MARCH2005

COMMISSION DECISIONS AND ORDERS
03-01-2005
03-01-2005
03-01-2005
03-01-2005
03-01-2005
03-01-2005
03-02-2005
03-04-2005
03-07-2005
03-07-2005
03-07-2005
03-07-2005
03-07-2005
03-10-2005
03-10-2005
03-10-2005
03-11-2005
03-14-2005
03-16-2005
03-16-2005
03-18-2005
03-18-2005
03-18-2005
03-22-2005
03-23-2005

James L. Fann, employed by QMAX Company
DiCaperl Minerals Corporation
National King Coal, Il..C.
Rogers Group, Inc.
MichaefJohnson Construction
National Cement Company of California, Inc.
Baylor Mining, Inc.
Colorado Lava, Inc.
Terry J. Vance employed by DiCaperl Minerals
Claude S . Radford emp. by DiCaperl Minerals
Eastern Associated Coal Corporation
Kirby Stone Company
Independence Coal Co.;d/b/a Progress Coal
Hanson Aggregates, SE, Inc.
Joel Dingess empl. by Elk Run Coal Co.
Martin Marietta Aggregates
Sec. Labor o/b/o Wilfredo Morales v.
Arenero Rafael Colon, Inc.
Eastern Associated Coal Corporation
Terry Thompson emp. by Foster Dixiana Corp.
Eastern Associated Coal Corporation
American On Site; Jeremiah, Inc.
Premier Chemical Il..C.
Twentymile Coal Company
Speed Mining, Inc.
Wake Stone Corporation

WEST 2005-61-M
WEST 2005-30-M
WEST2005-9
CENT 2005-25-M
CENT 2005-18-M
WEST 2004-182-RM
WEVA 2004-36
EAJ 2001-2
WEST 2005-104-M
WEST 2005-111-M
WEVA 2005-41
CENT 2005-60-M
WEVA 2005-47
SE 2005-58-M
WEVA 2004-161
CENT 2005-73-M

Pg. 163
Pg. 167
Pg.170
Pg. 173
Pg. 176
Pg. 179
Pg. 183
Pg. 186
Pg. 197
Pg. 201
Pg. 205
Pg. 209
Pg.212
Pg. 216
Pg.219
Pg.223

SE 2005-71-DM
WEVA 2005-66
SE 2005-183-M
WEVA 2002-46
WEST 2005-190-M
WEST 2005-188-M
WEST 2002-194
WEVA 2004-187-R
SE 2004-185-M

Pg. 226
Pg. 230
Pg. 234
Pg.238
Pg.253
Pg. 256
Pg. 260
Pg. 286
Pg.289

CENT 2004-49-M
PENN 2004-73-R

Pg. 293
Pg. 295

WEST 2004-141-DM

Pg. 334

LAKE 2004-147

Pg. 351

ADl\.flNISTRATIVE LAW .JUDGE DECISIONS
03-11-2005
03-28-2005
03-28-2005

Southwest Concrete and Paving
Cumberland Coal Resourcc~s. IP
Joseph M . Ondreako v. Kennecott Utah
Copper Corporation

ADMINISTRATIVE LAW .JlJDGE ORDERS
03-04-2005

Wabash Mine Holding Company

i

MARCH 2005

Review was granted in the following cases during the month of March:
Secretary of Labor, MSHA v. Baylor Mining, Inc., Docket No. WEVA 2004-36. (Judge Hodgdon,
Interlocutory Review of Judge's January 10, 2005 Order Denying Motion for Certification).
Secretary of Labor, MSHA v. Wake Stone Corporation, Docket No. SE 2004-185-M. (Judge
Weisberger, unpublished Settlement decision issued February 14, 2005).

No cases were filed in which Review was denied during the month of February

A Petition for Reconsideration was Denied in:
Secretary of Labor, MSHA v. Twentymile Coal Company, Docket No. WEST 2002-194.
Commission decision issued March 18, 2005. (Published in this issue)

ii

COMMISSION DEQSIONS AND ORDERS

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

WASHINGTON, DC 20001

March 1, 2005

SECRETARY OF LABOR,
WNE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2005-61-M
A.C. No. 02-01691-27590A

v.
JAMESL.FANN,
employed by QMAX COMPANY

BEFORE: Duffy. Chairman; Jordan, Suboleski. 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 November l, 2004. the Commission received from James
L. Fann a letter requesting that the Commission reopen a penalty assessment for a violation of
section 1 lO(c) of the Mine Act, 30 U.S.C. § 820(c). 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 and the Commission's Procedural Rules. an
individual charged with a violation under section l lO(c) has 30 days following receipt of the
Secretary of Labor• s proposed penalty assessment within which to notify the Secretary that he or
she wishes to contest the proposed penalty. 30 U.S.C. § 815(a); 29 C.F.R. § 2700.26. If the
individual fails to notify the Secretary. the proposed penalty assessment is deemed a final order
of the Commission. 30 U.S.C. § 815(a); 29 C.F.R. § 2700.27.

On May 25, 2004, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment (A.C. No. 02-01691-27590A) to Fann. In his
request, Fann states that on February 4, 2004, Docket Nos. WEST 2003-451-M, WEST 2004-76M. WEST 2004-103-M. and WEST 2004-196-M (which pertain to his employer, Qmax
Company), were stayed before Judge Zielinski awaiting Fann's contest in this related section
llO(c) case. Letter at 1. Fann asserts that, early in the process. he notified MSHA that he would
27 FMSHRC 163

be contesting all citations. Id. Fann states that on July 7 and 14, 2004, he sent his intent to
contest to MSHA by fax machine. Id. at 1-2. Fann states that, in September, he was surprised to
receive a letter from MSHA notifying him that he had failed to timely contest the penalty
proposal. Id. at 2. According to Fann, on September 23, 2004, he wrote to MSHA and on .
October 12, 2004, he contacted MSHA by telephone and he was informed the case would be reopened. Id. Fann states that, on October 14, 2004, Judge Zielinski directed him to contact the
Commission about re-opening the case. Id. A copy of the proposed assessment and related
correspondence is attached to Fann's request to reopen. Fann did not provide any other
supporting documentation. The Secretary states that she does not oppose Fann'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(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).

27 FMSHRC 164

Having reviewed Fann's request, in the interests of justice, we remand this matter to the
Chief Administrative Law Judge for a determination of whether good cause exists for Fann's
failure to timely contest the penalty proposal and whether relief from the final order should be
granted. 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.

27FMSHRC 165

Distribution
James L. Fann, President
Qmax Company
P.O. Box 877
Williams, AZ 86046
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Ave., N.W., Suite 9500
Washington, D.C. 20001

27 FMSHRC 166

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

WA!>HINGTON, DC 20001

March 1, 2005
SECRETARY OF LABOR,

MINE SAFETY AND HEALTII
ADMINISTRATION (MSHA)
Docket No. WEST 2005-30-M
A.C. No. 05-00438-33522

v.
DICAPERL M1NERALS CORPORATION

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On October 15, 2004, the Commission received from
Dicaperl Minerals Corporation ("Dicaperl") a motion made by counsel to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On July 30, 2004, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment (A.C. No. 05-00438-33522) to Dicaperl's EI
Grande Plant in Antonito, Colorado. In it:> motion, Dicaperl states that, upon receipt of the
proposed assessment, an employee new to the mail processing position failed to bring it to
management's attention. Mot. at 2. Dicaperl explains that, although the return receipt on the
penalty proposal was signed on August 13, 2004, the employee who signed it was not familiar
with procedures regarding civil penalties and, as a consequence, Dicaperl failed to timely file a
hearing request. Id. at 2-3. A copy of Dicaperl's contest of civil penalty is attached to its
motion. Dicaperl did not provide any other supporting documentation. The Secretary states that
she does not oppose Dicaperl' s request for relief.
27FMSHRC 167

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 Comutission 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 cas~ may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Dicaperl' s motion, in the interests of justice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether good cause exists for
Dicaperl'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 Commis8ion' s Procedural Rules, 29 C.F.R. Part 2700.

27 FMSHRC 168

Distribution
Karen L. Johnson, Esq.
Jackson Kelly, PI.LC
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
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Ave., N.W., Suite 9500
Washington, D.C. 20001

27 FMSHRC 169

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500
W~~HI NGTON, DC 20001

March 1, 2005

SECRETARY OF LABOR,
MINE SAFETY AND HEALTII
ADMINISTRATION (MSHA)
Docket No. WEST 2005-9
A.C. No. 05-00266-33560

v.
NATIONAL KING COAL, ILC

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners
ORDER
BY THE CO!v1MISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On October 6, 2004, the Commission received from National
King Coal, ILC ("NKC") 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).
On August 3, 2004, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment (A.C. No. 05-00266-33560) to NKC's King
Coal Mine for Order No. 7631533 and Citation Nos. 7631303 and 7631304. In its motion, NKC
states that on June 4, 2004, it contested Order No. 7631533, which is the subject of Docket No.
WEST 2004-350-R, and is stayed before Judge Manning. Mot. at 2. NKC asserts that, upon
receipt of the proposed assessment, the penalties were mistakenly paid and, as a consequenc~,
NKC failed to timely request a hearing. Id. at 2-3. NKC explains that personnel in its
accounting department inadvertently paid the penalties without management's authorization and
that it had intended to contest all three penalties. Id. at 2. NKC did not attach any supporting
documentation to its motion. The Secretary states that she does not oppose NKC' 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

27 FMSHRC 170

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.
Having reviewed'NKC's motion, in the interests of justice, we remand this matter to the
Chief Administrative Law Judge for a determination of whether good cause exists for NKC'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.

27 FMSHRC 171

Distribution
Karen L. Johnson, Esq.
Jackson Kelly, PI.LC
1099 181h Street, Suite 2150
Denver, CO 80202
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22o<1 Floor
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Ave., N.W., Suite 9500
Washington, D.C. 20001

27 FMSHRC 172

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVE.NUE, NW
SUrrE9500
WAUHINGTON, DC 20001

March 1, 2005

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2005-25-M
A.C. No. 03-01640-37277

v.
ROGERS GROUP, INC.

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On November 5, 2004, the Commission received from
Rogers Group, Inc. ("Rogers") 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 September 9, 2004, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued a proposed penalty assessment (A.C. No. 03-01640-37277) to
Rogers' Lowell Quarry in Benton, Arkansas. In its request, Rogers states that, due to an error by
its safety administrator, it failed to file a hearing request in a timely manner. Letter at 1. Copies
of the proposed assessment and related citations are attached to Rogers' request to reopen.
Rogers did not provide any other supporting documentation. The Secretary states that she does
not oppose Rogers' request for relief.

27 FMSHRC 173

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 FMSIIRC 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 Rogers' request, in the interests of justice, we remand this matter to the
Chief Administrative Law Judge for a detennination of whether good cause exists for Rogers'
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.

27FMSHRC 174

Distribution
Susie Arsenault, Safety Administrator
Rogers Group, Inc.
550 South Adams Street
Bloomington, IN 47403-2165
W. Christian Schuman~, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Ave., N.W., Suite 9500
Washington, D.C. 20001

27 FMSHRC 175

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500
W~)HINGTON, DC 20001

March 1, 2005

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
AD1v.fiNISTRATION (MSHA)
Docket No. CENT 2005-18-M
A.C. No. 39-01393-37543

v.
MICHAEL JOHNSON CONSTRUCTION

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners
ORDER
BY THE CO:Mlv.tISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On November 3, 2004, the Commission received from
Michael Johnson Construction ("MJC") 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 September 14, 2004, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued a proposed penalty assessment (A.C. No. 39-01393-37543) to
MJC's West Pit in Lake, South Dakota. hi its request, MJC states that, upon receipt of the
proposed assessment, it was misfiled and not located until October 28, 2004. Letter at 1. MJC
further states that it does not dispute the citation, however, the "amount of the proposed penalty
seems exorbitant" and it would create a financial burden on the company. Id. A copy of the
proposed assessment is attached to MJC's request to reopen. MJC did not provide any other
supporting documentation. The Secretary states that she does not oppose MJC' s request for
relief.
27 FMSHRC 176

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

27FMSHRC 177

Distribution
Kathy Archer, Assistant to President
Michael Johnson Construction
1000 N. Union Ave.
Madison, SD 57042
W. Christian Schumann, Esq.
Office of the Solicitor·
U.S. Department of Labor
llOO Wilson Blvd., 22nd Floor
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Ave., N.W., Suite 9500
Washington, D.C. 20001

27FMSHRC 178

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

SUITE 9500
W.A£1HINGTON, DC 20001

March 1, 2005

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

v.

Docket No. WEST 2004-182-RM

NATIONAL CEMENT COMPANY
OF CALIFORNIA, INC.
and
TRTON RANCH CORP.

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners
ORDER
BY: Duffy, Chairman; Suboleski and Young, Commissioners:
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 12, 2005, Administrative Law Judge Jerold
Feldman granted the motion for summary decision filed by the Secretary of Labor and denied the
cross motion filed by National Cement Company of California, Inc. ("National"). 27 FMSHRC
84 (Jan. 2005) (ALl). In his decision, the judge concluded that a private road leading to the
entrance of National's cement plant, which was owned and maintained by intervenor Tejon
Ranch Corp. (''Tejon"), was a "mine" under the Mine Act. Id. at 98-102.
On February 7, 2005, the judge issued an order in which he granted the motion filed by
National to certify for interlocutory review his order of January 12. The Secretary opposed the
motion, and intervenor Tejon supported it. Commission Rule 76(a), 29 C.F.R. § 2700.76(a),
provides that interlocutory review is a matter of sound discretion of the Commission and that the
Commission may grant interlocutory review upon a determination that the judge's interlocutory
ruling involves a controlling question of law and immediate review will materially advance the
final disposition of the proceeding.

27 FMSHRC 179

Upon consideration of the judge's certification, we hereby grant review of the judge's
decision of January 12 and the issue of whe:ther the private road that accesses National' s cement
plant is a "mine" within the definition of section 3(h)(l) of the Mine Act. 30 U.S.C. § 802(h)(l).
Briefing shall be conducted in accordance with Commission Rule 76(c), 29 C.F.R. § 2700.76{c).

27 FMSHRC 180

Commissioner Jordan, dissenting:
Given that the judge should be able to resolve all outstanding issues relatively quickly,
review of his January 12 decision at this stage would not materially advance the final disposition
of this case. Accordingly, I would not grant interlocutory review.

~?-~:-

MarYL~rdan, C~er

27FMSHRC 181

Distribution
Margaret S. Lopez, Esq.
Ogletree, Deakins, Nash,
Smoak & Stewart, P.C.
2400 N Street, N.W., 5tJJ Floor
Washington, D.C. 20037
Thomas C. Means, Esq.
Crowell & Morning, lLP
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004-2595
Timothy S. Williams, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22°d Floor
Arlington, VA 22209
Administrative Law Judge Jerold Feldman
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D .C. 20001

27FMSHRC 182

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

March 2, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEV A 2004-36

v.
BAYLOR MINING, INC.

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

DlRECTION FOR REVIEW AND 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 9, 2005, the Secretary of Labor filed with the
Commission a petition for interlocutory review challenging Administrative Law Judge T. Todd
Hodgdon' s order denying her motion to certify for interlocutory review an earlier order by the
judge. Unpublished Order dated Jan. 10, 2005 (AIJ). In his earlier order, Judge Hodgdon
denied the Secretary's motion for reconsideration of his order granting in part the motion of
Baylor Mining, Inc. ("Baylor'') to compel the Secretary to disclose certain documents. See 26
FMSHRC 905 (Nov. 2004) (AU) (denying reconsideration); 26 FMSHRC 739 (Aug. 2004)
(AIJ) (granting in part operator's motion to compel discovery).
Upon consideration of the Secretary's petition for interlocutory review, we grant the
petition.
The Secretary shall file her opening brief on or before 20 days from the date of issuance
of this order. Baylor shall file its responst~ brief on or before 15 days from service of the
Secretary's opening brief. The Secretary may file her reply brief on or before 10 days from
service of Baylor's response brief. The Secretary's opening brief and the operator's response
brief shall not exceed 25 pages. The Secretary's reply brief shall not exceed 15 pages.

27 FMSHRC 183

In the briefs, the parties shall address the issues raised in the Secretary's petition,
including the historica1 practice of handling the statements of ininer informants who also serve as
witnesses in Mine Act proceedings; whether the disclosure of the subject statements at issue
would reveal the miner witness' status (or that of any other miner) as informants; the
applicability of the Commission's decision in Secretary of !Abor on behalf of Logan v. Bright
Coal Co.. Inc., 6 FMSHRC 2520 (Nov. 1984) and subsequent Conunission decisions addressing
the informant' s privilege to the current proceeding; and the applicability of the principles of the
Jencks Act, 18 U.S.C. § 3500, to Mine Act proceedings.

27 FMSHRC 184

Distribution
Jack Powasnik, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
David J. Hardy, Esq.
Spilman, Thomas & Battle, PLLC
300 Kanawha Boulevard East
P.0.Box273
Charleston, WV 25321
Administrative Law Judge T. Todd Hodgdon
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

27 FMSHRC 185

FEDERAL MINE SAFETY ANCl HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500

WASHINGTON, D.C. 20001

March 4, 2005
..

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

Docket No. EAJ 2001-2

v.
COLORADO LAVA, INC.

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

DECISION
BY TIIB COMMISSION:
This proceeding arises under the Equal Access to Justice Act ("EAJA"), 5 U.S.C. § 504
(2004), and the Commission's Procedural Rules implementing EAJA, 29 C.F.R. § 2704.100 et
seq. (2004). Administrative Law Judge Avram Weisberger denied an application by Colorado
Lava, Inc. ("Colorado Lava") for attorneys' fees under these provisions. 25 FMSHRC 667, 672
(Nov. 2003) (AU). We granted Colorado Lava's petition for discretionary review challenging
the judge's decision. For the reasons set forth below, we affirm the judge's decision.

I.
Factual and Procedural Background
A.

The Mine Act Proceeding

Jn October 1999, Andrew Garcia, who was employed at the Mountain West Colorado
Aggregates ("MWCA") bagging facility in Antonito, Colorado, made safety complaints to his
supervisor regarding certain equipment. 25 FMSHRC at 668. Subsequently, Garcia complained
to MSHA about the condition of this equipment. Id. In June 2000, Colorado Lava purchased the
Antonito site and rehired all of the MWCA employees except for Garcia and a mechanic. Id.
27 FMSHRC 186

The Secretary filed a complaint of discrimination on behalf of Garcia against Colorado
Lava, alleging that the operator discriminated against him in violation of section 105(c) of the
Mine Act. 23 FMSHRC 213 (Feb. 2001) (ALT). At the conclusion of the Secretary's case,
Colorado Lava made a motion to dismiss, which the judge granted. On appeal, the Commission
vacated the judge's dismissal of the discrimination complaint and remanded the case for further
proceedings. 24 FMSHRC 350, 356 (Apr. 2002). In his decision on remand, the judge found
that the Secretary failed to establish that Colorado Lava discriminated against Garcia in violation
of section 105(c) and di~missed the case. 25 FMSHRC 144, 152 (Mar. 2003) (ALT). Garcia,
proceeding without the Secretary, filed a petition for discretionary review. No two
Commissioners voted to grant review. Notice, Apr. 29, 2003. He then appealed the decision to
the Tenth Circuit Court of Appeals. 25 FMSHRC at 668 n.l. Subsequently, Garcia and
Colorado Lava filed a stipulation to dismiss the appeal. Id.

B.

The BAJA Proceeding

On March 14, 2001, Colorado Lava filed an Application for an Award of Pees and

Expenses under EAJA. C.L. Appl. 1 In support of its application, Colorado Lava asserted that the
Secretary's decision to proceed against it was not substantially justified. Id. at 6. On April 15,
2003, Colorado Lava filed an amended application for fees and expenses in the amount of
$49,574.13.2 C.L. Amend. Appl. at 7-8. In its amended application, Colorado Lava also argued
that under Commission EAJA regulation 29 C.F.R. § 2704.105(b), it should be awarded fees and
expenses because the demand of the Secretary was substantially in excess of the decision of the
Commission and unreasonable when compared with such decision. Id. at 6. It claimed that prior
to the hearing, the Secretary had demanded that it pay Garcia $50,000 in exchange for dismissing
the case, in addition to the Secretary's proposed penalty of $10,000. Id. at 6-7.
The judge ruled that Colorado Lava was not entitled to an award of fees and expenses
under EAJA and denied the application. 25 FMSHRC at 672. He concluded that the Secretary's
position in the case was substantially justified. Id. at 671. He also held that an award under
section 105(b) of the Commission's EAJA regulations (providing for fees and expenses where
the Secretary's demand is substantially in excess of the Commission's decision and is
unreasonable compared to that decision) was only available to entities who did not prevail. Id. at
672. Finding that Colorado Lava was the prevailing party, he concluded that it was not entitled
to any award under this provision. Id. Colorado Lava filed a petition for discretionary review,
which the Commission granted.

1

The judge stayed the proceeding pending the final disposition of the underlying
discrimination case. Order, Apr. 20, 2001. On June 3, 2003, he issued a second order,
continuing to stay the case.
2

Colorado Lava also asked that it be awarded additional amounts (to be invoiced in the
future) for the preparation and defense of the fee application. C.L. Amend. Appl. at 8.
27FMSHRC 187

IL
Disposition
This case presents a question of first impression for the Commission: can a prevailing
party in an administrative proceeding obtafo attorneys' fees and expenses based on the 1996
amendments to EAJA? These amendments expand the basis for recovering fees and expenses to
include certain adversary proceedings against private parties where the government's demand is
excessive and unreasonable. EAJA Amendments, Pub. L. No. 104-121, 110 Stat. 847, 862
(1996).
Section 504(a)(4), the pertinent portion of EAJA, provides:

If, in an adversary adjudication arising from an agency
action to enforce a party's compliance with a statutory or
regulatory requirement, the demand by the agency is substantially
in excess of the decision of the adjudicative officer and is
unreasonable when compared with such decision, under the facts
and circumstances of the case, the adjudicative officer shall award
to the party the fees and other expenses related to defending against
the excessive demand, unless the party has committed a willful
violation of law or otherwise acted in bad faith, or special
circumstances make an award unjust.
5 U.S.C. § 504(a)(4).
Although the judge' s analysis focused almost exclusively on the Commission's EAJ.A
regulations, it is the interpretation of section 504(a)(4) of the statute that ultimately governs the
disposition of this case, as the regulations must be consistent with this statutory authority.
Adams v. SEC, 287F.3d183, 190 (D.C. Cir. 2002), citing Sec'y ofLaborv. Western Fuels-Utah,
Inc., 900 F.2d 318, 320 (D.C. Cir. 1990). Consequently, we first address whether this section of
EAJA permits a fee award3 to Colorado Lava as a prevailing party, before analyzing the
Commission's governing regulations.
A.

The Language of Section 504(a}

The first inquiry in statutory constJUction is "whether Congress has directly spoken to the
precise question at issue." Thunder Basin Coal Co., 18 FMSHRC 582, 584 (Apr. 1996). Turning
to the term at issue here, section 504(a)(4) does not specify whether the "party'' seeking fees may
3

In addition to attorneys' fees, the 1996 EAJA amendments permit the award of certain
litigation expenses. 5 U.S.C. §§ 504(a)(4) and 504(b)(l)(A). The use of the term "fees" herein
also includes such costs.
27 FMSHRC 188

be a prevailing party or a party that has not prevailed.4
As a threshold matter, we need not address whether the language in section 504(a)(4) is
plain or ambiguous. Because EAJA is a statute of general applicability and not administered by
the Secretary, the choice between the two varying interpretations of the statute is a question of
law committed to the Commission for decision. Accordingly, no deference is due to the
Secretary's construction. Contractor's Sand and Gravel, Inc. v. FMSHRC, 199F.3d1335, 1339
(D.C. Cir. 2000); Scafa~ Contracting, Inc. v. Sec'y of Labor, 325 F.3d 422, 428 (3rd Cir. 2003).
The language of section 504(a)(4) itself strongly supports the Secretary's argument that
Congress did not intend prevailing parties to receive fees under this provision inasmuch as it
requires that a demand by an agency be "substantially in excess of the decision of the
adjudicative officer'' to trigger a fee award. 5 U.S.C. § 504(a)(4). The wording of the statute
does not meaningfully apply to cases in which the fee applicant has prevailed and there is no
penalty, as the concept of "excessive demand" only becomes significant when the baseline
comparison is a nwnber other than zero. Virtually every demand in cases where the fee applicant
prevails on liability will not only be "in excess of' zero (the amount the prevailing party
ultimately owes), but could be viewed as "substantially in excess" of zero, whether it is one
hundred dollars, one thousand dollars, ten thousand dollars, or more. Thus, if this section
applied to prevailing parties, they could argue that they meet the requirements of the "excessive
demand" prong of section 504(a)(4) in nearly every instance, rendering it essentially meaningless
(although the Secretary's demand must also be determined to be "unreasonable").
Moreover, the fact that section 504(a)(4) denies fees to a party who has "committed a
willful violation of law" further supports the position that section 504(a)(4) does not apply to
prevailing parties. This provision could only apply where there was a violation in the underlying
merits proceeding. If a party is found to have willfully violated the law in a given matter, it could
not also prevail. Indeed, the reference in section 504(a) to ''violation" - be it willful or not - is
inapposite in a matter where the fee applicant prevails and ultimately no violation is found.
Consequently, the language of section 504(a)(4) indicates that Congress did not contemplate
permitting prevailing parties to obtain fees under this provision.

In addition, if a prevailing party could obtain fees under section 504(a)(4), section
504(a)(l) of EAJA would be compromised. Section 504(a)(l) explicitly provides a mechanism
for prevailing parties to obtain fees, stating in pertinent part:
An agency that conducts an adversary adjudication shall
award, to a prevailing party other than the United States, fees and
other expenses incurred by that party in connection with that
proceeding, unless the adjudicative officer of the agency finds that

4

The definition of "party" in EAJA, rather, focuses on an applicant's net worth. See
5 u.s.c. § 504(b)(l)(B).
27FMSHRC 189

the position of the agency was substantially justified or that special
circumstances make an award unjust.
5 U.S.C. § 504{a)(l). Nothing in the text of section 504(a)(l) would prevent a prevailing party
from including in its application under this provision the claim that it should obtain fees because
the government made an excessive monetary demand.
The Commissi~n has noted, in the preamble to the 1998 amendments to the
Commission's EAJA regulations, "the showing of reasonableness of the Secretary's demand is
analogous to the Secretary's burden of providing substantial justification." 63 Fed. Reg. 63172,
63173 (Nov. 12, 1998).5 Under Colorado Lava's theory, if a prevailing party is not able to obtain
fees and expenses under section 504(a)(l) (because the agency position was substantially
justified),6 it would nonetheless be eligible for fees under section 504(a)(4)'s "excessive and.
unreasonable" standard.7 This would give the prevailing party two opportunities for collecting
fees under EAJA, with the determination for both claims essentially being whether the
government acted reasonably. Thus, the party's argument that the government's demand was
"excessive and unreasonable" would necessarily prove unsuccessful if the agency's position had
already been held to be substantially justified.
Here, the judge found the Secretary's position "substantially justified." 25 FMSHRC at
611. Colorado Lava did not appeal this determination. However, because of this finding by the
judge, even if the Commission were to hold that Colorado Lava was initially eligible to apply for
fees under section 504(a)(4), to obtain a foe award the operator would have to prove not only that
the Secretary's demand was excessive but that it was unreasonable. 5 U.S.C. § 504(a)(4). See
American Wrecking Corp. v. Sec'y of Labor, 364 F.3d 321, 327 (D.C. Cir. 2004) ("AWC') ("the
Secretary's initial demand only appear[ed] 'unreasonable' to the extent that her position in
litigation and before the agency was not ' substantially justified"'). Colorado Lava cannot meet
the requirement that the Secretary' s demand was "unreasonable" because the Secretary's position
has already been found to be substantially justified.

5

This overlap between findings made under section 504(a)(l) and section 504(a)(4) was
noted by the National Transportation Safety Board in an EAJA proceeding. See Administrator v.
Lee H. Allen, NTSB Order No. EA-4617, slip op. at 6 n.6 (Jan. 23,1998), aff'd, Allen v. National.
Transp. Safety Bd., 160 F.3d 431 (8th Cir. 1998) (even assuming section 504(a)(4) applied to
administrative action, applicant would faiJ to meet standard for showing "unreasonable" action
where NTSB found action to be "substantially justified").
6

The Supreme Court has defined "substantially justified" as a position that has a
"reasonable basis both in law and fact." Pierce v. Underwood, 487 U.S. 552, 565 (1988).
7

However, under section 504(a)(4), a party's fees and expenses are limited to those
incurred defending against the excessive demand, while those awarded to a prevailing party
under section 504(a)(l) are not restricted in this manner.
27FMSHRC 190

We note also that EAJA sets forth different financial eligibility requirements for
applicants under section 504(a)(l) and those under section 504(a)(4). 5 U.S.C. § 504(b)(l)(B).
Generally, parties seeking fees pursuant to section 504(a)(l) must either be individuals with a net
worth of two million dollars or less, or corporations or other organizations with a net worth of
seven million dollars or less and which had not more than 500 employees at the time the
adversary adjudication was initiated. Id. In contrast, parties seeking fees under section 504(a)(4)
must be "small entities" as set forth in 5 U.S.C. § 601, which in turn defines "small entities" as
small businesses under 1:fie Small Business Act, certain non-profit enterprises, and small
governmental bodies with a population of less than fifty thousand. 5 U.S.C. § 601(3), (4) & (5).
It is unlikely that Congress would have established different financial standards if a prevailing
party could seek fees under section (a)(l) and/or section (a)(4).
Finally, in L & T Fabrication & Construction, Inc., 22 FMSHRC 509 (Apr. 2000), the
Commission characterized section 504(a)(4) as "expand[ing] the basis for recovering fees and
expenses to include certain claims against private parties who did not prevail against the
government." Id. at 513 (emphasis added). The case, which presented the Commission with its
first opportunity to interpret the 1996 EAJA amendments, involved the entitlement of a losing
party to fees under section 504(a)(4).8
B.

The Statutory Context

Our construction of section 504(a)(4) is supported by the entire statutory scheme of
EAJA, including 28 U.S.C. § 2412(d)(l)(D).9 That section, enacted in the same public law as

8

Colorado Lava relies on an unreviewed decision by an administrative law judge for the
Occupational Safety and Health Review Commission, Sec'y oflabor v. Wolkow Braker Roofing
Corp. , Nos. 97-1773 and 98-0245, 2000WL1466087 (OSHRC-ALJ Sept. 13, 2000). That
decision has no precedential impact here.
9

28 U.S.C. § 2412(d)(l)(D) provides:

If, in a civil action brought by the United States or a proceeding for
judicial review of an adversary adjudication described in section
504(a)(4) of title 5, the demand by the United States is
substantially in excess of the judgment finally obtained by the
United States and is unreasonable when compared with such
judgment, under the facts and circumstances of the case, the court
shall award to the party the fees and other expenses related to
defending against the exce~:sive demand, unless the party has
committed a willful violation of law or otherwise acted in bad
faith, or special circumstances make an award unjust.
(emphasis added).
27 FMSHRC 191

5 U.S.C. § 504(a)(4), applies to court-awarded fees. We recognize that "each part or section [of
a statute] should be construed in connection with every other·part or section so as to produce a
harmonious whole. ... [A] statutory subsection may not be considered in a vacuum, but must be
considered in reference to the statute as a whole ...." 2A Norman J. Singer, Sutherland
Statutory Construction,§ 46.05 (6th ed. 2000). See also Meredith v. FMSHRC, 177 F.3d 1042,
1053-54 (D.C. Cir. 1999).

Section 504(a)(4) is referenced in section 2412(d)(l)(D), which states that the court shall
award fees and expenses related to defending an excessive and unreasonable demand in a civil
action "or a proceeding for judicial review of an adversary adjudication described in section
504(a)(4) of title 5." 28 U.S.C. § 2412(d)(l)(D). Thus, section 504(a)(4) is linked with a
corresponding provision of BAJA whose language explicitly limits awards to non-prevailing
parties. See Scafar Contracting, Inc., 325 F.3d at 425 (provisions in 5 U.S.C. § 504 and those in
28 U.S.C. § 2412 "are closely intertwined"). In holding that the term at issue ("final
disposition") was ambiguous, id. at 426, and should be construed to mean in section 504 what
Congress explicitly stated it meant in the amended (and clearly-written) section 2412, the Scafar
Court stated that "[t]his construction also creates continuity within the BAJA by aligning the
meaning of the term 'final disposition' in§ 504 with its counterpart in§ 2412." Id. at 432. See
also Adams, 287 F.3d at 189 (noting that its interpretation of the term "final disposition" "will
provide consistency among agency proceedings as well as with court cases"). Thus, under the
Court's reasoning, the limitation of section 2412(d)(l)(D) to non-prevailing parties should b~
found in the language of section 504(a)(4).

In interpreting 28 U.S.C. § 2412(d)(l)(D), a provision analogous to section 504(a)(4), the
District of Columbia Circuit, in A WC, commented on the overlap of BAJA' s "substantial
justification" and "excessive demand" prongs under 28 U.S.C. § 2412(d) as a basis of recovery. 10
In A WC, the Court held that the Secretary' s position was not "substantially justified" in some but
not all aspects of the litigation (which involved violations of regulations of the Occupational
Safety and Health Administration). 364 F.3d at 323, 326-27. The Court stated that, "[t]he
function of§ 2412(d)(l)(D)·is merely to permit non-prevailing parties to recover fees and
expenses where the United States obtained a judgment that was substantially- and unreasonably
- exceeded by its initial demand." Id. at 328 (emphasis in original).
Colorado Lava argues that if Congress had intended to exclude prevailing parties from
proceeding under section 504(a)(4), it would have said so. PDR at 8; C.L. Br. at 4. It bases this
claim on the fact that in the corresponding section of BAJA relating to court-awarded fees, 28
U.S.C. § 2412(d)(l)(D), Congress did just that by stating that parties were entitled to recover fees
and expenses only where the United States obtains a "judgment" that was substantially and

10

28 U.S.C. § 2412(d)(l)(A), the counterpart to 5 U.S.C. § 504(a)(l), pennits a court to
award fees and expenses to a prevailing party unless the position of the United States was
substantially justified or special circumstances make an award unjust. 28 U.S.C.
§ 2412(d)(l)(A).
27 FMSHRC 192

unreasonably exceeded by its initial demand. AWC, 364 F.3d at 328. However, Colorado Lava's
argument that Congress intended prevailing parties to be eligible for awards under section
504(a)(4) because it used the phrase "substantially in excess of the decision of the adjudicative
officer" instead of the language in section 2412(d)(l)(D) ("substantially in excess of the
judgment finally obtained by the United States") is explained by the terminology applied in
administrative proceedings. Generally, the outcome of an administrative case is disposed of in a
"decision" or an "order," 11 whether the government prevails or not. Therefore, Congress would
not have employed the same language 'judgment finally obtained" in the EAJA section
pertaining to administrative litigation.
Thus, the language of section 2412(d)(l)(D) supports the reading that section 504(a)(4)
should also be limited to non-prevailing parties. This interpretation maintains consistency
between the two provisions and creates a harmonious, coherent statutory framework guiding fee
awards for both agency and court proceedings under the 1996 EAJA amendments.
C.

The Legislative History

The legislative history of the 1996 amendments supports the reading that fee awards
under section 504(a)(4) are limited to non-prevailing parties. 12 The most compelling section of
the legislative history addressing the issue before us is found in a portion of the legislative
summary submitted by Representative Henry Hyde, chief sponsor of the bill in the House of
Representatives. That summary stated that the legislation would:
allow parties which do not prevail in a case involving the
government to nevertheles8 recover a portion of their fees and cost
[sic] in certain circumstances. The test for recovering attorneys
fees is whether the agency or government demand that led to the
administrative or civil action is substantially in excess of the final
outcome of the case and is unreasonable when compared to the
final outcome (whether a fine, injunctive relief or damages) under
the facts and circumstance~• of the case.
142 Cong. Rec. E571, E573 (Apr. 19, 1996) (emphasis added).

11

The Mine Act refers to "orders» and "decisions" in several sections. See 30 U.S.C.
§ § 815(c)(2), 816 & 823(d)(l) (2000).
12

Colorado Lava argues that the legislative history of EAJA should be disregarded
(Reply Br. at 4, 8). We disagree. It is appropriate to examine legislative history to ensure our
construction conforms to the statute as a whole and is consistent with its purpose. See Local
Union 1261 UMWA v. FMSHRC, 917 F.2d 42, 46 (D.C. Cir. 1990) ("[t]he 'traditional tools of
statutory construction' include not only the words of the statute, but also its relevant legislative
history").
27 FMSHRC 193

Furthermore, the House Report der;cribing the 1996 amendments states that a "small
entity would not be required to prevail in the underlying action; the final outcome must be,
however, to require payment of an amount substantially less than what the agency sought to
recover." H.R. Rep. No. 500, 104th Cong., 2nd Sess. at 2 (1996). This requires that the party
seeking fees ultimately made some payment, which would not be the case for a prevailing party.
See also 142 Cong. Rec. S2148, S2159 (Mar. 15, 1996) (Committee legislative history for S.
942, the Senate bill containing the 1996 BAJA amendments) (the test for recovering attorneys'
fees is "whether the fit)al outcome imposed or ordered in the case (whether a fine, injunctive.
relief or damages) is disproportionately less burdensome on the small entity than the
government's actual demand.... The test is whether the demand is out of proportion with the
actual value of the violation.").
D.

The Commission's BAJA Regulations

Our detennination that the statute does not authorize a fee award to a prevailing party
leads to the conclusion that the Commission's BAJA regulations must also prohibit such an
award. See Adams, 287 F.3d at 190 ("[Securities and Exchange] Commission's regulation,
ambiguous on its face, must be construed to avoid inconsistency with BAJA"). An analysis of
the regulations indicates that this is the case.
Section 105(b) of the Commission's EAJA regulations states in pertinent part:

If the demand of the Secretary is substantially in excess of
the decision of the Commission and is unreasonable when
compared with such decision, under the facts and circumstances
of the case, the Commission shall award to an eligible applicant
the fees and expenses related to defending against the excessive
demand ... .
29 C.F.R. § 2704.lOS(b). ·

In the preamble to the final BAJA regulations, the Commission stated that, while the
current BAJA rules provide for awards to prevailing parties in cases where the Secretary's
position is not substantially justified, the new rule (29 C.F.R. § 2704.305) "eliminate[s] the
reference to 'prevailing' party status because an EAJA award is no longer limited to proceedings
involving a prevailing party but includes those proceedings in which the Secretary has made a
substantially excessive and unreasonable demand." 63 Fed. Reg. at 63174. In agreement with the
judge, we note that the regulations delineate between "prevailing applicants" for purposes of an
award under the "substantial justification" regulation, 29 C.F.R. § 2704.105(a), and "eligible
applicants" for purposes of an award under the "excessive and unreasonable demand" regulation,
29 C.F.R. § 2704.105(b). 25 FMSHRC at 671. The judge emphasized the language setting forth
the purpose of the regulations in 29 C.F.R. § 2704.100, comparing the provision that an "eligible
party may receive an award when it prevails" unless the Secretary's position is substantially
27 FMSHRC 194

justified, with the statement that an "eligible party" may receive an award under the excessive
demand prong. 25 FMSHRC at 671 (emphasis in original). In short, the language of the
Commission's regulations supports the Secretary's position and is consistent with our reading of
section 504(a).

m.
Conclusion
We thus conclude.that a prevailing party in administrative proceedings may not rely on
section 504(a)(4) to obtain attorneys' fees under BAJA. We reach this conclusion based on the
language of section 504(a)(4), the context of this provision within the overall framework of
BAJA, and the legislative history of the 1996 EAJA amendments. In addition, case law and the
Commission's implementing regulations applying section 504(a)(4) support limiting this section
to non-prevailing parties.
For the foregoing reasons, we affinn the judge's decision.

27 FMSHRC 195

Distribution
Ellen L. Beard, Senior Appellate Attorney
Jennifer R. Marion, Law Clerk
Office of the Solicitor
U.S. Department of Labor
Room 2700
200 Constitution Ave'., N.W.
Washington, D.C. 20210
Mark W. Nelson, Esq.
Hall & Evans, LLC
1125 Seventeenth St., Suite 600
Denver, CO 80202
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

27 FMSHRC 196

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
W A$HINGTON, DC 20001

March 7, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2005-104-M
A.C. No. 05-00438-37368A

v.
TERRY J. VANCE, employed by
DICAPERL MINERALS CORP.

BEFORE: Duffy, Chairman; Jordan, Suboleski, 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 December l , 2004, the Commission received from Terry
J. Vance a motion made by counsel to reopen a penalty assessment for a violation of section
llO(c) of the Mine Act, 30 U.S.C. § 820(c), 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 and the Commission' s Procedural Rules, an
individual charged with a violation under :;ection l lO(c) has 30 days following receipt of the
Secretary of Labor's proposed penalty assessment within which to notify the Secretary that he or
she wishes to contest the proposed penalty. 30 U.S.C. § 815(a); 29 C.F.R. § 2700.26. If the
individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order
of the Commission. 30 U.S.C. § 815(a); 29 C.F.R. § 2700.27.
On September 13, 2004, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued a proposed penalty assessment (A.C. No. 05-00438-37368A)
to Vance. In his motion, Vance states the proposed assessment was sent by certified mail, return
receipt requested, and it was signed for by Georgia Vance on September 25, 2004. Mot. at 2.
Vance further states that, on October 12, 2004, the proposed assessment was forwarded to
counsel. Id. Vance asserts that, on October 13, 2004, Tami Charlson, counsel' s legal assistant,
27 FMSHRC 197

contacted MSHA's assessment office and was informed the proposed assessment was received
by Vance on October 6, 2004. Id. Accorcijngly, Vance asserts, counsel filed the penalty contest
on November 4, 2004. Id. Vance states that, on November 22, 2004, counsel received a letter
from MSHA stating the penalties were not timely contested. Id. The affidavit of Ms. Charlson is
attached to Vance' s motion. Vance did not provide any other supporting documentation. The
Secretary states that she does not oppose Vance' 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 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).

27 FMSHRC 198

Having reviewed Vance's .request, in the interests of justice, we remand this matter to the
Chief Administrative Law Judge for a determination of whether good cause exists for Vance'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.

27 FMSHRC 199

Distribution
Karen L. Johnson, Esq.
Jackson Kelly, Pl.LC
1099 181h Street, Suite 2150
Denver, CO 82022

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 2200 Floor
Arlington, VA 22209

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

27 FMSHRC 200

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
W~;HINGTON, DC 20001

March 7, 2005
SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2005-111-M
A.C. No. 05-00438-37367A

v.
CLAUDE S. RADFORD, employed by
DICAPERL MINERALS CORP.

BEFORE: Duffy, Chairman; Jordan, Subolesk.i, 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 December 7, 2004, the Commission received from
Claude S. Radford a motion made by counsel to reopen a penalty assessment for a violation of
section l lO(c) of the Mine Act, 30 U.S.C. § 820(c), that had become a final order of the
Commission pursuant to secti<?n 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act and the Commission's Procedural Rules, an
individual charged with a violation under :;ection l IO(c) has 30 days following receipt of the
Secretary of Labor's proposed penalty assessment within which to notify the Secretary that he or
she wishes to contest the proposed penalty. 30 U.S.C. § 815(a); 29 C.F.R. § 2700.26. H the
individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order
of the Commission. 30 U.S.C. § 815(a); 29 C.F.R. § 2700.27.
On September 13, 2004, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued a propo:;ed penalty assessment (A.C. No. 05-00438-37367A)
to Radford. In his motion, Radford states the proposed assessment was sent by certified mail,
return receipt requested, and it was signed for on September 27, 2004. Mot. at 2. Radford
further states that, on October 19, 2004, the proposed assessment was forwarded to counsel. Id.
Radford asserts that counsel was informed by his employer, Dicaperl Minerals Corp., that his
27 FMSHRC 201

proposed assessment was received on the same date as the proposed assessment received by his
co-worker, Terry J. Vance. Id. Radford asserts that, on October 13, 2004, Tami Charlson,
counsel's legal assistant, contacted MSHA's assessment office and was informed that Vance's
proposed assessment was received on OctQber 6, 2004. Id. Accordingly, Radford asserts,
counsel filed the penalty contest on November 4, 2004. Id. Radford states that, on December 6,
2004, counsel received a letter from MSHA stating the penalties were not timely contested. Id.
A copy of Ms. Charlson' s affidavit is attached to Radford's motion. Radford did not provide any
other supporting documentation. The Secretary states that she does not oppose Radford's request
for relief.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have becomt}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 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 merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC l529, 1530 (Sept. 1995).

27 FMSHRC 202

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

27 FMSHRC 203

Distribution
Karen L. Johnson, Esq.
Jackson Kelly, PILC
1099 18th Street, Suite 2150
Denver, CO 82022
W . Christian Schum~n. Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22od Floor
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Ave., N.W., Suite 9500
Washington, D.C. 20001

27 FMSHRC 204

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

W,\!;HINGTON, DC 20001

March 7, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEV A 2005-41
A.C. No. 46-01271-39038

v.
EASTERN ASSOCIATED COAL CORP.

BEFORE: Duffy, Chairman; Jordan, Soboleski, 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 December 7, 2004, the Commission received from
Eastern Associated Coal Corp. ("Eastern") 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 lOS(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S .C. § 815(a).
On September 30, 2004, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued a proposed penalty assessment (A.C. No. 46-01271-39038) to
Eastern's Harris No. 1 Mine in Wharton, West Virginia. In its motion, Eastern states that, on the
same day, Eastern's parent, Peabody Energy, Inc., closed its Henderson, Kentucky office which
had handled Eastern' s penalty contests and payments. Mot. at 1. Eastern asserts that on October
1, 2004, it informed its mines that penalties would be paid by its Charleston, West Virginia office
and penalty contests would be handled by Peabody Energy's law department in St. Louis,
Missouri. Id. at 1-2. Eastern asserts that on October 27, 2004, the Harris No. 1 Mine forwarded
the proposed assessment to Peabody Energy's law department requesting payment for all

27 FMSHRC 205

citations except Citation Nos. 7208626, 7221536, 7221537, and 7221538. Id. at 2. According to
Eastern, a copy of the proposed assessment was forwarded by e-mail to the Charleston office for
payment with a note to "check off' citations to be contested. Id. However, Eastern asserts the
Charleston office never received the original proposed assessment and, as a consequence, it was
not paid and Citations Nos. 7208626, 7221536, 7221537, and 7221538 were not contested. Id.
Eastern did not attach any supporting documentation to its motion. The Secretary states that she
does not oppose Eastern' s request for relit:f.
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).

27 FMSHRC 206

Having reviewed Eastern' s motion, in the interests of justice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether good cause exists for
Eastern' 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.

27 FMSHRC 207

Distribution
Anne Wathen O'Donnell, Esq.
Eastern Associated Coal Corp.
701 Market Street,
St. Louis, MO 63101
Michael R. Pauley
500 4th Street, W.
Madison WV 25130
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209
Chief Administrative Law Judge Robert J . Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Ave., N.W., Suite 9500
Washington, D.C. 20001

27 FMSHRC 208

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

surre ssoo
WAUHINGTON, DC 20001

March 7, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADM1NISTRATION (MSHA)
Docket No. CENT 2005-60-M
A.C. No. 41-04355-28808

v.
KIRBY STONE COMPANY

BEFORE: Duffy, Chairman; Jordan, Suboleski, 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 December 17, 2004, the Commission received from
Kirby Stone Company ("Kirby") a letter which we construe as a request to reopen a penalty
assessment that had become a final order of the Commission pursuant to section lOS(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On June 9, 2004, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment (A.C. No. 41-04355-28808) to Kirby's Roach
Quarry II. In its request, Kirby states that confusion caused by the transfer of business
responsibilities due to·a personal illness resulted in its failure to timely request a hearing. Letter
at 1. Kirby asserts that it was not aware of the proposed assessment until informed by its quarry
manager. Id. Kirby states that it has attempted to resolve this matter since early September
without success. Id. Kirby did not attach any supporting documentation to its request. The
Secretary states that she does not oppose Kirby's request for relief.

27 FMSHRC 209

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 paity 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 Kirby's request, in the interests of justice, we remand this matter to the
Chief Administrative Law Judge for a determination of whether good cause exists for Kirby's
failure to timely contest the penalty proposal and whether relief from the final order should be
granted. If it is detemtlne<;l 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.

.)

27 FMSHRC 210

Distribution
Margie Kirby
Kirby Stone Company
Box 178
Lometa, TX 76853
W. Christian Schumann, Esq.
Office of the Solicitor ·
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Ave., N.W., Suite 9500
Washington, D.C. 20001

27 FMSHRC 211

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

March 7, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMJNISTRATION (MSHA)
Docket No. WEYA 2005-47
A.C. No. 46-08645-30616

v.
INDEPENDENCE COAL COMPANY
d/b/a PROGRESS COAL COMPANY

BEFORE: Duffy, Chairman; Jordan, Subolesk:i, 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 December 28, 2004, the Commission received from

Independence Coal Company d/b/a Progress Coal Company (''Progress") a motion made by
counsel to reopen a penalty assessment that had become a final order of the Commission
pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On June 30, 2004, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment (A.C. No. 46-08645-30616) to Progress'
Twilight MTR Surface Mine in Boone, West Virginia for 45 alleged violations, including
Citation No. 4191465 and Order No. 4191466. In its motion, Progress states that on August 20,
2003, it had contested Citation No. 4191465 and Order No. 4191466, which are the subject of
Docket Nos. WEVA 2003-240-R and WEVA 2003-241-R, and are stayed before Commission
Administrative Law Judge T. Todd Hodgdon. Mot. at 1 & 4. Progress states the proposed
assessment was sent by certified mail to the attention of Bryan Petrosky, Progress' safety
27 FMSHRC 212

director, but that it was signed for by a temporary summer student employee on July 12, 2004.
Id. at 2-3. Progress asserts that it was not until September 1, 2004, that Mr. Petrosky received the
proposed assessment, placed check marks in the boxes next to the citations and orders he
intended to contest, and requested that Progress' accounting department pay the assessment for
the remaining citations. Id. Progress states that, on September 9, 2004, MSHA received its
payment but not its contest of civil penalty. Id. at 2. According to Progress, MSHA did not
understand which cases were being paid. Id. Progress asserts the check stub attached to its
check listed three invoice numbers, one of which coincides with this case. Id. at 2-4. Progress
attached copies of three documents to its motion: Mr. Petrosky' s affidavit, its contest of civil
penalty, and its record of payment. The Secretary states that she does not oppose Progress'
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 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).

27 FMSHRC 213

Having reviewed Progress' motion, in the interests of justice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether good cause exists for
Progress' 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.

27 FMSHRC 214

Distribution
Donna C. Kelly, Esq.
Dinsmore & Shohl, LLP
P.O. Box 11887
Charleston, WV 25339
W. Christian Schumann, Esq.
Office of the Solicitor
U .S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Ave., N.W., Suite 9500
Washington, D .C. 20001

27 FMSHRC 215

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

March 10, 2005

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2005-58-M
A.C. No. 38-00310-43246

v.
HANSON AGGREGATES, SE, INC.

BEFORE: Duffy, Chairman; Jordan, Suboleski, 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 11, 2005, the Commission received from Hanson

Aggregates, Southeast, Inc. ("Hanson") 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 November 17, 2004, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued a proposed penalty assessment (A.C. No. 38-00310-43246) to
Hanson's Sandy Flat Quarry for Citation No. 6113730. In its letter, Hanson states that it
contested Citation No. 6113730 on September 15, 2004, and that this contest proceeding is
currently before Commission Administrative Law Judge Gary Melick under Docket No. SE
2004-241-RM. Hanson states that when it received the proposed penalty assessment for Citation
No. 6113730, the assessment was "accidentally filed" rather than being sent to the company's
safety manager for action. The Secretary !itates that she does not oppose Hanson's request for
relief.
27 FMSHRC 216

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section IOS(a). Jim
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 FMSfIRC 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 appropria~ proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Hanson's motion, in the interests of justice, we remand this matter to the
Chief Administrative Law Judge for a dete:rmination of whether good cause exists for Hanson'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.

27 FMSHRC 217

Distribution
Scott Hartness, CMSP
Hanson Aggregates Southeast, Inc.
3131 RDU Center Drive, Suite 220
Morrisville, NC 27560
W. Christian Schum~n, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 2200 Floor West
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

27 FMSHRC 218

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

surre 9500
WA!;HINGTON, DC 20001

March 10, 2005

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
DocketNo. WEVA 2004-161
A.C. No. 46-07009-27582 A

v.
JOEL DINGESS, Employed by
ELK RUN COAL COMPANY

BEFORE: Duffy, Chairman; Jordan, Soboleski, and Young, Commissioners
ORDER
BY: Duffy, Chairman; Suboleski and Young, Commissioners
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (2000) (''Mine Act"). On August 19, 2004, Chief Administrative
Law Judge Robert Lesnick issued to Joel Dingess an Order to Show Cause for failure to answer
the Secretary of Labor's petition for asses:>ment of penalty. Dingess was charged by the
Secretary with a violation of section llO(c) of the Mine Act, 30 U.S.C. § 820(c). On November
8, 2004, Administrative Law Judge Gary Melick issued a Default Decision and Order to Pay
upon Dingess's failure to respond to the Chief Judge's show cause order.
On January 27, 2005, the Commission received correspondence from Karen Barefield of
the U.S. Department of Labor's Office of the Solicitor transmitting to the Commission two
handwritten letters from Dingess alleging that the fine proposed against him was excessive and
requesting Judge Melick "look over my case and reassess my fine." Dingess offers no
explanation for his failure to respond to Judge Lesnick's Show Cause Order. In her transmittal
letter, Ms. Barefield states that "Mr. Dingess is cooperating with the Secretary and wishes to
have his case reopened." We are treating Dingess' letters that were forwarded to the
Commission as a motion to reopen the penalty assessment.
The judge's jurisdiction in this matter terminated when his decision was issued on
November 8, 2004. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission's
procedural rules, relief from a judge's decision may be sought by filing a petition for
27 FMSHRC 219

discretionary review within 30 days of its i~;suance. 30 U.S.C. § 823(d)(2); 29 C.F.R.
§ 2700.70(a). If the Commission does not direct review within 40 days of a decision's issuance,
it becomes a final decision Of the Commission. 30 U.S.C. § 823(d)(l). The Commission has not
directed review of the judge' s order here, which became a final decision of the Commission on
December 20, 2004.

In evaluating requests to reopen final orders, the Commission has found guidance in Rule
60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled
to relief from a final order of the Commission on the basis of inadvertence or mistake. See 29
C.F.R. § 2700.l(b) ("the Commission and :its Judges shall be guided so far as practicable by the
Federal Rules of Civil Procedure"); Jim Walter Resources, Inc., 15 FMSHRC 782, 787 (May
1993). We have also observed that default is a harsh remedy and that, if the defaulting party can
make a showing of good cause for a fail um. to timely respond, the case may be reopened and
appropriate proceedings on the merits pemlitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529,
1530 (Sept. 1995).
Having reviewed Dingess' s request, in the interests of justice, we hereby remand this
matter to the Chief Administrative Law Judge for a detennination of whether good cause exists
to excuse Dingess' s failure to respond to the show cause order and for further proceedings as
appropriate.

~k:
Michaeli' Chall'illan

27 FMSHRC 220

Chairman Jordan, dissenting,

:~·.

I would deny Joel Dingess' s request to reopen this matter. He seeks review of the judge's
order of default, but has offered no explanation for his failure to timely file an answer to the
Secretary's petition for assessment of penalty or to the judge's show cause order. This case is
thus similar to Cusic Trucking, Inc., 21 FMSHRC 701 (July 1999), in which the Commission
denied the operator's request for relief from the final Commission decision because the operator
had offered no reason forits failure to respond to the petition for penalty assessment or to the
judge's show cause order. Id. at 702-03. We noted in Cusic that, as in the instant case, "the
judge's show cause order ... unambiguously and in plain language ordered [the operator] to
'send an Answer ... within 30 days or show good reason for [fai1ing].to do so."'.Id. at 702 n.l
(citation omitted). Giv.en the complete lack of any explanation as to why this instruction was
entirely disregarded, I would deny this request for relief from a final order. See also Prairie
Materials Sales Inc., 26 FMSHRC 800, 801(Oct.2004) (denying operator's petition for
discretionary review because it did not address the validity of the Chief Judge's default order nor
provide any reasons why the default order should be vacated). Accordingly, I respectfully
dissent.

2.7 FMSHRC 221

Distribution
Joel Dingess
HC 74, Box 3248
Chapmanville, WV 25508
Karen M. Barefield, Esq.
Office of the Solicitor _
U.S. Department of Labor
1100 Wilson Blvd., 2200 Floor West
Arlington, VA 22209-2247
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22°d Floor West
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

27 FMSHRC 222

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WA!;HINGTON, DC 20001

March 10, 2005

SECRETARY OF LABOR,
MINE SAFETY AND HEALTII
ADMINISTRATION (MSHA)
Docket No. CENT 2005-73-M
A.C. No. 34-01299-42432

v.

MARTIN MARIETTA AGGREGATES

BEFORE: Duffy, Chairman; Jordan, Suboleski, 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 7, 2005, the Commission received from Martin

Marietta Aggregates ("Martin Marietta") 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).
During November 2004, the Depaitment of Labor's Mine Safety and Health
Administration ("MSHA") issued a proposed penalty assessment (A.C. No. 34-01299-42432) to
Martin Marietta's Davis Quarry. The proposed assessment was delivered to Martin Marietta's
Southwest Division Office in San Antonio, Texas. Mot. at L Martin Marietta asserts that on
January 5, 2005, its counsel determined that the proposed assessment had been "misplaced and
subsequently forgotten" in the confusion of an office move. Id. at 2. Martin Marietta contacted
MSHA and obtained a copy of the proposed assessment and realized "it was delinquent in filing
a contest." Id. The Secretary states that she does not oppose Martin Marietta's request for relief.

27 FMSHRC 223

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). fu evaluating requests to .
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure 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 Procedu.re"); 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 :md appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
·
Having reviewed Martin Marietta's motion, in the interests of justice, we remand this
matter to the Chief Administrative Law Judge for a determination of whether good cause exists
for Martin Marietta's failure to timely cont.est 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.

27 FMSHRC 224

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

27 FMSHRC 225

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

:March 11, 2005
SECRETARY OF LABOR,
M1NE SAFETY A.NI?·HEALTH
ADMINISTRATION (MSHA), on
behalf of WILFREDO MORALES
Docket No. SE 2005-71-DM

v.
ARENERO RAFAEL COLON, INC.

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners
DECISION
BY THE COMMISSION:
This temporary reinstatement proceeding arises under section 105(c)(2) of the Federal
Mine Safety and Health Act of 1977 ("Mim~ Act" or "Act"), 30 U.S.C. § 815(c)(2) (2000). On
March l, 2005, the Commission received from Arenero Rafael Colon, Inc. ("Arenero") a petition
for review of Administrative Law Judge David Barbour's February 24, 2005 order temporarily
reinstating Wilfredo Morales ("Morales") pursuant to section 105(c)(2) of the Act. 27 FMSHRC
160, 167 (Feb. 2005). See also 29 C.F.R. § 2700.45. On March 8, the Commission received the
Secretary of Labor's opposition to Arenero' s petition. For the reasons that follow, we grant the
petition for review and affirm· the judge's order requiring the temporary reinstatement of Morales.
Morales was a miner employed by Arenero as a heavy equipment operator until his
discharge on July 6, 2004. On November 15, 2004, he filed a discrimination complaint with the
Department of Labor's Mine Safety and Health Administration ("MSHA") pursuant to section
105(c) of the Mine Act. Following an inve:;tigation, the Secretary of Labor determined that the
discrimination complaint filed by Morales was not frivolously brought. On February 4, 2005, the
Secretary filed an application for the temporary reinstatement of Morales. On February 15, 2005,
an evidentiary hearing on the Secretary's application was held. On February 24, 2005, the judge
issued his decision in which he temporarily reinstated Morales, concluding that the complaint was
not frivolously brought.
Arenero operates a sand processing facility in San Lorenzo, Puerto Rico. 27 FMSHRC at
160. Once sand is extracted, it is loaded onto haulage trucks which are driven to the facility's
processing plant. Id. To reach the plant, haulage drivers must descend a slope of approximately
27 FMSHRC 226

15 degrees. Id. There are drops on both sides of the slope, and where the drops are located, the
road is bermed with sand. Id.
On the morning of Thursday, July 1, 2004, Morales arrived at the mine to drive a haulage
truck. Id. at 162. He and three haulage truck drivers who were contract employees went to the
sand extraction area. Id. However, because it had rained the night before and the road was wet
and slippery, the drivers were reluctant to drive back down the slope with loaded trucks because,
according to Morales, they did not think it was safe. Id. at 161-62. Morales testified that in order
for the haulage trucks to drive safely on the road, either the bulldozer needed to scrape the wet
material from the sloped part of the road or the drivers needed to wait until the road was dried by
the sun. Id. at 162; Tr. 23. On that day, however, according to Morales, the bulldozer broke
down and could not scrape the wet material from the road. 27 FMSHRC at 162.
While the drivers waited for the mechanic to repair the bulldozer, supervisor Ruben
Roman went to the extraction area to check on why the trucks had not arrived at the sand plant.
Id. He stated that because the drivers had been able to travel to the top of the slope safely, the
road was in good enough condition to travel down. Id.
Subsequently, German Colon, the plant manager and treasurer of the mine, traveled to the
top of the slope. Id. at 163. When the drivers told him they were not hauling sand to the plant
because the road was "not okay," he replied that it was in good condition because their vehicles
had gone up the slope safely. Id. Shortly thereafter, the drivers began hauling sand to the plant
because they were concerned that Colon would fire them if they continued to refuse to drive. Id.
at 164. By then, the sun had dried the road, making it safe to travel. Id.
Morales worked on Friday, July 2 and Saturday, July 3, 2004. On Saturday, Roman told
him not to bring his truck to work on July 6, and that Colon wanted to meet with him. Id. On
July 6, Colon met with Morales and discharged him. Id. Although there is conflicting testimony
regarding the reasons articulated for the discharge, both Morales and Colon testified that Morales
was fired, at least in part, for "insubordination." Id.; Tr. 41, 143-44. 1
Under section 105(c)(2) of the Mine Act, ''if the Secretary finds that [a discrimination]
complaint was not frivolously brought, the Commission, on an expedited basis upon application
of the Secretary, shall order the immediate reinstatement of the miner pending final order on the
complaint." 30 U.S.C. § 815(c)(2). The Commission has repeatedly recognized that the '"scope
of a temporary reinstatement hearing is nan'Ow, being limited to a determination by the judge as to
whether a miner's discrimination complaint is frivolously brought."' See Sec'y of Labor on behalf
of Peters v. Thunder Basin Coal Co., 15 FMSHRC 2425, 2426 (Dec. 1993). The Commission
applies the substantial evidence standard in reviewing the judge's determination regarding

1

Colon testified that he also told Morales he was discharging him because his truck did
not have an automated load cover, and because Morales's work performance was poor. 27
FMSHRC at 164.
27 FMSHRC 227

whether the complaint was frivolously brought. Sec'y of Labor on behalf of Bussanich v.
Centralia Mining Co., 22 FMSHRC 153, 157 (Feb. 2000).
The only issue before us is whether substantial evidence supports the judge's
determination that Morales's discrimination complaint was not frivolously brought. After careful
review of the pleadings and record evidence, we conclude that the judge's detennination that the
complaint was not frivolously brought is supported by substantial evidence and is consistent with
applicable law. We intimate no view as to the ultimate merits of this case.
Accordingly, we affirm the judge's decision temporarily reinstating Morales.

27 FMSHRC 228

Distribution
Luis Vargas Lopez, Esq.
Freddie Perez Gonzalez & Assoc., P.S.C.
P.O. Box 193729
San Juan, PR 00919-3729
Robin A. Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Administrative Law Judge David F. Barbour
Federal Mine Safety & Health Review Commission
Office of Admlnistrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

27 FMSHRC 229

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

March 14, 2005

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2005-66
A.C. No. 46-01271-36418

v.
EASTERN ASSOCIATED COAL CORP.

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners
ORDER
BY: Duffy, Chairman; Suboleski and Young, Commissioners
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 4, 2005, the Commission received from Eastern
Associated Coal Corp. ("Eastern") 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 September 2, 2004, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued a proposed penalty assessment (A.C. No. 46-01271-36418,
incorrectly cited in the body of Eastern's Motion as A.C. No. 46-01271-39038) to Eastern's
Harris No. 1 Mine in Wharton, West Virginia. In its motion, Eastern states that on November 29,
2004, it discovered that it had inadvertently failed to contest the penalties for four citations in the
proposed assessment, and failed to pay the remainder of the assessment. Mot. at 1. Eastern paid
all of the penalties in the proposed assessroent with the exception of the penalties for the four
citations it wished to contest. Id. Eastern further asserts that on November 24, 2004, its counsel
signed and mailed to the Commission a motion to reopen in these proceedings, but that this
27 FMSHRC 230

motion appears to have been lost. Id. at 2. On January 29, 2005, Eastern's counsel confinned
that the Commission had not received a motion to reopen. Id. The Secretary states that she does
not oppose Eastem'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 !OS(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits pennitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Eastem's motion, in the interests of justice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether good cause exists for
Eastern' 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. Duffy, Chairman

27 FMSHRC 231

Commissioner Jordan, dissenting:
I would deny the operator's request for relief from the final order. Pursuant to Rule 60(b)
of the Federal Rules of Civil Procedure, we have previously afforded a party relief from a final
order on the basis of inadvertence or mistake. Slip op. at 2. However, Eastern has failed to
provide any explanation to justify its failure to timely contest the proposed penalty assessment.
See Tanglewood Energy, Inc., 17 FMSHRC 1105, 1107 (July 1995) (denying request to reopen
final Commission ordffr where operator failed to set forth grounds justifying relief). Its motion
to reopen the penalty assessment, filed by counsel, states only that Eastern discovered "that it had
inadvertently failed to contest four citations." Mot. at 1. ·Consequently, I respectfully dissent.

27 FMSHRC 232

Distribution
Anne Wathen O'Donnell, Esq.
Eastern Associated Coal Corporation
701 Market Street
St. Louis, MO 63101
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd .• 2200 Floor West
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

27 FMSHRC 233

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

March 16, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTII
ADMINISTRATION (MSHA)
Docket No. SE 2005-183-M
A.C. No. 38-00130-33784 A

v.
TERRY THOMPSON, employed by
FOSTER DIXIANA CORPORATION

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners
ORDER
BY THE COM:rv!ISSION:
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 10, 2005, the Commission received from Terry
Thompson a motion made by counsel to NOpen a penalty assessment for a violation of section
llO(c) of the Mine Act, 30 U.S.C. § 820(c), that had allegedly become a final order of the
Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act and the Commission's Procedural Rules, an
individual charged with a violation under section l IO(c) has 30 days following receipt of the
Secretary of Labor's proposed penalty assessment within which to notify the Secretary that he or
she wishes to contest the proposed penalty. 30 U.S.C. § 815(a); 29 C.F.R. § 2700.26. If the
individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order
of the Commission. 30 U.S.C. § 815(a); 29 C.F.R. § 2700.27.
·
Terry Thompson is the Plant Manager at the Dixiana Mine in Columbia, South Carolina,
owned by Foster Dixiana Corporation (''Foster Dixiana"). On May 12, 2003, the Department of
Labor's Mine Safety and Health Administration ("MSHA") issued to Foster Dixiana an order and
citation alleging violations of mandatory health and safety standards. Mot. at 1. On August 6,
2004, MSHA mailed a proposed penalty assessment to Thompson alleging that he was liable for
the May 12, 2003 order and citation under section llO(c) of the Mine Act. Id. at 2. Thompson

27 FMSHRC 234

states that the proposed assessment against him was sent to the wrong address and that he did not
receive it before the time to contest it had elapsed. Id. and Deel. of Terry Thompson at TI 7-10.
Counsel for Thompson only learned of th(: Secretary's section llO(c) allegations against
Thompson on February 11, 2005 in the course of inquiring as to whether MSHA would be filing
any charges against him, and did not receive a copy of the assessment until February 28, 2005.
Mot. at 2. Thompson also asserts that had he received the penalty proposal in a timely fashion,
he would have contested it. Deel. at <J 11.
Counsel further states that related proceedings involving the charges against Foster
Dixiana and a co-worker of Thompson an: currently pending before Administrative Law Judge
Gary Melick. Mot. at 3. · Counsel has moved for a continuance of the hearing in the proceedings
before Judge Melick scheduled for April 5, 2005. Id. The Secretary states that she does not
oppose Thompson's request for relief.
Here, the proposed penalty assessment was mailed to an address at which Thompson no
longer received mail. Thompson was not required to notify MSHA of his change of address
under 30 C.F.R. § 41.12. Thompson received a copy of the proposed penalty assessment on
February 28, 2005 through counsel. Under these circumstances, we conclude that Thompson did
not "receive" the penalty assessment within the meaning of section 105(a) of the Mine Act and
the Commission's Procedural Rules until February 28, 2005. Roger Richardson, 20 FMSHRC
1259, 1260 (Nov. 1998). In his motion to reopen this matter, filed with the Commission on
March 10, 2005 (well within the 30-day time period) and served upon the Secretary, Thompson
clearly states his intent to contest the proposed penalty assessment against him. We conclude
from this that Thompson timely notified the Secretary that he contests the proposed penalty. Id.

27 FMSHRC 235

Accordmgly, the proposed penalty assessment is not a final order of the Commission.
We remand this matter to the Chief Administrative Law Judge for assignment to a judge. This
case shall proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F:R.
Part 2700.

27 FMSHR.C 236

Distribution
Mark N. Savit, Esq.
Patton Boggs, LLP.
2550 M Street, N.W.
Washington, D.C. 20037
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 221111 Floor West
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

27 FMSHRC 237

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

:March 16, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. WEYA 2002-46

EASTERN ASSOCIATED COAL CORP.

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

DECISION
BY: Jordan, Suboleski, and Young, Commissioners
This contest proceeding arises under the Federal Mine Safety jllld Health Act of 1977, 30
U.S.C. § 801 et seq. (2000) ("Mine Act"). Administrative Law Judge T. Todd Hodgdon affirmed
Citation No. 7195722 charging Eastern Associated Coal Corporation (''Eastern") with a violation
of 30 C.F.R. § 48.ll(a)(3).1 25 FMSHRC 30, 41-44 (Jan. 2003) (ALT). We granted in part
1

30 C.F.R. § 48.11 provides in pertinent part:
(a) Operators shall provide to those miners, as defined in
§ 48.2(a)(2) (Definition of miner) of this subpart A, a training
program before such miners commence their work duties. This
training program shall include the following instruction, which is
applicable to the duties of such miners:
(1) Hazard recognition and avoidance;
(2) Emergency and evacuation procedures;
(3) Health and safety standards, safety rules, and safe
working procedures;
27 FMSHRC 238

Eastem's petition .for discretionary review challenging the judge's decision affirming Citation
No. 7195722. For the reasons set forth below, we affirm the judge's decision.

I.
Factual and Procedural Background
Eastern operates.the Hanis No. 1 Mine, an underground coal mine in Boone County,
West Virginia. 25 FMSHRC at 30. The mine produces 3.9 million tons of coal per year. Id. In
October 2001, Eastern planned to use the No. 4 entry in the mine's 4 East section to set up the
face conveyor and shield for a longwall mining machine. Id. at 31. Due to a roof fall in the entry
one crosscut outby, the entry had been natTOwed to 18 feet. Id. Eastern needed an entry of at
least 24 feet to set up the longwall equipment. Tr. 364-65. Longer roof bolts had been installed
in the roof. 25 FMSHRC at 31. However, before widening the entry, Eastern decided to have
polyurethane grout injected into the roof as additional support, because the roof was determined
to be layered and cracked.2 Id.
The roof grouting provisions in Eastem's roof control plan addressed various topics
related to this task, including training, personal protection, roof control, fire protection, and spills
associated with grout work. G. Ex. 6 at 29-33. It identified two roof control requirements, the
installation of temporary supports and sag devices, which Eastern was required to follow when
grouting was performed at the Hanis Mine. Id. at 30.
Because Eastern does not do any grout work (Tr. 248, 317, 319), it hired ESS/Micon
("Micon"), a specialist with 18 years of experience doing such work, to perform the grout work
at its mine. 25 FMSHRC at 31; Jt. Ex. 1at2 Stip. 12; Tr. 95; G. Ex. 16 at 3-4. Eastern provided
hazard training to Micon employees Joe Deoskey and Tyler Pawich before their performance of
the task. Tr. 314-15. Eastern showed the Micon employees a videotape to familiarize them with

(4) Use of self-rescue and respiratory devices ... and
(5) Such other instruction as may be required by the District
Manager based on circumstances and conditions at the
mine.
30 C.F.R. § 48.2(a)(2) provides in relevant part "Miner means, for purposes of§ 48.11 ... , any
person working in an underground mine, including any . .. short-term maintenance or service
worker contracted by the operator ...."
2

The grouting process involves drilling holes in the roof and injecting polyurethane
grouting material under pressure. The grout seeps into the cracks in the roof and holds it together
like glue. Jt. Ex. 1at3 Stip. 14; G. Ex. 15 at 9; G. Ex. 16 at 3, 9-10, 37, 69-70.
27 FMSHRC 239

the mine's condition, and provided training on escapeways, self-contained self-rescuers (SCSRs),
check in/check out and lock out/tag out prncedures, mine communications, general hazards, and
the general layout of the mine. Tr. 297-98, 300; R. Ex. 1. Eastern did not train the contract
employees on its roof control plan, specifically the portion pertaining to roof grouting. 25
FMSHRC at 43.
On October 17, 2001, at approximately 5:10 a.m. on the midnight shift, Deoskey and
Pawich were "gluing" (i.e., grouting) the roof when two pieces of the roof fell and struck Pawich.
Id. at 31. The first, smaller piece hit Pawich in the head, stunning him and knocking him to the
ground. Id. The second, larger piece landed on his right knee, crushing it and pinning him down.
Id. Pawich received emergency treatment and was transported from the mine. Id. He received a
permanently disabling injury to his knee. Tr. 83.
Two MSHA inspectors, David Sturgill and T. L. Workman, began conducting an
investigation of the accident around 10:00 a.m. on October 17. 25 FMSHRC at 31. After
viewing the accident scene and interviewing the witnesses, the inspectors issued five citations,
which Eastern contested. Id.
The judge affirmed Citation No. 7195722, at issue in this appeal. Id. at 44. He rejected
the Secretary's designation of the citation as significant and substantial under section 104(d)(l)
of the Mine Act, 30 U.S.C. § 814(d)(l), a ruling the Secretary did not appeal. Id. The judge also
affirmed another citation, vacated the remaining three citations, and assessed a total penalty of
$874, the amount proposed by the Secretary for the two citations he affirmed. Id. at 44-45.
With regard to Citation No. 7195722, the judge noted that the evidence was undisputed,
that Eastern did not provide training on th~ portion of its roof control plan covering roof grouting
to Micon employees Deoskey and Pawich before they performed the grout work. Id. at 43. The
judge found that section 48.l l(a)(3) required the operator to provide hazard training to
independent contractors working at the mine infrequently or for short periods of time. Id. He
also concluded that it was reasonable to expect that Eastern, during hazard training of the Micon
employees, would cover·the aspects of its roof control plan which specifically address the type of
work that the Micon employees performed at the mine. Id. The judge rejected Eastern's
argument that the standard was impermissibly vague. Id. at n.10. He also rejected Eastern's
argument that training on its roof control plan's grouting procedures would be covered under task
training pursuant to 30 C.F.R. § 48.7, and provided by Micon to its employees. Id. at 43.
Eastern filed a motion requesting oral argument. The Secretary filed a motion to strike a
portion of Eastern' s reply brief pertaining to its argument that the Commission should recons;der
its position on deference to the Secretary's interpretation of a regulation. Mot. at 1-2. Eastern
filed a response opposing the Secretary's motion. E. Opp'n at 1. The Commission denied the
Secretary's motion to strike and heard ora:I argument on November 9, 2004. Unpublished Orders
dated Oct. 20, 2004.

27 FMSHRC 240

II.
Disposition
Eastern argues that the judge erred in his finding that it violated 30 C.F.R. § 48.11 by not
providing training to Micon's employees on the polyurethane grouting provisions of its roof
control plan, and maintains that it provided adequate hazard training to Micon's employees.
PDR at 5-6; E. Br. at 6, .8 . Eastern contends that the judge misconstrued section 48.11 by failing
to take into account the overall regulatory scheme for training, which supports its position that its
roof control plan was not required to be covered in hazard training under section 48.11, but rather
would have been included within task training provided by Micon to its employees. PDR at 613; E. Br. at 11-17. Eastern asserts that the judge erred by concluding that the roof control plan's
roof grouting provisions should have been part of hazard training, especially because-its
employees are not competent to provide such training since Eastern does not perform grout work.
PDR at 8-9; E. Br. at 17-19. Eastern also contends that the regulation is impermissibly vague
and therefore, fails to provide adequate notice. PDR at 13-15; E. Br. at 20-22.
The Secretary responds that the judge correctly held that Eastern violated section
48.ll(a)(3) by failing to provide its independent contractors training on its roof control plan's
grouting provisions during hazard training. S. Br. at 8. The Secretary contends that section
48.11 is ambiguous and that deference should be given to her reasonable interpretation.of the
standard. Id. at 8-10. She asserts that the judge correctly found that training in safe grouting
procedures set forth in the roof control plan was to be covered in hazard training, and she argues
that the approved and adopted roof control plan carries the same legal authority as a mandatory
safety standard, which clearly falls underthe terms of section 48.ll(a)(3). Id. at 10-13. The
Secretary maintains that the preamble to section 48.11 requires mine-specific conditions
applicable to the miner's task be included in hazard training, that the roof control plan was minespecific, and that Eastern was responsible for conveying such information to all employees
working at its mine, including independent contractors. Id. at 14-23. The Secretary contends
that Eastern failed to demonstrate that the regulation is impermissibly vague, and asserts that a
reasonably prudent mine operator would understand that the regulation required Eastern to train
Micon' s employees on the portion of its roof control plan pertaining to the type of work that
Micon was hired to perform. Id. at 26-29.
Eastern replies that the provisions of the roof control plan relating to grouting procedures
are not specific to its mine and thus, are not appropriate material for hazard training. E. Reply
Br. at 1-5. Eastern disputes that the regulation is ambiguous and purports that the Secretary's
interpretation is not entitled to deference nor is her interpretation reasonable because it defeats
the safety purpose of the regulation. Id. at 7-9. It further contends that the Commission should
not defer to the Secretary because the bifurcated scheme of the Mine Act created the Commission
as an independent body with specific jurisdiction and policy-making authority. Id. at 9-13.

27 FMSHRC 241

A.

Interpretation of 30 C.F.R. § 48.11

Where the language of a regulatory provision is clear, the terms of that provision must be
enforced as they are written unless the regulator clearly intended the words to have a different
meaning or unless such a meaning would lead to absurd results. See Dyer v. United States, 832
F.2d 1062, 1066 (9th Cir. 1987); Utah Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1~89);
Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993). If, however, a standard is
ambiguous, courts have deferred to the Secretary's reasonable interpretation of the regulation.
See Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 463 (D.C. Cir. 1994); accord Sec'y of
laborv. Western Fuels-Utah, Inc., 900 F.:4d 318, 321 (D.C. Cir. 1990) ("agency's interpretation
of its own regulation is 'of controlling weight unless it is plainly erroneous or inconsistent with
the regulation"' (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)) (other
citations omitted). The Secretary's interpretation of a regulation is reasonable where it is
"logically consistent with the language of the regulation and ... serves a permissible regulatory
function." See Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995) (citation omitted).
The Commission's review, like the courts' , involves an examination of whether the Secretary's
interpretation is reasonable. See Energy West, 40 F.3d at 463 (citing Sec'y of Labor on behalf of
Bushnell v. Cannelton Indus., Inc., 867 F.2d 1432, 1435, 1439 (D.C. Cir. 1989)); see also
Consolidation Coal Co., 14 FMSHRC 956, 969 (June 1992) (examining whether Secretary's
interpretation was reasonable).
Section 48.11 requires an operator to provide hazard training to miners defined under 30
C.F.R. § 48.2(a)(2), which includes any "short-term maintenance or service worker contracted by
the operator." The regulation further requires that such training provide instruction on "health
and safety standards, safety rules, and safe working procedures" related to a miner's duties
before such miner commences work. 30 C.F.R. § 48.ll(a)(3) (emphasis added). It is undisputed
that Micon's employees fall under the definition of miner in section 48.2(a)(2), and that Eastern
was required to provide hazard training to Micon's employees prior to their performing roof
grouting at the Harris Mine. See 25 FMSHRC at 43. However, the parties dispute whether
hazard training of Micon' s employees should have included Eastern' s roof control plan's grout
provisions.
Because section 48.11 does not explicitly address whether hazard training must include
provisions of a mine's roof control plan, we conclude that the language of section 48.11 is
ambiguous as to its application to the fac~• of this case. Lodestar Energy, Inc., 24 FMSHRC
689, 693 (July 2002) (concluding that the regulation was ambiguous where its plain language did
not address fact situation at issue). We must determine whether the Secretary's interpretation is
reasonable. Cannelton Indus., Inc., 26 FMSHRC 146, 159 (Mar. 2004) (Comm'r Jordan,
dissenting) ("If a regulatory standard is either silent or ambiguous on a particular issue, the
Commission will defer to the Secretary's reasonable interpretation of the regulation.") (citing
Rock ofAges Corp., 20 FMSHRC 106, 111, 117 (Feb. 1998), aff'd in part and rev'd in part 170
F.3d 148 (2d Cir. 1999)).

27 FMSHRC 242

fu analyzing the reasonableness of the Secretary's interpretation, we begin with the
language of the regulation. Section 48.11 specifies that an operator provide hazard training on
safe working procedures and health and safety standards that are "applicable to the duties of such
miners." Thus, the language of the regulation indicates that an operator is required to tailor its
hazard training to the work of the miner being trained. Where a miner is engaged in limited work
in an area that presents fewer hazards, that miner would receive less comprehensive hazard
training.
The Secretary's intent with regard to the language of the regulation is further evidenced
by the preamble that accompanied the publication of the final training rules in the Federal
Register. 43 Fed. Reg. 47,454 (1978). The Secretary addressed the particular problems posed by
the training needs of contract miners and 8ervice maintenance workers. Id. at 47,454-55. The
Secretary stated, in explaining her approach to training these miners:
Such workers, if not given any training, could expose not only
themselves but other miners to unnecessary risks. These workers
should, therefore, have periodic instruction concerning the hazards
they may encounter from time to time at the extraction or
production site. Accordingly, MSHA has added sections ... which
would require the operator to acquaint such individuals with the
specific hazards they may confront at the mine.[3]
Id. at 47 ,455. The Secretary further addressed the unique problem of "specialized contract"

miners who "come onto mine property for short duration to perform their tasks and then move to
other sites." Id. The Secretary noted, ''They are skilled at their particular tasks and need only be
acquainted with the specific hazards they may encounter at the mine site." Id. Thus, it is
apparent that the Secretary intended that hazard training for these miners be altered, when
necessary, to fit the nature and location of their tasks.
MSHA's pub1ished guidance regarding this regulatory scheme is consistent with this
approach to hazard training. fu MSHA's Program Policy Manual, the Secretary explains that
hazard training is specific to the duties of the miner and involves training on hazards that a miner
may encounter in performing his or her job at a particular mine. ill MSHA, U.S. Dep't of Labor,
Program Policy Manual, Part 48, at 14b and 25 (1990) ("PPM''). Regarding hazard training
requirements for independent contractors pursuant to sections 48.2(a)(2) and 48.11, the Secretary
explained that:
Independent contractor exposure to hazards varies from situation to
situation. Hazard training must be tailored to fit the training needs
3

The scope of the hazard training for this category of miners varies depending on the
nature and location of their duties. fudeed, as the Secretary noted, in some instances a
"checklist" of hazards would suffice. 43 J1ed. Reg. at 47,455.
27 FMSHRC 243

of the particular contractor. Training these contractors receive

must be of sufficient content and duration to thoroughly cover the
mine-specific conditions, procedures, and safety devices. Training
must include hazards incident to the performance of all job
assignments by the contractor at the mine.
ill PPM, Part 48, at 14b. Thus, an operator is required to tailor its hazard training of contract
employees according ~o their work and conditions under which they perform. Here, Micon's
employees were performing a task for which Eastern' s roof control plan contained certain minespecific requirements, i.e., the installation of sag meters and supplemental supports. See 25
FMSHRC at 31; G. Ex. 6 at 30. The language and intent of the regulation indicate that minespecific hazards, safety standards and proc:edures that pertained to the task of grouting would be
appropriately addressed in their hazard training.
In the preamble to the publication of the final training rule, the Secretary explained that
"[t]hese rules are intended to insure that miners will be effectively trained in matters affecting
their health and safety, with the ultimate goal of reducing the frequency and severity of injuries in
the Nation's mines." 43 Fed. Reg. at 47,454. Applying the hazard training regulation to require
a mine operator to train its contractors' miners on mine-specific safety matters fully effectuates
this purpose. Eastern had included in its roof control plan the requirement to follow certain
safety procedures for grouting work, in particular, the use of temporary roof supports and sag
devices. Micon's task training could not be expected to include mine-specific hazards and
conditions, such as thos~ addressed in the roof control plan.4 Thus, Eastern was required to
insure that the Micon employees received adequate hazard training on the safety procedures
contained in its roof control planflthat pertained to the task that they were to perform. Had
Eastern provided to Micon the relevant portions of its roof control plan, the Secretary contends it
would have satisfied its hazard training requirement under section 48.11. Oral Arg. Tr. 55-56. In
short, the Secretary's interpretation of the hazard training regulation represents a common-sense
application of the training regulations under the facts of this case.5
~Specialist contractors, such as Micon, who may perform work at dozens of individual
mines each year, would be challenged to keep abreast of the continually changing hazards, rules
4

and procedures at each of these mines. Thus, hazard training must, for very practical reasons, be
the responsibility of the mine operator.
5

Commissioners Suboleski and Young believe that MSHA's inclusion in the roof
control plan of what is essentially a task training obligation under Part 48, most of which does
not concern roof control, appears to have contributed to Eastern's confusion over whether the
document applied to contractors or to only Eastern' s own employees who required task training.
Further, the length and variety of the content in the document obscured the two critical elements
that pertained to the hazard training of Micon's employees - the requirement to install safety
posts and sag meters. While the operator is properly held accountable for its failure to provide
the information to its contractors, Commissioners Suboleski and Young hope that the Secretary
27 FMSHRC 244

Eastern contends that its employees are not competent to provide such training.
However, the operator's primary role in the hazard training of contractors should be to provide
mine-specific safety infonnation. While it may or may not, for example, be true that Eastern
could not competently train the Micon employees in the installation of a sag meter, Eastern was
nonetheless responsible for informing the Micon miners of the mine-specific requirement to
install sag meters any time that grouting was being perfonned.6
Based on the foregoing, we conclude that the Secretary's interpretation of section 48.11,
requiring Eastern to train the Micon employees on certain provisions oflits roof control plan
relevant to the tasks the contract employees were to perfonn, is reasonable.

B.

Notice

Eastern argues that section 48.11 is impermissibly vague and fails to provide adequate
notice regarding the scope of hazard training. PDR at 13-15; E. Br. at 20-22. The Secretary
argues that Eastern has failed to demonstrate that the regulation is impermissibly vague and that a
reasonably prudent mine operator would understand that the regulation required Eastern to train
Micon' s employees on the portion of its roof control plan pertaining to the type of work that
Micon was hired to perfonn. S. Br. at 26-29. However, the record indicates that Eastern had
actual notice of its obligation to train the Micon employees regarding its roof control plan.
MSHA required Eastern to includ{: provisions in the plan covering grouting even though
Eastern's miners never performed such work. 25 FMSHRC at 39; Tr. 336-37. The plan
explicitly required that the operator provide training in safe grouting procedures. G. Ex. 6 at 29.
Section C of the grouting provisions in the! plan entitled "Training," states that "[a]ll persons
working directly with the polyurethane grouting process ... shall be properly trained in the
approved plan requirements, hazards, [and] safety precautions .... " Id. (emphasis added). By
the very terms of its plan, therefore, Eastern was required to train all miners performing grout
work in its mine on the plan's requirements, including the use of temporary supports and sag
devices.7 Id. at 29-33. Thus, Eastern had actual notice of the requirement that it train Micon
miners in safe grouting procedures.

will more clearly and directly communicate required action to operators, making both compliance
and enforcement easier and more certain.
6

Micon employee Deoskey testified that he did not routinely use either of the safety
devices specified in Eastern's roof control plan when performing his grouting work, but did so
only on a mine-specific basis, when conditions warranted. G. Ex. 16 at 64-65. In this case, the
Secretary has made a detennination that mine conditions required specific safety precautions,
which were required under the mine's roof control plan. G. Ex. 6 at 30.
7

For Micon's workers, only the special features that are pertinent to hazard training were

required.
27 FMSHRC 245

Additionally, the roof grouting provisions in Eastem's roof control plan specifically
identified two roof control requirements, the use of temporary supports and sag devices, which
Eastern was required to follow in roof grouting work at the Harris Mine. G. Ex. 6 at 30. These
requirements fit into the category of "safe working procedures" and "safety rules," which are
subjects required to be covered under hazard training. Based on the nature of the material in the
roof control plan concerning grout work, Eastern had actual notice that, under its roof control
plan, it was required to train or see that Micon trained its employees on the plan's requirements
related to roof grouting.
Further, under the circumstances of this case, Eastern had constructive knowledge of its
obligation to train the Micon employees on its roof control plan pursuant to section 48.11.
Section 48.11, as reflected in the preambfo in the Federal Register and the PPM, provided
Eastern notice of the application of the regulation to the facts in this case. See discussion supra,
slip op. at 6-7. As the Secretary explained in the preamble and the PPM, such training must be
tailored to the duties of the miner receiving training and must address the circumstances
applicable to the mine in which the work is to be performed.8 See 43 Fed. Reg. at 47,454-55; ill
PPM, Part 48, at 14b. This constructive notice is sufficient to satisfy any due process concerns.
Accordingly, because Eastern had both actual notice and constructive notice of its
obligation to see that Micon's employees were trained in the roof control plan, we reject
Eastern' s contention that the regulation is unconstitutionally vague.

8

Eastern argues that, because MSHA' s district manager forced inclusion of the grouting
provision onto all mines in the district, the provision is not specific to the Harris Mine, and is
thus not required for hazard training. Eastern could have refused to add this provision and
litigated the issue of being forced to include non-mine-specific items in its roof control plan
before the Commission. See, e.g., RAG Shoshone Coal Corp., 26 FMSHRC 75, 77 (Feb. 2004).
However, it did not do so and now must abide by the provision it adopted.
27 FMSHRC 246

Ill
Conclusion
Accordingly, we affirm the judge'~; decision.

27FMSHRC 247

Chairman Duffy, dissenting:
This is a simple case made unduly complex by the Secretary's enforcement choices.
Finding those choices to be unwarranted and, arguably, a case of regulatory overreaching, I
respectfully dissent.
The facts themselves are straightforward. Eastern Associated Coal Corporation
("Eastern") encountered hazardous roof conditions in the No. 4 entry of the company's No. 1
Mine. 25 FMSHRC 30, 31(Jan.2003) (AU). Not possessing the unique expertise to address
the problem, Eastern contracted with ESS/Micon ("Micon") to rehabilitate the entry by injecting
grout into the unsound roof. Id. Prior to proceeding, however, Eastern agreed to an amendment
to its roof control plan, proffered by MSHA, which set forth specific guidelines, the compliance
with which was necessary to secure MSHA' s approval of the grouting activity. 1 Id. at 39. The
plan was amended, the contract was let, and prior to the commencement of the work by Micon,
Eastem's Training Specialist, John Knabb, provided what he considered adequate and
appropriate hazard training to Micon's employees.2 Tr. 312-15.
Early in the course of the grouting procedure, Tyler Pawich, a Micon employee, was
seriously injured by a roof fall, and authorized representatives of the Secretary investigated
As a result of that investigation, MSHA determined that Eastern' s roof control plan had been
violated on three counts: (1) employees w~re not trained as to the grouting provisions of the roof
control plan in contravention of Section C(I) of the plan; (2) adequate temporary supports were
not installed in contravention of Section E(2) of the plan; and (3) sag devices were not installed
in contravention of Section E(3) of the plan.
In citing Eastern for violating 30 C.F.R. § 75.220(a)(l), which governs the development
and approval of roof control plans, MSHA included only counts (2) and (3). Count (1), the
training violation, was instead cited several days later under 30 C.F.R. § 48.S(a), which mandates
40 hours of training for new miners. 25 FMSHRC at 42 n.9.3 That citation was subsequently
1

Eastern considers the mine plan amendment to have been unilaterally imposed upon it
without much opportunity for recourse and with little or no thought as to whether it was tailored
specifically to the conditions in the No.I Mine. Indeed, it appears that the guidelines are an offthe-shelf set of generic requirements that MSHA imposes as a matter of course. That issue is not
before the Commission, however, inasmuch as Eastern acceded to the agency's demand without
lodging a legal challenge at the time the guidelines were adopted.
2

Mr. Knabb had 24 years experience as a certified training specialist. Tr. 291. If anyone
can be considered an expert witness as to the scope and application of the training regulations in
this case, it would be Mr. Knabb.
3

The record establishes that Micon' s employees had received all the comprehensive new
miner training and refresher training required under the regulations. See E. Br. at 7.
27 FMSHRC 248

modified to allege ·a violation of 30 C.F.R. § 48.11, which requires hazard training for persons
working in an underground mine. 25 FMSHRC at 41-42 & n.9:
There should be no distinction between the training violation and the other two
violations; they are all subsumed in Citation No. 3568565, which charges a violation of section
75.220(a)(l). The upshot of the Secretary's enforcement decision to cite the hazard training
regulation in addition to the roof control plan standard constitutes, for lack of a better term,
"double dipping" with respect to the training violation. In other words, applying the logic used
by the Secretary to justify the citation of a violation under section 48.11, should Eastern have
been cited for a violation of Section E(2) of the roof control plan as well as for a violation of 30
C.F.R. § 75.210 since bOth provisions govern the installation of temporary roof support?
Likewise, should double citations have been issued for violations of Section E(3) of the roof
control plan and 30 C.F.R. § 75.214, since both provisions address requirements for the use of
supplemental roof support materials, e.g., sag devices?
The answer, of course, is "no" in each instance. Duplicate citations for the same violative
condition are foreclosed under.well-established case law holding that the Secretary cannot issue
separate citations under two different standards unless those standards "impose separate and
distinct duties" upon an operator. Westem Fuels-Utah, Inc., 19 FMSHRC 994, 1003 (June
1997); Cyprus TonopahMining Corp., 15 FMSHRC 367, 378 (March 1993).4
Here, the parties have stipulated that hazard training was provided by Eastern; the dispute
is whether it was adequate. However, the Secretary is asserting that section 48.11 was violated
only to the extent that Eastern did not train Micon's employees regarding the grouting
requirements set forth in the amendment to the roof control plan - precisely the requirement set
forth in Section (C)( 1) of the plan. Section 48.11 did not impose separate and distinct duties
upon Eastern that were not already imposf:d by Section (C)(l) of the roof control plan. The
invocation of section 48.11 by the Secretary was superfluous and contrary to the principles
adopted by the Commission in the cases cited above.
Of equal concern are the lengths to which the Secretary has gone in order to characterize
the training at issue here as "hazard" training. Mr. Knabb, the expert witness in this case,
testified that training employees in the particulars of the grouting guidelines is intrinsically a type
of task training, not hazard training. MSHA's witness, inspector Sturgill, in essence, agreed.
Tr. 102-03 (defining task training as "the training on a specific job that you're going to be doing"
and agreeing with Eastern's counsel that "the roof control plan tells you how to do the job of
4

It could be argued that the Commission's decision in Western Fuels-Utah also supports
the proposition that when two standards - one general and one specific - address the same
condition, the specific standard is the more appropriate one to cite. ''Had MSHA put on evidence
of additional deficiencies that violated the general regulation, instead of relying on the identical
evidence ... used to support the violation of the specific standard, we would not have found
them duplicative." 19 FMSHRC at 1004 n.12.
27 FMSHRC 249

injecting grout foto the roof safely"). Unfortunately, MSHA's task training regulation applie.s
only to machinery and equipment operators or those engaged in blasting operations, and then
only if they are being assigned to those duties for the first time. 30 C.F.R. § 48. 7. It would
appear that, notwithstanding the existence of a precise, on-point, mandatory standard expressly
aimed at the training sought to be provided in this case, i.e., Section (C)(l) of the roof control
plan, the Secretary has adopted section 48.11 as a default standard even though it is
counterintuitive to hold that instruction on how to go about performing a task is "hazard
training."
Regulated persons - be they human or corporate - who are subject to civil or even
criminal sanctions for their transgressions are entitled to know, in advance, precisely what their
government expects of them. Thus, the Commission has consistently held that due process
requires that the Secretary provide mine operators adequate notice of their compliance
responsibilities with regard to mandatory :;afety and health standards. E.g., Alabama ByProducts Corp., 4 FMSHRC 2128, 2129 (Dec. 1982). The most compelling reason for citing
Eastern under section 75.220(a)(l), and, by implication, under Section (C)(l) of the roof control
plan, is that it eliminates the issue of whether Eastern had adequate notice of its responsibilities
to train Micon's employees under the training regulations or to see that they were trained in the
particulars of the grouting requirements incorporated into Eastern' s plan.
On the other hand, in order to uphold a citation under section 48.11, one must accept the
Secretary's amphilogical premise that 30 C.F.R. § 48.ll(a)(3) is simultaneously "ambiguous,"
S. Br. at 8-9, and "not impermissibly vague," S. Br. at 26. One must also accept the Secretary's
expansive and contorted conception of hazard training arrived at by connecting random
interpretive dots lurking in various hideaways in the regulatory history and subsequent policy
pronouncements. Lastly, one must accept that the Secretary's interpretation as to the scope of
section 48.ll(a)(3), only now fully revealed on review, should have been readily apparent to
Eastern prior to the events giving rise to this proceeding.5
Adequate notice ofEastern's training responsibilities for the Micon employees was
clearly provided when the Secretary required that Section(C)(l) be incorporated into Eastem's
roof control plan. Had the Secretary refen!nced that section in the citation alleging a violation of
30 C.F.R. § 75.220(a)(l), I would have no hesitation in upholding it.6 The requisite notice is
5

The Secretary's assertion that Eastern should have anticipated that section 48.11 would
be applied in the manner argued here would be more convincing if MSHA had cited that section
in the first place. MSHA's confusion surrounding the proper training provision to cite in the
week following the investigation belies any notion that the application of section 48.11 to the
circumstances in this case should have been obvious to a "reasonably prudent person." See
Alabama By-Products, 4 FMSHRC at 2129.
6

Eastern essentially argues that it would be illogical to expect an operator who lacks the
expertise in a specialty such as roof grouting to train the employees of an independent contractor
27 FMSHRC 250

lacking, however, with. respect to a citation charging a violation of section 48. l l(a)(3) under
which MSHA has had to e~ploy exegetical jujitsu to make the standard fit the offense.7
Accordingly, I would reverse the decision below.

in the arcana of that process. After all, it is the operator's lack of practical knowledge and
experience that compels contracting out the activity in the first place. That may well be true, but,
as the Secretary argues, Eastern's responsibility in this regard could have been met simply by
providing Micon and its employees with a copy of the grouting guidelines that the operator
agreed to incorporate into its roof control plan. Oral Arg. Tr. 55.
7

I agree with two of my colleagues who express a hope that "the Secretary wiU more
clearly and directly communicate required action to operators, making both compliance and
enforcement easier and more certain." Slip op. at 7-8 n.5. I strongly'suspect, however, that if
this particular citation is upheld, any incentive to provide that guidance will be lost. Indeed, it
seems to me that, in the fu~re, whenever something untoward happens to an employee of an
independent contractor, and notwithstanding the employee's having been fully trained by his own
employer as to the safety aspects of his job, MSHA will be motivated to assert post hoc that the
operator's hazard training must have been deficient in some fashion. I doubt whether that
advances the cause of accident prevention, particularly when, as is the case here, there is an
explicit requirement to provide training in the task to be performed that the Secretary has
ignored.
27 FMSHRC 251

Distribution
Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247

R. Henry Moore, Esq.
Jackson Kelly, PI.LC
Three Gateway Center
401 Liberty Avenue, Suite 1340
Pittsburgh, PA 15222
Administrative Law Judge T. Todd Hodgdon
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

27 FMSHRC 252

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

March 18, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTII
ADMINISTRATION (MSHA)
Docket No. WEST 2005-190-M
A.C. No. 35-03260-43979 J874

v.
AMERICAN ON SITE; JEREMIAH INC.

BEFORE: Duffy, Chairman; Jordan, Suboleski, 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 14, 2005, the Commission received from
American On Site; Jeremiah Inc. ("AOS-Jeremiah") a letter that we construe as a request to
reopen a penalty assessment that had become a final order of the Commission pursuant to section
105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On November 26, 2004, the Department of Labor's Mine Safety and Health
Administration ("MSHA") served a proposed penalty assessment (A.C. No. 35-03260-43979
J874) to AOS-Jeremiah, which was shown as a contractor on the proposed assessment (the mine
name is shown as Harvey W. Buche Road Building, Inc.). In the letter, AOS-Jeremiah's
president, David Bush, inquires ~out the status of the penalty assessment. He also refers to prior
correspondence relating to another case. The Secretary states that she does not oppose
AOS-Jeremiah's request for relief.

27 FMSHRC 253

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, 786-39 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR., 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed AOS-Jeremiah's motion, in the interests of justice, we remand this
matter to the Chief Administrative Law Judge for a determination of whether good cause exists
for the company's failure to timely contest the penalty proposal and whether relief from the final
on;ier 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.

27 FMSHRC 254

Distribution
David Bush, President
American On Site; Jeremiah, Inc.
810 E. Main Street
Molalla, OR 97038
W. Christian Schumann; Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

27 FMSHRC 255

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

SUITE 9500
WASHINGTON, DC 20001

March 18, 2005
SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

Docket No. WEST 2005-188-M
A.C. No. 26-00002-24523

ADMINISTRATION (MSHA)

v.

Docket No. WEST 2005-189-M
A.C. No. 26-00002-27057

PREMIER CHEMICAL LLC

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners
ORDER
BY THE COMMISSION:
These proceedings arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). 1 On February 10, 2005, the Commission received from
Premier ChemicaJ ILC ("Premier") two letters addressed to the Department of Labor's Mine
Safety and Health Administration ("MSHA") inquiring as to the status of MSHA' s proposed
penalty assessments designated A.C. No. 26-00002-24523 and A.C. No. 26-00002-27057. Both
penalty assessments had become final orders of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a). We constme the letters as requests that the Commission reopen
the penalty assessments.
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).
MSHA issued the proposed assessments on April 15, 2004 (No. 26-00002-24523) and
May 13, 2004 (No. 26-00002-27057). Attached to Premier's requests are letters from MSHA's
1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers WEST 2005-188-M and WEST 2005-189-M, both captioned
Premier Chemical UC and both involving similar procedural issues. 29 C.F.R. § 2700.12.
27 FMSHRC 256

Office of Assessments. As to No. 26-00002-24523, MSHA explains to Premier that although the
company attempted to contest the proposed penalty, it did not do so in a timely manner (the
deadline for the contest was May 27, 2004, but MSHA did not receive Premier's contest until
June 3, 2004, five days late). Similarly, ru; to No. 26-00002-27057, MSHA explains to Premier
that its contest of the proposed penalty was untimely filed with MSHA (the deadline for the
contest was June 23, 2004; MSHA received Premier's contest on July 14, 2004, 21 days late).
Premier did not provide any other supporting documentation, nor did it offer any explanation of
why it failed to contest the penalty proposals in a timely fashion. The Secretary states that she
does not oppose Premier's request for reli1!f.
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).

27 FMSHRC 257

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

27 FMSHRC 258

Distribution
Jennifer Williamson, Safety Coordinator
Premier Chemical
Highway361
Gabbs, NV 89406
W. Christian Schumann·, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

27 FMSHRC 259

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
W ~•HINGTON, DC 20001

March 18, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
AD:MINISTRATION (MSHA)

v.

Docket No. WEST 2002-194

TWENTYMlLE COAL COMPANY

BEFORE: Duffy, Chairman; Beatty, Jordan, Suboleski, and Young, Commissioners 1
DECISION
BY: Duffy, Chairman; Suboleski and Young, Commissioners

In this civil penalty proceeding, arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (2000) ("Mine Act" or "Act"), Administrative Law Judge Richard
W. Manning determined that owner-operator Twentymile Coal Company (''Twentymile") had
been properly cited for six violations of mandatory safety standards committed by its independent
contractor, Precision Excavating, Inc. ("Precision"). 25 FMSHRC 352, 358-62 (July 2003)
(AU). The Department of Labor's Mine Safety and Health Administration ("MSHA") had cited
Precision for the same conditions described in the citations issued to Twentymile. Id. at 353.
The Commission granted Twentymile's subsequent petition for discretionary review of the
judge's decision. For the reasons set forth below, we reverse the judge's decision and vacate the
citations issued to Twentymile.
I.

Factual and Procedural Background
Twentymile operates the Foidel Creek Mine, an underground coal mine in Routt County,
Colorado. 25 FMSHRC at 352. Twentymile hired Precision to remove clay from the No. 2 ·

1

Commissioner Beatty participated in the consideration of this matter, but his term
expired before issuance of this decision.
27 FMSHRC 260

.
.
refuse pile, which was located on the surface area of the mine. Id. at 355. Precision operated a
pan scraper and service truck to perform its duties at the refuse ·pile. Id. at 353. Twentymile did
not own, operate, or maintain that equipment. Id.
On August 30, 2001, MSHA Inspector Michael Havrilla inspected the surface areas of the
mine, including the No. 2 refuse pile. Id. at 355. During his inspection, the inspector observed
Precision employees operating the service truck at the refuse pile. Id. at 356. At that time,
Precision employees had been working at the refuse pile for about one week. Tr. 40. Inspector
Havrilla inspected the service truck and concluded that he would issue five citations to Precision
alleging the following violations: (1) a violation of 30 C.F.R. § 77.412 because the service truck
had an inoperable pressure gauge on the air compressor; (2) a violation of 30 C.F.R. § 77.400(a)
because there was a ten-by-ten inch openi11g on the compressor which would allow contact with
the drive belts and pulley; (3) a violation of 30 C.F.R. § 77.1110 for failure to examine a fire
extinguisher on the service truck at least once every six months; (4) a violation of 30 C.F.R.
§ 77.1103(a) because there were three unlabeled metal containers of gasoline on the service
truck; and (5) a violation of 30 C.F.R. § 77.1103(a) because a plastic container of gasoline on the
service truck did not meet National Fire Protection Association requirements. 25 FMSHRC at
356.
When Inspector Havrilla discussed the alleged violative conditions with Precision's lead
man, he discovered that Twentymile had not examined Precision's equipment when the
equipment was first brought onto the property. Id. The inspector decided to speak with Diane
Ponikvar, a safety representative with Twcntymile. Id. As the inspector was driving to the mine
office, he observed that the diesel fuel tank of Precision's pan scraper was leaking, and he told
the scraper's operator to shut down the equipment. Id. The inspector issued an additional
citation alleging a violation of 30 C.F.R. § 77.404 to Precision because the scraper was being
operated in an unsafe condition due to the leaking fuel tank. Id.
When the inspector arrived at the mine office, he informed Ms. Ponikvar of the
conditions that he had observed and that he would be issuing the six citations to Precision. Tr.
37, 103. Ms. Ponikvar contacted Precision personnel and directed them to remove their
equipment to the parking lot. 25 FMSHRC at 356; Tr. 37-38. She informed Precision
employees that they would have to abate the citations and that Twentymile would examine the
equipment before it would be allowed back on-site. 25 FMSHRC at 356; Tr. 37. The inspector
then informed Ponikvar that he was issuing the same citations to Twentymile. 25 FMSHRC at
356; Tr. 103, 105. The inspector testified that he believed that it was appropriate to cite
Twentymile in part in order to address a problem he perceived with contractor violations at the
mine and because citing Twentymile would bring more attention to the violations. 25 FMSHRC
at 359, 361; Tr. 33-35, 42; Gov't Ex. 2 at p. 20. Ms. Ponikvar testified that the inspector told her
that he was citing Twentymile in order to teach it a lesson regarding its failure to inspect the
equipment. 25 FMSHRC at 361; Tr. 105.

27 FMSHRC 261

Twentymile challenged its six citations and the matte~ proceeded to hearing before Judge
Manning. Twentymile and the Secretary of Labor entered into a number of stipulations. They
stipulated that the issue before the judge was whether it was appropriate for the Secretary to cite
Twentymile for the conditions described in the citations. 23 FMSHRC at 353. The parties
further stipulated that if the judge determined that Twentymile had been properly cited, the
parties agreed to the designations set forth in the citations, and that the penalties proposed by the
Secretary were consistent with section l lO(i) of the Mine Act, 30 U.S.C. § 820(i). Id.
The judge affirmed the six citations issued to Twentymile. Id. at 362. The judge
reasoned that the Secretary did not abuse her discretion in citing Twentymile, based upon the
inspector's belief that there was a problem with contractor violations at the mine and that citing
Twentymile would bring more immediate attention to the problem. Id. at 359, 361. The judge
determined that, although the inspector's enforcement decision was subjective rather than based
on an objective, comprehensive analysis of contractor violations at the mine, such action did ·not
rise to the level of arbitrary or capricious action sufficient to support a finding of abuse of
discretion. Id. at 361. The judge reasoned that the inspector believed that the conditions needed
to be brought to Twentymile's attention bt:cause they were obvious and he learned that the
equipment had not been inspected by Precision or Twentymile. Id. at 359, 361.
In addition, the judge concluded that the citations fit within the first and fourth factors set
forth in MSHA's enforcement guidelines used by inspectors to determine when an owner, in
addition to an independent contractor, ought to be cited for the contractor's violation. Id. at 35960 (citing ill MSHA, Program Policy Manual, Part 45, 45 Fed. Reg. 44,494, 44,497 (July 1,
1980) (''Enforcement Guidelines")). As to the first factor, whether the owner-operator
contributed to the violation by act or omission during the course of the independent contractor's
work, the judge concluded that TwentymiJe contributed to the equipment violations by failing to
inspect the equipment or to ensure that Pr(:cision inspected it. Id. As to the fourth factor,
whether the owner had control over the condition requiring abatement, the judge concluded that
Twentymile controlled the equipment by reserving the right to remove the equipment from the
site and by inspecting other contractor equipment during safety audits. Id. at 360. Accordingly,
the judge assessed civil penalties in the sum of $900, the amount proposed by the Secretary. Id.
at 362.
Twentymile filed a petition for discretionary review challenging the judge's decision,
which the Commission granted.. In addition, Twentymile filed a request for oral argument. The
Commission granted the request and heard oral argument on June 29, 2004.

27 FMSHRC 262

II.
Disposition

A.

Whether the Secretary May Issue Dual Citations under the Mine Act

Twentymile asserts that it should not be held liable for the violations committed by its
independent contractor, Precision. T. Br. at 8-29. Twentymile argues that sections 3(d) and
104(a) of the Mine Act, 30 U.S.C. §§ 802(d) and 814(a), clearly provide that an operator is Jiable
for only its own violations, and that court and Corrunission precedents holding that an owneroperator may be held liable for the violations of independent contractors are contrary to such
statutory language. 2 Id. at 8-9; T. Reply Br. at 3-4. It maintains that the definition of "operator"
set forth in section 3(d) of the Mine Act was expanded to include independent contractors in
order to require that independent contractors be held liable for their own violations as ''fully
responsible operators." T. Br. at 9-10, 13, 15; Oral Arg Tr. 20, 60-61. The Secretary responds
that she has the authority to cite an owner·-0perator, independent contractor or both for a violation
by an independent contractor, and that her interpretation of the Mine Act is entitled to deference
and should be accepted because it is a permissible statutory construction S. Br. at 5-6, 7-17.
Since passage of the Mine Act, the Commission and courts have consistently recognized
that, in instances of multiple operators, thl~ Secretary generally may proceed against an owneroperator, an independent contractor, or both, for violations by the independent contractor.3 See,
e.g., Bulk Transp. Servs., Inc., 13 FMSHRC 1354, 1359-60 (Sept. 1991); Old Ben Coal Co., 1

2

Section 3(d) of the Mine Act defines "operator" as "any owner, lessee, or other person
who operates, controls, or supervises a coal or other mine or any independent contractor
performing services or construction at such mine." 30 U.S.C. § 802(d). Section 104(a) describes
the manner in which the Secretary may issue a citation to an operator, stating in part:

If, upon inspection or investigation, the Secretary or his authorized
representative believes that an operator of a coal or other mine
subject to this Act, has violated this Act, or any mandatory health
or safety standard, ... he shall, with reasonable promptness, issue
a citation to the operator.
30 U.S.C. § 814(a) (emphasis added).
3

Prior to passage of the Mine Act, the Commission and courts concluded that provisions
of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1976),
generally permitted the Secretary to cite an owner-operator, independent contractor, or both, for
violations by the independent contractor. See Republic Steel Corp., 1FMSHRC5, 9-11 & n.13
(Apr. 1979); Bituminous Coal Operators' Ass'n, Inc. v. Sec'y of Interior, 547 F.2d 240, 246-47
(4th Cir. 1977).
27 FMSHRC 263

FMSHRC 1480~ 1483 (Oct. 1979); Cyprus Indus. Minerals Co. v. FMSHRC, 664F.2d1116,
1119 (9th Cir. 1981); Mingo Logan Coal Co., 19 FMSHRC 246, 249 (Feb. 1997), affd, 133'F.3d
916 (4th Cir. 1998), 1998 WL 3613, **2. The Commission and courts have reached this
conclusion by reading section 3(d) togetht!r with other .enforcement provisions of the Mine Act4
and by relying upon pertinent legislative history.5 See Old Ben, 1 FMSHRC at 1481-83; Cyprus,
664 F.2d at 1119; Brock v. Cathedral Bluffs Shale Oil Co., 976 F.2d 533, 535 (D.C. Cir. 1986).
In so holding, courts have rejected the argument advanced by Twentymile in this proceeding that
independent contractors were added to the .definition of "operator" in section 3(d) of the Mine
Act in order to "insure that the party controlling the work would be held solely responsible" for
its violations. Cyprus~ 664 F.2d at 1119 (emphasis in original); T. Br. at 9-10. Courts have
explained that, by expanding the definition of operator to include independent contractors,
"Congress was clearly concerned with the permissive scope of the Secretary's authority, not with
the mandatory imposition of statutory duties on independent contractors." Nat'l Indus. Sand
Ass'n v. Marshall, 601F.2d689, 703 (3d Cir. 1979) ("NISA") (emphasis in original); see also
Cyprus, 664 F.2d at 1119. We therefore conclude that Twentymile has not advanced a
compelling reason for overturning a body of precedent that spans nearly twenty-five years.6

4

See, e.g., Harman Mining Corp. v. FMSHRC, 671 F.2d 794, 797 (4th Cir. 1981) (citing
section l lO(a) of the Mine Act, 30 U.S.C. § 820(a), which provides that "the operator of
a . . . mine in which a violation occurs .. . shall be assessed a civil penalty by the Secretary.").
5

We disagree with Twentymile's assertion that it is inappropriate to consult legislative
history and that, in any event, the legislative history does not support dual citations. T. Br. at 1214; T. Reply Br. at 6-9. The Commission and courts have recognized that consulting legislative
history is appropriate as an aid to construction, even when the meaning of the statutory langiJage
is plain. See, e.g., Jim Walter Res., Inc., 22 FMSHRC 21, 24 & n.5 (Jan. 2000); Local Union
1261, UMWA v. FMSHRC, 917 F.2d42, 44, 46 (D.C. Cir. 1990). Moreover, courts have relied
upon the subject legislative history as support for the conclusion that an operator may be cited for
the violations of its independent contractor. Cyprus, 664 F.2d at 1119; Cathedral Bluffs, 796
F.2d at 535.
6

Be that as it may, we are mindful of the fact that the same quarter-century following
passage of the 1977 Act has provided independent contractors such as Precision more than
sufficient notice of their responsibilities to provide their miners with a safe and healthful
workplace in conformance with the Act and the mandatory safety and health standards.
Recognition of that fact must necessarily be considered in determining the appropriate allocation
of liability for violations committed by contractors while performing services on mine property.
Thus, for example, the assumption made by the court in Cyprus, 664 F .2d at 1119, that mine
operators are in a better position than contractors to know the compliance responsibilities under
the Act and the standards, no longer appli1!S to a contractor such as Precision which has extensive
experience under the Mine Act.
27·FMSHRC 264

B.

Whether the Secretary Has Unreviewable Discretion

The Secretary argues that her decision to cite Twentymile for Precision's violations is
essentially unreviewable by the Commission because there is no meaningful standard against
which to review her exercise of discretion.· S. Br. at 6, 17-23. Twentymile responds that the
Mine Act authorizes the Commission to review the Secretary's exercise of discretion. T. Reply
Br. at 13-15. Consistent with our precedent, we reject the Secretary's argument. Old Ben, l
FMSHRC at 1484; W-P Coal Co., 16 FMSHRC 1407, 1410-11(July1994).

In asserting that she has unreviewable enforcement authority, the Secretary relies upon
cases such as Heckler v. Chaney, 470 U.S. 821, 830-32 (1985), and its progeny that involve
preclusion of review under section 701(a)(2) of the Administrative Procedure Act ("APA"), 5
U.S.C. § 701(a)(2). As the Commission has previously recognized, section 507 of the Mine Act7
expressly provides that section 701 of the APA does not apply to Commission proceedings. Old
Ben, 1 FMSHRC at 1483-84. Thus, we find such authority cited by the Secretary to be
inapplicable.
Furthermore, the Mine Act does not contemplate that the Secretary's enforcement
decisions are unreviewable by the Commission. Section 113 of the Mine Act, 30 U.S.C. § 823,
contains no limits on the Commission's review on questions pertaining to the exercise of the
Secretary's enforcement discretion.8 To the contrary, the breadth of the Commission's review is
broad. The Commission, in its discretion, may grant review if a "substantial question of law,
policy or discretion is involved" (30 U.S.C. § 823(d)(2)(A)(ii)(IV)), and the Commission's
review authority extends to cases in which no party has filed a petition for review (30 U.S.C.
§ 823(d)(2)(B)).9

7

Section 507 of the Mine Act provides that, ''Except as otherwise provided in this Act,
the provisions of ... sections 701-706 of [5 U.S.C.] shall not appJy to the making of any
order, . . . . or decision made pursuant to this Act, or to any proceeding for the review thereof."
30 u.s.c. § 956.
8

Section l 04(h) of the Mine Act further detracts from the Secretary's argument that she
has unreviewable enforcement discretion. Section 104(h) provides that any citation or order
issued under that section "shall remain in effect until modified, terminated or vacated by the
Secretary or [her] authorized representative, or modified, terminated or vacated by the
Commission or the courts pursuant to section 105 or 106." 30 U.S.C. § 814(h) (emphasis
added).
9

Issues involving the question of whether the Commission may review the Secretary's
enforcement discretion pertain to the Commission's jurisdiction, and the Commission is not
required to defer to the Secretary's interpretation of Commission jurisdiction. W-P, 16 FMSHRC
at 1410; Drummond Co., 14 FMSHRC 661, 674 n.14 (May 1992); Jim Walter Res., Inc., 15
FMSHRC 782, 787 (May 1993).
27 FMSHRC 265

The Commission has explained that these powers were given to the Commission as the
"'ultimate administrative review body"' under the Act in order to "enable [the Commission] to
'develop a uniform and comprehensive interpretation of the law,' providing 'guidance to the
Secretary in enforcing the Act and to the mining industry and miners in appreciating their
responsibilities under the law."' Old Ben, LFMSHRC at 1484 (citations omitted). As the
Commission has reasoned, these "provisions demonstrate that the Commission was intended to
play a major role under the [Mine] Act by reviewing the Secretary's enforcement actions and
formulating mine safety and health policy on a national basis." Id. Given the Commission's
unique and independent role under the Mine Act, we reaffirm our prior holdings and conclude
that the Commission's_review of the Secmtary' s action in citing an operator is appropriate to
guard against an abuse of discretion. Id.; W-P, 16 FMSHRC at 1411.
C.

Whether the Secretazy Abused Het Discretion in Citing Twentymile

Twentymile maintains that the Secretary abused her discretion in citing Twentymile - in
addition to its independent contractor Precision - for the six violations committed by Precision.
T. Br. at 19-29. Twentymile argues that the Secretary exercised her discretion in such a way as
to deviate from her own policy guidelines for taking enforcement actions against independent
contractors, that she failed to consider the proper factors in determining whether to cite a
production-operator for an independent contractor's violation, and that the MSHA inspector did
not conduct a proper investigation of whether independent contractor violations were a serious
problem at the mine before issuing the citations. The Secretary answers by contending that
issuance of the citations to Twentymile was consistent with MSHA' s Enforcement Guidelines,
supra at 3, and that Twentymile has otherwi.se failed to meet its burden of showing an abuse of
discretion. S. Br. at 24-30.
The Commission has held that the general test to be used in determining whether a
production-operator has improperly been cited for violations committed by its independent
contractor is whether the Secretary has committed an "abuse of discretion" in issuing such
citations. 10 Mingo Logan, 19 FMSHRC at 249; Extra Energy, Inc., 20 FMSHRC 1, 5 (Jan.
1998). In applying this general test, the Commission must determine whether the Secretary's
decision to cite the production-operator for violations committed by its independent contractor
"was made for reasons consistent with the purpose and policies" of the Mine Act. Old Ben, 1
FMSHRC at 1485; Phillips Uranium Corp., 4 FMSHRC 549, 551 (Apr. 1982); Extra Energy, 20
FMSHRCat5.

10

As explained by the Commission, "[a]buse of discretion may be broadly defined to·
include errors of law." Utah Power & Light Co., Mining Div., 13 FMSHRC 1617, 1623, n.6
(Oct. 1991). Furthermore, "the choice of sanction is largely within an agency's discretion; the
reviewing court may overturn it only if it is unwarranted in law or unjustified in fact." Id.
(citation omitted). '"Abuse of discretion' is a phrase which sounds worse than it really is." Id.
(citation omitted).
27 FMSHRC 266

Over the years, the Commission has·considered a number of factors on a case-by-case
basis in detennining whether the Secretary's citation of a production-operator is "consistent with
the purpose and policies" of the Mine Act. The principal factors are summarized below:
(1)

Whether the production-operator, the independent contractor, or another party was in the
best position to affect safety matters. E.g., Phillips, 4 FMSHRC at 553; Bulk, 13
FMSHRC at 1360-61; Extra Energy, 20 FMSHRC at 5. In this regard, one of the key
questions is whether the independ<mt contractor has adequate size and mining experience
to address safety concerns. Calvin Black Enter., 7 FMSHRC 1151, 1155 (Aug. 1985);

(2)

Whether, and to what extent, the production-operator had a day-to-day involvement in the
activities in question. E.g., Extra Energy, 20 FMSHRC at 5-6. A closely related factor is
"the nature of the task performed by the contractor." Calvin Black, 7 FMSHRC at 1155;

(3)

Whether the production-operator contributed to the violations committed by the
independent contractor. E.g., Calvin Black, 7 FMSHRC at 1155; and

(4)

Whether the production-operator's actions satisfy any of the criteria set forth in the
Secretary's Enforcement Guiclelim~s. 11 "In addition [to the factors above], the
Commission has considered whether any of the criteria of the Secretary's Guidelines for
proceeding against an operator have been satisfied." Extra Energy, 20 FMSHRC at 5.
The guidelines provide that enforcement action may be taken against a production
operator for violations committed by its independent contractor in any of the following
four situations: "(1) when the production-operator has contributed by either an act or an
omission to the occurrence of the violation in the course of the independent contractor's
work, or (2) when the production-operator has contributed by either an act or omission to
the continued existence of a violation -committed by an independent contractor, or (3)
when the production-operator's miners are exposed to the hazard, or (4) when the
production-operator has control over the condition that needs abatement." 45 Fed. Reg.
at 44,497. As explained below, the four criteria overlap in certain respects with the
factors separately applied by the Commission in such cases.

11

The Enforcement Guidelines were issued by the Secretary in 1980 as an appendix to
regulations requiring that independent contractors provide certain information to productionoperators before beginning work and establishing procedures under which independent
contractors could obtain MSHA identification numbers. 45 Fed. Reg. at 44,494, 44,497. The
Enforcement Guidelines set forth four criteria to be used by MSHA inspectors in determining
whether to cite a production-operator for the violations of its independent contractor. The
Commission has repeatedly recognized that the Enforcement Guidelines are policy statements
that are not binding on the Secretary and do not alter the compliance responsibilities of
production operators or independent contractors. E.g., Mingo Logan, 19 FMSHRC at 250-251.
27 FMSHRC 267

Based upon our review of the record in this case, we conclude that the Secretary's
decision to cite Twentymile for the violations committed by its independent contractor Precision
was not "consistent with the purpose and policies" of the Mine Act and constituted an abuse of
discretion. Consideration of the various factors outlined above establishes that there was an
insufficient basis in the record for issuing the citations to the production operator in addition to
the independent contractor.
1.

Which Entity Was in the Best Posjtion to Prevent the Violations

The record shows that the independent contractor Precision was in the "best" position to
prevent the violations in question. 12 Precision was hired because of its special expertise in .
working with refuse piles (Tr. 69-71, 85) and is an experienced independent contractor that is
familiar with MSHA' s safety standards. Tr. 117. Importantly, the violations in question all
involved equipment owned and maintained solely by Precision. 25 FMSHRC at 353. Moreover,
Precision carried out its work without direct or continuing supervision from Twentymile (Tr. 71,
85). Under the terms of the contract between Precision and Twentymile, Precision was required
to comply with aU MSHA safety and health standards. T. Ex. 26; Tr. 71-72. In addition,
Twentymile provided a safety guide to Prt:cision that included specific provisions requiring a
preshift examination of all equipment and the repair of all safety defects. T. Ex. 27; Tr. 73, 121;
25 FMSHRC at 357. The safety guide also contained provisions relating to each of the six cited
conditions and required Precision to correct the conditions before the equipment was operated at
the mine. 25 FMSHRC at 357.
As the Commission stated in Phillips, where "[l]arge, skilled contractors were retained
for their expertise in an important and familiar facet of mine construction" and the contractor
"created a violative condition and is in the best position to eliminate the hazard and prevent it
from recurring," the Secretary's decision to proceed against the production operator is
inconsistent with the purpose and policies of the Act. 4 FMSHRC at 553 (dismissing the
production operator as a party and substi.nating the independent contractor in its place). "'In
many circumstances ... it should be evide:nt to an inspector at the time that he issues a citation or
order that an identifiable contractor created a violative condition and is in the best position to

12

The dissenting opinion does not argue, and cannot argue based on the record, that
Twentymile was in the "best" position to prevent the violations. Instead, it maintains only that
Twentymile was in an "excellent" position to affect safety (slip op. at 22), which is not the test
used by the Commission. See Extra Energy, 20 FMSHRC at 5 ("whether the operator is in the
best position to affect safety"). As demonstrated below, the record shows that Precision was
clearly in the "best" position to affect safety and prevent the violations in this case. Moreover,
contrary to the dissenting opinion (slip op. at 22 n.3), because determining whether the operator
was in the "best" position to prevent the violations is just one of the factors to be considered by
the Commission, a conclusion that an independent contractor was in the "best" position does not,
by itself, mean that the Secretary is foreclosed from issuing dual citations in appropriate
circumstances.
27 FMSHRC 268

eliminate the hazard and prevent it from recurring."' Id. (quoting Old Ben, 1 FMSHRC at 1486).
In Calvin Black, the Commission reiterated the principles expressed in Phillips that
should guide the Secretary in determining the party against whom she should proceed. 7
FMSHRC at 1155.13 Those factors include "the size and mining experience of the independent
contractor [and] the nature of the task perf0rmed by the contractor," in addition to which party
contributed to the violation and was in the best position to eliminate the hazard and prevent its
recurrence. 14 Id.
Here, Precision was an experienced contractor carrying out customized mining activities
(removal of clay from the refuse pile) and performing those duties autonomously. The violations
all involved Precision's equipment. 25 FMSHRC at 353. Precision was familiar with the Mine
Act and MSHA's regulations, and Twentymile had favorable experience with Precision in this
regard. is Tr. 85. These factors all support citing the contractor, Precision, and holding it solely
accountable for compliance with the Mine Act.

13

We note that the facts in this case are readily distinguishable from those in Calvin
Black, where the Commission ruled that the production operator should be liable for safety
standard violations where the independent contractor's employees worked at the mine only
intermittently, the employees (geologists) lacked experience in working in mines, and the
employees were generally unfamiliar with MSHA's standards. 7 FMSHRC at 1155-56.
14

While our dissenting colleague characterizes Phillips and Calvin Black as "cases that
the Commission has declined to follow for at least the past ten years" (slip op. at 21), those
decisions have not been overruled, and the propositions for which they are cited in our opinion
are still valid. Although both cases were decided when the Secretary was following a policy of
citing "owners only" for violations committed by their independent contractors, their general
discussions of factors to be considered in determining whether an owner-operator should be cited
for its independent contractor's violations are still applicable today in determining whether the
Secretary has abused her discretion in citing an owner-operator or production operator for its
independent contractor's violations. Here, we rely on portions of the decisions in Phillips and
Calvin Black as setting forth some of the factors to be considered in determining whether an
abuse of discretion occurred.
The record in this case establishes that Precision had an excellent compliance and
accident record. For the two-year period prior to August 30, 2001, Precision had received no
citations from MSHA despite the fact that it had worked for Twentymile and other mines during
that period. 25 FMSHRC at 358. During the four-year period preceding August 2001, Precision
had no reportable injuries. Id.
is

27 FMSHRC 269

2.

Extent of the Production Operator' s Involvement in Relevant Activities

Twentymile did not have a significant, continuing involvement in the work specifically
being performed at the refuse pile - the stripping and hauling of clay. Although Twentymile did
have a substantial, continuing involvement with the underground operations and certain other
surface areas at its Foidel Creek Mine, Pr<,cision was hired to perfonn the work at the No. 2
Refuse Pile because of its special expertise with refuse piles. 16 Tr. 69, 74, 85. Because of the
nature of the tasks being perfonned, Precision was responsible for providing the equipment to be
used at the refuse pile and for operating it. T. Ex. 26 (Ex. C). No Twentymile employees
worked at or near the refuse pile (Tr. 85-86), although Dave Wall ace, Twentymile' s supervisor of
surface operations, testified that he checked on Precision's progress at the refuse pile once each
day or day and one-half. Tr. 85. While Twentymile regularly performed general safety audits at
the mine that would at some point include equipment at the refuse pile (Tr. 120), the contract
between Twentymile and Precision provided that Precision was responsible for complying with
all applicable safety requirements. T. Ex. 26; Tr. 71-72. There was no evidence that Twentymile
ignored the defects complained of or was directly involved in creating the violative conditions.

In the context of the relationship between the parties, Twentymile' s involvement appears
to be nothing more than prudent oversight of the contractor's compliance with the contract for
services at the refuse pile, including the safety and health provisions of the contract. Punishing a
production operator for such steps taken to "ensure,, contractor compliance is contrary to the
intent of the Mine Act and our precedent in these cases. See, e.g., Phillips, 4 FMSHRC at 553.
The Secretary asserts that Twentymile should be liable for failing to either inspect the equipJ?ent
or ensure that Precision would do so. Oral. Arg. Tr. 35-38. But there is no standard requiring
production operators to inspect each piece of equipment every time it enters a mine site, and as
will be further discussed under factor 3, infra, Twentymile did, through the contract, require that
Precision inspect the equipment. Given Twentymile's limited involvement in the activities at the
refuse pile, we cannot say that this factor 8Upports the decision to cite Twentymile in this case.
3.

Whether the Production Operator Contributed to the Violations

The record establishes, foremost, that Twentymile did not directly contribute to the
violations that are involved in these citations. The violations involved Precision•s equipment at
the refuse pile, and no Twentymile employees were involved in any way in operating or

16

The dissenting opinion suggests that because Twentymile had substantial involvement
with the underground operations and certain other surface areas of the mine, it should
automatically be treated as having substantial involvement with the refuse pile. Slip op. at 2223. However, where a production operator contracts with an independent contractor to perform
specified work in a discrete area of the mine site (such as the refuse pile here) and the production
operator's employees will not be subjected to hazards in that area, the extent to which the
production operator should be regarded as involved with activities within that area should be
determined on a case-by-case basis.
27 FMSHRC 270

maintaining that equipment. Tr. 85-86. There is no other evidence that Twentymile took any
action that directly contributed to the violations.
Moreover, the record does not establish that Twentymile contributed to the violations
through any significant omission on its part. In order for a production operator to contribute to a
violation through an omission, that omission must be a significant one. Whenever an
independent contractor commits a violation, there is almost always some action that a production
operator could theoretically have taken that might have prevented the violation. Without a
"significant" threshold, the production operator could be found to have contributed to the
violation in virtually every situation, and this contribution factor essentially would be a
discussion regarding satisfaction of the Secretary's Enforcement
meaningless test. See
Guidelines, infra, at 12-14.

the

Although the Secretary argues that Twentymile contributed to the violations through
omission by not having inspected Precision's equipment before it entered the mine site or
subsequently (S. Br. at 28-29), for the following reasons, we conclude that this does not
constitute a significant omission under the circumstances of this case.
As an initial matter, it is important that MSHA's regulations nowhere require that a
production operator inspect an independent contractor's equipment before it enters the mine site.
In the absence of any such explicit requirement, we are reluctant to impose one. 17 Accordingly,
the fact that Twentymile did not inspect Precision's equipment before it entered the mine site
each day does not, by itself, mean that Twentymile contributed to the violations through a
significant omission. 18

In Extra Energy, 20 FMSHRC at 6, the Commission provided guidance regarding the
measures a production operator should take in order not to contribute to an independent
contractor's violation. In that case, a security guard employed by an independent contractor died
from carbon monoxide poisoning because the car in which he was sitting at the mine site during
his watch was defective. The Commission ruled that the production operator contributed to the
equipment violation because it "took no measures to ensure that the cars were safe, either by
inspecting them itself or by requiring that [the independent contractor] did so." Id. Stated
somewhat differently, we believe that the appropriate test in such a case is whether the

17

Significantly, Precision's service truck entered the mine site daily to service its
equipment at Twentymile's site, as well as at other locations (Tr. 21 , 86), indicating that it
exercised complete control over its equipment. Thus, Precision was in the best position to
inspect its equipment to ensure compliance with MSHA' s regulations.
18

In addition, Twentymile undertook general safety audits at the mine that would have
eventually included the equipment at the No. 2 Refuse Pile. Tr. 120. Since Precision had been
working at the mine for only one week prior to MSHA' s issuance of the citations (25 FMSHR.C
at 355; Tr. 62-63), Twentymile had not yet conducted an inspection at the refuse pile.
27 FMSHRC 271

production operator took reasonable steps under the circumstances to ensure that the independent
contractor's equipment is safe, either by inspecting the equipment itself or by requiring that the
independent contractor conduct inspections of the equipment.

Jn the instant case, we conclude that Twentymile took reasonable measures to ensure that
Precision inspected its equipment and complied with MSHA's safety standards. The contract
between Precision and Twentymile requirc~d that Precision comply with MSHA's safety
standards. T. Ex. 26; .Tr. 71-72. Likewise:, the safety guide that Twentymile gave to Precision
explicitly required that Precision conduct preshift examinations of its equipment and correct any
safety defects. T. Ex. 27; Tr. 121-122. Moreover, Precision was advised that it was subject to
safety audits and inspections to ensure its compliance with the Mine Act (Tr. 120), and
Twentymile exercised reasonable diligence and oversight by having mine management regularly
check on the refuse pile project. Tr. 85. We conclude that these measures constituted a
reasonable approach to ensuring that the equipment was safe. Therefore, Twentymile did not
contribute, through omission, to the violations involving Precision' s equipment.
Moreover; we conclude that the reasoning relied upon by the ALT in finding that
Twentymile had not done enough to ensure the safety of the equipment does not withstand
scrutiny. The AI.J agreed that Twentymile had taken "important steps" to ensure that the
equipment in question had been inspected. 25 FMSHR.C at 360. However, he believed that
Twentymile employees should have additionally asked Precision employees whether the
equipment had been inspected when the equipment entered the mine each day or after it arrived
at the refuse pile. Id. Given the clear requirement that Precision conduct preshift examinations
of its equipment, we disagree that it was necessary for Twentymile employees to ask Precision
employees additionally whether the equipment had been inspected each time that the equipment
entered the mine site or after it reached the refuse pile. Contrary to the ALT' s position that a
production operator must necessarily "follow-through" on a requirement that an independent
contractor inspect its equipment (25 FMSHRC at 360), Extra Energy provides only that a
production operator must "ensure that the [equipment was] safe, either by inspecting the
[independent contractor's equipment] itself or by requiring that [the independent contractor] did
so." 20 FMSHR.C at 6. It was reasonable and sufficient for Twentymile, through the contract
and the safety guide, to require expressly that Precision carry out such inspections on its own.
4.

Whether Any Criteria in the Secret;u:y's Enforcement Guidelines Were Satisfied

Jn addition to the three factors above that traditionally have been applied by the
Commission in cases where both production operators and independent contractors are involved,
the Commission has also considered whether any of the four criteria in the Secretary' s nonbinding Enforcement Guidelines have been satisfied. Extra Energy, 20 FMSHRC at 5. We also
examine the criteria in this case because the MSHA inspector relied upon them in issuing the

27 FMSHRC 272

citations (Tr. 35) and the Secretary relied upon them on appeal (S. Br. 26-27, 29-30). 19
Before discussing the four individual criteria in the Enforcement Guidelines, we reiterate
that a particular criterion should be found to be satisfied only if a significant threshold has been
reached. In other words, a criterion is not satisfied unless the production operator's involvement
in the violation extends beyond the minimal level that would be found with regard to virtually
every independent contractor violation. For example, as discussed above, in virtually every case
it would be possible to find some action that the production operator could have taken that might
have prevented the independent contractor's violation, thereby arguably showing that the
production operator contributed to the violation through omission. Similarly, the fourth criterion
is whether the production operator had "control" over the actions of the independent contractor.
Because virtually every agreement between a production operator and independent contractor
will give the production operator some minimal control over the independent contractor's
activities, e.g., the ability to order the independent contractor to leave the production operator's
property, the degree of control must also be significant in order to satisfy that criterion.20 If the
guidelines were construed so broadly as to be satisfied with regard to essentially every
independent contractor violation, the test based on the four criteria would be meaningless.
Accordingly, we conclude that a particular criterion is satisfied only if the production operator's
involvement is in some way "significant," i.e., it exceeds the minimal level that would be present
with regard to virtually every independent contractor violation.

19

While we have acknowledged that the Enforcement Guidelines are not binding on the
Secretary, slip op. at 8 n.11, we cannot agree with our dissenting colleague's refusal to apply
them, slip op. at 23, in light of MSHA's and the Secretary's reliance on them. Further, the
"broad leeway" that the dissent would accord the Secretary to issue citations to mine operators,
slip op. at 21, becomes boundless discretion (and unreviewable) absent consideration of the
Secretary's Enforcement Gui<l:elines to review the Secretary's exercise of enforcement discretion.
More significantly, mine operators must be able to rely on the Enforcement Guidelines in guiding
their conduct vis a vis their contractors.
20

In Bulk, 13 FMSHRC at 1360, the Commission found that the Secretary had satisfied
the criterion in citing the independent contractor rather than its subcontractors where the
independent contractor had "substantial control" over the condition requiring abatement. Our use
of "substantial" in that case correlates to our use of "significant" in other cases and our use of
that term in this case.
The dissenting opinion states that Twentymile had "sufficient" control over the
conditions needing abatement in that Twentymile reserved the right to remove violative
equipment from its property. Slip op. at 24. By using the word "sufficient," the dissenting
opinion recognizes that the extent of the production operator's control must exceed some
threshold before the control criterion can be satisfied. Our establishment of the "significant"
threshold is entirely consistent with this proposition.
27 FMSHRC 273

a.

Whether the production operator contributed either to the violations in question or to·their
continued existence

As discussed above with regard to the factors separately considered by the Commission
(slip op. at 8-13), we have concluded that Twentymile took reasonable measures to ensure that
Precision inspected its equipment and complied with MSHA's safety standards. Accordingly,
Twentymile did not contribute to Precision' s violations either by direct action or through any
significant omission on its part For the same reasons, the record does not indicate that
Twentymile contributed in any significant way to the continued existence of the violations in
question. 21 Thus, the first and second critc~ria of the Enforcement Guidelines have not been met
by the Secretary.
b.

Whether the production operator's employees were threatened by the hazards

The record further indicates that Twentymile's employees were not threatened in any
significant way by the safety hazards associated with the violations in question. The workers at
the refuse pile were exclusively Precision employees, and testimony established that no
Twentymile employees worked near the mfuse pile. Tr. 85-86. Although the inspector contended
that Twentymile's fire brigade might some day be required to extinguish a fire resulting from
Precision's equipment (Tr. 26), this speculative possibility alone is not sufficient to satisfy this
criterion. As the AU found, "[Twentymile's] employees were not exposed to the hazards
presented by the violations in any meaningful sense .. . . Moreover, a production-operator would
always respond to a fire or other emergency involving a contractor's equipment. Under the
Secretary's interpretation, virtually all contractor violations would expose the production-operator
to citations under this factor." 25 FMSHRC at 360, n.2. On appeal, the Secretary does not
challenge this finding.
c.

Whether the production operator had significant control over the condition in question

Twentymile had no significant or special control over the conditions requiring abatement
in this case. Indeed, the AU found that "Twentymile did not have direct control over the cited
equipment." 25 FMSHRC at 360. Although, under its contract with Precision, Twentymile had
the right to order Precision to remove its equipment from the mine site, there is no indication that
this provision gave Twentymile any rights that any other production operator would not typically
have had. In Cathedral Bluffs Shale Oil Co., 6 FMSHRC 1871(Aug.1984), rev'd, 196 F.2d 533

21

Moreover, the MSHA inspector admitted on cross-examination that, in applying the
first two criteria under the Enforcement Guidelines, he concluded that Twentymile had
contributed to the violations and their continued existence simply because it had failed to prevent
them. Tr. 57-58. He further conceded that, pursuant to that approach, the first two criteria
"would apply to virtually every contractor situation .... " Id. The inspector's testimony
emphasizes the need to apply the criteria in such a way that the test is meaningful and only
significant actions or omissions meet the criteria.
2TFMSHRC 274

(D.C. Cir. 1986), the Commission concluded that similar standard contract language (reserving
the right to monitor work and to terminate the contract if the independent contractor disregarded
applicable laws) was not sufficient to satisfy the control criterion in the Secretary's Enforcement
Guidelines: 22
The rights reserved by [the production operator] are basic contractual rights
universally reserved in well-drafted contracts in this industry and others. To hold
that the mere presence of such language satisfies the criterion of "control" under
the Secretary' s independent contractor enforcement guidelines, would vitiate the
very essence of the guidelines. The plain fact is that if the contractual provisions in
this case constitute "control" for citation purposes, every production-operator could
be cited for every contractor violation. This result has long been criticized as
ineffective enforcement of mine safety statutes and was ostensibly abandoned by
the Secretary upon the adoption of his new policy. [Citations omitted.]
We hold that before a production-operator can be deemed to "control" a
contractor's activities sufficient to justify the issuance of a citation to it for a
contractor's violation, some functional nexus, beyond the contractual nexus
reflected here, must be demonstrated linking the production-operator's
involvement with the contractor's violation.
6 FMSHRC at 1876.
If the Secretary were found to have met the control criterion with regard to Twentymile in
this case based on the contractual right to remove Precision's violative equipment, then virtually
every production operator could automatically be found liable for its independent contractor's
violations, thereby rendering the four-criteria test essentially meaningless. Accordingly, the fourth
criterion has not been met in this case and cannot provide a basis for upholding the Secretary' s
action.

22

The Commission's decision was subsequently overturned on appeal because the D.C.
Circuit concluded that the Commission had improperly applied the Enforcement Guidelines as
"binding norms." Cathedral Bluffs, 796 F.2d at 538-39. Although the D.C. Circuit ruled that the
Commission cannot apply the Enforcement Guidelines as though they are regulations, the court's
decision did not prohibit the Commission from considering the criteria as factors to be examined
in determining whether the Secretary has abused her discretion, and the Commission has
considered them in this manner. E.g., Extra Energy, 20 FMSHRC at 5. Accordingly, the
Commission's reasoning in Cathedral Bluffs, 6 FMSHRC 1871, regarding how individual
criteria should be applied remains valid today.
27 FMSHRC 275

5.

The Additional Rationale Relied Upon By the MSHA Inspector

The specific rationale given by MSHA inspector Havrilla for citing Twentymile in this
case provides no additional basis for upholding the citations. According to the inspector, he
issued the citations to Twentymile, as well as to Precision, on August 30, 2001, because he
believed that there was a "serious problem~' with contractor violations at the Foidel Creek Mine.
Tr. 35. He primarily based his conclusion that there was a serious problem on the number of
violations he found and the fact that the equipment had not been inspected. Id. He further stated
that he believed that the criteria in the Enforcement Guidelines had been satisfied. Id.
To the extent that the inspector issued the citations to Twentymile as well as Precision
because of the number of violations and the absence of inspections, the question to be resolved
remains whether the Secretary's action was "consistent with the purpose and policies of the
Act."23 That question hinges upon an analysis of the factors traditionally applied by the
Commission. As discussed above, that analysis shows that issuance of the citations to
Twentymile was unwarranted in this case. Thus, the inspector's subjective conclusion that there
was a "serious problem" with independent contractor violations at the mine is not an independent
justification for citing the production operator in this case.

*

*

*

In summary, we conclude that none of the factors traditionally applied by the Commission
in determining whether a production operator should be cited for its independent contractor's
violations, including the criteria in the Enforcement Guidelines, support the issuance of the
citations to Twentymile in this case.24 Moreover, the MSHA inspector's additional rationale for

23

To the extent that the inspector may have believed that there was an increasing trend of
contractor violations at the Foidel Mine, the record indicates that the inspector did not conduct an
analysis of recent contractor violations at the mine before issuing the citations. Tr. 52. In
addition, for the two-year period preceding August 30, 2001, Precision - the independent
contractor hired by Twentymile - had received no citations from MSHA despite the fact that it
had previously worked for Twentymile and other mines during that period. 25 FMSHRC at 358.
For the preceding four-year period, Precision had no reportable injuries. Id. Moreover, the
record does not otherwise indicate the existence of a significant problem with contractor violations at Twentymile's mine within the past two years. Because the inspector's apparent belief
that a "serious problem" with independent contractor violations existed was not supported by an
objective analysis, it is insufficient, particularly in light of the foregoing analysis of the factors
traditionally applied by the Commission, to support the issuance of citations to Twentymile.
24

The cases cited by our dissenting colleague for the proposition that our decision in this
case is inconsistent with longstanding Commission precedent are all distinguishable. In W-P, the
Commission concluded that, because of W-P's "substantial" involvement in numerous activities
at its mine, it should also be liable for its production contractor's violations. 16 FMSHRC at
2'J FMSHRC 276

issuing the citations to Twentymile does not provide an independent basis for this action. Based
on the analysjs set forth above, we conclude that the Secretary'~ action in issuing citations to
Twentyiilile for the violations of Precision in this case was not "consistent with the purpose and
policies" of the Mine Act, was not supported by substantial evidence, and therefore constituted an
abuse of ruscretion.

m
Conclusion
For the foregoing reasons, we reverse the judge's decision and vacate the citations issued
to Twentymile.

1411. That case did not involve an inde{M:ndent contractor hired to perform a specified, discrete
task as does this case. In both Consolidation Coal Co. , 11FMSHRC1439, 1443 (Aug. 1989),
and Mingo Logan, 19 FMSHRC at 250, the Commission found that the production operator's
employees were exposed to hazards caused by the independent contractor's violations - a
situation unlike this case. In Bulk, the production operator (BethEnergy) was not issued citations
for violations at its mine. Instead, the issue was whether Bulk, Betl$nergy' s independent
contractor, should be liable for violations committed by individual truck drivers who were
deemed to be its subcontractors. 13 FMSHRC at 1356, 1360-61. Finally, in Extra Energy, the
Commission held that the production operator was properly cited for its independent contractor' s
violations where the production operator took no steps to either inspect the vehicle in question or
require, as Twentymile rud here, that the independent contractor inspect it. 20 FMSHRC at 6.
27 FMSHRC 277

Commissioner Jordan, concurring and dissenting:
I concur with the conclusion of my colleagues in the majority that we need not overturn
precedent holding that, under the Mine Act, the Secretary of Labor may properly cite an owneroperator, independent contractor, or both for a violation of an independent contractor. In addition,
I concur with my colleagues that the Commission may review the Secretary's enforcement
decision in citing an operator. However, 1 disagree with the majority's conclusion that the
Secretary abused her discretion in issuing the subject citations to Twentymile.
The majority has dramatically departed from longstanding Commission precedent in its
consideration of whether the Secretary abused her discretion in citing Twentymile. During the
past twenty years, the Commission has not vacated the Secretary's enforcement decision to cite an
owner-operator for an independent contractor's violation. 1 See, e.g., Consolidation Coal Co., 11
FMSHRC 1439, 1443 (Aug. 1989); W-P Coal Co., 16 FMSHRC 1407, 1411(July1994); Extra
Energy, Inc., 20 FMSHRC 1, 5 (Jan. 1998).
The Commission has affirmed the Secretary's enforcement decisions to cite an owneroperator for contractor violations in recognition of the liability scheme of the Mine Act, which
places responsibility for violations at a mine on the owner-operator of the mine whether those
violations were committed by the operator's employees, agents, or contractors. Bulk Transp.
Servs., Inc., 13 FMSHRC 1354, 1359 (Sept. 1991); Mingo Logan Coal Co., 19 FMSHRC 246,
249 (Feb. 1997), affd, 133 F.3d 916, 1998 WL 3613 (4th Cir. 1998) (''MSHA may hold Mii:igo
Logan, because of its operator status, strictly liable for all violations ... that occur at the mine
site, whether committed by one of its employees, or an employee of one of its contractors."). The
owner-operator's fault may be taken into account only in the context of assessing a civil penalty
based upon the operator's negligence. 30 U.S.C. § 820(i); Int'l Union, UMWA v. FMSHRC, 840
F.2d 77, 83-84 & n.13 (D.C. Cir. 1988) (noting that while the Mine Act establishes an operator's
liability without regard to fault, fault may be considered in the context of penalty assessment).
Long-accepted policy reasons supporting citing an owner-operator for contractor violations
include the fact that an owner is generally in continuous control of conditions at the entire mine;
the owner is more likely to know federal health and safety requirements; and the owner should not
be able to evade responsibility for such requirements by using independent contractors. Cyprus
Indus. Minerals Co. v. FMSHRC, 664F.2d 1116, 1119-20 (9th Cir. 1981).

In affirming the Secretary's decisions to cite-owner operators, the Commission has also
been guided by the recognition of the discretion afforded the Secretary in making enforcement

1

It appears that the Commission last affirmed the vacation of a citation issued to a
production-operator in circumstances in which the Secretary had also issued an identical citation
to an independent contractor in Cathedral Bluffs Shale Oil Co., 6 FMSHRC 1871, 1872-1877
(Aug. 1984), rev'd, 796 F.2d 533, 535 (D.C. Cir. 1986). The Commission's decision was
reversed on appeal because the Commission had erroneously considered as binding the Secretary
of Labor's Enforcement Guidelines. Brock v. Cathedral Bluffs, 796 F.2d at 537-39.
27 FMSHRC 278

decisions. In Cathedral Bluffs, the court noted that "courts have traditionally been most reluctant
to interfere" with an agency's exercise of enforcement discretion, and that "policies underlying
that restraint extend as well to interference by a quasi-judicial agency that has no enforcement
responsibilities, such as the ... Commission." 796 F.2d at 538. Referring to that precedent, the
Commission has stated that "[c ]ourt precedent makes clear that the Secretary has retained wide
enforcement discretion and that courts have traditionally not interfered with the exercise of that
discretion." Consolidation Coal, 11 FMSHRC at 1443 (citing Brock v. Cathedral Bluffs, 796
F.2d at 538). For the past twenty years, the Commission has exercised such restraint in reviewing
the Secretary's enforcement decisions in recognition of the Secretary's "wide" enforcement
discretion. W-P, 16 FMSHRC at 1411; Bulk, 13 FMSHRC at 1359-60.
An owner-operator cannot avoid liability for independent contractor violations at its mine
unless the Secretary abused her discretion in citing the owner-operator. W-P, 16 FMSHRC at
1411; Mingo Logan, 19 FMSHRC at 249-50. Twentymile "bears a heavy burden" in proving that
the Secretary abused her discretion by citing it. Mingo Logan, 19 FMSHRC at 249 n.5; Extra
Energy, 20 FMSHRC at 5. In cases in which the Commission has reviewed the Secretary's
decision to cite an operator, the Commission has repeatedly recognized that it may find an abuse
"only if there is no evidence to support the decision or if the decision is based on a
misunderstanding of the law." Mingo Logan, 19 FMSHRC at 249-50 n.5 (emphasis added).

In evaluating the evidence supporting the Secretary's decision to cite an operator, the
Commission has considered various factors, including:
the operator's day-to-day involvement in the mine's operations
(Mingo Logan, 19 FMSHRC at 250; W-P, 16 FMSHRC at 1411),
whether the operator is in the best position to affect safety (Bulk
Transp., 13 FMSHRC at 1361) and whether the enforcement action
is consistent with the purpose and policies of the Act (Old Ben Coal
Co., 1FMSHRC1480, 1485 (Oct. 1979)).

Extra Energy, 20 FMSHRC at 5.
While the majority recognizes the first part of the Commission's test, that an abuse of
discretion may include errors of law (slip op. at 7 n.10), it fails to mention that "[a] litigant
seeking to establish an abuse of discretion bears the heavy burden of establishing that there is no
evidence to support the Secretary's decision." Extra Energy, 20 FMSHRC at 5 (citing Mingo
Logan, 19 FMSHRC at 249-50 n.5).

In addition, the majority raises the threshold of the evidence necessary to support the
Secretary's enforcement decision. For instance, while the Commission has considered "the
operator's day-to-day involvement in the mine's operations" (Extra Energy, 20 FMSHRC at 5
(citing Mingo Logan, 19 FMSHRC at 250); W-P, 16 FMSHRC at 1411), the majority has
considered "[w]hether, and to what extent, the production operator had a day-to-day involvement

27 FMSHRC 279

in the activities in question." Slip op. at 8 (emphasis added). Jn W-P, the Commission affirmed a
citation issued to a owner-operator for a citation alleging a failure to maintain a bathhouse floor
''even though an independent contractor operated the mine," and was contractually responsible for
controlling the mine and complying with mine safety and health laws. Mingo Logan, 19
FMSHRC at 250; W-P, 16 FMSHRC at 1408. Jn considering whether the owner-operator was
"sufficiently involved with the mine" to support the Secretary's decision to proceed against it, the
Commission did not narrow its consideration to the operator's involvement with maintenance of
the bathhouse floor. Rather, it considered that the owner-operator was involved in such general
activities as preparing·the mine map, calculating mining projections, visiting the mine to "discuss
production and other matters," and waiving fees owed by an independent contractor. W-P, 16
FMSHRC at 1411.
Moreover, the majority bases its conclusion on a Commission decision subsequently
reversed by the D.C. Circuit, and also relies heavily upon cases that the Commission has declined
to follow for at least the past ten years. First, try as they might, my colleagues fail to successfully
resuscitate the Commission's decision in Cathedral Bluffs, 6 FMSHRC 1871, which was
overturned by the D.C. Circuit. Cathedral Bluffs, 796 F.2d at 537-39. In fact, the majority'~
inflexible adherence to the Secretary's Enforcement Guidelines is precisely what the D.C. Circuit
cautioned against when it referred to "[t]he four criteria which the Commission's decision
requires the Secretary to observe so rigidly." 796 F.2d at 538. In addition, the majority repeatedly
cites Phillips Uranium Corp., 4 FMSHRC 549, 551 (Apr. 1982), and Calvin Black Enter., 7
FMSHRC 1151 (Aug. 1985) regarding principles that "should guide the Secretary in detenruning
the party against whom she should proceed." Slip op. at 10; see also slip op. at 7-11. Jn 1994, the
Commission distinguished Phillips, explaining that the decision "was directed to the Secretazy' s
earlier policy of pursuing only owner-operators for their contractors' violations" and that since
that tim~ the Secretary's "policy has been broadened to include pursuit of independent contractoroperators in some instances." W-P, 16 FMSHR.C at 1410; see also Cathedral Bluffs, 6 FMSHRC
at 1873 (stating that the "rationale ... relied on to vacate the citation at issue in Phillips [was] not
relevant" in part because that citation had been issued as a result of the Secretary's '"owners-only'
policy."). In Calvin Black, the Commission applied the principles enunciated in Phillips. 7
FMSHRC at 1155. Since at least 1994, the Commission has not relied upon Phillips or Calvin
Black in its decisions reviewing the Secretary's enforcement decisions.
The majority attempts to construct a veneer of moderation by maintaining that it is simply
talcing into account "the factors traditionally applied by the Commission in determining whether a
production-operator should be cited for its independent contractor's violations," slip op. at 17, and
insisting that its views are consistent with viable prior Commission case law. In fact, it has turned
the legal standard in this area on its head. Instead of the Secretary having broad leeway to cite an
operator (unless she abuses her discretion), it appears that, under the majority's ruling, the
Secretary is prohibited from citing an operator unless she meets the factors set forth by my
colleagues, slip op. at 8, and surpasses the high bar the majority has erected by insisting that the
criteria in the Secretary's Enforcement Guidelines are satisfied only if a "significant threshold has
been reached." Slip op. at 14.

27 FMSHRC 280

Applying relevant Commission precedent leads inexorably to the conclusion that
substantial evidence supports the judge's determination that the.Secretary did not abuse her
discretion in citing Twentymile.2 While the majority questions the quality and quantity of the
evidence supporting the Secretary's decision to cite Twentymile, there is no dispute that there is
evidence to support the Secretary's decision sufficient to satisfy the low threshold traditionally
required by the Commission.
First, Twentymile, as the owner-operator, had the overall responsibility of running the
mine and was substantially involved in the day-to-day operations. Twentymile hired independent
contractors and reviewed their safety records. Tr. 67-70. Twentymile maintained a constant
presence at the mine during the time that Precision performed its services for Twentymile. Tr. 1517, 94, 143. Twentymile's surface operations supervisor, Dave Wallace, traveled to the refuse
pile and checked Precision's work every day or day and-a-half. Tr. 94-95. Wallace testified that
if he had seen a safety problem while he was there, he would have told Precision to fix it. Tr. 95.
Twentymile conducted periodic safety inspections of its facilities that were not restricted to its
equipment and miners, but that encompassed an area of the mine and all equipment in the area,
whether it belonged to Twentymile or an independent contractor. Tr. 101-02, 111-12.
Twentymile' s involvement in day-to-day mining activities far "surpasses that of the operator in
W-P, [16 FMSHRC 1407]." Mingo Logan, 19 FMSHRC at 250.
Furthermore, Twentymile was in an exceJlent position to affect safety.3 If Twentymile
found violative equipment while inspecting contractor's work, it required its contractor to correct
the condition, or it required the contractor to remove the equipment from the site, as it did with
respect to Precision's equipment. Tr. 78-79, 94-95, 105, 111-12, 129-30. Twentymile also

2

When reviewing an administrative law judge's factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means "'such relevant evidence as a reasonable
mind might accept as adequate to support [the judge's] conclusion.'" Rochester & Pittsburgh
Coal Co., 11FMSHRC2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)).
3

While we recognize that no one factor is dispositive, my colleagues insist that only the
operator in the "best" (as opposed to an excellent) position to prevent the violations should be
cited. Slip op. at 9-10 & n.12. I do not read the Commission cases cited by the majority in so
narrow a fashion. To do so is inconsistent with our determination that MSHA may issue dual
citations. In this case, both operators wen~ in a position to affect safety. Precision was certainly
capable of maintaining its equipment but, in Inspector Havrilla's experience, bringing
Twentymile's influence to bear had proven to be a potent force. In 1999, concerned about the
number of contractor violations at this mine, the inspector warned Twentymile that both it and its
contractors would be cited if the number of violations was not reduced. 25 FMSHRC at 356-57;
Tr. 34. The inspector testified that he noticed a subsequent decrease in the number of violations
by independent contractors. 25 FMSHRC at 356-57; Tr. 35.
27 FMSHRC 281

demonstrated its ability to affect safety by refusing to allow the cited equipment back on-site until
Twentymile had inspected the equipment.4 Tr. 108. Jn addition, Twentymile provided sitespecific hazard training to contractors' employees and ensured that such employees had MSHArequired training. 25 FMSHRC at 357-58; Tr. 110-11, 117-18.
Because the Secretary's Enforcem<mt Guidelines are not binding, I need not also consider
whether the Enforcement Guidelines were satisfied in order to uphold the Secretary's actions in
citing Twentymile. Mingo Logan, 19 FMSHRC at 250-51. However, while failure to satisfy the
criteria is not fatal to an enforcement decision (id. at 250), the Commission has relied upon
satisfaction of the criteria in concluding that there was no abuse of discretion (e.g., Bulk, 13
FMSHRC at 1360). For the first time since the Commission's decision was reversed in Cathedral
Bluffs, 796 F.2d 533, the majority has relied on the Enforcement Guidelines to support its
conclusion that the Secretary abused her discretion.5
Moreover, in applying the Enforcement Guidelines, the majority has raised the level of
evidence necessary to satisfy its criteria.6 The majority states that "a particular criterion should be
found to be satisfied only if a significant threshold has been reached," (slip op. at 14) and applies
this standard de novo. The Commission has not previously articulated such a standard. In fact,
such a high evidentiary threshold seems inconsistent with the Commission' s recognition tha~ the
Guidelines need not even be satisfied in order to uphold the Secretary's enforcement decision, or
that an enforcement decision must be affirmed unless there is "no evidence" to support it. Mingo
Logan, 19 FMSHRC at 250 & n.5.
Even if I were to apply the Enforcement Guidelines, I would conclude that substantial
evidence supports the judge's conclusion that the first and fourth factors were satisfied.
Twentymile contributed to the equipment violations by an act or omission during the course of

4

Twentymile was not required to inspect the equipment in order to abate five of the
subject citations. Tr. 108; Gov't Ex. 2 (Citation Nos. 7618775, 7618777, 7618788, 7618884,
7618886).
5

In Cathedral Bluffs, the Commission reasoned that evidence that the Secretary
contended satisfied the Enforcement Guideline criteria would be present in any contractual
relationship and that the Enforcement Guidelines would be vitiated if such evidence were
sufficient to subject a production-operator to liability. 6 FMSHRC at 1874-76. The majority's
reasoning in this case is strikingly similar to the reasoning employed by the Commission in
Cathedral Bluffs, from which my colleagues quote extensively. Slip op. at 16.
6

As the majority states (slip op. at 14 n.20), in Bulk, the Commission concluded that the
Secretary had satisfied an Enforcement Guidelines criterion where the cited operator exhibited
"substantial control" over the condition requiring abatement. 13 FMSHRC at 1360. While there
was evidence of substantial control in Bulk, the Commission did not hold that such evidence was
necessary to satisfy the evidentiary threshold in future cases. Id.
27 FMSHRC 282

Precision's work because it is undisputed that Twentyrnile did not inspect Precision's equipment
when the equipment entered the mine or at any time when it was working at the refuse pile. 25
FMSHRC at 360; Tr. 35, 87-88, 105-06, 119. Nor did Twentymile take adequate measures to
ensure that Precision inspected its equipment by inquiring as to whether it had inspected its
equipment.7 Tr. 35, 93, 126-27. I agree with the judge that requiring Twentymile to "followthrough" in this manner is reasonable, particularly given Twentymile's actions in requiring its
contractors to present evidence that its employees meet MSHA's training requirements. 25
FMSHRC at 360. Moreover, the Enforcement Guidelines clearly provide that an owner-operator
is required to assure compliance with regulations applicable to independent contractors' work. 45
Fed. Reg. at 44497 (''This overall compliance responsibility of production-operators includes
assuring compliance with the standards and regulations which apply to work being performed by
independent contractors at the mine.").

In addition, I conclude that substantial evidence supports the judge's finding that
Twentymile had sufficient control over the conditions that needed abatement in that Twentymile
reserved the right to remove violative equipment from its property. Tr. 75, 78-79, 104, 109. Also,
Twentymile conducted safety audits of its facilities, including the perfonnance and equipment of
its contractors on-site. Tr. 101-02, 111-12. If Twentymile found violative equipment, it required
its contractor to correct the condition, or it: required the contractor to remove the equipment from
the site, as it did with respect to Precision's equipment. Tr. 78-79, 94-95, 105, 112.

7

Although Twentymile may have contractually required Precision to inspect its
equipment or to maintain its equipment in a certain manner, such contractual arrangements do
not absolve Twentymile of responsibility for violations by Precision. See Republic Steel Corp., 1
FMSHRC 5, 11 (Apr. 1979) ("A mine owner cannot be allowed to exonerate itself from its
statutory responsibility for the safety and health of miners merely by establishing a private
contractual relationship in which miners are not its employees and the ability to control the safety
of its workplace is restricted."). In any event, even a contractual document provided to Precision
explicitly acknowledges that although MSHA may cite an independent contractor, Twentymile is
"not completely relieve[d] ... from all responsibilities or liabilities." T. Ex. 26 (Ex. D); Tr. 77.
27 FMSHRC 283

In conclusion, given Twentymile's involvement in the mine's day-to-day affairs, its
position to affect safety, its failure to inspe.ct or ensure that the vehicles were inspected, and its
control over the conditions that required abatement, I conclude that Twentymile has failed to
prove that ''there is no evidence to support the [Secretary's] decision" to cite it for.the equipment
violations. Mingo Logan, 19 FMSHRC at 249-50 n.5; Extra Energy, 20 FMSHRC at 6. Thus,
substantial evidence supports the judge's determination that the Secretary did not abuse her
discretion in citing Twentymile for the six violations. Given the record evidence and my
reluctance to join my colleagues in discarding twenty years of Commission and cow;t precedent in
this area, I would affirin the judge's ruling.

27 FMSHRC 284

Distribution

R. Henry Moore, Esq.
Jackson Kelly, PILC
Three Gateway Center
401 Liberty Avenue, Suite 1340
Pittsburgh, PA 15222
Jack Powasnik, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Administrative Law Judge Richard Manning
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1244 Speer Blvd., Suite 280
Denver, CO 80204

27 FMSHRC 285

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

March 22, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA}

v.

DocketNos. WEVA2004-187-R
WEVA 2004-188-R
WEVA 2004-195-R

SPEED MINING, INC.

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

ORDER
BY THE COMMJSSION:
In these consolidated contest proceedings arising under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (2000), the Commission had granted the petition for
review filed by Speed Mining, Inc. ("SM!") of an administrative law judge's determination that
SM! had in two instances violated terms of a modification previously issued by the Department
of Labor's Mine Safety and Health Administration to SM!. See 26 FMSHRC 708, 710-13 (Aug.
2004) (AlJ). On February 3, 2005, in response to a joint motion filed by the Secretary of Labor
and SMI requesting that the Commission hold the issuance of a decision in abeyance while tlie
parties discuss settlement in this and related cases, the Commission agreed to do so until March
21, 2005.

1

Commissioner Suboleski recused himself in this matter and took no part in its
consideration. Pursuant to section 113(c} of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 823(c), this panel of three Commissioners has been delegated to exercise the powers of
the Commission.
27 FMSHRC 286

SMI has now moved, pursuant to Commission Procedural Rules 10 and 11 , 29 C.F.R.
§§ 2700.10 and 2700.11, to withdraw its pc~tition, and states in its motion that the Secretary of
Labor supports the motion. Having considered the motion, we grant permission to withdraw the
petition.

27 FMSHRC 287

Distribution
Timothy M. Biddle, Esq.
Daniel W . Wolff, Esq.
Crowell & Moring LLP
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Jack Powasnik, Esq. ·
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 2200 Floor West
Arlington, VA 22209-2247
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

27 FMSHRC 288

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

March 23, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2004-185-M
A.C. No. 31-02071-26994

v.
WAKE STONE CORPORATION

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

DIRECTION FOR REVIEW AND ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. ("Mine Act" or "Act"). On January 13, 2005, Administrative Law Judge Avram
Weisberger issued an unpublished decision in which he granted the motion of the Secretary of
Labor for summary decision with regard to a violation of 30 C.F.R. § 56.14132(a) by Wake
Stone Corporation ("Wake Stone") and denied Wake Stone's motion for summary decision.
Dec. at 3. The judge also stated that the record did not contain sufficient evidence to allow him
to assess a civil penalty and ordered the parties either to file a statement setting forth stipulations
as to the factors in section 11 O(i) of the Act, to file evidence with regard to any contested factor,
or to request an evidentiary hearing on any contested factor. Id. On February 4, 2005, the
Secretary's Conference and Litigation Representative filed an Answer to Judge's Summary
Decision Motion for Part 1 IO(i). In that pleading, the Secretary stated that the parties ''have
discussed and agreed upon a settlement under [section] 1 IO(i), in this case, to be the original fine
of $60.00. Wake Stone would like it noted that the amount of the fine was never an issue." In
that document, the Secretary also moved that the settlement be approved by the judge. On
February 14, 2005, the judge issued an unpublished Decision Approving Settlement in which he
granted the motion for approval of settlement and ordered that Wake Stone pay a penalty of $60
within 30 days of the order.
On March 14, 2005, the Commission received from Wake Stone correspondence which
we construe to be a timely petition for discretionary review. In that petition, Wake Stone seeks
27 FMSHRC 289

to challenge the rulings contained in the judge' s decision of January 13, 2005.
The judge's jurisdiction over this case terminated when he issued his decision approving
settlement on February 14, 2005. 29 C.F.R. § 2700.69(b). Relief from a judge's decision may be
sought by filing a petition for discretionary review within 30 days of its issuance. 30 U.S.C.
§ 823(d)(2); 29 C.F.R. § 2700.70(a). We deem Wake Stone's correspondence to be a timely filed
petition for review, which we grant. See, e.g., Middle States Res., Inc., 10 FMSHRC 1130 (Sept.
1988).
.
It appears from the record that the judge's decision granting the Secretary's motion to
approve settlement may have been based on a misunderstanding between the parties regarding
what they agreed should be settled and/or a misunderstanding by the judge regarding what
agreement, if any, the parties had reached. Although the February 14 Decision Approving
Settlement indicates that the parties had agreed that the case should be settled in toto, that $60
was an appropriate penalty, and that the case should be dismissed, Wake Stone's petition seems
premised on the assumption that there remains a live controversy between the parties and that the
settlement agreement involved only the amount of any penalty that might be imposed, not
whether Wake Stone had committed a violation in the first instance. Moreover, the Answer to
Judge's Summary Decision Motion for Part l lO(i) filed by the Secretary on behalf of the parties
is ambiguous in key respects. In short, it is unclear whether the parties achieved a true meeting
of the minds in their response to the January 13 decision and whether the February 14 decision
reflects any settlement that the parties had mutually agreed upon.

27 FMSHRC 290

may

Based on the present record, it appears that the judge
have prematurely dismissed the
proceeding. In the interest of justice, we vacate the judge's February 14 decision and remand this
matter to the judge for further proceedings as appropriate. See RBS, Inc., 26 FMSHRC 751
(Sept. 2004).

Stanley

27 FMSHRC 291

Distribution
Roland L. Massey
Safety and Health Director
Wake Stone Corporation
P.O. Box 190
Knightdale, NC 27545
Melody S. Wesson
Conference & Litigation Representative
U.S. Department of Labor, MSHA
135 Gemini Circle, Suite 213
Birmingham, AL 35209
W . Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

27 FMSHRC 292

ADMINISTRATIVE LAW JUDGE DECISIONS

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

March 11, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
SOUTHWEST CONCRETE & PAVINO
Respondent

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 2003-207-M
A. C. No. 29-00473-05542
Docket No. CENT 2004-49-M
A. C. No. 29-00473-11213
Docket No. CENT 2004-87-M
A. C. No. 29-00473-15815
Docket No. CENT 2004-192-M
A. C. No. 29-00473-08804
Mimbres Pit Mine

DECISION APPROVING SE'ITLEMENT

Before: Judge Zielinski
This case is before me on a petition for assessment of civil penalties under section 105(d)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). The parties have
negotiated an agreed resolution of the petition and, by motion, seek approval of the settlement
agreement and dismissal of the cases. The Secretary has agreed to modify four of the citations at
issue and it is proposed that the total penalty for the violations at issue be reduced from
$1,439.00 to $967.00. I have considered the representations and evidence submitted and
conclude that the proffered settlement is appropriate under the criteria set forth in section 1lO(i)
of the Act.
WHEREFORE, the motion for approval of settlement is GRANTED, and it is
ORDERED that the citations are hereby amended as proposed in the motion and that
Respondent pay a penalty of $967.00 within 30 days.

27 FMSHRC 293

Distribution:
Matthew P. Sallusti, Esq., Office of the Solicitor, U.S. Department of Labor, 525 South Griffin
St., Suite 501, Dallas, TX 75202
Jeffrey A. Dahl, Esq., Lamb, Metzgar, Lines & Dahl, P.A., P.O. Box 987, Albuquerque, NM
87103
.
/mh

27 FMSHRC 294

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

March 28, 2005
CUMBERLAND COAL RESOURCES, LP,
Contestant

CONTEST PROCEEDINGS
Docket No. PENN 2004-73-R
Order No. 7067355; 1/24/2004

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

Docket No. PENN 2004-74-R
Citation No. 7067356; 1/24/2004
Docket No. PENN 2004-75-R
Citation No. 7083200; 1/16/04
Docket No. PENN 2004-85-R
Order No. 7066999; 2/4/2004
Docket No. PENN 2004-86-R
Citation No. 7067000; 2/4/2004
Docket No. PENN 2004-87-R
Order No. 7067001; 217/2004
Docket No. PENN 2004-88-R
Citation No. 7067003; 217/2004
Docket No. PENN 2004-104-R
Order No. 7069906; 2/14/2004
Docket No. PENN 2004-105-R
Citation No. 7069907; 2/14/2004
Cumberland Mine
Mine ID 36-05018

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

crva PENALTY PROCEEDINGS
Docket No. PENN 2004-181
A. C. No. 36-05018-29162

v.

27 FMSHRC 295

Docket No. PENN 2005-8
A. C. No. 36~05018-38538
CUMBERLAND COAL RESOURCES, LP,
Respondent

Cumberland Mine

DECISION
Appearances: Leon E. Pasker, Esq., U.S. Department of Labor, Office of the Solicitor,
Philadelphia, Pennsylvania, and James B. Crawford, Esq., U.S. Department of
Labor, Office of the Solicitor, Arlington, Virginia, on behalf of Petitioner;
R. Henry Moore, Esq., Jack.son Kelly, PILC, Pittsburgh, Pennsylvania,
on behalf of Respondent.
Before:

Judge Zielinski
These cases are before me on Notices of Contest filed by Cumberland Coal Resources,

LP ("Cumberland"), and Petitions for Assessment of Civil Penalties filed by the Secretary of
Labor ("Secretary"), pursuant to section 105 of the Federal Mine Safety and Health Act of 1977
("Act"), 30 U.S.C. § 815. At issue are four imminent danger orders, and five citations charging
that the bleeder system on Cumberland's No. 49 longwall panel was ineffective. 1 A hearing was
held in Pittsburgh, Pennsylvania. The parties entered into 51 stipulations prior to the hearing,
and submitted briefs following receipt of the transcript. The Secretary proposes civil penalties
totaling $3,874.00 for the violations. For the reasons set forth below, three citations and two
orders are affirmed, two citations and two orders are vacated, and civil penalties totaling
$2,496.00 are imposed.
Findings of Fact - Conclusions of Law
Background
Cumberland Coal Resources, LP, formerly RAG Cumberland Resources, LP, operates a
large underground coal mine, the Cumberland mine, in Greene County, Pennsylvania.
Cumberland uses the longwall as its primary mining method, and has successfully completed
nearly fifty longwall panels. Toward the latter part of 2003, it was preparing to commence
mining on a new panel, No. 49 (''LW49"), which was located in a new district of the mine,
i.e., there were no other panels adjoining the new panel. Over the years, Cumberland's longwall
panels had increased in size. LW49 was to be over 12,000 feet long and 1,250 feet wide, at the

1

The petition in Docket No. PENN 2005-8 was filed after the hearing. The parties
stipulated that all issues involved with respect to the alleged violations, including those related to
the amount of any civil penalty, were to be litigated at the hearing. Two citations in Docket
No. PENN 2004-181 were not at issue in the hearing and were settled. A separate Decision
Approving Settlement was issued with respect to those citations on November 29, 2004.
27 FMSHRC 296

time, the largest panel ever mined by Cumberland.
An important aspect of ventilating any longwall panel is its bleeder system. Bleeder
systems, pursuant to regulation, must effectively and "continuously, dilute and move methane-air
mixtures and other gases, dusts, and fumes from the worked-out area away from active
workings. " 2 Bleeder systems have evolved over time, as panels have grown larger. Most earlier
panels used "wraparound" bleeder systems, in which fans located outby produced air flow for
both face ventilation and the bleeder system. In wraparound bleeder systems, a portion of the
main air flow moving inby in the beadgate entries is split off at the face and routed into and
around the worked-out area. Through a system of ventilation controls, a negative pressure
differential is created at the back, most inby, comer of the tailgate side of the longwall, and
methane in the worked-out area, the gob,3 is drawn inby, away from the face, into bleeder entries
which transport it to the surface. The methane is diluted as it moves out of the gob, such that by
the time it enters the travelable bleeder entries, the outermost entries that surround the panel, its
concentration is reduced to less than 4.5%. In more recent years, Cumberland and other
operators have used bleeder fan systems, in which the bleeder entries are connected to a bleeder
fan shaft located inby, or behind, longwall panels. Cumberland planned to use such a bleeder
system for LW49. However, it encountered delays in developing the bleeder fan shaft, and
anticipated a significant '1>roblem," i.e., the longwall would be ready to begin production, but the
bleeder shaft would be weeks or months away from being operational. Tr. 1308-09.

In October 2003, Cumberland abandoned development of the bleeder fan shaft, and
determined to use a wraparound bleeder system for LW49. Air flow would be generated by
existing fans located a considerable distance from the mouth of the panel. It performed computer
simulations of the wraparound system and determined that it would be acceptable for mining the
first 10,000 feet of the panel. Tr. 1317. Another ventilation shaft was scheduled to come on line
in April of 2004, which was expected to enhance ventilation flow both at the face and in the
bleeder system. Tr. 1318-21. It was proposed that the new shaft be connected to the LW49
ventilation system by a six-foot diameter shaft, referred to as the "shaft within a shaft."
Cumberland prepared an addendum to its general ventilation plan, describing provisions specific
to LW49, and notified miners' representatives of its plan to use a wraparound bleeder system.
On November 7, 2003, it submitted the addendum to the Secretary's Mine Safety and Health
Administration ("MSHA"). On December 9, 2003, MSHA approved the proposed ventilation
plan addendum for mining the first 8,000 feet of the panel, by which time the additional

2

30 C.F.R. § 75.334(b){l); RAG Cumberland Resources, LP, 26 FMSHR.C 639, 647
(Aug. 2004) (appeal pending).
3

"Gob" is "ft]he space left by the extraction of a coal seam jnto which ... the
immediate roof caves." Am. Geological Institute, Dictionary of Mining, Mineral and Related
Terms, 239 (2d ed. 1997).
27 FMSHR.C 297

ventilation fro~ the new shaft was expected to be available. 4
When notified about the proposed change to a wraparound bleeder system, officials of the
United Mine Workers of America ("UMWA") expressed concerns. Timothy Hroblak, chair of
the union's safety committee, had worked at Cumberland for 25 years, primarily on longwalls.
He was concerned that the wraparound system would not have sufficient capacity. In his
experience, earlier panels that had successfully used a wraparound system had been considerably
smaller, 5,000 - 6,000 feet long and 600 - 700 feet wide. They also had been mined with four
entries on the headgate and tailgate sides, whereas LW 49 had been set up for use with a bleeder
fan system using three entries. Jeffrey Mihalik, a safety committeeman, had similar concerns.
The union's concerns ~ere raised in meetings with Cumberland officials, but did not prompt a
change in the plan.
LW49 was laid-out as a large rectangle, 12,000 feet long by 1,250 feet wide, oriented
generally in an east-west direction. The panel connected with the main mine entries on its west
side. Ex. R-1. Three headgate entries, including one each for the track haulage and conveyor
belt, extended along the south side, which was also referred to as "40 butt." Three tailgate
entries were on the north side, which was also referred to as "48 butt." The outermost of those
entries, the #1 tailgate entry and the #3 headgate entry inby the face, were the travelable bleeder
entries. At the east, or most inby, side of the panel, the headgate and tailgate entries were
connected by two pairs of crosscuts, #86 and #87, and #88 and #89, which were referred to as the
"ladders." The most inby of those entries, crosscut #89, was part of the travelable bleeder
system, and connected with the #1 tailgate entry and the #3 headgate entry. The two outby
entries, crosscuts #86 and #87, were refened to as the set-up ladder, i.e., longwall equipment was
set up in crosscut #86 prior to the start of mining.
Mining of LW49 commenced on December 28, 2003. Stip. 15, 17. On December 30,
2003, the roof had not yet fallen behind the shields, and it was necessary to place canvas along
the shields to channel the ventilation along the face, an occurrence that is not unusual. Stip. 18.
In early January 2004, the panel experienced a number of "gas-outs," i.e., mining was halted
because of a high methane level at some monitoring point. Monitors on the face were set to
deenergize the longwall when the methane concentration reached 2%. Most of the gas-outs were
caused by high methane readings at a monitor on the tailgate. Ex. R-43. Cumberland's mine, like
others located in the "Pittsburgh Coal Seam," is a very "gassy" mine and liberates large amounts
of methane. It is subject to spot inspections every five days, pursuant to section l 03(i) of the
Act. Tr. 135.
On January 4, 2004, Cumberland made a change to the LW 49 ventilation system,
coursing return air out the #3 entry on the tailgate, which had been on intake. The #3 tailgate
entry was the entry immediately adjacent to the block of coal being removed. Cumberland did

4

In addition to the panel-specific plan, Cumberland had an approved ventilation plan,
dated March 3, 2003, for the overall mine and longwaJl panels in general. Ex. Jt-2.
·
27 FMSHRC 298

not seek, or obtain, MSHA's approval before implementing the change. Stip. 19. On January 7,
2004, another air change was made. The belt entry, the #1 entry on the headgate side, which had
been an intake air course, was changed to neutral or outby air flow, and the #3 headgate entry
was switched from return air to intake air.-5 Cumberland did not seek, or obtain, MSHA's
approval before implementing the change. Stip. 20. On January 8, Cumberland sent a letter to
MSHA requesting approval of the changei;. The request was eventually withdrawn because of
intervening events. Stip. 21.
A third air change was made on January 11. A regulator was moved on the tailgate side
to move pressure from outby to inby. Cumberland did not seek, or obtain, MSHA's approval
before implementing the change. Stip. 22. On January 12, Cumberland submitted a proposed
addendum to its ventilation plan, incorporating the changes that had been made. Stip. 23;
ex. Jt-4. The proposed addendum was evt:ntually withdrawn because of intervening events.
Stip. 23. On January 12, Robert Kimutis, Cumberland's senior mine engineer, was told that
MSHA planned to conduct an evaluation of the bleeder system. Stip. 23. After January 12,
methane delays were significantly reduced and production was significantly increased. Ex. R-43.
As a new longwall starts up, it is not unusual to experience ventilation problems,
particularly until there is a substantial roof fall behind the shields. The system is dynamic, and
may remain so until mining "completes a i;quare," i.e., mining proceeds as far as the panel is
wide, here 1,250 feet. Tr. 1654-55, 1912-14. However, the number of air changes made to
LW49 was unusual.
Because of concerns expressed by miners' representatives, MSHA inspector Anthony R.
Guley, Jr., and assistant district manager Thomas E. Light, Jr., inspected LW49 on January 13,
2004. They were accompanied by Robert Bohach, Cumberland's manager of safety, and miners'
representative Hroblak. Guley and Light were not aware of the ventilation changes that had been
made by Cumberland, or the revisions to the ventilation plan that had been submitted. They
reviewed records and were surprised to learn that a methane concentration of 4.2% had been
recorded at one of the bleeder evaluation points. After going underground, they found the
changes that had been made to the ventilation system, and realized that the December 9
ventilation plan that they had reviewed prior to coming to the mine was no longer being
followed. Cumberland' s failure to obtain approval before implementing the changes was a
violation of a safety standard, for which a citation was issued by Guley.6 Stip. 24; ex. Jt-5.

5

The January 7 change was significant because, when the belt entry was on intake air,
methane given off by the freshly cut coal cm the belt and the adjoining coal block was swept inby
and along the face. Consequently, fresh air intended to ventilate the face already had as much as
0.3% methane, which substantially reduced the amount of methane that could be generated by
mining activity before production would be shut down.
6

Operators of underground coal mines are required to "develop and follow a ventilation
plan, approved by the [MSHA] district manager," and material changes to the plan must be
27 FMSHRC 299

That citation is not at issue in these proceedings.
Other conditions encountered in their travels concerned Guley and Light. A battery
charging station near the #80 crosscut on the headgate was being ventilated by air from the #3
entry, which then flowed into the #2 entry, an intake entry. This violated a ventilation standard
that required venting to a return entry.7 The air flow had been reversed because a ventilation
curtain had been taken down. Guley became concerned that the wraparound bleeder ventilation
system was not working correctly. In his experience, systems operated with a bleeder fan
developed large enough pressure differentials that ventilation of a battery charging station would
have been routine.8 He then traveled to the face, and found that the volwne of air was
considerably less than _had been recorded on the preshift book that he had examined on the
surface. He measured methane concentration near the third shield, i.e., at the beginning of the
longwall face, and was surprised to find it was 0.3%. He was again surprised to find a higher
than expected methane concentration, 0.9%, near the tailgate side of the longwall.
When the face ventilation air reached the tailgate entry, the #3 entry on the tailgate side, a
portion of it was supposed to flow outby into the return, and a portion was supposed to flow inby.
This was referred to as the ''T-split." The flow into the gob along the #3 entry was very
important, because it kept methane in the #3 entry from flowing out onto the face. It also played
a significant roll in diluting methane within the bleeder system. The inby T-split flow proceeded
along the #3 entry to the first crosscut, entered it and flowed into the #2 entry. At that point it
split again. Part of it flowed outby through a regulator designated as bleeder evaluation point
30A ("BEP 30A"), into the travelable bleeder entry. The remainder of the T-split air flowed inby
in the #2 entry, and mixed with air flowing out of the #3 entry and adjoining rubble zone through
crosscuts inby the face. That air eventually passed through a bleeder evaluation point at the inby
comer of the panel, BEP 30, into the travelable bleeder entry, crosscut #89.9 On the headgate
side, some of the intake air was routed into the # 1 and #2 entries, and eventually flowed into the
travelable bleeder entry through BEP 31, located at the most inby comer of the panel. 10

approved before being implemented. 30 C.F.R. § 75.370(a)(l), (d).
7

30 C.F.R. § 75.340(a)(l)(i).

8

Cumberland contends that the charging station ventilation violation had little to do with
the bleeder system, which may have been the case. The incident is related only for background
purposes.
9

Another bleeder evaluation point, BEP 30B, was located immediately outby BEP 30.
However, it was of comparatively little significance to the enforcement actions at issue.
10

This description of bleeder system air flows conforms with MSHA's expectations of
the system. Cumberland disputes certain aspects of MSHA' s position. Most significantly,
Cumberland points out that the December 9 ventilation plan does not specify volumes of air
27 FMSHRC 300

When Guley and Light reached th<:: tailgate, they were unable to detennine whether the
T-split was working properly, because there was limited flow inby. Tr. 348. They proceeded to
BEP 30A, then into the #1 tailgate entry, and discovered another of the ventilation changes that
had been made, i.e., the air in the bleeder entry flowing in a direction opposite to that shown in
the December 9 ventilation plan.
They proceeded inby to the back comer of the panel and entered the #2 entry at BEP 30.
Just outby BEP 30 in tht: #2 entry, they used a smoke tube to determine the direction of air flow,
and found that it was flowing outby, toward the face, the opposite direction that they felt it
should have been flowing. They took methane readings and proceeded outby in the #2 entry to
the area of the face, where they were able to determine that there was air flowing from the #3
entry into the #2 entry and then outby to BEP 30A, which demonstrated that the T-split was
working.
Guley questioned the adequacy of the bleeder system. He did not feel that the pressures
were sufficient to generate adequate air flow, and he sensed similarities between the L W49
system and ineffective bleeder systems that he had seen in the past, especiaJly wraparound
systems. Tr. 354. Bohach disagreed with his concerns, noting that there were no excessive
methane concentrations at the face, and that the ventilation plan did not specify particular
pressure differentials or volumes of air flow within the bleeder system or at BEPs.
On January 14, 2004, a meeting was held at the mine. Officials from Cumberland,
MSHA and the UMWA participated. Stip. 25; ex. Jt-6. The meeting had been scheduled
previously, but the agenda was expanded to include the LW49 ventilation system. MSHA
decided to conduct a comprehensive ventilation survey ofLW49. A ventilation survey involves
a considerable amount of data collection. Three or four person teams, each comprised of at least
one representative of MSHA, Cumberland and the union, took various instruments into the mine
and measured altitude, pressure differentials, air flow and methane and oxygen content at
numerous points. Despite the logistics involved, the survey was scheduled for January 16.
On January 15, Cumberland performed its own evaluation of the LW49 bleeder system,
with the assistance of UMWA officials Hroblak and Mihalik. The results of that ventilation
survey were recorded on a map of LW49. Ex. R-2. Cumberland contends that its survey showed
that the LW49 bleeder system was working effectively on January 15, because there was an
ample volume of face ventilation, 53,000 cubic feet per minute ("CFM"), methane concentrations
at the face were low, 0.5%, there was air flow out the BEPs at the back of the panel, and methane
concentrations in the walkable bleeder entries were less than 4.5%. Tr. 1350.

flow, or the direction of air flow in the #2 tailgate entry between crosscuts #84 and #87. MSHA
counters that air flow volumes are not specified on ventilation plans because the quantities
change as the panel is mined out. Tr. 1132-33.
27 FMSHRC 301

The participants in the January 16 sµrvey included MSHA inspectors and technical
support personnel, Cumberland management officials and officials of the UMWA. Stip. 27;
ex. Jt-7. Information collected by the various teams was noted on a map of the longwall panel.
Ex. G-26. MSHA's representatives detennined that the bleeder system was ineffective. Robert
Penigar, an MSHA inspector who participated in the survey, issued Citation No. 7083200,
pursuant to section 104(a) of the Act, 30 U.S.C. § 814(a). It alleged that Cumberland was irr
violation of 30 C.F.R. § 75.334(b)(l), which requires that a bleeder system effectively and
"continuously, dilute and move methane-air mixtures and other gases, dusts, and fumes from the
worked-out area away from active workings."
Cumberland agreed not to operate LW49 until the ventilation issues were resolved.
Stip. 30. On January 18, Cumberland officials, MSHA personnel and UMWA personnel met at
the MSHA field office to discuss changes to Cumberland's ventilation plan. Stip. 31; ex. Jt-8.
On January 19, MSHA inspectors and technical support personnel again evaluated the LW49
ventilation and bleeder system. Stip. 32. The system was improved, with an increased pressure
differential at the back tailgate comer and positive inby air flow in the #2 entry. Ex. G-28.
However, MSHA believed that the bleedet system remained ineffective. Stip. 33. Additional
changes were made, and another evaluation was performed on January 20. Air flows and
pressure differentials were markedly improved. Ex. G-30. However, MSHA believed that the
system was still fragile and had limited capacity. The results of the survey were discussed a~ a
meeting that lasted until approximately 1: l5 a.m., on January 21. Stip. 34, 35; ex. Jt-9.
Cumberland had not operated LW49 since the initial ventilation survey on January 16,
and changes to the ventilation plan had to be approved to terminate outstanding citations. During
the lengthy meeting on January 21, MSHA officials made clear that in order to secure approval,
any ventilation plan would have to contain certain provisions. MSHA believed that the air flows
measured in the ventilation surveys indicated that the BEPs on the tailgate did not provide
accurate information on conditions in the #2 entry. Consequently, they insisted that additional
monitoring points be established at crosscuts #82 and #85. MSHA wanted steel pipes installed
through the stoppings between the# 1 and #2 entries at those locations, extending into the middle
of the #2 entry. Sampling of the air in the #2 entry could then be done by testing the methane
content of the air flowing out of the pipes into the #1 entry. A methane limit of 4.5% was
specified for those monitoring points. MSHA also sought to establish a monitoring point with a
2% methane limit in the #1 tailgate entry between the #73 and #74 crosscuts.
Cumberland objected strenuously to those provisions, and continues to maintain that they
were unprecedented and unreasonable. It considered that the #2 tailgate entry was part of the gob
where high methane concentrations are to be expected, and that the bleeder system performed
effectively if methane in the gob was diluted by the time it passed through any of the previously
established bleeder evaluation points into the travelable bleeder entries. As to the #73/74
monitoring point, it argues that that was an inappropriate location to apply a 2% methane
limitation, because the air in that entry did not enter another split of air until it reached the mouth
of the panel, over 10,000 feet further outby. The regulations do not impose any required methane

27 FMSHRC 302

content for a bleeder split of air until it joins another split of air, at which point a maximum
concentration of 2% methane is allowed. 30 C.F.R. § 75.323(e). Cumberland asserts that
imposing a 2% limit some 10,000 feet further inby was overly restrictive, in that it failed to take
into consideration that leakage would occur through stoppings along the route, resulting in
considerable additional dilution of the air flow before it joined another split of air. 11
There is no question that the conditions MSHA insisted upon were highly unusual.
Virtually all of Cumberl~d's witnesses, many with extensive mining experience, and most of
MSHA' s witnesses testified that they were not aware of any other ventilation plan that included a
monitoring point in the #2 tailgate entry or anything similar to the 2% monitoring point at the
#73174 crosscuts. Tr. 296-97, 380-81, 1035-37. MSHA's inspectors also stated that they
normally would not enter the #2 tailgate entry inby the face, but indicated that they would do so,
if necessary to evaluate a bleeder system, and it were safe. 12 Tr. 192-93, 410-11, 679, 717-18,
897-98, 910, 1054, 1062-63. Several MSHA personnel also agreed that methane concentrations
of 4.5% or higher could be expected in or near the #2 entry, particularly in the crosscuts from the
#3 to the #2 entry. Tr. 211-12, 710, 1032-·33, 1062-63.
MSHA's position remained firm, and on January 21, Cumberland reluctantly submitted a
proposed ventilation plan incorporating the changes required by MSHA. It was approved that
same date. The newly revised plan consisted of a narrative that included the various conditions
and a map of the panel depicting the various monitoring points and directions of intended air
flow. Stip. 36; ex. Jt-10, Jt-lOA. The plan provided, in pertinent part:
Additional safeguards have been included to ensure approval of the plan per
discussions taken place at Cumberland mine #6 Portal on 1-19-2004. They are as
follows:
B-

Continuous monitoring will take place in the [tailgate] at BEP30, BEP30A,

11

The 2% monitoring point was unique, and there was considerable discussion about its
appropriateness. The UMWA, at one point, joined in suggesting that the methane limit be raised
to 2.3%. MSHA considered lowering it to 1.8%. While that particular provision resulted in
numerous interruptions to mining, it did not play a direct or substantial roll in any of the
violations at issue in these cases, and will not be addressed at length. It should be noted,
however, that MSHA has considerable discretion in imposing conditions in ventilation plans.
See RAG Cumberland Resources, LP, 26 FMSHRC at 648 n.16.
12

Normally there would be another, mined-out longwall panel on the other side of the
tailgate entries, and deteriorating roof and other conditions would preclude safe travel in the #2
entry. Since LW49 was in a new district, there was no adjacent panel. In addition, Cumberland
had spent a considerable amount of money to install pumpable concrete cribs to keep the bleeder
entries open. Consequently, the LW49 #2 tailgate entry was in very good condition and
presented no impediment to travel.
27 FMSHRC 303

BEP30B, 85xcut #2 to #1 entry, 82xcut #2 to #1 entry. The monitoring will be on
a "roving" basis and the quality, quantity and airflow direction will be recorded in
a designated book at the end of each shift, until a history has been established. A
(15 second or more) methane reading of 4.5% at the continuously monitored ·
locations will cause power to be deenergized on the longwall face and immediate
corrective action to be taken. MSHA will be notified if this condition occurs.

EF-

Steel pipes will be installed, extending from rockdust ports in 82 and 85 crosscuts
of No. 1 to the center of No. 2 entry of [the tailgate].
A Bleeder Monitoring Point will be established in the No. 1 entry of [the tailgate]
between the No. 73 & 74 crosscuts. A methane reading of 2.0% or greater will
cause the longwall to cease production. Longwall mining will resume once the
methane level at this Bleeder Monitoring Point reduces below 2.0%.

Ex. Jt-10.
MSHA assigned inspectors to monitor the LW49 bleeder system on rotating shifts,
24 hours per day. Inspectors took measumments at the established monitoring points
approximately every two hours. Ronald Hixon, an MSHA inspector and ventilation specialist,
was assigned to conduct the monitoring on the second shift. On January 24, he decided to enter
the #2 tailgate entry in order to verify the accuracy of the readings that he had been getting at the
#82 and #85 crosscut monitoring points. He measured methane concentrations in excess of 5%
at the intersections of crosscuts #83 and #84 within the #2 entry, and issued an imminent danger
order pursuant to section 107(a) of the Act Tr. 752. He also issued a citation for an ineffective
bleeder system, a violation of 30 C.F.R. § 75.334(b)(l). Tr. 760.
On January 25, MSHA technical support personnel and inspectors again evaluated the
LW49 bleeder and ventilation systems. They were accompanied by Cumberland management
and hourly personnel. Stip. 41. The results of that ventilation survey were recorded on a map of
the panel, and were discussed with Cumbf)rland officials. Ex. G-32.
MSHA inspector Ronald Tolliver began monitoring the LW49 bleeder system on
January 31, 2004. On February 4, he detected 4.8% methane at the #85 crosscut monitoring
point, and issued an imminent danger order and a citation alleging a violation of 30 C.F.R.
§ 75.334(b)(l). Stip. 45. Tolliver also issued an imminent danger order and citation on
February 7, 2004, when he found a methane concentration of 5.0% at the #85 crosscut
monitoring point. Stip. 50, 51.
MSHA inspector James Conrad, Jr., was monitoring the LW49 bleeder system on
February 14, 2004. On his second tour of the monitoring points, he discovered 5.0% methane
coming through the regulator at BEP 31, at the back comer of the headgate entries. Tr. 993. He
issued an imminent danger order and a citation alleging a violation of 30 C.F.R. § 75.334(b)(l).

27 FMSHRC 304

Stip. 54, 56. He spoke with the foreman, who explained that a temporary disruption to the
headgate air flow had been caused by the erection of a check curtain, while a regulator was being
moved. He then returned to BEP 31, measured a methane concentration of 2.3%, and terminated
the order and citation. Tr. 1042-44.
Cumberland had become increasingly concerned about production interruptions mandated
by provisions in the plan and caused by the issuance of imminent danger orders and citations. It
continued to view the #73/74 2% monitoring point and the monitoring in the #2 tailgate entry at
crosscuts #82 and #85 to be unprecedented and unjustified. It pressed for a meeting with the
Assistant Secretary of Labor for Mine Safety and Health, David Lauriski. That meeting was held
on January 29, 2004, but did not result in the resolution of any of Cumberland,s concerns.
Stip. 42. It then sought assurances from MSHA that monitoring in the #2 tailgate entry would no
longer be required if the wraparound system was converted to a bleeder fan system. Tr. 1911-12.
It developed a plan to mine back to, and make operational, the previously planned #4 bleeder
shaft. That plan was approved by MSHA on February 7, 2004. Stip. 47, 48. On February 13,
2004, Cumberland announced that it would idle LW49, until mining to the #4 bleeder shaft was
completed. Stip. 58. That process consumed over one month, after which production resumed,
and no further unusual delays or problems were experienced.
At issue in these cases are the ineffective bleeder system citations issued on January 16
and 24, and February 4, 7 and 14, 2004, and the related imminent danger orders. Cwnberland
filed Notices of Contest as to those enforcement actions. The Secretary filed Petitions for
Assessment of Civil Penalties for the citations, proposing that a total of $3,874.00 in penalties be
imposed.
Citation No. 7083200
Citation No. 7083200 was issued by Penigar at the completion of the January 16, 2004,
ventilation survey, and alleges that the LW49 bleeder system was ineffective, in violation of
30 C.F.R. § 75.334(b)(l). 13 The violation was described in the "Condition or Practice,, section of
the citation as follows:
The bleeder system for the active LW49 longwall section, MMU 0011,
was determined to be ineffective in controlling the flow of air through the bleeder
system to continuously dilute and move methane-air mixtures from the gob and
away from the active workings. A ventilation survey conducted by MSHA

13

30 C.F.R. § 75.334(b)(l) provides:

(b)(l) During pillar recovery a bleeder system shall be used to control the air
passing through the area and to continuously dilute and move methane-air
mixtures and other gases, dusts, and fumes from the worked-out area away from
the active workings and into a return air course or to the surface of the mine.
27 FMSHRC 305

inspectors and engineers from MS.HA Technical Support on 01/16/2004 showed
that the bleeder system was not adequate to move methane out of the gob and
away from the face. The operator was cited on 01/13/2004 for not complying
with the ventilation plan approved on December 9, 2003, when it was found the
longwall was not being ventilated in a manner approved in the plan. Coal will not
be mined with the longwall until ventilation changes are made to correct the
bleeder system deficiencies and a plan submitted and approved by the District
Manager showing the revised bleeder system.
Stip. 28, 29; ex. G-1.
MSHA determined that it was reasonably likely that the violation would result in a
fatality, that it was significant and substantial, that seven persons were affected, and that
Cumberland's negligence was moderate. A penalty of $1,238.00 is proposed for this violation.
The Violation
The results of the January 16 ventilation survey were recorded on two maps of LW49.
One showed air flow clirections. Ex. G-25. Pressure differentials, methane reaclings, air flow
quantities and other data were recorded on the second. Ex. G-26. The involved MSHA
personnel collectively determined that the LW49 bleeder system was not functioning effectively.
Tr. 713. Penigar was assigned to write the citation, which reflects his worcling. Tr. 713. As
Penigar explained the survey results, there were many significant concerns, including, air flow
reversals, weak pressure clifferentials, and excessive methane in the #2 tailgate entry close to the
face. Tr. 666-69. Methane at an explosive level, 5% - 15%, was found in the #2 tailgate entry
near the #85 and #86 crosscuts, which was compounded by the fact that air flow at those
locations was reversed, i.e., flowing outby toward the face. Air in that area should have been
flowing inby, toward BEP 30 at the back corner of the panel, where it would pass into the
travelable bleeder entries. There was no perceptible air movement in the #2 entry between
crosscuts #87 and #88, and there was very limited flow in the opposite clirection (outby) between
crosscuts #87 and #86. There was limited, perceptible air movement from the #3 entry to the #2
entry in crosscuts #84 and #86. A methane concentration of 4.3% was detected between
crosscuts #83 and #84, which was 300 - 400 feet from the face. Air at that location in the #2
entry was flowing outby, toward BEP 30A. Penigar felt that there was a substantial amount of
methane too close to the face, where people were working, and would have issued an order
shutting down the longwall if Cumberland had not agreed to cease production. Tr. 669, 673,
683-84. 14

14

Penigar impressed me as a particularly credible witness. Cumberland contends that he
indicated, during the survey, that he didn't see anything objectionable. Penigar did not recall
making such a statement, and pointed out that he would not have had access to all of the survey
data until it was recorded on the mine map. Tr. 719. I credit his testimony, and find that he was
sincerely concerned about the performance of the bleeder ventilation system, and perceived that

27 FMSHRC 306

Dennis Beiter, a supervisory mining engineer, chief of MSHA's mine emergency services
branch, ventilation division, safety and health technology center, was in charge of the survey.
Testifying as an expert in the field of min<~ ventilation and the conduct of surveys, he cited other
concerns, including pressure differentials across temporary ventilation controls on the headgate
side that were very large in comparison to the pressure differentials that created air flow in the
primary internal air flow paths in the gob on the tailgate side, i.e., entries #3 and #2 inby the face.
Tr. 504. The pressure differential in the #2 entry from the #87 crosscut to the #83 crosscut was
only 0.02 inches of water, and it was in an outby direction. In comparison, the pressure
differential across ventifation curtains in the #2 entry on the headgate side was .59 inches of
water. Those curtains had to be moved as the face advanced, and Beiter was concerned that the
moving process would produce changes in pressure that would have an adverse impact on the
tailgate side. Tr. 519-23. Smoke tube indicators had shown changing air velocity in the #2
tailgate entry, possibly as a result of inadvertent changes to ventilation controls, e.g., a miner
passing through a ventilation curtain. Methane concentrations in the #2 entry had risen
considerably during the survey. Tr. 505, 507. Beiter was concerned that, with the air flowing
outby in the #2 entry, the limited flow through BEP 30 was from the headgate side by way of the
ladders, and did not provide any indication of conditions in the tailgate's #2 entry or the gob.
Tr. 510-11. Because gas in the #3 entry and the adjoining rubble zone is subject to the same
pressure differential as the air in the #2 entry, it flows in the same direction, and he believed that
methane in the gob adjacent to crosscuts #85 to #83 was moving toward the face. Tr. 511-12.
John Urosek, chief of MSHA technical support' s ventilation division, did not participate
in the survey, but concurred in Beiter's analysis of the survey data and the conclusion that the
bleeder system was ineffective. Urosek had unique qualifications to testify as a mine ventilation
expert. 15 In his capacity with MSHA he participated in over 50 investigations of various mine
incidents involving ventilation issues. In the early 1990's he was selected as chairman of an
educational project and charged with developing a course on bleeder and gob ventilation systems
to ensure that MSHA personnel, operators, and other interested persons understood the
requirements of MSHA's regulations on the subject. The project team performed ventilation
surveys at a large number of mines throughout the country, examining different types of bleeder
systems. That information was analyzed and a bleeder and gob ventilation course was
developed. After development, the course was reviewed by industry leaders, academia and other
MSHA personnel. Appropriate changes were made, and the course was administered to all
MSHA inspectors during one-week sessions at MSHA's training academy. It was also
administered at mining companies and at MSHA district offices where interested parties could

it posed a hazard to miners.
15

Four witnesses were accepted as experts. However, the parties were advised that little
weight would be given purely to the "expert witness" label, and that the testimony of all
witnesses would be considered in light of their education, experience and other qualifications, as
well as pertinent indicators of reliability for their particular testimony. Tr. 1306, 1464-65, 147980.
27 FMSHRC 307

attend. Urosek .believes that the course book is accepted as authoritative in the industry.
Tr. 1072. There were no other publications, or similar sources of authority on mine ventilation
cited by any other witness.
Urosek explained that a wraparound bleeder system, like other bleeder systems, is
designed to create a pressure differential from the front of a longwall panel to the back, or inby,
end of the bleeder system. Wraparound systems can work well, but have some "inherent flaws."
Tr. 1074. The pressure differential is created by exhaust fans that are located outby the mouth of
the panel. Ventilation controls are used to transfer part of that pressure differential to the most
inby corner of the tailgate entries, and the ability to create a sufficient pressure differential and air
flow depends upon a number of factors. It is necessary to support the entries, and the supports
create resistence to air flow. The distance from the ventilation fans to the mouth of the panel, as
well as the length, number and size of entries can affect the ability of a wraparound system to
generate a sufficient pressure differential at the back of the gob. Tr. 1074-7 5. In contrast,
bleeder fan systems are not impacted at all by some of those considerations, and to a lesser extent
by others, because the fans are typically located inby the panel, and the pressure differential is
created at the back of the gob. Tr. 1074. As noted previously, Cumberland's LW49 was a very
large panel. It had been developed with three, instead of four, entries, only one of which was
available for the bleeder system. Moreovt,r, the ventilation fans were located a considerable
distance from the mouth of the panel. Urosek noted that other panels that Cumberland had
successfully mined using a wraparound system typically were smaller, had multiple bleeder
entries, and fans that were located closer to the panel. Tr. 1075. He believed that the
wraparound system for LW 49 was "weak to start with," because there was only one bleeder
entry, which required movement of air through a single entry for over 10,000 feet, and that roof
supports in the entry would increase resistence as the panel was mined out. Tr. 1089. In bis
opinion, it would have been very difficult to transfer enough of a pressure differential to produce
sufficient air flow in the #2 entry toward the back comer, even if the ventilation fans had ooen
located close to the mouth of the panel. Tr. 1089.
Urosek concurred with MSHA' s determination that the LW49 bleeder system was
ineffective on January 16, 2004. He believed that the system had virtually no additional capacity
to improve air flow. The pressure differential across the regulator at the most inby comer, BEP
30, was "very small," only 0.015 inches of water. Tr. 1109. As the entries became longer,
resistence to air flow would increase, and there would be more methane in the gob that had to be
diluted. "To compensate for that, what the mine operator has to do is open [the BEP 30]
regulator, so you need to have enough pressure at the regulator to compensate for the longwall as
it goes out to carry that methane." Tr. 1110. However, the pressure differential at the BEP 30
regulator was so small that opening it would not provide any additional air flow. Tr. 1109-10.
Another major problem, according to Urosek, was that the air flow in the #2 tailgate entry was
outby, instead of back inby toward BEP 30. Tr. 1114. Methane liberated in the gob tends to
flow in the direction of the pressure differential across the gob. The desirable direction is toward
the back comer of the tailgate, i.e., toward BEP 30. Tr. 1114. But that was not happening in
LW49. Urosek believed that the methane was going to the T-split point, one crosscut inby the

27 FMSHRC 308

face. The highest concentrations of methane were about two crosscuts inby from the face, which
meant that there was a very high concentration of methane fro~ behind the longwall shields that
extended one crosscut back, that was not being carried away effectively by the bleeder system.
Tr. 1113-16. He explained that that was why it was so important to maintain methane levels
below 4.5% in the tailgate entries, i.e., to minimize the zone of explosive mixtures of methane in
the gob. Tr. 1116.

It is clear that on January 16, the BEPs on the tailgate side did not give an accurate
picture of the conditions in the #2 entry. The most important evaluation point, BEP 30 located at
the most inby comer of the tailgate entries, was receiving no air flow from the primary internal
gob air flow paths on the tailgate side. The air flowing through that BEP was low methane
content air from the headgate entries that had traveled up the ladders at the back of the panel,
crosscuts #86 and #87. Tr. 1130-31. Consequently, BEP 30 did not indicate "anything of what
was going on in the number 2 entry." Tr. 1130-32. The evaluation point at the other end of the
entry, BEP 30A, which was located outby the face, did receive some air flow from the primary
internal air flow paths. However, roughly three-quarters of the air passing through that regulator
was face ventilation air from the T-split, and the limited flow from further inby in the #2 entry
was substantially diluted before it reached that evaluation point. As noted above, most of the
methane in the #3 entry and the adjoining rubble zone was not being drawn into the #2 entry.
Rather, it was being drawn outby, to an area behind the shields. Tr. 1248-49.
Cumberland called several witnesses who testified that the bleeder system was working
effectively on January 16, 2004. Robert A. Kimutis, Cumberland's senior mining engineer, and
Robert A. Bohach, its manager of safety, have extensive experience in the design and operation
of mine ventilation systems, as well as educational qualifications, and were accepted as expert
witnesses. In their opinion, the bleeder system was operating effectively because there was good
face ventilation, the T-split was functioning properly, there was air flow in the proper directions
at the BEPs, and methane concentrations at the BEPs were well under4.5%, MSHA' s
historically applied standard for bleeder taps and travelable bleeder entries. Tr. 1355, 1425-32,
1490-92, 1627-30. Jack Trackmus, director of technical services for Foundation Coal Company,
an affiliate of Cumberland, testified to the same effect. Tr. 1680-82. Cumberland's witnesses
uniformly expressed their opinion that the #2 tailgate entry, inby the face, is part of the gob and
the dilution zone for methane emanating from the gob, and that high concentrations of methane
have been found, and can be expected to be found, in the #2 entry. They did not believe that the
outby flow in the #2 entry indicated that methane was moving toward the face. Rather, they
believed that it was being moved out through BEP 30A, away from the face.
Cumberland asserts a number of arguments, both factual and legal, in defense of this
citation. Factually, it contends that the bleeder system was functioning as it was designed to,
i.e., as reflected in the ventilation plan that had been approved by MSHA. 16 It disputes the

16

That plan did not specify required pressure differentials or flow quantities at BEPs,
and the only flow direction indicated in the #2 entry on the tailgate side was inby flow between
27 FMSHRC 309

Secretary's contention and evidence, that methane was accumulating in the #2 entry and in the
gob, extending toward the face. It also contends that methane in the #2 entry posed no danger
because it was moving away from the faet~ and out of the system, and there were no ignition
sources in proximity to methane in the explosive range. Legally, it contends that MSHA
imposed new and unreasonable criteria for evaluating the bleeder system, and that it was not
provided fair notice of the new interpretation. It also contends that the interrelationship between
sections 75.334(b)(l), 75.334(c) and 75.370 precludes a finding that its bleeder system was
ineffective while the citation issued by Guley on January 13 remained outstanding, and its
ventilation plan was being evaluated to terminate that citation. Jn addition, Cumberland contends
that the January 16 citation was legally duplicative of the January 13 citation.
Fact-based Defenses
On the issue of the effectiveness of the LW49 bleeder system on January 16, I find the
testimony of the Secretary's witnesses, particularly, Urosek, to be more persuasive. There was
virtually no pressure differential or air flow from the #3 entry and the adjacent rubble zone into
the #2 entry. There was no measurable pressure differential between the #3 and #2 entries at the
#84 crosscut, and there was only perceptible air movement into the #2 entry. Ex. G-26. There is
no indication that there was any pressure differential or positive air flow from the #3 to the #2
entries in crosscuts #85 and #85 112, and only perceptible air flow in crosscut #87. Except for
the localized effect of the T-split at crosscut #83, the bleeder system was producing almost no air
flow from the #3 entry into the #2 entry. Moreover, the overall pressure differential in the #2
entry between crosscuts #87 and #83 was very small, 0.02 inches of water, which produced
limited air flow in an outby direction. Ex. G-26. Explosive concentrations of methane were
found in the #2 entry and in a crosscut leading into it from the
#3 entry, indicating that methane was accumulating in the worked-out area. I accept Beiter' s and
Urosek' s testimony, which is not directly refuted by Cumberland's witnesses, that the same
pressure differential that generated the outby flow in the #2 entry would produce air flow in the
#3 entry and adjoining rubble zone in the same direction, i.e., toward the face. Tr. 511-12, 1114.
The bleeder system clearly was not moving any appreciable amount of methane out of the
worked-out areas on the tailgate side of the panel. Moreover, the methane that was in the
worked-out area was being moved toward, not away from, the active workings. 17 The results of
the January 16 ventilation survey indicated that the bleeder system was ineffective, and that
methane was being allowed to accumulate in the gob near the tailgate side of the face.

crosscuts #87 and #88. The plan also did not specify any air quality or methane requirements
within the #2 tailgate entry. Ex. Jt-1, Jt-lA.
17

It is true, as Cumberland contends, that methane in the #2 tailgate entry was not
flowing such that it would actually reach the face. Rather, it was flowing to BEP 30A and into
the travelable bleeder entry. However, the methane that was of concern was located in the #3
entry and adjoining rubble zone, which was moving toward the face.

27 FMSHRC 310

I accept C\amberland' s general contention that the presence of a high concentration of
methane in the #2 entry is not necessarily unusual and does not, in itself, establish that the
bleeder system was ineffective. 18 See ANR Coal Co., 21FMSHRC531, 537 (May 1999)
(hazardous levels of methane do not necessarily represent violations of the Act or its standards).
However, MSHA 's decision regarding the effectiveness of the bleeder system was not based
solely upon the fact that a high methane concentration was detected in the #2 entry. The
violation was predicated upon the whole. of the survey results, principally, the virtual absence of
air flow out of the #3 entry and adjacent rubble zone, and the outby pressure differential that
would move the methane in that area toward, rather than away from, the active workings.
Cumberland also argues that the ventilation survey did not disclose any overt deviations
from the ventilation plan, except for the three, as yet unapproved, air changes. However, as
noted below, the fact that the system may have been functioning in conformance with the plan is
not a defense to the citation. The survey disclosed that the BEPs on the tailgate side, BEP 30 and
BEP 30A, were not providing reliable information about conditions in the #2 entry and the
adjacent primary gob air pathways between crosscuts #87 and #83. The survey results
demonstrated that methane was not being moved away from the active workings, and it was clear
that the December 9 ventilation plan could no longer be regarded as describing an adequate and
effective bleeder system.
Other Defenses - Compliance with Ventilation Plan Precludes Violation of Section 75.334(b)(l)
The Secretary' s regulations require that the bleeder system, as well as the means for
determining its effectiveness, be specified in the operator's ventilation plan, including locations
for the taking of measurements of methane and oxygen concentrations, air quantities and air flow
directions. 30 C.F.R. §§ 75.334(c), 75.37l(x)-(bb). Cumberland contends that any enforcement
action with respect to an allegedly ineffective bleeder system must be accomplished through the
ventilation plan approval process, not through the issuance of a citation alleging a violation of
section 75.334(b)(l), requiring that bleeder systems be effective. That position was rejected in
Plateau Mining Corp., 25 FMSHRC 738, 746 (Dec. 2003) (Al.J). Judge Manning's decision in
Plateau is currently on review by the Commission, and is not binding precedent. However,
I agree with his analysis.
The ventilation plan for the LW49 panel represented Cumberland's best educated
prediction of how the panel could be ventilated in conformance with applicable mandatory safety
standards. Despite MSHA' s approval of the plan, there was no guarantee that it would work
effectively, or that it would continue to work effectively. As Judge Manning observed, "because
an underground coal mine is a dynamic environment, a mine operator must be constantly vigilant
when monitoring the conditions underground and must make changes to its ventilation system as

18

MSHA formally acknowledged as much when it approved the January 21 ventilation
plan, which specified that production cease and corrective action be taken if a methane
concentration of 4.5% was detected/or 15 seconds or more in the #2 entry.
27 FMSHRC 311

conditions warrant." 25 FMSHRC at 746. Any number of conditions can impact the
effectiveness of the bleeder system, including roof falls, wat~r accumulation in critical air paths,
increased resistence as air flow paths grow longer or, simply, the amount of methane liberated by
mining activity. The Commission has held that section 75.334(b)(l) requires that an operator
maintain an effective and adequate bleeder system. "A bleeder system must effectively ventilate
the area within the bleeder system and protect active workings from the hazards of methane
accumulations." RAG Cumberland Resources, LP, 26 FMSHRC at 647. Cumberland was
obligated to comply with section 75.344(b)(l) independent of the ventilation plan approval
process, and could be·charged with violating that provision even though it was fully complying
with its approved ventilation plan. See Utah Power & Light Co. v. Sec'y of Labor, 951 F.2d.292
(10th Cir. 1991). Compliance with ventilation plan approval requirements does not permit an
operator to shield itself from liability for violating other mandatory standards. 19
Duplication
The January 16 citation, alleging an ineffective bleeder system, was not duplicative of the
citation issued by Guley on January 13, which alleged a failure to comply with the approved
ventilation plan. Citations and orders alleging violations of different standards arising out of the
same, or related, conduct are not duplicative, as long as the standards involved impose separate
and distinct legal duties on an operator. Western Fuels-Utah, Inc., 19 FMSHRC 994, 1003-05
(June 1997) (citing Cyprus Tonopah Mining Corp., 15 FMSHRC 367, 378 (Mar. 1993);
Southern Ohio Coal Co., 4 FMSHRC 1459, 1462-63 (Aug. 1982); and El Paso Rock Quarries,
Inc., 3 FMSHRC 35, 40 (Jan. 1981)). Jn Western Fuels-Utah, the Commission held that a charge
of violating a specific standard was duplicative of a charge of violating a more general standard.
However, the Commission made clear tha~ its decision was not based solely upon the premise
that every violation of the more specific standard would also be a violation of the more general
one. Rather, it looked to whether the operator had been cited for more than one specific act or
omission. Had there been evidence of additional deficiencies that violated the general regulation,
such that that allegation would not have been based upon the identical evidence used to support
the violation of the more specific standard, the charges would not have been found duplicative.
Id. at 1004, n.12.

19

Cumberland asserts a different version of its ventilation plan defense to citations
issued following approval of the January 2.1 plan. It contends that the conditions imposed with
respect to the monitoring points established "action levels," for which citations could be written
only if the specified action was not taken. Although two of MSHA' s witnesses agreed that the
provisions were action levels, the argument is unavailing. Tr. 206-08, 406-07. As noted above,
the effective bleeder system standard embodied in section 75.334(b)(l) can be enforced
irrespective of ventilation plan requirements. In addition, the citations that are affirmed in this
Decision were not issued solely for non-compliance with one of the ventilation plan
requirements. The argument has no relevance to the validity of the imminent danger orders,
which may be issued whether or not there is a violation of the Act or applicable regulations.
27 FMSHRC 312

Here, the two citations allege non-compliance with different legal duties, and are not
based on the same acts or omissions. As of January 13, Cumberland had implemented three
changes to the ventilation system that had not been approved by the MSHA district manager, and
a citation was issued for the violation of its duty under section 75.370(d) to secure MSHA
approval before implementing changes to its ventilation plan. The January 16 citation was issued
because, in the collective judgment of MSHA ventilation experts, Cumberland violated its duty
under section 75.334(b)(l) to maintain an effective bleeder system. While approval of an
amended ventilation plan eventually abated both of those violations, different aspects of the
amendments were designed to address the specific deficiencies that gave rise to the respective
violations.2 Cumberland's argument that, by unilaterally implementing a change to the
ventilation system, it was relieved of its obligation to maintain an effective bleeder system, must
be rejected.

°

Due Process
An agency may not impose a fine based upon its interpretation of a statute or regulation
unless the respondent has received "fair notice" of the interpretation it was fined for violating.
Energy West Mining Co. , 17 FMSHRC 1313, 1317-18 (Aug. 1995). An agency's interpretation
may be reasonable, but nevertheless fail to provide the notice required to support imposition of a
civil sanction. General Electric Co. v. EPA, 53 F.3d 1324, 1333-34 (D.C.Cir. 1995). The
Commission has not required that the ope:cator receive actual notice of the Secretary's
interpretation. Instead, it employs an objective test, i.e., "whether a reasonably prudent person
familiar with the mining industry and the protective purposes of the standard would have
recognized the specific prohibition or requirement of the standard." Island Creek Coal Co.,
20 FMSHRC 14, 24 (Jan. 1998) (quoting from Ideal Cement Co., 12 FMSHRC 2409, 2416
(Nov. 1990)). In applying this test, the Commission has taken into account a wide variety of
factors, including the agency's consistency of enforcement, whether MSHA has published
notices informing the regulated community of its interpretation, whether the condition or practice
at issue affected safety, and the circumstances at the operator's mine. See Alan Lee Good,
23 FMSHRC 995, 1005 (Sept. 2001).
Cumberland was on notice of the Secretary's interpretation that section 75.334(b)(l)
required it to maintain an adequate and effective bleeder system, regardless of the state of its
compliance with its approved ventilation plan. RAG Cumberland Resources, LP, 23 FMSHRC
1241 (Nov. 2001) (AU), aff'd, 26 FMSHRC 639 (Aug. 2004). The Commission has determined
that the Secretary's interpretation of the regulation is reasonable. Id. For the reasons discussed
above, MSHA's determination that the LW49 bleeder system was ineffective on January 16,
2004, its application of section 75.334(b)(l) to the particular facts, also was reasonable.

20

In fact, Cumberland was not required to obtain approval of a ventilation plan
amendment in order to abate the January 13 citation. It simply could have conformed its
ventilation system to the approved plan.
27 FMSHRC 313

The January 16 ventilation survey confirmed that neither BEP 30A, nor BEP 30, were
providing reliable or useful information as to what was occui;ring in a substantial and important
part of the LW49 bleeder system, the #2 entry, and the #3 entry and adjacent rubble zone, from
crosscut #87 to the second crosscut inby the face. There was virtually no air flow from the #3
tailgate entry into the #2 entry inby the #83 crosscut. The pressure differential and air flow in the
#2 entry and the adjacent #3 entry was out.by from the #88 crosscut, and there were high metjlane
concentrations in those areas. While the methane that was actually in the #2 entry would be
moved outby through BEP 30A into the bleeder entry, the flow in the #3 entry and the adjacent
rubble zone would have been toward the face, because the overall pressure differential from the
#87 to the #83 crosscut was in that direction. The bleeder system was not moving methane in
that substantial portion of the worked-out area away from the active workings.
While Cumberland argues that MSHA' s enforcement methodology was unprecedented,
there is no true claim that the standard has been enforced inconsistently, because there was no
evidence presented that comparable conditions had actually been considered by MSHA in the
past. Neither party points to any published notices addressing the particular types of conditions
encountered here. The overriding considerations on the fair notice question are the conditions'
effect on safety under the circumstances presented by LW49. For the reasons discussed above,
the conditions relied upon by MSHA in determining that the LW 49 bleeder system was
ineffective had a substantial and critical effect on safety.

I find that a reasonably prudent person familiar with the mining industry and the
protective purposes of the standard would have recognized that the bleeder system was
ineffective on January 16, 2004.
Cumberland appears to rely on its fair notice defense, not only to challenge the actual
decision that the bleeder system was ineffective, but to challenge MSHA's methodology in
making the determination. It contends that MSHA's decision to evaluate the effectiveness of the
bleeder system based upon conditions in the #2 entry inby the face represented "new criteria,, for
evaluating bleeder systems and, because it was not put on notice of the new criteria at the time
the LW49 ventilation system was being designed, the citations must be vacated.
Such a broad fair notice defense cannot succeed for a number of reasons. Taken to its
logical conclusion, it would mean that an operator could continue mining in a longwall panel
with an inadequate and ineffective bleede1· system, because the specific type of data upon which
MSHA relied to determine that the system was ineffective had not been previously used to
evaluate such systems. Such a result could not be more contrary to the legislative and regulatory
scheme, and is simply unacceptable. Moreover, Cumberland cannot reasonably assert that it
could not have anticipated the possibility that data pertinent to LW49 bleeder system's
performance, including conditions in the #1 entry, would not have been used to evaluate its
effectiveness.

27 FMSHRC 314

Each longWall panel is, in some sense, a unique undertaking. As Trac.kmus explained,
every longwall panel is different, and no one can "predict how much methane [will be] in that
gob [or] where it is going." Tr. 1428. That is why the shaft within a shaft was incorporated into
design, "because that was going to provide additional air flow at the back corner in case we
needed that." Tr. 1429. If each longwall panel is a unique undertaking, LW49 was more unique
than others. It was extremely large, the largest panel Cumberland had mined, and it was to use a
wraparound bleeder system, a system with "inherent weaknesses," according to Urosek.
The UMWA had raised concerns about the use of a wraparound bleeder system when first
advised of Cumberland's decision to abandon its plan to use a bleeder shaft. Problems
encountered during start-up also raised questions about the system. While Cumberland believed
that the wraparound system would be effective, there was ample reason to anticipate that
questions regarding its effectiveness would continue to be raised. It was also predictable that
when such questions were called to MSHA's attention, a ventilation survey would be perlormed.
Cumberland's managers did not believe that a ventilation survey was necessary, but there is no
claim that they were surprised by the decision or that it was unprecedented. A proper survey
would, of course, include collection of data pertinent to conditions in the #2 entry, and MSHA's
technical personnel would review and consider all of the data in order to evaluate the
effectiveness of the system.
MSHA was required by its statutory mandate to consider all pertinent data in evaluating
the system, and make its best judgment as to its effectiveness. It could not ignore data reflecting
conditions in the #2 entry, i.e., methane concentrations, pressure differentials and air flow
directions and quantities, even if Cumberland had no reason to anticipate that that particular type
of data would be used to evaluate the systc~m. Cumberland's quarrel is, in reality, not so much
with MSHA's consideration of data pertinent to conditions in the #2 entry, as it is with the
reasonableness of the conclusion MSHA ultimately reached based upon that data. Cumberland's
due process, fair notice defense to MSHA' s methodology is also rejected.

In an enforcement proceeding under the Act, the Secretary has the burden of proving all
elements of an alleged violation by a preponderance of the evidence. In re: Contests of
Respirable Dust Sample Alteration Citations, 11 FMSHRC 1819, 1838 (Nov. 1995), aff'd, Sec'y
of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096 (D.C. Cir. 1998); ASARCO Mining Co.,
15 FMSHRC 1303, 1307 (July 1993); Garden Creek Pocahontas Co., 11FMSHRC2148, 2152
(Nov. 1989); Jim Walter Resources, Inc., 9 FMSHRC 903, 907 (May 1987).
I find that the Secretary has carried her burden of proof with respect to Citation
No. 7083200, and that Cumberland committed the violation, as alleged. I also concur with the
assessment that seven persons .were affected, and that Cumberland's negligence was moderate.

27 FMSHRC 315

Significant and Substantial
A significant and substantial ("S&S") violation is described in section 104(d)(l) of tl).e
Act as a violation "of such nature as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard." A violation is properly designated
S&S "if, based upon the particular facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious
nature." Cement Div., Nat'l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981); see also U.S. Steel
Mining Co., Inc. , 7 FMSHRC 1125, 1129 (Aug. 1985); Mathies Coal Co, 6 FMSHRC 1 (Jan.
1984); Austin Power, Inc. v. Secretary, 861F.2d99, 103-04 (5th Cir. 1988), afj'g, Austin Power,
Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria).
Accumulations of methane in the vicinity of the face, behind the shields, pose a risk of
explosion and multiple fatalities for miners working in the area. Urosek explained that, due to
the variable nature of the roof fall behind the shields, face ventilation air can flow behind the
shields, and then be forced out onto the face area, carrying methane with it. While there are
sensors on the face equipment and at the tailgate that can detect the presence of methane and
automatically deenergize the equipment, those sensors are positioned such that they would most
likely not detect the presence of methane in air flowing in from the shields. Tr. 1249. I find that
there was a reasonable possibility that the violation would have resulted in an injury and that any
injury would have been serious. Accordingly, the violation was S&S.

The January 24, February 4, and Febnaary 7, Citations and Orders
Following approval of the January 21, 2004, ventilation plan, which included monitoring
points at crosscuts #82 and #85, mining of the L W 49 panel commenced. The operation of the
bleeder system was continuously monitornd by MSHA and operator personnel. On the dates in
question, high levels of methane were detected in the #2 entry, and citations and imminent
danger orders were issued.

Citation No. 7067356 and Order No. 7067355 - January 24, 2004
Citation No. 7067356 and Order No. 7067355 were issued by Hixon on January 24, 2004.
The citation alleged that the LW49 bleeder system was ineffective, in violation of 30 C.F.R.
§ 75.334(b)(l). The violation was described in the "Condition or Practice" section of the citation
as follows:
The bleeder system for the No. 49 longwall panel failed to continuously
dilute and move methane-air mixtures and dust from the worked-out area away
from the active section. Methane was detected on the tailgate side, in the No. 2
entry, at the No. 83 crosscut at 5.6% and extended inby to the No. 84 crosscut.
The methane was measured 1 foot from the mine roof, in the center of the entry.

27 FMSHRC 316

The methane was layered and when measured closer to the roof it was as high as
6.9%.
Stip. 38; ex. G-3.
Hixon determined that it was reasonably likely that the violation would result in a fatality,
that it was significant and substantial, that six persons were affected, and that Cumberland's
negligence was low. 21 A penalty of $878.00 is proposed for this violation. The companion order
contained virtually identical language. Ex. G-2.
Hixon, had been an MSHA inspector since 1987, and a ventilation specialist since 1993.
Prior to joining MSHA, he worked as a miner for eight years, and had worked on one of
Cumberland's longwall panels that had a wraparound bleeder system. He had participated in the
ventilation surveys, and was assigned to monitor the LW49 bleeder system on the second shift as
of January 21, 2004. As he started his shift on January 24, Bohach told him that the #73/74
monitoring point would probably shut down mining, i.e., that methane levels were approaching
the 2% limitation established in the plan. Hixon was concerned about the rising methane. He
proceeded inby in the #1 tailgate entry and measured 1.9% methane at the #73/74 monitoring
point. He continued down the entry, measuring 1.6% methane at the sampling pipe at crosscut
#82, and 2.6% at the sampling point at crosscut #85. When he got to the back corner, BEP 30,
he decided to enter the #2 entry. He had some questions about the accuracy of the readings at the
#82 and #85 crosscut sampling pipes, because a large amount of coal was being produced, but
MSHA wasn't seeing anticipated increases in methane. Tr. 744. The company representative
traveling with him, Ed Yesh, declined to go with Hixon, because Cumberland had issued
instructions that personnel were not to enter the #2 entry. The union representative also declined.
Hixon proceeded out the #2 entry. He measured methane at 1.5% at crosscut #82, which
corresponded with a 1.6% reading that he had obtained earlier for that location at the other end of
the sampling pipe in the# l entry. At cro:;scut #83, he discovered a methane concentration of
5.6%, took bottle samples, and continued to travel inby. Tr. 755. He measured a methane
concentration of 4.5% between crosscuts #83 and #84, 5.1 % at the intersection of the #84
crosscut, 4.0% between #84 and #85, and generally declining concentrations back to #87. He
measured 3.8% methane at the #85 crosscut intersection, and had measured 2.6% for that
location at the other end of the sampling pipe in the #1 entry, approximately 30 minutes earlier.
Methane readings at the BEPs and the additional monitoring points established in the January 21
ventilation plan, were within acceptable limits. The location of the methane concentrations
found by Hixon are depicted generally on a map of the panel. Ex. G-33.

21

Hixon determined that Cumberland's negligence with respect to the violation alleged
in the citation was low because, as far as he knew, no one from Cumberland had been in the #2
entry since the approval of the January 21 plan, and the readings at the BEPs and other
monitoring points were within acceptable limits. Tr. 765.
27 FMSHRC 317

After reaching crosscut #88, Hixon decided to issue the subject imminent danger order
and citation. He felt that the methane posed an imminent danger because it was in the explosive
range and he had "no idea ... where [it] starts and stops." Tr. 757. His primary concern was that
the methane that he found was two crosscuts, about 280 feet, from the face, where there were
"plenty of ignition sources." Tr. 756. He didn't know if the pocket of methane extended to the
shields of the longwall panel, and was concerned that the pocket would grow. Tr. 805, 812-14.
He was aware of the ventilation surveys that had been performed, and believed that they showed
that the bleeder systel?l was fragile and had limited capacity, and that changes at one location,
e.g., a regulator door opening, might cause the air flow to reverse and push the methane bac1~
onto the face. Tr. 816-19. He testified that he would have issued the order even if the face had
been further outby. Tr. 818.
The Imminent Danger Order
Section 3(j) of the Act defines "imminent danger'' as the "existence of any condition or
practice in a coal or other mine which could reasonably be expected to cause death or serious
physical harm before such condition or practice can be abated.,, 30 U.S.C. § 802(j). Section
107(a) of the Act provides, in pertinent part:
If, upon any inspection or investigation of a coal or other mine which is
subject to this Act, an authorized representative of the Secretary finds that an
imminent danger exists, such representative shall determine the extent of the area
of such mine throughout which the danger exists, and issue an order requiring the
operator of such mine to cause all persons, except those referred to in section
104(c), to be withdrawn from, and to be prohibited from entering, such area until
an authorized representative of the Secretary determines that such imminent
danger and the conditions or practices which caused such imminent danger no
longer exist.
30 U.S.C. § 817(a).
"Imminent danger orders permit an inspector to remove miners immediately from a
dangerous situation, without affording the operator the right of prior review, even where the mine
operator did not create the danger and where the danger does not violate the Mine Act or the
Secretary's regulations. This is an extraordinary power that is available only when the
'seriousness of the situation demands such immediate action."' Utah Power & Light Co.,
13 FMSHRC 1617, 1622 (Oct. 1991) (quoting from the legislative history of the Coal Act). An
imminent danger exists "when the condition or practice observed could reasonably be expected
to cause death or serious physical harm to a miner if normal mining operations were permitted to
proceed in the area before the dangerous condition is eliminated." Wyoming Fuel Co.,
14 FMSHRC 1282, 1290 (Aug. 1992) (quoting from Rochester & Pittsburgh Coal Co.,
11 FMSHRC 2159, 2163 (Nov. 1989)). Inspectors must determine whether a hazard presents an
imminent danger quickly and without delay, and a finding of an imminent danger must be
27 FMSHRC 318

supported "unless there is evidence that [the inspector] had abused his discretion or authority."
11 FMSHRC at 2164. An inspector must make a reasonable inyestigation of the facts, under the
circumstances, and must make his detennination on the basis of the facts known, or reasonably
available to him. An inspector may abuse his discretion if he issues a section 107(a) order
without determining that the condition or practice presents an impending hazard requiring the
immediate withdrawal of miners. 13 FMSHRC at 1622-23.
While an inspect~r has considerable discretion in determining whether an imminent
danger exists, that discretion is not without limits. As the Commission explained in Island Creek
Coal Co., 15 FMSHRC 339 (March 1993):
While the crucial question in imminent danger cases is whether the
inspector abused his discretion or authority, the judge is not required to accept an
inspector's subjective "perception" that an imminent danger existed. Rather, the
judge must evaluate whether, given the particular circumstances, it was reasonable
for the inspector to conclude that an imminent danger existed. The Secretary still
bears the burden of proving [her] case by a preponderance of the evidence.
Although an inspector is granted wide discretion because he must act quickly to
remove miners from a situation that he believes to be hazardous, the
reasonableness of an inspector's imminent danger finding is subject to subsequent
examination at the evidentiary hearing.
15 FMSHRC at 347-48.
The Secretary argues that Hixon, who was a ventilation specialist, reasonably determined
that an imminent danger existed based on the fact that explosive concentrations of methane were
found within an estimated 280 feet of the face where numerous ignition sources existed. The
Secretary also asserts that Hixon had participated in the surveys on January 16, 19 and 20, and
had ..knowledge of the ineffectiveness of the longwall 49 bleeder system between January 16,
2004 and January 24, 2004." Sec'y Br. at 33.
Cumberland counters that there was no ignition source in the area where explosive levels
of methane were found, that the methane found in the #2 entry was not part of an accumulation
that extended to the face, that pressure differentials and air flows precluded the methane from
moving toward the face, that high methane levels found at other times did not result in imminent
danger orders, and that issuance of an imminent danger order because of methane in the #2 entry
is unprecedented and contrary to the actions required by the January 21 plan. Resp. Br. at 52-58.
The impending danger that could justify the issuance of the order was the possibility of
methane at explosive levels reaching ignition sources on the face. While an explosion ignited by
a roof fall in the area where the methane was found was considered a possibility by Hixon,
virtually all of the witnesses, including Hixon, testified, consistent with Urosek's authoritative
MSHA training materials, that a roof fall is an "unlikely" source of ignition. The Secretary does

27 FMSHRC 319

not argue the possibility of an ignition caused by a roof fall in support of the order. Cumberland
argues that the equipment on the longwall face is permissible and that there are monitors that
automatically deenergize the equipment in the presence of methane concentrations of 2%.
However, the monitoring devices on the face are positioned in the high volume face ventilation
air flow, and they would not likely detect methane infiltrating the face from the gob area behind
the shields. Tr. 805, 1249. The working face presented sufficient ignition sources to constitute
an impending hazard if explosive levels of methane were to reach it.
There is no question that Hixon, an experienced inspector and ventilation specialist,
sincerely believed that an imminent danger existed. Whether the Secretary has sustained her
burden of proving that his belief was reasonable is a close question. However, after carefully
reviewing all of the pertinent evidence, I find that the Secretary has not carried her burden with
respect to Order No. 7067355. The most significant considerations in reaching that conclusion
are that Hixon appears to have been misinformed about the effect of ventilation changes made
following the January 16 ventilation survey, and it appears that the methane accumulation was
not extensive and that the bleeder system was diluting it and moving it away from the active
workings.
Hixon had participated in the ventilation surveys on January 16, 19 and 20, and was
present for at least portions of the meetings that followed. His understanding, as of January 24,
was that "no significant changes" to the bleeder ventilation system had been made following the
January 16 survey. Tr. 735-36. Consequently, his primary concern was that he didn't know
exactly where the methane he detected in the #2 entry extended to, and he feared that a reversal
of air flow, as occurred on January 16, could cause methane to back up onto the face. Tr. 81'6-18.
He testified that the determination that no significant changes had been made to the system had
been "made by someone else," and that he didn't personally know how the pertinent pressure
differentials had changed. Tr. 796.
Contrary to Hixon' s belief, marked improvements had been made to the bleeder system
after the January 16 survey. ·Surveys on January 19 and 20 demonstrated that a significant
positive pressure differential had been established at the back corner of the panel, which
produced substantial air flows in the prop<~r direction, inby, in the #2 tailgate entry. Changes to
the system prior to the January 19 survey produced an inby air flow in the #2 entry ranging from
4,500 to 6,000 CFM between crosscuts #83 and #86, and a pressure differential across the BEP
30 regulator of 0.14 inches of water. Ex. G-28. Despite this improvement, Beiter believed that
the system was still too fragile, did not have enough capacity, and presented a potential for
unintended changes. Tr. 542-43. Additional changes were then made to the system that resulted
in significant improvements.
The results of the January 20 survey showed that the #2 entry air flow increased to 10,331
- 13,812 CFM and the BEP 30 pressure differential increased to 0.29 inches of water. Ex. G-30.
Beiter described the system following the January 20 survey, while "still fragile" and subject to
unintended changes, as "markedly improved" and effective for limited production. Tr. 553\. 56027 FMSHRC 320

61, 603, 622. Of course, the January 20 survey results led, in part, to the approval of the January
21 ventilation plan and the resumption of production under the monitoring system. Urosek
agreed that the January 20 survey showed that the bleeder system was effective for limited
production. Tr. 1134-35. While Beiter remained of the opinion that actions on the headgate side
could have unintended consequences on the tailgate side, the nature and degree of such
unintended consequences were not explained. It was not claimed, for example, that such changes
might result in a complete reversal of the air flow in the #2 entry, as had occurred with the
considerably weaker sys_tem on January 16.
While Hixon was concerned that the methane he detected might extend back to the face,
he admittedly did not know its extent. He did not discuss the fact that he found a methane
content of only 1.5% at the #82 crosscut, the second crosscut inby the face. The various
ventilation surveys show that the second crosscut inby, like the rest of the crosscuts back to #86,
carry low volume air flow from the #3 entry and the adjoining rubble zone into the #2 entry.22
Ex. G-26, G-28, G-30, G-32. The low methane reading at the #82 crosscut appears to indicate
that more significant concentrations of methane in the #3 entry and rubble zone near the #83 and
#84 crosscuts did not extend outby to the #82 crosscut. Moreover, the methane Hixon found was
being moved in the proper direction, i.e., inby, into the #2 entry and toward BEP 30. Hixon
confirmed that the air flow he observed was in the proper direction, and agreed that the air flow
in the #3 entry and adjoining rubble zone would have been in the same direction, i.e., away from
the face, inby toward the back comer. Tr. 797-98, 870-08, 813.
Thomas E. Light, Jr., MSHA's assistant district manager for District 2, had "no problem"
with Hixon' s issuance of the imminent danger order based upon the conditions in the #2 entry,
because Hixon "made the determination t11at's where he needed to take a measurement to check
the effectiveness of the system." Tr. 184. However, he note~ that inspectors monitoring the
system had to consider not only the concentration of methane and the fragility of the system, but
how extensive the methane accumulation was and where it was located. Tr. 182-83. In Urosek's
opinion, the methane found by Hixon extended to the face, because it was the outer fringes of a
methane accumulation generated by the mining that had just occurred. Tr. 1147. However, he
also noted that it was difficult to tell whether methane was coming from the cutting action at the
face or from within the system. Tr. 1148.
Neither Light, nor Urosek, directly addressed the significance of the low methane reading
at the #82 crosscut. Urosek acknowledged that in an effective system, air from the T-split
traveling inby will dilute methane coming off the rubble zone as it enters the gob's primary
internal air flow paths, the #3 and #2 entries on the tailgate side. Tr. 1232, 1245. He also
acknowledged that there could be "high spots," methane concentrations of 5% or more, in ''very

22

Crosscut #81, which was just inby the face, was also open. However, the surveys

show that virtually aU of the T-sp1it air flows through that first crosscut into the #2 entry.

Ex. G-26, G-28, G-30, G-32. That high volume flow from the face would not reflect methane
accumulations in the gob.
27 FMSHRC 321

small areas" of the #2 entry and the crosscuts between the #2 and #3 entries. Tr. 1228-30. A
small pocket could exist, and the system could be "just fine." Tr. 1260. However, "if you find it
too much or in too many places, it starts tdling you that the system is not functioning correctly."
Tr. 1260. Hixon agreed that high methane concentrations could be expected in air flowing from
the #3 tailgate entry to the #2 entry. Tr. 776-77.
Kimutis and Bohach disagreed with Hixon's conclusions. Kimutis believed that Hixon
was in the gob and that the methane he found did not extend to the face. The methane Hixon
found in the #2 entry could not migrate to the face because the pressure differentials and air
flows were into the #2 entry from the #3 entry and were also inby, away from the face toward the
back corner and BEP 30. Tr. 1378. Bohach also noted that the pressure differentials and air
flows were inby and from the #3 entry to the #2 entry, and that the methane was traveling inby
and was being diluted exactly as it was "supposed to do." Tr. 1519-20, 1642.
I find that the conditions observed by Hixon on January 24 did not justify issuance of an
imminent danger order. There was a pocket of methane in the #3 entry and adjacent rubble zone
near the #83 and #84 crosscuts. However, it was not extensive, and did not appear to exist ·
further outby to the #82 crosscut, or further inby to the #85 crosscut. It was being drawn up into
the #2 entry, where it was immediately diluted to non-explosive levels. Methane concentrations
of 5% or more existed only in portions of the intersections of the #83 and #84 crosscuts with the
#2 entry. The methane was being further diluted as it traveled inby in the #2 entry, until it passed
through BEP 30 into the travelable bleeder entry.
Limited areas of explosive concentrations of methane can be expected in such areas.
Notably, air with a methane content at or above 5% was found flowing into the #2 entry from
crosscut #83 during the January 25 survey. Ex. G-32. That apparently was not viewed as a
remarkable situation, and it did not generate any enforcement action. Conrad, who assisted in
taking the readings in the #2 tailgate entry during that survey, and who issued an imminent
danger order and citation on February 14, testified that methane in concentrations at or above 5%
could be expected in crosscuts like #83 in LW49 and other longwalls. Tr. 1031-32.
There were no precipitous increases in methane readings within the bleeder system as a
whole. A chart of monitoring point methane readings for January 21-25, 2004, shows that
methane concentrations in the bleeder system on January 24 were relatively stable and within
allowable limits, information that Hixon sbould have been aware of. Ex. G-17. That chart
shows that system-wide methane readings were decreasing at the time Hixon issued his order,
with the exception of an increase at BEP 30, which would be consistent with a moderate
concentration of methane, localized in the area of the #83 and #84 crosscuts, being diluted and
·
moved out of the system.
Considering the location and limited extent of the methane accumulation, the absence of
ignition sources in that area, the fact that the methane was being diluted and moved away from
the face, and that there were no other indications of a build-up of methane within the bleeder

27 FMSHRC 322

system, I cannot find that Hixon's determination that an imminent danger existed was reasonable.
Moreover, Hixon testified that a "lot of [my] concern" was that.the gob was not that large yet,
and that continued mining would cause the pocket of methane to grow. Tr. 762-64, 814. This
would not appear to be a relevant consideration for determining the existence of an imminent
danger, or the effectiveness of the bleeder system on January 24.
As noted above, given the wide dfocretion accorded to an inspector's decision to issue an
imminent danger order, this a difficult decision. However, I find that the Secretary has not
carried her burden of proving that the decision to issue Order No. 7067355 was reasonable. She
has not established that there was an imminent danger, as defined in Commission cases, and I
find that issuance of the order, on the particular facts of this case, was an abuse of discretion.
Citation No. 7067356
For the reasons stated above, I find that the Secretary has failed to carry her burden of
proof with respect to Citation No. 7067356, which alleged that the bleeder system was
ineffective on January 24, in violation of 30 C.F.R. § 75.334(b)(l). It appears that the bleeder
system was functioning effectively, and was diluting methane and rendering it harmless within
the bleeder system's internal air flow paths. There was no significant system-wide build-up of
methane levels within the bleeder system, and the methane content of air exiting the BEPs into
the travelable bleeder entries was well below MSHA's operational limit of 4.5%.

Citation No. 7067000 and Order No. 7069999 - February 4, 2004; and
Citation No. 7067003 and Order No. 7067001-February 7, 2004
Citation No. 7067000 and Order No. 7069999 were issued by Tolliver on February 4,
2004. The citation alleged that the LW49 bleeder system was ineffective, in violation of 30
C.F.R. § 75.334(b)(l). The violation was described in the "Condition or Practice" section of the
citation as follows:
The bleeder system for the active LW49 longwall section, MMU 0011,
was determined to be ineffective in controlling the flow of air through the bleeder
system to continuously dilute and move methane-air mixtures from the gob and
away from the active workings. This was due to an adjustment to the ventilation
controls in the No. 2 entry of the headgate side.
Stip. 46; ex. G-4.
ToJJiver determined that it was reasonably likely that the violation would result in an
injury that would require lost work days or restricted duty, that it was significant and substantial,
that seven persons were affected, and that Cumberland's negligence was moderate. A penalty of
$629.00 is proposed for this violation. The companion order contained similar language, but
added that methane had been detected on the tailgate side, in the #2 entry, at the #85 crosscut at
27 FMSHRC 323

4.8%. Stip. 44;.ex. G-5.
Citation No. 7067003 and Order No. 7067001 were issued by Tolliver on February 7,
2004. The citation alleged that the LW49 bleeder system was ineffective, in violation of
30 C.F.R. § 75.334(b)(l). The violation was described in the "Condition or Practice" section of
the order as follows:
The bleeder system used in the No. 49 longwall panel failed to
continuously dilute and move methane-air mixtures and dust from the worked-out
area away from the active section. Methane was detected on the tailgate side, in
the No. 2 entry, at the No. 85 crosscut at 5.0%.
Stip. 50; ex. G-6.
Tolliver determined that it was reasonably likely that the violation would result in an
injury that would require lost work days or restricted duty, that it was significant and substantial,
that seven persons were affected, and that Cumberland's negligence was moderate. 23 A penalty
of $629.00 is proposed for this violation.
Tolliver, who had been an MSHA inspector for twelve years, was assigned to monitor
LW49's bleeder system on January 31, 2004. Guley and another inspector advised him that there
were instructions that a citation and imminent danger order were to be issued if methane in
excess of the allowable limits was found at the monitoring/evaluation points specified in the
January 21 ventilation plan. Tr. 829-34, 406. On February 4, he traveled the tailgate bleeder
entry, entry #1, with union representative Mihalik and a Cumberland management representative.
On the fourth monitoring pass, he detected 4.8% methane at the #85 crosscut monitoring point.
After 15-20 seconds, he repeated the sampling and got the same result. The other members -of
the party had similar readings on their hand-held detectors.24 Tr. 547-48, 943. He took two
bottle samples, and issued the subject citation and imminent danger order.
He testified that he issued the order because of concern for the safety of miners. On the
first three passes, methane readings had h<~en "pretty steady." Tr. 852. The reading at crosscut
#85 had been 3% at 12:37 p.m., but had increased to 4.8% at 1:25 p.m. He "knew something had

23

Tolliver determined that the violations were S&S because of the potential for an
explosion, and evaluated Cumberland's m:gligence as moderate because it was continuously
monitoring the system, along with MSHA and union officials.
24

Cumberland emphasizes that the bottle samples taken on February 4 showed methane
concentrations below 4.5%, and that there were discrepancies of up to 0.4% in the readings of the
other persons' hand-held monitors. I find those facts of little significance because everyone
traveling with Tolliver had readings very dose to his on both occasions, and Tolliver testified
that there may have been some error in thf: collection of the bottle samples. Tr. 891, 915.
27 FMSHRC 324

happened," and was "afraid that gob air might be coming onto the longwall face." Tr. 851. John
Dzurino. Cumberland's superintendent, confirmed that a ventilation curtain on the headgate side
had been adjusted, which caused a temporary increase in methane flow into the #2 entry on the
tailgate side. eventually reaching BEP 30. Tr. 1741-45. Dzurino did not regard that as an
unusual occurrence. He testified that no additional actions were required to abate the citation and
terminate the order. and that the same thing would have occurred with a bleeder fan system.
Tr. 1741-45.
On February 7, Tolliver detected 5% methane at the #85 crosscut, a reading which was
confirmed by a second measurement after 15-20 seconds, and by the hand-held detectors of those
accompanying him. Tr. 871. He took bottle samples and issued the citation and imminent
danger order. Bohach confirmed that ventilation curtains on the headgate side had been moved
in order to achieve a better pressure balance. Tr. 1536. Those changes caused a temporary
increase in air flow on the headgate side of the bleeder system that continued up the set-up ladder
at the back of the panel to the tailgate side at crosscuts #86 and #87. Tolliver' s evaluations of the
danger and the effectiveness of the bleeder system on February 4 and 7 were virtually the same,
i.e., he was concerned that explosive levels of methane might be coming out onto the face where
a number of ignition sources were present. 25 He did not know, on either occasion, whether there
were high methane concentrations in the face area. Tr. 882, 896, 908.

The parties' respective views on the significance of ToJliver's findings and the validity of
these citations and orders closely parallel their respective positions with respect to Hixon's
citation and order. Urosek believed that the instances of sudden methane build-ups detected by
ToJHver on February 4 and 7, in conjunction with incidents at the headgate, showed that methane
was "sitting in the internal air flow paths" of the gob, extending "all the way to the face."
Tr. 1155-56.
Cumberland's witnesses, Kimutis, Bohach and Dzurino, reiterated that the #2 entry is part
of the gob where high concentrations of methane are to be expected, that there are no ignition
sources in that area, that there-was no methane backed-up to the face because there were no high
methane readings at the face, and the pressure differentials and air flows were away from the face
toward the back of the gob. Tr. 1380-81, .1522-23, 1581-85, 1621-24, 1642-43, 174448.
The Imminent Danger Orders
As noted above, Commission precedent places considerable weight in the discretion of an
inspector who issues an imminent danger order, because he must act quickly in what may,
literally, be life and death situations. Cumberland suggests that the deferential standard should
not apply to Tolliver' s decisions, because he simply followed instructions and issued the orders
25

Tolliver initially cited the presence of sandstone as a potential source of sparks, but
later conceded that he did not know whether sandstone was present in the face area. Tr. 861, 900,
916.
27 FMSHRC 325

solely on the basis of methane levels exceeding the limitations specified in the ventilation plan.
However, as noted in the following discussion, I find that his determinations to issue the
imminent danger orders were grounded more on his bona-fide concerns for, and evaluation of,
the safety of miners, than on a mechanicaJ application of instructions related by other inspectors.
Consequently, they are entitled to the same degree of deference as that accorded similar decisions
by inspectors in more typicaJ situations.
Tolliver' s safety concerns arose from a number of factors. He had made three monitoring
passes on the morning of February 4, and found relatively steady methane concentrations at most
of the monitoring points, with some increases at the #82 and #85 crosscut sampling points. Just
before going to crosscut #85 for the fourth time, he found a significant increase in the methane
concentration of air exiting the BEP 30 regulator. 26 Ex. G-34. Three minutes later, at 1:25 p.m.,
he reached crosscut #85, and found that the methane concentration of air flowing out of the
sampling tube had risen from 3.0% at 12:37 p.m. to 4.8%, a reading that was confirmed by the
others present. Tr. 847-48. He believed that when he "hit this spike here or this slug [of
methane] at 85 crosscut, [he] knew that something had happened." Tr. 852. As he proceeded out
of the mine, he took measurements at additional points and found that methane at the #82
crosscut sampling point had risen from 3.3% at 12:35 p.m. to 4.4% at 1:30 p.m., and the reading
at the #73174 monitoring point had increased from 1.8% at 12:20 p.m., to 2.1 % at 1:40 p.m.
Ex. G-18, G-34. The latter reading would have required shutting down production under the
plan. Shortly after he issued the order, m(~thane levels at all monitoring points declined to
acceptable levels, and production resumed that evening. Ex. G-18.
On February 7, a similar pattern presented itself. Methane levels at the various
monitoring points were relatively steady and within acceptable limits, with the exception of the
#73174 point, which was fluctuating in the 2% range and causing interruptions to production.
Ex. G-20. Around 10:00 a.m., however, methane levels began to rise significantly. At 12:20
p.m., Tolliver measured methane at 5% at the #85 crosscut monitoring point, a substantial
increase over the previous reading of under 3%, less than two hours earlier. Ex. G-20, G-35.
Methane at the #82 crosscut monitoring point was over 4%, and the #73/74 point was well above
2%. Ex. G-20. Again, the rapid rise in methane concentrations caused him concern. He didn't
have any idea what was going on. Tr. 881.
On both dates, there was a sudden and substantial rise in methane concentrations, not just
at the #85 crosscut monitoring point, but virtually throughout the tailgate side of the bleeder
system. Cumberland argues that Tolliver issued the orders and citations solely because of the
readings at the #85 crosscut monitoring point. While he testified to that effect, Cumberland
reads too much into his responses to specific leading questions on cross-examination. Tr. 891.
I find that the better interpretation of his responses was that the crosscut #85 readings were the
precipitating factors for issuance of the orders and citations. His testimony, as a whole,

26

In less than an hour, the concentration had changed from 2.0% to 3.0% methane.

Ex. G-34.
27 FMSHRC 326

evidences that he was concerned as much about the sudden rise in methane readings within the
system, and the absence of any immediate explanation for them) as he was about the crosscut #85
readings themselves. He also considered the unfolding events with an understanding that the
bleeder system was fragile. Tr. 868.
Cumberland argues that Tolliver did not determine whether there were excessive methane
readings on the face, which was the focus of his concerns. However, as noted previously, the
methane monitors on th~ face are positioned in the relatively high volume flow of face air, and
will not detect buildups ·of methane immediately behind the shields, which might get swept out
onto the face in explosive concentrations. Cumberland also notes that air flows and pressure
differentials at BEP 30 were appropriate, and that the system was functioning as it was when the
January 20 and January 25 ventilation surveys were performed. However, there were no sudden
substantial, system-wide increases in methane concentrations on those occasions. In any event,
an inspector would be obligated to issue an order if he found an imminent danger, regardless of
the state of compliance with a ventilation plan.

I find that the Secretary has carried her burden of proof with respect to Order Nos.
706999 and 7067001. Tolliver did not act solely on the basis of a single excessive methane
reading, either on February 4 or 7. He considered the presence of excessive methane and
unexplained sudden rises in methane in the system as a whole, and reasonably determined that
the conditions he encountered on February 4 and 7 presented imminent dangers to miners. He
did not abuse his discretion in issuing the orders.
The Citations
For the reasons stated above, I find that the bleeder system was ineffective on February 4
and 7, as alleged in Citation Nos. 7067000 and 7067003. It was not effectively ventilating the
area within the bleeder system and protecting the active workings from hazardous methane
accumulations. I co11cur with Tolliver' s assessment of the gravity of the violations and
Cumberland's negligence. I also find, for the reasons stated with respect to Citation No.
7083200, that the violations were S&S.
Citation No. 7069907 and Order No. 7069906 - February 14, 2004
Citation No. 7069907 and Order No. 7069906 were issued by Conrad on February 14,
2004. The citation alleged that the LW49 bleeder system was ineffective, in violation of
30 C.F.R. § 75.334(b)(l). The violation was described in the "Condition or Practice" section of
the citation as follows:
Adjustments were being performed in the No. 2 entry inby the [headgate].
Management was attempting to relocate a regulator and installed a canvas check
across the No. 2 entry just inby the No. 80 crosscut of the No. 2 entry and air was
forced from the No. 2 entry over into the longwaJI gob and inadvertently flushed
27 FMSHRC 327

an excessive amount of methane gas back out into the No. 2 entry inby 80 crosscut
which reported to the No. 31 bleeder evaluation point. Five point one percent of
methane was detected at the No. 31 bleeder evaluation point with two different
hand held methane detectors. The bleeder system was determined to be
ineffective in controlling the flow of air to continuously dilute and render
harmless methane gas away from the active workings. This was a contributing
factor to the 107-(a) order. Therefore, there was no abatement time.
Stip. 57; ex. 0-8.
Conrad determined that it was reasonably likely that the violation would result in an
injury requiring lost work days or restricted duty, that it was significant and substantial, that five
persons were affected, and that Cumberland's negligence was moderate. A penalty of $500.00 is
proposed for this violation. The companion order contained similar language. Ex. 0-9.
Conrad had inspected Cumberland's mine in the fall of 2003, when the entries for LW49
were being developed. He also participated in the January 25, 2004, ventilation survey. On
February 14, he was monitoring the LW49 bleeder system's compliance with the January 21
ventilation plan. He had not been instructed to issue an imminent danger order and citation 'if he
found non-compliance with the plan. Tr. 987, 1024, 1059. He traveled the walkable bleeder
entries around the entire panel and, on the second pass, found 5% methane coming out of the
regulator at BEP 31, located at the back, most inby, corner of the panel on the headgate side. He
decided to issue an imminent danger order, collected a bottle sample, and proceeded toward the
face to advise Cumberland officials. Tr. 993. The methane content of the air in the travelable
bleeder outside of BEP 31 was less than 1%. Tr. 1039.
Conrad proceeded outby in the #3 headgate entry in an effort to find a management
official to whom he could issue the order. Tr. 996-98. He traveled to crosscut #76 and asked a
miner where the foreman was, He was told that the foreman was inby in the #2 entry, which
surprised him because he thought everyone was working outby the face. Tr. 998-1000. As he
passed through a canvass check curtain near crosscut #78, he saw the foreman, Matthew Boback,
coming out. He did not encounter any excessive methane as he traveled the #3 and #2 entries.
His methane detector was set to alarm at a methane concentration of 1%, and it did not do so as
he looked for and found Boback. Tr. 1050. The longwall was not operating at the time, and
there was no power on the face. Conrad verbally advised Boback that he was issuing an
imminent danger order. Tr. 1003. Conrad had miners removed from the area and power
removed from a load center near the #72 crosscut. He then went to the dinner hole with Boback
and talked with him about what he had been doing.
Boback and a crew of miners had been moving a regulator in the #2 entry from just inby
crosscut #78 to just inby crosscut #80. There were some concrete blocks that had been knocked
out of a stopping in the #79 crosscut between the #1 and #2 entries, and the #80 crosscut between
the #2 and #1 entries was open. Ex. 0-36. A curtain had been erected in the #2 entry just inby
27 FMSHRC 328

crosscut #80, to serve as a temporary ventilation control while the regulator was being
constructed. Tr. 1882. That curtain changed the pressure in the.#2 entry, increasing it outby and
decreasing it inby. The result was that more air passed into the #1 entry through the missing
blocks in the #79 crosscut stopping and the open #80 crosscut. It swept methane from the #1
entry into the #2 entry further inby. Boback had found 4.4% methane in the #2 entry between the
#82 and #83 crosscuts, and became concerned. Tr. 1869, 1877. He instructed his men to remove
the temporary curtain a little at a time, and the methane decreased and stabilized. Tr. 1869. He
then proceeded outby, where he encountered Conrad. Tr. 1870.
After talking with Boback, Conrad believed that Boback may have already corrected the
problem. He proceeded hack to BEP-31, found that the methane levels had fallen to 2.3%, and
terminated the citation and order. Tr. 1044.
Urosek testified that, in his opinion, Conrad's findings showed that there was a large
accumulation of methane in the #1 entry, a primary internal gob air flow path on the headgate
side, that extended from the back of the panel up to crosscut #80. Tr. 1159. That amount of
methane would have been capable of generating a very large explosion that would have killed or
seriously injured men working outby the face. Tr. 1160. He also interpreted a chart of methane
readings at various monitoring points on February 14, as showing that a significant amount of
methane had been put into the bleeder system about the time of Conrad's findings, and that only
the detector at the #73174 tailgate monitoring point showed it, because its reading went up to
2.2% or 2.3%. Tr. 1168-69; ex. G-21. He felt that the chart showed that the system was "barely
effective." Tr. 1169. However, he then stated that it showed that the system was ineffective
when there was more than 2% methane detected at the #73174 monitoring point. Tr. 1170.
Bohach testified that, in his opinion, there should have been no imminent danger order
issued, because there was no power on the face and no power or any other ignition source inby
the face in the #2 and #3 headgate entries. Tr. 1551. The other evaluation points were within
acceptable limits, and the BEP 31 reading was an isolated event, the cause of which had been
corrected by the time Conrad found Boback. Tr. 1151. He agreed, however, that there was
methane in an explosive concentration, that miners were working in the nearby area, and that
they would have been affected if there had been an ignition. Tr. 1573.
The Imminent Danger Order
Conrad was very concerned when he found the high methane concentration at BEP 31.
He had never found a high methane concentration at that location, and thought that something
must have happened. Tr. 1001-02. He didn't know how far it extended up the #2 entry, and
feared that it "might have been all the way back to the #75 crosscut," all the way to the face.
Tr. 1000. He understood that there were men and equipment working outby the face, and he
"wasn't taking any chances." Tr. 1024-25. He knew that there was power on the load centers,
and he didn't know whether other equipment was operating with power in the area of concern.
Tr. 1001. His decision to issue the order was made at the time he found the excessive methane at

27 FMSHRC 329

BEP 31. Tr. 995-96, 998-99. However, he was unable to issue the order until he encountered
Boback near crosscut #78 in the #2 entry. He issued and implemented the order when he found
Boback, and made sure that power to the load center was turned off and that men were removed
from the area before he sat down with Boback to discuss what had happened. Tr. 1004.
Conrad had decided that he was going to issue an imminent danger order when he found
the excessive methane at BEP 31. That decision was reasonable. It was very unusual to find
such a concentration at that location, and he legitimately feared that explosive methane may have
extended outby in the·#2 headgate entry to places where power was present and men were
working. However, he could not issue the order at that time, because there was no management
official present and no ready mechanism for communicating the order. By the time he found
Boback, and actually issued the order, he had acquired additional important information. He
knew that methane levels were below 1% in the #2 entry from the face inby to crosscut #78.
Also reasonably available to him, within a matter of seconds, was information from Boback that
methane in excessive concentrations had not been detected by Boback's methane detector, or the
detector in the possession of a crew member, except for methane at 4.4% that had been found
inby crosscut #82, and steps had been taken that reduced that concentration. Before actually
issuing the order, Conrad knew or should have known that the methane he found at BEP 31 did
not extend nearly as far as he had feared, and the potential ignition sources that he was concerned
about were far removed from it. He, nevertheless, issued and enforced the order, and did not
t~rminate it until he had returned to BEP 31 and found that the methane concentration had been
reduced to an acceptable level.
The validity of the order must be determined as of the time it was verbally issued to
Boback. 27 See Wyoming Fuel Co., 14 FMSHRC at 1292 (appropriate focus is whether the
inspector abused his discretion when he issued the imminent danger order). At that time, the
facts known to Conrad or reasonably available to him, did not support the issuance of an
imminent danger order. The explosive concentration of methane that he had detected at BE~ 31
did not extend outby in the #2 headgate entry for any appreciable distance, and there were no
ignition sources in the area. · A methane concentration of 4.4% had been detected inby the #82
crosscut, but the temporary ventilation cmtain had been adjusted and that concentration had been
reduced. Any methane concentration of concern was confined to the most inby end of the #2
entry and was being drawn by the bleeder system through BEP 31 into the bleeder entry, where
27

Cumberland also argues that the order is invalid because, by the time it was reduced to
writing as required by the Act, any hazardous condition had ceased to exist. I reject that
argument. While section 107(d) of the Act requires that imminent danger orders be reduced to
writing, the legislative history of the Federal Coal Mine Health and Safety Act of 1969, the
forerunner of the 1977 Act, makes clear that an inspector who finds an impending danger must
eliminate miners' exposure to that danger "without waiting for any formal proceedings or ·
notice." S. Rep. No. 91-411, at 89 (1969) ~ reprinted in Senate Subcomm. on Labor, Comm. on
Labor and Public Welfare, Part I, Legislative History of the Federal Coal Mine Health and Safety
Act of 1969, at 215 (1975).
27 FMSHRC 330

the concentration was below 1%. Whlle Conrad's original decision regarding the an inuninent
danger order was reasonable, his decision to issue the order when he encountered Boback was
not.
The Citation
Conrad was "pretty sure" that he was going to issue a citation for an ineffective bleeder
system when he found ~e methane at BEP 31. Tr. 1006. He eventually decided to issue the
citation because of the excessive methane that he found at BEP 31, and because he felt that a
solid curtain should never have been put across the #2 entry forcing air out of the gob. Tr. 1011.
The S&S finding was based upon the explosive concentration of methane, which presented a
danger if it encountered an ignition source. Tr. 1012. He rated Cumberland's negligence as
moderate because he didn't believe that Boback understood the effect that the temporary curtain
would have on the rest of the system, and hadn't been told exactly, step-by-step, how to move the
regulator. Tr. 1013, 1023.
I agree with Cumberland that the tt~mporary elevation of methane concentration in the
most inby portion of the #2 headgate entry was an isolated occurrence and did not demonstrate
that the bleeder system was ineffective on February 14. The chart of methane measurements on
February 14 shows that, with the exception of the #73/74 monitoring point, all of the other
evaluation and monitoring points were operating well within allowable limits. Ex. G-21. Those
readings evidence that there was no build-up of methane in the bleeder system, as there had been
on February 4 and 7. I find unpersuasive Urosek' s opinion that the relatively brief elevation of
methane content to the 2.2% - 2.3% range at the #73/74 point showed that the system was
ineffective. Methane concentrations had been running very close to the 2% limit at that
monitoring point for the whole day, and had caused termination of mining activities for a
considerable portion of the time. Ex. G-21. Methane at or above 2% at the #73174 point had
also caused cessation of mining on other days. Ex. G-17, G-20. The system was not detennined
to be ineffective on those occasions, and no enforcement action was taken with respect to them.
There obviously was some methane in and near the #1 entry on the headgate side and the
adjoining rubble zone. However, high methane concentrations can be expected in those areas,
and it does not appear that the methane was as wide-spread and prevalent as Urosek believed. If
a large accumulation of methane existed from the back corner of the gob all the way to crosscut
#80, it would seem that the air being forced into the #1 entry at crosscuts #79 and #80 would
have produced high methane readings in the #2 entry beginning at crosscut #81. However, there
is no evidence of hjgh methane readings c1oser to the face than the 4.4% Boback found inby
crosscut #82.
I find that the Secretary has failed to carry her burden of proof with respect to the
violation aJleged in Citation No. 7069907.

27 FMSHRC 331

The Appropriate Civil Penalties
The parties stipulated that Cumberland is a large operator, and that the proposed penalties
will not affect its ability to continue in business. A printout from an MSHA computer database
shows that Cumberland had paid 234 violations, two of which were specially assessed, over the
period January 13, 2002, to January 12, 2004. Ex. G-38. The gravity and negligence associated
with the alleged violations are discussed above.
Citation No. 7083200 is affirmed in all respects. A civil penalty of $1,238.00 was
proposed by the Secretary. I impose a penalty in the amount of $1,238.00 upon consideration of
the above and the factors enumerated in section l IO(i) of the Act.
Citation No. 7067000 is affirmed in all·respects. A civil penalty of $629.00 was proposed
by the Secretary. I impose a penalty in the amount of $629.00 upon consideration of the above
and the factors enumerated in section llO(i) of the Act.
Citation No. 7067003 is affirmed in all respects. A civil penalty of $629.00 was proposed
by the Secretary. I impose a penalty in the amount of $629.00 upon consideration of the above
and the factors enumerated in section 11 O(i) of the Act.

ORDER
Citation Nos. 7067356 and 7069907, and Order Nos. 7067355 and 7069906, are
VACATED. Citation Nos. 7083200, 7067000 and 7067003, and Order Nos. 7069999 and
7067001, are AFFIRMED in all respects. Respondent is directed to pay a civil penalty of
$2,496.00 within 45 days.

27 FMSHRC 332

Distribution (Certified Mail):

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty
Avenue, Pittsburgh, PA 15222
Leon E. Pasker, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center, Suite
630E, 170 S. Independence Mall West, Philadelphia, PA 19106-3306
James B. Crawford, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
22nd Floor, Arlington, VA 22209-2247

/mh

27 FMSHRC 333

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582

303-844'-3577/FAX 303-844-5268

March 28, 2005
DISCRIMINATION PROCEEDING

JOSEPH M. ONDREAKO,
Complainant

Docket No. WEST 2004-141-DM
RM MD 2003-11

v.
Mine I.D. 42-00149
Bingham Canyon Mine
KENNECOTT UTAH COPPER CORP.,
Respondent

DECISION
Appearances:

Joseph M. Ondreako, West Jordan, Utah, prose;
James M. Elegante, Esq., and Martha J. Amundsen, Esq.,
Kennecott Utah Copper Corporation, Magna, Utah, for Respondent.

Before:

Judge Manning

This case is before me on a complaint of discrimination brought by Joseph M. Ondreako
against Kennecott Utah Copper Corporation ("Kennecott"), under section 105(c )(3) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. §815(c)(3) (the "Mine Act"). Mr.
Ondreako alleges that he was demoted and laid off because he complained about safety issues at
the mine. An evidentiary hearing was held in Salt Lake City, Utah, and the parties filed posthearing briefs.

I. BACKGROUND, SUMMARY OF THE EVIDENCE, AND
FINJ>INGS OF FACT
Kennecott is the operator of the Bingham Canyon Mine, a large open pit copper mine in
Salt Lake County, Utah. On or about July 9, 2003, Mr. Ondreako filed a discrimination
complaint with the local office of the Department of Labor's Mine Safety and Health
Administration ("MSHA"). On September 2, 2003, the Secretary filed an application for
temporary reinstatement on Ondreako's behalf. A hearing on the application was held before me
on October 2, 2003. I granted the application for temporary reinstatement. Sec'y of I.Ahor on
behalf of Ondreako v. Kennecott Utah Copper Corp., 25 FMSHRC 612 (Oct. 2003). Upon
appeal, the Commission affirmed my decision. 25 FMSHRC at 585 (Oct. 2003).
On December 17, 2003, the Secretary determined that the facts disclosed during her
investigation into Ondreako's discrimination complaint do not constitute a violation of section
27 FMSHRC 334

105(c) of the Mine Act. On that basis, counsel for the Secretary advised me that he would not be
filing a complaint of discrimination on Ondreako' s behalf. By order dated December 22, 2003, I
dissolved the order of temporary reinstatement pursuant to 29 C.F.R. § 2700.45(g). 1
On January 16, 2004, Ondreako filed this proceeding on his own behalf under section
105(c)(3) of the Mine Act. Mr. Ondreako started working at Kennecott in November 1999 as a
haul truck driver. (TR Tr. 14).2 About six months later he transferred to the roads and dumps
department operating dozers, graders, and track hoes. After receiving the requisite training,
Ondreako also operated electric shovels whenever an extra operator was needed.
Prior to his employment with Kennecott, Ondreako worked for Newmont Mining
Company. He operated hydraulic shovels for Newmont In 2002, Kennecott bought a hydraulic
shovel and Ondrealco transferred to the shovel department to operate this shovel. He eventually
was given the title "Advanced Operator." {TR Tr. 19). Ondreako operated both electric shovels
and the hydraulic shovel during this time.
On April 26, 2003, Ondreako was assigned to operate the No. 52 electric shovel on the
4940 bench. When he arrived at the shovel he walked around it to perform a preshift
examination of the equipment and his surroundings. (TR Tr. 28). Everything looked fine. When
he got into the operator's compartment of the shovel and looked at the dig face, he noticed that
there was rock containing ore and waste rock in the area. He called Alan Pearson, the dispatch
supervisor, on the radio and was told to continue digging the ore that the previous shovel
operator had been producing. The ore-bearing rock that other shovel operators in the pit were
loading was soft, which tended to plug up the crusher. (TR Tr. 29). The ore that was in the area
of Ondreako' s shovel was hard and management wanted to mix that material with the other
material at the crusher so that the crusher could continue to operate.
Ondreako testified that he advanced the shovel into the dig face and the face looked
secure. As Ondreako dug further into the face, he became concerned that he was becoming ratholed. The dig face was taking on the shape of a tight horseshoe. He testified that it is more
difficult to see the face around him when he is inside a rat hole and that it is more difficult to
load the haul trucks. (TR Tr. 30-32). He called Pearson and asked if he could "square the dig
face," which involves repositioning his shovel so that the front of the shovel would be parallel to
the line of rock he was loading. Pearson told him to keep working because the rock he was
loading was needed at the crusher. Ondreako kept on working but he was concerned that he
would soon be working in a narrow slot. Ondreako heard Pearson ask Anthony Hoffman on the

1

Ond.reako remained employed at Kennecott after I dissolved this order because the miners
who were laid off were subsequently recalled by Kennecott and offered employment.
2

References to the transcript and exhibits in the temporary reinstatement case, WEST 2003403-DM, are indicated as (TR Tr. _ ; TR Ex.__J. References to the transcript and exhibits at the
hearing in this docket are indicated as (Tr._; Ex.__J.
27 FMSHRC 335

radio, "Did you·copy that? Joe needs to move." (TR Tr. 32). To which Hoffman replied, "Joe, go
ahead and stay there. I'll be right down and I'll get with you.~' Id. Ondreako kept working
without repositioning. Hoffman was the operations supervisor over shovels and Ondreako's:
immediate supervisor at that time.
When Hoffman arrived at the shovel, he told Ondreako to keep loading, at least until after
the 11 :30 a.m. production meeting. (TR Tr. 33). Hoffman testified that Ondreako did not raise
any safety issues with him at this time. (TR Tr. 156-57). Ondreako testified that the material he
was loading was sitting higher than normal. (TR Tr. 34-35). The rock was similar to aggregate,
but some large boulders were also present. At one point he noticed a large boulder sitting up on
top of the material above the shovel. (TR Tr. 35). Kennecott requires shovel operators to
manage large boulders in their work area so that they do not fall and damage the shovel or cause
injury to the shovel operator. Ondreako te..stified that he was keeping an eye on the boulder when
he saw it start to move as he was swinging the shovel toward the haul truck. (TR Tr. 36). He
dumped the load on the ground and started to swing back toward the boulder to block it with the
shovel's bucket. Because the shovel is large, changing directions takes time and the boulder hit
the right side boarding ladder on the shovel before he could block it with the bucket. Id.
Ondreako testified that the boulder gave the shovel a jolt and caused about $1,700 in damage.
(TR Tr. 37).
Ondreako called Hoffman to tell hi.m about the accident. Ondrealco was tested for drugs
and alcohol, the results of which were negative. Ondreako returned to work operating the same
shovel. When Ondreako returned to work the following work day, he was sent home pending an
investigation. (TR Tr. 39; Ex. C-1 ). The written notice of his suspension was sent to the local
United Steelworkers union, rather than to the local Operating Engineers, which was Ondreako's
union. Ondreako testified that whenever there is an accident, a team is formed to investigate and
the employees involved in the accident participate in the investigation. Id. Ondreako testified
that he was told by Hoffman on May 8, 2003, that the investigation had been completed and that
he was being demoted to an Operator B position. (TR Tr. 39; Ex. C-2). In this position he would
no longer be a shovel operator, but would be operating other equipment in the roads and dumps
department. The written notice of his demotion, dated May 3, 2003, was also sent to the
Steelworkers Union rather than the Operating Engineers. Ondreako was surprised that the
investigation had been completed without any input from him. The Operating Engineers did not
participate in the accident investigation because it was not given notice of the suspension. (Tr.
39-41). The Operating Engineers filed a grievance on Ondreako's behalf, but the grievance did
not raise the notice issue.
Kennecott prepared an accident investigation report following Ondreako's accident. (Ex.
C-7). It is not clear when the report was prepared. Ben Stacy, the Operations Superintendent,
signed the report on May 20, 2003, and Ted Himebaugh, the Operations Manager, signed it on
May 22, 2003. As described below, Ondreako believes that this report inaccurately reflects what
happened on April 26 and fails to indicate that he was not at fault.

27 FMSHRC 336

On May 12, 2003, Ondreako called the local MSHA office to describe the events that
took place. Inspector Dwayne Humphries suggested he file a discrimination complaint.
Ondreako also discussed the condition of the benches above the Carr Fork Road at the mine.
Ondreako had complained to management in late March and early April about operating the
hydraulic shovel along a particular section of the road. On one occasion, Ondreak.o warned
others over the radio that, because of the wet conditions, "the highwalls would be moving." (TR
Tr. 24). Hoffman testified that on one occasion, in response to Ondreak:o's safety concerns, he
permitted Ondreako to move the shovel further down the road. (TR Tr. 161-62). Inspector
Humphries told Ondreako to call MSHA if the hydraulic shovel were to operate in that location
again.
On May 23, 2003, when Ondreako observed that the hydraulic shovel was again operating
along the section of Carr Fork Road that concerned him, he called MSHA. MSHA inspected the
area following this call. (TR Tr. 44). MSHA issued two citations, one alleging a violation of
section 56.3130 for allowing the benches to overfill with rock, creating a hazard to those working
below, and another alleging a violation of 56.3200 for failing to install a barricade or berm in the
affected area. (TR Ex. R-33).
Casey Kalipetsis testified that when the MSHA inspector arrived on May 23, David
Lanham, the operations supervisor over the roads and dumps department, drove him to the Carr
Fork Road because he was a Steelworkers Union representative. Lanham kept asking him who
called MSHA. When Kalipetsis did not answer, Lanham stated the he already knew "it was that
fucking Ondreako." (Tr. 126-28; Ex. C-14). Kalipetsis testified that as they were leaving the
inspection site, Lanham said, "I know Ondreako is out to fuck Anthony Hoffman over getting
him washed out of the shovels dept., but now he's fucking me." (Tr. 128; Ex. C-14). As
discussed below, Lanham denied that he ever said those words to Casey Kalipetsis and denied
even discussing Ondreako with him.
The step two grievance hearing on the shovel accident was held on June 24, 2003. A
Kennecott human resources representative took notes at the meeting. (Ex. C-18). Among those
present at the hearing was Steve Kalipetsis, who was Ondreako's union representative and
Casey's father. Steve and Ondreako presented their case that the accident occurred because
Ondreako was not permitted to square the dig face. In addition, it was their position that
Ondreako was not at fault because the boulder was hidden in the bank and, as a consequence, he
could not have taken any precautions against it. (Tr. 69-70). Ondreako stated that as soon as he
saw the boulder start to move, he did everything he could to protect the shovel. Hoffman stated
that when he was in the area moments before, he did not see anything of concern in the area that
Ondreako was loading. (Ex. C-18 at 2). He also stated that Ondreako told him that he could
safely operate the shovel in the area. Ondreako admitted that the conditions he was working
under did not present a "horrendous safety issue" at the time Hoffman was there. Id. at 3.
Ondreako complained that the company's accident report did not reflect what actually happened.

27 FMSHRC 337

John Simonson, a team leader, gave his version of what he thought happened. He thinks
that Ondreako hit the rock with the body of the shovel. Ondreako contends that Simonson was
just speculating because he not present during the physical investigation of the accident.
(Ondreako Br. 6-7). Ondreako believes that Simonson's participation demonstrates that
Kennecott was trying to frame him for the accident. At the grievance hearing, Hoffman, who
was at the accident scene, said that during his initial investigation, he did not see anything th.at
Ondreako was doing wrong. (Ex. C-18, p. 4). Himebaugh kept stressing that Ondreako, as
operator of the shovel, was responsible for the accident. (Ex. C-18 3-4). Ondreako denied
responsibility saying that management took control of his work environment when he was denied
the opportunity to square the face. He also stressed that other employees have damaged ladders
on shovels without receiving any discipline. Steve Kalipetsis stated that Ondreako exposed a
large rock as he was shoveling and that he did all that he could to protect the equipment. Byron
Timothy, an advanced operator and re-rate supervisor, stated that a face can shift as the area is
shoveled and the shovel operator does not "know what's behind the material." Id. at 5.
Himebaugh was concerned that Ondreak.o was not accepting any responsibility for the accident.
When Ondreako asked, "What separates me from the other guys [who damaged ladders
on shovels]? Id. at 6. Himebaugh replied "possibly your past discipline." At that point,
Ondreako said "I will take this to MSHA and request a full investigation of the entire safety
program because this investigation is not accurate." Id. Timothy stated "we need to have these
incidents stop and we need to keep our faces square and not tunnel in." Id. Hoffman agreed
with this assessment but then stated, "but if people will not accept any responsibility it concerns
me." Id. Hoffman also said that he had concerns about how the accident was investigated.
Because Ondreako had previously been suspended, Stacy indicated that demotion was an
appropriate level of discipline in this case and that termination would result following further
incidents. Id. at 7. Ondreako continued to maintain that he was not at fault for the accident.
Richard Brewster, a heavy equipment operator, asked Hoffman how he came to the conclusion
that Ondreako was at fault. Id. at 8. Hoffman said the each employee is responsible for his work
environment and when he asked Ondreako at the site if he could safely work without squaring the
face, Ondreako replied "yes."
Ondreako believes that he was suspended and demoted because of his past safety
complaints. He points to the fact that Hoffman told him on April 26 that he was not at fault for
the accident. He also relies on a computer summary of the accident which he obtained from
Kennecott during discovery. There is a summary of the accident in a computer-generated
database of 2003 accidents and incidents. (Ex. C-11). Under the column entitled
"Accident/Incident Description" it states ''ES #52 (J. Ondreako) damaged boarding ladder, 10'
rock broke from bank, struck ES." Id. Under the column entitled "Corrective Action" it states
"Reminded operator to report large boulders that are visible, in this case it was not apparent." Id.
Ondreako contrasts this account of the accident with the report that was presented to
Himebaugh. In that report, it states:
27 FMSHRC 338

A 10 ft. rock rolled out from the bank landing in front of the
shovel. When Joe swung around to put another .dipper of muck in
the truck, the right side of the ladder came in contact with the rock
bending the ladder. Joe said that he had no idea that the rock was
in front of him. He thinks that as he was loading the truck the rock
may have sloughed from the bank as he swung back into the face to
get another dipper. Upon inspection of the site there was a large
section of. the bank that had sloughed off.
(Ex. C-7). In the section of the report entitled "What additional corrective actions should be
taken to control the immediate or basic (root) cause," it states:
Operator has be[en] reminded to report large boulders that he can
see that could unexpectedly slough off. In some cases, these can be
brought down safely with the shovel and/or crawler dozer. In this
case.
Ondreako contends that the description of the accident is inaccurate because it states that
he hit the rock with the body of the shovel. He also believes that the final sentence of the
corrective action section was deliberately chopped off. The sentence is obviously incomplete and
it should have said, "In this case it was not apparent," as it did in the computer database. (Ex. C11 ). Ondreako believes that the company altered the accident report to justify disciplining him
for this accident in retaliation for his safety activities.3
The day after the grievance hearing on June 25, 2003, Stacy notified Ondreako that he
was being laid off. Ondreako was ordered to leave the mine. (TR Tr. 51). Ondreako received a
letter dated June 26, 2003, notifying him that his layoff was effective July 5, 2003. (TR Tr. Ex.
G-2). Kennecott laid off about 119 e~ployees effective July 5, 2005.4 These employees were
laid off, not on the basis of seniority, but based on the average rating each employee received on
Qualifications Assessment worksheets filled out by supervisors. Ondreako was rated by
Simonson, Pearson, and Lanham on May 23, 2003, the same day as MSHA's inspection of the
Carr Fork Road. (TR Ex. R-28). When the scores were tabulated, Ondreako was ranked 404 out
of 410 at the mine. (TR Ex. R-30). When Kennecott determined thatit needed only 371
employees at the mine, every employee ranked 372 and below was laid off effective July 5, 2003.
Thus, 39 employees out of 410 were laid off at the mine based on the ranking they achieved
following the tabulation of the scores from the Qualification Assessment worksheets.

3

Ondreako took the grievance to the third step under the collective bargaining agreement.
On September 3, 2003, Ondreako settled the grievance for a monetary sum. (TR Ex. R-21).
4

This layoff included employees in the Bingham Canyon Mine, the smelter, the refinery,
and other facilities operated by Kennecott.

27 FMSHRC 339

Kennecott used the Qualifications Assessment worksheets as the basis for determining
who would be laid off based on a study performed by a consultant and changes in the collective
bargaining agreement.5 A committee of Kennecott's upper-level supervisors and managers was
given the task of developing a "fair and objective method of ranking employee qualifications to
meet the requirements of the organization." (TR Tr. 103-06; Tr. 276-81; TR Ex. R-23).
Although seniority was considered in the rankings, it was only one of many factors that the
committee decided to include. After the committee determined what factors are important to
Kennecott, the committee developed the Qualifications Assessment worksheet to be used when
ranking employees. (TR Tr. 109-15; TR Ex. R-24). This worksheet has seven qualification
categories, as follows: (1) Safety-Personal Safety Plan and Participation; (2) Safety-Incident
Rate; (3) Work Output-Effectiveness; (4) Perlonnance Effectiveness-Working with Others
(Team Skills); (5) Performance Effectiveness-Adaptability; (6) Work Experience-Number of and
Quality of Industrial Experiences; and (7) Technical Skills-Demonstration of Skills Needed to
Complete Job Assignments. Id. Within each category there are five short statements, each with
a box next to it that can be checked.
These worksheets were given to front line supervisors with instructions to rate employees.
(TR Tr. 125). They rated each employee by checking the box next to the statement in each
category that most closely matched the employee being rated. These front line supervisors did
not participate in the development of the worksheets; they were not told that the infonnation'
provided would be used in future layoffs, and they were not given the scoring formula. In
addition, these supervisors were told not to discuss the ratings or employees with other
supervisors but that they were to complete the worksheets independently. Kennecott began
requiring supervisors to rate employees using these worksheets on a regular basis but this was the
first time they had been used. Each employee was rated by at least three supervisors who were
familiar with the employee's work. An average score for each employee was calculated using a
computer spreadsheet. (TR Exs. R-25 & R-30). Ondreako received a score of 2.1271, which
ranked him at number 404 out of 410 mine operations employees. Each laid off employee has
recall rights under the collective bargaining agreement. (TR Tr. 130-31). When market
conditions improved in late 2003 and early 2004, all 39 employees who had been were laid off at
the mine were recalled and offered employment at Kennecott. (Tr. 294-95). Ondreako was
reinstated by my order on or about October 23, 2003, and continues to be employed at Kennecott
as a result of this recall, even after I dissolved the order of reinstatement on December 22, 2q<)3.
At the time of the hearing, Ondreako was employed at the mine as an Operator B. (Tr. 302-03).
Kennecott contends that Ondreako's safety complaints were not taken into consideration
when Ondreako was included in the mine-·wide layoff. It argues that Ondreako failed to establish
a prima facie case of discrimination. Kennecott also argues that the testimony and exhibits
presented by Casey Kalipetsis should not be considered because they are not credible.

5

This process is described in more detail in my decision granting temporary reinstatement.
25 FMSHRC at 615-16.

27 FMSHRC 340

David Lanham testified that when he filled out the Qualifications Assessment worksheet
for Ondrealco on May 23, he did not know that it was Ondreako's call to MSHA that prompted
the MSHA inspection that day. (TR Tr. 188). He filled out the worksheet independently. He
became Ondreako's supervisor only after Ondreako was demoted to an Operator Bin the roads
and dumps department following the shovel accident. (Tr. 193). Lanham denied having a
discussion with Casey Kalipetsis about Ondreako when he drove him to Carr Fork Road to meet
up with the MSHA inspectors on May 23, 2003. (Tr. 190-92). Lanham testified that if he had
uttered the words that c;asey K.alipetsis attributed to him, everyone at the mine would have heard
about it and upper management would have "come down" on him. (Tr. 191).
Anthony Hoffman testified that Stacy and Himebaugh made the decision to suspend and
demote Ondreako following his April accident, with input from Hoffman. (Tr. 206). It was all
part of the progressive discipline system at the mine. Ondreako was suspended and demoted
because he ha~ been involved in previous accidents and had been previously suspended.
Hoffman testified that many miners have been disciplined for accidents in the same manner as
Ondreako. Hoffman stated that he prepared the accident investigation report for this accident and
that the words in the section describing corrective actions are his. (Ex. C-7). He denied that the
sentence "In this case" in that document was incomplete. (Tr. 216). He did not draft the words
"in this case it was not apparent" in the 2003 summary of accidents on the computer spreadsheet.
(Tr. 217; I;:x. C-11). Although Hoffman had been Ondreako's immediate supervisor until the
shovel accident, he did not fill out a Qualifications Assessment worksheet for him because he
was on leave at that time. (TR Tr. 156). Hoffman testified that Ondreako did not raise any safety
issues when Hoffman talked to Ondreako after he asked to square the face on April 26.
Ben Stacy testified that under Kennecott's progressive discipline system, Ondreako could
have been terminated for the April 26 accident because he had been suspended for a previous
incident. (Tr. 226-28). When front line supervisors were given the Qualification Assessment
worksheets, they were not told that it would be scored. (TR Tr. 165). At that time, he was not
aware that Ondreako was responsible for the May 23rc1 MSHA inspection. (TR Tr. 171).
Ted Himebaugh testified that Kennecott employees have been suspended and terminated
for damaging equipment. (Tr. 234). Degree of damage is not as important as the employee's
negligence, operating skills, past discipline, and accident history when determining appropriate
discipline. (Tr. 236). He testified that the decision to suspend and demote Ondreako was made
before May 3, 2003. Himebaugh stated that, at the grievance hearing, he wanted to make sure
that Ondreako was not forced to work under conditions that he believed created a hazard. When
Ondreako stated that there was no significant safety hazard, Himebaugh wanted Ondreako to
accept at least some responsibility for the accident. (Tr. 248). Himebaugh testified that Ray
Hanson, a Kennecott safety engineer, put the information in the database of 2003 accidents. (Tr.
269; Ex. C-11). The information in that database is from the preliminary investigation, which is
not necessarily updated. This database is used to make sure that all accidents are investigated; it
is not used to keep track of an employee's accident history. (Tr. 273).

27FMSHRC 341

II. DISCUSSION WITH FURTHER FINDINGS
AND CONCLUSIONS OF LAW
Section 105(c) 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 "t0
play an active part in the enforcement of the [Mine] Act" recognizing that, "if miners are to be
encouraged to be active in matters of safety and health, they must be protected against any
possible discrimination which they might suffer as a result of their participation." S. Rep. No.
181, 95th Cong., l51 Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95lh Cong., 200 Sess., Legislative History of the Federal Mine Safety and
Health Act of 1977 at 623 (1978) ("Legis. Hist.")
A miner alleging discrimination under the Mine Act establishes a prima facie case of
prohibited discrimination 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 of La.boron behalf of Pasula v. Consolidation Coal Co. , 2 FMSHRC 2786, 2797-800
(October 1980), rev'd on other grounds, 663 F.2d 1211 (3d Cir. 1981); Secretary of La.boron
behalfofRobinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981); Driessen v.
Nevada Goldjields, Inc., 20 FMSHRC 324, 328 (Apr. 1998). The mine operator may rebut the
primafacie 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 primafacie case in this manner, it nevertheless may defend by proving
that it was also motivated by the miner' s unprotected activity and would have taken the ad~erse
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).

A. Protected Activity
There is no dispute that Ondreako engaged in protected activity when he complained to
management about safety conditions at the~ mine and made safety complaints to MSHA.

B. Adverse Action
Ondreako contends that he suffered adverse action as a result of his protected activities.
The adverse action is (1) his suspension and demotion following the April shovel accident; and
(2) his inclusion in the layoff effective July 5, 2003, through his re-employment at the mine on
October 23, 2003. In determining whether a mine operator's adverse action is motivated by the
miner's protected activity, the judge must bear in mind that "direct evidence of motivation is
rarely encountered; more typically, the on]y available evidence is indirect." Sec'y of La.boron
behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510(November1981), 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).
In Chacon, the Commission listed some of the more common circumstantial indicia of

27 FMSHRC 342

discriminatory intent: (1) knowledge of the protected activity; (2) hostility or animus toward the
protected activity; (3) coincidence in time between the protected activity and the adverse action;
and (4) disparate treatment of the complainant.

1. Suspension and Demotion to Equipment Operator
Although the exact sequence of events that led up to the shovel accident are in dispute,
there is no question that the ladder on the shovel was damaged while Ondreako was operating it.
Ondreako contends that, at first, Kennecott did not attribute any negligence to him but that Stacy
and Himebaugh subsequently charged him with causing the accident. He relies on testimony of
his witnesses, Hoffman ts statements at the grievance hearing, and the discrepancy between
Exhibits C-7 and C-11. He believes that his suspension and demotion were unfair and that this
discipline was in retaliation for his safety activities.
I agree that there are some inconsistencies in the evidence. It appears that initially
Hoffman did not think that Ondreako was responsible for the accident. When the accident was
recorded in the database, the safety engineer wrote that the boulder that struck the shovel ''was
not apparent." (Ex. C-11). By May 3, 2003, however, management had concluded that
Ondreako was responsible for the accident. The suspension letter signed by Hoffman states,
"Your failure to recognize and take action against the hazard of a boulder falling from the bank
and striking your equipment is unacceptable and is a crucial part of your everyday duties
concerning ground control inspections." (Ex. C-2). The letter goes on to state:

In reviewing your employee file, I found that you have active
discipline in the form of a one-day suspension for equipment
damage. In fact, this is the third event of equipment damage within
a three year time frame documented in your file. This is an
unacceptable pattern of behavior that you have been asked to
correct before by your supervisor.

Id. The letter goes on to state that, "You have demonstrated you can work safely and
productively as a dozer/grader/truck operator and you are being given the opportunity to return to
this level of work instead of having your employment terminated." Id.
Ondreako contends that the company's stated reason for the discipline is pretext to hide
its discriminatory motive because other employees have damaged equipment without being
suspended. (Ondreako Br. 26-27). Ondreako's witnesses testified that Ondreako was a very safe
shovel operator. (Tr. 18, 101-02, 107-08, 112-15, 158-59). These witnesses also gave examples
of employees who have damaged equipment with only a written warning or no discipline at all.
Kennecott's witnesses cited examples of employees who have been suspended or terminated for
damaging equipment. When Ondreako asked Himebaugh at the grievance hearing, "What
separates me from [these] other guys," Himebaugh responded "Possibly your past discipline."
(Ex. C-18, p. 6).

27 FMSHRC 343

Ondreako maintains that the accident would not have occurred if he had been allowed to
square the face as he had asked. He argues that it was unsafe for him to continue operating his
shovel without squaring the face because his visibility was reduced. Although everyone agr~es
that squaring the face has a safety component, I find that Ondreako did not advise management
that he was concerned about safety when
made his request. Hoffman crune to his work area
after he made the request. Hoffman asked Ondreako if he could work a little longer before
repositioning his shovel. The evidence establishes that Ondreako agreed to keep working and
that he did not tell Hoffman that he had any particular safety concerns. At the grievance hearing
in June, Ondreako admitted that he did not indicate to Pearson or Hoffman that there were
significant safety issues when he asked them about repositioning the shovel. (Ex. C-18, pp. 2-3).
Ondreako also stated that at the time he asked to move his shovel "there was no safety issue~"
(TR Tr. 148-49; Ex. C-18, p. 5). From the: time of the accident through the grievance hearing
Ondreako was adamant that his discipline was unfair. I agree with Ondreako that there are some
inaccuracies in the accident report, but those inaccuracies are not significant to this case.
Ondreako did not communicate to managmnent that he needed to square the face to ensure ms
safety or to protect the shovel.

he

Ondreako made several safety complaints in the month before the accident. He
complained about conditions along the Carr Fork Road in late March and early April 2003.
Although his concerns were not directly addressed, he was told by Hoffman on one occasion that
he could move his shovel down the road so he would not have to work in that area. Ondreako
believes that he was discipJined following the shovel accident because he had raised these safety
issues.
These complaints were known to management and were proximate in time to the adverse
action. Kennecott management did not display any overt hostility to the complaints, but it does
not appear that the benches were cleaned in response to the complaints. Ondreako believed that
the condition presented a significant safety hazard. The evidence does not establish that
Kennecott management was hostile to Ondreako's concerns or hostile to bis warning given over
the mine radio that the material above the road could be moving.

In his brief, Ondreako contends that his complaints about the benches above the Carr
Fork Road had significant operational implications for Kennecott. (Br. 13-15). He states that
because the road had to be narrowed, production was affected because haul trucks use the road to
transport waste rock to the dumps. Id. There was no testimony on this issue at the hearing.
I also find that Ondreako did not establish disparate treatment. Kennecott presented
credible evidence that Ondreako,s suspension and demotion were consistent with its system of
progressive discipline. The record reveals that in October 2001, Ondreako ran over the trailing
cable of the shove) he was operating; in September 2001 he failed to follow his supervisor' s .
order to leave a dozer at a particular location at the end of his shift; and in May 2001 he drunaged
a trailing cable. (TR Exs. R-6 through 14). He received a verbal warning for the first event, a

27 FMSHRC 344

written warning for the second, and a one~day suspension for the third. Ondreako also received
counseling in December 2002, as a result of these incidents, in which he agreed to improve his
safety performance. (TR Ex. R-14). Anecdotal evidence of miners who were not suspended for
other accidents does not negate these facts.

In a discrimination case, a judge may conclude that the justification offered by the
employer for taking an adverse action "is so weak, so implausible, or so out of line with normal
practice that it was mere pretext seized upon to cloak the discriminatory motive." Chacon, at 3
FMSHRC 2516. The Commission explained the proper criteria for analyzing an operator's
business justification for an adverse action:
The Commission and its judges have neither the statutory
charter nor the specialized expertise to sit as a super grievance or
arbitration board meting out industrial equity. Once it appears that
a proffered business justification is not plainly incredible or
implausible, a finding of pretext is inappropriate. We and our
judges should not substitute for the operator's business judgment
our views on "good" business practice or on whether a particular
adverse action was "just or "wise." The proper focus, pursuant to
Pasula, is on whether a credible justification figured into the
motivation and, if it did, whether it would have led to the adverse
action apart from the miner's protected activities. If a proffered
justification survives pretext analysis ... , then a limited
examination of its substantiality becomes appropriate. The
question, however, is not whether such a justification comports
with a judge's or our sense of fairness or enlightened business
practice. Rather the narrow statutory question is whether the
reason was enough to have legitimately moved that operator to
have disciplined the miner.

Chacon, at 3 FMSHRC 2516-17 (citations omitted). The Commission further explained its
analysis as follows:
[T]he reference in Cluzcon to a "limited" and "restrained"
examination of an operator's business justification defense does
not mean that such defenses should be examined superficially or be
approved automatically once offered. Rather, we intended that a
judge, in carefully analyzing such defenses, should not substitute
his business judgment or a sense of "industrial justice" for that of
the operator. As we recently explained, "Our function is not to
pass the wisdom or fairness of such asserted business justifications,
but rather only to determine whether they are credible and, if so,

27 FMSHRC 345

whether they would have motivated the particular operator as
claimed."
Haro v. Magma Copper Co., 4 FMSHRC 1935, 1938 (Nov. 1982) (citations omitted).

I find that Kennecott's alleged business justification for suspending and demoting
Ondreako is credible. The discipline may seem harsh since the boulder was apparently concealed
in the rock at the time.Ondreako performed his preshift examination, but his past history of
accidents and discipline was the key factor in the level of discipline. I find that Ondreako's
safety complaints and safety concerns were not considered by Kennecott management when they
decided to demote him to an Operator B position. His suspension was removed from his record
and he was paid for the lost time prior to the second step grievance hearing. (TR Ex. R-20 p. 2).

2. Layoff Effective .July S. 2003
Ondreako contends that he was selected for layoff because he called MSHA to investigate
conditions along the Carr Fork Road, he was disciplined for the shovel accident, and he
complained about safety. He believes that when Lanham, Pearson, and Simonson evaluated him
in the Qualifications Assessment worksheet, they downgraded him because of his safety
activities.
It is important to understand that Kennecott's employment practices changed
considerably in the year or so leading up to the layoff. In the past, those employees with the least
seniority were subject to layoff in the event of a reduction in force. (TR Tr. 105). The layoff that
occurred in mid-2003 was based on the employee rankings obtained through the Qualifications
Assessment worksheets rather than on seniority. The content of these worksheets was developed
by Himebaugh, Stacy, and other managers at the mine. When front line supervisors were asked
to rate hourly employees using these forms, they did not know how the results would be scored
or what the scores would be used for. (Tr. 278). This was the first time that supervisors had·
been asked to fill out the Qualifications Assessment worksheets. (TR Tr. 110). The supervisors
were not told that the worksheets would be used to determine who would be laid off in the event
of a reduction in force. (TR Tr. 127, Tr. 278).
All three supervisors who filled out a worksheet for Ondreako rated him rather poorly.
(TR Ex. R-28). In filling out that part of the worksheet for safety-incident rate, the supervisors
relied on the summary of Ondreako's accidents and discipline. (TR Ex. R-6). Kim Moulton,
Director of Employee Relations, testified that Ondreako' s disciplinary record demonstrated "high
risk behavior." (TR Tr. 90). Ondreako had three incidents within a short period of time. Al~ of
these incidents occurred after he had been trained to operate shovels. A major reason for
Ondreako's low ratings was his history of accidents and discipline.
All three of the supervisors who rated Ondreako testified that they did not know that
MSHA inspected the conditions along the Carr Fork Road on May 23, 2003, because of a

27 FMSHRC 346

complaint by Ondreako. Ondreako contends that he brought up the issue shortly after the preshift
safety meeting that day. (Tr. 138-40). As stated above, CaseyKalipetsis testified that Lanham
told him that he knew that Ondreako had called MSHA and cursed at Ondreako for doing so.
Kennecott believes that this evidence should be stricken from the record as being "completely
without credibility." (Kennecott Br. 8).
Evidence concerning the alleged conversations between Lanham and Casey Kalipetsis
was first presented by Ondreako in response to Kennecott's motion for summary decision. As
part of Attachment 2 to Ondreako's response is a statement dated March 4, 2004, from Casey
Kalipetsis. In the statement, Kalipetsis says that Lanham told him he knew that Ondreako had
called MSHA. I denied Kennecott's motion for summary decision in this case based, in part, on
this written statement.
At the hearing, Casey Kalipetsis testified that Lanham made the statements to him as they
were driving to meet up with the MSHA inspectors on May 23. (Tr. 126-28). Ondreako
introduced as an exhibit a typed statement of Mr. Kalipetsis that details this conversation. (Tr.
130-32; Ex. C-14). Kalipetsis first testified that he wrote up this statement within a day or two
after the inspection and that he gave a copy to Ondreako. (Tr. 131). Kalipetsis testified that he
made his original notes on a pad of paper. (Tr. 133). He stated that he frequently takes notes at
the mine. He was a union steward for the Steelworkers Union. Kalipetsis next testified that he
typed up his notes at Ondreako's request within a couple of weeks after May 23, in June 2003.
(Tr. 136). Kalipetsis testified that his statement dated March 4, 2004, attached to Ondreako's
response to the motion for summary decision, is another copy of the notes he made. (Tr. 140).
Later, Kalipetsis testified that Ondreako did not know about his conversation with
Lanham in the truck until after the temporary reinstatement hearing held on October 8, 2003.
(Tr. 141-42). Kalipetsis testified that he was in the office used by the foremen, where Kennecott
posts MSHA documents, when he saw the transcript of the temporary reinstatement hearing.
(Tr. 142-3, 146-49). It was in question and answer format. (Tr. 146). Kalipetsis testified that he
read Lanham's testimony that he did not know who called MSHA on the morning of May 23,
2003. Id. Kalipetsis also testified that the transcript was mounted on the wall where everyone
could see it. (Tr. 148). Kalipetsis said that it was only after he read the transcript that he told
Ondreako about his conversation with Lanham in the truck. (Tr. 143).
For the reasons set forth below, I do not credit the testimony of Casey Kalipetsis
concerning the alleged conversations with Lanham in the truck. Kalipetsis changed his testimony
several times during the hearing as to when he wrote up the notes that Ondreako introduced as an
exhibit at the hearing, as described above. (Ex. C-14). He also changed his testimony
concerning Ondreako's knowledge of his conversation with Lanham. At first he stated that he
typed up the exhibit within a week after the MSHA inspection at Ondreako's request. Then he
indicated that he probably gave the statement to Ondreako in June 2003. FinaJly, he testified that
Ondreako did not know about his conversation with Lanham until after my hearing in the

27 FMSHRC 347

temporary reinstatement case. It defies logic that Kalipetsis would have kept this conversation a
secret, especially from Ondreako.

In addition, I do not credit the testimony of Casey Kalipetsis that he saw the transcript of
the temporary reinstatement hearing in the office used by the foremen. Transcripts are not
required to be posted and it is highly unlikely that a mine operator would post such a document.
Each of the foremen who used the office ~stified that they had never seen the transcript to the
temporary reinstatemt:nt hearing and that they did not see it lying around the office. (Tr. 175-76,
204-06). Stacy and Himebaugh also testified that they had not seen the transcript. (Tr. 222, 23334). Casey Kalipetsis may well have seen a copy of the transcript, but he did not see it in the
office. Ondreako had a copy. The only document Kennecott was required to post was a copy of
my October 9, 2003, decision and order granting temporary reinstatement. Kalipetsis testified
that the document he saw in the office wa:;_ not my temporary reinstatement decision. (Tr. 146).
Kalipetsis was not laid off in the reduction in force.
It is clear that Ondreako and Casey Kalipetsis knew each other. (Tr. 143). For example,
they talked about safety issues including the conditions along the Carr Fork Road on the morning
of May 23 before the MSHA inspector arrived. (Tr. 138-39; Ex. C-14). If Lanham had made
such inflammatory statements to Casey Kalipetsis in the truck, Kalipetsis would have told
Ondreako because he knew Ondreako had called MSHA as a result of his concerns about the
conditions along the road and, a few days later, he also !mew that Ondreako was selected for
layoff. All of the unions filed grievances against Kennecott for the manner in which the
reduction in force was conducted. Because the method used to reduce the workforce was
controversial, it is hard to believe that Casey Kalipetsis, who was a union steward for the
Steelworkers local, would have forgotten about his conversations with Lanham or would have
failed to mention the conversations to Ondreako or others at the mine. Lanham's alleged
statements were not mentioned at the temporary reinstatement hearing.6
Lanham denied talking about Ondreako with Kalipetsis in the truck that day. (Tr. 19192). He testified that on May 23, 2003, he was asked by his supervisor if he would like to be
involved in an MSHA inspection as a learning experience. (Tr. 184). Lanham testified that he
did not recall anyone raising issues about the placement of the shovels or conditions along Carr
Fork Road earlier that day. Lanham picked up Casey Kalipetsis in his truck, because he was the
6

There were many legal challenges to the process Kennecott used in the 2003 layoff.
Kennecott states that there were 46 discrimination complaints filed based on race, age, sex, religion,
and union activity. (Tr. 283-284; Kennecott Br. 21). At least two discrimination cases were filed
under the Mine Act. In this environment, it is likely union representatives were aware of these legal
challenges including Ondreako's temporary reinstatement case. The mining community is small,
even at a large mine like Kennecott's. Although I make no finding of fact in this regard, it is likely
that Casey Kalipetsis was aware of Ondreako's discrimination case. If Lanham had made the
statements that Kalipetsis attributes to him, Kalipetsis surely would have told Ondreako and the
Secretary would have used that information at the temporary reinstatement hearing.
27 FMSHRC 348

Operating Engineers representative, on the way to the inspection site. (Tr. 186). Lanham agrees
that they talked about safety during the ride. Lanham testified that he asked Kalipetsis why
anyone would call MSHA if there is a safety issue because it takes an MSHA inspector several
hours to arrive at the site while union and management representatives can address the safety
issue immediately. (Tr. 187). Lanham stated that he has no recollection of discussing Ondreako
with Kalipetsis in his truck that day. (Tr. 192). He testified that if he had used profanity when
refening to Ondreako with Kalipetsis, news of that conversation would likely have quickly
spread around the mine. (Tr. 191). I credit that testimony.
Each employee at Kennecott is required to develop a personal safety plan. One of the
sections on the Qualifications Assessment worksheet asks the supervisor to rate the employee's
personal safety plan and safety participation. Casey Kalipetsis testified that his own personal
safety plan was rejected because it mentioned MSHA. (Tr. 151-52). Ondreako cites this
rejection as proof of the company's attitude toward MSHA and employee safety. Lanham
testified that he required Kalipetsis to rewrite his personal safety plan because it was inadequate.
(Tr. 176-78). In part of the plan, employees must describe actions they will start taking and
actions they will stop taking to improve personal safety. (See TR Ex. R-2). Kalipetsis wrote that
he was going to start calling MSHA more and stop letting the company get away with unsafe
acts. (Tr. 178). Lanham treated this response as a joke and testified that Kalipetsis readily
changed his personal safety plan upon request. Id. It is quite obvious that the initial response of
Kalipetsis in his plan was not a personal commitment to improve his safety practices. Lanham's
rejection of his personal safety plan was not out of line and does not reflect any animosity by
Lanham toward employee safety or MSHA.
Although Ondreako believes that all of the supervisors who rated him were biased against
his safety activities, he focuses primarily on Lanham, his immediate supervisor at the time of the
layoff. The evidence shows that Pearson rated Ondreako lower than Lanham and that if
Lanham's Qualifications Assessment worksheet were excluded, Ondreako would sti11 have been
included in the reduction in force. (Exs. R-1 through R-15). It also appears that his relatively
low seniority had a small negative effect on his rating. (Tr. 288).
Kennecott contends that the process it developed "to determine who would remain in the
workforce . . . was essentially a mechanical one, designed and executed with specific safeguards
insulating the process against discriminatory animus or other improper motive." (Kennecott Br.
21). Although I do not believe that it is as foolproof as Kennecott maintains, I conclude that
Ondreako did not establish that he was chosen for layoff as a result of his safety complaints or
that his safety complaints influenced his ratings in the Qualifications Assessment worksheets.
There was certainly a coincidence in time between the protected activities and his layoff.
Although mine management may not have known that he called MSHA with respect to the May
23rd inspection, it was known that he was not shy about raising safety issues. For the reasons
discussed above, I find that Ondreako did not establish disparate treatment. Although Kennecott,
like all mine operators, prefers to handle safety matters in house, there has been no showing that

27 FMSHRC 349

it was hostile to miners who call MSHA or interact with MSHA inspectors. The citations issued
following the May 2003 inspection were both designated as not being of a significant and

substantial nature. (TR Ex. R-33). The citations were abated by henning off the affected area.
Kennecott paid the Secretary's proposed total $120 penalty for the two citations. (TR Ex. R-34
& R-35). Although Ondreako raised an issue in his brief about the impact of the citations on
mine operations, Citation No. 6274591 states that the affected area was "not a normal travel area
for access/transportation equipment." (TR Ex. R-33). Thus, it does not appear that abatement
had a negative effect op production or Kennecott's operation of the mine.
·
In conclusion, I find that Ondreako was included in the 2003 layoff for reasons that are
not protected under the.Mine Act. He was selected based on the ratings he received as a result of
the Qualifications Assessment worksheets. He would have received the same or substantially
similar ratings if he had not raised the safety issues outlined above. I do not credit the testimony
of Casey Kalipetsis that Lanham described Ondreako in disparaging terms before and after the
MSHA inspection of May 23, 2003.

ill. ORDER
For the reasons set forth above the discrimination complaint filed by Joseph M. Ondreako
against Kennecott Utah Copper Corporation under section 105(c) of the Mine Act is
DISMISSED.
.

Richard W. Manning
Administrative Law Judge

Distribution:
Joseph M. Ondreako, 5252 Wake Robin Drive, West Jordan, UT 84084-7757 (Certified Mail)
James M. Elegante, Esq., Kennecott Utah Copper Corporation, P.O. Box 6001, Magna, UT
84044-6001 (Certified Mail)
RWM

27 FMSHRC 350

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

March 4, 2005

CIVILPENALTYPROCEEDING

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Docket No. LAKE 2004-147
A.C. No. 11-00877-34581

v.
WABASH MlNE HOIDlNG CO.,
Respondent

Wabash Mine

ORDER MODIFYING CAPTION

AND
DEFERRING ON RULING ON MOTION

TO VACA'I'E CIVIL PENALTIES
The respondent has moved to modify the captioned proceeding to reflect the correct mine
operator name is Wabash Mine Holding Company (Wabash). Foundation Midwest Holding
Company, the previously named respondent in this matter, is an affiliate of Wabash. The
Secretary does not oppose Wabash's motion. Accordingly, IT IS ORDERED that the captioned
proceeding IS MODIFIED to reflect Wabash Mine Holding Company as the named respondent.
This matter is scheduled for hearing on May 18, 2005. Relying on the Commission's
decision in Twentymile Coal Co., 26 FMSHRC 666 (Aug. 2004), appeal docketed, No. 04-1292
(D.C. Cir. Aug. 30, 2004), Wabash filed a motion to vacate the proposed penalties asserting they
were not proposed by the Secretary ''within a reasonable time" as specified in Section 105(a) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C . 815(a). The Secretary opposes
Wabash's motion. During a March 3, 2005, telephone conference I advised counsel for the
parties that I considered the motion to be premature because liability has not been established.
Counsel were advised that I would defer mling on the motion until after the hearing and that they
would be afforded.with the opportunity to further address the "reasonable time" issue in their
post-hearing briefs.

-. ...

Jerold Feldman
Administrative Law Judge
(202) 434-9967

27 FMSHRC 351

Distribution: (Certified Mail)
Christine M. Kassak Smith, Esq., Office of the SoHcitor, U.S. Department of Labor
230 S. Dearborn Street, glh Fl., Chicago, IT., 60604

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

/hs

27 FMSHRC 352
-ti U.S. GOVERNMENT PRINTING OFFICE: 2005 310.984115915