with the site-specific hazards at the Old County Quarry rock crushing facility before he
began his inspection, he is a qualified mine inspector with the expertise to identify and avoid
exposure to mine hazards. Any other conclusion would disqualify mine inspectors from
conducting inspections when they are unfamiliar with mine specific hazards before entering a
mine. Thus, site-specific hazard awareness was not a prerequisite for Stone to accompany Phillips
during the inspection.
d. Appropriate Sanction
The cited violative conditions have been corrected and the subject citations have been
terminated. Consequently, there are no unresolved continuing safety issues. I believe this is a
matter of first impression. I am cognizant that dismissal is a harsh sanction. However, a mine
operator's right to accompany an inspector must not arbitrarily be denied. The mine inspector's
abuse of discretion in this matter requires my exercise of discretion. For to do nothing would be
art abuse of my discretion.
Commission Rule 55(h) authorizes the judge to.make decisions in the proceedings
before him. 29 C.F.R. § 2700.55(h).. Under these circumstances, vacating the subject citations
and dismissing these proceedings is an appropriate sanction. Dismissal should deter future
unwarranted denial of a mine operator's walkaround right. Consequently, the subject l 04(g)( I)
order and 104(a) citations will be vacated without prejudice. The Secretary may reissue the
citations if the actions taken to abate the citations are rescinded, or, if the cited conditions
otheiwise remain unabated.

30 FMSHRC 550

ORDER
In view of the above, IT 1$ ORDERED that 104(g){l) Order No. 6122908 and 104(a)
CitationNos. 6122909,6122910,6122911, 6122912, 612291 3,6122914, 6122916, 6122917,
6122918 and 6122919 in Docket No. SE 2006-148, a,nd, 104(a) Citation No. 6122915 in
Docket No. SE 2006-163 ARE VACA.TED without prejudice. rt IS FURTHER ORDERED
that the captioned civil penalty proceedings ARE DISMISSED.

Jerold Feldman
Administrative Law Judge
Distribution: .(Regular and Certified Mail)
Christian P . Barber, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219
Pat Stone, SCP Investments, ~LC, P .0. Box 82, Crab Orchard, TN 37723
/rps

30 FMSHRC 551

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-84+35n/FAX 303-844-5268

June 25, 2008
TEMPORARY REINSTATEMENT
PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINrsTRATION (MSHA),
on behalf of DANIEL R. BRUSCA,
Applicant

Docket No. WEST 2008-1099-D
MSHA No. DENV 2008-07

v.

Foidel Creek Mine
Mine LD. 05-03836

TWENfYMILE COAL COMPANY,
Respondent

DECISION AND ORDER DENYING TEMPORARY REINSTATEMENT

Appearances:

Lydia Tzagoloff., Office of the Solicitor, U.S. Department of
Labor, Denver, Colorado, for Applicant;
R. Henry Moore, Esq., Jackson Kelly PLLC, Pittsburgh,
Pennsylvania, for Respondent.

Before:

Judge Manning

This case is before me on an application for temporary reinstatement brought by the
Secretary of Labor on behalf of Daniel R. Brusca against Twentymile Coal Company
(''Twentyrnile") under section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. §815(c)(2) (the ''Mine Act"). The application was filed on or about May 30, 2008 and
Twentymile requested a hearing within ten days of receipt of the application. The application
alleges that Twentymile discriminated against Brusca when he was terminated from his
employment on March 20, 2008. The application states that the Secretary determined that the
underlying discrimination complaint filed by Brusca was not frivolously brought. A hearing in
this temporary reinstatement proceeding was held on June 17, 2008, in Denver, Colorado. For the
reasons set forth below, I find that the applicant did not establish that Brusca's discrimination
complaint was not frivolously brought.

I. SUMMARY OF THE EVIDENCE
Twentymile's Foidel Creek Mine is a large, underground coal mine in Routt County,
Colorado. Daniel Brusca started working at Twentymile in June 1997 as a mechanic on the
longwall crew. He eventually became a belt maintenance lead man with the responsibility to
supervise a belt maintenance crew: He received work assignments from his supervisor and gave
30 FMSHRC 552

those assignments to the members of his crew. He aJso worked with the crew and was
responsible for their safety. The belt maintenance crew repaired rollers, maintained motors and
performed other tasks. As a lead man, Brusca performed much of the maintenance himself.
Brusca's immediate supervisor was Shawn Brown who was responsible for aJl of the belt
maintenance crews. Brown's supervisor was Ed Brady, the conveyance manager.
Brusca testified that in early March 2008, Brown asked him to perform a dangerous task.
His crew was asked to change out a 500 ·h orsepower motor for the drive belt. He was told to take
a Ford tractor and open the equipment doors in the roadway, put the tractor in between the
equipment doors and a stopping, close the doors behind the tractor, and tear out enough of the
stopping to pull the motor with the winch on the tractor out of the drive area into the crosscut
between the belt line and the roadway. Brusca asked Browri how he was to provide ventilation to
operate a piece of diesel equipment in the crosscut with the doors closed behind it and only"part
of the stopping removed. According to Brusca, Brown replied, "I know what I would do, but I
can't tell you." (Tr. 20). Brusca took that to mean that Brown wanted him to "just do whatever
he had to, illegal or not, to get this job done." Id. Brusca then told Brown that there would be no
ventilation in 'the crosscut with the doors closed behind it, even with the stopping partially
removed, because there would not be enough air in the belt line as it passes by the tractor. When
he asked Brown how he was supposed to provide ventilation for the tractor, Brown again replied
that he knew what he would do. Brusca admitted that he assumed that Brown was implying that
he should do something illegaJ. (Tr. 50).
Because Brusca believed that operating the tractor between the equipment doors and the
stopping would fill the.air with-exhaust fumes, he kept the tractor in the roadway, put the motor
on a skid and used cables:to pull it out. His crew could not complete the job before the end of
the shift. Brusca believes that BroW11 was "aggravated" by his actions. (Tr. 21 ). According to
Brusca, Brown "acted like, here we go again, here is Brusca refusing to do something again,
bringing up safety issues." When Brusca returned to the mine on his next scheduled shift, the
motor had been replaced but he believes that someone had operated the tractor between the
partial stopping and equipment doors to complete the job.
Brusca aJso testified that in late February 2008, he was holding a safety meeting with his
crew at the beginning of the shift. It was a required meeting under company policy. The meeting
was being held in the break room on the second floor of the weld shop. Brusca testified that
Brady came into the weld shop and told everyone "to get up from the table and get to work." (Tr.
22). Brusca said that Brady did not come over to see what they were doing, he just told them to
get to work. From Brady's position, he would not have been able to tell what they were doing.
(Tr. 59). The crew finished the safety meeting before getting up and getting their tools to·start
their maintenance duties.
Brusca testified that sometime in February 2008 his crew was working in the area of the
Two North Main Belt when crew member Nate Weesner got rock dust in his eye. On the way
out, Brusca and his crew went to the main surface building at the mine, known as the "operations

30 FMSHRC 553

center," so that Weesner could wash out his eye. While he was doing that, Brusca and crew
member Rupard Carnahan had a cup of coffee in the operations center.· Ed Brady came by and
told Bruscato get to work. When Brusca told Brady that they were there because Weesner got
rock dust in his eye, Brady "acted like he didn't believe that, that we were out there goofing off."
{Tr. 24). Brusca said that he waited for Weesner rather than return to the weld shop because it
would not take very long for Weesner to wash out his eye. (Tr. 61-62).
Later in February 2008, Brusca was called into Brown's office for a "pre-evaluation
meeting.~' Brown told Brusca that the company was thinking of replacing him as the lead man
and asked him if he wanted to continue as the lead man. Brusca replied that he did. According
to Brusca; Brown told him that he should not be holding safety meetings at the start of the shift
because they·were a waste of time.· He told B,rusca that these meetings were "just an opportunity
for people to have a snack out of their lunch box, and that also my crew didn't need to be out in
the operations center taking a break." (Tr. 24). Brusca testified that bis safety meetings usually
lasted about ten minutes and that Twentymile's safety director encouraged such meetings. (Tr.
24, 66-67). Some of the men ~ooked.up breakfast during the meeting as well. Brusca believes
that other crews do the same thing. {Tr: 69). Ron Spangler, the human resources director .at the
mine, testified that pre-evaluation meetings are often held when an employee is being asked to
improve his performance so that he can try to change his behavior before the actual performance
evaluation. (Tr..94-95).
Brusca told Brown that, according to the poster in the hallway at the operations center,
employees are entitled to a ten-minute break between the start of shift and their lunch period and
again.between the ~unch period and the end of the shift. Brown replied that the company does
not have such a policy. Brusca assumed that the information on the poster applied to the
company's operations. Spangler stated that the language of the poster in the hallway that relates
to mid-morning and mid-afternoon breaks does not apply to mining and the poster specifically
lists those ind~stries that it covers. (Tr. 95-96). , .
Brusca also testified about safety issues that had arisen in prior years. During one
incident that occurred about three years earlier, his crew was assigned to fabricate new guards for
a conveyor (lrive. He went into the weld shop and, when he saw that it was unusually messy,
assigned his crew to w:ork on getting the shop in better condition. The back door was falling off
its hinges and a large, heavy cooling skid was sitting on top of two saw horses. He had his crew
work to secure the skid and Brusca was planning to fix the back door. Brady arrived and asked
Brusca why,the crew was not fabricating new guards for the conveyor, as assigned. (Tr. 28).
Brusca responded that he had to get the weld shop in better shape first anq.that the cooling skid
was in s~ch a precarious position that it could fall and injure someone. The.shop was about 60
feet wide and 100 feet long. (Tr. 58). Brusca testified that Brady got very angry and accused
Brusca of always doing whatever he wanted to do and ignoring job assignments given to his
crew. Brusca responded that the crew would work on the guards as soon. as they took steps to
make the workplace safe. He also told Brady that the crew used wire to hold the existing guards
in place so there was no immediate safety hazard. (Tr. 54-56). Brusca attends the foreman's

30FMSHRC 554

meeting every morning and he brought up the unsafe condition of the cooling skid at the meeting
the following morning. Several managers went over to the shop to look at the cooling skid after
the meeting and "nobody was denying that these were safety issues." (Tr. 30). Brusca said that
he was told that he should not have brought up the issue at the foreman' s meeting. Brusca
testified that his relationship with Brady deteriorated after this incident.
About a year later, as Brusca's crew was finishing up replacing a hydraulic motor, a shift
foreman stopped by and asked Bruscato look at a solenoid valve at the Four Main North head
roller. Brusca got a replacement solenoid valve and the crew went to that area. Brusca' s
message light flashed and, when.he returned the call to Brady, Brady became angry because the
crew was replacing the solenoid rather than working on the antifreeze system on the top of the
coal belt, as assigned. Brusca explained that the antifreeze system could not be worked on while
the belts were operating. (Tr. 32). Later, .Brady called back and asked why the crew was taking
so long to change out the solenoid switch. Brusca explained that it would not be safe to rush the
job. Apparently, Brady had been watching the crew from a monitor in the control room. A
camera had been installed in the area to· monitor the conveyor system. It bothered Brusca that
Brady had been watching him to make sure he was not goofing off. It took his crew a few hours
to change the solenoid. {Tr. 52). Brusca said that he was trying to finish the job before the crew
went to lunch. Id. Brusca complained to Mike Ludlow, the mine manager, that it was a ·
dangerous practice for Brady to call people on the mine phone to try to rush them on a job.
Although Ludlow said he would·look into the matter, Brusca never heard back from Ludlow.
Dean Moore, who was a member of Brusca' s crew, was out on medical leave because of a
hernia operation. On the evening of March 13, Moore drove to the mine with his brother, who
was not a Twentymile employee. He walked into the weld shop and started talking to Brusca.
Brusca testified that he asked Moore ifhe was working that night and he replied that he was there
to get his dirty clothes from the bath house. Brusca also testified that he was about to tell Moore
that he could not be in the shop without his personal protective equipment ("PPE") when Pat
Sollars walked in and ordered Moore and his brother to leave the property. Sollars is the
maintenance manager for Twentymile. Brusca was not concerned for the immediate safety of
Moore and his brother because no work was being performed in the shop, but he was aware that
they were not wearing any PPE, including a hard hat. Brusca knew that PPE must be worn in the
shop. Moore was wearing his street clothes. Brusca testified that he has seen Brady in the weld
shop without a hard hat on several occasions. (Tr. 69).
On March 15, Sollars asked Bruscato go to the conference room with him and Brown.
Sollars asked Brusca what Moore was doing at the weld shop on the eveniiJ.g of the 13th. Brusca
said that he had just started talking to Moore when Sollars came in and ordered Moore to leave.
Brusca testified that Sollars acted like he did not believe him and that Brusca knew more than he
was telling. (Tr. 39). Sollars became angry and told Brusca that he was not doing an "adequate
job and that people don't like to work around [him] and [his] crew." Id. The conversation
continued with Sollars asking more about Moore's presence at the mine. Brusca told Sollars that
Weesner saw Moore soon after he arrived at the mine and told Weesner that Brusca was in the

30 FMSHRC 555

shop. Sollars then asked Brusca, "has Nate [Weesner] been infected with the cancer yet?" Id.
Brusca did not like being referred to as a "cancer'' and he did not reply. Sollars told Brusca that
the company wanted to find another lead man for his crew but that it would not be easy because
nobody wanted to work with him.
The following Monday, March 17, Brusca talked to Ludlow about the meeting with
Sollars. Ludlow said that he would talk to Sollars when he returned to work. Ludlow then asked
Brusca if he had clocked in at the mine when he drove to the town of Craig to attend annual
refresher training on March 12. He replied that he did and that he had the right to be
compensated for any additional costs he incurred in attending a training session that was not held
at the mine. (Tr. 41). Brusca testified that he had clocked in under similar circumstances the
previoJlS year and so had Carnahan.and Moore. Brusca testified that he ·d id not know how to ask
for a mileage allowance for the trip to Craig. Carnahan rode with him to Craig on March 12 and
he also clocked in at the mine. Other miners were paid for ten hours of work while attending the
training class, but 13rusca and Carnahan sought pay for an extra two hours and fifteen minutes
that day. A payroll clerk noticed the discrepancy. Brusca's pay was $29.50 an hour. He made
two dollars an hour more that he otherwise would have because he was a lead man.
Mr. Spangler testified that Sollars told him that he was working late one evening when he
saw a personal vehicle traveling at a high rate of speed entering a restricted area of the mine. He
looked for another supervisor and went to investigate. Sollars told Spangler.that he found Moore
in the weld shop talking to Brusca and he saw that neither Moore nor the person with him was
wearing PPB. Sollars told both men to immediately leave the mine. Mr. Moore was
subsequently terminated from his employment in part because he had been in the weld shop
without PPB. (Tr. 85). Spangler also testified that a payroll clerk showed him Brusca's time
records for March 12 because everyone else worked ten hours that day. Brusca and Carnahan
had logged two and a quarter more hours than everyone else without authorization. (Tr. 85).

A. little later on March 17, Brusca was asked to attend a meeting with Ludlow, Brown,
and Spangler. He was told that the company was not pleased with his performance, especially
with respect to two recent incidents. fu the first incident, the company alleged that, as a
~upervisor, Brusca should not have allowed two people to enter the weld shop on March 13
without wearing PPE. He replied that he had not yet had the time to address the issue concerning
the lack of PPE with Moore. (Tr. 86). Spangler did not believe Brusca on this issue and he felt
that Brusca had more than enough time to tell Moore to leave or put on PPE. As the lead man, it
was Brusca's responsibility to make sure that anyone who was obviously not wearing PPE either
left the area or went to get PPE. (Tr. 104).
With respect to the incident involving the time card, Brusca told Spangler that he should
have }?e~n paid mileage for the trip to Craig. Spangler testified that Brusca figured that he·would
try to get more hours instea4 ''to see if I got caught." (Tr. 86). Spangler' s impression is that
Brusca knew that he was not entitled to the extra hours and he was "trying to slip something
through." Id. Brusca would have been reimbursed for mileage ifhe had·asked for it. (Tr. 112).

30 FMSHRC 556·

Over the previous few years a number of people at the mine had told Spangler that Brusca ''took
advantage of the company" and he was difficult to work with. (Tr. 78-79). Spangler considered
Brusca's actions to be stealing from the company and he testified that he has terininated other
people for misrepresenting their hours on their time cards. Spangler checked the payroll records
and discovered that Brusca took an extra 45 minutes to attend a meeting in Craig the previous
year. Mr. Carnahan, who also claimed over two extra hours for attending the March 12, 2008,
meeting, was disciplined for the incident but he was not terminated because he merely followed
the lead ofBrusca, his supervisor, and he was scheduled to retire in June 2008. (Tr. 89).
Spangler testified that following the meeting on March 17, he determined that Brusca
should be terminated from his employment. Before Spangler told 'his boss ·of this decision, he
talked to other supervisors and managers to gather their thoughts as to Brusca' s overall job
performance so be could develop a "balanced view'' ofBrusca. (Tr. 91). Brady was not
available because be was on vacation.
He also reviewed Brusca's personnel files. There had been an incident a few years earlier
in which people were placing derogatory and obscene graffiti on equipment at the mine. Tom
Bulger' s belt crew was attacked in this graffiti. Bulger told Spangler that he was convinced that
Brusca and his crew were the culprits. (Tr. 77). Although Spangler could never establish that
Brusca was directly involved, Brusca was counseled about the matter and the graffiti stopped.
(Tr. 78-81, 105-06). Spangler believed that Brusca misrepresented what had happened. (Tr.
107-08). During the investigation of this incident, two miners told him that they were available
to work overtime wtless they had to work with Brusca. (Tr. 79).
Spangler testified that he made the ultimate decision to tenninate Mr. Brusca based on the
two incidents,. discussed above. (Tr. 92). Brusca failed to address the obvious PPE issue in the
weld shop and he falsified his time sheet. Spangler also considered the "marginal performance
over time that Mr. Brusca had demonstrated." (Tr. 93). Sparigler testified that he did not know
that Brusca had complained about safety or that a supervisor told Brusca that morning safety
talks are a waste of time. In addition, Spangler did not know about the incidents involving the
tractor in the airway or the repair of.the solenoid on a head roller. He was also not aware of the
incident in which Brady came iiito the weld shop while the crew was having a safety meeting and
told everyone to get to work. (Tr. 97-98). Finally, Spangler testified that he knew nothing about
the earlier incident in which Brusca delayed fabricating new guards for the conveyor system until
he took steps to make the weld shop safer to work in. (Tr. 98). "There was never an issue
brought to my attention·as to any of the safety elements that have been talked about today [at the
hearing] . . . ." (Tr. 94, 100). Spangler was only told that Brusca was taking advantage of the
company and that he was difficult to work with. (Tr. 93-94, 101-02).

II. DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW

30 FMSHRC 557

Section 105(c)(2) of the Mine Act prohibits discrimination against miners for exercising
any protected right under the Mine Act. The purpose of the protection is to encourage miners "to
play an active part in the enforcement of the [Mine] Act'' recognizing that, "if miners are to be
encouraged to be activ~ in matters of safety and health, they must be protected·against any
possible discrimination which they might suffer as a result of their participation." S. Rep. No.
181, 95th Cong., }51 Sess. _35 (1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95lh Cong., 2nc1 Sess., Legislative History ofthe Federal Mine Safety and
Health Act of 1977 at 623 (1978) ("Legis. Hist.'').
Section 105(c)(2) provides, in pertinent part, that the Secretary shall investigate each
complaint of discrimination "and if the Secretary finds that such complaint was not frivolously
brought, the Commission; on an expedited basis upon application ofthe Secretary, shall order the
immediate reinstatement of the miner pending final order on the complaint." The Commission
established a procedure for making this determination at 29 C.F.R. § 2700.45. Subsection (d)
provides that the "scope of a hearing on an application for temporary reinstatement is limited to a
determination as to whether the miner's complaint was frivolously brought."
''The scope of a temporary reinstatement proceeding.is narrow, being limited to a
determination by the judge as to whether a miner' s discrimination complaint is frivolously
brought." Secretary ofLabor on behalfofPrice v. Jim Walter Resources, Inc. , 9 FMSHRC
1305, 1306 (Aug. 1987), affd sub no_m. Jim Walter Resources Inc. v. FMSHRC, 920 F.2d 738
(11th Cir. 1990). Courts and the CommJssion have equated the "not frivolously brought" .
standard contained in section105(c)(2) of the Mine Act with the ·~reasonable cause to believe
standard" at issue in Brock v. Roadway Express, Inc., 481 U.S. 252 (1987). It has also been
equated with "not insubstantial.'' Jim Walter Resources, 920 F.2d 'a t 747. Congress indicated
that a complaint is not frivolously brought if it "appears to have merit." (Legis. Hist. at 624-25).
A miner alleging discrimination under the Mine Act .establishes a prima facie c·ase of
prohibited discriminati~n_ by presenting evidence sufficient to support a conclusion that he
engaged in protected activity and suffered adverse action motivated in any part by that activity.
Secretary ofLabor on behalfofPasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-800
(October 1980), rev'd on other grounds, 663 F.2d 1211 (3d Cir. 1981); Secretary ofLabor on
behalfofRobinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981 ); Driessen v.
Nevada Gold.fields, Inc., 20 FMSHRC 324, 328 (Apr. 1998). The mine operator may rebut the
prima facie case by showing either that no protected activity occurred or that the adverse action
was in no part motivated by the protected activity. Pasula, 2 FMSHRC at 2799-800. If the mine
operator cannot rebut the prima facie case in this manner, it nevertheless Q1ay defend 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. Pasula at 2800; Robinette, 3 FMSHRC at 817-18; see
also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987).
It is rare to find that the link between an adverse action and the protected activity can be
established exclusively by direct evidence. Usually the administrative law judge must look for

30 FMSHRC 558

circumstantial evidence to draw an inference regarding the operator's motivation for the adverse
action. The Commission has set out some guidelines for determining motivation.
We have acknowledged the difficulty in establishing a motivational
nexus between protected activity and the adverse action that is the
· subject of the complaint. "Direct evidence of motivation is rarely
encountered; more typically, the only available evidence is
indirect." Secy ofLabor on behalfof Chacon v..Phelps Dodge ·
Corp., 3 FMSHRC 2508, 2510 (November 1981), rev'd on other
grounds, 709 F.2d 86 (D.C. Cir 1983). "Intent is subjective and in
many cases the discrimination can be proven only by the use of
circumstantial evidence.'-' Id. (citation omitted). Jn Chacon, the
Commission listed some of the more common circumstantial
indicia of discriminatory intent: (1) knowledge of the protected
activity; (2) hostility or animus toward the protected activity; (3)
coincidence in time between the proteeted activity and ·the adverse
action; and (4) disparate treatment of the 'Complainant.

Secy ofLabor on behalfofBaier v. Durango Gravel, 21 FMSHRC 953, 957 (Sept. 1999).
Applicant provided many examples of what he considered to be protected activity. About
three years ago;·Brusca and his crew attempted to make the weld shop safer before fabricating
new guards for a conveyor drive. Although Brady became angry when he entered the shop
because the crew had not ·started working on the new guards, there was no adverse action taken
against Brusca. Although -c omments were made by management, he suffered no disciplinary
actions. fu addition, there was no coincidence in time between the alleged protected activity and
Brusca's tennination from employment.
About two years ago, Brusca and his crew were working to replace a solenoid valve on a
head roller. When Brady found out that Brusca was taking what he considered to be a long time
on this work, he ·became angry and he apparently kept an eye on Brusca with the camera that had
been installed in the area. Again there was no adverse action taken and there was no coincidence
in time. Moreover, it does not appear that protected activity was involved in this·incident.
As described above, Brusca was holding a safety meeting at the beginning of the shift ·
sometime in February 2008, when Brady came into the weld shop and told everyone to get to
work. There is no direct evidence that Brady knew that the crew was discussing safety issues.
He just saw that the crew was sitting around atable. It can be inferred that Brady knew that
Brusca often talked about safety at the beginning of the shift. Brady exhibited some animus
toward this protected activity, but it appears that Brady believed that the crew was goofing off
rather than discussing safety issues. Brusca completed the safety meeting before the crew started
their assigned tasks. The training materials that Brusca used during the·meeting were provided
by Twentymile's safety director. (Tr.24, 66-67).

30 FMSHRC 559

The incident involving Brusca and Carnahan getting a cup of coffee in the operations
center sometime in February 2008 while Mr. Weesner washed his eye out does not involve
protected activity. Brady apparently believed that the entire crew did not have to follow Weesner
around while he took care of his eye; .
Brusca alleges that during his pre-evaluation meeting with Brown sometime in late
February 2008, Brown criticized him for holding safety meetings at the start of his shift because
they were a waste of time. Brown characterized these meetings as an .opportunity for the crew to
take a break. Holding legitimate safety meetings at .the start of a shift can be characterized as
protected activity. If the meetings are in reality a sham then they would not be protected. For
purposes of this temporary reinstatement case, I assume that the meetings.were legitimate and
were protected under the Mine Act. Brown displayed hostility or animus toward these meetings
during Brusca's pre-evaluation. There was al.so a coincidence in time between the pre-evaluation
meeting and Brusca' s termination.
The final incident that the Applicant relies upon to make a case arose in early March 2008
when Brusca was told to change out a motor for a drive belt. He removed the motor in a manner
that was different from what Brown had instructed. He removed the motor in a manner that did
not expose the ·crew to diesel exhaust. Brusca testified that he believed that Brown was angry
that he did not follow his explicit instructions when he removed the motor. For the purposes of
this temporary reinstatement proceeding, I assume that Brusca was concerned with .the health of
his crew when he removed the motor using.cables rather than placing the tractor.between the
equipment doors and the stopping. Such activity would arguably be protected under the Mine
Act. I also accept Brusca's testimony Ulat Brown displayed some hostility toward his actions.
There was a coincidence in time between this event and his discharge from employment.
The record makes clear that the company's human resources director made the decision to
tenninate Brusca. Spangler based his decision on three factors. First, he accepted the
chronology of events that Sollars described to him for the incident that occurred in the weld shop.
Sollars advised Spangler that Brusca had allowed Moore and Moore's brother to remain in the
weld shop without any PPE, including a hard hat. Sollars believed that Moore and his brother
had been.in the shop for some length of.time before he arrived. Spangler did not believe
Brusca's ren<,lition of.the events because it was inconsistent with what Sollars had told him. As a
lead man, Brusca was a supervisor and he should not have been holding a conversation in the
weld shop with people who were not wearing any PPE.
The s~ond factor Spangler relied upon was Bruse.a ' s misrepresen~tion on his time sheet
that he worked more than twelve hours on March.12, the date of the annual refresher training in
Craig, Colorado. Spangler believed that Brusca's attitude showed that he had tried to slip the
extra time through without getting caught. This misrepresentation was consistent with the
information Spangler had previously received that Brusca was often not totally honest. Brusca
never asked if be could add the extra time to attend the training and he did not ask how he could
be reimbursed for the mileage to Craig. Craig is about 40 miles from the mine. The Secretary's

30 FMSHRC 560

training regulations require mine operators to pay for miscellaneous expenses, including mileage,
when training is held away from the mine. 30 C.F.R. §48.lO(b). Spangler determined that
Brusca had deliberately falsified his tirile sheet and this action amounted to a theft of company
property. Other miners have been terminated for similar actions.
Finally, as discussed above, Spangler took into consideration Brusca' s perceived
reputation for being difficult to work with and for not being forthright. Spangler remembered the
problems with graffiti at the mine and thought that Brusca had been directly involved. Spangler
concluded that Brusca's behavior with respect to the two incidents that led to his dismissal was
consistent with his past behavior at the mine.
The evid~ce presented at the hearing clearly demonstrates that Twentymile's stated
reasons for terminating Brusca were not pretextual. Spangler considered Brusca's falsifying of
his time sheet to be a very serious matter. Spangler also credited the statements of Sollars that
Brusca allowed Moore and his brother to remain in the weld shop while wearing street clothes
without any PPE. Spangler explicitly denied that he had any knowledge of the safety issues
raised by Brusca that were described in this temporary reinstatement case. Spangler's testimony
was entirely credible. It is important to note that Carnahan was also disciplined for the time
sheet incident and Moore was discharged in part for being in the weld shop without PPE.

As stated above, Brusca testified that Brown and Brady displayed hostility toward the
safety meetings, but the evidence shows that this hostility arose out of their frustration that he
was slow to get his assigned work completed rather than hostility toward legitimate safety
meetings. There is no evidence that Twentymile discourages safety discussions. Indeed, the
evidence shows that safety meetings are encouraged. More importantly, Spangler testified that
he had no knowledge of these events when he made the decision to terminate Brusca from his
employment at Twentymile. I recognize that a mine operator may try to deliberately insulate the
person making the decision to terminate an employee in order to mask the true, discriminatory
reason for the discharge, but I can draw no inference from the evidence, including circumstantial
evidence, that there was a hidden motive in this case or that Brusca was tenninated for activities
protected under the Mine Act.
Based on the above, I find that the Secretary did not meet her burden to establish that
there is reasonable cause to believe that Brusca was terminated for protected activities. This case
does not appear to have merit and was therefore "frivolously brought."

30FMSHRC 561

m. ORDER
The Secretary of Labor's application for the temporary reinstatement of Daniel R. Bnµ;ca
is DENIED and this temporary reinstatement proceeding is DISMISSED.

Richard W. Manning
Administrative Law Judge
Distribution:

Lydia Tzagoloff, Esq., Office of the Solicitor, U.S, Department of Labor, P.O. Box 46550,
Denver, CO 80201-6550 (Fax 303-844-1753 and Certified Mail)

R. Henry Moore, Esq., Jackson Kelly PLLC, lbree Gateway Center, Suite 1340, 401 Liberty
Avenue, Pittsburgh, PA 15222 (Fax 412-434-8062 and Certified Mail).

RWM

30 FMSHRC 562

ADMINISTRATIVE LAW JUDGE ORDERS

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

May8, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

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

v.

SCP INVESTMENTS, LLC,
Respondent

Old CountY Quarry

FURTHER ORDER TO SHOW CAUSE
These matters concern 12 citations that were issued as a result of an inspection of the
Old County Quarry cond~cted by Mine Safety and Health Inspector (MSHA) Jeffrey Phillips on
December 14, 2005. The cited violative conditions have been corrected and the subject citations
have been terminated.
The Old County Quarry is a rock crushing facility operated by SCP Investments, LLC
("SCP"). Pat Stone is the managing partner of SC~. According to Stone, the mine commenced
operations in September 2005. Section 109(d) of the Federal Mine Safety and Health Act of
1977, as amended ("Mine Act"), requires a mine operator to file with the Secretary of Labor
("the Secretary'') the name and address of the mine, as well as the name and address of the person
who controls the mine. 30 U.S.C. § 819(d). Consistent with the statutory provisions of section
109(d), Part 41 of the Secretary's regulations requires mine operators to file a Legal Identity
Report Form withtn 30 days of the opening of a new mine. 30 C.F.R. §§ 41.10, 41.1 l(a).
At the time of Phillips' inspection, SCP had not filed the required Legal Identity Report
Form registering the facility as an active mine. Consequently, on December 14, 2005, Phillips
ordered Stone to leave the mine property rather than allow Stone to accompany him during the
mine inspection, reportedly because it was too dangerous given Stone's lack of Part 46 miner
training. See 30 C.F.R. Part 46. Stone, on behalf of SCP, objects to not being allowed to remain
on mine property during the inspection.
Section 103(f) of the Mine Act provides, in pertinent part, "[s]ubject to regulations
issued by the Secretary, a representative of the operator and a representative authorized.by his
miners shall be given an opportunity to accompany'' an MSHA inspector during an inspection.
30 U.S.C. § 813(f) (emphasis added). ' 'The right to accompany an inspector on all 103
inspections has been consistently recognized by the Commission and the courts." Consolidation
Coal Co., 16 FMSHRC 713, 719 (Apr. 1994). This fundamental right is a qualified right that
30 FMSHRC 563

.· '
may only be curtailed by the Secretary's regulations. · Id. at 718. In extraordinary circumstances,
the Secretary may preclude the right to accompany an inspector "where necessary to protect the
safety of miners." Id. at 719.
On March 31, 2007, the Secretary was ordered to show cause, in writing, why the subject
citations should not be vacated because MSHA's mine inspectjon violated the provisions of
section 103(f) of the Mine Act. Specifically, the Secretary was requested to identify any
regulation that describes the circumstances that warranted Phillips' denial of Stone's right to
observe the inspection. In addition, the Secretary was requested to provide any Interpretive
Bulletin or Memorandum addressing her implementation of the walkaround rights in section
103(f) that justified the denial ofStone's participation. The Secretary was also requested to
specify, by specific reference to her regulations, the requisite training th3:t must be completed by
a miners' representative, or a mine operator, before he is allowed to be present during an
inspection. Finally, the Secretary was ordered to identify, with specificity, the hazards that Stone
would have been exposed to if he had accompanied Phillips on December 14, 2005, during this
surface mine inspection.
The Secretary's response to the Order to Show Cause W3$ filed on April 21, 2008.
However, the·Secretary did not provide the specific information requested. Instead, the Secretary
relied
an inspector's broad discretion to preclude walkaround rights when necessary to protect
the safety of miners. Secy 's Resp. at 7.

on

Stone's reply to the Secretary's April 21, .2008, (esponse to the Order to Show Cause was
filed on May 5, 200K. Stone related tha~ Phillips derued his request to observe the inspection,
that Phillips escorted him off of mine property, and that he was denied the opportunity to re~enter
the.mine site to retriev~ keys 't hat were left in several loaders.
.

.

As a threshold matter, the wide discretion that must be afforded inspectors with respect
to how they conduct inspections 'must be balanced with the funQamental right of a mine operator
to be present during an inspection. While the decision to allow walkaround rights is committed
to the broad discretion of an inspector, his dis~retion is not unfettered 31).d may not be abused.
The.~ommission has ·noted that an "abuse of discretion" occllfs w~en. ''there is no evidence to
support the decision or if the decision is based on an improper understanding of the law."
Energy West Mining Co., 18 FMSHRC 565, 569 (April 1996) (citations omitted).
Phillips' reliance on Stone's lack of miner training as a _b asis for denyillg his section 103
walkaround rights appears to be an ''improper understanding of the law." .Miner training is a
prerequisite for performing mining activities. Miner training is not required to observe an
inspection. Although hazard training may be required prior to the exercise of walkaround rights,
despite.having been o.rdered to do ~o, the Secretary has yet to identify any hazard to support
Phillips' refusai to alfow Stoll:e..to observe the inspection.
.
.

30 FMSHRC 564

Accordingly, in order to determine if Phillips' denial of Stone's walk:around right was an
abuse of discretion and a violation of section I 03(f), the Secretary IS ORDERED to provide the
following:

(I) The Secretary should state whether or not she is relying on her regulations to support
Pbi,llips' denial of Stone's right to observe the inspection. If she is relying on her regulations, the
Secretary should provide a copy of the pertinent regulatory provisions. ·
(2) The Secretary should provide any Interpretive Bulletin or Memorandum addressing
her implementation of the walk:around rights in section 103(f) that justifies the denial of Stone's
right to be present during the inspection. If she is not relying on an Jnterp!etive Bulletin or
Memorandum she should so state.
··
: (3) The Secretary should state whether or not a person who is not a miner, that is selected
by miners as their authorized representative, is entitled to section l 03(f) walk:around rights.
The Secretary should identify the statutory and/or regulatory provisions, if any, to support her
position.
(4) The Secretary should specify, by specific reference to her regulations, the requisite
training that must be completed before a miners' representative, or a mine operator, is allowed to
b~ present during an inspection. If the Secretary believes a miner's representative must have
Part 46 new miner training prior to accompanying an inspector during an inspection she should
identify the statutory artd/or reguiatory provisions, if any, to support such a position.
(5) The Secretary should identify, with specificity, the hazards that Stone would have
been exposed to ifhe had accompanied Phillips during this surface mine inspection.
(6) Dismissal is a harsh sanction. Assuming, for the sake of argument, that Phillips
abused his discretion and Stone's section 103(f) rights were violated, what sanction, short of
vacating the citations and dismissal of this proce.eding, does the Secretary suggest be imposed in
this matter.

IT IS FURTHER ORDERED that above information should be provided by the
Secretary within 21 days of the date of this Order. Failure to provide a timely response that
directly addresses the information requested may result in the dismissal of this civil penalty
~atter.

Jerold Feldman
Administrative Law Judge
(202)434-9967
30 FMSHRC 565

Distribution: (Certified Mail)
Christian P. Barber, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, 1N 37219

Pat Stone, SCP·Investments, LLC, P.O. Box 82, Crab Orchard, TN 37723
/rps

30 FMSHRC 566

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 802~582
303-844-35n/FAX 303-844-5268

May30, 2008
CIVIL PENALTY PROCEEDINGS

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

Docket No. WEST 2006-229-M
A.C. No. 26-02556-75931
Docket No. WEST 2006-275-M
A.C. No. 26-02556-78850
Red Rock

v.
Docket No. WEST 2006-226-M
A.C. No. 26-02400-75744
Docket No. WEST 2006-306-M
A.C. No. 26-02400-81378
SOUTHERN NEVADA PAVING,
Respondent

Towncenter/Plamingo #9
Docket No. WEST 2006-100-M
A.C. No. 26-02478-68079
Charleston #7

ORDER G RANTING THE SECRETARY'S MOTIO N F OR SUMMARY DECISION
ON MINE
AC T JURISDIC ,TION
.
These cases are before me upon petitions for assessment of civil penalty under section
105(d) of the Federal Mine Safety and H~alth Act of 1977, 30 U.S.C. § 801 et seq. (the ''Mine
Act"). They irivolve 21 citations issued to Southe~ Nevada Paving ("SNP") at three fa~ilities in
Clark County, Nevada The Secretary has moved for summary decision on the issue of ~e
jurisdiction of the Department of Labor's Mine Safety and Health Administration ("MSHA'') to
inspect SNP's operations at Red Rock, Towncet;iter/Flamingo #9, and Charleston #7. The
Secretary contends that SNP'engaged in the milling of minerals at these facilities with the result
that they fall witlrin the jurisdictional definitfon of a "coal or other mine" in section 3(h)(l ) of the
Mine Act. SNP opposes the niotio~ and contends that no mining or milling took place at any of
the three facilities cited by MSHA.
·
The parties entered into detailed stipulations of fact. The relevant stipulations are set
forth below. I ha~e not included the stipulations that merely describe the attachments to the
stipulations.
30 FMSHRC 567

The Secretary of Labor .. . , hereinafter referred to as the "Secretary'' or
"MSHA" and Southern Nevada Paving, hereinafter referred to as "Respondent" or
"SNP," by and throl;lgh their attorneys, stipulate and agree as a matter of fact,
solely
the purpose of proceedings related to determiningjurisdiction under the
[Mine Act] concerning SNP facilities known as Red Rock, Towncenter/Flamingo
#9, and Charleston #7 (jointly and severally referred to by the parties, solely for ·
eas·e of reference, as the "Summerlin Facilities") that, at all material times, the
statements set forth below are true.

for

1. Since in or about 1994, Howard Hughes Properties, LP [''Howard
Hughes'1 has engaged in an extensive construction project in Summerlin, Nevada,
west Las Vegas, Nevada, consisting of excavating, landscaping, filling,
grading, and preparing construction sites for residential buildings, commercial
buildings, utilities, Beltway 215, and other roadways.

of

2. Howard Hughes Summerlin construction projects included scraping,
excavating, loading, moving, and depositing spoil materials ("construction spoil
material" oi "construction waste material") consisting of soils, shrubs, roots, trash,
and organic and non-organic materials. Several construction contractors
performed these construction services, including but not limited to Acme, Contri,
Summit Sand & Gravel, Pools-by-Grube, SNP, Regency Landscaping, and
Sunstate. The excavation construction work throughout developments in
Summerlin produced a large amount of construction waste/spoil material.
3. Contractors removed and trucked such excavation waste/spoil material
to sites designated by Howard Hughes within Swnmerlin: Construction
contractors paid SNP a fee to deposit construction excavation waste/spoil at sites
including the [Summerlin Facilities]. Excavation spoil was deposited in piles at
[these Summerlin Facilities]. The.excavation waste/spoil material contained no
known mineral of value and was not excavated for the purpose of mining or
milling.
.
4. SNP performed services under contract with Howard Hughes
concerning such construction activity. SNP provided these services at various
locations and sites o'wned by Howard Hughes Properties, fucluding the
[Su.mlnerlin Facilities]. These facilities and services were co-located with
ongoing construction projects within Summerlin.
5. The excavation, mining and milling of minerals at the [Summerlin
Facilities] is prohibited by agreement between SNP and Howard Hughes, as
referenced and attached [to these stipulations]. SNP did not excavate, extract or
30 FMSHRC 568

quarry minerals at these sites. The existence of any mineral contained in
construction excavation'spoil material deposited at [the Summerlin Facilities] was
incidental to and not the primary purpose of construction excavations in
Summerlin.
6. OSHA safety standards apply to excavation and construction activities
throughout Summerlin.
7. Piles of construction spoil materials at [the Summerlin Facilities]
included materials from various Summerlin construction contractors and
construction sites. Spoil or waste materials that originated from different
contractors or different construction sites were not kept separate at [the
Summerlin Facilities] but were deposited in several piles.
8. [The Summerlin Facilities] were not open pit or strip mines. [These
facilities] were situated on residential and commercial development property in
Summerlin, Nevada. [They] did not extract or process coal and did not extract
any other mineral:
9. For purposes of these stipulations, "excavation" includes any manmade cut, cavity, trench, or depression in an earth surface, formed by earth ·
removal within the meaning of 29 C.F.R. l 926.650(b), "soil" includes excavated
material withing the meaning of29 C.F.R. 1926.652, Appendix A, "earthmoving
equipment" includes scrapers and other equipment within the meaning of 29
C.F.R. 1926.602(a), and "spoil" includes excavated soil materials within the
meaning of29 C.F.R. 1926.651(j).
10. MSHA mine identification number 2602556 had been obtained in or

about 1995 ·by a predecessor owner concerning Red Rock.
11. MSHA mine identification number 2602400 had been obtained in or
about 1999 by a predecessor owner concerning Towncenter/Flamingo #9.
12. MSHA mine identification number 2602478 had been obtained at an
unknown date by a predecessor owner concerning Charleston #7.
13. Prior to 2004, MSHA had issued citations related to MSHA mine
identification numbers associated with Red Rock, Towncenter/Flamingo #9, and
·
Charleston #7 facilities.

14. In 2004, SNP became a wholly-owned subsidiary of Bardon U.S.
Corp., operating since that date under different ownership and management.

30 FMSHRC 569

15. SNP has managed [the Summerlin Facilities] sites pursuant to its
construction agreement with [Howard Hughes]. SNP disputes being a mine ·
operator under the [Mine ActJ at those facilities, and since 2006 has consistently
asserted that the subject facilities are not mines within the meaning of the [Mine
Act].
16. SNP notified MSHA in 2005 that MSHA mine ID numbers.and
regulations should not apply to facilities such as Red Rock, Towncenter/Flamingo
#9, Charleston #7, and Summerlin #8, that citations concerning these facilities
should be vacated for lack ofjurisdiction, and that related MSHA mine ID
numbers should be deactivated;
17. Since 2005, SNP has observed MSHA requirements under protest at
these facilities pending the resolution of these proceedings after receipt of
correspondence.from the Secretary's counsel in 2005, a copy of which is attached
as Exhibit A [to these stipulations].
18. Nevada OSHA, a state plan agency under the Occupational Safety and

Health Act pursuant to 29 U.S.C. 667 and 29 C.F.R. 1952.290 - 1952.297, has not
cited SNP's facilities at Towncenter/Flamingo #9 and Charleston #7, but has cited
the Regal Ready-Mix Concrete Plant at the Red Rock facility. Regal Ready-Mix
is a corporate affiliate ofSNP. The Regal Ready-:Mix.concrete plant is subject to
regulation by Nevada OSHA pursuant to 29 C.F.R. 1952.290 - 1952.297 and is
not subject to regulation by MSHA.
19. Red Rock is located adjacent to the Summerlin Red Rock Casino
construction site.
20. SNP's [Summerlin Facilities] have been closed and the sites at these
locations have been prepared for residential, commercial, and road construction.
A concrete plant operated by.Regal Ready-Mix is still located at Red Rock.
Residential buildings, commercial buildings, and streets in .various stages of
construction now and/or will occupy the sites where Charleston #7 and
Towncenter/Flamingo #9 facilities once were located.
21. SNP did not blast, heat, press, or wash the excavation spoil material at

these facilities.· SNP screened the piles of excavation waste or spoil material
using a grizzly to remove trash, shrubbery, organic material, and expandable soil.
SNP then crushed the screened material into Type II fill material. The Type II
material was described by the DOT specifications set forth in section 704-03.03 of
the Nevada Administrative Code. Type Il material was used primarily for leveling
and filling purposes.

30 FMSHRC 570

22. The content of the Type II material was not assayed to determine its
composition. The Type II material was not crushed, screened, and /or washed to
obtain a unifonn size or consistency, but contained non-expandable soil and hard
materials of different sizes and shapes. No other material was crushed at these ·
facilities. ·
· 23. SNP did not use hydraulic shovels or haul trucks at [the Summerlin
Facilities]. At different times in the past, these facilities used a scraper, loader,
and other earthmoving equipment, small cone crusher, small VSI crusher, and a
crew of2 to 4 employees at [each Summerlin Facility]. At different times in the
past, the storage trailer and control trailer with electrical equipment were located
at these sites: SNP used its own equipment at [the Summerlin Facilities].
Construction contractors that deposited·excavation spoil or picked up Type II
material at these sites used their own equipment.

24. SNP delivered some of this Type II material to construction sites in
Summerlin for grading, filling, and leveling purposes.' Contractors also picked up
Type II material from [the:Summerlin Facilities] for filling, leveling, and grading
construction sites. SNP was compensated by the ton for such Type II material.
25.· The Regal Ready-Mix Concrete Plant at Red Rock used some of the
finer material crushed at Red Rock to manufacture concrete.

I. BRIEF SUMMARY OF THE PARTIES' ARGUMENTS
A. Secretary of Labor
The Secretary argues that there can be no dispute that, at the time the citations were
issued, the Summerlin Facilities were subject to Mine Act jurisdiction. SNP screened stockpiled
material that was previously excavated from the ground at various excavation sites in Summerlin.
After SNP screened the material, it crushed it in a small cone crusher or a VSI crusher. SNP
produced what it calls Type II material, which in reality is a type of gravel. Indeed; SNP's
contract with Howard Hughes provides in Exhibit C to the agreement ("Excavations and
Operations Plan") as follows:
[SNP] will, for the purposes ·of producing sand and gravel products,
excavate soils from various.locations within the Subject Property~ .
Crushing operations shall be portable, self-contained set-ups energized by
a generator horised in a·trailer and shall be comprised of jaws, cone crushers,
stacking conveyors, screens and belts configured to result in certain gravel ·
products. The crusher will be fed either by scrapers dumping over a hopper, a
dozer pushing soils into a grizzly or fed directly by the loader.

30 FMSHRC571

(Ex. B to Stipulations).
The Secretary contends that while some of the crushed aggregate produced by SNP at the
Summerlin Facilities is used at the site, many tons of crushed aggregate are sold by. SNP to sand
and gravel customers. (Ex. K to Stipulations). Exhibit K consists of customer tickets for product
purchased from SNP. The Secretary maintains that these tickets show that SNP sells sand and
gravel to such customers as Randy's Aggregate Sales, DW Iron Gravel; Karen I. Lamb Middle
School, South Coast Casino, and Mtn. Edge Paving.
The Secretary argues that SNP's·operations, as described in the stipulations, is entirely
indistinguishable in fact and law from the many other sand and gravel crushing·operations
inspected. by MSHA as mineral milling operations under the Mine Act. Material is excavated
from the ground, transported to a dump site to be screened.:and crushed to produce gravel and
sand products. Each of SNP' s crushers engages in mineral milling and is therefore a mine as that
term is used in section 103(h)(l) of the Mine Act. Stone, rock, gravel, and sand are "minerals"
as that term is used in the Mine Act and mineral milling includes any crushing, grinding, or
screening ofminerals. MSHA has been inspecting these crushers for many years and the change
of ownership of the company does not alter the fact that mineial milling occurs.at the facilities.
Finally, mineral milling need not involve the separation of a valuable ore from undesired
contaminants. The only support for this interpretation of the term ·mineral milling is in the
Interagency Agreement, as discussed ·below. While mineral milling often involves such
separation, nothing in the language of the Mine Act suggests that such separation of materials
must occur in order for·milling to occur.
B. Southern Nevada Pavin2

SNP argues that the stipulations do not support the Secretary's motion for summary
decision. SNP's construction~related activities on commercial and residential .development
property within Summerlin do not establish jurisdiction under the Mine Act. SNP was engaged
in a large scale construction project to build the commercial and residential community of
Summerlin, Nevada. SNP contracted with Howard Hughes.to .provide essential services as .part
of this huge constructi0n project. The Secretary "dwells" almost exclusively on the operation of
crushers. (SNP Response 9.) SNP argues that operating a crusher as an integral part of the
Summerlin construction process does not convert construction to mining. The material was not
screened and crushed to obtain a uniform size or consistency. The finished product contained
non-expandable soil and "hard materials of different sizes and shapes." Id. · The crushing that
occurred is not the type of crushing that can be regarded as mining. The stipulations only support
''the fact that SNP screens and crushes excavation spoil material.containing no known mineral of
value for reuse in filling and grading commercial and residential construction developments."
(SNP Response 9-10). The contract between SNP and Howard Hughes specifically prohibited
SNP from operating a mine or carrying on mining, milling, or processing operations at
Summerlin.
30 FMSHRC .572

The Secretary ·argues that because SNP·used a crusher, it was engaged in mining. The
stipulations show that SNP was not screening or crushing in connection with an excavation or for
purposes related to mining but that it screened and crushed spoil material as part of the
construction of roads, commercial properties, and housing for Summerlin, Nevada. SNP's
operations did not separate worthless spoil from valuable minerals. It simply screened out trash,
vegetation, and expandable soils. Crushing, for purposes of MSHA jurisdiction, occurs when
rock is crushed into smaller usable sizes. At Summerlin, only excavation spoil was crushed as
part of the construction process and no:mineral extraction or processing occurred. In addition,
SNP did not engage in sizing sufficient to confer MSHA jurisdiction because products of a
uniform size or consistency were not produced.

II. DISCUSSION AND ANALYSIS OF THE ISSUES
The Commission's Procedural Rule at 29 C.F.R. § 2700.67(b) sets forth the grounds for
granting summary decision, as follows:
A motion for summary decision shall be granted only if the entire
record, including the pleadings, depositions, answers to
interrogatories, admissions, aild·affidavits, 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 oflaw.
For the reasons set forth below, I find that there are no ·genuine issues as to any material
fact, with respect the jurisdictional issues raised by the parties, and that the Secretary is entitled
to swm;nary decision as a matter of law. SNP took material that had been excavated from the
earth and crushed this material into an aggregate product that was used by other contractors
during the construction ofthe'community of Stimmerlin, Nevada. The cases involve 21 citations
issued for conditions related to SNP's crushlng operations such as citations alleging violations of
machine guarding standards and other equipment standards.
Section 3(h)(l) of the Mine Act defines ~·coal or other mine" as "(A) an area of land from
which minerals are extracted ... (B) private ways and roads appurtenant to such area, and (C) ...
structures, facilities, equipment, machines, tools, or other property ... used in, or restilting from,
the work of extracting such minerals from their natural deposits ... or used in, or to be used· in,
the milling of such minerals.... " 30 U.S.C. § 802(h)(l). The Commission set forth the
:framework to follow when analyzing jurisdictional disputes with respect t~ issues surrounding
the milling of minerals "in Watkins Engineers &. Constructors, 24 FMSHRC 669, 672-77 (July
2002).·· Based on the Commission's analysis, I believe it is fair to conclude that the phrase
"facilities .. ; used in ... the milling of ... minerals" in section 3(h){l) of the Mine Act is to be
construed broadly. The temi milling is not defined in the Mine Act. As used in the mining
industry, the term "milling" can be defined as "[t]he grinding or crushing of ore" and it "may

30 FMSHRC 573

include the operation of removing valueless or harmful constituents ...." Am. Geological
Institute, Dictionary of Mining, ·Mineral, and Related·Terms 344 (2d ed. 1997) ("DMMRT").
The Secretary provided interpretative guidance on this issue in an interagency agreement
between MSHA and the Occupational Safety and Health Administration ("OSHA") (the
"Interagency Agreement''). 44 Fed. Reg. 22827 (April 17, 1979) (http://www.msha.gov/regsl
I 979mshaoshammu.HTM}. The Interage:pcy Agreement attempts to draw a line.between milling
operations that are subject to MSHA inspection from other facilities that are subject to OSHA
inspection. Appendix A of the Interagency Agreement sets forth a list of ''milling processes'~ that
are subject to MSHA inspection. This list includes "crushing," which is defined as the "process
used to reduce the size of mined materials into smaller, relatively course particles."
The parties agreed that SNP "crushed the screened material into Type II fill material."
(Stip. 21 ). The Nevada Department of Transportatipn sets standards for Type I and Type Il fill
material in a document entitled "Standard Specifications for Road and Bridge Construction."
(Attachment to the Secretary's Memorandum; http://www.nevadadot.com/business/contractor/
standards/documents/2001StandardSpecifications.pdf, pp. 492-93). This material is described as
"Aggregate Base" and the document sets forth the requirements for this type of aggregate. Other
sections of the document set forth requirement.s for other types of aggregate, such as aggregate
used to make concrete. Id. at 499. The term "aggregate" can be defined as "any of several, hard,
inert materials, such as sand, gravel, slag, or crushed stone, mixed with cement or bituminous
material to form concrete, mortar, or plaster, or used alone as in railroad ballast or graded fill."
(DMMRT at 8-9). The material produced by SNP fits into this definition of aggregate. The
parties stipulated that the material that w~ screened and crushed at the Summerlin Facilities was
used for "filling, leveling, and grading construction sites." (Stip. 24). Material used as an
aggregate base does not have to meet the same standards as aggregate used to produce concrete.
The parties stipulated that the end product contained non-expandable soil and rock. Although
this material was not of a uniform size, it.met the criteria for Type Il fill material under standards
developed by the Nevada Department ofTransportation. I hold that the crushing of material t~
make aggregate base is mineral milling under the Mine Act. .
SNP argues-that, although it used crushers at the cited locations, it did not separate one or
more valuable desired-constituents from the undesired · ~ontaminates with which.it is associated.
As a consequence, it did not engage in "milling" as .that term has been defined by the S~retary in
Appendix A to the Interagency Agreement. I reject SNP's argument. First, it stipulat~ that
some of the finer material crushed at Red Rock was used to manufacture concrete. Thµs, in at
least one location, SNP separated the crushed material into different classifications for different
uses~ ..More importantly, in Watkins Engineers the .Commission made·clearthat the separation of
valuable material from that which is not valuable or useful is not a prerequisite to a finding that
mineral milling is occurring. (24 FMSHRC at 674-76). 1n spite of the referenced language in
Appendix A, the Secretary has consistently interpreted the term milling to include milling
operations in which the separation of valuable from valueless materials does not occur. In
Donovan v. Carolina Stalite Co., 734 F.2d 1547, 1552-53 & n. 10 (D.C. Cir. 1984), the court of

30 FMSHRC-574

appeals detennined that milling can include operations that do not separate valuable constituents
from undesired contaminants.
Tue primary theme of SNP' s arguments in these cases is that because it was engaged in
construction rather than mining, the Summerlin Facilities should be subject to inspection by
OSHA. It states that the Summerlin Facilities "were situated on and within a large residential
and commercial construction development in Swnmerlin." (SNP Response at 10). SNP
maintains that the Secretaiy's arguments ignore "the inherent nature and purpose of the activities
that occurred at the three sites.... " Id: at 2. I find SNP's arguments to be unpersuasive. Tue
sand, gravel, crushed stone/aggregate industry is always directly related to the construction
industry. Tue products produced by sand, gravel, and crushed stone operations are used to make
concrete, build roads, construct commercial and residential buildings, provide fill material, and
otherwise support construction activities. There is nothing unique about SNP's relationship to
construction except the fact that the crushing was being perfonned on some of the land that was
being developed by Howard Hughes. Whether screening and crushing of excavated material
occurs on the site of the construction activity or at another location does not change the nature of
the operations being perfonned. I find that the stipulations establish that SNP was screening and
crushing material that had been excavated from the earth. SNP·was producing a product that was
used in the construction of Summerlin. I hold that the stipulations establish that SNP's screening
and crushing operations at the Summerlin Facilities was mineral milling and, as a consequence,
these operations ·were subject to the jurisdiction of MSHA.
SNP also contends that the spoil material that was screened and crushed was not ')nined"
but was simply excavated during the construction process. This spoil material had no known
mineral value and its contract with Howard Hughes prohibited it from mining, milling, or
processing any minerals at Summerlin. I disagree. Tue stipulations establish that, once the spoil
material was screened and crushed, it did have value to the contractors working at Summerlin.
Contractors purchased this "Type II gravel" for use at Summerlin. (Stips., Exhibit K). If these
contractors had not purchased this crushed material, they would have had to purchase similar
material on the open market. Thus, the crushed spoil had intrinsic value to those who purchased
it. (See Richard E. Seiffert Resources, 23 FMSHRC 426, 427 {April 2001) {AU)). The fact that
the material that was screened and crushed was excavated as part of the construction process
does not change the result. (Drillex, Inc., 16 FMSHRC 2391 (Dec. 1994)). lnDrillex, the
respondent argtied that the material was not extracted and crushed for its intrinsic properties but
merely as an incidental operation during the construction ofroads. Id. at 2394. The Commission
determined that its crushing operation was 'subject to MSHAjurisdiction.
SNP argties that the·Summerlin Facilities functioned as borrow pits because the material
was used by contractors "as fill and grade material based on its bulk and not used for its intrinsic
properties." (SNP Response at 9). In section B(7) of the Interagency Agreement, the following
definition is provided:

30 FMSHRC 575

"Borrow Pits" are subject to OSHA jurisdiction except those
borrow pits located on mine property or related to mining. (For
example, a borrow pit used to build a road or construct a surface
facility on mine property is subject to MSHA jurisdiction).
"Borrow pit" means an area of land where the overburden,
consisting of llllconsolidated rock, glacial debris, other earth
material overlying bedrock is extracted from the surface.
Extraction occurs on a one-time only basis or only intermittently as
need occurs, for use as fill materials· by the extracting party in the
form in which it is ~xtracted. No milling .is involved, except for the
use of a scalping screen to reqiove large rocks, wood an4 trash.
The material is used by the extracting party more for its bulk than
its intrinsic qualities on land which is relatively near the borrow
pit.
It is clear that the Summerlin Facilities were not borrow pits. The excavation was not performed
by SNP at the cited facilities. Moreover, as discussed in this order, mineral milling was
occurring at the Summerlin Facilities. After trash, organic matter, and expandable soils were
removed, the material was crushed to meet the specifications for Type Il material.
Section 3(h)(l) of the Mine Act mandates that, 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 the health and safety of miners employed at one.physical establishment." This
provision makes clear that the Secretary has wide.discretion to determine what constitutes
mineral milling and that her determination on this issue is to be reviewed with deference by the
Commissiol). and courts. This language provides guidance with respect to one factor to be
considered by the Secretary in exercising this discretion. It is clear that the excavation of the
material by contractors of Howard Hughes was part of the construction process·and i~ subject to
OSHA jurisdiction. Like~se, once the material crushed by SNP was removed by contractors,
the activities surrounding the use of the crushed m~terial was .subject to OSHA jurisdiction. A
case can be made that "convenience of administration" would dictate that the entire construction
process should be inspected by OSHA and that interjecting MSHA in the middle of this process
is illogical and inconvenient. Although this argument has merit, I find that the Secretary did not
abuse her discretion when she determined that the cited activities conduct~d by SNP were subject
to Mine Act jurisdiction. Although the .Secretary must give consideration to the convenience of
administration, it is only one factor that the Secretary is authorized to con~ider. In this instance,
it is clear that the Secretary put great weight on the nature of the work being performed by SNP
at the-Summerlin Facilities. The Secretary did not abuse her authority in determining that this
work was mineral milling subject io Mine Act jurisdiction.

In summary, I find that there is no genuine issue as to any material fact. SNP was
screening and crushing material that was dug from the earth. After SNP crushed the material, the
30 FMSHRC 576

resulting produce met the requirements of Type II fill material, generally known as aggregate
base. As explained above, this aggregate base was used during the construction of Summerlin.
The stipulations, including Exhibit K, demonstrate that this aggregate base had commercial
value. I also find that the Secretary is entitled to summary decision as a matter of law. Although
the phrase "the milling of such minerals" in section 3(h)(l) of the Mine Act is not defined, the
Secretary has consistently taken the position that the term milling includes the crushing of rock.
The Commission and the courts have upheld the Secretary' s position on this issue. I hold that the
crushing conducted by SNP at Summerlin was mineral milling under the Mine Act. As a
consequence, the Secretary bad the authority to inspect SNP's Summerlin Facilities.

m. ORDER
For the reasons set forth above, the Secretary' s motion for summary decision on the issue
ofjurisdiction is GRANTED.

Richard W . Manning
Administrative Law Judge

Distribution:

Jan Coplick, Esq., Office of the Solicitor, U.S. Department of Labor, 90 7Ui Suite 3-700, San
Francisco, CO 94103-6704
James J. Gonzales, Esq., Holland & Hart, P.O. Box 8749, Denver, CO 80201-8749

RWM

30 FMSHRC 577

30 FMSHRC 578
G:l> U.S. GOVERNMENT PRINTING OFFICE : 2008--340-005162703