May and June 2011
TABLE OF CONTENTS
COMMISSION DECISIONS AND ORDERS
05-03-2011

LUMINANT MINING COMPANY, LLC

CENT 2011-254

Page 1041

05-09-2011

U.S. SILVER – IDAHO, INC.

WEST 2011-160-M

Page 1044

05-15-2011

HOCKER CONSTRUCTION, LLP

WEST 2011-239-M

Page 1049

05-16-2011

LEFT FORK MINING COMPANY, INC.

KENT 2009-1053

Page 1053

05-16-2011

AGGREGATES INDUSTRIES WCR, INC.

WEST 2011-383-M

Page 1056

05-20-2011

NATIONAL CEMENT COMPANY OF
CALIFORNIA

WEST 2006-568-DM

Page 1059

05-23-2011

STONECO INC.

LAKE 2011-146-M

Page 1091

05-24-2011

NEWMONT USA LIMITED

WEST 2010-464-DM

Page 1096

05-25-2011

MACH MINING, LLC

LAKE 2010-190

Page 1100

05-26-2011

LONE STAR AGGREGATES
ACQUISITIONS, LLC

CENT 2011-233-M

Page 1104

05-26-2011

PEROVICH PROPERTIES, INC.

CENT 2011-663-M

Page 1107

05-26-2011

CUMBERLAND RIVER COAL COMPANY

KENT 2011-276

Page 1110

05-26-2011

OCI WYOMING, L.P.

WEST 2010-1659-M

Page 1113

05-26-2011

SPEED MINING, LLC

WEVA 2011-556

Page 1116

06-01-2011

CON-AGG OF MO, LLC

CENT 2011-193-M

Page 1120

06-02-2011

SHAMOKIN FILLER COMPANY, INC.

PENN 2009-775

Page 1124

06-03-2011

ABSMEIER LANDSCAPING AND
CONSTRUCTION, LLC.

WEST 2011-249-M

Page 1127

06-07-2011

OAK GROVE RESOURCES LLC

SE 2011-16

Page 1130

06-09-2011

MRM MINING, INC.

KENT 2011-210

Page 1135

06-09-2011

ROBERT COLEMAN, Employed by
CARMEUSE LIME AND STONE

SE 2011-146-M

Page 1139

06-09-2011

CALICO COAL, INC.

VA 2010-312

Page 1143

i

06-09-2011

SPARTAN MINING COMPANY

WEVA 2010-890

Page 1146

06-09-2011

MAMMOTH COAL COMPANY

WEVA 2010-1423

Page 1150

06-13-2011

KEMBEL SAND & GRAVEL

CENT 2011-432-M

Page 1153

06-29-2011

OVERTON SAND & GRAVEL COMPANY

CENT 2011-210-M

Page 1156

06-29-2011

NUCO INTERNATIONAL, INC.

WEST 2011-263-M

Page 1162

06-30-2011

JOHN RICHARDS CONSTRUCTION

WEST 2011-817-M

Page 1165

ADMINISTRATIVE LAW JUDGE DECISIONS
05-03-2011

CEMEX, INC.

KENT 2009-1197-M

Page 1169

05-03-2011

BLACK BEAUTY COAL COMPANY

LAKE 2009-565

Page 1174

05-03-2011

WOLF RUN MINING COMPANY

WEVA 2006-853

Page 1183

05-06-2011

WAKE STONE CORPORATION

SE 2010-95-M

Page 1205

05-06-2011

LTM INCORPORATED - KNIFE RIVER
MATERIALS

WEST 2008-1268-RM

Page 1210

05-17-2011

SANGRAVL COMPANY

SE 2008-994-M

Page 1242

05-19-2011

WOLF RUN MINING COMPANY

WEVA 2007-600-A

Page 1270

05-19-2011

MOUNTAIN EDGE MINING, INC.

WEVA 2009-1519

Page 1272

05-19-2011

MOUNTAIN EDGE MINING, INC.

WEVA 2009-1617

Page 1290

05-20-2011

BIG RIDGE, INC.

LAKE 2011-116-R

Page 1306

05-23-2011

S & S DREDGING

SE 2007-447-M

Page 1324

05-23-2011

BRODY MINING, LLC.

WEVA 2009-1000

Page 1329

05-27-2011

INDEPENDENCE COAL COMPANY

WEVA 2011-402-R

Page 1387

05-27-2011

GMS MINE REPAIR & MAINTENANCE

VA 2011-338-D

Page 1405

05-27-2011

B&J EXCAVATING, INCORPORATED

YORK 2010-205-M

Page 1410

06-06-2011

HELDEBERG BLUESTONE & MARBLE
INC.

YORK 2010-15-M

Page 1413

06-08-2011

EXCEL MINING LLC.

KENT 2009-200

Page 1421

06-08-2011

JOHNCO MATERIALS, INC.

SE 2009-994-M

Page 1431

ii

06-09-2011

D. HOLCOMB & CO., and its successors

WEST 2008-1113-M

Page 1435

06-16-2011

KNIFE RIVER

WEST 2009-1147-RM

Page 1456

06-17-2011

SMALL MINE DEVELOPMENT

WEST 2010-1508-M

Page 1477

06-21-2011

BLACK BEAUTY COAL COMPANY

LAKE 2009-470

Page 1482

06-21-2011

BLACK BEAUTY COAL COMPANY

LAKE 2009-569

Page 1504

06-22-2011

LAKEVIEW ROCK PRODUCTS, INC.

WEST 2010-1856-RM

Page 1538

ADMINISTRATIVE LAW JUDGE ORDERS
06-15-2011

CUMBERLAND RIVER COAL COMPANY

KENT 2011-1044-D

Page 1547

06-15-2011

STATE OF ALASKA, DEPARTMENT OF
TRANSPORTATION

WEST 2009-103-M

Page 1550

06-30-2011

REVELATION ENERGY, LLC

KENT 2011-71-R

Page 1555

iii

MAY AND JUNE 2011
Review was granted in the following cases during the months of May and June 2011:
Secretary of Labor, MSHA v. Stillhouse Mining, LLC., KENT 2007-309. (Judge Paez, March 28,
2011)
Oak Grove Resources, LLC. v. Secretary of Labor, MSHA, SE 2009-261-R. (Judge Moran, April
1, 2011)
Secretary of Labor, MSHA v. Tilden Mining Company, LC, LAKE 2008-503-M. (Judge Paez,
April 18, 2011)
Secretary of Labor, MSHA v. Mize Grantie Quarries, Inc., and others, SE 2009-401-M, et al.
(Judge Rae, April 20, 2011)
Secretary of Labor, MSHA v. Black Beauty Coal Company, LAKE 2009-565. (Judge Miller, May
3, 2011)
Secretary of Labor, MSHA v. Wake Stone Corporation, SE 2010-95-M. (Judge Gill, May 6,
2011.)
Secretary of Labor, MSHA v. Wolf Run Mining Company, WEVA 2006-853, et al. (Judge
Feldman, May 3, 2011)
Secretary of Labor, MSHA v. S & S Dredging, SE 2007-447-M. (Judge Weisberger, May 23,
2011)
Secretary of Labor, MSHA v. Mountain Edge Mining, Inc., WEVA 2009-1519. (Judge Moran,
May 19, 2011)
Kemper Equipment, Inc., v. Secretary of Labor, MSHA, WEVA 2010-1316-RM, et al. (Chief
Judge Lesnick, unpublished order of Dismissal, May 16, 2011)
Independence Coal Company, and others v. Secretary of Labor, MSHA, WEVA 2011-402-R, and
others. (Judge Andrews, May 23, 2011)
Secretary of Labor, MSHA v. Brody Mining, LLC., WEVA 2009-1000, WEVA 2009-1306.
(Judge Gill, May 23, 2011)
Review was denied in the following case during the months of May and June 2011:
Secretary of Labor, MSHA v. Mountain Edge Mining, Inc., Docket No. WEVA 2009-1617.
(Judge Moran, May 19, 2011)

iv

v

COMMISSION DECISIONS AND ORDERS

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

May 3, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
LUMINANT MINING COMPANY, LLC

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Docket No. CENT 2011-254
A.C. No. 41-01192-232364

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (2006) (“Mine Act”). On December 10, 2010, the Commission received from Luminant
Mining Company, LLC (“Luminant”) a motion 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). On January 20, 2011, the Commission received a response from
the Secretary of Labor stating that she does not oppose the request to reopen the assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from
a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. See
29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable by
the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed that
default is a harsh remedy and that, if the defaulting party can make a showing of good cause for a

33 FMSHRC 1041

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 the facts and circumstances of this case, the operator’s request, and the
Secretary’s response, we hereby reopen this matter and remand it to the Chief Administrative Law
Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules,
29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for
assessment of penalty within 45 days of the date of this order. See 29 C.F.R.
§ 2700.28.
/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael F. Duffy
Michael F. Duffy, Commissioner

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

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

33 FMSHRC 1042

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
Melanie Garris
Office of the Penalty Compliance
U.S. Department of Labor, MSHA
1100 Wilson Boulevard
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001

33 FMSHRC 1043

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

May 9, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
U.S. SILVER – IDAHO, INC.

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:

Docket No. WEST 2011-160-M
A.C. No. 10-00082-228212

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY: Duffy, Young, and Nakamura, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (2006) (“Mine Act”). On October 29, 2010, the Commission received a motion from
counsel for U.S. Silver – Idaho, Inc. (“U.S. Silver”), 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).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from
a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. See
29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable by
the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed that
default is a harsh remedy and that, if the defaulting party can make a showing of good cause for a
failure to timely respond, the case may be reopened and appropriate proceedings on the merits
permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
33 FMSHRC 1044

U.S. Silver requests reopening of Proposed Assessment No. 000228212, issued by the
Department of Labor’s Mine Safety and Health Administration (“MSHA”) on August 11, 2010.
Its safety manager states, by affidavit, without further explanation, that because the operator was
paying most of the penalties proposed by the assessment, “an administrative error was somehow
made and the marked proposed assessment was sent to MSHA late.”
The Secretary does not oppose reopening, and reports that U.S. Silver made a partial
payment on the assessment with a check dated October 7, 2010. She includes a copy of the
completed contest form that appears to have been received by MSHA on October 4, 2010, and
which shows that U.S. Silver intended to contest the three penalties it now seeks to reopen.
We also note that the operator had timely contested the three underlying orders when they
were issued and that those contests are currently stayed before the Commission. Consequently,
we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.1
/s/ Michael F. Duffy
Michael F. Duffy, Commissioner
/s/ Michael G. Young
Michael G. Young, Commissioner
/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

1

Our colleagues would deny the motion to reopen on the basis that in a 2009 motion to
reopen, the operator stated it was implementing a plan to prevent failures to respond in a timely
manner to penalty assessments, and its present motion does not explain how that new system
failed in this instance. Given that the Secretary does not object to reopening, and this motion to
reopen has been the only one received from the operator in the intervening two years, we are not
persuaded that denying the motion and requiring further explanation from the operator in a
renewed motion is necessary. Moreover, if U.S. Silver had a history of delinquencies, we believe
the Secretary would have called that to our attention, as she recently did with respect to the
operator in Docket No. SE 2011-16, Oak Grove Resources, LLC.
33 FMSHRC 1045

Chairman Jordan and Commissioner Cohen, dissenting:
U.S. Silver – Idaho, Inc., received a proposed penalty assessment on August 18, 2010. To
timely contest the penalties, it was required to send a form to the Mine Safety and Health
Administration (“MSHA”) within 30 days of receipt. However, it appears that the contest form
was not received by MSHA until October 4, 2010. The only explanation offered by the operator
in its request to reopen is that because it paid most of the penalties proposed in the assessment “an
administrative error was somehow made.”
At the outset, we note that MSHA’s penalty contest form (attached to the submission of
the Secretary of Labor in this case) is expressly designed for just the type of situation the operator
faced in this case – the payment of some of the proposed penalties shown on the assessment form,
and the contest of others. The front of the form explicitly states that “[i]f you wish to contest and
have a formal hearing on just some of the violations listed in the Proposed Assessment, check the
specific violation numbers in the first column and mail a copy” to MSHA (emphasis added).
Despite these clear instructions, the operator did not comply. Its terse explanation does not tell us
what type of “administrative error” led to the late filing, and this makes it difficult for us to
ascertain whether its actions constituted “mistake, inadvertence, or excusable neglect,” pursuant to
Rule 60(b)(1) of the Federal Rules of Civil Procedure.
This explanation is also insufficient in light of a recent Commission case involving a
request to reopen a final order from this same operator. In U.S. Silver-Idaho, Inc., 31 FMSHRC
1127 (Oct. 2009), the operator was also late in submitting a notice of contest to a proposed
assessment. In our order granting relief we stated that the affidavit of U.S. Silver’s safety
superintendent “notes that the company has now revised its procedure to more accurately calendar
assessments in an effort to avoid the same circumstance in the future.” Id. at 1128. This new
procedure placed “deadlines to contest all MSHA assessments, detailed by mine name and case
number, on both the paper and electronic calendars of both the safety superintendent and the
administrative assistant.” Id. at 1128 n.2.
This change in procedure would have occurred in 2009 (when our order issued). The
relevant time period in the case before us now was 2010. The operator’s motion does not explain
why this new system failed to ensure the filing of a timely penalty contest.

33 FMSHRC 1046

For the reasons set forth above, we would deny the request to reopen without prejudice to
require the operator to explain in further detail the nature of the “administrative error” blamed for
the missed deadline, and to explain why the change in procedures described in our earlier order
was not sufficient to prevent the late filing of the contest of the proposed penalty.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

`

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

33 FMSHRC 1047

Distribution:
Mark N. Savit, Esq.
Patton Boggs LLP
1801 California Street, Suite 490
Denver, CO 80202
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

33 FMSHRC 1048

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

May 16, 2011
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
HOCKER CONSTRUCTION, LLP

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:

Docket No. WEST 2011-239-M
A.C. No. 05-04877-210165

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (2006) (“Mine Act”). On November 17, 2010, the Commission received a request to
reopen a penalty assessment issued to Hocker Construction, LLP (“Hocker”) that became a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from
a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. See
29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable by
the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed that
default is a harsh remedy and that, if the defaulting party can make a showing of good cause for a
failure to timely respond, the case may be reopened and appropriate proceedings on the merits
permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
33 FMSHRC 1049

On February 3, 2010, the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) issued Proposed Assessment No. 000210165 to Hocker. The operator states that it did
not send a contest of the proposed penalty assessment on time because it thought that the
underlying citations had been terminated.
The Secretary opposes Hocker’s request to reopen the proposed assessment. She submits
that ignorance of the rules and the law is insufficient to justify reopening a case and that Hocker’s
misunderstanding of the term “termination” is not adequate grounds upon which the requested
relief can be granted. The Secretary further states that MSHA’s records indicate that Hocker
received the proposed assessment by Federal Express on February 9, 2010. She also notes that
although a delinquency notice was sent to the operator on April 29, 2010, Hocker did not file its
request to reopen until it was contacted by a collection agency for the United States Treasury, and
approximately five and one-half months after issuance of the delinquency letter.
Having reviewed Hocker’s request to reopen and the Secretary’s response thereto, we
agree that the operator has failed to provide a sufficient basis for the Commission to reopen the
penalty assessment. In addition, Hocker has failed to explain why it delayed more than five
months after receiving the delinquency notice sent by MSHA to file its request to reopen.1
Accordingly, we hereby deny without prejudice Hocker’s request to reopen. FKZ Coal Inc., 29
FMSHRC 177, 178 (Apr. 2007); Petra Materials, 31 FMSHRC 47, 49 (Jan. 2009). The words
“without prejudice” mean that Hocker may submit another request to reopen Assessment No.
000210165.2 Any amended or renewed request by the operator to reopen this assessment must be

1

In considering whether an operator has unreasonably delayed in filing a motion to
reopen a final Commission order, we find relevant the amount of time that has passed between an
operator’s receipt of a delinquency notice and the operator’s filing of its motion to reopen. See,
e.g., Left Fork Mining Co., 31 FMSHRC 8, 11 (Jan. 2009); Highland Mining Co., 31 FMSHRC
1313, 1316-17 (Nov. 2009) (holding that motions to reopen filed more than 30 days after receipt
of notice of delinquency must explain the reasons why the operator waited to file a reopening
request, and lack of explanation is grounds for the Commission to deny the motion).
2

If an operator submits another request to reopen, it must establish good cause for not
contesting the proposed penalties within 30 days from the date it received the assessment from
MSHA. Under Rule 60(b) of the Federal Rules of Civil Procedure, the existence of “good cause”
may be shown by a number of different factors including mistake, inadvertence, surprise, or
excusable neglect on the part of the party seeking relief, or the discovery of new evidence, or
fraud, misrepresentation, or other misconduct by the adverse party. Hocker should include a full
description of the facts supporting its claim of “good cause,” including how the mistake or other
problem prevented it from responding within the time limits provided in the Mine Act, as part of
its request to reopen. Hocker should also submit copies of supporting documents and specify
which proposed penalties it is contesting. Hocker should further include an explanation for why
it waited so long, after receiving the delinquency notice, to file its request to reopen.
33 FMSHRC 1050

filed within 30 days of this order. Any such request filed after that time will be denied with
prejudice.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael F. Duffy
Michael F. Duffy, Commissioner

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

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

33 FMSHRC 1051

Distribution:
Roy Hocker, Owner
Hocker Construction, LLP
4167 County Rd. 321
P.O. Box 627
Ignacio, CO 81137
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

33 FMSHRC 1052

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

May 16, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
LEFT FORK MINING COMPANY, INC.

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:
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:

Docket No. KENT 2009-1053
A.C. No. 15-12564-183615

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (2006) (“Mine Act”). On April 11, 2011, Left Fork Mining Company, Inc. (“Left Fork”)
filed with the Commission a motion to reopen this proceeding and relieve it from default.
On December 3, 2010, Chief Judge Lesnick issued an Order to Show Cause and Order of
Default in response to Left Fork’s failure to answer the Secretary’s June 25, 2009 Petition for
Assessment of Civil Penalty. In it, he ordered the operator to file its answer within 30 days or it
would be in default as of the next day. The Commission apparently did not receive a copy of Left
Fork’s answer within 30 days, so the order of default became effective on January 3, 2011.
The operator’s motion states that on December 9, 2010, it did file its answer to the
Secretary’s Petition, and the operator includes a copy of its answer. Therein, Left Fork responded
to 17 of the penalties and conceded the other 17. Left Fork states that its answer was received by
the assigned attorney in the Office of the Solicitor of Labor but apparently not by the Commission.
The judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. §
2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s
decision may be sought by filing a petition for discretionary review within 30 days of its issuance.
30 U.S.C. § 823(d)(2); 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)(1). Consequently, here the judge’s order became a final decision of the Commission on
Monday, February 14, 2011.

33 FMSHRC 1053

In evaluating requests to reopen final orders, the Commission has found guidance in Rule
60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled
to relief from a final order of the Commission on the basis of mistake, inadvertence, or excusable
neglect. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); Jim Walter Res., Inc., 15 FMSHRC 782,
786-89 (May 1993) (“JWR”). We have also observed that default is a harsh remedy and that, if
the defaulting party can make a showing of good cause for a failure to timely respond, the case
may be reopened and appropriate proceedings on the merits permitted. See Coal Prep. Servs.,
Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Upon review of the record, it appears that Left Fork timely attempted to file its answer in
response to the show cause order and that it is unclear why the answer was not in the
Commission’s files. Additionally, the Secretary has not opposed the motion to reopen.
In the interest of justice, we hereby reopen the proceeding and vacate the order of default.
This case is remanded to the Chief Administrative Law Judge for further proceedings pursuant to
the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. In addition, if it has
not done so already, Left Fork should pay the 17 penalties that it is no longer contesting.
/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman
/s/ Michael F. Duffy
Michael F. Duffy, Commissioner
/s/ Michael G. Young
Michael G. Young, Commissioner
/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner
/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

33 FMSHRC 1054

Distribution:
Jim Brummett
Conference Officer
Left Fork Mining Co., Inc.
P.O. Box 405
Arjay, KY 40902
Thomas A. Grooms, Esq.
Office of the Solicitor
U.S. Department of Labor
211 7th Avenue North, Suite 420
Nashville, TN 37219
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

33 FMSHRC 1055

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

May 16, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
AGGREGATES INDUSTRIES WCR, INC.

:
:
:
: Docket No. WEST 2011-383-M
: A.C. No. 05-00864-234744
:
:

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (2006) (“Mine Act”). On December 20, 2010, the Commission received from Aggregates
Industries WCR, Inc. a request 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).
On January 19, 2011, the Commission received a response from the Secretary of Labor stating
that she does not oppose the request to reopen the assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from
a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. See
29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable by
the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed that
default is a harsh remedy and that, if the defaulting party can make a showing of good cause for a

33 FMSHRC 1056

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael F. Duffy
Michael F. Duffy, Commissioner

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

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

33 FMSHRC 1057

Distribution:
Albert Quist, CMSP
Aggregates Industries
WCR, Inc.
1707 Cole Rd.
Golden, CO
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

33 FMSHRC 1058

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

May 20, 2011
JAYSON TURNER
v.
NATIONAL CEMENT COMPANY OF
CALIFORNIA

:
:
:
:
:
:

Docket No. WEST 2006-568-DM

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
DECISION
BY: Young, Cohen, and Nakamura, Commissioners
In this discrimination proceeding arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act” or “Act”), Administrative Law Judge
Jacqueline Bulluck concluded that the discharge of Jayson Turner by National Cement Company
of California (“National Cement”) did not violate section 105(c)(1) of the Mine Act, 30 U.S.C. §
815(c)(1).1 31 FMSHRC 1179 (Sept. 2009) (ALJ). The judge consequently dismissed Turner’s
discrimination complaint. Id. at 1186. The Commission granted Turner’s petition for
discretionary review challenging the judge’s decision. For the following reasons, we vacate the
judge’s decision and remand this matter for further consideration consistent with this decision.
I.
Factual and Procedural Background
National Cement operates the Lebec Cement Plant in Kern County, California. Id. at
1180. Jayson Turner worked at the Lebec Plant as an electrician for ten years and three months.
Id.; Tr. 36. During the period relevant to these proceedings, Turner worked the swing shift,

1

Section 105(c)(1) provides in pertinent part:
No person shall discharge or in any manner discriminate against or
cause to be discharged or cause discrimination against or otherwise
interfere with the exercise of the statutory rights of any miner . . .
because of the exercise by such miner . . . on behalf of himself or
others of any statutory right afforded by this Act.
33 FMSHRC 1059

2:00 p.m. to 12:30 a.m., Sunday through Wednesday. 31 FMSHRC at 1180; Tr. 65, 77. While
employed by National Cement, Turner held a second job with Innovative Construction Solutions
(“ICS”), a contractor that provided water treatment services to National Cement on the premises
of its Lebec Plant. 31 FMSHRC at 1180; Tr. 32-33, 90-91, 110-11, 263. Turner’s job at ICS had
flexible hours, with no set schedule. 31 FMSHRC at 1180; Tr. 116.
National Cement has a “no fault attendance program” under which an employee earns
credits for each month of perfect attendance and demerits for each “absence occurrence.” 31
FMSHRC at 1184; Tr. 271; Ex. C-21. The program lists a number of exceptions for absences
which would not be counted as absence occurrences, such as vacation, jury duty, bereavement
leave, and doctor and dental appointments. Ex. C-21. The program establishes a progressive
schedule of discipline for accumulated absence occurrences. For example, after three absence
occurrences, an employee receives a verbal warning; after four, a written warning; after five, the
employee receives five work days disciplinary suspension without pay; after six, ten work days
disciplinary suspension without pay; and after seven, an employee is terminated. Id. To request
time off, an employee is to make a reasonable effort to contact his/her immediate supervisor to
report an impending absence and if the employee is unable to contact his/her supervisor, the
employee is to notify the Production Control Supervisor. Ex. C-11.
On September 24, 2003, nearly three years before the incident which gave rise to Turner’s
termination, Turner did not report to his job at National Cement for “personal reasons.” 31
FMSHRC at 1180; Ex. R-6. On that day, however, his supervisor, chief electrician Julius Wetzel,
observed Turner at the ICS building. 31 FMSHRC at 1180; Tr. 528. Normally, during that time,
Turner would have been working his shift at National Cement, instead of working for ICS. 31
FMSHRC at 1180; Tr. 62. In a letter dated October 1, 2003, Wetzel issued a “written verbal”
reprimand to Turner, stating that on September 24, he was “absent from work without consent of
the Company,” and warning him that if such an incident happened again, it would result “in more
severe disciplinary action, including possible discharge.” 31 FMSHRC at 1180; Ex. R-6.
On June 13, 2006, Turner informed Wetzel, orally and in writing, that he would be taking
the following day off to go to a doctor’s appointment. 31 FMSHRC at 1180; Tr. 64; Ex. R-7.
The following day, June 14, from approximately 10:30 a.m. until 1:30 p.m., Turner visited the
ICS building to show the water treatment facility to his daughter, who was visiting Turner from
out of town. 31 FMSHRC at 1180; Tr. 33-34, 68-70, 112-13. While at ICS, Turner engaged in
work and “logged in some activities.” 31 FMSHRC at 1180; Tr. 80, 114; Ex. R-4. After leaving
the Lebec Plant property, Turner had lunch with his daughter and, at 4:00 p.m., went to his
doctor’s appointment. 31 FMSHRC at 1180-81; Tr. 69, 74-76.
On June 14, several National Cement employees informed Wetzel that “Turner was at the
ICS water treatment plant.” 31 FMSHRC at 1181; Tr. 532; Ex. R-8. Wetzel went to the ICS
building and spoke with the supervisor there. 31 FMSHRC at 1181. He testified to being
informed that Turner had been working. Id.; Tr. 533. Wetzel reported his findings to his
immediate supervisor, electrical manager Bill Russell, and to plant manager Byron McMichael, in
a written statement dated June 15, 2006. 31 FMSHRC at 1181; Tr. 535; Ex. R-8. In a meeting
33 FMSHRC 1060

with Wetzel and Russell on June 16, 2006, McMichael reviewed Turner’s personnel file and
asked for Wetzel’s and Russell’s input on Turner’s job performance, and whether they thought
termination was an appropriate response to Turner’s conduct in disregarding the previous warning
not to allow his secondary job to interfere with his job at National Cement. Tr. 260-61, 537-42.
McMichael was ultimately responsible for deciding what disciplinary measures, if any, National
Cement would take against Turner for the June 14 incident. 31 FMSHRC at 1181;
Tr. 249-50. According to Wetzel, he and Russell recommended to McMichael that Turner’s
employment be terminated. Tr. 539-42.
Later on June 16, a meeting was held involving Turner, McMichael, Wetzel, and a union
representative, Neal Janousek, in which Turner was informed of the decision to suspend him
“pending discharge.” 31 FMSHRC at 1181; Tr. 281-82; Ex. R-1. McMichael subsequently
decided to terminate Turner’s employment. By notice dated June 23, 2006, McMichael provided
Turner with the company’s reason:
On Wednesday, June 14, 2006, you were on the premises of NCC
working for Innovative Construction Solutions, Inc. The same day .
. . you missed your entire shift (2:00 p.m. until 12:30 a.m.) at NCC.
. . . As a result of your working for another firm on a day that you
were absent from NCC and your less than acceptable performance[,]
you are being terminated effective Friday, 6-23-06.
31 FMSHRC at 1181; Tr. 250, 267-69; Ex. R-2.
Turner testified that before his employment was terminated, he had brought safety
concerns to the attention of his supervisors on at least four occasions.2 31 FMSHRC at 1182-83.
During January 2006, Turner complained to management that the lack of lights on a manlift made
it unsafe to operate the equipment at night. 31 FMSHRC at 1183; Tr. 49-50. He alleged that in
April 2006, he requested that National Cement provide him with electrically-rated tactile gloves.3
Id. at 1182; Tr. 18-19, 105-06. In late May 2006, Turner also complained that a medium voltage
disconnect, which he mistakenly energized, was mislabeled and not properly locked and tagged
out of service. 31 FMSHRC at 1183; Tr. 20-25; Ex. C-2. (When Turner energized this piece of
equipment, it caused the entire plant to lose power. 31 FMSHRC at 1183; Tr. 25-26. He was
subsequently disciplined for his mistake in a written warning that was placed in his personnel file.
31 FMSHRC at 1183; Ex. C-5; ALJ-1.) Lastly, on June 12, 2006 – four days before his discharge
– Turner complained to management that he had been directed to troubleshoot ignition controls on

2

Turner withdrew his allegation that he made a fifth safety complaint concerning unsafe
conditions existing on a blower. 31 FMSHRC at 1182 n.6; Tr. 123-24; T. Post-Hearing Br. at 4.
3

National Cement’s safety manager, Randy Logsdon, testified that he told Turner that he
had researched the availability of such gloves in his equipment catalogs, but could not find any
thin rubber or latex gloves that had an electrical rating. 31 FMSHRC at 1183; Tr. 361-63.
33 FMSHRC 1061

Pre-Calciner burners in an area that was allegedly very hot and gassy, needlessly placing him and
his co-workers at risk. 31 FMSHRC at 1183; Tr. 43-45.
Turner filed a discrimination complaint with the Department of Labor’s Mine Safety and
Health Administration (“MSHA”) pursuant to section 105(c)(2) of the Act, 30 U.S.C.
§ 815(c)(2), on July 25, 2006. 31 FMSHRC at 1179; Ex. C-9. In a letter to Turner dated
August 18, 2006, MSHA notified him that, based on its investigation of the allegations contained
in the Complaint, it had concluded that a violation of section 105(c) had not occurred.
31 FMSHRC at 1179. Turner, pro se, filed a complaint before the Commission on August 31,
2006, pursuant to section 105(c)(3) of the Act, 30 U.S.C. § 815(c)(3). 31 FMSHRC at 1179. A
hearing was subsequently held before Judge Bulluck. Id. at 1180.
The judge concluded that, although Turner engaged in activity protected under the Mine
Act, he had failed to prove that his protected activity served as the basis for his termination by
National Cement. Id. at 1180. Specifically, the judge found that McMichael credibly testified
that when he decided to terminate Turner, McMichael knew nothing of Turner’s safety concerns.
Id. at 1183. The judge also credited Wetzel, who testified that his recommendation to discharge
Turner was based on Turner’s poor job performance and the fact that Turner worked at the ICS
plant on June 14. Id.
The judge, assuming arguendo that Turner had proven that his protected activity could
have served as a basis for his termination, concluded that National Cement discharged Turner for
reasons that were wholly unrelated to his protected activity. Id. at 1183, 1186. The judge found
that National Cement “offered credible evidence, unrebutted by Turner, clearly establishing that
he was discharged for legitimate, business-related reasons, entirely unrelated to any protected
activity, and that [National Cement] would have taken the adverse action based solely on Turner’s
conduct” with respect to his outside employment at ICS. Id. at 1183. While the judge
acknowledged the testimony about National Cement’s “no-fault attendance program,” she also
cited McMichael’s and Wetzel’s testimony that it was improper for Turner to work for ICS on a
day he had taken off from National Cement, that it was unnecessary for Turner to miss his entire
shift for his medical appointment, and that Turner should have scheduled his personal business so
as not to interfere with his National Cement shift. Id. at 1183-84. Based on the record evidence,
she concluded that “National Cement had ample grounds, unrelated to his protected activity, upon
which to terminate [Turner’s] employment” and dismissed his complaint. Id. at 1185.
Turner argues that the judge’s dismissal of his discrimination complaint was erroneous.
He claims that substantial evidence supports the conclusion that he engaged in protected activity.
PDR; T. Br. at 4-10; T. Reply Br. at 3-6, 14-20. He contends that the operator’s asserted
justification for firing him – allowing his secondary job to interfere with his primary job at
National Cement and his unsatisfactory job performance – was pretextual. PDR; T. Br. at 6, 14
18. He explains that the prior incident in 2003 involving his work for the secondary employer
was different from the current incident leading to his termination. T. Br. at 10-12. He argues that
substantial evidence does not support the operator’s claim of poor performance. T. Br. at 15-16,
23-24. Turner also claims that Byron McMichael and other supervisors knew about his safety
33 FMSHRC 1062

complaints. T. Br. at 20. Finally, Turner contends that the judge erred by excluding evidence that
he sought to admit at trial and by denying his requests to compel discovery.4 PDR; T. Br. at 26
28; T. Reply Br. at 23-25.5
National Cement responds that the judge correctly found that its decision to terminate
Turner was due solely to Turner’s allowing his secondary job to interfere with his primary job at
National Cement and for his poor job performance. NC Br. at 17-19. National Cement contends
that there is no evidence that McMichael, the ultimate decisionmaker on Turner’s termination,
knew about Turner’s protected activity. Id. at 20-21, 23-25. National Cement also argues that
there is no evidence of hostility or animus toward Turner’s protected activity or that Turner was
disparately treated for his secondary job as compared to other National Cement employees. Id. at
21-23. National Cement explains that although some of Turner’s protected activity occurred
relatively close in time to his termination, the undisputed evidence is that the operator acted
swiftly in response to the events of June 14. Id. at 22. National Cement contends that substantial
evidence supports the conclusion that Turner’s job performance was unsatisfactory. Id. at 25.
National Cement also contends that the judge’s discovery and evidentiary rulings were appropriate

4

Turner’s personnel file, Safety Committee notes from February 2006 through June
2006, and Joseph Kowalski’s personnel file were admitted into evidence after the hearing as ALJ
Exhibit 1. Ex. ALJ-1.
5

While this case was on appeal, Turner submitted documents to the Commission by
email, and requested that they be included as evidence in the record. On January 19, 2011, the
Commission’s Docket Office, at the direction of the Commission, sent an email to Turner and the
operator’s counsel, rejecting these documents and stating that “[n]o additional evidence may be
submitted after the close of the hearing before the judge in any case, unless a party has special
permission from the Commission or the judge.” On February 2, 2011, Turner sent an email to
the Commission containing a motion to reconsider acceptance of the evidence previously
submitted to the Commission. We hereby deny Turner’s motion for reconsideration. As
provided in section 113(d)(2)(C) of the Mine Act, the record in the case consists of:
(i) all matters constituting the record upon which the decision of
the administrative law judge was based; (ii) the rulings upon
proposed findings and conclusions; (iii) the decision of the
administrative law judge; (iv) the petition or petitions for
discretionary review, responses thereto, and the Commission’s
order for review; and (v) briefs filed on review. No other material
shall be considered by the Commission upon review.
30 U.S.C. § 823(d)(2)(C) (emphasis added). Contrary to Turner’s understanding, the right of a
miner or other party to “present additional evidence” pursuant to section 105(c)(2) of the Act, 30
U.S.C. § 815(c)(2), is limited to the period when the case is pending before the administrative
law judge, and does not extend to the period when the case is on appeal before the Commission.
33 FMSHRC 1063

and not an abuse of her discretion. Id. at 25-29. Finally, National Cement argues that the judge’s
decision and order dismissing Turner’s discrimination complaint should be upheld. Id. at 29.
II.
Disposition
A complainant alleging discrimination under the Mine Act establishes a prima facie case
of prohibited discrimination by presenting evidence sufficient to support a conclusion that the
individual engaged in protected activity and that the adverse action complained of was motivated
in any part by that activity. See Driessen v. Nev. Goldfields, Inc., 20 FMSHRC 324, 328 (Apr.
1998); Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799
(Oct. 1980), rev’d on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211
(3d Cir. 1981); Sec’y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803,
817-18 (Apr. 1981). The operator may rebut the prima facie case by showing either that no
protected activity occurred or that the adverse action was in no part motivated by protected
activity. See Robinette, 3 FMSHRC at 818 n.20. If the operator cannot rebut the prima facie case
in this manner, it nevertheless may defend affirmatively by proving that it also was motivated by
the miner’s unprotected activity and would have taken the adverse action for the unprotected
activity alone. See id. at 817-18; Pasula, 2 FMSHRC at 2799-800; see also
Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642-43 (4th Cir. 1987) (applying PasulaRobinette test).
Although the judge did not make an explicit finding as to whether Turner established a
prima facie case of discrimination, it appears that she concluded that Turner did not establish a
prima facie case because he failed to establish motivation, i.e., that his adverse action was in any
part motivated by his protected activity. Nevertheless, the judge proceeded in her analysis to
consider evidence of the operator’s defense, assuming that Turner successfully established a prima
facie case, and essentially concluded that the operator had affirmatively defended by proving that
it had terminated Turner for his non-protected activity alone. The judge accepted the operator’s
business justification for dismissing Turner – because he had worked for his secondary employer
on a day that he was scheduled to work for the operator but did not do so, and for his allegedly
poor job performance – as the sole bases for its decision to discharge Turner.
We conclude that the judge’s analysis is flawed in certain respects. First, in analyzing
Turner’s prima facie case, the judge failed to consider circumstantial evidence of motivation and,
in doing so, incorrectly elevated the burden of proving a prima facie case of discrimination.
Specifically, the judge failed to address significant probative circumstantial evidence of National
Cement’s motivation. Second, in considering the operator’s defense, the judge failed to address
evidence that the justification proffered by National Cement for Turner’s discharge was
pretextual.
We first address the evidence regarding the prima facie case.

33 FMSHRC 1064

A.

Prima Facie Case

A “prima facie case” is defined as “the establishment of a legally required rebuttable
presumption; a party’s production of enough evidence to allow the fact-trier to infer the fact at
issue and rule in the party’s favor.” Black’s Law Dictionary 1310 (9th ed. 2009) (emphasis
added). To make out a prima facie case of discrimination, the complainant need only “present[]
evidence sufficient to support a conclusion that the individual engaged in protected activity and
that the adverse action complained of was motivated in any part by that activity.” See Driessen,
20 FMSHRC at 328 (emphasis added). This burden of proof is lower than the ultimate burden of
persuasion, which the complainant must sustain as to the overall question of whether section
105(c)(1) has been violated. See EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir.
1997) (holding that “[t]here must be a lower burden of proof to sustain a prima facie case than to
win a judgment on the ultimate issue of discrimination”); Texas Dep’t of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981) (holding that “the burden imposed on a plaintiff at the prima
facie stage is not onerous”); McGuinness v. Lincoln Hall, 263 F.3d 49, 53 (2d Cir. 2001) (stating
that the burden of establishing a prima facie case of discrimination is “minimal”) (citing St.
Mary’s Honor Center v. Hicks, 509 U.S. 502, 506 (1993); Young v. Warner-Jenkinson Co., Inc.,
152 F.3d 1018, 1022 (8th Cir. 1998) (“‘The prima facie burden is not so onerous as, nor should it
be conflated with, the ultimate issue’ of discriminatory action.”).7 To establish a prima facie case,
it is sufficient that the alleged discriminatee present evidence from which the trier of fact could
infer retaliation. See Young, 152 F.3d at 1022 (concluding that plaintiff “produced evidence
sufficient to raise an inference of discrimination”); see also Long v. Eastfield College, 88 F.3d
300, 304-05 n.4 (5th Cir. 1996) (stating that at prima facie stage, plaintiff need not prove that
protected activity was sole factor motivating employer’s challenged decision; “[t]he ultimate
determination . . . is whether the conduct protected . . . was a ‘but for’ cause of the adverse
employment decision”).
Here, the judge applied the wrong evidentiary standard to the miner’s prima facie case and
we review that legal conclusion de novo. Mitchell v. Baldrige, 759 F.2d 80, 84-87 (D.C. Cir.
1985) (holding that district court’s formulation of the elements of a Title VII prima facie case of
disparate treatment was legally incorrect, and finding that, under the appropriate formulation, the
district court’s factual findings required the conclusion that plaintiff had proved a prima facie
case); see also Avery, 104 F.3d at 860-62 (stating that “the elements that must be proven in a
prima facie case are a question of law which is reviewed de novo”). When reviewing a trial
court’s determination that a plaintiff has failed to present sufficient evidence to meet the burden of
establishing a prima facie case of discrimination, federal courts of appeals have proceeded to

7

The Commission has looked to case law under similar federal anti-retaliation
provisions, including Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title
VII”), and the National Labor Relations Act, 29 U.S.C. § 141 et seq. (1994) (“NLRA”), in
resolving questions involving the anti-discrimination provisions of the Mine Act. See, e.g., Pero
v. Cyprus Plateau Mining Corp., 22 FMSHRC 1361, 1367-72 (Dec. 2000); Delisio v. Mathies
Coal Co., 12 FMSHRC 2535, 2542-45 (Dec. 1990).
33 FMSHRC 1065

consider the evidence pertaining to the elements of a prima facie case and reversed the trial
court’s determination, concluding that a plaintiff has “produced evidence sufficient to raise an
inference of discrimination.” Young, 152 F.3d at 1022; see also King v. Rumsfeld, 328 F.3d 145,
150-51 (4th Cir. 2003) (reversing trial court’s conclusion that plaintiff failed to make out a prima
facie case of retaliatory discharge based on evidence proferred by plaintiff that “his termination
came so close upon his filing of [an EEO] complaint giv[ing] rise to a sufficient inference of
causation to satisfy the prima facie requirement”); Farrell v. Planters Lifesavers Co., 206 F.3d
271, 278 (3d Cir. 2000) (concluding that “the District Court erred by requiring that the causal
connection . . . be supported by a pattern of antagonism, retaliation or hostility,” the circuit court
considered the record and found “ample evidence from which to infer a causal connection”
between the plaintiff’s rejection of her supervisor’s sexual advance and her subsequent
termination); Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989) (disagreeing with
trial court’s conclusion that plaintiff failed to make a prima facie case of retaliation and finding
that “the less onerous burden of making a prima facie case of causality” was satisfied by proving
that plaintiff was fired after her employer became aware that she had filed a discrimination
charge). Thus, “[t]o make out a prima facie case of discrimination, the [discriminatee] need only
submit enough evidence so that the record could support an inference” that Turner’s termination
resulted, at least in part, from his protected safety complaints. Sec’y of Labor on behalf of Garcia
v. Colorado Lava, Inc., 24 FMSHRC 350, 358 (Apr. 2002) (Jordan, concurrence) (emphasis in
original). We conclude that the record contains sufficient evidence to meet this low evidentiary
burden.
In view of the cases cited herein, the dissent is incorrect in asserting that we have
“stray[ed] well beyond the confines of the Commission’s review function.” Slip op. at 24. As a
matter of law, a prima facie case is established by evidence from which a judge could infer
retaliation. Since such evidence exists in the record, it is not necessary to remand the case to the
judge on the issue of whether Turner has established a prima facie case. The record here compels
the conclusion that retaliation could be inferred from the evidence, and thus that Turner
established a prima facie case.
The judge found, and National Cement does not dispute, that Turner engaged in protected
activity and that he suffered adverse action when National Cement discharged him. 31 FMSHRC
at 1182-83. We disagree, however, with the judge’s conclusion that there was no evidence of
motivation. Indeed, Turner presented significant circumstantial evidence related to National
Cement’s motivation for his termination.
In Secretary of Labor on behalf of Chacon v. Phelps Dodge Corp., the Commission stated
that “[d]irect evidence of motivation is rarely encountered; more typically, the only available
evidence is indirect.” 3 FMSHRC 2508, 2510 (Nov. 1981), rev’d on other grounds, 709 F.2d 86
(D.C. Cir. 1983). In Chacon, the Commission identified several indicia of discriminatory intent,
including: (1) knowledge of the protected activity; (2) hostility towards the protected activity; (3)
coincidence in time between the protected activity and the adverse action; and (4) disparate
treatment of the complainant. Id. at 2510. Consideration of indirect evidence involves the
drawing of reasonable inferences from the facts of record. In Bradley v. Belva Coal Co., with
33 FMSHRC 1066

regard to the issue of motivation, the Commission found that “circumstantial evidence . . . and
reasonable inferences drawn therefrom may be used to sustain a prima facie case.” 4 FMSHRC
982, 992 (June 1982) (citing Chacon, 3 FMSHRC at 2510-12).
Although the judge recited the Chacon factors in her decision, she did not adequately
consider the circumstantial evidence on several of the factors critical to Turner’s prima facie case,
and failed to credit the evidence as establishing his prima facie case. We review the evidence
under this minimal evidentiary standard to determine whether a reasonable person could infer that
Turner was discharged, at least in part, for his protected activity. We conclude that there is ample
evidence from which a reasonable person could infer a discriminatory intent for Turner’s
termination.8
1.

Knowledge

As to knowledge, the judge’s conclusion that “McMichael credibly testified that when he
decided to terminate Turner, he knew nothing of Turner’s [protected activity]” is undermined by
the record and does not end the inquiry. 31 FMSHRC at 1183. The record indicates that
McMichael consulted Wetzel and Russell prior to making his decision to terminate Turner, and
that both Wetzel and Russell knew about Turner’s protected activity. The Commission has stated
that “[a]n operator may not escape responsibility by pleading ignorance due to the division of
company personnel functions.” Metric Constructors, Inc., 6 FMSHRC 226, 230 n.4 (Feb. 1984).
While the judge credited McMichael’s testimony that he did not know about Turner’s
safety complaints and that he made his decision to terminate Turner based solely on his nonprotected conduct, the judge did not reconcile this finding with the evidence that McMichael
consulted Wetzel and Russell, who did in fact have knowledge of the complaints. Tr. 102-03,
148-49, 189, 198, 260-61, 438-40, 537-42. Nor did she consider the testimony of Bill Edminister
that he raised Turner’s concern about thin electrically-rated gloves to National Cement
management at a safety meeting, and the concern was laughed off. Tr. 148. The significance of
this testimony as to management’s knowledge of Turner’s safety complaints is that McMichael
attended the monthly safety committee meetings. Tr. 304. The safety committee minutes, ALJ
Ex. 1, indicate that McMichael was at all but one of the meetings in the first part of 2006, that
Gerald Guiot, who McMichael described as his “boss,” with whom he consulted before
terminating Turner, Tr. 261, 266, was at the safety meeting which McMichael missed, and that
Edminister was at a number of the safety meetings.

8

We recognize that the evidence of National Cement’s motivation is relevant to both
Turner’s prima facie case and his ultimate burden of proving discrimination, which is
intrinsically tied to his pretext claim. Therefore, where relevant, we address the evidence of
motivation in both contexts in this portion of the decision.
33 FMSHRC 1067

Although the judge credited McMichael’s testimony that he had no knowledge of Turner’s
safety complaints, based on the principles articulated by the Commission in Metric, a fact finder
could still conclude that Wetzel’s and Russell’s knowledge should be imputed to McMichael. In
Metric, the project superintendent terminated certain miners after being told by the night
superintendent that these miners were refusing to perform work. However, the night
superintendent had not communicated the protected safety reason behind the miners’ refusal. 6
FMSHRC at 226, 228. The Commission rejected the operator’s defense that the project
superintendent himself did not know of the miners’ protected activity and held that “the fact that
[the night superintendent] did not communicate the miners’ safety concerns to [the project
superintendent] cannot serve to insulate Metric from liability for this unlawful discharge.” Id. at
230 n.4. See also Boston Mutual Life Ins. Co. v. NLRB, 692 F.2d 169, 171 (1st Cir. 1982)
(declining to “launder” regional sales manager’s knowledge and animus through a neutral superior
where superior had no knowledge of employee’s protected activity, but “acted in direct response”
to regional sales manager’s recommendation to dismiss employee); Grand Rapids Die Casting
Corp. v. NLRB, 831 F.2d 112, 117-18 (6th Cir. 1987) (imputing plant manager’s knowledge of,
and animus against, employee’s protected activity based on his “involve[ment]” in decision to
terminate employee by recommending employee’s termination to company’s industrial relations
manager, who had no knowledge of employee’s protected activity and relied on plant manager’s
recommendation) (internal quotations and citations omitted). Here, if Wetzel’s and Russell’s
recommendations to terminate Turner were at least partially a result of retaliatory animus and if
those recommendations influenced McMichael’s decision to terminate Turner, then Wetzel’s and
Russell’s knowledge and retaliatory animus may be attributed to the decision maker.
For purposes of the prima facie case, there is considerable evidence in the record to permit
the conclusion that Wetzel’s and Russell’s recommendations influenced McMichael’s decision.
On June 16, McMichael consulted Wetzel and Russell just prior to making his decision to
suspend Turner pending discharge. Tr. 260. McMichael testified that he asked Wetzel and
Russell about Turner’s job performance and whether they thought termination was appropriate.
Tr. 260-62, 537-42. Wetzel testified that he and Russell recommended that Turner be terminated.
Tr. 539-41. McMichael also testified that he reviewed Turner’s personnel file before deciding to
terminate Turner. Tr. 261. However, Turner’s file is devoid of any past instances of significant
discipline or poor performance, the other basis provided for his termination. Ex. ALJ-1. It is
reasonable to infer that Wetzel’s and Russell’s recommendations influenced McMichael’s
decision to terminate Turner. Therefore, a fact finder could find the requisite grounds to impute
Wetzel’s and Russell’s knowledge to McMichael. See Garcia, 24 FMSHRC at 358-60 (Jordan,
concurring) (imputing the knowledge and animus of a supervisor to the operator where sufficient
circumstantial evidence was presented to support an inference that the supervisor influenced the
operator’s decision not to employ the discriminatee).
As to the ultimate question of discriminatory motive, on remand, the judge must address
whether McMichael’s decision to terminate Turner was influenced by the recommendation of
Wetzel and Russell. If so, Wetzel’s and Russell’s knowledge of Turner’s protected activities
should be imputed to McMichael.

33 FMSHRC 1068

2.

Hostility or Animus

If the recommendation to terminate Turner made by Wetzel and Russell, who knew about
Turner’s protected activity, was the result of retaliatory animus for Turner’s safety complaints,
McMichael’s ultimate decision to terminate Turner would likewise be tainted by the retaliatory
animus. See Metric, 6 FMSHRC at 230 n.4. This is the case despite the judge’s finding that
McMichael had no personal knowledge of Turner’s protected activity.
The judge failed to address any evidence of possible animus by the operator for Turner’s
safety complaints. In particular, she did not address whether such hostility on the part of Wetzel
and Russell played any role in Turner’s termination. Turner introduced evidence which could
give rise to a finding of animus on the part of the operator. He contends that the operator was not
responsive to his safety concerns for electrically-rated tactile gloves, driving lights on the manlift,
safer means of repairing the Pre-Calciner burners and the mislabeled and unlocked power source
for the roller mill which led to Turner’s accidental powering of the machine. Tr. 37-38, 43-52,
189, 201-02, 228-29, 352-53, 361-63, 374-76, 438-41, 560-61; T. Br. at 15, 17; T. Reply Br. at 3;
Ex. C-2.
Turner testified that Logsdon, National Cement’s safety manager, did not share the results
of his research on the safety-rated tactile gloves with Turner until he asked Logsdon about them
again following his suspension meeting. Tr. 34-35. Indeed, Bill Edminister testified that when he
raised Turner’s concern about thin electrically-rated gloves to National Cement management at a
union safety meeting, “the response I got was just kind of a chuckle and comments that had
nothing to do with the request for it.” Tr. 148.
Russell and Wetzel acknowledged Turner’s safety concerns about the manlift, but told him
to use a plug-in lamp in the basket and to pre-position the manlift during the day. Tr. 189, 438.
Even after Turner continued to complain about the visibility at night, Wetzel testified that he did
not further address the matter with Turner. Tr. 453-54, 457-60.
With regard to the Pre-Calciner burners, Thomas Hastings testified that he was acting as
lead man for the crew, filling in for the shift supervisor, and called in Turner as the electrician to
help repair the start-up problem. Tr. 349-51, 354-55. Hastings stated that Turner had angered
management by what he had said over the radio at the time of the incident. Tr. 349.
At the hearing, Wetzel offered significant opinion testimony about Turner. He generally
testified that Turner was a difficult employee and that he did not listen. Wetzel also provided
hearsay testimony that other miners had stated that he was hard to work with. Tr. 460-61, 488.
While the judge credited Wetzel’s testimony regarding Turner’s character and job performance,
she failed to address whether Wetzel’s characterization of Turner as “difficult” may have, at least
in part, represented animus for his safety complaints. 31 FMSHRC at 1185-86. For example,
Wetzel acknowledged that it was his responsibility to investigate the needs of National Cement
employees for personal protective equipment. Tr. 438. He stated that he did not, however,
investigate the possibility that electricians needed tactile electrically-rated gloves when Turner
33 FMSHRC 1069

raised this issue. Id. Wetzel explained, in an answer which suggests sarcasm, “I remember you
mentioning it, but you’re not a lineman.” Id.
Thus, in addition to the consideration of knowledge, for purposes of deciding the ultimate
issue of motivation, the judge must address on remand whether the recommendation to terminate
Turner by Wetzel and/or Russell was influenced by hostility or animus engendered by Turner’s
safety complaints.9
3.

Coincidence in Time

In her decision, the judge noted that “Turner raised safety concerns in the months and days
preceding his termination,” but she failed to acknowledge it as an indicator of possible
motivation. 31 FMSHRC at 1183. The record indicates that Turner made a string of complaints
in the months preceding his termination. Specifically, Turner complained to his supervisors about
safety-related matters in January, April, and May 2006. Finally, on June 12, 2006 – just four days
before his suspension pending discharge – Turner complained about the problem with the PreCalciner burners and the need for driving lights on the manlift. Ex. C-9.
The Commission has noted that it “applies no hard and fast criteria in determining
coincidence in time between protected activity and subsequent adverse action when assessing an
illegal motive. Surrounding factors and circumstances may influence the effect to be given to
such coincidence in time.” Hicks v. Cobra Mining, Inc., 13 FMSHRC 523, 531 (Apr. 1991). In
Chacon, for example, complaints ranging from four days to one and one-half months before the
adverse action were deemed sufficiently coincidental in time to indicate illegal motive.
3 FMSHRC at 2511. See also Donovan v. Stafford Constr. Co., 732 F.2d 954, 960 (D.C. Cir.
1984) (noting that two weeks between the alleged protected activity and the miner’s dismissal is
“itself evidence of an illicit motive”); Sec’y of Labor on behalf of McGill v. U.S. Steel Mining Co.,

9

Our colleagues suggest that we “rely almost exclusively on the operator’s lack of
responsiveness to Turner’s safety complaints to suggest animus or hostility towards his protected
activity.” Slip op. at 25. However, hostility or animus may clearly be demonstrated by indirect
evidence. Chacon, 3 FMSHRC at 2510; see Sec’y of Labor on behalf of Price v. Jim Walter
Res., Inc., 14 FMSHRC 1549, 1555 (Sept. 1992) (rejecting operator’s argument that
discriminatory intent must be proven by direct evidence). Additionally, we disagree with our
colleagues’ characterization of the evidence. In addition to being dismissive, Turner’s
supervisor, Wetzel, who knew about Turner’s protected activity, clearly expressed his dislike of
Turner and his view that Turner was “difficult.” 31 FMSHRC at 1185-86; Tr. 460-61. Such
opinion testimony, taken in the context of Turner’s repeated safety complaints and the operator’s
lack of response to such complaints, may be suggestive of hostility or animus. See Sec’y of
Labor on behalf of Williamson v. CAM Mining, LLC, 31 FMSHRC 1085, 1089-90 (Oct. 2009)
(acknowledging inferential evidence of animus that miner’s supervisor “‘dogged him,’ swore at
him, and assigned him more difficult and onerous tasks”). Moreover, animus is but one of
several indicia of discriminatory intent.
33 FMSHRC 1070

23 FMSHRC 981, 986-87 (Sept. 2001) (concluding that the judge correctly inferred
discriminatory motive from adverse action taken hours after miner’s safety complaint).
Considering the evidence as a whole, a judge could reasonably conclude that there is a
coincidence in time between Turner’s safety complaints and his termination. Given Turner’s
history of safety complaints, his most recent complaints in the days immediately preceding his
termination could have been the last straw for the operator. Thus, the close proximity in time
between Turner’s latest complaints and his termination could support an inference that National
Cement may have been improperly motivated by Turner’s complaints when it fired him, and the
judge therefore should have considered the proximity in time and whether it indicated any
improper motivation.
4.

Disparate Treatment

The evidence as to whether Turner was disparately treated by National Cement is
equivocal. Regarding outside employment, the only evidence Turner presented on other
employees who engaged in secondary jobs and were permitted to work those jobs during National
Cement shifts was his own hearsay testimony and the hearsay testimony of another miner. Tr.
159-61, 178-81, 441-46.10
National Cement presented evidence that another employee was terminated for his outside
employment during a time that he was excused from work at National Cement on medical leave.
Tr. 327-30; Ex. ALJ-1 (Kowalski personnel file). However, unlike Turner’s incident, the reason
provided by the operator for that employee’s termination was a violation of National Cement’s
written attendance policy. Ex. ALJ-1 (Kowalski personnel file); C-21. Specifically, National
Cement terminated that employee because he was “absent for three (3) consecutive working days
without notifying the Company and providing a satisfactory reason for such absence.” Ex. ALJ-1
(Kowalski personnel file). By contrast, Turner was terminated for working at ICS on a day when
he was no longer scheduled to work for National Cement because of a medical appointment, and
at a time which was not part of his National Cement work shift. Thus, if anything, McMichael’s
testimony that Kowolski was the only other employee terminated for working another job, Tr.
330, would suggest a conclusion that Turner did, in fact, receive disparate treatment.
Based on our analysis of the foregoing factors, we conclude that the record presents
sufficient circumstantial evidence of motivation on the part of National Cement to establish a
prima facie case of discrimination. Because the judge analyzed the operator’s defense under the
assumption of a prima facie case and because we conclude that there is sufficient evidence to

10

While Turner does allege that he was disparately treated as compared to other National
Cement employees when he was disciplined for the roller mill/power shut down incident (T. Br.
at 5-6), the evidence does not seem to support Turner’s allegations. The only evidence in the
record regarding other employees causing a plant shutdown was Russell’s and Wetzel’s
testimony that these employees, like Turner, received a written warning. Tr. 195-96, 507-08.
33 FMSHRC 1071

support a conclusion that Turner established a prima facie case of discrimination, we do not think
that it is necessary to remand to the judge to address the prima facie case. However, as explained
below, whether National Cement’s purported reasons for terminating Turner were pretextual is
intrinsically tied to the ultimate question of National Cement’s motivation for terminating Turner.
Thus, on remand, in the context of considering the issue of pretext, the judge must consider and
address the circumstantial evidence of National Cement’s motivation and make necessary findings
on the ultimate issue of discrimination.
B.

Operator’s Affirmative Defense

The operator contends that Turner was terminated for working at ICS on a day that he was
scheduled to work for National Cement, but did not, and for his poor performance. NC Br. at 17
19. Both below and on appeal, in response to the operator’s defense, Turner argues that the
decision to terminate him was a pretext. T. Post-Hearing Br. at 10; PDR; T. Br. at 6, 14-18.
Given the considerable evidence supporting the argument, we conclude that the judge should have
addressed this argument.11
The Commission has explained that a defense should not be “examined superficially or be
approved automatically once offered.” Haro v. Magma Copper Co., 4 FMSHRC 1935, 1938
(Nov. 1982). In reviewing defenses, the judge must “determine whether they are credible and, if
so, whether they would have motivated the particular operator as claimed.” Bradley, 4 FMSHRC
at 993. The Commission has held that “pretext may be found . . . where the asserted justification
is weak, implausible, or out of line with the operator’s normal business practices.” Sec’y of Labor
on behalf of Price v. Jim Walter Res., Inc., 12 FMSHRC 1521, 1534 (Aug. 1990) (citing Haro, 4
FMSHRC at 1937-38).

11

We disagree with our colleagues’ suggestion that “the fact that the judge failed to
discuss some of the evidence does not mean that she did not analyze it.” Slip op. at 30.
Commission Procedural Rule 69(a) requires that a Commission judge’s decision “shall include
all findings of fact and conclusions of law, and the reasons or bases for them, on all the material
issues of fact, law or discretion presented by the record.” 29 C.F.R. § 2700.69(a). As the D.C.
Circuit has emphasized, “[p]erhaps the most essential purpose served by the requirement of an
articulated decision is the facilitation of judicial review.” Harborlite Corp. v. ICC, 613 F.2d
1088, 1092 (D.C. Cir. 1979). Without findings of fact and some justification for the conclusions
reached by a judge, the Commission cannot perform our review function effectively. Anaconda
Co., 3 FMSHRC 299, 299-300 (Feb. 1981). The Commission thus has held that a judge must
analyze and weigh all probative record evidence, make appropriate findings, and explain the
reasons for his or her decision. Mid-Continent Res., Inc., 16 FMSHRC 1218, 1222 (June 1994);
IO Coal Co., Inc., 31 FMSHRC 1346, 1351 (Dec. 2009). The evidence pertaining to the reasons
for Turner’s discharge is pertinent to his argument of pretext and thus probative of the ultimate
issue of discrimination.
33 FMSHRC 1072

In the context of other federal discrimination statutes, courts have analyzed the issue of
pretext as follows: “A plaintiff may establish that an employer’s explanation is not credible by
demonstrating ‘either (1) that the proffered reasons had no basis in fact, (2) that the proffered
reasons did not actually motivate his discharge, or (3) that they were insufficient to motivate
discharge.’” Madden v. Chattanooga City Wide Service Dep’t., 549 F.3d 666, 675 (6th Cir. 2008)
(citing Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th Cir. 1994)),
overruled on other grounds, Geiger v. Tower Automotive, 579 F.3d 614 (6th Cir. 2009) (emphasis
in original)); McNabola v. Chicago Transit Auth., 10 F.3d 501, 513 (7th Cir. 1993). As explained
in Manzer, 29 F.3d at 1084, the first type of showing consists of evidence that the proffered bases
for the plaintiff’s discharge never happened, i.e., that they are “factually false.” The third type of
showing ordinarily consists of evidence that other employees, particularly employees not in the
protected class, were not fired even though they engaged in substantially similar conduct to that
which the employer contends motivated its discharge of the plaintiff. These two types of rebuttal
are direct attacks on the credibility of the employer’s proffered motivation for firing the plaintiff.
The second type of showing is of a different ilk. There the plaintiff admits the factual basis
underlying the employer’s proffered explanation and further admits that such conduct could
motivate dismissal. However, the plaintiff attacks the credibility of the proffered explanation
indirectly, by showing circumstances which tend to prove that an illegal motivation was more
likely than that offered by the employer. In other words, the plaintiff argues that the sheer weight
of the circumstantial evidence of discrimination makes it “more likely than not” that the
employer’s explanation is a pretext.
The record demonstrates that, at trial, Turner presented a significant amount of
circumstantial evidence that the operator’s purported reasons and explanations for firing him were
inconsistent or otherwise suspect.12 The record demonstrates that National Cement has a no-fault
attendance policy and permitted its employees to work second jobs. Tr. 246-47, 271. The record
also indicates that National Cement informed Turner not to allow his secondary job to interfere
with his scheduled shifts for National Cement. Tr. 246-47, 258-59. It is undisputed that Turner
followed the written procedure for requesting time off, and the operator does not dispute that he
had permission to take the day off on June 14 to attend a doctor’s appointment. Tr. 110, 121, 283
84, 335, 447-48, 531; Exs. R-1, R-7, C-11. The record also indicates that it was common for
employees to miss an entire shift for a doctor’s appointment. Tr. 171-73, 333.

12

The dissent states, without citing any legal authority, that with regard to National
Cement’s business justifications for Turner’s discharge, “even if neither reason standing alone
may have justified the operator’s actions, both taken together could have.” We do not see how
relying on two unsupported reasons offered by National Cement could justify its decision to fire
Turner any better than reliance on one unsupported reason. As explained, infra, the dissent
ignores the strong evidence in the record undermining each of the operator’s purported reasons
for Turner’s discharge. See Laxton v. Gap, Inc., 333 F.3d 572, 579-84 (5th Cir. 2003) (in
overturning district court’s grant of employer’s motion for judgment as matter of law, circuit
court considered evidence challenging employer’s proffered reasons for firing employee as false
or unworthy of credence and thus indicative of pretext).
33 FMSHRC 1073

Only after the fact, when National Cement learned that Turner worked at ICS prior to his
scheduled shift at National Cement, did Turner’s supervisor intimate that he did not have
permission to take the day off. McMichael and Wetzel testified that they were annoyed that
Turner was absent from work, but worked at ICS on the plant grounds prior to the time his shift at
National Cement would have started. They also speculated that he could have scheduled his
doctor’s appointment during the day before his shift at National Cement, and stated that he should
not have allowed his personal business to interfere with his scheduled shift at National Cement.
Tr. 252, 269-70, 276-77, 284, 483-85. However, Turner testified that he scheduled the first
available appointment with his doctor on June 14 and explained that he needed to see the doctor
on that day. Tr. 114-16, 284-85. His testimony was uncontradicted.
Although one of the reasons given for his termination was “working for another firm on a
day you were absent from NCC,” the incident leading to Turner’s termination on June 14 is
significantly different from the prior incident for which Turner was reprimanded. On October 1,
2003, Turner was disciplined with a “written verbal” warning for “being absent from work
without the consent of the [c]ompany.” Ex. R-6. In that prior incident, Turner did not report to
work per his schedule on September 24, 2003, and was seen on National Cement property that day
working for his secondary employer. Id. Turner admits that on that occasion, he had made the
mistake of working for ICS during his scheduled National Cement shift. PDR; T. Br. at 10. In
the warning letter he received from the operator for the September 2003 incident, he was
reprimanded for “absenting [him]self from work without consent of the Company.” Ex. R-6.
Turner argues that the incident on June 14, 2006 does not involve the same type of infraction and
therefore, it was not appropriate for National Cement to take the extreme and harsh measure of
terminating him. PDR; T. Br. at 10.
We find Turner’s argument persuasive. It is undisputed that on June 14, Turner worked at
his second job prior to his scheduled shift at National Cement. The record shows that Turner was
at the ICS facility from 10:30 a.m. to 1:30 p.m. to show the facility to his daughter, who was
visiting, and also to perform some work. 31 FMSHRC at 1180 & n.4; Tr. 33-34, 68-70, 112-14.
His shift at National Cement would not have started until 2:00 p.m. National Cement does not
dispute that the incident in September 2003 involved Turner working for ICS during his National
Cement shift. In addition, the prior incident occurred nearly three years earlier. While it is true
that when Turner was disciplined for his prior incident in September 2003, he was warned that if
such an incident occurred in the future, it “would result in more severe disciplinary action,
including possible discharge,” we find the decision to terminate Turner after the June 14, 2006
incident to be suspect given the very different factual circumstances. In short, the judge should
have questioned whether Turner’s work for a short time at a second job prior to a shift for which
he properly requested medical leave was a sufficient basis for firing him. See Madden, 549 F.3d
at 675.

33 FMSHRC 1074

Furthermore, the operator apparently did not follow its written attendance policy pursuant
to the effective labor agreement.13 Ex. C-21. The operator’s written attendance policy explicitly
permits an employee to take time off for a doctor’s appointment and does not provide any
qualifications or limitations. If National Cement considered Turner’s absence on June 14 to be
unexcused, then it should have explained the basis for its disapproval and noted the incident as an
absence occurrence in his personnel file. Because Turner’s contention that he had a good
attendance record is unrebutted, it seems very unlikely that this occurrence alone would have been
enough to warrant terminating Turner. Tr. 119-20, 332.
Additionally, National Cement’s reliance on “poor performance” as a basis for terminating
Turner is suggestive of pretext. There was no mention of poor performance at the June 16, 2006
meeting where Turner’s suspension pending discharge was discussed. Tr. 544-46. When Russell
was asked why Turner was terminated, he did not mention poor performance but said, “Mr.
Turner was terminated because he was working a secondary job, taking off from his primary job
to do so.” Tr. 208. Similarly, when Wetzel was interviewed by MSHA on August 3, 2006, and
asked why Turner was terminated, he did not mention poor performance, but said:
Sometime ago he was counseled for absenting himself from work because
he was working for a contractor. Just recently he was absent again and
working for the contractor. He was terminated for that.
Ex. C-14. And when National Cement filed its Opposition to Turner’s Petition for Discretionary
Review with the Commission, it began by stating: “This case concerns the Company’s decision to
terminate Turner’s employment because he allowed his secondary job to interfere with his primary
job with National Cement.” Opposition at 1. The absence of any mention of poor performance in
these statements suggests that it was not a serious factor in the decision to terminate Turner.
Although McMichael’s June 23, 2006 termination letter did mention “less than acceptable
performance” as another reason for Turner’s discharge, the only example cited was the roller mill
incident, where Turner mistakenly energized the wrong equipment thus knocking out power to the
plant, as documented in a June 5, 2006 letter. Ex. R-2; C-5. At trial, McMichael mentioned job
performance as a factor, but he did not give any instances of less than acceptable job performance.
Wetzel testified that Turner was not an adequate electrician, but only provided examples of the
roller mill incident, an unauthorized repair to the air conditioning system a year before the
termination, and an incident so minor that it was not documented in Turner’s personnel file, where
he did not satisfactorily wire circuits on top of the silo. Tr. 485-88, 558-60. The only

13

In other instances, National Cement has followed its written policy on attendance,
which provides for progressive steps of discipline for unexcused absences. Ex. C-21. The other
National Cement employee who was terminated for working a second job was terminated under
this attendance policy. Specifically, the miner was fired for being “absent for three (3)
consecutive working days without notifying the Company and providing a satisfactory reason for
such absence.” Ex. ALJ-1 (Kowalski personnel file).
33 FMSHRC 1075

documentation of Turner’s allegedly poor performance contained in his personnel file was the
roller mill incident referenced in the June 5, 2006 letter and a verbal reprimand issued on July 21,
2004 for the unauthorized repair to the air conditioning system.14 ALJ Ex. 1. We also note that in
a letter dated August 4, 2006, Laurie Conroy, an Administrative Clerk for National Cement,
informed the California Employment Development Department that Mr. Turner’s “less than
acceptable performance” was limited to the June 5, 2006 letter referencing the roller mill incident.
Id.
Although the judge addressed the operator’s evidence of the roller mill incident, crediting
Russell’s testimony that it was the proper subject of reprimand (31 FMSHRC at 1184-85), she
failed to acknowledge that the inadvertent shutdown of power to the plant that occurred during
Turner’s mistaken racking in of the roller mill was not an uncommon occurrence. Tr. 26, 143-44,
507-08. Importantly, both McMichael and Wetzel testified that it was not a firing offense and that
Turner would not have been terminated for his performance alone. Tr. 262, 273-74, 462-63.
Moreover, the judge failed to address contrary testimony that Turner had a good attendance record
and was considered a reliable and dependable employee by other employees. Tr. 94, 119-20, 158
59, 571. Nor did the judge consider the testimony of Russell that Turner was an average
electrician. Tr. 210. Indeed, at the time Turner was terminated, he was a level four electrician,
the highest level for that job classification. Tr. 514-15. Finally, aside from the incidents testified
to by McMichael and Wetzel, Turner’s employment record has scant documentation that he was
ever counseled or disciplined for poor performance. Ex. ALJ-1 (Turner’s personnel file).15
In addressing this portion of the case concerning the operator’s defense, the dissent
erroneously relies on “substantial evidence” to support the judge’s determination that Turner was
discharged for legitimate, business-related reasons. Slip op. at 29. The dissent’s analysis is
flawed because it ignores the fact that the judge failed to consider Turner’s surrebuttal argument
of pretext and the related evidence. The judge’s error in not considering the issue of pretext
involves a legal question rather than a factual question controlled by the principle of substantial
evidence. In this context, the judge should have considered the countervailing evidence that the
14

Contrary to Wetzel’s testimony, this occurred nearly two years prior to Turner’s
termination.
15

Our colleagues heavily rely on Wetzel’s opinion testimony to substantiate National
Cement’s claim that Turner was a poor performer warranting discharge. Slip op. at 28-29 & n.4.
However, the dissent fails to acknowledge that Turner’s personnel file was almost devoid of past
instances of discipline for poor performance. Under similar employment discrimination statutes,
courts have questioned an employer’s purported claims of poor performance, where such claims
are undocumented and unsubstantiated by the record. See, e.g., Birch v. Cuyahoga County
Probate Court, 392 F.3d 151, 167-68 (6th Cir. 2004) (in considering whether proffered
nondiscriminatory justifications for plaintiff’s lower rate of pay were pretext for sex
discrimination, court concluded that “a reasonable jury could disbelieve [supervisor’s] statement
about [plaintiff’s] poor performance,” which was not documented in plaintiff’s personnel file and
largely unsubstantiated).
33 FMSHRC 1076

reasons given for Turner’s discharge were pretextual, for instance, that Turner was in compliance
with the operator’s policy for requesting time off, that he did not work his ICS job during his
scheduled National Cement shift, and that National Cement did not follow its written attendance
policy pursuant to the labor agreement.16
Because the judge did not consider the pertinent evidence in light of a pretext argument,
we vacate the judge’s finding of no discrimination and remand the case to the judge for further
consideration. See Pero, 22 FMSHRC at 1365-68, 1372 (remanding to the judge to consider
evidence related to complainant’s argument of pretext).
C.

The Judge’s Discovery and Evidentiary Rulings

Turner alleges that the judge erred in excluding certain evidence that he sought to admit
into the record and complains that the operator failed to comply with his discovery requests. PDR
at 2; T. Br. at 26-28; T. Reply Br. at 23-25. Turner also takes issue with the judge’s exclusion of
evidence he sought to admit post-trial. PDR at 2; T. Br. at 27; T. Reply Br. at 25. The operator
contends that the judge did not abuse her discretion in making her evidentiary and discovery
rulings. NC Br. at 25-29.
When reviewing a judge’s pre-trial rulings, the Commission has set forth its standard of
review as follows:
[T]he Commission cannot merely substitute its judgment for that of
the administrative law judge . . . . The Commission is required,
however, to determine whether the judge correctly interpreted the
law or abused his discretion and whether substantial evidence
supports his factual findings.
Asarco, Inc., 12 FMSHRC 2548, 2555 (Dec. 1990) (“Asarco I”) (reviewing a judge’s discovery
rulings) (citations omitted).
An abuse of discretion standard is consistent with the discretion accorded judges in
matters related to the conduct of a trial. See Medusa Cement Co., 20 FMSHRC 144, 147 (Feb.
1998) (applying the abuse of discretion standard when reviewing a judge’s pre-trial order); Buck
Creek Coal, Inc., 17 FMSHRC 500, 503 (Apr. 1995) (same). With regard to the judge’s role at
trial, the Commission has stated, “a judge is an active participant in the adjudicatory process and

16

Because we are remanding the case to the judge, we do not address the sufficiency of
this counter-evidence or the weight of the evidence as a whole as to the operator’s justification
for dismissing Turner. It is appropriate for the judge in the first instance to address the relevant
evidence pertaining to pretext and to weigh such evidence with her findings and conclusions
regarding the operator’s defense.
33 FMSHRC 1077

has a duty to conduct proceedings in an orderly manner so as to elicit the truth and obtain a just
result.” Sec’y on behalf of Clarke v. T.P. Mining, Inc., 7 FMSHRC 989, 993 (July 1985).
One of the evidentiary rulings involved certain photographs that Turner sought to include
in the record. Turner took photographs on National Cement property without the operator’s
approval. Before the hearing, the operator submitted a motion in limine to exclude such evidence.
Resp’t Mot. in Limine to Exclude Petitioner’s Evidence dated July 16, 2007. The judge granted
the operator’s motion and ordered that the inappropriately obtained photographs could not be
admitted. Order dated Oct. 11, 2007. The judge did, however, permit Turner to arrange with the
operator an opportunity to visit the National Cement property and obtain the photographs he
sought. Tr. 130-32. At trial, Turner again attempted to admit the photographs. Tr. 130-31.
Turner failed to follow the judge’s instructions and did not make arrangements with the operator
to re-take the photographs. Tr. 135-37. We believe that the judge did not abuse her discretion in
excluding such evidence. In any event, Turner does not articulate a basis for admitting such
evidence given the judge’s ruling in his favor on the question of his protected activity.
The record below contains extensive submissions from Turner regarding his discovery
requests, including numerous requests to the judge to compel discovery and for sanctions against
National Cement. Turner does not raise any specific assignment of error, but generally objects to
the operator’s uncooperative responses to his discovery requests. In reviewing a judge’s discovery
rulings, the Commission “cannot merely substitute its judgment for that of the administrative law
judge.” Asarco I, 12 FMSHRC at 2555. Rather, the Commission is required “to determine
whether the judge correctly interpreted the law or abused his discretion and whether substantial
evidence supports his factual findings.” Id.
We conclude that the judge did not abuse her discretion. The record indicates that
National Cement substantially complied with Turner’s requests. In several instances, it appears
that Turner lost documents that National Cement’s counsel sent to him. NC Br. at 27-28 (citing to
letters in the case file from National Cement). It also appears that the judge conducted numerous
conference calls to address Turner’s discovery concerns. See Turner’s FOIA requests for
transcripts of conference calls dated Oct. 20, 22 and 29, 2009. Finally, Turner fails to establish
any prejudice he has suffered as a result of these purported adverse rulings.17
After the hearing, Turner attempted to submit additional documentary evidence. T. Post
Hearing Report at 3. The judge ruled on the matter, excluding the evidence. Order dated May 5,
2008. At trial, the judge did leave the record open to admit limited evidence, specifically, minutes
of the safety committee meetings and Kowalski’s personnel file. Tr. 575-76. After submitting his

17

In reviewing the record below, it appears that many of Turner’s complaints about
discovery matters center on issues that are irrelevant to his discrimination case, such as training
and work logs. To the extent that any of this evidence relates to his safety complaints, because
the judge ruled in his favor finding that he engaged in protected activity, we conclude that any
possible error in failing to order the disclosure of such evidence is harmless.
33 FMSHRC 1078

post-hearing brief, Turner attempted to admit two packages of documents he labeled “Joe’s
Records” and “Miner’s Safety Committee notes.”
The Commission has held that rulings on motions to reopen the record are “committed to
the sound discretion of the trial judge.” Kerr-McGee Coal Corp., 15 FMSHRC 352, 357 (Mar.
1993). The Commission has further noted that the factors to be considered on such motions are
(1) the timeliness of the motion; (2) the character of the additional evidence; and (3) the effect of
granting the motion. Id. It does not appear that any of the evidence Turner sought to admit post
trial was newly discovered evidence. National Cement alleges that granting Turner’s motion
would prejudice the operator given the lack of opportunity to depose or examine witnesses
concerning the content of the documents. NC Br. at 28-29. It appears that the documents Turner
attempted to submit post-hearing were the very documents that the judge ordered the operator to
submit at the conclusion of the hearing. Because Turner has not shown any prejudice, we
conclude that the judge did not err in excluding such evidence.
Accordingly, we affirm the judge’s rulings on the evidentiary and discovery matters.

33 FMSHRC 1079

III.
Conclusion
For the foregoing reasons, we vacate the judge’s determination that National Cement did
not discriminate against Turner in violation of section 105(c)(1) of the Mine Act and remand this
case to the judge for further consideration consistent with this decision. We also affirm the
judge’s rulings on the specific discovery and evidentiary issues raised by Turner.

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

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

33 FMSHRC 1080

Chairman Jordan and Commissioner Duffy, dissenting:
I.

Introduction

Jayson Turner failed to establish that his termination was motivated by his protected
activity in making safety complaints to the operator. Moreover, substantial evidence fully
supports the judge’s determination that Turner would have been fired irrespective of his protected
activity, due to his poor job performance and his outside employment in contravention of National
Cement rules. Consequently, we would affirm the judge’s decision dismissing Turner’s
discrimination claim under section 105(c) of the Mine Act.1
A complaint alleging discrimination under the Mine Act establishes a prima facie case of
prohibited discrimination by presenting evidence sufficient to support a conclusion that the
individual engaged in protected activity and that the adverse action complained of was motivated
in any part by that activity. See Driessen v. Nev. Goldfields, Inc., 20 FMSHRC 324, 328 (Apr.
1998); Sec’y on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980),
rev’d on other grounds, 633 F.2d 1211 (3d Cir. 1981); Sec’y on behalf of Robinette v. United
Castle Coal Co., 3 FMSHRC 805, 817-18 (Apr. 1981). The operator may rebut the prima facie
case by showing either that no protected activity occurred or that the adverse action was in no part
motivated by protected activity. See Robinette, 3 FMSHRC at 818 n.20. If the operator cannot
rebut the prima facie case in this manner, it nevertheless may defend affirmatively by proving that
it also was motivated by the miner’s unprotected activity and would have taken the adverse action
for the unprotected activity alone. See id. at 817-18; Pasula, 2 FMSHRC at 2799-800; see also
Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642-43 (4th Cir. 1987) (applying PasulaRobinette test).
II.

Turner failed to establish a prima facie case that his termination was motivated by his
protected activity

The judge determined that Turner “failed to prove that his protected activity served as the
basis for his termination by National Cement.” 31 FMSHRC 1179, 1180 (Sept. 2009) (ALJ).
Although she did not explicitly state that he had failed to establish a prima facie case, it appears
that she determined that, in light of National Cement’s rebuttal evidence, Turner failed to
establish that his adverse action was in any part motivated by his safety complaints. See 31
FMSHRC at 1183.

1

We agree with the majority that the judge’s discovery and evidentiary rulings appealed
by Turner did not constitute an abuse of discretion.
33 FMSHRC 1081

Our colleagues in the majority reverse the judge’s determination, and find that Turner did
in fact establish a prima facie case that his termination was motivated by his protected activity in
making safety complaints to National Cement. Slip op. at 14. We cannot agree.2
The majority’s primary complaint is that the judge failed to consider certain circumstantial
evidence that it contends shows that National Cement’s termination of Turner was motivated at
least in some part by his safety complaints. Slip op. at 6. In Secretary on behalf of Chacon v.
Phelps Dodge Corp., the Commission acknowledged that “[d]irect evidence of motivation is
rarely encountered; more typically, the only available evidence is indirect.” 3 FMSHRC 2508,
2510 (Nov. 1981), rev’d on other grounds, 709 F.2d 86 (D.C. Cir. 1983). Consequently, the
judge’s treatment of the circumstantial evidence in this case merits careful review by the
Commission.
However, to rectify the errors it believes the judge committed with regard to this evidence,
the majority gives the judge’s decision more than careful review; it considers the evidence, and
proceeds to draw a number of inferences that support the conclusion that National Cement was
unlawfully motivated in this instance. See, e.g., slip op. at 10, 12-14. In so doing, the majority
strays well beyond the confines of the Commission’s review function.
First of all, as the Commission stated in Harlan Cumberland Coal Co., 20 FMSHRC
1275, 1283 (Dec. 1998), “[i]t is for the judge in the first instance, not the Commission on review,
to make inferences and findings based on record evidence.” While a judge can be faulted for
failing to consider evidence, and the case returned so that he or she can do so and draw such
inferences as are reasonable, if the judge has considered the evidence but has not drawn certain
inferences, there are no grounds for remand, much less reversal, as long as the failure or refusal to
draw the inference is reasonable in the context of the overall record. See, e.g., Garden Creek
Pocohontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989).
This is consistent with the role of the Commission versus the role of its judges: the latter
find facts, while the former determines if substantial evidence supports those findings.3 That the
judge could have reasonably come to a different conclusion regarding the facts – that is, the judge
could have inferred from the evidence that Turner’s termination was motivated by his protected
activity – is not a basis for overturning the judge’s conclusion to the contrary. See Chacon, 709
2

We recognize that this burden of proof is lower than a complainant’s ultimate burden of
persuasion, which he or she must sustain as to the overarching question of whether section
105(c)(1) was violated. See EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir. 1997).
3

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., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938).
33 FMSHRC 1082

F.2d at 92 (even if Commission’s own view is supported by the record, it is bound to uphold the
judge’s findings to the contrary if those findings are supported by substantial evidence); Sec’y of
Labor on behalf of Wamsley v. Mutual Mining, Inc., 80 F.3d 110, 113 (4th Cir. 1996) (the
possibility of drawing two inconsistent conclusions from the evidence does not prevent the
finding of the trier of fact from being supported by substantial evidence).
Secondly, before the Commission on review can reach a conclusion regarding a contested
issue of fact, it must be satisfied that the evidence compels that conclusion, and only that
conclusion. See Walker Stone Co. v. Sec’y of Labor, 156 F.3d 1076, 1085 n.6 (10th Cir. 1998);
Donovan ex rel. Anderson v. Stafford Constr. Co., 732 F.2d 954, 961 (D.C. Cir. 1984). The
majority here does not even attempt to meet that standard; rather, it merely notes what a trier of
fact “could” conclude regarding the evidence of motivation and then proceeds to replace the trier
of fact (in this instance, the judge), and hold that a prima facie case has been established. See, e.g.
slip op. at 9, 10, 13.
What the judge could have concluded is not at issue; rather, the question is whether
substantial evidence supports the decision she reached regarding the evidence Turner submitted at
hearing. In Chacon, the Commission identified several indicia of discriminatory intent, including
(1) knowledge of the protected activity; (2) hostility towards protected activity; (3) coincidence in
time between the protected activity and the adverse action; and (4) disparate treatment of the
complainant. 3 FMSHRC at 2510. Reviewing the evidence in light of these factors, the judge’s
conclusion that Turner failed to establish motivation is well supported by the record.
First, Turner failed to demonstrate animus toward any of his protected activity. Our
colleagues, citing no supporting caselaw, rely almost exclusively on the operator’s lack of
responsiveness to Turner’s safety complaints to suggest animus or hostility towards this protected
activity. See slip op. at 11-12. However, even if the managers had completely failed to address
Turner’s safety concerns, such inaction does not rise to the level of hostility or animus towards
such complaints. There are a variety of reasons unrelated to animus towards safety complaints
that might lead to a supervisor’s failure to address concerns expressed by employees. Establishing
discriminatory motivation as part of a complainant’s prima facie case requires more than a lack of
responsiveness to a miner’s complaints.
In any event, the record demonstrates that some managers did in fact look into Turner’s
safety complaints, making suggestions on how to rectify safety problems. For instance, when
Turner asked Randy Logsdon, the National Cement safety manager, for safety gloves, Logsdon
responded that he had investigated the matter but could not find in his equipment catalogs the type
of thin, rubber latex glove that had the requisite electrical rating. Tr. 18-19, 105-106, 361-63. In
addition, Turner acknowledged that when he complained that there should be driving lights on the
manlift, Bill Russell suggested that he put a job light in the receptacle on the man basket. Tr. 49
50, 103. Julius Wetzel, Turner’s supervisor, testified that he suggested to Turner that he position
the manlift in the quarry area during daylight so that it did not need to be driven there at night. Tr.
453, 459-60.

33 FMSHRC 1083

Our colleagues also fault the judge for failing to address whether Wetzel’s characterization
of Turner as “difficult” may have in part represented hostility towards Turner’s safety complaints.
Slip op. at 12. We believe that Wetzel’s detailed and emphatic testimony regarding Turner’s poor
relationship with other employees and Turner’s substandard job performance clearly explained
why Wetzel considered him “difficult.” For instance, the judge cited to Wetzel’s testimony that
Turner “doesn’t listen. He’s very hard to communicate with and he takes a lot of things personal
that shouldn’t be personal. . . . [He] didn’t follow instructions
. . . . The few other people in the shop expressed the concern that they would not work with him.
They didn’t like working with him.” 31 FMSHRC at 1185, citing Tr. 460, 488. Wetzel also
agreed that at times it was hard for him to get Turner to listen to him, to follow his instructions or
to recognize his authority. Tr. 461.
Wetzel provided a clear rationale for his characterization of Turner. Asking the judge to
decide whether the recommendation to terminate Turner by Wetzel and Russell was also
influenced by hostility or animus engendered by Turner’s safety complaints appears to us to be
based on unfounded speculation.
Regarding the operator’s knowledge of Turner’s protected activity, Byron McMichael, the
plant manager who fired Turner, testified that he was not aware of Turner’s safety complaints, and
other managers corroborated this statement. 31 FMSHRC at 1183, citing Tr. 238, 272-73, 310.
See also Tr. 197-98, 311-12, 434-35, 468-69, 505-07. The judge credited this testimony. We note
that a judge’s credibility determinations are entitled to great weight and may not be overturned
lightly. Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1540-41 (Sept. 1992); Penn Allegh
Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981).
Despite acknowledging that the judge credited McMichael’s testimony that he did not
know about Turner’s safety complaints and that McMichael made his decision to terminate Turner
based solely on his non-protected conduct, slip op. at 9, our colleagues attempt to link Wetzel and
Russell’s knowledge of those complaints to McMichael’s decision. Id. at 9-10. They suggest that
“if Wetzel’s and Russell’s recommendations to terminate Turner were at least partially a result of
retaliatory animus and if those recommendations influenced McMichael’s decision to terminate
Turner, then Wetzel’s and Russell’s knowledge and retaliatory animus may be attributed to the
decision maker.” Id. at 10. However, as discussed above, we do not believe the record supports a
finding of animus on the part of Wetzel and Russell, and accordingly, see no need for a remand to
determine whether the termination decision was influenced by their recommendation.
Our colleagues also fault the judge for failing to consider, as possible proof of
McMichael’s knowledge of Turner’s safety activities, the testimony of Bill Edminister regarding a
discussion of Turner’s concern about electrically-rated gloves at a safety meeting that McMichael
allegedly attended. We see no need for the judge to have done so in light of McMichael’s
testimony that he remembered discussion at one of the meetings that Randy Logsdon was
investigating gloves for electricians but that he “didn’t know who prompted the question.” Tr.
310.

33 FMSHRC 1084

Regarding any possible coincidence in time between the protected activity and the adverse
action, the judge recognized that Turner voiced safety complaints in the months and days
preceding his termination. She thus was aware of record evidence that could have, pursuant to
Chacon, raised an inference of discriminatory motivation. However, we view her comment that
Turner “did not produce any evidence that these protected activities were in any way related to his
termination,” 31 FMSHRC at 1183, as implicitly rejecting the timing of the protected activity and
adverse action as an indicia of retaliatory motive. In any event, as will be discussed below, the
record reflects that the timing of his termination was a direct result of Turner’s outside
employment on June 14.
The final Chacon factor which a complainant may use as indirect proof of illegal
motivation is disparate treatment. The majority appears to agree that Turner failed to introduce
persuasive evidence on this point. Slip op. at 13. However, at the same time our colleagues reject
National Cement’s assertion that Turner was not disparately treated because they conclude that
National Cement’s evidence on this point involved an employee who was not similarly situated.
Id. at 13-14. They conclude that if Turner was the only other employee fired for working another
job, this suggests that he did receive disparate treatment. Id. at 14. We believe, however, that the
lack of affirmative evidence in the record establishing that other employees who worked
secondary jobs during National Cement shifts were not fired leads to the conclusion that Turner
was not disparately treated.
In sum, it cannot be said that the record compels the conclusion that Turner presented
sufficient evidence to meet his burden of establishing a prima facie case of discrimination. We
would be more inclined to remand this case to the judge if the record could provide the basis for
reasonable inferences of motivation that the judge should have considered. Because record
support for such inferences is lacking, we disagree with our colleagues’ conclusion, and would
affirm the judge’s finding.
III.

Substantial evidence supports the judge’s finding that the operator’s decision to fire Turner
was in no part motivated by his protected activity

Although the judge found that Turner failed to establish a prima facie case, she continued
her analysis and assumed, arguendo, that if he had done so, “the company offered credible
evidence, unrebutted by Turner, clearly establishing that he was discharged for legitimate,
business-related reasons, entirely unrelated to any protected activity, and that the company would
have taken the adverse action based solely on Turner’s conduct respecting his outside
employment.” 31 FMSHRC at 1183. Substantial evidence in the record also supports this
determination.
The record makes clear that National Cement viewed Turner’s outside employment at ICS
(his part-time employer) as interfering with his work at National Cement. As the judge noted,
Turner knew that his employer had placed limitations on his outside employment at ICS. Id. at
1183, citing Tr. 32-33, 245-47. Significantly, on October 1, 2003, National Cement warned
Turner that working for ICS in a way that interfered with his National Cement job would result in
33 FMSHRC 1085

“severe disciplinary action, including possible discharge.” 31 FMSHRC at 1183, citing Ex. R-6.
On June 14, 2006, when Turner worked for ICS instead of for National Cement, McMichael
concluded that Turner could have scheduled his doctor’s appointment at a time that would have
permitted him to work his shift at National Cement. Tr. 276-77. McMichael explained that
Turner could have scheduled his medical appointment for earlier in the day, when he could have
been absent from his job at the ICS plant. Tr. 284. The judge found, in sum, that National
Cement fired Turner because “[h]e chose to give his services to ICS . . . that day, rather than
National Cement.” 31 FMSHRC at 1183-84, citing Tr. 276-77, 334.
When National Cement discovered that Turner had worked for ICS on June 14 instead of
reporting to his National Cement shift, it responded swiftly. Wetzel spoke to the ICS supervisor
and confirmed that Turner had been working there. Id. at 1181. The next day he reported his
findings to his immediate supervisor and to the plant manager in a written statement. Id.; Tr. 535;
Ex. R-8. A meeting was held shortly thereafter to discuss whether Turner should be terminated.
31 FMSHRC at 1181; Tr. 260-61, 539-41. On June 16, 2006, a meeting was held in which Turner
was informed of the decision to suspend him “pending discharge.” 31 FMSHRC at 1181; Tr. 282;
Ex. R-1.
Arguably, National Cement overreacted to Turner’s choice to miss work at its plant
instead of at ICS. After all, Turner gave notice that he would be absent and offered to come to
work at National Cement if he was needed. Nonetheless, the Commission’s responsibility in this
discrimination matter is to ascertain whether the miner’s termination resulted from his protected
activity, and our reading of the record does not support such a conclusion.
Substantial evidence in the record also supports the judge’s finding, 31 FMSHRC at 1184,
that National Cement fired Turner in part due to his poor job performance. The judge fully
credited Wetzel’s testimony that Turner’s poor performance was his primary motivation in
recommending to McMichael that Turner be discharged and that Turner “didn’t follow
instructions.” 31 FMSHRC at 1185, citing Tr. 488. Wetzel also testified that Turner was not a
good electrician, Tr. 474, and Wetzel cited several instances where Turner’s performance was
inadequate.4 Tr. 486-489. As noted above, he testified that Turner was extremely difficult to

4

Wetzel was unequivocal in this regard, providing several concrete examples:
I assigned him to repair the fan on the outside of the
supply building and . . . when the job was done, he
had blown a hole in the side of the wall and ducted
the air-conditioner vents into the warehouse. That
was not what I asked him to do. I didn’t ask him to
do that. It was a fan repair, and I came in and found
a hole in the wall and the air-conditioner duct.

Tr. 486. Wetzel confirmed that this incident was in Turner’s personnel file. Tr. 487. Moreover,
33 FMSHRC 1086

work with and that many employees refused to work with him. Tr. 461, 488, 558-59. The judge
expressly credited Wetzel’s testimony that his discharge recommendation was not based on any
safety complaints made by Turner. 31 FMSHRC 1183, citing Tr. 527, 539.
The judge also credited Bill Russell’s testimony regarding the incident in which Turner
energized the wrong equipment, resulting in a power outage for the entire plant. 31 FMSHRC at
1184-85. She held that this was an appropriate factor to take into account in deciding whether to
terminate Turner. Id. at 1185.
In light of the foregoing, we conclude that substantial evidence in the record supports the
judge’s determination that Turner was discharged for legitimate, business-related reasons. 31
FMSHRC at 1183. Accordingly, we disagree with the majority that remand is necessary in this
instance. The majority appears to conclude that because neither reason given for Turner’s
termination was enough, standing alone, to justify termination, it is suggestive of pretext, and
therefore the case must be remanded to the judge to consider the evidence on this issue. See slip
op. at 15-19. In so doing, the majority commits multiple errors.
First, it relies on an improper weighing of the evidence of motivation. The reasons given
for Turner’s termination are only “suggestive” of pretext, as the majority holds (id. at 17), if there
was enough evidence to even reach the issue of the operator’s affirmative defense. As discussed
earlier, the evidence of motivation to establish a prima facie case is lacking.
Secondly, the majority fails to take into account that, even if neither reason standing alone
may have justified the operator’s actions, both taken together could have. By parsing the reasons
National Cement gave for terminating Turner, the majority fails to analyze the totality of the
evidence.
Finally, this case is one that is largely determined by the judge’s view of the credibility of
the evidence, which here was predominantly witness testimony. The judge made an explicit
finding that, having observed Turner’s disruptive actions during the hearing, and generally

in describing an incident in which Turner failed to wire circuits on top of a silo, Wetzel
commented that “this happened on numerous occasions. Whenever Mr. Turner was asked to do
something extra or something unscheduled, he always had wires everywhere . . . which leads me
to believe there’s wires unterminated. And we can’t leave circuits like that . . . . I sent him to fix
a circuit board and I got wires everywhere. It didn’t make any sense.” Tr. 488.
33 FMSHRC 1087

uncooperative nature throughout the proceeding, she would credit National Cement’s witnesses
such as Wetzel over Turner. See 31 FMSHRC at 1185.5
IV.

Conclusion

Our colleagues suggest several scenarios that might conceivably have led to a finding of
discrimination. However, the judge carefully reviewed the record, made credibility
determinations, and provided record support for her findings. The majority, viewing the evidence
in another light, speculates that certain inferences supporting a prima facie case may nonetheless
be gleaned from this record and remands for the judge to make determinations on these issues and
on whether the operator’s affirmative defense was a pretext.
However, it is not the Commission’s role to reweigh the evidence in this case. See Island
Creek Coal Co., 15 FMSHRC 339, 347 (Mar. 1993). Moreover, the fact that the judge failed to
discuss some of the evidence does not mean that she did not analyze it. See Caldwell v. Astrue,
365 Fed. Appx. 740 (8th Cir. 2010) (unpublished), citing Craig v. Apfel, 212 F.3d 433, 436 (8th
Cir. 2000) (administrative law judge is not required to discuss all evidence, and failure to cite
specific evidence does not mean it was not considered).

5

We note that, despite being specifically directed to cease filing additional materials
with the Commission since the record on appeal is closed, Mr. Turner has submitted 12
communications to the Commission, many of which are duplicative of included materials already
in the record before the judge and on review.
Commissioner Duffy further notes that the Commission, now having gained this first
hand experience with Turner and his lack of adherence to instructions, is certainly not in a
position to question the judge’s credibility findings as to Turner. Litigants, whether represented
by counsel or pro se, are expected to behave appropriately before the Commission and its judges.
To now return the case to the judge, without as much a comment on this matter, simply invites
further inappropriate behavior on remand. Commissioner Duffy believes the Commission owes
the judge more in this instance.
33 FMSHRC 1088

Turner has the ultimate burden of persuasion in this case – that is, it is up to him to prove
that his discharge was motivated by protected activity. The judge concluded that Turner’s
dismissal was not motivated by his safety complaints, and this determination is amply supported
by evidence in the record. Accordingly, we would affirm the judge’s decision.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael F. Duffy
Michael F. Duffy, Commissioner

33 FMSHRC 1089

Distribution:
Jayson Turner
P.O. Box C
2716 Arctic Drive
Pine Mountain, CA 93222
jturner@calneva.org
Margaret S. Lopez, Esq.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
2400 N Street NW, 5th Floor
Washington, DC 20037
Michael T. Heenan, Esq.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
2400 N Street NW, 5th Floor
Washington, DC 20037
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Administrative Law Judge Jacqueline Bulluck
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

33 FMSHRC 1090

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

May 23, 2011
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
STONECO INC.

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:
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:
:
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:

Docket No. LAKE 2011-146-M
A.C. No. 33-00087-224601

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY: Duffy, Young, Cohen, and Nakamura, Commissioners:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (2006) (“Mine Act”). On November 9, 2010, the Commission received a request to reopen
a penalty assessment issued to Stoneco Inc. (“Stoneco”) that became a final order of the
Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from
a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. See
29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable by
the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed that
default is a harsh remedy and that, if the defaulting party can make a showing of good cause for a
failure to timely respond, the case may be reopened and appropriate proceedings on the merits
permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
33 FMSHRC 1091

On June 30, 2010, the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) issued Proposed Assessment No. 000224601 to Stoneco for two citations issued to the
operator on May 4, 2010. Stoneco states that on May 13, 2010, it sent a fax to MSHA’s office in
Duluth, Minnesota requesting a conference regarding one of the citations. It further states that it
simply overlooked the fact that it had to send the Proposed Assessment form to MSHA’s office in
Arlington, Virginia, in order to contest the assessment.
The Secretary opposes Stoneco’s request, arguing that the operator’s statement is
conclusory and insufficient to justify reopening. The Secretary further states that an MSHA
Conference and Litigation Representative notified the operator by letter dated May 13, 2010, that
a conference would not be scheduled until after the operator received and contested the proposed
assessment and that failure to timely contest would result in cancellation of its conference request.
In addition, MSHA records show that the proposed assessment was delivered to Stoneco via
Federal Express on July 9, 2010.
Having reviewed the operator’s request to reopen and the Secretary’s response thereto, we
agree that Stoneco has failed to provide a sufficient basis for the Commission to reopen the
penalty assessment. Accordingly, we hereby deny without prejudice Stoneco’s request to reopen.
FKZ Coal Inc., 29 FMSHRC 177, 178 (Apr. 2007); Petra Materials, 31 FMSHRC 47, 49 (Jan.
2009). The words “without prejudice” mean that Stoneco may submit another request to reopen

33 FMSHRC 1092

Assessment No. 000224601.1 Any amended or renewed request by the operator to reopen this
assessment must be filed within 30 days of this order. Any such request filed after that time will
be denied with prejudice.

/s/ Michael F. Duffy
Michael F. Duffy, Commissioner

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

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

1

If Stoneco submits another request to reopen, it must establish good cause for not
contesting the proposed penalties within 30 days from the date it received the assessment from
MSHA. Under Rule 60(b) of the Federal Rules of Civil Procedure, the existence of “good cause”
may be shown by a number of different factors including mistake, inadvertence, surprise, or
excusable neglect on the part of the party seeking relief, or the discovery of new evidence, or
fraud, misrepresentation, or other misconduct by the adverse party. Stoneco should include a full
description of the facts supporting its claim of “good cause,” including how the mistake or other
problem prevented it from responding within the time limits provided in the Mine Act, as part of
its request to reopen. Stoneco should also submit copies of supporting documents with its
request to reopen and specify which proposed penalties it is contesting. In addition, Stoneco
should indicate when it first became aware that it had missed the contest deadline and whether it
acted promptly in filing its motion to reopen.
33 FMSHRC 1093

Chairman Jordan, dissenting:
Stoneco failed to timely contest the penalties at issue in this case. It now asks the
Commission to reopen these proceedings on the grounds that it “overlooked the fact” that it was
required to send a contest notice to the MSHA office in Arlington, Virginia. However, it received
clear notice of this requirement, not once, but two times before the deadline to file a contest.
Not only did the proposed assessment itself advise Stoneco of its duty to contest the
assessment within thirty days, but in addition, MSHA’s Conference Litigation Representative
notified the operator in a May 13, 2010 letter that in order to contest the penalties, the assessment
form would need to be returned to the address shown on the form. This letter also made clear that
a conference would only be scheduled after the penalties had been contested, and that the
operator’s request for a conference did not alter the requirement for filing a penalty contest.
Having reviewed Stoneco’s motion and the Secretary’s response, I would deny the
operator’s request with prejudice. The Secretary provided clear instructions two times to Stoneco
regarding the necessity of filing a timely penalty contest. Consequently, this is not a situation in
which the operator should be provided with another opportunity to expand on its failure to contest
the penalty. See Extra Energy, Inc., 31 FMSHRC 377, 379-80 (Apr. 2009) (opinion of
Commissioners Jordan and Cohen) (denying the request to reopen when the operator’s sole
excuse for not filing timely notices of contest was that its representative was instructed to file the
contests and failed to do so because a telephone call was not returned); Left Fork Mining Co., Inc.,
31 FMSHRC 8, 10 (Jan. 2009) (denying the request to reopen because the operator’s conclusory
statement that its failure to timely file was due to inadvertence or mistake did not provide an
adequate basis to justify reopening).

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

33 FMSHRC 1094

Distribution:
Ryan Stillings, Safety Diriector
Stoneco Inc.
1700 Fostoria Ave.
Suite 200
Findley, OH 45840
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

33 FMSHRC 1095

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

May 24, 2011
JUSTIN NAGEL
v.
NEWMONT USA LIMITED

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:

Docket No. WEST 2010-464-DM

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
On January 5, 2010, Justin Nagel, acting pro se, filed a complaint of discrimination against
Newmont USA Limited (“Newmont”) under section 105(c)(3) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 815(c)(3) (2006). On January 10, 2011, the judge in that case
issued a Decision and Order Granting Respondent’s Motion to Dismiss for Failure to Comply
with Discovery Orders and Lack of Candor with the Tribunal.
Mr. Nagel filed a Notice of Appeal on January 24, 2011. In that document, he stated that
he was appealing the judge’s decision of January 10, 2011. We treated this document as a timelyfiled petition for discretionary review of the judge’s decision.1 Commission Procedural Rule 70,
29 C.F.R. § 2700.70.

1

The statute provides that the only way to seek review by the Commission of an
Administrative Law Judge’s decision is to file a “petition for discretionary review.”
Section 113(d)(2) of the Act, 30 U.S.C. § 813(d)(2). Although Mr. Nagel’s filing was entitled
“Notice of Appeal,” we treated it as a petition for discretionary review. Mr. Nagel’s argument
that he has a right to file a “notice of appeal” is apparently based on Commission Procedural
Rule 80(d), 29 C.F.R. § 2700.80(d), which relates solely to a judge’s decision in a referral for
disciplinary proceedings. Other than referrals for disciplinary proceedings, review of a judge’s
decision may be had by filing a petition for discretionary review pursuant to Commission
Procedural Rule 70, 29 C.F.R. § 2700.70.
33 FMSHRC 1096

On February 18, the Commission issued an order denying Mr. Nagel’s petition for
discretionary review as well as his motion for a new hearing filed on February 11, 2011.
On March 22, Mr. Nagel filed a Motion to Vacate Commission Order, in which he sought
to overturn the Commission’s February 18 order.
Pursuant to Commission Procedural Rule 78, 29 C.F.R. § 2700.78, a party may file a
petition for reconsideration of a Commission order within 10 days of its issuance. We will treat
Mr. Nagel’s Motion to Vacate Commission Order as a petition for reconsideration. However,
Mr. Nagel’s motion was filed 32 days after the issuance of the February 18 order and therefore
was not timely. Even if it had been timely, we conclude that it did not provide any basis for
reconsidering the February 18 order. For the foregoing reasons, the Motion to Vacate
Commission Order is hereby denied.2

2

On May 3, 2011, Mr. Nagel also filed a “Motion to Vacate Newmont’s answer to
Nagel’s complaint as ordered by judge Lesnick and answer truthfully,” which addressed an
answer served by the operator on June 10, 2010 – almost one year ago. We hereby deny that
motion as being filed too late and lacking any merit.
33 FMSHRC 1097

The February 18 order denying Mr. Nagel’s petition is the final Commission order in this
case. Accordingly, the Commission will no longer accept for filing any document submitted by
Mr. Nagel seeking to vacate or modify the February 18 order in any way. If any such document is
submitted in the future, the Commission will not consider it and will not issue any order
addressing the document.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael F. Duffy
Michael F. Duffy, Commissioner

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

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

33 FMSHRC 1098

Distribution:
Justin Nagel
P.O. Box 182
Rathdrum, ID 83858
Richard Tucker
Newmont Mining
1655 Mountain City Hgwy.
Elko, NV 89801
Richard J. Matthews, Esq.
Rebecca R. Rivenbark, Esq.
Hiliary N. Wilson, Esq.
Newmont Mining
1655 Mountain City Hgwy.
Elko, NV 89801
Donna Vetrano Pryor, Esq.
Patton Boggs LLP
1801 California Street, Suite 4900
Denver, CO 80202
Mark N. Savit, Esq.
Patton Boggs LLP
1801 California Street, Suite 4900
Denver, CO 80202
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Administrative Law Judge Thomas McCarthy
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

33 FMSHRC 1099

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

May 25, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
MACH MINING, LLC

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:

Docket No. LAKE 2010-190

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY: Duffy, Young, Cohen, and Nakamura, Commissioners
In this civil penalty proceeding arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (2006), Mach Mining, LLC (“Mach”) seeks to stay the instant
proceeding pending the Commission’s disposition of an issue relating to its ventilation plan in
Mach Mining, LLC, Docket Nos. LAKE 2010-1-R, et al. (“Mach I”). On February 2, 2011,
Administrative Law Judge Margaret Miller issued an order denying Mach’s motion to stay. On
February 9, 2011, Mach filed a motion for certification of the ruling for interlocutory review and a
motion to stay. On February 16, 2011, the Secretary of Labor filed an opposition to this motion.
The Judge issued an order denying the motion for certification and motion to stay on February 25,
2011.
On March 25, 2011, Mach filed with the Commission a petition for interlocutory review
pursuant to Commission Procedural Rule 76, 29 C.F.R. § 2700.76, and a motion to stay this
proceeding pending Commission review. In its petition, Mach seeks review of the Judge’s
February 2 order denying the stay and February 25 order denying the certification and motion to
stay. On April 6, 2011, the Secretary filed with the Commission an opposition to the petition for
interlocutory review.

33 FMSHRC 1100

Upon consideration of Mach’s petition, we have determined that it has failed to establish
that the denial of the stay involves a controlling question of law and that immediate review may
materially advance the final disposition of the proceeding. 29 C.F.R. § 2700.76(a)(2). We
therefore deny the petition. We further deny as moot Mach’s March 25 motion to stay
proceedings pending Commission review.

/s/ Michael F. Duffy
Michael F. Duffy, Commissioner

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

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

33 FMSHRC 1101

Chairman Jordan, dissenting:
I would grant the operator’s petition for interlocutory review and reverse the judge’s order
denying the motion to stay this proceeding pending the Commission’s disposition in Mach I. The
central issue in both cases is whether the termination of the March 13, 2009 withdrawal order
constituted an approval of the operator’s ventilation plan. Thus the judge’s terse conclusion that
the connection between the order at issue in this case and the cases on appeal in Mach I is
“tenuous at best,” Unpublished Order at 2 (February 2, 2011), is erroneous. Given the
overlapping questions presented, I believe that judicial resources would best be served by staying
this proceeding pending the Commission’s decision in Mach I.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

33 FMSHRC 1102

Distribution:
Edward V. Hartman, Esq.
Office of the Solicitor
230 S. Dearborn
Chicago, IL 60604
hartman.edward.v@dol.gov
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Christopher D. Pence, Esq.
Allen, Guthrie, & Thomas, PLLC
500 Lee Street, East, Suite 800
P.O. Box 3394
Charleston, WV 25333
cdpence@agmtlaw.com
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Administrative Law Judge Margaret Miller
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
721 19th Street, Suite 443
Denver, CO 80202-5268

33 FMSHRC 1103

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

May 26, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
LONE STAR AGGREGATES
ACQUISITIONS, LLC

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:

Docket No. CENT 2011-233-M
A.C. No. 41-04474-234386

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (2006) (“Mine Act”). On December 8, 2010, the Commission received from
Lone Star Aggregates Acquisitions, LLC, a motion 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). On January 6, 2011, the Commission received a response from
the Secretary of Labor stating that she does not oppose the request to reopen the assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from
a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. See
29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable by
the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed that
default is a harsh remedy and that, if the defaulting party can make a showing of good cause for a
33 FMSHRC 1104

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael F. Duffy
Michael F. Duffy, Commissioner

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

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

33 FMSHRC 1105

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

33 FMSHRC 1106

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

May 26, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
PEROVICH PROPERTIES, INC.

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:
:

Docket No. CENT 2011-663-M
A.C. No. 29-00495-244249

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (2006) (“Mine Act”). On April 26, 2011, the Commission received a letter from the
President of Perovich Properties, Inc. (“Perovich”) seeking to reopen a penalty assessment that
may have become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
The Secretary submits that, upon reviewing the records in this proceeding, she has
discovered that the proposed penalty was timely contested.

1

This case was initially mistakenly docketed under the caption “Taos Gravel Products”
due to the letterhead used by the operator.
33 FMSHRC 1107

Having reviewed Perovich’s request and the Secretary’s response, we find the request to
reopen to be moot. Perovich has properly contested the proposed penalty assessment and,
therefore, it did not become a final order of the Commission. Accordingly, the request to reopen
is dismissed as moot.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael F. Duffy
Michael F. Duffy, Commissioner

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

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

33 FMSHRC 1108

Distribution:
Joel M. Perovich, Pr esident
Taos Gravel Products
P.O. Box 1620
El Prado, NM 87529
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

33 FMSHRC 1109

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

May 26, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
CUMBERLAND RIVER COAL
COMPANY

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:
:

Docket No. KENT 2011-276
A.C. No. 15-19228-215422

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (2006) (“Mine Act”). On December 3, 2010, the Commission received from
Cumberland River Coal Company a motion 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). On January 7, 2011, the Commission received a response from the
Secretary of Labor stating that she does not oppose the request to reopen the assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from
a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. See
29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable by
the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed that
default is a harsh remedy and that, if the defaulting party can make a showing of good cause for a
33 FMSHRC 1110

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael F. Duffy
Michael F. Duffy, Commissioner

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

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

33 FMSHRC 1111

Distribution:
Noelle Holladay True, Esq.
Rajkovich, Williams, Kilpatrick & True, PLLC
3151 Beaumont Centre Circle
Suite 375
Lexington, KY 40513
W. Christian Schumann, Esq.
Office of the Solicitor,
U.S. Department of Labor,
1100 Wilson Blvd., Room 2220,
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

33 FMSHRC 1112

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

May 26, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
OCI WYOMING, L.P.

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Docket No. WEST 2010-1658-M
A.C. No. 48-00154-216377
Docket No. WEST 2010-1659-M
A.C. No. 48-00154-219246

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (2006) (“Mine Act”). On August 13, 2010, the Commission received from OCI Wyoming,
L.P., requests to reopen penalty assessments that had become final orders of the Commission
pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).1 On September 1, 2010, the
Commission received responses from the Secretary of Labor stating that she does not oppose the
requests to reopen the 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).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from
1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers WEST 2010-1658-M and WEST 2010-1659-M, both captioned OCI
Wyoming, LP, and both involving similar procedural issues. 29 C.F.R. § 2700.12.
33 FMSHRC 1113

a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. See
29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable by
the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed that
default is a harsh remedy and that, if the defaulting party can make a showing of good cause for a
failure to timely respond, the case may be reopened and appropriate proceedings on the merits
permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed the facts and circumstances of this case, the operator’s requests, and the
Secretary’s responses, we hereby reopen this matter and remand it to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural
Rules, 29 C.F.R. Part 2700.2 Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R.
§ 2700.28.
/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman
/s/ Michael F. Duffy
Michael F. Duffy, Commissioner
/s/ Michael G. Young
Michael G. Young, Commissioner
/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner
/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

2

We note that the operator asserts that it expected its Accounting Department to forward
the contest along with the payment of the penalties it did not seek to contest. The proposed
assessment form indicates that payments and contests are sent to two different offices of the
Mine Safety and Health Administration (“MSHA”). Contests are sent to MSHA’s Civil Penalty
Compliance Office in Arlington, VA, whereas payments must be sent to MSHA in St. Louis,
MO.
33 FMSHRC 1114

Distribution:
Gary R. Gomez
Superintendent of Safety
OCI Wyoming, L.P.
P.O. Box 513
254 County Rd., 4-6
Green River, WY 82935
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

33 FMSHRC 1115

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

May 26, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
SPEED MINING, LLC,

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Docket No. WEVA 2011-556
A.C. No. 46-05437-234136

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (2006) (“Mine Act”). On December 7, 2010, Speed Mining, LLC, (“Speed Mining”) filed
a motion 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).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from
a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. See
29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable by
the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed that
default is a harsh remedy and that, if the defaulting party can make a showing of good cause for a
failure to timely respond, the case may be reopened and appropriate proceedings on the merits
permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
33 FMSHRC 1116

Speed Mining states that it intended to contest Citation Nos. 8101994, 8101995 and
8102002 contained in Proposed Assessment No. 000234136. It further states that due to a
“clerical error,” however, the contest form was misplaced and was not filed.
On January 13, 2011, the Secretary of Labor filed a response to Speed Mining’s motion to
reopen. She asserts, among other things, that the operator’s statements are conclusory and lack
sufficient detail. Therefore, the Secretary requests that the operator’s motion be denied.
The Commission has established that “[a]t a minimum, the applicant for such relief must
provide all known details, including relevant dates and persons involved, and a clear explanation
that accounts, to the best of the operator’s knowledge, for the failure to submit a timely response
and for any delays in seeking relief once the operator became aware of the delinquency failure.”
Higgins Stone Co., 32 FMSHRC 33, 34 (Jan. 2010). In addition, the request should include
“[a]ffidavits from persons involved in and knowledgeable of the situation and pertinent
documents.” Id.

33 FMSHRC 1117

Having reviewed Speed Mining’s motion to reopen, we conclude that the operator has not
provided a sufficiently detailed explanation for its failure to timely contest the proposed penalty
assessment. As a result, we conclude that grounds for reopening have not been established. See
id. at 34-35; Long Branch Energy, 32 FMSHRC 1220, 1221 (Oct. 2010). Accordingly, Speed
Mining’s request to reopen Proposed Assessment No. 000234136 is denied without prejudice.
Any amended or renewed request by the operator to reopen this assessment must be filed within
30 days of this order. Any such request filed after that time will be denied with prejudice.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael F. Duffy
Michael F. Duffy, Commissioner

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

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

33 FMSHRC 1118

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

33 FMSHRC 1119

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

June 1, 2011
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
CON-AGG OF MO, LLC

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Docket No. CENT 2011-193-M
A.C. No. 23-00078-230288

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (2006) (“Mine Act”). On November 18, 2010, the Commission received a request to
reopen a penalty assessment issued to Con-Agg of MO, LLC. (“Con-Agg”) that became a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from
a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. See
29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable by
1

On November 15, 2010, Con-Agg filed a letter with the Commission entitled “Notice of
Contest ” of Citation No. 6473993. We are treating Con-Agg’s letter as a request to reopen a
proposed penalty assessment.
33 FMSHRC 1120

the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed that
default is a harsh remedy and that, if the defaulting party can make a showing of good cause for a
failure to timely respond, the case may be reopened and appropriate proceedings on the merits
permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
On August 31, 2010, the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) issued Proposed Assessment No. 000230288 to Con-Agg for six citations issued to the
operator in July 2010. Con-Agg states that it first had constructive notice of the “citation” on
November 8, 2010, and received actual notice on November 12, 2010.
The Secretary opposes reopening because MSHA records show that the proposed
assessment was delivered to Con-Agg via Federal Express on September 7, 2010. The Secretary
notes that except for Con-Agg’s suggestion that it did not receive the proposed assessment, the
operator does not explain why it failed to contest the proposed assessment within 30 days of
receiving it.
Having reviewed the operator’s request to reopen and the Secretary’s response thereto, we
agree that Con-Agg has failed to provide a sufficient basis for the Commission to reopen the
penalty assessment. The record indicates that Con-Agg received the proposed assessment on
September 7, 2010, and was notified that it had 30 days from that date within which to contest the
proposed assessment. Accordingly, we hereby deny without prejudice Con-Agg’s request to
reopen. FKZ Coal Inc., 29 FMSHRC 177, 178 (Apr. 2007); Petra Materials, 31 FMSHRC 47, 49
(Jan. 2009). The words “without prejudice” mean that Con-Agg may submit another request

33 FMSHRC 1121

to reopen Assessment No. 000230288.2 Any amended or renewed request by the operator to
reopen this assessment must be filed within 30 days of this order. Any such request filed after that
time will be denied with prejudice.
/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael F. Duffy
Michael F. Duffy, Commissioner

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

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

2

If Con-Agg submits another request to reopen, it must establish good cause for not
contesting the proposed penalties within 30 days from the date it received the assessment from
MSHA. Under Rule 60(b) of the Federal Rules of Civil Procedure, the existence of “good cause”
may be shown by a number of different factors including mistake, inadvertence, surprise, or
excusable neglect on the part of the party seeking relief, or the discovery of new evidence, or
fraud, misrepresentation, or other misconduct by the adverse party. Con-Agg should include a
full description of the facts supporting its claim of “good cause,” including how the mistake or
other problem prevented it from responding within the time limits provided in the Mine Act, as
part of its request to reopen. Con-Agg should also submit copies of supporting documents with
its request to reopen and specify which proposed penalties it is contesting. In addition, Con-Agg
should indicate when it first became aware that it had missed the contest deadline and whether it
acted promptly in filing its motion to reopen.
33 FMSHRC 1122

Distribution:
Patrick Short, Manager
Con-Agg of Mo, LLC
2604 Stadium Blvd.
Columbia, MO 65202-1271
W. Christian Schumann, Esq.,
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

33 FMSHRC 1123

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

June 2, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
SHAMOKIN FILLER COMPANY, INC.

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Docket Nos. PENN 2009-775
PENN 2009-825
PENN 2010-63

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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. On April 25, 2011, Shamokin Filler Company, Inc. (“Shamokin”) filed a document
entitled “Petition for Interlocutory Review” with the Commission pursuant to Commission
Procedural Rule 76, 29 C.F.R. § 2700.76, that is at issue in this Order. Shamokin seeks review of
an order issued by Administrative Law Judge John Lewis on March 11, 2011, in which he ruled
that Shamokin’s carbon plant is under the regulatory jurisdiction of the Mine Safety and Health
Administration
Previously, on April 6, 2011, Shamokin had filed with the Commission a document
entitled “Petition for Discretionary Review,” seeking review of the judge’s order. The
Commission determined that this order was not a final decision that ended his jurisdiction over
this matter. In his decision, the judge resolved the jurisdictional issue, but made no findings
regarding the violations and penalties at issue. As a result, the Commission determined that
Shamokin’s petition was not a valid petition for discretionary review of a final decision under
section 113(d) of the Mine Act, 30 U.S.C. § 823(d). On April 8, 2011, the Commission issued an
order denying the petition on that basis.
On April 8, 2011, Shamokin filed a Motion for Certification of Interlocutory Review with
Judge Lewis. On April 12, 2011, Judge Lewis issued an Order Denying Certification for
Interlocutory Review.

33 FMSHRC 1124

Upon consideration of Shamokin’s petition, we have determined that it has failed to
establish that the March 11, 2011, order issued by Judge Lewis involves a controlling question of
law and that immediate review may materially advance the final disposition of the proceeding. 29
C.F.R. § 2700.76(a)(2). We therefore deny the petition.

_/s/ Mary Lu Jordan_______________
Mary Lu Jordan, Chairman

_/s/ Michael F. Duffy______________
Michael F. Duffy, Commissioner

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

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

_/s/ Patrick K. Nakamura____________
Patrick K. Nakamura, Commissioner

33 FMSHRC 1125

Distribution:
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schumann, Esq..
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Jessica R. Brown, Esq.
Office of the Solicitor
U.S. Department of Labor
The Curtis Center, Suite 630E
170 S. Independence Mall West
Philadelphia, PA 19106-3306
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Administrative Law Judge John K. Lewis
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
7 Parkway Center
875 Green Tree Road, Suite 290
Pittsburgh, PA 15220

33 FMSHRC 1126

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

June 3, 2011
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
ABSMEIER LANDSCAPING AND
CONSTRUCTION, LLC

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Docket No. WEST 2011-249-M
A.C. No. 05-04358-225893

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (2006) (“Mine Act”). On November 23, 2010, the Commission received a request to
reopen a penalty assessment issued to Absmeier Landscaping and Construction, LLC
(“Absmeier”) that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a). The Secretary of Labor filed a response opposing the operator’s
request dated December 23, 2010.
Based upon a review of the Mine Safety and Health Administration’s online data retrieval
system, it appears that Absmeier has paid the civil penalty for Citation No. 6446353, which is the
subject of its request to reopen. The parties have not filed pleadings subsequent to the Secretary’s
opposition to inform the Commission of any change in the status of this proceeding.

33 FMSHRC 1127

Absmeier is hereby ordered to show cause within thirty (30) days of the date of this order
why its request to reopen should not be denied as moot because the penalty has been paid. In the
event that Absmeier fails to timely respond to this order, its request will be deemed denied
without further order of the Commission.

/s/ Mary Lu Jordan________________
Mary Lu Jordan, Chairman

/s/ Michael F. Duffy________________
Michael F. Duffy, Commissioner

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

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

/s/ Patrick K. Nakamura_____________
Patrick K. Nakamura, Commissioner

33 FMSHRC 1128

Distribution:
Adrian Absmeier
Absmeier Landscaping & Construction, LLC
P.O. Box 1134
1424 21st Street
Alamosa, CO 81101
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

33 FMSHRC 1129

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

June 7, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
OAK GROVE RESOURCES LLC

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Docket No. SE 2011-16
A.C. No. 01-00851-221338

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (2006) (“Mine Act”). On March 9, 2011, Oak Grove Resources LLC (“Oak Grove”)
renewed its previous motion to reopen penalties that had become a final order of the Commission
pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from
a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. See
29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable by
the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed that
default is a harsh remedy and that, if the defaulting party can make a showing of good cause for a
failure to timely respond, the case may be reopened and appropriate proceedings on the merits
permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
33 FMSHRC 1130

On June 3, 2010, the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) issued Penalty Assessment No. 000221338 to Oak Grove, proposing penalties of
nearly $125,000 for 80 citations and orders issued to the operator. In its original motion to
reopen, Oak Grove stated that it wished to contest 27 of the penalties proposed for a total of nearly
$111,000.1 Oak Grove explained that it failed to timely file a contest due to a miscommunication
between its counsel and its safety director. Its safety director further stated in an affidavit that the
contest form was submitted in July 2010 to MSHA with Oak Grove’s payment of the uncontested
penalties, with both sent to MSHA’s address for penalty payments, not to the separate address for
contests.
The Secretary opposed reopening of the proposed assessment on the ground that Oak
Grove’s inadequate or unreliable internal procedures did not constitute an adequate excuse for
reopening. She further argued that the large amounts of the penalties involved suggested that the
operator’s internal procedures were particularly inadequate. She also stated that payment for the
uncontested penalties was actually by check dated October 7, 2010, that there was no contest form
attached to the payment, and that the payment did not designate which penalties were being paid.
We denied Oak Grove’s original motion without prejudice. We held, as we had in the
past, including in other instances of Oak Grove defaults, that an inadequate or unreliable internal
processing system does not constitute inadvertence, mistake or excusable neglect so as to justify
the reopening of an assessment. Oak Grove Res. LLC, 33 FMSHRC 103, 104-05 (Feb. 2011).
We specified that should Oak Grove renew its request to reopen, it must do so within 30 days,
fully explain the circumstances in its failure to timely contest the proposed assessment, and
address what it has done to ensure that it responds to proposed assessments in a timely manner, in
order to avoid a repeat of the mistakes it outlined in its motion. Id. at 105. We further noted that
the public record indicated that Oak Grove was significantly delinquent in the payment of
uncontested penalties to MSHA, including with regard to assessments where it had contested
some penalties. Id. at 105 n.2.
Regarding the circumstances surrounding the failure to timely contest the assessment, Oak
Grove’s renewed motion includes the same affidavit as was submitted with its original request
that the Secretary has previously shown to be untrustworthy. Oak Grove’s renewed motion also
includes an affidavit from another company official, who explains the steps that have been
subsequently taken to ensure that Oak Grove responds in a timely fashion to penalty assessments.
The Secretary continues to oppose Oak Grove’s request to reopen, reiterating the grounds
in her original response, and further arguing that Oak Grove’s total delinquencies – over $750,000
– raise the question of whether the operator is acting in good faith. The Secretary additionally
notes that the fact that such delinquencies extend to the present date casts doubt on Oak Grove’s
claim that it has taken steps to timely respond to penalty assessments. Oak Grove did not reply to

1

Oak Grove in its renewed motion, as it did in its original motion, refers to Order
No. 6690851 and Citation No. 8518607 twice each when listing the penalties it seeks to reopen.
33 FMSHRC 1131

the Secretary’s opposition, in which the Secretary raised serious issues regarding Oak Grove’s
penalty contest and payment practices.
The Commission has made it clear that where a failure to contest a proposed assessment
results from an inadequate or unreliable internal processing system, the operator has not
established grounds for reopening the assessment. Pinnacle Mining Co., 30 FMSHRC 1061,
1062 (Dec. 2008); Pinnacle Mining Co., 30 FMSHRC 1066, 1067 (Dec. 2008); Highland Mining
Co., 31 FMSHRC 1313, 1315 (Nov. 2009); Double Bonus Coal Co., 32 FMSHRC 1155, 1156
(Sept. 2010); Oak Grove, 33 FMSHRC at 104. In this case, in the absence of any rebuttal or
explanation, we conclude that the failure to communicate between Oak Grove’s safety director
and its counsel represents an inadequate or unreliable internal processing system as the Secretary
has alleged. We also note that this type of miscommunication appears to be part of a pattern for
Oak Grove, as shown by the fact that it also occurred in two other default cases recently before the
Commission, Docket Nos. SE 2009-812 and SE 2009-850. See Oak Grove Res. LLC,
32
FMSHRC 1253, 1254 (Oct. 2010).
Additionally, the Secretary has questioned whether the operator is acting in good faith,
based on a delinquency history showing 20 penalty cases with a total delinquency of
approximately $758,361. It is well recognized in federal jurisprudence that the issue of whether
the movant acted in good faith is an important factor in determining the existence of excusable
neglect. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993); FG
Hemisphere Assocs., LLC v. Democratic Republic of Congo, 447 F.3d 835, 838 (D.C. Cir. 2006).
Likewise, the Commission has recognized that a movant’s good faith, or lack thereof, is relevant
to a determination of whether the movant has demonstrated mistake, inadvertence, surprise or
excusable neglect within the meaning of Rule 60(b)(1) of the Federal Rules of Civil Procedure.
M.M. Sundt Constr. Co., 8 FMSHRC 1269, 1271 (Sept. 1986); Easton Constr. Co., 3 FMSHRC
314, 315 (Feb. 1981).

33 FMSHRC 1132

The operator’s failure to respond to the Secretary’s argument that Oak Grove’s
delinquency history demonstrates bad faith supports our conclusion that Oak Grove has not met
its burden of establishing entitlement to extraordinary relief.
Consequently, we again deny Oak Grove’s request, this time with prejudice.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman
/s/ Michael F. Duffy
Michael F. Duffy, Commissioner
/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner
/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

33 FMSHRC 1133

Distribution:
R. Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center, Suite 1340
401 Liberty Avenue
Pittsburgh, PA 15222
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

33 FMSHRC 1134

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

June 9, 2011
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
MRM MINING, INC.

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Docket No. KENT 2011-210
A.C. No. 15-18936-206241

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (2006) (“Mine Act”). On November 12, 2010, the Commission received a request to
reopen a penalty assessment issued to MRM Mining, Inc. (“MRM”) that became a final order of
the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from
a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. See
29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable by
the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed that
default is a harsh remedy and that, if the defaulting party can make a showing of good cause for a
failure to timely respond, the case may be reopened and appropriate proceedings on the merits
permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

33 FMSHRC 1135

On December 16, 2009, the Department of Labor’s Mine Safety and Health
Administration (“MSHA”) issued Proposed Assessment No. 000206241 to MRM for 15 citations.
The record indicates that the assessment was returned undelivered, as was the subsequent
delinquency notice sent by MSHA, and a letter notifying MRM that its contest filed on April 16,
2010, was untimely.1 MRM states that it did not receive the assessment in a timely manner due to
a change made to its address. It submits that it no longer receives its mail at a “physical address,”
but at a post office box instead.
The Secretary opposes MRM’s request, asserting that it is the operator’s responsibility to
notify MSHA of any change of address within 30 days of the change. She acknowledges that
according to MSHA records, MRM requested that its address be updated to reflect its new P.O.
Box on April 8, 2010. The Secretary notes that in July 2010 the Department of Treasury notified
the operator that the assessment was delinquent, and in response, MRM filed a Dispute Form with
Treasury. She maintains that the operator’s untimely contest establishes that MRM was aware of
the proposed assessment as early as April 16, 2010, and that the notification from Treasury in July
brought the delinquency to its attention again. However, the operator waited until November
2010 to file its request to reopen.
It is an operator’s responsibility to file with MSHA the address of a mine and any changes
of address within 30 days. 30 C.F.R. §§ 41.10, 41.12. In the present case, it does not appear from
the record that MRM maintained its correct address with MSHA as required by the regulations.
Because MSHA was not notified until April 8, 2010, of MRM’s change of address, it appears that
the proposed assessment, issued on December 16, 2009, was served at the operator’s official
address of record. See The Pit, 16 FMSHRC 2033, 2034 (Oct. 1994); Harvey Trucking, 21
FMSHRC 567, 569 n.1 (June 1999).
Having reviewed the operator’s request to reopen and the Secretary’s response thereto, we
conclude that MRM has failed to provide a sufficient basis for the Commission to reopen the
penalty assessment. MRM’s request does not adequately explain the company’s failure to timely
contest the proposed assessment. Specifically, MRM has offered no explanation as to when it
changed its address and why it delayed in notifying MSHA of the change. It also fails to provide a
detailed explanation of when and how it first received the proposed assessment. In addition, the
operator has failed to explain why it delayed approximately four months in filing its request to
reopen after learning of the delinquency from Treasury. Accordingly, we hereby deny without
prejudice MRM’s request to reopen. FKZ Coal Inc., 29 FMSHRC 177, 178 (Apr. 2007); Petra
Materials, 31 FMSHRC 47, 49 (Jan. 2009). The words “without prejudice” mean that MRM may

1

On April 16, 2010, the operator mailed in its contest form to the MSHA office in St.
Louis, MO. The form did not identify which citations were being contested, nor did it contain
any payment.
33 FMSHRC 1136

submit another request to reopen Assessment No. 000206241.2 Any amended or renewed request
by the operator to reopen this assessment must be filed within 30 days of this order. Any such
request filed after that time will be denied with prejudice.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman
/s/ Michael F. Duffy
Michael F. Duffy, Commissioner
/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner
/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

2

If MRM submits another request to reopen, it must establish good cause for not
contesting the proposed penalties within 30 days from the date it received the assessment from
MSHA. Under Rule 60(b) of the Federal Rules of Civil Procedure, the existence of “good cause”
may be shown by a number of different factors including mistake, inadvertence, surprise, or
excusable neglect on the part of the party seeking relief, or the discovery of new evidence, or
fraud, misrepresentation, or other misconduct by the adverse party. MRM should include a full
description of the facts supporting its claim of “good cause,” and address the issues raised in this
Order, as part of its request to reopen. MRM should also submit copies of supporting documents
with its request to reopen.
33 FMSHRC 1137

Distribution:
Minerva Ruth Mead, President
MRM Mining, Inc.
Box 308
Hihat, KY 41636
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

33 FMSHRC 1138

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

June 9, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
ROBERT COLEMAN, Employed by
CARMEUSE LIME AND STONE

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Docket No. SE 2011-146-M
A.C. No. 09-01038-226939 A

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (2006) (“Mine Act”). On December 6, 2010, the Commission received from Robert
Coleman (“Coleman”) a motion requesting that the Commission reopen a penalty assessment
against Coleman under section 110(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).
On January 4, 2011, the Commission received a letter from the Secretary of Labor (“Secretary”)
stating that she did not oppose the motion to reopen.
Under the Commission’s Procedural Rules, an individual charged under section 110(c) has
30 days following receipt of the proposed penalty assessment within which to notify the Secretary
that he or she wishes to contest the penalty. 29 C.F.R. § 2700.26. If the individual fails to notify
the Secretary, the proposed penalty assessment is deemed a final order of the Commission. 29
C.F.R. § 2700.27.
Order No. 6505780 was issued by the Mine Safety and Health Administration (“MSHA”)
on June 16, 2009, to Carmeuse Lime and Stone (“Carmeuse”). On August 2, 2010, the MSHA
issued Proposed Assessment No. 00226939A to Coleman, alleging that he was personally liable,
pursuant to section 110(c) of the Mine Act, for the violation alleged in Order No. 6505780. The
proposed assessment was apparently delivered to the Marble Hill Mine on August 5, 2010.
According to Coleman, it was signed for by a “W. Weaver,” whom he identifies as William
Weaver, an hourly employee of Carmeuse. William Weaver states in an affidavit that he has no
33 FMSHRC 1139

recollection of receiving the proposed assessment. Weaver further states, that even if he did
receive the assessment, he does not recall “personally hand deliver[ing] it to Robert Coleman.”
In his motion to reopen, Coleman asserts that he did not timely contest the proposed
penalty because he did not receive the proposed assessment.1 Coleman states that he first learned
that a penalty had been issued to him for the order on November 1, 2010, after receiving a
delinquency notice from MSHA. Coleman requests that the proceeding be reopened so that the
penalty case can move forward.
Commission Procedural Rule 25 provides, in pertinent part, that the Secretary “shall notify
. . . any other person against whom a penalty is proposed of the violation alleged.” 29 C.F.R. §
2700.25. Accordingly, a proposed assessment under section 110(c) does not become a final order
within 30 days, if the manner in which the proposed penalty was delivered to the individual does
not provide him or her with actual notice of the proposed assessment. See Stech, employed by
Eighty-Four Mining Co., 27 FMSHRC 891 (Dec. 2005) (finding that a proposed assessment does
not become a final order when it was mistakenly delivered to a separate firm in counsel’s office
building, and addressed to the respondent himself rather than “in care of” his counsel). In Stech,
the Commission advised that “[i]f the Secretary had sent the penalty proposal at issue here to [the
respondent] at his home address or ‘in care of’ counsel at the counsel’s address, the confusion
would presumably have been avoided.” 27 FMSHRC at
892 n.1.

1

In his affidavit Coleman mistakenly states that Case No. 00226939A involves a penalty
issued for Order No. 6505870, when in fact it involves a penalty issued for Order No. 6505780.
33 FMSHRC 1140

We conclude that Coleman was not provided with notice, as required by Procedural
Rule 25. Accordingly, Proposed Assessment No. 00226939A 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.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael F. Duffy
Michael F. Duffy, Commissioner

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

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

33 FMSHRC 1141

Distribution:
R. Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center, Suite 1340
401 Liberty Avenue
Pittsburgh, PA 15222
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

33 FMSHRC 1142

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

June 9, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
CALICO COAL, INC.

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:
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:
:
:

Docket No. VA 2010-312
A.C. No. 44-01486-205234
Docket No. VA 2010-313
A.C. No. 44-01486-202416

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (2006) (“Mine Act”). On April 28, 2011, the Commission issued an order directing Calico
Coal, Inc. (“Calico”) to show cause why its request to reopen should not be denied as moot
because Calico appeared to have paid the subject civil penalties. The order stated that Calico had
“30 days of the date of this order” to provide its response to the Commission.

33 FMSHRC 1143

Because Calico has not responded to the show cause order within 30 days of the date of
the order, we hereby deny the request to reopen as moot.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael F. Duffy
Michael F. Duffy, Commissioner

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

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

33 FMSHRC 1144

Distribution:
Ernest E. Varney, President
Calico Coal, Inc.
48 Collage Dr.
Bluefield, VA 24605
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

33 FMSHRC 1145

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

June 9, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
SPARTAN MINING COMPANY

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:

Docket No. WEVA 2010-890
A.C. No. 46-01544-206635

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (2006) (“Mine Act”). On April 9, 2010, the Commission received from Spartan Mining
Company (“Spartan”) a motion by counsel seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from
a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
33 FMSHRC 1146

On December 17, 2009, the Department of Labor’s Mine Safety and Health
Administration (“MSHA”) issued a proposed assessment to Spartan, which was delivered by
Federal Express to the mine’s address of record on December 28, 2009. Spartan asserts that it
was signed for by a temporary receptionist because the safety director and many of the regular
office personnel were out of the office due to the holidays at that time. It states that it is
“unknown what [the receptionist] did with the FedEx package.” Mot. at 4. In addition, the
operator explains that Massey Coal Sales, Inc. (“Massey”), Spartan’s parent company, had
requested MSHA to deliver all proposed assessments of Massey mines to Massey’s corporate
legal office. According to Spartan, this procedure was not followed in this case, and the proposed
assessment did not make it into Massey’s internal process for handling such forms, which also
contributed to Spartan’s failure to timely contest the assessment. Spartan asserts that it discovered
the assessment for the first time on February 12, 2010, and attempted to contest it that same day.
On March 10, 2010, MSHA sent Spartan a letter indicating that its contest was unsuccessful.
Spartan filed the present motion to reopen within 30 days of receiving this notice.
The Secretary opposes reopening arguing that an inadequate office procedure and
conclusory statements as to why the operator filed late are not sufficient grounds for reopening.
She also acknowledges that MSHA had agreed to start the address change for all Massey mines as
a courtesy to Massey. However, the Secretary notes that it was Massey’s responsibility to file an
updated address of record, which it had not done at the time of the response.
Having reviewed Spartan’s request and the Secretary’s response, in the interests of justice,
we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part
2700. We base our decision to reopen on the promptness of the motion to reopen and the
operator’s attempt to contest the proposed assessment as soon as it was discovered, albeit 16 days
late. See, e.g., Genesis, Inc., 32 FMSHRC 770, 771 (July 2010) (reopening when operator filed a
formal contest two weeks late by mistake and acted very promptly in submitting its request to
reopen the assessment). In addition, there appears to have been an understanding, which the
Secretary acknowledges, whereby MSHA was to send the proposed assessments to a central
office. This was not done here, which may have contributed to Spartan’s failure to timely contest
the assessment.1

1

We note that the Secretary urges the operator to file the correct legal ID report to avoid
such problems in the future.
33 FMSHRC 1147

Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.
/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael F. Duffy
Michael F. Duffy, Commissioner

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

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

33 FMSHRC 1148

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

33 FMSHRC 1149

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

June 9, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
MAMMOTH COAL COMPANY

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:
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:
:
:

Docket No. WEVA 2010-1423
A.C. No. 46-09221-188695

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (2006) (“Mine Act”). On July 19, 2010, the Commission received from Mammoth Coal
Company (“Mammoth”) a motion by its counsel seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from
a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. See
29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable by
the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed that
default is a harsh remedy and that, if the defaulting party can make a showing of good cause for a
failure to timely respond, the case may be reopened and appropriate proceedings on the merits
permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
33 FMSHRC 1150

On June 18, 2009, the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) issued Proposed Assessment No. 000188695 to Mammoth. Mammoth, through its
counsel, contends that it had implemented a new procedure for handling and filing proposed
assessment forms, bringing the entire process in-house in early to mid June 2009, around the time
that it received the assessment in this case. The operator states that under the new procedure,
Mammoth’s safety director would review the assessment form, mark the violations the company
intended to contest, and scan and email the form to the corporate legal department, which would
then prepare and file the form. The operator asserts that the safety director believes, based on his
hand-written notes on the assessment form, that he timely received and forwarded the form to the
legal department on July 7, 2009. The operator further states that the safety director has no record
of the email sent because his old emails were lost when an updated computer program was
installed on his computer. The operator notes that it timely contested three of the orders contained
in the proposed assessment, and that the contests were docketed and stayed (Docket Nos. WEVA
2009-1482-R through 1484-R). The operator contends that it was not aware of the delinquency
until it received the judge’s order to show cause in those contest proceedings, which was issued
on June 30, 2010. Upon receipt of the judge’s order, the operator asserts that the safety director
discovered that the legal department had no record of receiving the proposed assessment. The
operator contends that it did not receive a delinquency notice from MSHA in this case. The
operator surmises that “[e]ither [the safety director] sent the form to the legal department and it
did not receive it or it was misplaced or [the safety director] mistakenly believed he had sent the
form to the legal department but had not actually done so.” Mot. at 4. The operator argues that it
intended to contest the proposed assessment for 12 of the violations contained on the assessment
form, but failed to do so due to inadvertence.
The Secretary opposes the motion on the basis that the operator’s internal procedures were
inadequate and unreliable and do not constitute an adequate excuse under Rule 60(b). She also
states that the operator’s conclusory and speculative statements regarding what occurred in this
case are insufficient to warrant reopening. She notes that the operator received the assessment on
June 25, 2009, that the assessment became a final order on July 25, 2009 and that a delinquency
notice was sent on September 10, 2009. She also notes that this delinquent assessment appeared
on subsequent assessments issued to the operator. While the operator claims that denial of
reopening this assessment would result in severe consequences due to the operator’s potential
designation for a pattern of violations, the Secretary argues that this should have put the operator
on heightened alert and that the operator should have been more vigilant. She also notes that the
operator submitted its request just 17 days shy of one year without explanation for the delay.
Given the significant delay in seeking reopening and the inadequacy of the operator’s
explanation for its failure to timely submit its contest here, we cannot conclude that the operator’s
actions amount to mistake or inadvertence warranting relief. Mammoth provided no explanation
for its failure to discover the delinquency here despite numerous opportunities. This delinquency
appeared as an “outstanding balance” on six subsequent proposed assessments issued to
Mammoth. Mammoth’s argument about the severe consequences of the finality of the assessment
is undercut by its failure to exercise reasonable diligence. Mammoth should have been carefully
monitoring its assessments and expecting the proposed assessment at issue here given the pending
33 FMSHRC 1151

contest proceedings of the underlying orders. Under the circumstances, we conclude that
Mammoth’s delay in filing a request to reopen for nearly one year after the assessment became
final was too long.
Based on the foregoing, we conclude that Mammoth has failed to provide an adequate
basis for the Commission to reopen the penalty assessment. See Pinnacle Mining Co., 30
FMSHRC 1061, 1062-63 (Dec. 2008) (denying relief because operator’s excuse was insufficient);
Pinnacle Mining Co., 30 FMSHRC 1066, 1067-68 (Dec. 2008) (same). Accordingly, we deny
Mammoth’s request to reopen.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael F. Duffy
Michael F. Duffy, Commissioner

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

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

33 FMSHRC 1152

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

33 FMSHRC 1153

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

June 13, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
KEMBEL SAND & GRAVEL

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Docket No. CENT 2011-432-M
A.C. No. 25-01033-224809

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (2006) (“Mine Act”). On February 18, 2011, the Commission received from Kembel Sand
& Gravel (“Kembel”) a letter seeking to reopen a penalty assessment that may have become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
The Secretary submits that this request to reopen actually involves two other penalty cases:
Docket Nos. CENT 2010-1072-M and CENT 2010-1073-M. With respect to Docket No. CENT
2010-1072-M, involving Citation Nos. 6426384 and 6426385, the operator successfully contested
the proposed assessment, and a penalty petition was filed by the Secretary on September 13, 2010.
The Secretary asserts that because the operator failed to answer the petition, she filed a motion for
issuance of order of default on January 4, 2011. Instead of filing an answer, the operator appears
to have filed this motion to reopen on February 18, 2011, with the Commission. Chief
Administrative Law Judge Robert J. Lesnick issued a show cause order on March 15, 2011, and
the operator filed a timely response to that order on April 8, 2011.
Because the matter is now proceeding before the Chief Judge, the motion to reopen with
regard to these two citations is no longer necessary and is moot.

33 FMSHRC 1153

With respect to Docket No. CENT 2010-1073-M, involving Citation Nos. 6426382 and
6426383 contained on the same penalty assessment at issue, the Secretary states that the parties
have agreed on a settlement and that a Decision Approving Settlement was issued by the Chief
Judge on February 2, 2011. Therefore, we also dismiss the request as moot as to the penalties at
issue in Docket No. CENT 2010-1073-M.
Having reviewed Kembel’s request and the Secretary’s response, we find the request to
reopen to be moot in all respects. Accordingly, the request is dismissed.
/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael F. Duffy
Michael F. Duffy, Commissioner

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

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

33 FMSHRC 1154

Distribution:
Lon R. Hascal, President
Kembel Sand & Gravel
P.O. Box 118
Scottsbluff, NE 69363
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

33 FMSHRC 1155

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

June 29, 2011
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
OVERTON SAND & GRAVEL COMPANY

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: Docket No. CENT 2011-210-M
: A.C. No. 25-01010-229138
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BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (2006) (“Mine Act”). On November 29, 2010, the Commission received from
Overton Sand and Gravel Company (“Overton”) a motion by counsel to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from
a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. See
29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable by
the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed that
default is a harsh remedy and that, if the defaulting party can make a showing of good cause for a
33 FMSHRC 1156

failure to timely respond, the case may be reopened and appropriate proceedings on the merits
permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
On July 7, 2010, MSHA issued seven citations to Overton. The operator believed that the
citations contained such “egregious factual errors” that it immediately contacted MSHA and
requested a conference. Mot. at 2. MSHA replied by letter dated August 2, 2010, informing
Overton that a conference would be scheduled afer the penalties had been received and contested.
Proposed Assessment No. 000229138, containing five of the seven citations, was issued on
August 18, 2010, and delivered to Overton by Federal Express on August 25, 2010.1 In October
2010, after not hearing from MSHA, the operator contacted MSHA to repeat its request for a
conference. On November 3, 2010, Overton received a call from the MSHA Conference and
Litigation Representative (CLR), who again informed the operator that it needed to send back its
contest information. At some point thereafter, Overton discovered that the time to contest the
penalties had passed.
Overton asserts that it is a small operator, and being unfamiliar with MSHA’s contest
procedures, its personnel erroneously believed that its letter requesting a conference to discuss the
citations preserved its rights. Overton then states that it believes it missed the initial penalty
assessment because its personnel coordinator was transferred from the Overton office in August
and the remaining personnel failed to forward the MSHA mail because they were instructed to
look for mail from the Rocky Mount MSHA District office. Overton contends that it always
intended to contest the citations.
The Secretary opposes the request to reopen and responds that, not only did Overton
receive the proposed assessment on August 25, 2010, but that it was previously informed by
MSHA that a conference would not be scheduled until after the operator received and contested
the proposed assessment. The Secretary argues that the operator’s confusion is “inexcusable
given the crystal clear instructions” provided in both the letter and the assessment form. S. Resp.
at 4.
Following Overton’s request for a conference, MSHA informed the operator by letter that
a conference would be scheduled after the penalties were assessed and its contest received. The
letter went on to explicitly warn Overton that its “request for a Part 100 Safety and Health
Conference does not constitute a contest of the proposed civil penalties, and does not alter the
requirements for filing such a contest . . . .” Mot. at Ex. D.
Having reviewed Overton’s request to reopen and the Secretary’s response thereto, we
conclude that the operator has failed to provide a sufficient basis for the Commission to reopen
the penalty assessment. In particular, Overton has failed to explain the circumstances surrounding
the transfer of its personnel coordinator, including exactly when the transfer occurred and the
specific impact the transfer had on Overton’s ability to timely contest the proposed assessment.

1

The two remaining citations were separately assessed on October 13, 2010, as proposed
Penalty Assessment No. 000235394 and timely contested.
33 FMSHRC 1157

Accordingly, we hereby deny without prejudice Overton’s request to reopen. FKZ Coal Inc., 29
FMSHRC 177, 178 (Apr. 2007); Petra Materials, 31 FMSHRC 47, 49 (Jan. 2009). The words
“without prejudice” mean that Overton may submit another request to reopen Assessment No.
000229138.2 Any amended or renewed request by the operator to reopen this assessment must be
filed within 30 days of this order. If an amended motion is not submitted within 30 days, this
matter is dismissed with prejudice, regardless of the merits.

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

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

2

If Overton submits another request to reopen, it must establish good cause for not
contesting the proposed penalties within 30 days from the date it received the assessment from
MSHA. Under Rule 60(b) of the Federal Rules of Civil Procedure, the existence of “good cause”
may be shown by a number of different factors including mistake, inadvertence, surprise, or
excusable neglect on the part of the party seeking relief, or the discovery of new evidence, or
fraud, misrepresentation, or other misconduct by the adverse party. Overton should include a full
description of the facts supporting its claim of “good cause,” including how the mistake or other
problem prevented it from responding within the time limits provided in the Mine Act, as part of
its request to reopen.
33 FMSHRC 1158

Chairman Jordan and Commissioner Duffy, dissenting in part:
Overton failed to timely contest the penalties at issue in this case. It now asks the
Commission to reopen these proceedings. In his affidavit, Overton’s president and owner states
that the operator had a mistaken belief that it preserved its rights when it sent a letter to MSHA
requesting a conference on the underlying citations. He adds that the operator also failed to timely
contest the penalties because it thought it “should be looking for an envelope from the Rocky
Mountain District Office.” Although not included in this affidavit, Overton’s counsel also asserts
that a personnel transfer also contributed to the error. We conclude that these excuses do not
merit relief under Rule 60(b).
The operator received clear notice of the need to send in the assessment form to contest the
penalties and preserve its rights, not once, but two times before the deadline to file a contest. The
penalty assessment form received by Overton on August 25, 2010, stated that the operator had 30
days after receipt of the form to either pay the penalty or request a hearing and contest the
proposed assessment by mailing the form to MSHA in Arlington, Virginia. Not only did the
proposed assessment itself advise Overton of its duty to contest the assessment within thirty days,
but in addition, MSHA’s Conference Litigation Representative had previously notified the
operator in an August 2, 2010 letter that in order to contest the penalties, the assessment form
would need to be returned to the address shown on the form. This letter also made clear that a
conference would only be scheduled after the penalties had been contested, and that the operator’s
request for a conference did not alter the requirement for filing a penalty contest.
Given Overton’s admission that it believed it did not need to contest the penalties (because
it had sent a letter requesting a conference on the citations), we do not see the relevance of the
transfer of its personnel coordinator. Even if he or she had not been transferred, because Overton
thought it had already preserved its rights by requesting a conference, it appears that the presence
or absence of this staff member would have made no difference to how the operator reacted once
the penalty was received.1 Thus the majority’s invitation to Overton to explain the impact the
transfer had on its ability to timely contest the proposed penalties seems superfluous.
Having reviewed Overton’s motion and the Secretary’s response, we would deny the
operator’s request with prejudice. The Secretary twice provided clear instructions to Overton

1

Similarly, the fact that Overton’s staff had been instructed to look for mail from the
Rocky Mount District Office to forward to the Lexington office appears irrelevant in light of
Overton’s belief that it need not contest the penalties once it had requested a conference.
Moreover, it is undisputed that it received the penalty assessment from MSHA via FedEx on
August 25, 2010. Even if staff had been alerted to forward mail from MSHA’s Rocky Mount
District Office, this did not relieve the operator of properly contesting the proposed assessment
once the form had actually been received.
33 FMSHRC 1159

regarding the necessity of filing a timely penalty contest. Consequently, this is not a situation in
which it should be provided with another opportunity to expand on its failure to contest the
penalty. See Extra Energy, Inc., 31 FMSHRC 377, 379-80 (Apr. 2009) (denying the request to
reopen when the operator’s sole excuse for not filing timely notices of contest was that its
representative was instructed to file the contests and failed to do so because a telephone call was
not returned); Left Fork Mining Co., 31 FMSHRC 8, 10 (Jan. 2009) (denying the request to
reopen because the operator’s conclusory statement that its failure to timely file was due to
inadvertence or mistake did not provide an adequate basis to justify reopening).

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael F. Duffy
Michael F. Duffy, Commissioner

33 FMSHRC 1160

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

33 FMSHRC 1161

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

June 29, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
NUCO INTERNATIONAL, INC.

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Docket No. WEST 2011-263-M
A.C. No. 26-00081-229859 E7C

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (2006) (“Mine Act”). On December 1, 2010, the Commission received from Nuco
International, Inc., (“Nuco”) a motion 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). On December 28, 2010, the Commission received a response from
the Secretary of Labor stating that she does not oppose the request to reopen the assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from
a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. See
29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable by
the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed that
default is a harsh remedy and that, if the defaulting party can make a showing of good cause for a
failure to timely respond, the case may be reopened and appropriate proceedings on the merits
permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
33 FMSHRC 1162

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael F. Duffy
Michael F. Duffy, Commissioner

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

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

33 FMSHRC 1163

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

33 FMSHRC 1164

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

June 30, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
JOHN RICHARDS CONSTRUCTION

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Docket No. WEST 2011-817-M
A.C. No. 24-02070-133919

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (2006) (“Mine Act”). On April 1, 2011, the Commission received a request from John
Richards Construction (“Richards”) to reopen a penalty assessment that may have become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
The Secretary submits that, upon reviewing the records in this proceeding, she has
discovered that the proposed penalty was timely contested.

33 FMSHRC 1165

Having reviewed Richards’ request and the Secretary’s response, we find the request to
reopen to be moot. Richards properly contested the proposed penalty assessment and, therefore, it
did not become a final order of the Commission. Accordingly, the request to reopen is dismissed
as moot.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael F. Duffy
Michael F. Duffy, Commissioner

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

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

33 FMSHRC 1166

Distribution:
John Richards
John Richards Construction
P.O. Box 316
Seeley Lake, MT 59868
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

33 FMSHRC 1167

33 FMSHRC 1168

ADMINISTRATIVE LAW JUDGE DECISIONS

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

May 3, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.
CEMEX, INC.,
Respondent

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CIVIL PENALTY PROCEEDING
Docket No. KENT 2009-1197-M
A.C. No. 15-04469-186365
Mine: Kosmos Cement Company

DECISION ON MOTION FOR SUMMARY DECISION
This case is before me upon petition for civil penalty filed by the Secretary of Labor
pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977 (“Mine Act”
or “Act”), 30 U.S.C. §§ 815, 820. The Secretary, on behalf of the Mine Safety and Health
Administration (“MSHA”), issued one citation to CEMEX Group, Inc. (“CEMEX”), for an
alleged violation of a mandatory safety standard on fall protection, which provides in relevant part
that “[s]afety belts and lines shall be worn when persons work where there is a danger of falling.”
30 C.F.R. § 56.15005. In addition, the Secretary alleges that the violation was the result of low
negligence and was “S&S” – i.e., it significantly and substantially contributed to the cause and
effect of a mine safety hazard.1 CEMEX timely contested the Secretary’s assessment of civil
penalty, and the case was assigned to me for adjudication.
I. STATEMENT OF THE CASE
On November 5, 2010, I held a conference call with counsel for the Secretary and with
CEMEX, who appeared pro se through its representative Gayle R. Harrison. The parties agreed
that the facts in this matter were not in dispute and the case could be disposed of through a motion
for summary decision. I asked that the parties confer to establish a joint statement of uncontested
material facts and requested that the Secretary then initiate a motion for summary decision, after
which CEMEX would file a written response.
On December 1, 2010, the Secretary filed Petitioner’s Motion for Summary Decision
pursuant to Commission Rule 67. 29 C.F.R. § 2700.67. Under Commission Rules 7, 8, and 10,
CEMEX had until December 20, 2010 to file a written response. 29 C.F.R. §§ 2700.7-.8, .10. On
December 14, 2010, my office received a phone call from Harrison asking what he should do
1

The S&S terminology is taken from section 104(d)(1) of the Act, which distinguishes as
more serious any violation that “could significantly and substantially contribute to the cause and
effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d)(1).
33 FMSHRC 1169

next. That day, I instructed my law clerk, Joshua Shaw, to grant CEMEX 30 days to file a written
response to the Secretary’s motion.
On December 16, 2010, CEMEX filed a one-page letter responding to the Secretary’s
motion. Harrison wrote: “I do not want to rescind my opportunity to state my case, as I was led
to believe that a motion for summary decision might bring that about. I apologize for my lack of
knowledge in legal proceedings, but I don’t think that should preclude the mine operator from
defending himself in legal action.” (Letter from G. Harrison to J. Shaw of 12/16/2010.) Harrison
then set forth his arguments for CEMEX in response to the Secretary’s motion for summary
decision. (Id.)
Thus, on January 11, 2011, I issued an order allowing CEMEX to file an additional written
response to the Secretary’s motion by January 31, 2011, if it wished to do so. Given Cemex’s pro
se status, I wanted to ensure it would have a full opportunity to defend itself in the matter. On
January 24, 2011, Harrison stated in an email to my law clerk: “I returned to you what was
essentially my defense in a letter dated 12-16-10. Other than the contents of that letter, I have no
more input to present supporting my position in KENT 2009-1197-M.” (Email from G. Harrison
to J. Shaw of 1/24/2011.)
II. ISSUES
In contesting the civil penalty petition, CEMEX argues that it should not be held liable for
the driver’s violation because he was employed by Pyles Trucking, Inc., an independent
contractor. Harrison asserts the inspector stated, “[A]ccording to MSHA standards I cannot
legally write a citation to the contract carrier, so therefore it must go to the mine operator.”
(Letter from G. Harrison to J. Shaw of 12/16/2010.) Harrison argues that “research indicates that
similar violations have occurred from contract carriers resulting in citations from MSHA.” (Id.)
The Secretary argues that the Act places operators under strict liability for violations of MSHA
safety standards; thus, the driver’s violation should be imputed to CEMEX as a matter of law.
Neither party disputes the validity of the violation or the gravity, negligence, and significant and
substantial designations.
The dispositive issues in this case are whether a mine operator may be held liable when a
driver employed by an independent contractor violates a mandatory safety standard, and if so,
whether the assessed penalty is appropriate.
III. FINDINGS OF FACT
The parties agree that the following material facts are undisputed in this case.
Cemex operates Kosmos Cement Company (“Kosmos”), a mine as defined by 30 U.S.C. §
802(h)(1). The Kosmos mine is located in Jefferson County, Kentucky. (Secretary’s Mot. for
Summ. Decision ¶ 3.)
On April 21, 2009, MSHA inspector Sonia Conway conducted a regular inspection of the
Kosmos mine. (Id. at ¶4.) During the inspection, she observed the driver of a tractor trailor
tanker standing on top of the tanker, attempting to close a hatch. (Id.) The top of the tanker was
33 FMSHRC 1170

about three-feet wide and rounded, and the driver stood approximately twelve feet above the
ground. (Id.) He was not wearing a line, safety belt, or other fall protection. (Id.) Conway also
observed gusty wind conditions at the time the driver stood on top of the tanker. (Id.)
On the day of the inspection, CEMEX had posted signs at the entrances to Kosmos,
informing customers that they were required to use the provided enclosed safety platforms to
access the tops of the tankers. (Id. at ¶ 5.) CEMEX posted similar signs at the platforms
themselves. (Id.)
The driver who Conway observed was not a CEMEX employee but a driver for Pyles
Trucking, Inc. (Id. at ¶ 4.) Pyles Trucking is an independent company that contracts with
CEMEX customers to pick up the product from Kosmos for delivery. (Id.) Conway spoke to the
driver after he descended from the tanker roof, and they discussed what she had seen. (Id. at ¶ 6.)
The driver indicated that he knew CEMEX policy forbade customers from standing on top of their
tractor trailer tankers and that, instead, customers were required to use the enclosed safety
platforms. (Id.) He admitted to entering the enclosed safety platform, lifting its protective
barricade, and climbing on the tanker roof. (Id.)
Conway thereafter issued Citation No. 6512890 to CEMEX for a violation of 30 C.F.R.
§ 56.15005. (Id. at ¶ 7.) In the citation, “[s]he assessed the violation as reasonably likely to
occur, as having a risk of causing fatal injury, and as serious [sic] and substantial.” (Id.) Conway
determined that CEMEX’s negligence was low. (Id.)
IV. PRINCIPLES OF LAW
Commission Rule 67(b) sets forth the grounds for granting summary decision and provides
as follows:
A motion for summary decision shall be granted only if the entire record, including
the pleadings, depositions, answers to interrogatories, admissions, and affidavits,
shows:
(1) That there is no genuine issue as to any material fact; and
(2) That the moving party is entitled to summary decision as a matter of law.
29 C.F.R. § 2700.67(b) (2010).
With regard to the issue of operator liability, the Commission and various courts have long
recognized that the Act imposes strict liability on mine operators for violations of mandatory
safety standards, regardless of fault, even for violations committed by contractors. Dotson
Trucking Co., 22 FMSHRC 441, 446 (Mar. 2000) (holding a mine operator liable for a violation
caused by an independent contractor); Cyprus Indus. Minerals Co. v. FMSHRC, 664 F.2d 1116,
1119 (9th Cir. 1981) (noting that if the Secretary could not cite a mine operator for a contractor’s
violations “the owner could evade responsibility for safety and health requirements by using
independent contractors for most of the work”). Section 110(a)(1) of the Act provides that “the
operator of a coal mine or other mine in which a violation occurs of a mandatory health or safety
standard . . . shall be assessed a civil penalty by the Secretary.” 30 U.S.C. § 820(a)(1). The
33 FMSHRC 1171

statute’s plain language indicates that “when a violation of a mandatory safety standard occurs in a
mine, the operator is automatically assessed a civil penalty.” Ascaro v. FMSHRC, 868 F.2d 1195,
1197 (10th Cir. 1989). Moreover, the Commission and courts have held that the Secretary has
wide enforcement discretion and may proceed against an independent contractor, an operator, or
both for a given violation. Carmeuse Lime & Stone, 29 FMSHRC 815, 820 (Sept. 2007); Dotson,
22 FMSHRC at 446.
V. ANALYSIS AND CONCLUSIONS OF LAW
A.

Operator Liability

Commission case law on operator liability for a contractor’s actions is clear and longstanding. As a mine operator, CEMEX may be held liable for all safety violations that occur at
the mine, including those committed by the employees of its contractors. Bluestone Coal Corp.,
19 FMSHRC 1025, 1032 (Jun. 1997) (holding a mine operator liable for safety violations
committed by a truck driver employed by an independent contractor); see El Paso Quarry, 1
FMSHRC at 2047 (holding a mine operator liable for safety violations committed by a customer
while he picked up product from a mine). Whether CEMEX and the driver had a formal
contractual relationship is immaterial; even customers who fail to comply with standards on mine
property are “miners” within the meaning of the Act, and the operator will be held liable for their
violations. C.D. Livingston, 7 FMSHRC 1485, 1487 (Sept. 1985) (citing El Paso Quarry, 1
FMSHRC 2046, 2047 (Dec. 1979)). Thus, CEMEX is liable for the actions of the Pyles Trucking
driver while on the Kosmos mine property, regardless if Conway was wrong in her belief she
could not cite the contractor. Conway could have cited CEMEX, Pyles Trucking, or both.
Carmeuse Lime & Stone, 29 FMSHRC at 820. I determine that the Secretary properly cited
CEMEX for the driver’s conduct, despite the fact he is employed by an independent contractor.
Therefore, based on the above analysis I conclude that CEMEX was properly cited for a
violation of 30 C.F.R. § 56.15005, even though the violation was committed by an employee of
one of its contractors. Consequently, the Secretary is entitled to summary decision as a matter of
law pursuant to 29 C.F.R. § 2700.67.
B.

Penalty

The Commission outlined its authority for assessing civil penalties in Douglas R. Rushford
Trucking, stating that “the principles governing the Commission’s authority to assess civil
penalties de novo for violations of the Mine Act are well established.” 22 FMSHRC 598, 600
(May 2000). While the Secretary’s system for points in Part 100 of 30 C.F.R. provides a
recommended penalty, the ultimate assessment of the penalty is solely within the purview of the
Commission. Id. Thus, a Commission Judge is not bound by the penalty recommended by the
Secretary. Spartan Mining Co., 30 FMSHRC 699, 723 (Aug. 2008). The de novo assessment of
civil penalties does not require each of the penalty assessment criteria to be given equal weight.
Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997).
Here, the inspector viewed the driver standing atop the tanker in plain sight, and the driver
stated that no one from CEMEX prevented him from accessing the tanker roof in this manner.
33 FMSHRC 1172

However, it is clear the driver knew of CEMEX’s policy requiring him to use the enclosed safety
platform – he simply chose to ignore it. Indeed, CEMEX provided drivers with enclosed safety
platforms so they could safely access the tanker hatch and posted numerous signs notifying drivers
they were required to use the platforms. Moreover, the driver is a contractor and not an employee
subject to the discipline schemes of the operator. I note the operator does not contest the gravity,
negligence, or S&S designations. Nevertheless, after reviewing all these facts when weighing the
section 110(i) factors, especially as they relate to the operators level of negligence, I determine
these mitigating factors should be reflected in the penalty. I therefore conclude that a penalty of
$500.00 for the violation is appropriate.
VII. ORDER
In view of my conclusions above, it is ORDERED that Petitioner’s Motion for Summary
Decision is GRANTED. Citation No. 6512890 is hereby AFFIRMED.
WHEREFORE, the Respondent is ORDERED to pay a penalty of $500.00 within
40 days of this decision. Upon receipt of full payment, this case is DISMISSED.

/s/ Alan G. Paez
Alan G. Paez
Administrative Law Judge
Distribution:
Jonathan Hoffmeister, Esq., U.S. Department of Labor, Office of the Solicitor, 61 Forsythe Street,
SW, Suite T710, Atlanta, GA 30303
Gayle R. Harrison, Safety Manager, Cemex/Kosmos Cement, 15301 Dixie Hwy., Louisville, KY
40272
/nev

33 FMSHRC 1173

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19th STREET, SUITE 443
DENVER, CO 80202-2500
303-844-5266/FAX 303-844-5268

May 3, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
BLACK BEAUTY COAL COMPANY,
Respondent

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CIVIL PENALTY PROCEEDING
Docket No. LAKE 2009-565
A.C. No. 12-02295-188278

Mine: FranciscoMine-Underground Pit

DECISION
Appearances:

Awilda Marquez, Pam Mucklow, Office of the Solicitor, U.S. Department of
Labor, Denver, Colorado, for Petitioner;
Arthur Wolfson, Dana Svendsen, Jackson Kelly, Pittsburgh, Pennsylvania,
for Respondent.

Before:

Judge Miller

This case is before me on a petition for assessment of civil penalty filed by the Secretary of
Labor, acting through the Mine Safety and Health Administration, against Black Beauty Coal
Company at its Francisco Mine, pursuant to sections 105 and 110 of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. '' 815 and 820 (the "Mine Act" or "Act"). This case was heard
along with six other dockets that involve alleged violations at Black Beauty’s Air Quality #1
Mine. However, this decision is being issued separately due to the number of citations in the
other dockets and the length of the decision. This case involves four alleged violations with a
total proposed assessment of $49,463.00. The parties have settled three of the violations, leaving
one citation for decision after hearing. The parties presented testimony and documentary evidence
at a hearing held in Evansville, Indiana that commenced on February 15, 2011.
I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
Black Beauty Coal Company, ("Black Beauty") operates the Francisco Mine (the "mine"),
a bituminous, underground coal mine near Vincennes, Indiana. The mine is subject to regular
inspections by the Secretary’s Mine Safety and Health Administration ("MSHA") pursuant to
section 103(a) of the Act, 30 U.S.C. ' 813(a), as well as spot inspections. The parties stipulated
33 FMSHRC 1174

that Black Beauty is the operator of the mine, that the mine’s operations affect interstate
commerce, and that it is subject to the jurisdiction of the Mine Act. Jt. Ex. 1, Stip. 1-7; (Tr. 587
588). Black Beauty is owned by Peabody Energy and is considered a large operator.
a. Citation No. 6682485
On April 21, 2009, Inspector Shaun Batty issued Citation No. 6682485 to Black Beauty
for an alleged violation of section 75.380(d)(7)(iv) of the Secretary’s regulations. The citation
alleges that:
The lifeline located in the North West sub main secondary escape
way from cross cut 1 through cross cut 4 is not located in such a
manner for miners to use effectively to escape. The lifeline in the
affected area measures approximately 7 feet up to 12 1/2feet above
the mine floor, for a distance of approximately 120 feet. The
operator tried but was unable to pull the lifeline down therefore in
the event of a disaster the miners trying to use the lifeline to escape
would not have been able to keep hold of the lifeline and safely exit
the mine. The operator immediately began taking action to correct
the hazard.
The inspector found that a fatal injury was reasonably likely to occur, that the violation was
significant and substantial, that fourteen persons would be affected, and that the violation was the
result of high negligence on the part of the operator. The Secretary has proposed a civil penalty in
the amount of $40,180.00.
1. The Violation
Shaun Batty, a MSHA mine inspector, has worked for the Mine Safety and Health
Administration for nearly four years. (Tr. 14). Prior to his employment with MSHA, Batty
worked in the mining industry for ten years. Id. Batty explained that the Francisco mine is
located near Francisco, Indiana and is a gassy mine that is subject to spot inspections. The mine
operates three shifts per day and utilizes the room and pillar mining method. Inspector Batty
arrived at the mine on April 21, 2009 at approximately 7:05 am to conduct a regular inspection.
He was accompanied on the inspection by Chad Dudley, a Black Beauty representative. (Tr. 16).
After viewing the directional lifeline in the number two secondary escapeway, he cited a
violation of 30 C.F.R. ' 75.380(d)(7)(iv) which requires that “[e]ach escapeway shall be . . .
[p]rovided with a continuous, durable directional lifeline or equivalent device that shall be . . .
[l]ocated in such a manner for miners to use effectively to escape". Batty observed that a length of
approximately 100 to 110 feet of the lifeline was 7 to 12 feet above the mine floor and could not
be reached by miners. (Tr. 18). Batty requested that Dudley reach up and attempt to pull the
lifeline down to a location where it could be held. Dudley walked to a nearby area where the
lifeline was at a height that allowed him to reach up and grasp it. Dudley attempted to pull the
lifeline down from the roof to a height that would allow a miner to use it to quickly escape the
33 FMSHRC 1175

mine. Dudley was unable to successfully pull the line down to a reasonable height. (Tr. 19).
Batty also attempted to pull the lifeline down but was unable to do so. Batty explained that, in the
event of a mine fire where smoked filled the mine, a miner would be unable to use the lifeline for
a distance of 100 to 110 feet. The lack of the lifeline over that distance created a hazard such that,
when lost in smoke, a miner would not be able to locate or use the lifeline and, therefore, would
have difficulty safely and quickly exiting the mine. (Tr. 18-19).
Chad Dudley, a maintenance supervisor who accompanied Batty, has worked on belt
drives and equipment for the past two years and has seven years of mining experience. He
testified that he traveled with Batty on the rubber-tired diesel equipment as they traveled to the
newer #2 unit. (Tr. 56-57). Dudley agreed that the lifeline was at an unreachable height and that
he was not able to pull it down to an accessible height for the distance described by Batty.
However, Dudley disagrees that the position of the lifeline, high above the reach of a miner,
created a hazard. (Tr. 63-64).
Dudley believes that the lifeline was seven to twelve feet above the mine floor because the
mine had been grading the road as part of the construction of an undercast, i.e., a ventilation
structure to separate the air courses. He testified that no one would travel on the road through the
area while the grading was being completed. Once the grading was complete, the overcast was to
be put in place. In this instance, the grading had been completed on Saturday or Sunday but, by
the time the inspector arrived on Tuesday, the overcast had not yet been put in place. (Tr. 59-60).
The Commission has regularly held that an escapeway is important and must be always
ready to use for a safe and quick escape in the event of an emergency. In American Coal
Company, 29 FMSHRC 941 (Dec. 2007), the Commission discussed the importance of
escapeways and concluded that:
There is no disputing that escapeways are needed for miners to
quickly exit an underground mine and that impediments to a
designated escapeway may prevent miners from being able to do so.
The legislative history of the escapeway standard states that the
purpose of requiring escapeways is "to allow persons to escape
quickly to the surface in the event of an emergency.” S. Rep No.
91-411, at 83, Legis.Hist., at 209 (1975).
29 FMSHRC at 948.
In this case, the existence of a continuous lifeline is the means to
quickly and safely exit the mine. Given that there is no dispute that the lifeline was at a height of
seven to twelve feet above the mine floor, I find that the lifeline was not located such that a miner
could effectively use it. For the foregoing reasons, I find that the Secretary has demonstrated the
violation as alleged.
2. Significant and Substantial Violation
A significant and substantial ("S&S") violation is described in section 104(d)(1) of the Act
as a violation “of such nature as could significantly and substantially contribute to the cause and
33 FMSHRC 1176

effect of a coal or other mine safety or health hazard”. 30 U.S.C. ' 814(d)(1). A violation is
properly designated S&S “if, based upon the particular facts surrounding that violation, there
exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature.” Cement Div., Nat=l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
The Commission has explained that:
[i]n order to establish that a violation of a mandatory safety standard
is significant and substantial under National Gypsum, the Secretary
of Labor must prove: (1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard--that is, a measure of
danger to safety--contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury; and
(4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861 F.2d 99,
103-04 (5th Cir. 1988), aff=g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987)
(approving Mathies criteria).
The difficulty with finding a violation S&S normally comes with the third element of the
Mathies formula. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the
Commission provided additional guidance:
We have explained further that the third element of the Mathies
formula “requires that the Secretary establish a reasonable
likelihood that the hazard contributed to will result in an event in
which there is an injury.” U.S. Steel Mining Co., Inc., 6 FMSHRC
1834, 1836 (August 1984). We have emphasized that, in accordance
with the language of section 104(d)(1), it is the contribution of a
violation to the cause and effect of a hazard that must be significant
and substantial. U.S. Steel Mining Co., Inc., 6 FMSHRC 1866,
1868 (August 1984); U.S. Steel Mining Co., Inc., 6 FMSHRC 1573,
1574-75 (July 1984).
This evaluation is made in consideration of the length of time that the violative condition existed
prior to the citation and the time it would have existed if normal mining operations had continued.
Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc., 6 FMSHRC
at 1574. The question of whether a particular violation is S&S must be based on the particular
facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988) Youghiogheny &
Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
I have found that there is a violation of the mandatory safety standard as alleged by the
Secretary. Second, I find that a discrete safety hazard existed as a result of the violations, i.e., the
33 FMSHRC 1177

danger of not being able to access or use the lifeline in the event of an emergency where visibility
is reduced and miners must rely upon the tangible nature of the lifeline to quickly and safely
escape the mine. While there may be safety measures in place, they do not take away from the
fact that an incident necessitating the use of the lifeline is likely to occur in this gassy mine.
Third, the hazard described will result in an injury. Fourth, and finally, that injury will be serious
or even fatal.
While I do not disagree with the Secretary’s argument that escapeway violations and
citations that deal with emergency requirements should be subject to a presumption that an
emergency will occur, no such presumption is required in this case. Batty explained that, based
on the history of similarly situated mines, as well as his own experience, there is a likelihood of
fire or explosion. There is a well-documented history of fires and explosions in underground
mines where the lack of visibility and potential disruption in ventilation have caused miners to
lose their lives. The Francisco mine is a gassy mine. On the day of the inspection, Batty observed
a belt out of alignment in the entry adjacent to the escapeway. The belt rubbing on the metal of
the conveyor was a heat source that would ignite the coal and coal dust if the conditions remained
as he observed them. (Tr. 21-22). In addition, Batty has cited the mine in the past for extensive
accumulations along the belt lines and on electrical and diesel powered equipment. (Tr. 22-23).
Batty believes that there is a real likelihood of a fire and explosion that would bring in to play the
lifelines in the escapeway.
Batty further addressed the likelihood of an accident or explosion when he testified that
this is a gassy mine that, at the time of the inspection, was subject to a ten day spot inspection.
Given the continued course of mining, the fact that this is considered a gassy mine, and the
previous violations, I am persuaded that an emergency is reasonably likely to occur in the course
of continued mining operations. It may be reasonably inferred that, in the continued mining
operations and given the presence of accumulations and ignition sources, a fire was reasonably
likely to occur which would have necessitated the use of the lifeline. See Enlow Fork Mining Co.,
19 FMSHRC 5, 9 (Jan.1997); Texasgulf, Inc., l0 FMSHRC 498, 501(Apr. 1988). Any fire or
explosion necessitating the use of the cited lifeline would certainly have resulted in miners being
seriously, or even fatally, injured.
In Batty’s view, the fact that there is another, primary, escapeway does not take away from
the hazard, as the other escapeway is equally vulnerable to the effects of a fire. (Tr. 23-24).
When an explosion or fire does occur, mines quickly fill with smoke, thereby making it difficult,
if not impossible, to see. Batty described the consequences of a fire or explosion in a mine
without an accessible lifeline by stating that ”the visibility it’s next to nothing, you can’t see your
hand in front of your face. You’re in such a panic, you’re tripping, your stumble hazard, not being
able to grab ahold of [the] lifeline." Ex (Tr.25).
.5
De
Lifelines serve the important purpose of facilitating a miner’s quick and safe exit from a
lib
mine. Miners expect to easily locate er
and grab hold of the lifeline. Even if they can’t see it, they
are trained to know where it should be
ati and how to find it. If the lifeline is not where it is expected
to be, the miners become disorientedve
and it becomes even more difficult to safely and quickly

escape, especially when combined with tripping and stumbling hazards along the escapeway that
33 FMSHRC 1178

may not be visible. There are not always mantrips available on the section, and even if one is
available, the lack of visibility would hinder the ability to drive it out of the mine. Hence, if an
escaping miner cannot reach the lifeline for 110 feet, he will become disoriented in a matter of
seconds, could stumble and fall, and not know which way to travel to exit the mine. A miner
unable to quickly find his way out would be exposed to toxic fumes and carbon dioxide. Serious
injury or death would occur. Moreover, the likelihood of injuries or death increases as the
distance of unavailability of the lifeline increases. There were 14 miners on the section at the time
the citation was issued, all of whom would have been affected by this condition. In addition,
approximately 28 miners could have been affected if a fire or explosion were to occur during a
shift change. (Tr. 27).
Based on his experience and training, Batty determined that the lack of a lifeline over the
cited distance was a hazard that was reasonably likely to cause an injury. The hazard would result
in loss of life if this condition were allowed to exist during the continued course of mining. This
mine is currently on a 103(i) spot inspection every 5 days, but was on a ten day spot at the time of
the citation due to the large quantities of methane liberated. (Tr. 33). The mine argues that the
methane is primarily emitted at the sealed areas of the mine but, nonetheless, the mine is
considered a gassy mine.
In reaching my conclusion that this violation is significant and substantial, I have
considered the arguments set forth by Black Beauty. The mine argues that this is a secondary
escapeway and that miners are trained to first use the primary escapeway. Further, if using the
secondary escapeway the miners would first attempt to drive out of the mine. (Tr. 57-58, 64). I
credit Batty’s testimony that the existence of the other, primary, escapeway does not take away
from the hazard. Trained miners are still susceptible to panic and disorientation. The mine also
argues that the nature of the ventilation system was such that if a miner became disoriented, he
could easily correct his direction of travel by feeling the direction the air was blowing and
determining if he was heading the right way. (Tr. 65). Again, I credit Batty’s testimony regarding
the panic and disorientation that miners often exhibit in an emergency. (Tr. 49-50).
I conclude that a preponderance of the evidence establishes that it was reasonably likely
that the unreachable, and thus unusable, lifeline created a hazard, that the condition was
reasonably likely to result in injury causing event, and that the injuries would be serious or fatal. I
rely primarily on the testimony of Inspector Batty in reaching this conclusion. I find that the
Secretary has satisfied the four Mathies criteria and established the violation as S&S.
3. High Negligence
When Batty arrived in the area, he immediately noticed that the lifeline was 7 to 12 feet
above the ground. This condition existed for a distance of at least 100 feet. In Batty’s view,
management directed the building of the overcast. The grading of the road began on April 16th,
i.e., five days prior to the citation he issued on April 21st. (Tr. 28). When the floor was lowered,
the lifeline was kept in place instead of being dropped with the floor. The obvious violative
condition existed for 5 days while superintendents, examiners, and foreman all traveled in the
area. Management had to travel by the inaccessible lifeline during every shift for each of the five
33 FMSHRC 1179

days. The lifeline was in the travelway, and had reflective material which causes it to stand out
and be more likely to be seen. (Tr. 28-29).
In this case, the lifeline was in a location that could not be reached by anyone, but was
visible to everyone, for at least five days. The operator argues that, although the lifeline was
higher than it should have been for a number of days, the mine was in the process of building an
overcast. According to the mine, the road had been graded but the overcast was not yet in place at
the time the violation was issued. However, I find that the mine did not offer a reasonable
justification to have left the lifeline out of reach for the five days.
Based upon the credible evidence, the Respondent allowed the obvious condition to go
uncorrected for an unjustified extended period of time. I find that the violation is a result of the
operator's Ex high negligence.
.5
De
II. PENALTY
lib
er
Theatiprinciples governing the authority of Commission administrative law judges to assess
civil penalties
ve de novo for violations of the Mine Act are well established. Section 110(i) of the

Mine Act delegates to the Commission and its judges the authority to assess all civil penalties
provided in the Act. 30 U.S.C. ' 820(i). The Act delegates the duty of proposing penalties to
the Secretary. 30 U.S.C. 815(a), 820(a). Thus, when an operator notifies the Secretary that it
intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29
C.F.R. ' 2700.28. The Act requires that, in assessing civil monetary penalties, the Commission
ALJ shall consider the six statutory penalty criteria:
[1] the operator’s history of previous violations, [2] the
appropriateness of such penalty to the size of the business of the
operator charged, [3] whether the operator was negligent, [4] the
effect on the operator’s ability to continue in business, [5] the
gravity of the violation, and [6] the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after
notification of a violation.
30 U.S.C. 820(i).
I accept the stipulation of the parties that the proposed penalty is appropriate to this
operator’s size and ability to continue in business and that the violations were abated in good
faith. The history of violations at this mine is normal for its size.1 The size of the operator is
1

At hearing, the Secretary mistakenly submitted a history of violations for a different
mine than the Francisco mine. Consequently, I take judicial notice of the history of violations at
the Francisco Mine for the time period 1/4/2008 through 4/21/2009. This information is publicly
available on the MSHA website at http://www.msha.gov/drs/drshome.htm.
33 FMSHRC 1180

large. I have discussed the negligence and gravity associated with the citation above and I accept
the designations of negligence and gravity as set forth in the citation. After considering all of the
penalty criteria, I assess a penalty of $45,000.00 for the citation discussed above.
The parties have settled the remaining citations in this docket. The terms of the settlement
are as follows:
Citation
No.

Cited
Standard

Originally
Proposed
Assessment

Settlement
Amount

Modification

8415720

75.370(a)(1)

$2,473.00

$499.00

Reduction in gravity to Non-S&S.

8415901

75.1714-6

$3,405.00

$687.00

Reduction in gravity to Non-S&S.

8415902

75.1914(f)

$3,405.00

$207.00

Reduction in gravity to Non-S&S;
reduction in negligence to Moderate.

$9283.00

$1393.00

Total

I have considered the representations submitted by the parties and I conclude that the proposed
settlement is appropriate under the criteria set forth in section 110(i) of the Act. The motion to
approve settlement is GRANTED.

33 FMSHRC 1181

III. ORDER
Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. ' 820(i), I assess the
penalties listed for the citation heard and the settled citations listed above for a total penalty of
$46,393.00. Black Beauty Coal Company is hereby ORDERED TO PAY the Secretary of Labor
the sum of $46,393.00 within 30 days of the date of this decision.

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

Distribution: (First Class U.S. Certified Mail)
Awilda Marquez, Pamela Mucklow, Office of the Solicitor, U.S. Department of Labor, 1999
Broadway, Suite 800, Denver, CO 80202
Arthur Wolfson, Dana Svendsen, Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401
Liberty Ave., Pittsburgh, PA 15222

33 FMSHRC 1182

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

May 3, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

WOLF RUN MINING COMPANY,
Respondent

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CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 2006-853
A.C. No. 46-08791-090341-01
Docket No. WEVA 2006-854
A.C. No. 46-08791-090341-02
Docket No. WEVA 2007-666
A.C. No. 46-08791-121866-01
Sago Mine

DECISION ON REMAND
Appearances: Robert S. Wilson, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia, for the Petitioner;
R. Henry Moore, Esq., Jackson Kelly PLLC, Pittsburgh, Pennsylvania,
for the Respondent.
Before:

Judge Feldman

These civil penalty matters have been remanded by the Commission for further
consideration. 32 FMSHRC 1669 (Dec. 2010). The subject five citations, that concern lightning
arrester protection for exposed power conductors and telephone wires, were issued following the
Mine Safety and Health Administration (“MSHA”) investigation of the January 2006 Sago Mine
disaster. The explosion, in which 12 miners were killed and one was seriously injured, was
caused by lightning that ignited methane in an inactive area of the mine. Id. at 1670.
The explosion destroyed seals that separated the inactive area from the active workings. Id.
The five citations at issue did not contribute to the accident.
A. Background
The five citations allege violations of the mandatory standard in 30 C.F.R § 75.521.
Section 75.521 states:
[1] Each ungrounded, exposed power conductor and each ungrounded, exposed
telephone wire that leads underground shall be equipped with suitable lightning
33 FMSHRC 1183

arresters of approved type within 100 feet of the point where the circuit enters the
mine. [2] Lightning arresters shall be connected to a low resistance grounding
medium on the surface which shall be separated from neutral grounds [for
underground equipment] by a distance of no less than 25 feet.1
An understanding of the design and function of lightning arresters is essential for an
understanding of the resolution of the issues in this case. The parties have explained the
principles behind the operation of lightning arresters:
A lightning arrester is a device that limits the overvoltage of lightning
or other electrical surges by providing an electrical path between an
ungrounded conductor and earth which is used as the grounding medium.
A simple lightning arrester consists of two contacts that are separated by
an air gap. One contact is connected to the transmission line and the other
is connected to earth. The normal voltage of the circuit cannot bridge the
gap. When an overvoltage occurs it sparks the gap between the contacts.
This creates an electrical path for the excess energy to discharge to earth.
Jt. Ex. 1, at 3.
The Commission’s remand described the interrelationship between the first provision of
section 75.521 that requires lightning arresters, and the second provision that requires ground field
separation. The Commission stated:
When an arrester directs overvoltage from lightning into the ground on the surface
of the mine, an electrical field is created there, and serves as the grounding medium
for that arrester. That area cannot be too close to the separate area serving as the
neutral ground for a mine’s underground electrical equipment, otherwise electrical
current from a lightning strike could travel along the neutral grounding medium to
the underground equipment. To reduce the likelihood of such an event occurring,
the second sentence of section 75.521 requires that the grounding medium for a
lightning arrester must be at least 25 feet away from the neutral grounding medium
for the underground equipment. Tr. 344, 398-400;2 Gov. Ex. 8 (MSHA Program
Policy Manual (“PPM”) excerpt for section 75.521 (stating that “[t]his distance
prevents lightning surges from being transmitted to the neutral ground field where
they could momentarily energize the frames of equipment grounded to the neutral
ground field”).

1

The area designated to serve as the neutral ground for underground equipment is a low
resistance ground bed, which would serve to dissipate electricity from the frames of such
equipment in the event of an electrical fault in the system. Tr. 383-84.
2
References to the trial and oral argument transcripts are by “Tr.” and “OA Tr.,”
respectively, followed by the transcript page.
33 FMSHRC 1184

32 FMSHRC at 1672.
Electrical energy travels in all directions through the path of least resistance. Tr. 315.
Consequently, the purpose of section 75.521 is twofold: (1) to provide arrester protection from
a lightning surge in power conductors and telephone wires situated on the surface that lead
underground; and, (2) to maintain a separation of at least 25 feet between the arrester ground field
on the surface, and the neutral ground for underground equipment, to prevent a lightning surge
from traveling underground.
B. Summary of Disposition
Specifically, the subject citations are: (1) a significant and substantial (“S&S”)3
“grounding medium citation” concerning the 25 feet minimum separation of a lightning arrester
ground field from the neutral grounds in Citation No. 7583340; (2) the failure to install lightning
arresters on power conductors in a 120-volt cable energizing an underground water pump from a
power center on the surface, designated as non-S&S, in Citation No. 7582485; (3) the failure to
install lightning arresters on exposed power conductors in two 575-volt cables that originated
from a power station underground and energized two battery chargers on the surface, designated
as S&S, in Citation Nos. 7583316 and 7583317; and, (4) the failure to install lightning arresters
on two telephone wire conductors and trolley wire conductors that ran from the dispatcher’s office
on the surface and entered the mine through a track entry, designated as S&S, in
Citation No. 7335233.
The initial decision affirmed three of the five citations. The grounding medium and water
pump citations were affirmed. The telephone and trolley wire citation also was affirmed,
although the S&S designation was deleted. 31 FMSHRC 640 (June 2009) (ALJ). The two battery
charger citations were vacated. Id.
In its remand, the Commission did not disturb the initial decision with respect to the
affirmation of water pump Citation No. 7582485.4 32 FMSHRC at 1688. The remand vacated
the affirmation of S&S grounding medium Citation No. 7583340. Id. The initial determination
vacating the two battery charger cable Citation Nos. 7583316 and 7583317 was reversed and
remanded. Id. Finally, the telephone and trolley wire Citation No. 7335233 was affirmed in
result and remanded for a resolution of the S&S issue. Id.

3

Generally, a violation is properly designated as S&S if it is reasonably likely that
the hazard contributed to by the violation will result in a serious injury. Nat’l. Gypsum Co.,
3 FMSHRC 822, 825 (April 1981).
4
As explained herein, there is an important distinction between the energy sources for
the water pump and battery chargers. Unlike the water pump, which was energized from a power
center located on the surface, the battery chargers were energized from an underground power
center that was connected to the neutral grounds.
33 FMSHRC 1185

Following the remand, the parties participated in a telephone conference to discuss the
issues raised by the Commission. The parties agreed to present oral argument, in lieu of filing
briefs. The oral argument was held at the Commission’s Headquarters on March 1, 2011. At the
close of the oral argument, the parties waived the filing of additional briefs.
As discussed herein, S&S grounding medium Citation No. 7583340 shall be affirmed.
Battery charger cable Citation Nos. 7583316 and 7583317 shall be vacated based upon a lack of
adequate notice. As summarized below, the S&S designation in telephone and trolley wire
Citation No. 7335233 shall be deleted.
With respect to the telephone and trolley wire citation, the Secretary argues that a lightning
strike, however remote, should be assumed for the purposes of S&S. The Secretary’s reliance on
assumption is misplaced because whether a hazard posed by a violation can contribute to serious
injury, and whether such injury is reasonably likely to occur, are independent issues. A relevant
lightning strike may be assumed for the limited purpose of determining whether the hazard posed
by a violation is capable of resulting in serious or fatal injuries. With regard to S&S, however,
consistent with Mathies5 and its progeny, the Secretary retains the burden of demonstrating that a
relevant lightning strike event is reasonably likely, in turn, posing the reasonable likelihood that
serious injury or death will occur. The S&S designation shall be deleted because it is not
reasonably likely that a lightning strike will occur in proximity to a particular location. Thus, it
cannot be said that it is reasonably likely that a serious lightning related injury will occur as a
consequence of the cited violation.
C. Separation of Grounding Mediums – Citation No. 7583340
At the Sago Mine, there were three high-voltage power lines, suspended on a series of
poles, that originated from the substation. Gov. Exs. 9, 22, 23; 32 FMSHRC at 1672.
The high-voltage lines were equipped with an overhead “static wire” that provided “umbrella”
type protection from lightning. 32 FMSHRC at 1672. The high-voltage lines were also equipped
with multiple lightning arresters. Id. The static line and the arresters had a common ground to
earth at the base of one of the poles, known as a “butt ground,” via copper wires designed to
transfer energy from a lightning strike. Id. Intermingled with the high-voltage lines was a cable
powering stacker belts that were located entirely above ground. Id. It is undisputed that one end
of the copper ground wire in that cable was connected to the butt ground. Id.
i. Connection to the Belt Structure
The Secretary’s mine inspectors testified, as alleged in Citation No. 7583340, that the
other end of the ground wire in the cable was connected to the metal frame of the conveyer belt
which, in turn, was connected to the neutral grounds through the underground power center. Id. at
5

As discussed infra, the Commission initially articulated the parameters for its
analysis of whether a violation is significant and substantial in Mathies Coal Co., 6 FMSHRC 1
(Jan. 1984).
33 FMSHRC 1186

1672-73. In contrast, Wolf Run’s safety manager, John Stemple, denied that the ground wire was
attached to the belt structure. Stemple asserted that the ground wire entered a steel pipe through a
weatherhead where it connected to an electrical control box that powered the stacker belts. Tr.
727-28. In such a case, the butt ground would not have been connected to the neutral grounds.
Resolution of this issue is necessary to determine the fact of the alleged violation.
If the ground wire was attached to the belt structure as alleged, it constituted a violation of the
provision of section 75.521 that requires the arrester butt ground and the neutral grounds to be
separated by at least 25 feet. The Commission’s remand directs that I resolve this underlying
credibility issue.
Although the initial decision did not explicitly discredit Stemple’s testimony, the
decision credited the testimony of MSHA inspectors James Honaker and Arthur Wooten,
both of whom observed that the ground wire was attached to the belt structure. Tr. 69-71, 332,
359, 831. Their observations were discussed with Dave Mason, an electrical contractor employee,
and Larry Dean, an electrician employed by Wolf Run, who were also present at the time of
Wooten’s and Honaker’s observations. Tr. 831-34. Significantly, Wolf Run did not call
Dean to rebut the recollections of Honaker and Wooten. More significant however, is the
contemporaneous diagram drawn by Honaker, dated February 8, 2006, which depicts a
“solid connection” between the cable’s ground wire and the belt structure frame. Tr. 832-33;
Gov. Ex. 22.
At oral argument, Wolf Run conceded that the record does not reflect when Stemple
observed the subject ground cable. OA Tr. 23. Moreover, Stemple’s assertion, without more, is a
self-serving exculpatory statement entitled to little weight. In the final analysis, the weight of the
evidence based on the objective and corroborated observations of two mine inspectors, as well as
their contemporaneous notes, supports the fact of the violation with respect to the connected
ground fields.
ii. Conductivity of the Belt Structure
The remand also directed that I address Wolf Run’s alternative argument that,
even if a belt structure connection was established, the belt structure lacked the conductivity
to constitute a violation of the ground field separation requirement in section 75.521.
32 FMSHRC at 1676-77. Specifically, Wolf Run contends the belt structure was incapable of
conducting electrical current the distance of approximately 75 feet that separated the grounded
connection at the frame from the stacker motor.6 OA Tr. 48-50; Gov. Ex. 22. As a threshold
matter, Wolf Run’s assertion concerning the lack of conductivity of the belt structure is
speculative. Moreover, it is not supported by Wooten’s testimony that the belt structure serves as
a grounding medium. Gov. Ex. 9; Tr. 278-80; 341-46. Wooten’s testimony in this regard is
consistent with MSHA’s Sago Mine Accident Report that noted that “grounding conductors for
6

The stacker motor, which was bolted to the conveyor structure, was grounded to the
neutral ground through the underground power center. Gov. Exs. 9, 22.
33 FMSHRC 1187

the belt starters and motors on all conveyor belts were connected to the frames of the starters, the
belt drive motors, and the metal frames of each conveyor belt.” MSHA, Report of Investigation of
the January 2, 2006, Fatal Underground Coal Mine Explosion at the Sago Mine, 163, (2007)
(emphasis added).7
Finally, Wolf Run’s assertion that the belt structure is an ineffective grounding medium is
belied by its own conduct. It is significant, if not dispositive, that Wolf Run’s utilization of the
copper ground wire, by attaching it to the conveyer belt frame, is an evidentiary admission by
conduct.8 In addition, the lack of conductivity argument is also at odds with Wolf Run’s
assertion, articulated during oral argument, that current carried by the belt structure would be
directed to ground at the base of the belt support structure on the surface, rather than to the neutral
ground. OA Tr. 95.
In the final analysis, the evidence supports the fact that the copper ground wire in
the cable energizing the stacker motor was connected to both the belt structure and the arrester
butt ground field. Given the belt structure’s capacity to conduct electricity, the neutral grounds
and the butt ground were not separated by 25 feet as required by section 75.521. Consequently,
the Secretary has demonstrated the fact of the violation cited in Citation No. 7583340.
iii. S&S
Having established the fact of the violation, the remaining issue is the propriety of
the Secretary’s S&S designation. As a general proposition, a violation is properly designated as
S&S if, based on the particular facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to by the violation will result in an injury or an illness of a
reasonably serious nature. Nat’l. Gypsum, 3 FMSHRC at 825. In Mathies, the Commission
explained:
In order to establish that a violation of a mandatory safety standard is significant
and substantial under National Gypsum, the Secretary of Labor must prove:
(1) the underlying violation of a mandatory safety standard; (2) a discrete safety
hazard – that is, a measure of danger to safety – contributed to by the violation; (3)
a reasonable likelihood that the hazard contributed to [by the violation] will result
in an injury; and (4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature.

7

Although not admitted in evidence, the Sago Mine Accident Report is a public
document.
8
“Conduct of a party inconsistent with [its] position on trial is admissible against [it] as
an ‘admission by conduct.’. . . Conduct regarded as an admission is a form of circumstantial
evidence. The inference is from the conduct to the state of mind of the actor, and from his state
of mind to the fact which caused it.” Richardson on Evidence, 10th Ed., § 219.
33 FMSHRC 1188

6 FMSHRC at 3-4; See also Austin Power Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988),
aff'g 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria).
In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission
explained its Mathies criteria as follows:
We have explained further that the third element of the Mathies formula “requires
that the Secretary establish a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 6
FMSHRC 1834, 1836 (Aug. 1984). We have emphasized that, in accordance with
the language of section 104(d)(1), it is the contribution of a violation to the cause
and effect of a hazard that must be significant and substantial. U.S. Steel Mining
Company Co., Inc., 6 FMSHRC 1866, 1868 (Aug. 1984) (emphasis in original).
The Commission subsequently reasserted its prior determinations that as part of any S&S finding,
the Secretary must prove the reasonable likelihood of an injury occurring as a result of the hazard
contributed to by the cited violative condition or practice. Peabody Coal Co., 17 FMSHRC 508
(April 1995); Jim Walter Resources, Inc., 18 FMSHRC 508 (April 1996).
Resolution of whether a particular violation of a mandatory standard is S&S must
be made assuming continued normal mining operations. U.S. Steel Mining, 7 FMSHRC
at 1130. Thus, consideration must be given to both the time frame that a violative condition
existed prior to the issuance of a citation, and the time that it would have existed if normal mining
operations had continued. Bellefonte Lime Co., 20 FMSHRC 1250 (Nov. 1998); Halfway, Inc., 8
FMSHRC 8, 12 (Jan. 1986).
Consistent with Mathies and its progeny, the focus is on the hazard posed by the cited
violation. Section 75.521 seeks to ensure that electrical energy dissipated into the surface butt
ground is not transferred back through the underground mine by way of the neutral ground
medium. Applying Mathies, the first element has been satisfied since the evidence supports the
fact of the violation. The second and fourth elements of Mathies are self evident with respect to
the dangers associated with a lightning strike, and the obvious potential for catastrophic injuries.
This leaves the remaining third element of Mathies that “requires the Secretary to establish a
reasonable likelihood that the hazard contributed to will result in an event in which there is an
injury.” Bellefonte, 20 FMSHRC at 1254-55. In evaluating the likelihood of injury, the analysis
centers on the contribution of the violation to the cause and effect of the electrocution hazard.
U.S. Steel, 6 FMSHRC at 1868.
Ordinarily, a section 75.521 violation involves the failure to provide adequate protection
from lightning. But, here, Wolf Run not only failed to install lightning arresters – it negated any
protection afforded by a grounding medium. In so doing, it provided a direct path for a lightning
surge underground. The third element of Mathies only requires a showing that the violation
contributed to the cause and effect of a hazard. But, here, Wolf Run created the cause and effect
of the hazard by exposing underground miners to the possibility of a lightning surge.
33 FMSHRC 1189

Although lightning striking any given location is not a common occurrence, the likelihood
of serious injury must be considered in the context of exposure to the electrocution hazard posed
by the violation during continued mining operations. Halfway, Inc., 8 FMSHRC
at 12. As noted by the Commission, even if lightning does not strike directly, an indirect strike
can induce thousands of volts and amps of electric current into power conductors. 32 FMSHRC at
1670-71. In such event, the hazard associated with this violation creates the heightened risk of
electrocution that otherwise would not have existed. Thus, it is reasonably likely that serious or
fatal injuries will occur, and, as such, the violation is properly designated as significant and
substantial.9
With respect to Wolf Run’s culpability, inspector Wooten’s attribution of moderate
negligence is supported by the record because the condition was obvious and in plain view.
Tr. 403-05. There are no other mitigating or aggravating penalty criteria factors that affect the
appropriate civil penalty. Given the S&S nature of the violation and its serious gravity, there is no
adequate basis for modifying the $963.00 proposed civil penalty for Citation No. 7583340.10
D. Absence of Arresters on Power Conductors Energizing
Battery Chargers – Citation Nos. 7583316 and 7583317
Citation Nos. 7583316 and 7583317, both designated as S&S, concern the lack of
lightning arresters on two 575-volt cables, both of which originated at a power center located
underground and powered separate battery chargers located on the surface. In the initial
decision, I concluded that “the installation of lightning arresters on power conductors in a
cable that is grounded to the neutral ground is prohibited by section 75.521 because it would
violate the 25 foot minimum separation [required by the section.]” 31 FMSHRC at 658.
The Commission concluded that I erred, because unlike the ground medium violation,
where the butt ground and neutral grounds shared a common ground wire, a ground wire
conductor in a cable containing exposed power conductors does not share a common ground wire
with arresters that direct overvoltage into the ground. 32 FMSHRC at 1683-84.

9

The S&S determination is not based on the assumption of the occurrence of a lightning
strike. Rather it is based on Wolf Run’s creation of the hazard by providing a path for lightning
underground by connecting the butt ground to the neutral ground.
10
The statutory civil penalty criteria in 30 U.S.C. § 820(i) directs the Commission to
consider:
. . . the operator’s history of previous violations, the appropriateness of such
penalty to the size of the business of the operator charged, whether the operator
was negligent, the effect on the operator’s ability to continue in business, the
gravity of the violation, and the demonstrated good faith of the person charged in
attempting to achieve rapid compliance after notification of a violation.
33 FMSHRC 1190

I. Fair Notice Test
Thus, the Commission reversed the initial decision vacating Citation Nos. 7583316 and
7583317 and remanded for a determination of whether there was adequate notice that the term
“‘ungrounded conductor’ . . . include[s] the conductors at issue [in the cables powering the
battery chargers].” 32 FMSHRC at 1686. The Commission noted that considerations of due
process prevent an agency from enforcing a regulation if “validat[ion] [of] the application of a
regulation . . . fails to give fair warning of the conduct it prohibits or requires.” 32 FMSHRC at
1682 citing Gates & Fox Co. v. OSHRC, 790 F.2d 154, 156 (D.C. Cir. 1986). The Commission
summarized its test for fair notice in its remand:
The Commission’s test for notice under the Mine Act is ‘whether a reasonably
prudent person familiar with the mining industry and the protective purposes of
the standard would have recognized the specific prohibition or requirement of the
standard.’ Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990). In deciding
whether a party had adequate notice of regulatory requirements, a wide variety of
factors is relevant, including the text of a regulation, its placement in the overall
regulatory scheme, its regulatory history, the consistency of the agency’s
enforcement, and whether MSHA has published notices informing the regulated
community with ascertainable certainty of its interpretation of the standard in
question.
32 FMSHRC at 1682 (citations omitted).
i. Multi-Directional Path of Electricity
Undermining Purpose of Section 75.521
The lack of efficacy in the application of section 75.521 to the subject battery charger
power conductors is central to resolution of the due process notice issue remanded by the
Commission. While equipping arresters on exposed (surface) power conductors in a cable
grounded to the neutral ground is not strictly prohibited by section 75.521, the weight of the
evidence reflects that such installation would not adequately protect underground miners from a
lightning strike. Unlike the cables powering the stacker motor, the water pump, and the
telephone system, the cables powering the battery chargers are connected to the neutral ground
medium through the underground power center. As explained below, given the multi-directional
path of electricity, equipping arresters on exposed conductors in cables grounded to the neutral
grounds through an underground power center, would be at odds with the purpose of the
regulation.
As previously noted, electrical energy travels in all directions through the path of least
resistance. Thus, power conductors, ground wire conductors, and lightning arresters can transfer
electrical energy in all directions. Tr. 447. As such, the overvoltage resulting from lightning,
capable of as much as a million volts, can bridge the gap, in both directions, between arresters
and conductors. In such event, energy transferred back from the arrester to the power and ground
33 FMSHRC 1191

conductors in the battery cables will provide a path for an electrical surge to enter underground.
In this regard, Wooten testified that “a lot” of electrical current can be transferred, “both ways,”
from lightning arresters through the underground mine through the ground wire conductor in the
cable. Tr. 448. Specifically, Wooten explained:
Moore: And when you have lightning causing current to move in a cable, and I
think you said repeatedly here this morning, it will go in all directions?
Wooten: All directions, all paths.
Moore: All paths?
Wooten: Yes, sir.
Moore: Some of it will go down – if there’s a lightning arrester, will go down the
lightning arrester?
Wooten: Yes.
Moore: Some of it may go, for example, if you have a ground in that cable, it may
go along the ground?
Wooten: Yes, sir. And it grounds to the equipment.
Moore: Well, actually the ground is designed – it normally has no current on it,
does it?
Wooten: No, sir. Normally.
Moore: And it’s designed to take electricity from the equipment and take it to the
ground bed?
Wooten: That’s correct.
Moore: And if you have lightning-induced electricity in a cable, and it’s induced
on the grounding conductor, it will take that to the [neutral]ground bed, that’s
what it’s intended to do?
Wooten: It takes it both ways. All paths.
Moore: So it will take it, some of it, to the ground field?
Wooten: That’s correct.

33 FMSHRC 1192

Moore: Now, I’m puzzled here. We’ve got a grounding conductor essentially
from the lightning arrester into the ground?
Wooten: Yes, sir.
Moore: And because that lightning arrester’s hooked into the phase conductors, it
too may send current into the phase conductors; isn’t that right?
Wooten: You mean backwards?
Moore: Yes.
Wooten: It could.
Moore: Well, you said on the grounding conductor in the cable that it could send
it both ways?
Wooten: Uh-huh (yes).
Moore: You’re nodding your head. I assume you mean yes?
Wooten: I said yes.
Moore: So you have a grounding conductor for the lightning arrester, and it could
send it both ways?
Wooten: Yes.
Moore: And so it could send it not only into the ground but it could also send it in
the phase conductor?
Wooten: That’s correct.
Moore: So if you have lightning and you have a lightning arrester, you could be –
assuming you’d get a small enough strike it just affected the lightning arrester, it
would be sending current into the mine too, right?
Wooten: It could, yes.
Moore: And you can’t really quantify how much will go down into the ground
from the lightning arrester and how much will go back into the phase conductor
from the lightning arrester?
Wooten: I can’t.
33 FMSHRC 1193

Moore: And if any of us have looked at the equations that Sandia did in their
analysis of how far lightning would go for the [accident] report, we’d all sort of
say maybe they can’t, right? Because Sandia did an analysis, did they not?
Sandia National Laboratories did an analysis for that report that tried to analyze
particular strikes and particular locations, did they not?
Wooten: Yes.
Moore: And you can’t really quantify for any current that’s put onto the
grounding conductor in a cable by lightning how much will go to the ground bed
and how much will go toward the equipment?
Wooten: No, sir. But the magnitude of it, it’s going to be a lot both ways.
Moore: A lot both ways?
Wooten: A lot both ways.
Moore: And probably the magnitude from the current induced in the lightning
arrester will be a lot both ways, too, won’t it?
Wooten: Could be, yes.
Moore: And as you said, lightning goes in all directions? The electricity from
lightning goes in all directions?
Wooten: All paths.
Tr. 445-49 (emphasis added).
ii. Reasonably Prudent Person Analysis
In applying the reasonably prudent person test, the credible testimony of Denver
“Dick” Wilfong, Jr., Wolf Run’s chief maintenance foreman, concerning his understanding
of “ungrounded conductors” in section 75.521 is revealing. Wilfong conceded that lightning
arresters were necessary for power conductors connected to above ground surface power centers.
Significantly, surface power centers are not connected to the neutral grounds. Tr. 819-20.
However, Wilfong believed that installing arresters on power conductors energizing equipment
on the surface from power centers underground was not required because of the protection
afforded by the neutral ground medium. Tr. 823. Wilfong believed that the subject power
conductors energizing the battery chargers were already “grounded” through the neutral grounds
and through grounding resisters at a 600 volt circuit located underground. Tr. 823.
33 FMSHRC 1194

Significantly, Wilfong’s opinion regarding the efficacy of installing arresters on exposed
conductors energizing equipment from underground power centers is supported by the testimony
of inspectors Honaker and Wooten. Both Honaker and Wooten stated that it is “unusual” to
power surface equipment from underground. Tr. 320-21, 862. Both inspectors testified that a
lightning surge can be transferred underground from the arrester ground field to the neutral
ground medium. Tr. 445-49, 861-62, 877-78.
Honaker unequivocally stated that attaching lightning arresters on conductors originating
from underground power centers was “doomed to failure.” 31 FMSHRC at 658; Tr. 877.
Honaker testified:
Wilson: So by definition, for a power conductor to provide energy to the
equipment, it can’t be grounded, right?
Honaker: That’s right.
Wilson: Now, in all your experience, how many times have you seen this type of a
situation where you had either equipment on the surface being powered by a
source from underground or equipment underground being powered from a
source on the surface?
Honaker: It’s very seldom that you see that . . . [n]ow when they simply lay [a
cable] on the ground, its very difficult to protect those cables in that type of
installation from lightning strikes. It simply is hard to separate the ground field
when you do that and make it work effectively. I never put that type of installation
in because it’s so difficult to comply with 75.521 and do it as it should be done for
the safety of the people [underground] when you put that system in in that
manner.
Wilson: And Judge Feldman asked you if a track being a power conductor was
the only exception to [75.]521. There are also exceptions laid out in the program
policy manual, is that right?
Honaker: Yeah. Those are exceptions, right. They weren’t necessarily – when
those were written and I was with MSHA at the time and worked indirectly for
Cecile Lester who wrote most of the policies during that time when I first came to
MSHA, lightning was one of the sections I wrote some policy on. It wasn’t
finalized until I left the agency, and it certainly wasn’t written like I thought it
should be. We never addressed the possibility of someone [powering equipment
on the surface from a power source underground].
*
*
*
* * *
*
*
Court: But you can’t attach [the conductors in the cable] to the arrester ground
if it’s attached through some other system of grounding and ends up on the earth.
33 FMSHRC 1195

Honaker: You’re right. That’s the problem with this type of system. When you
put this system in, it’s doomed to failure. I know what you’re saying. It’s not a
system you would normally put in.
Court: That’s the problem. I understand. And that’s the problem that we have
because as you say this system can’t be adopted to fit this regulation. . . .
Honaker: People don’t normally [power equipment on the surface from a cable
underground]. The only way you can [protect the cable from lightning] is like
build a shelter so you could comply and have it sheltered from lightning and that
would meet one of the criteria [in the program policy manual].
Tr. 861-62, 877-78 (emphasis added).
The Secretary asserts that a reasonably prudent person familiar with the purposes of the
standard should recognize that lightning arresters were required on these ungrounded conductors
because of the plain language of the standard. OA Tr. 159-62. Satisfying the “reasonably
prudent person” test for adequate notice requires the Secretary to demonstrate industry
recognition of its obligations in the context of the protective purposes of the standard. However,
the Secretary’s inspectors have conceded that equipping these conductors with arresters was
“doomed to failure” because it would not adequately protect underground miners. Although
Honaker testified that “electrical people” understand section 75.521, he conceded that there was
confusion amongst safety directors regarding their obligations under the regulation. Tr. 886.
Having failed to demonstrate that the protective purpose of section 75.521 will effectively be
served by application of section 75.521, the Secretary has failed to demonstrate that Wolf Run
possessed the requisite adequate notice to satisfy due process.
iii. Regulatory Scheme and
Program Policy Manual
Moreover, the Secretary’s application of section 75.521 to the subject conductors is
fundamentally inconsistent with MSHA’s Program Policy Manual that provides guidelines for
when surface power conductors are not deemed “exposed” and, therefore, not a threat to transfer
lightning energy underground. The relevant provision of the Program Policy Manual for section
75.521 states:
Conductors that are (1) provided with metallic shields; (2) jacketed by a ground
metal covering or enclosure; (3) installed under grounded metal framework; (4)
buried in the earth; or (5) made of triplex or quadraplex that is supported by a
grounded messenger wire, are not considered exposed for the length so protected.
Gov. Ex. 8 (emphasis added).

33 FMSHRC 1196

Inspector Honaker participated in the policy discussions concerning regulations dealing
with lightning protection for power conductors. Honaker essentially stated that MSHA never
addressed the issue of powering surface equipment from an underground power source. Tr. 862
63. Thus, the Program Policy Manual for section 75.521, which contains the preferred methods
for protecting exposed conductors, implicitly recognizes that the installation of an arrester on an
exposed surface conductor is an ineffective method of preventing electrical overvoltage from
traveling underground.
iv. Regulatory History and Text of the Regulation
Section 75.521 was promulgated in February 1973. Tr. 849. Honaker explained that
at the time of its promulgation the term “ungrounded conductors” had meaning with respect
to electrical systems using direct current (“DC”). However, virtually all systems now use
alternating current (“AC”). Tr. 848-50. Consequently, nearly all power conductors are now
ungrounded rendering the term “ungrounded” power conductor in section 75.521 essentially
superfluous, and exacerbating the section’s lack of clarity.
In the final analysis, the record fails to reflect that a reasonably prudent person familiar
with the mining industry and the protective purposes of section 75.521 would have recognized
that this mandatory standard required the installation of lightning arresters on the subject
ungrounded power conductors. Consequently, the cited violations in Citation Nos. 7583316 and
7583317 as applied to Wolf Run, given the circumstances and testimony in this case, must be
vacated on due process grounds for lack of notice.
In view of the unequivocal testimony of the MSHA inspectors, it is apparent that the
efficacy of lightning arrester protection on exposed power conductors energizing surface
equipment from underground is, at best, questionable. Perhaps MSHA should consider revising
the provisions of section 75.521 to do directly what it, in effect, seeks to accomplish indirectly
through its Program Policy Manual. Namely, prohibit exposed power conductors that originate
underground unless they are compliant with MSHA’s Program Policy Manual and therefore are
“not considered exposed for the length so protected.” Gov. Ex. 8 (emphasis added). Such a
prohibition would prevent deriving a false sense of security from the installation of arresters on
exposed conductors that the Secretary’s witness characterized as “doomed to failure.” Tr. 877.
E. Telephone Wire – Citation No. 7335233
i. Procedural History and
Reconsideration of S&S
Citation No. 7335233 concerns an alleged S&S violation of section 75.521 for failure

33 FMSHRC 1197

to equip lightning arresters on telephone conductor wires entering the underground mine.11
The initial decision affirmed the violation of section 75.521 because the two conductors in the
cited telephone wire were not grounded. In fact, Wilfong admitted that ungrounded telephone
wires entering an underground mine require lightning arrester protection. Tr. 790-94. However,
the initial decision removed the S&S designation. The non-S&S determination was based on a
lightning surge’s likely destruction of the 12-volt telephone conductors before any electrical
energy could enter the mine. 31 FMSHRC at 663-65. The remand decision vacated the nonS&S finding. 32 FMSHRC at 1687. In readdressing the S&S issue, the Commission has
directed me to more precisely discuss the potential for serious injury in the context of a detailed
Mathies analysis. Id. at 1678.
The Commission vacated the non-S&S finding because the testimony of MSHA inspector
Kevin Hedrick was limited to the voltage normally carried by the subject telephone wires rather
than the capacity of such wires. Consequently, the parties were requested to stipulate to the
telephone wires’ capacity at the oral argument. Order Scheduling Oral Argument at 3 (Jan. 28,
2011). However, the parties were unable to agree on such a stipulation. OA Tr. 242-43.
At trial, Hedrick explained the protection achieved by the installation of arresters on
telephone wires. Hedrick testified:
Well, the protection would be – when the lightning strike or nearby lightning
strike occurred and the cable – signal cable and the telephone cable and the trolley
phone cable became elevated – the voltage became elevated on those conductors,
the lightning arrester would provide an immediate path to ground where they’re
connected to shunt energy to ground before it could reach the underground
workings. It would certainly reduce the amount of energy that went underground
significantly.12
Tr. 631.
As noted, the initial decision determined that the telephone wire would be destroyed by
a lightning surge, capable of more than one million volts, before the electrical energy could enter
underground. 31 FMSHRC at 664. However, upon reconsideration, this conclusion is not
supported by the credible testimony. Hedrick noted that the destruction and disconnect of
conductors at the source of an electrical surge does not immediately de-energize the load side of
the conductors. Hedrick stated:
11

Citation No. 7335233 also concerned an absence of lightning arresters on exposed
trolley wire conductors. One conductor was grounded to the track at the mouth of the entry. The
other conductor was hung along the roof and grounded to the track at the farthest end of entry.
The initial decision determined that the trolley wire was adequately grounded for section 75.521
purposes. The Secretary does not dispute this finding. 32 FMSHRC at 1674; OA Tr. 245.
12
The rerouting of overvoltage from the arresters through the underground mine was not
at risk as the telephone wire was not connected to the neutral ground medium.
33 FMSHRC 1198

There could be energy still on the load side. For example, you’ve heard of people
that work on television sets, and even though they’re unplugged, they have to be
careful. If you stick a screwdriver in the wrong place, you could injure yourself
because there’s large capacitors in there that store energy and there could remain
energy on the load side.
Tr. 662.
Thus, on balance, the Secretary has demonstrated the subject telephone wire has the
capacity to transmit a lightning surge underground that poses a risk of serious injury.
Consequently, the Secretary has satisfied the first, second and fourth elements of Mathies.
6 FMSHRC at 3-44. However, the S&S analysis does not stop there. An S&S determination
must be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC
498, 501 (Apr. 1988). Consistent with the third Mathies element, these particular facts must
establish a reasonable likelihood that the hazard contributed to will result in an event, i.e., a
lightning strike, causing serious injury or death. Bellefonte, 20 FMSHRC at 1254-55.
The Secretary has stipulated that it cannot demonstrate, by a preponderance of the
evidence, the reasonable likelihood of lightning striking in the vicinity of a particular location,
i.e., the Sago Mine. Tr. 462-65, 699. However, the Secretary argues that, “[e]ven if a lightning
strike and an overvoltage on the affected lines are found not to be reasonably likely to occur, the
violations should still be considered S&S because the only proper way to evaluate the S&S
finding is to assume such an overvoltage has occurred.” Sec’y post-hrg. br. at 49. In calling for
an assumption of overvoltage caused by lightning, the Secretary states she is not arguing for a
presumption in this case.13 Id. Yet the Secretary, in her brief, relies on the narrow presumption
of the development of respiratory disease from exposure to violations of the respirable dust
standard adopted by the Commission in Consolidation Coal.14 Id.
ii. Assuming the Event of a Lightning Strike
Rather Than the Likelihood of its Occurrence
In a split decision in Manalapan, the Commission addressed the role of assumptions in
questions of S&S. Manalapan Mining Company, Inc., 18 FMSHRC 1375 (Aug. 1996). The
Commission lacked consensus on whether to adopt the Secretary’s proposed assumption of the
13

This nuance proffered by the Secretary is a distinction without a difference. A
“presumption” is a “legal inference or assumption that a fact exists, based on the known or
proven existence of some other fact or group of facts.” Black’s Law Dictionary 558 (3d. pocket
ed. 2006). An “assumption” “is substantially synonymous with ‘inference,’ ‘probability,’ and
‘presumption.’” Black’s Law Dictionary 157 (4th ed. 1968) (citation omitted).
14
The Commission noted the presumption was adopted because “it is not possible to
assess the precise contribution that a particular exposure will make to the development of
respiratory disease.” Consolidation Coal Co., 8 FMSHRC 890, 898 (June 1986) aff’d, 824 F. 2d
1071 (D.C. Cir. 1987).
33 FMSHRC 1199

occurrence of a fire in analyzing whether a fire suppression violation was S&S.15 Commissioners
Holen and Riley, noting that the Secretary has the burden of proving a violation is S&S, declined
to expand the Commission’s narrow holding in Consolidation Coal to presumptions of the
occurrence of an emergency. Manalapan, 18 FMSHRC at 1379-80 citing Peabody Coal Co., 17
FMSHRC 26, 28 (Jan. 1995). Commissioners Holen and Riley stated:
The Secretary urges the Commission to presume an emergency for an undefined
and potentially large class of health and safety standards without indicating what
situations under those standards would qualify as an emergency. We decline to
modify the time-tested Commission precedent that guides our analysis of
violations alleged to be S&S by adopting such a broad based presumption.
Id. at 1380.
On the other hand, Commissioners Jordan and Marks, in adopting the Secretary’s
proposed assumption, summarized the assumption and underlying facts as follows, “[i]n this
case, where a fire deluge system was not provided and where a fire extinguisher was not
provided, the assumption sought is the existence of a fire or explosion.” Manalapan,
18 FMSHRC at 1384 (emphasis added). The decision, however, apparently did not directly
address the propriety of assuming the reasonable likelihood of the emergency. In fact,
Commissioners Jordan and Marks implicitly agreed with the Secretary that “[t]he likelihood of a
fire or explosion occurring is not the relevant question.” 18 FMSHRC at 1385 citing Sec’y Br.
at 13-14 (emphasis supplied by Sec’y).
In the final analysis, it is the assumption of the existence of an emergency, rather than the
reasonable likelihood of an actual emergency that is addressed in Manalapan. The merging of
the concepts of “existence” and “reasonable likelihood” in resolving questions of S&S is contrary
to the Commission directive that issues of S&S must be resolved on a case-by-case basis based
on the particular circumstances surrounding the cited violation. Texasgulf, 10 FMSHRC at 501
(combustible fuel, capable of suspension, in the presence of ignition sources constitutes a
“confluence of factors” necessary to support an S&S violation). Significantly, the split
decision in Manalapan did not alter the narrow application of Consolidation Coal that limits
presumptions dealing with the reasonable likelihood of injury or illness to respiratory disease.
Regardless of whether the issue of assuming the reasonable likelihood of a serious injury
causing event was addressed in Manalapan, given the split decision, there is no majority
15

The Commission is currently considering a similar assumption sought by the Secretary
with regard to the existence of a smoke-related emergency in determining whether a
violation concerning an ineffective lifeline is properly designated as S&S. Sec’y of Labor v.
Cumberland Coal Resources LP, 31 FMSHRC 1147 (Sept. 2009) (ALJ), appeal pending,
argued Mar. 31, 2011. Cumberland is distinguishable because, unlike a lightning strike,
the incidence of smoke and fire in a mine is enhanced by the potential ignition and fuel sources
created during the mining cycle.
33 FMSHRC 1200

Commission decision that, in effect, assumes S&S by assuming the reasonable likelihood of an
emergency. In the absence of a Commission consensus, the case law addressing the effect of
precautionary measures on the issue of S&S is instructive. As a general proposition, safety
measures and precautions do not preclude a finding of S&S. See Buck Creek Coal, Inc., v.
FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (fire suppression equipment such as CO monitors
and water sprays do not mitigate an accumulation hazard); AMAX Coal Company, 19 FMSHRC
846, 850 (May 1997) (the presence of fire detection equipment and fire fighting equipment does
not negate the serious safety risk posed by fires). In this regard, in AMAX, the Commission noted
that a “ hazard continues to exist regardless of whether caution is exercised” by installing fire
fighting and detection equipment. 19 FMSHRC at 850 citing Eagle Nest, Inc., 14 FMSHRC
1119, 1123 (July 1992).
However, although precautionary safety measures did not prevent an S&S finding in
Buck Creek and AMAX, the Secretary was still required to demonstrate the reasonable likelihood
of an actual fire or explosion as a consequence of violative coal dust accumulations. See Garden
Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989) (the Secretary has the burden of
proving all elements of a cited violation). For example, in AMAX the S&S finding was based on
evidence of “[t]he presence here of an ignition source and large amounts of coal and coal dust
that could propagate a fire or fuel an explosion satisf[ying] the third Mathies element.”
Id. at 849.
The hazard posed by the subject section 75.521 violation is the potential transmission of a
lightning surge underground through telephone power conductors on the surface that are not
equipped with arresters. The question is whether it is reasonably likely that the hazard created
by this violation will result in a lightning strike event in which there is serious injury. Bellefonte,
20 FMSHRC at 1254-55. Resolution of this question is dependent on the contribution of the
absence of arresters to the likelihood of a lightning strike that results in electrocution. U.S. Steel,
6 FMSHRC at 1868.
Violations such as defective belt rollers and coal dust accumulations provide ignition
sources and fuel for a fire or explosion, and increase its likelihood. Conversely, the failure to
equip exposed conductors with arresters does not increase the likelihood of a lightning strike.
Although the absence of arresters does affect the hazard associated with lightning, their absence
does not contribute to the likelihood of the occurrence of lightning. Since a lightning strike in
proximity to a particular location is a rare event, the Secretary has failed to demonstrate that it is
reasonably likely that the failure to install lightning arresters will result in an injury or illness of
reasonably serious nature.16 Consequently, the subject S&S designation shall be deleted.

16

I am mindful of the Secretary’s reliance on the testimony of inspectors that mines have
experienced lightning strikes on multiple occasions. Sec’y post-hrg. br. at 49 citing Tr. 312, 836.
However, given the random nature of lightning, the evidence does not reflect that mines are more
uniquely susceptible to lightning strikes than are other locations.
33 FMSHRC 1201

In the final analysis, not all violations capable of contributing to the occurrence of serious
injury are S&S. Significantly, MSHA citations require inspectors to separately evaluate both the
potential degree of serious injury posed by the cited violation, and the reasonable likelihood of
the occurrence of such injury.17 Nevertheless, violations designated as non-S&S are not
necessarily trivial. In fact, non-S&S violations, such as the instant failure to protect underground
miners from lightning, which create the potential for catastrophe, however unlikely, are more
serious in gravity than many S&S violations that only contribute to lost workday injuries. Such
non-S&S violations may warrant greater civil penalties.
Although initially designated as an S&S violation, the Secretary only proposed a $440.00
civil penalty for the failure to equip the subject telephone wire with arrester protection. Although
this violation has now been determined to be non-S&S, I am conflicted by the relatively small
proposed civil penalties for the alleged section 75.521 violations given their serious gravity and
their potential contribution to multiple serious injuries and/or fatalities as evidenced by the Sago
Mine disaster. However, I reluctantly decline to disturb the $440.00 civil penalty initially
proposed for Citation No. 7335233.

17

For example, sections 10(A) and 10(B) on MSHA Mine Citation/Order Form 7000-3
for Citation No. 7335233 require inspectors to separately evaluate questions concerning the
likelihood of injury, and, whether or not such injury can reasonably be expected to result in lost
workdays, permanent disability or a fatality. Gov. Ex. 5.
33 FMSHRC 1202

ORDER
In view of the above, IT IS ORDERED that the violation designated as S&S in
104(a) Citation No. 7583340 IS AFFIRMED.
IT IS FURTHER ORDERED that Citation No. 7335233 IS MODIFIED to reflect
that the cited violation is designated as non-S&S in nature.
IT IS FURTHER ORDERED that Citation Nos. 7583316 and 7583317
ARE VACATED.
IT IS FURTHER ORDERED that Wolf Run Mining Company shall pay a civil penalty
of $963.00 in satisfaction of 104(a) Citation No. 7583340.
IT IS FURTHER ORDERED that Wolf Run Mining Company shall pay a civil penalty
of $440.00 in satisfaction of 104(a) Citation No. 7335233.
IT IS ORDERED that, within 40 days of the date of this decision, Wolf Run Mining
Company shall pay the total civil penalty of $1,403.00 for Citation Nos. 7583340 and 7335233,
as well as the $25,257.00 it previously agreed to pay for the 31 other citations and orders at issue
in these proceedings.18 In addition, Wolf Run IS ORDERED to pay the $60.00 civil penalty for
water pump Citation No. 7582485 affirmed by the Commission in its remand decision. 32
FMSHRC 1669, 1688 (Dec. 2010). Upon timely payment of the total civil penalty of
$26,720.00, these civil penalty proceedings ARE DISMISSED.19

_/s/ Jerold Feldman_______________
Jerold Feldman
Administrative Law Judge

18

The initial decision approved the parties’ settlement terms wherein Wolf Run agreed to
pay $25,257.00 of the $28,339.00 MSHA initially proposed for 31 additional citations and orders
that also are the subjects of these proceedings.
19
The initial remand decision, issued on May 3, 2011, reflected a total civil penalty of
$26,660.00. The total civil penalty was corrected by Order dated May 9, 2011, to include the
$60.00 civil penalty for water pump Citation No. 7582485. Accordingly, this remand decision,
which retains the original May 3, 2011, issue date, now reflects the correct $26,720.00 total civil
penalty that is due and payable.
33 FMSHRC 1203

Distribution: (Regular and Certified Mail)
Robert S. Wilson, Esq, Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
22nd Floor West, Arlington, VA 22209
R. Henry Moore, Esq, Jackson Kelly, PLLC, Three Gateway Center, 401 Liberty Avenue,
Suite 1340, Pittsburgh, PA 15222
/jel

33 FMSHRC 1204

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

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.
WAKE STONE CORPORATION,
Respondent

May 6, 2011
:
:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDING
Docket No. SE 2010-95-M
A.C. No. 31-02071-197617

Mine: Nash County Quarry

DECISION
PROCEDURAL AND FACTUAL HISTORY
This case is before the court on a petition for assessment of civil penalty under Section
105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et seq. (the “Act”).
The parties filed cross-motions for summary decision. This case involves a citation issued by the
Department of Labor's Mine Safety and Health Administration (“MSHA”) under Section 104(a)
of the Act alleging two violations of 30 C.F.R. §56.14132(a). The parties presented the following
facts:
•
•
•
•
•
•
•
•

On July 14, 2009, MSHA issued Citation Nos. 6512366 and 6512367 to Respondent at
the Nash County quarry.
Both Citations allege a violation of 30 C.F.R. §56.14132(a).
Citation No. 6512366 was issued for failure to maintain a Caterpillar 345 B excavator’s
service horn in working condition.
Citation No. 6512367 was issued for failure to maintain a Komatsu D65Px dozer’s
service horn in working condition.
According to the Respondent, the vehicles were not in operation during the course of the
shift.
When the inspector asked to inspect the vehicles, Chris Pons, a Superintendent at the
Nash County Quarry, insisted the vehicles be taken through their pre-shift examination, as
required by 30 C.F.R. §56.14100, prior to being operated.
According to the Respondent, it was during the pre-shift examinations that the
malfunctioning horns were discovered.
The defects were indicated in the Respondent’s pre-shift report and the vehicles were
tagged as non-operational.

33 FMSHRC 1205

Relevant Regulations
29 C.F.R. §2700.67(b):
A motion for summary decision shall be granted only if the entire record, including the pleadings,
depositions, answers to interrogatories, admissions, and affidavits, shows:
(1) That there is no genuine issue as to any material fact; and
(2) That the moving party is entitled to summary decision as a matter of law.
30 C.F.R. §56.14132(a):
Manually-operated horns or other audible warning devices provided on self-propelled mobile
equipment as a safety feature shall be maintained in functional condition.
30 C.F.R. §56.14100:
(a) Self-propelled mobile equipment to be used during a shift shall be inspected by the equipment
operator before being placed in operation on that shift.
(b) Defects on any equipment, machinery, and tools that affect safety shall be corrected in a
timely manner to prevent the creation of a hazard to persons.
(c) When defects make continued operation hazardous to persons, the defective items including
self-propelled mobile equipment shall be taken out of service and placed in a designated area
posted for that purpose, or a tag or other effective method of marking the defective items shall be
used to prohibit further use until the defects are corrected.
(d) Defects on self-propelled mobile equipment affecting safety, which are not corrected
immediately, shall be reported to and recorded by the mine operator. The records shall be kept at
the mine or nearest mine office from the date the defects are recorded, until the defects are
corrected. Such records shall be made available for inspection by an authorized representative of
the Secretary.
Discussion
The crux of the Secretary’s argument is that Section 56.14132(a) should be construed
irrespective of other parts of the Act. In this case, that means that if a vehicle’s horn breaks for
whatever reason, an operator has violated the Act. I reject this argument and embrace the notion
that it is necessary to look at the Act as a whole. The Act was created to enforce and encourage
miners’ safety. When interpreting the Act, operators, regulators, and courts need to do so in a
manner that best serves to protect miners. With regard to Section 56.14132(a), interpreting it in
such a strict manner would be contrary to Congress’s intention when it drafted the Act and, in my
view, contrary to the overall intent of the Act to protect miners’ safety.
Statutory construction requires that we look at the whole and not just a part of a statute.
To do otherwise would distort the statute’s true meaning. United States Nat. Bank of Oregon v.
33 FMSHRC 1206

Ind. Ins. Agents of Am., Inc., 508 U.S. 439, 454 (1993). In this matter, Section 56.14132(a) and
other vehicle maintenance requirements are the reason Section 56.14100 exists. To focus on one
and not the other in this situation would be contrary to the intent of Congress. Section 56.14100
requires that “[s]elf-propelled mobile equipment [. . .] be inspected by the equipment operator
before being placed in operation on that shift.” Consequently, Section 56.14100 requires “horns
or other audible warning” be inspected because these parts are required to be on vehicles and to
be maintained by Section 56.14132(a). These two requirements compliment each other and
should be viewed in concert.
According to the Secretary, the “plain meaning” of Section 56.14132(a) is if a horn fails,
then the horn has not been maintained and a violation has occurred. This understanding is
misguided for these reasons: First, one of the few ways an operator can determine that a horn is
malfunctioning is when he tries the horn and it does not make a sound. Second, it is hard to
believe that it was Congress’s intention that the phase, “shall be maintained in functional
condition,” did not include replacing the horn if necessary. 30 C.F.R. §56.14132(a). Congress,
when drafting the Act, presumably cared about the condition of the overall vehicle more than the
condition of the horn. Third, if an operator discovered a problem with a horn during a pre-shift
inspection and subsequently corrected the problem, then the operator has maintained the horn. It
is unrealistic to expect that a horn, or any piece of equipment, will last forever.
Section 56.14100 was created to catch a malfunctioning vehicle before it has the
opportunity to endanger miners’ lives. To interpret the Act as the Secretary wishes would
diminish the operator’s motivation to conduct a thorough examination of equipment, because the
operator loses an incentive. It is best not to trivialize Section 56.14100 for two reasons: First, it
encourages operator to find malfunctions because the operator will not be found in violation of
the Act if it places the vehicles out-of-service until repaired. Second, and most importantly, it is
safest for the miners to find a malfunction prior to placing a piece of equipment into service.
The Secretary argues that standards need to be interpreted to impose liability without
regard to fault because it creates an incentive for the operator to ensure safety. To bolster her
argument, the Secretary cited Allied Products Co. v. FMSHRC, 666 F.2d 890, 893 (5th Cir.
1982).1 I agree with the Circuit Court’s belief that liability without regard to fault creates an
incentive for the operator “to take all practicable measures to ensure the workers’ safety.”
However, my finding here does not contradict Allied Products. In fact, it compliments it because
this decision gives incentives to keep miners safe. Not punishing operators for finding
malfunctioning equipment during pre-shift examinations is an incentive to thoroughly conduct
such examination. A pre-shift examination is an operator’s chance to discover malfunctions
prior to violating the act: i.e., operating a malfunctioning vehicle.

1

Two decisions cited by the Secretary, Sec’y of Labor v. Giant Cement Co., 13 FMSHRC 286
(Feb. 1991) (ALJ) and Sec’y of Labor v. Martin Marrietta Aggregates, 23 FMSHRC 533 (May 2001)
(ALJ) are not relevant here because of factual and evidential differences to the facts at hand.

33 FMSHRC 1207

The Secretary argues that the two vehicles in question were not tagged out of service
when the inspector arrived and asked to inspect the equipment. This, according to the Secretary,
means that the vehicles were eligible for inspection and, if found, subsequent violations.
Otherwise, the Secretary argues, the Respondent and future operators may “escape” strict
liability for the alleged violations by declaring pre-shift examination and tagging the vehicles out
of service while the inspector stands by. This is a reasonable concern that should not be taken
lightly. In support of her argument, the Secretary also cited Secretary of Labor v. Bilbrough
Marble Div., Texas Architectural Aggregate. In this decision, Administrative Law Judge
Zielinski noted “Commission precedent is clear that standards like § 56.141132(a) must be
complied with for all equipment located on mine property that might be used. Only if equipment
has been effectively taken out of service can an operator avoid the consequences of defective
conditions.” Sec’y of Labor v. Bilbrough Marble Div., Texas Architectural Aggregate, 24
FMSHRC 285 (2002) (ALJ). I agree with my colleague’s view to a point, however, it is
important to also encourage thorough pre-shift examinations and I believe to place strict liability
in this situation would have the opposite effect.2
Section 56.14100 and mandatory equipment safety standards need to coexist because of
the importance of a harmonized and coherent treatment of all portions of the Miner Act and
related regulations to miners’ safety, overall. In this matter, after construing the facts in the light
most favorable to the Secretary’s position, I am not convinced nor can I reasonably infer that the
operator was trying to “escape” strict liability by feigning the need for a pre-shift examination,
and/or that the vehicles “might be used.” I decline to construe the conflicting legal standards in
such a way as to effectively write Section 56.14100, the maintenance provision, out of the
Regulations or seriously diminish its effect.3
ORDER
For the reasons set forth above, the Secretary's motion for summary decision is DENIED,
the Respondent’s motion for summary decision is GRANTED, Citation Nos. 6512366 &
6512367 are VACATED, and these proceeding are DISMISSED.
/s/ L. Zane Gill
L. Zane Gill
Administrative Law Judge

2

Administrative Law Judges are not bound by their counterpart’s decisions.
This ruling does not trivialize or diminish Section 56.14132(a). Instead it recognizes
that Section 56.14132(a) and Section 56.14100 can and should coexist.
33 FMSHRC 1208
3

Distribution List: (Certified Mail)
Mark N. Savit & Caroline Davidson-Hood, Patton Boggs LLP., 1801 California St., Suite 4900,
Denver, CO 80202
Brooke McEckron, Esq, Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street,
S.W., Room 7T10, Atlanta, GA 30303

33 FMSHRC 1209

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON, DC 20001-2021
202-434-9981/TELE FAX: 202-434-9949

LTM INCORPORATED
KNIFE RIVER MATERIALS,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION,( MSHA),
Respondent

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner
v.
LTM INCORPORATED KNIFE RIVER MATERIALS,
Respondent

May 6, 2011
:
CONTEST PROCEEDINGS
:
:
:
Docket No. WEST 2008-1268-RM
:
Citation No. 6398748 - 06/11/2008
:
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Docket No. WEST 2008-1269-RM
:
Citation No. 6398749 - 06/11/2008
:
:
Docket No. WEST 2008-1270-RM
:
Citation No. 6398750 - 06/11/2008
:
:
Docket No. WEST 2008-1271-RM
:
Citation No. 6398751 - 06/11/2008
:
:
Docket No. WEST 2008-1275-RM
:
Citation No. 6398756 - 06/11/2008
:
:
Docket No. WEST 2008-1272-RM
:
Citation No. 6398752 - 06/11/2008
:
:
Docket No. WEST 2008-1273-RM
:
Citation No. 6398753 - 06/11/2008
:
:
Docket No. WEST 2008-1274-RM
:
Citation No. 6398755 - 06/11/2008
:
:
Docket No. WEST 2008-1276-RM
:
Citation No. 6398757 - 06/11/2008
:
:
Mine: Mobile Crusher #1
:
Mine ID:
35-02906
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CIVIL PENALTY PROCEEDINGS
Docket No. WEST 2009-6-M
A.C. No. 35-02906-161438-01
Docket No. WEST 2009-7-M
A.C. No. 35-02906-161438-02
Mine: Mobile Crusher #1

33 FMSHRC 1210

DECISION
Appearances: Evan H. Nordby, Esq., U.S. Department of Labor, Office of the Solicitor, Seattle,
Washington, on behalf of Petitioner;
Chris Lawrence, Central Point, Oregon, on behalf of Respondent.
Before:

Judge Zielinski

These cases are before me on Notices of Contest and Petitions for Assessment of Civil
Penalties filed pursuant to section 105 of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 815. The petitions allege that LTM, Incorporated, doing business as Knife River
Materials, is liable for 12 violations of the Act and the Secretary’s Safety and Health Standards
for Surface Metal and Nonmetal Mines.1 A hearing was held in Eugene, Oregon, and the parties
submitted briefs following receipt of the transcript. The Secretary proposes civil penalties
totaling $1,872.00 for the violations. For the reasons set forth below, I find that LTM committed
three of the alleged violations and impose civil penalties totaling $300.00.2
Findings of Fact - Conclusions of Law
LTM operates several sand and gravel mines in the Oregon area. In June of 2008, one of
its operations, Mobile Crusher #1 (“MC-1”), was located near Coos Bay, Oregon, in an area
known as the Davis Slough. MC-1 consists of a feeder-hopper, crushers and screens, and
conveyors that move material between the various pieces of equipment. As its name implies,
MC-1 is a mobile facility. Its major components are mounted on rubber-tired trailers, which are
stabilized by jacks and blocks in locations where it is placed into operation. Located adjacent to
MC-1 was another facility known as the “truck dump stacker” (“TDS”). The TDS was a
permanent facility, designed to create a stockpile of material trucked to the site.3 The TDS had
been locked out of service, and was not operating when the contested citations were issued.
On June 11, 2008, Bryan Chaix, an inspector employed by the Secretary’s Mine Safety
and Health Administration, conducted an inspection of LTM’s equipment located at the Davis

1

30 C.F.R. Part 56.
LTM withdrew its contest of Citation No. 6398766, which alleged that miners’ training
records were incomplete. LTM will be ordered to pay the $100.00 civil penalty proposed for that
violation.
3
When operational, the TDS could efficiently off-load trucks and produce a stockpile.
Raw material would be dumped from the trucks into a grizzly, run through a hopper and fed onto
a long conveyor inclined upward at an angle of approximately 14 degrees. The base of the TDS
was elevated, and the head pulley of the conveyor was 30-40 feet above the surface where the
stockpile was built. The TDS is depicted in a photograph that was taken at an unknown point in
time when it was idle and there was no stockpile. Ex. R-11 at 8.
33 FMSHRC 1211
2

Slough.4 Chaix had joined MSHA in April 2007, underwent training, and became an authorized
representative of the Secretary approximately 10-12 months later. Consequently, he had limited
experience as an inspector at the time of the inspection. Chaix had previously worked in several
capacities in the mining field. His most pertinent employment experience was as a conveyor
mechanic, a position he held for approximately six months prior to joining MSHA. Tr. 215. He
holds a college degree in art, with a specialization in metalsmithing, blacksmithing, and tool and
die production technology. Tr. 16.
Based upon his “observations and information provided to him,” Chaix concluded that
the TDS was an operational part of MC-1, and was subject to inspection despite the fact that it
was not in operation. Tr. 25. In the course of the inspection, Chaix issued four citations for
conditions on the TDS and eight citations for conditions on MC-1. LTM timely contested the
citations and the subsequently assessed civil penalties. In addition to challenging the merits of
the citations, LTM contends that the TDS was not used or available for use, that it should not
have been inspected, and that citations issued for conditions at that facility should be vacated.
The Truck Dump Stacker
In general, whether equipment and facilities must be maintained in compliance with
safety standards, and whether they are subject to inspection by MSHA, is determined by their
availability for use by miners. In Ideal Basic Industries, Cement Div., 3 FMSHRC 843 (Apr.
1981), the Commission held that the fact that the equipment was located in a normal work area,
was capable of being used, and had not been removed from service, meant that it had been
“used” within the meaning of the standard there at issue. The “available for use” test also
governs the applicability of most safety standards to mobile equipment. Only if the equipment
has been effectively taken out of service, e.g., locked out and tagged out, can such equipment
avoid inspection and the citation of conditions that violate safety standards. Allen Lee Good,
23 FMSHRC 995, 997 (Sept. 2001) (“As long as the cited equipment is not tagged out of
operation and parked for repairs [the safety standard] applies, whether or not the equipment is to
be used during the shift.”); Eastern Associated Coal, 1 FMSHRC 1473, 1474 (Oct. 1979)
(placing a warning tag on equipment that remained operational in a working area was not
sufficient to abate a violation because the tag could have been ignored). The same considerations
should apply to the TDS.
At first blush, one might assume that the TDS was an operational part of MC-1. Chaix
concluded as much shortly after he arrived on the site. As he explained, the TDS made
stockpiles and the rest of the equipment consumed stockpiles. Tr. 223. However, the TDS was
locked out and tagged out, and it was apparent that a large stockpile of raw material that had been
built for feeding into MC-1 had not been made by the TDS.

4

The Act requires that surface mines be inspected twice per year. 30 U.S.C. 813(a).
Regular inspections are referred to as E01 inspections. Inspections of intermittent operations,
such as MC-1, may be less frequent, depending upon the amount of time the facility is operated.
33 FMSHRC 1212

It is not disputed that the TDS had been locked out and tagged out at the time of the
inspection. Its main power switch was in the “off” position, and a lock had been inserted through
the switch handle. Ex. R-5. A tag on the switch read “Danger - Do Not Operate,” and instructed
that the lock could be removed only by Skip Borstad,5 the person who had placed it there and
whose name was on the back of the tag.6
Photographs taken by Chaix, establish that, with one possible exception, LTM had not
used the TDS to build the stockpile of raw material for MC-1. A photograph taken by Chaix
shows the discharge end of the TDS conveyor and a portion of a very large stockpile.
Ex. G-12/2.7 A large pile of material, well removed from and higher than the conveyor, shown
on the left of the photograph, could not have been made by the stationary conveyor of the TDS.
Tr. 425-26. It was built by a loader, using raw material that had been trucked to the site.
Tr. 375-76. As the stockpile grew, the material was graded into a ramp that the loader used to
increase its size. A small pile of material in the vicinity of the end of the conveyor arguably
could have been made by the TDS.
Despite the fact that the TDS was deenergized and the vast majority of the stockpile had
clearly not been built with the TDS, Chaix concluded that it should be inspected.
It is
evident that Chaix initially assumed that the TDS was an operational part of the MC-1 facility.
While inspecting the TDS he believed his assumption was confirmed, and he concluded that the
TDS had been operated in April. The two most significant factors upon which he based his
conclusion were a statement by the MC-1 operator that he interpreted as an admission that the
TDS had been operated in April, and the small pile of material in proximity to the TDS conveyor.
On close examination, however, none of the factors relied on to sustain the TDS citations,
whether considered separately or together, establish that the TDS was operated in April, or was
available for use at the time of the inspection.
The Admission
Brian West worked in Knife River’s coast operations for five years. He testified that the
TDS was locked and tagged out when he became LTM’s aggregate manager in June of 2007. Tr.
480. It was old and worn out, particularly the hopper, and the repairs necessary to make it
dependably operational were not deemed worth the investment. It had not been operated while
he was in charge of the facility and, to his knowledge, had not been operated in the two years

5

Borstad, was a safety specialist. He had passed away subsequent to the June 2008
inspection, and his lock remained in place at the time of the hearing some two years later.
Tr. 356-59.
6
Chaix was concerned about the adequacy of the information on the tag. Tr. 224, 238
50. However, it appears to have been appropriate.
7
The number following the backslash, when citing to a photographic exhibit, reflects the
page number of the exhibit, e.g., Ex. G-12/2 refers to page 2 of Government Exhibit 12.
33 FMSHRC 1213

before he became aggregate manager. West did not know where the key to the lock was, and he
had not attempted to replace the lock, because he had no intention of operating the stacker.
Tr. 524, 545.
When Chaix was re-called as a witness to rebut LTM’s evidence regarding the
unavailability of the TDS, the first point addressed was the alleged admission, which occurred
essentially at the beginning of the inspection. When Chaix arrived at the site, at approximately
8:00 a.m., he proceeded to what he thought was the office, but was informed that it was an office
for a “hot plant” which was under OSHA jurisdiction. He then went to the area of MC-1 and
sought out the person in charge. The operator of MC-1, Mike McDonald, identified himself as
that person. Tr. 21-22. Chaix reviewed records and offered McDonald an opportunity for a preinspection conference. Curiously, the fact that the TDS was not operating does not appear to
have been a topic of the pre-inspection discussion. There is no mention of it in Chaix’s field
notes, and Chaix did not recall any conversation concerning whether the TDS was part of the
MC-1operation. Tr. 223; Ex. R-1 at 55-75.
Chaix preferred to follow the flow of material when inspecting a facility, and he and
McDonald proceeded to the area of the stockpile of raw material that would be fed into MC-1.
Tr. 23-24. The stockpile had been built in the same general area that material discharged from
the TDS would have been deposited. As evidenced by photographs taken by Chaix, his
observations of the stockpile were made from the base of the TDS conveyor. Ex. G-12. One of
the first things Chaix observed at that location was a fire extinguisher that bore a tag with a
notation that it had been inspected in April 2008. He testified that the April 2008 date on the fire
extinguisher tag “aroused [his] attention.” Tr. 610. When asked why he did not issue a citation
because the fire extinguisher had not been inspected in May, he explained it was “because [he]
was told that [April] was the last time that it was in operation.”8 Tr. 611.
Chaix’s testimony about his interaction with McDonald was vague with regard to the
alleged admission. Tr. 25-26, 610-11. The statement was not made in response to a direct
inquiry about when the TDS had last been operated. Rather, it was made in an exchange
regarding the April 2008 inspection notation on the fire extinguisher’s tag, and the absence of a
notation for May.9 There is no evidence as to exactly what was said by either party. Chaix was
8

Fire extinguishers are required to be examined monthly. 30 C.F.R. § 56.4201. West
testified that LTM’s policy is to inspect all fire extinguishers monthly, whether or not the facility
is in use, and that he continues to inspect the fire extinguisher at the TDS. Tr. 352-53. West was
not asked about the absence of a notation of an inspection in May. Chaix concluded that, since
the TDS had not been operated after any failure to perform an examination in May, that no
miners had been exposed to a hazard by the failure, and did not issue a citation. Tr. 611. The
Secretary notes in her reply brief that the transcript, at page 610, line 25 to page 611, line 1,
should reflect that the question Chaix was responding to was “Why did you not issue a citation
on the fire extinguisher?” Sec’y. Reply Br. at 2 n 2. I agree, and the transcript is so amended.
9
Respondent argues that, based upon the time that Chaix arrived and the times that
various events occurred, McDonald could not have been with Chaix when the alleged admission
was made. Resp. Br. at 4-5. For the reasons advanced by the Secretary in her reply brief, I reject
33 FMSHRC 1214

obviously interested in why the fire extinguisher had not been inspected in May. McDonald may
have said something to the effect that the TDS had not been run since, or after, April, and may
have been stating simply that the TDS had not been operated in May. Chaix may have
misinterpreted such a statement by erroneously inferring that the TDS had been operated in April,
but not since then.
It is remarkable that Chaix did not record McDonald’s statement in his field notes, either
when it was made or when LTM’s challenge to the TDS citations was made clear six days later.
Chaix’s notes reflect that at a June 17, 2008, close-out conference, LTM advised that it intended
to contest the TDS citations because the equipment was locked out. Chaix’s response, as
recorded in his notes, read only, “(pile under stacker evidence of use).” Ex. R-1 at 72. Chaix
knew that the TDS was not in operation and, if he did not know from his pre-inspection
discussions, he soon discovered that its main electrical panel was locked out and tagged out. If
one believed, as Chaix did, that the TDS had been operated in the recent past despite being
locked and tagged out, evidence to that effect would be important for a number of reasons, and
an admission by the facility’s operator that it had been run recently would seem especially
important. Yet, the supposed admission is not even alluded to in Chaix’s notes, and his
recollection of it at the time of the hearing was obviously not clear.
I place no weight on the alleged admission.
The Stockpile
The contour of the stockpile in the area of the TDS conveyor is not strong evidence that
the TDS was operated, or when or under what circumstances it may have been operated.
Photographs taken by Chaix show a pile of material near the end of the TDS conveyor. From
some of the photographs one could conclude that the pile had been made by the TDS, although it
looks to be slightly to the left of the conveyor.10 Ex. G-12/1, G-12/4. Another photograph,
however, shows that the pile is relatively small compared to the main stockpile created by the
loader, and appears to be well left of where it should have been if it had been created by the TDS
conveyor. Ex. G-12/2. The road that the trucks used to access the site, the place where the
trucks dumped their loads, and the place that the loader operated were on the side of the stockpile
opposite the TDS. Tr. 375-76. Chaix did not travel around the stockpile to observe the other
side. Tr. 84. He took no photographs from other perspectives, or at least none were introduced
into evidence, that could have clarified the contours of the stockpile and the ramp(s) used to
build it – photographs that may have shed considerable light on the origin of the smaller pile of
material.

LTM’s argument and find that McDonald was present and participated in an exchange with
Chaix. Sec’y. Reply Br. at 2.
10
West agreed that, as depicted in one photograph, the top of the small pile “appear[ed]
to be” under the top of the TDS head pulley. Tr. 480; Ex. G-12/5. LTM contends in its brief
that the pile is to the left of where it should have been if it had been made by the TDS. Resp. Br.
at 6.
33 FMSHRC 1215

Other Factors
The Secretary points to the fact that continuity and resistance testing was done on the
TDS on June 1, 2007, and argues that the testing evidences an intent to use the equipment. She
argues in her reply brief that “Respondent offers no explanation for the up-to-date electrical
grounding continuity testing” that had been performed on the TDS in June 2007. Sec’y. Reply
Br. at 2-3. However, it is questionable that the testing was up-to-date, and the records of
electrical testing were, apparently, consistent with LTM’s position. Continuity and resistance of
electrical grounding systems must be tested “immediately after installation . . . and annually
thereafter.” 30 C.F.R. § 56.12028. Chaix’s field notes reflect that he reviewed records prior to
starting the inspection and noted that a new cone crusher had been set up “last month” and that
ground and continuity testing had been done on MC-1 after the set-up on May 29, 2008. Ex. R-1
at 55. When he returned to the mine on June 17 to continue the inspection and conduct a close
out conference, he again noted that testing had been done on MC-1 on May 29, but also noted
that there was no record of testing of the TDS, and that the last record of testing for the TDS was
dated June 1, 2007. Ex. R-1 at 68. If the TDS was last tested on June 1, 2007, it is questionable
that the testing was up-to-date at the time of the June 11, 2008, inspection. Moreover, while
testing in June 2007 would have been inconsistent with an intention to abandon the TDS at that
time, failure to test the TDS on May 29, 2008, allowing more than a year to pass since the last
test, was consistent with an intention to abandon the TDS, at least as of May 2008.
The Secretary also points to various conditions that she contends are shown in
photographs taken during the inspection and argues that they indicate recent use of the TDS. The
conditions include surfaces on components of the equipment that she contends show less
corrosion than would be expected if simply allowed to weather for a significant period of time in
the atmosphere near the Oregon coast, and items like a replaced bearing cap that she contends
show that the TDS was serviced in the recent past. LTM disputes the conclusions drawn by the
Secretary and counters that other conditions, such as plant growth, show non-use.
The Secretary’s arguments are based upon testimony by Chaix, wherein he offered his
opinion that certain surfaces depicted in photographs appeared to be polished, when he would
“expect over time [that they would] show rust based on the humidity and precipitation in the
area.” Tr. 611-12. However, it is not at all clear that the areas identified in photographs are
polished surfaces. For example, an area described as polished on a troughing roller appears to be
similar in appearance to nearby surfaces that were stationary and could not be polished. Tr. 612
13; Ex. G-3/5. West disagreed that the photograph showed a polished surface, but agreed that
there did not appear to be rust anywhere in the photograph. Tr. 540-41. LTM points out that at
least one other photograph arguably shows a polished surface on the head pulley of the TDS
conveyor, which from all appearances had not been used in many months. Ex. R-11/8. The
Secretary attempts to buttress Chaix’s testimony by referring to his experience with “metallurgy.”
Sec’y. Br. at 4. As LTM argues, that is a bit of an overstatement. Chaix’s degree was in art, with
some specialization in “metalsmithing.” The extent to which his mining experience or his
education or experience in art/metalsmithing included exposure to rates of corrosion of metals in
outdoor settings is unknown. None of the “other factors” relied upon by the Secretary are
33 FMSHRC 1216

reflected in Chaix’s field notes as evidence of recent use.11 His testimony on those subjects
apparently represents an attempt to interpret photographs taken during the inspection and draw
conclusions about usage of the equipment from appearances of surfaces and the amount of
corrosion present. The rates of plant growth and the chemical makeup of the materials and rates
of corrosion are unknown, despite Chaix’s volunteered opinions about likely metal
composition.12
The difficulty with the Secretary’s “other factors” argument is that there is virtually no
evidence to establish the reliability of basing estimates of how long a machine has been idle on
photographic depictions of machine components of unknown chemical composition, assuming
that the appearances of surfaces could be accurately assessed from the photographs, which is
doubtful. I find none of the supposed conditions urged by the Secretary or LTM to be
sufficiently probative or reliable to establish either that the TDS was or was not operated within
any given time frame.
The Secretary argues that the TDS could be operated at virtually any time simply by
removing the lock and throwing the switch and, if it was operated shortly before the inspection,
then it was available to miners. She further argues that allowing mine operators to avoid
inspections by locking and tagging equipment when not in use would require MSHA to “catch” a
facility in operation, a position rejected by the Commission. The Secretary’s concerns are valid.
If LTM actually operated the TDS periodically, allowing it to avoid MSHA inspections by
locking it out when not in use could deprive miners of the Act’s protections. However, the
Secretary did not establish that LTM did so, and much of the available evidence is to the
contrary.13
The size and contour of the stockpile confirms LTM’s assertion that it used a loader, not
the TDS, to build the stockpile. The TDS had been locked and tagged out of operation for many
months. MSHA had last inspected the Davis Slough facility in March of 2008. At that time, the
11

Chaix’s recollection of particular aspects of the two-year-old inspection was,
understandably, not crystal clear. For example, without consulting his field notes, he was
reluctant to answer questions about where he first went during the inspection and when one of
LTM’s representatives joined him. Tr. 213-17.
12
In its brief, LTM proffers information on the composition of materials and their
capacity to resist corrosion. Resp. Br. at 7. The Secretary points out that that information is not
properly part of the hearing record, and should be disregarded. Sec’y. Reply Br. at 3-4. The
information was not offered at the hearing, is not part of the hearing record, and was not
considered in deciding the issues.
13
Chaix’s notes do not reflect that he engaged LTM in a discussion about operation of
the TDS, or that he attempted to learn the location of the lock’s key and whether it was available
to MC-1 operators like McDonald, or whether operation of the TDS was or would have been
reflected on shift reports or other records. West testified that Chaix asked him when the TDS
had last been operated. He replied that he did not know, and that it had not been operated since
he became aggregate manager. Tr. 544. Chaix did not record the interchange and, apparently,
disbelieved West.
33 FMSHRC 1217

inspector determined not to inspect the TDS because it was not operational and had been locked
and tagged out. Tr. 378. West testified that LTM did not have a policy or practice of locking
equipment out when not in use. Tr. 482. LTM’s intention to abandon the TDS is evidenced, as
noted above, by its decision not to perform continuity and resistance testing on the TDS when
such testing was performed on MC-1 on May 29, 2008. As noted infra, a color-coding system
designating proper access points, caution areas, and guards was employed at the MC-1 facility. It
was not used at the TDS because of LTM’s intention not to use that facility. Tr. 437-38; Ex. R
9/1, R-9/4. LTM’s post-inspection actions were consistent with its position. Even though it
would have been free to operate the TDS once the violations were terminated on June 30, 2008,
it did not do so.14 West testified that the TDS was not operated after June 30 because it was still
worn out and the hopper had not been rebuilt. Tr. 534. At the time of the hearing MC-1 had
been moved to a location closer to a raw material source. The unused TDS remained at the Davis
Slough. Tr. 362.
Lastly, the Secretary argues that, even if the TDS had not been operated in April 2008, it
was in the condition that it was in when Chaix inspected it when it had last been operated, and
the citations should, therefore, be affirmed. It is, no doubt, correct that the TDS was in virtually
the same condition on June 11, 2008, as when it had last been operated, whenever that was.
However, that would often be the case for equipment that has been effectively taken out of
service. The lesson of cases like Ideal Basic Industries, Cement Div. and Allen Lee Good is that
equipment that is available for use by miners must be maintained in conformance with safety
standards to protect miners from hazardous conditions. Conversely, equipment that is not
available for use by miners does not pose a hazard to miners, and need not be so maintained.
Inspection of such equipment, which does not pose a hazard to miners, would be
counterproductive in that valuable and limited enforcement resources would be diverted from
active mining operations.15 The Secretary’s expansive liability theory must be rejected.16

14

The Secretary questions why LTM did not abandon the TDS as an abatement measure,
thereby avoiding the expenditure of employee time and materials to abate the cited violations,
and suggests that it evidences an intent to use or preserve the option of using the TDS. That
question was raised during the hearing, and West explained that the subject of abatement by
abandonment simply did not come up. Tr. 525. It is somewhat surprising that LTM, an
experienced mine operator, did not itself raise the issue. On the other hand, it had essentially
abandoned the facility and locked-out its power supply, only to find that a newly assigned MSHA
inspector believed that it remained subject to inspections.
15
MSHA’s inspection resources were stretched very thin in early 2008. The last
previous inspection of MC-1, in March 2008, was conducted by an MSHA inspector on
temporary assignment from Michigan because Oregon was “short-handed.” Tr. 494-95.
16
The Secretary’s theory is problematic for other reasons. Citing an operator for a
violation that occurred at some unspecified time in the past could pose due process issues. It also
could call for speculation on factors to be considered in evaluating whether a violation existed, if
so, its gravity and the level of an operator’s negligence. As noted infra, evaluation of such issues
for an alleged guarding violation may involve staffing patterns at the time of the alleged
violation, and other such factors.
33 FMSHRC 1218

As noted above, if the Secretary had established that LTM had operated the TDS
periodically despite its being locked out, then it would have been available for use, and the
citations would be considered on the merits. A closer question would have been presented if the
Secretary had proven that the TDS had been operated “in the recent past,” as Chaix believed.
However, recent operation was likewise not established.
Based upon the foregoing, I find that the TDS was not available for use by miners, and
that the citations issued for conditions on the TDS must be vacated.
The Mobil Crusher #1 Citations
There are seven citations remaining at issue related to MC-1. Six of those allege a
violation of the standard requiring that moving machine parts be guarded. The standard
provides:
§ 56.14107 Moving Machine Parts
(a) Moving machine parts shall be guarded to protect persons from contacting
gears, sprockets, chains, drive, head, tail, and takeup pulleys, flywheels,
couplings, shafts, fan blades, and similar moving parts that can cause injury.
(b) Guards shall not be required where the exposed moving parts are at least
seven feet away from walking or working surfaces.
30 C.F.R. § 56.14107.
The standard is broadly worded because it must be applied to myriad circumstances and,
as such, calls for interpretation by mine operators and MSHA inspectors. Not surprisingly, there
is some variation, or inconsistency, in the application of the standard. The citations at issue here
present a not uncommon factual pattern – a new or different inspector perceives a violation of the
standard in conditions that were not viewed as violative by inspectors during prior inspections.
Assessing the validity of such citations can present difficult issues. As explained in Good, when
the Secretary’s interpretation of a regulation is challenged, the initial determination is whether
the regulation or standard is plain or ambiguous. The Secretary’s interpretation of an ambiguous
regulation must be deferred to if it is “reasonable, consistent with statutory purpose, and not in
conflict with the statute’s plain language.” 23 FMSHRC at 1004. If the Secretary’s position is
sustained, a separate inquiry must be made, i.e., whether an operator had fair notice of the
Secretary’s interpretation.
To determine whether an operator received fair notice of the agency’s
interpretation, the Commission asks “whether a reasonably prudent person
familiar with the mining industry and the protective purposes of the standard
would have recognized the specific prohibition or requirement of the standard.
Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990). . . .
33 FMSHRC 1219

....
In applying the reasonably prudent person standard to a notice question,
the Commission has taken into account a wide variety of factors, including the
text of a regulation, its placement in the overall regulatory scheme, its regulatory
history, the consistency of the agency’s enforcement, and whether MSHA has
published notices informing the regulated community with “ascertainable
certainty” of its interpretation of the standard in question. . . . Also relevant is the
testimony of the inspector and the operator’s employees as to whether certain
practices affected safety. . . . Finally, we have looked to accepted safety standards
in the field, considerations unique to the mining industry, and the circumstances at
the operator’s mine [including the existing guarding on each moving part, the
location of each part in relation to where miners traveled and worked, and when
and how miners accessed each part, if at all].
23 FMSHRC at 1004-05 (opinion of Commissioners Jordan and Beatty) (citations omitted).
In evaluating whether a particular condition violated the standard, the gravity of any such
violation, and whether LTM had fair notice of the Secretary’s interpretation of the standard, the
potential exposure of miners to the moving machine parts must be considered. In Thompson
Bros. Coal Co., 6 FMSHRC 2094, 2097 (Sept. 1984), the Commission held that a similar
guarding standard must be interpreted by considering whether there is a reasonable possibility of
contact and injury, including contact stemming from inadvertent stumbling or falling, momentary
inattention, or ordinary human carelessness. Chaix’s determinations that guarding violations
existed, and his assessment of the gravity of the violations, was premised upon two general
theories of exposure. One was that a miner involved in inspecting or maintaining the machinery
might become entangled while in the process of touching gear boxes or bearing caps and/or
greasing the bearings while in operation. The other was the potential for a person to contact the
moving parts while traveling or cleaning in the vicinity of the potential hazard, e.g., by falling.
The inspection/maintenance theory is generally applicable to all of the guarding violations, and
will be addressed first. The travelway/cleanup theory is particular to each violation, and will be
discussed in conjunction with the specific citation at issue.
Chaix’s inspection/maintenance theory of exposure was based upon his general mining
experience, particularly his approximately six months in a position he described as “conveyor
mechanic.” Tr. 14, 214-15. He believed that miners would place themselves into very close
proximity to moving machine parts on conveyors in order to perform inspection and maintenance
tasks, e.g., physically touching gear boxes and bearing caps with their hands in order to feel for
vibrations or excessive heat – indicators of problems or impending failure. Tr. 33, 97, 113, 128,
268-69. He also believed that close contact was required in order to grease bearings which he
assumed was done while machinery was in operation to promote even distribution of grease. Tr.
34-35.

33 FMSHRC 1220

Brian West testified that LTM did not perform inspection and maintenance functions in
the manner described by Chaix. He has worked with crushing operations for many years, and has
nine to ten years of experience working on conveyors. Tr. 385, 405. West testified that LTM’s
crusher operator would perform a general walk-around inspection daily, but would not come into
close proximity to any moving parts. Tr. 383, 425-27. Any maintenance that needed to be
performed, and maintenance included greasing, was done while the equipment was deenergized
and locked and tagged out.17 Tr. 408, 504-05, 536. West testified that it was not necessary to
touch a bearing to determine if it was failing, because it could be heard, smelled, and/or seen. Tr.
385-86. Bearings were typically run to failure, even though that might result in unscheduled
down time. Tr. 489. Touching bearing caps, guards, or other parts in the vicinity of moving
parts was not the standard way to diagnose problems, and LTM’s employees were not trained to
do that. Tr. 385, 401-04, 408, 425. Chaix did not claim to have seen any of LTM’s employees
take such actions, and conceded that he did not know how LTM’s employees were trained. Tr.
269-70.
Around the time of the inspection, MC-1 was staffed by the crusher operator and two
loader operators, and virtually no maintenance was performed on the plant.18 Tr. 527-28. In
order to perform maintenance, the men would have had to work overtime or shut the plant down
early, and West did not recall any overtime being recorded on time cards and did not see the men
performing any maintenance. Tr. 527-28.
I find West’s testimony, which addressed actual practices at MC-1, to be credible. LTM
did not closely inspect or service its conveyors or other equipment while in operation. In fact, the
prospect of a miner reaching around or near guards in close proximity to moving machine parts
like conveyor head or tail pulleys strikes me as a highly dangerous practice. LTM’s practice of
performing maintenance only when equipment was locked and tagged out, regardless of any
advantages Chaix’s touch/feel theory might have in the diagnoses of impending failure, seems
eminently reasonable. It also is in conformance with other standards, e.g., 30 C.F.R. § 56.14204
which provides that machinery shall not be lubricated manually while it is in motion where
application of the lubricant may expose persons to injury. In evaluating the guarding violations,
no weight will be accorded to the close inspection/maintenance theory of exposure.
Citation No. 6398752

17

An exception to the lock out/tag out policy was that gear boxes on major equipment,
e.g., screens, were monitored periodically with an infrared heat sensor gun, which could provide
the operating temperature of the gearbox from a distance of 15-20 feet. Tr. 386-87, 497.
18
At the time of the hearing, the plant had been moved to a different location, and a
ground man had been employed to perform maintenance tasks like greasing. He reported for his
work after the crusher crew had gone home. Because many of the grease fittings were
inaccessible without removal of guards, extended grease lines were installed as the plant was
reassembled, in order to speed the maintenance operation. Tr. 527-29.
33 FMSHRC 1221

Citation No. 6398752 alleges a violation of the guarding standard, which is described in
the “Condition and Practice” section of the citation as follows:
The left side of the head pulley on the #3 hopper feeder conveyor has not been
adequately guarded. Open access to the moving machine parts was left at a height
of 26 inches from the walkway, and 12 inches from the existing (inadequate,) side
guard, exposing miners performing inspection, maintenance, lubrication, or
cleanup activities in this area to the risk of very serious injuries resulting from
entanglement with these moving machine parts. A miner was observed traveling
on foot and working in and around the plant while in operation at the time of the
inspection. Seven other guarding violations were cited in this inspection.
Therefore, termination due time has been set to allow for all corrective action to
be properly completed.
The citation was modified on June 25, by adding the following language to the Condition
and Practice section:
The tail and head pulleys of the #3 feeder are inadequately guarded, offering
exposure to the moving machine parts. The head and tail pulleys of the #1 and #2
feeder conveyors also offer access to the moving machine parts. Termination due
time has already been extended to 06/30/2008 in order to allow for the completion
of all corrective work.
Ex. G-13.
Chaix determined that it was reasonably likely that the violation would result in a
permanently disabling injury, that the violation was significant and substantial (“S&S”), that one
person was affected, and that the operator’s negligence was moderate. A civil penalty in the
amount of $176.00 was proposed for this violation.
LTM contends that the pulley was adequately guarded and did not present a hazard, and
that it did not have fair notice of the Secretary’s interpretation of the standard. It also contests
the special findings and the amount of the penalty.
The Violation
Raw material was fed into MC-1 through a three-bin hopper. Conveyor belts located
under the hoppers transported material onto a collector belt, the under-hopper conveyor, which
transferred it to a belt that fed it into a cone crusher. The hopper/conveyor assembly was trailer
mounted, and access to the area was restricted by company policy. The Secretary introduced
three photographs of the cited condition that were taken by Chaix on June 11. The first depicts
the pulley in question. Ex. G-15/1. The other two depict the condition after the citation had been
terminated by the installation of additional guarding and an extended grease line. Tr. 102; Ex. G
15/2, G-15/3. None of the Secretary’s photographs show the “existing (inadequate,) side guard”
referred to in the citation. LTM introduced a photograph showing the area and the then-existing
33 FMSHRC 1222

side guard. Tr. 100, 381; Ex. R-6/2. Another photograph, a side view, shows that the shaft of the
pulley was approximately one foot inside the edge of the existing guard. Ex. R-6/2. It also
shows, in the far right background, the general area of the #2 hopper conveyor that Chaix noted
as being inadequately guarded in the modification to the citation.
I have rejected the Secretary’s inspection/maintenance theory of exposure. As to the
travelway/cleanup theory, Chaix theorized that a person passing through the area could slip and
fall and possibly become entangled in the pulley. Tr. 94. As depicted in a photograph, the area
in question was an approximately two-foot wide passageway, or walkway, between the hoppers
and what appears to be the body of a trailer. Ex. G-15/2. Dual trailer tires appear to extend
across the passageway adjacent to what was then an opening in the guarding, and step plates were
located on the tops of the tires. Chaix’s concern was that a miner using the step plates on top of
the tires could slip and fall possibly encountering the pulley. Tr. 94. LTM’s policy, upon which
its personnel were trained, was that no one was allowed to enter the subject area while the
crusher was in operation. Tr. 384-85, 393. There was a gate mounted on the side of the trailer,
barely visible in a photograph, that normally was closed and had a “Do Not Enter” sign on it. Tr.
391; Ex. G-15/2. The under-hopper conveyors were monitored from the other side of the
conveyors, by someone standing on the ground and looking under the raised machinery. Tr. 384.
Chaix had seen one miner in the general area, but had not seen anyone enter or travel the
walkway in question. Tr. 94, 253-54. He also acknowledged that West told him about the noentry policy when he inspected that area.19 Tr. 260.
In Good, all four Commissioners who decided the case concluded that the guarding
standard was ambiguous when applied to the facts of that case, and I so find here.20 The
Secretary’s interpretation of the standard is entitled to deference if it is reasonable, consistent
with the statutory purpose and not in conflict with the statute’s plain language. On the facts
presented, the only issue is whether the Secretary’s interpretation, i.e., that the pulley was not
adequately guarded, is reasonable. Chaix’s initial photo depicts a completely open rotating side
of the head pulley and shaft, an obvious hazard.21 Ex. G-15/1. However, Chaix took the
photograph by partially entering the restricted area and reaching inside the existing guard.
Tr. 395-96.
19

When Chaix and West approached the area, Chaix motioned that West should enter
the trailer. West explained LTM’s policy, stated that he was not permitted to enter the area
because the conveyors were running. Chaix then stepped into the area near, but not on, the tire
step plate, to take his first photograph. Tr. 393-96, 496.
20
The Secretary argues, citing Good, that the standard is not ambiguous, and clearly
requires guarding of all moving machine parts that are not more than seven feet away from a
walking or working surface. Sec’y. Br. at 14. However, all four Commissioners who decided
Good held that the guarding standard was ambiguous in the applications there at issue in that it
did not specify the extent to which moving machine parts should be guarded. 23 FMSHRC at
1004, 1008.
21
There was very little evidence introduced as to the alleged hazards presented by the
pulleys on the #2 and #3 hopper conveyors noted in the amendment to the citation. The
Secretary failed to carry her burden of proof as to those parts.
33 FMSHRC 1223

If it is assumed that a miner would violate LTM’s policy by entering the walkway while
the machinery was in operation, contact with the moving machine parts of the head pulley would
have been at least theoretically possible. As LTM’s photos make clear, in order to contact the
rotating parts, a miner would have had to reach around the existing guard. It is highly unlikely
that he would contact the pulley if he slipped and fell, because the pulley was significantly
recessed behind the guard. In order to reach the pinch point where the belt started to wrap
around the pulley he would have had to extend an arm around and inside the guard at least one
foot.
I have serious doubts that the Secretary’s interpretation is reasonable. In any event, it is
clear that LTM did not have fair notice of the Secretary’s interpretation. Consequently, the
citation will be vacated.
The factors outlined in Good that are relevant to the fair notice defense as presented here
are the consistency of the agency’s enforcement, whether MSHA has published notices
informing the regulated community with “ascertainable certainty” of its interpretation of the
standard, and the circumstances at the operator’s mine, including the location of the pulley in
relation to where miners traveled and worked, and when and how miners accessed it.
Here, at least until the June 11, 2008, inspection, MSHA consistently enforced the
standard as applied to the guarding for the pulley. The condition had been inspected by MSHA
many times in the past, most recently in March 2008, and no previous inspector determined that
the guarding, which had not been changed, was inadequate. Tr. 390. It was Chaix’s issuance of
the instant citation that created inconsistency in MSHA’s enforcement. There is no evidence that
MSHA has published notices that would have informed mine operators with ascertainable
certainty that the guarding of the head pulley was inadequate.22
The circumstances at MC-1 were that the pulley was located in an area where travel was
restricted. LTM had a firm policy, upon which its miners were trained, that entry into the
trailer’s travelway was prohibited when the plant was operating. There is no evidence that that
policy was ignored by LTM’s employees, either routinely or occasionally. In fact, there was
typically only one person in the general area, the crusher operator, who would not have had
occasion to enter the area in violation of LTM’s policy. As the Secretary argues, restrictive entry
policies are not always followed, and the history of mining is replete with examples of injuries
and fatalities that occurred when preventive practices that “always” were implemented, were not.
Consequently, there is a possibility, albeit small, that a miner would attempt to use the walkway
in the trailer, encounter a tripping hazard, and fall in the vicinity of the pulley. However, the
pulley was located behind a substantial guard, and any inadvertent contact, e.g., by a person
22

Rodric Breland, supervisor of MSHA’s Albany Field Office, identified a number of
materials on guarding put out by MSHA, including the standard itself, the Policy and Procedures
Manual, a guarding handbook, and a power-point presentation. Tr. 586. None of those
instructional materials were introduced into evidence. Nor were any references made to such
materials in an attempt to demonstrate that the Secretary had notified operators with ascertainable
certainty of her interpretation of the regulation as applied to conditions like those cited here.
33 FMSHRC 1224

falling while on the restricted travelway, would have been highly unlikely. I have rejected the
inspection/maintenance theory of exposure and there is no evidence of any exposure attributable
to cleanup activities for the location in question.
Taking all of these factors into account, I find that LTM did not have fair notice of the
Secretary’s interpretation of the standard as to the condition cited. Accordingly, the citation will
be vacated.
Citation No. 6398753
Citation No. 6398753 also alleges a violation of the guarding standard, described in the
“Condition and Practice” section of the citation as follows:
The head pulley and shaft couplings on the "underhopper conveyor" have not been
adequately guarded. Open access to the moving machine parts was left at a height
of 60 inches, at a distance of 24 inches from the side of the chute, exposing miners
performing inspection, maintenance, lubrication, or cleanup activities in this area
to the risk of very serious injuries resulting from entanglement with these moving
machine parts. A miner was observed traveling on foot and working in and
around the plant while in operation at the time of the inspection. Seven other
guarding violations were cited in this inspection. Therefore, termination due time
has been set to allow for all corrective action to be properly completed.
Ex. G-16.
Chaix determined that it was reasonably likely that the violation would result in a
permanently disabling injury, that the violation was S&S, that one person was affected, and that
the operator’s negligence was moderate. A civil penalty in the amount of $176.00 was proposed
for this violation.
LTM contends that the pulley was adequately guarded and did not present a hazard, and
that it did not have fair notice of the Secretary’s interpretation of the standard. It also contests
the special findings and the amount of the penalty.

33 FMSHRC 1225

The Violation
The conveyor at issue passed under the three-bin feeder hopper. The hopper feeder
conveyors deposited material onto the subject conveyor, which in turn deposited it onto another
conveyor which fed it into a cone crusher. The head pulley at issue was on the upper, discharge,
end of the conveyor, and is depicted in photographs taken by Chaix and LTM. Ex. G-18, G-19,
R-7.
As with the previous citation, I find application of the broadly worded standard to the
particular parts at issue to be ambiguous, and that deference should be afforded to the Secretary’s
interpretation if it is reasonable. Chaix’s photograph of the purported hazard depicts a relatively
open side of the head pulley, with some red-painted guarding in place. Ex. G-18/1. As with the
previous citation, however, there is considerably more to the picture. Immediately adjacent to the
pulley, and not shown in Chaix’s photograph, were steel plates forming a “rock box” to keep
materials on the conveyor at the transfer point. The plates are shown in photographs taken by
LTM and by another MSHA inspector when he terminated the citation. Ex. R-7, G-18/2, 3 and
4. In order to reach the pulley, one would have to reach over the steel plates to the hazard, which
was 60 inches off the ground and 24 inches away from the outer edge of the rock box. Tr. 265.
A photograph taken by LTM shows the crusher operator standing in the location that Chaix was
in when he took his photograph. Tr. 113-14, 406; Ex. R-7/1. Other photographs show the
opposite side of the transfer point, steel deflector plates, and red-painted guarding of the
conveyor drive. Ex. R-7/2, R-7/3.
The Secretary’s inspection/maintenance theory of exposure has been rejected. As to the
travelway/cleanup theory, Chaix believed that a miner would be in the area at least once at start
up, and that there might be more frequent travel because of the location. Tr. 117. West
disagreed, stating that there would be no reason for a miner to be in the area, with the exception
of an initial walk-around inspection. Tr. 406. West also believed that there was no possibility
that a miner would inadvertently come into contact with the parts. Tr. 407-08. As the pictures
readily establish, there was no possibility that a miner engaged in cleanup or traveling in the area
would contact the supposed hazard, which was located five feet off the ground and two feet on
the other side of shoulder-height steel plates. The Secretary’s interpretation of the standard as to
this condition is unreasonable, and is not entitled to deference. In addition, LTM did not have
fair notice of the Secretary’s interpretation.
The factors relevant to the fair notice defense are the same as those identified with respect
to the previous citation. Here, as there, MSHA’s enforcement of the standard was consistent,
until Chaix issued his citation. The condition had been inspected by MSHA in the past, most
recently in March 2008, and no previous inspector determined that the guarding was inadequate.
There is no evidence that MSHA has published notices that would have informed mine operators
with ascertainable certainty that the guarding of the head pulley was inadequate. Considering
those factors, the isolated location of the pulley, the existing guarding and the additional
protection provided by the rock box, LTM did not have fair notice of the Secretary’s
interpretation of the standard as applied to the subject pulley.
33 FMSHRC 1226

Citation No. 6398754
Citation No. 6398754 alleges a violation of the guarding standard, described in the
“Condition and Practice” section of the citation as follows:
A keyed shaft on the v-belt drive on the "under 1400 feed" conveyor has not been
adequately guarded. Open access to this rapidly moving machine part was left at a
height of approximately 46 inches, at a distance of 17 inches from the handrail on
the cone work deck, exposing miners performing inspection, maintenance,
lubrication, or cleanup activities in this area to the risk of very serious injuries
resulting from entanglement with this spinning machine part. A miner was
observed working on this deck while the plant was in operation during the course
of this inspection. Seven other guarding violations were cited in this inspection.
Therefore, termination due time has been set to allow for all corrective action to
be properly completed.
Ex. G-20.
Chaix determined that it was reasonably likely that the violation would result in a
permanently disabling injury, that the violation was S&S, that one person was affected, and that
the operator’s negligence was moderate. A civil penalty, in the amount of $176.00 was proposed
for this violation.
LTM does not explicitly assert that the shaft was adequately guarded, or that it did not
have fair notice of the Secretary’s interpretation of the guarding standard with respect to the parts
at issue here. Resp. Br. at 21-22. It does contend that the violation was not S&S.
Significant and Substantial
An S&S violation is described in section 104(d)(1) of the Act as a violation “of such
nature as could significantly and substantially contribute to the cause and effect of a coal or other
mine safety or health hazard.” A violation is properly designated S&S "if, based upon the
particular facts surrounding that violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious nature." Cement Div.,
Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
The Commission has explained that:
In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum, the Secretary of Labor must
prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete
safety hazard--that is, a measure of danger to safety--contributed to by the
violation; (3) a reasonable likelihood that the hazard contributed to will result in
33 FMSHRC 1227

an injury; and (4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary of Labor, 861
F.2d 99, 103-04 (5th Cir. 1988), aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987)
(approving Mathies criteria).
In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission
provided additional guidance:
We have explained further that the third element of the Mathies formula "requires
that the Secretary establish a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury." U.S. Steel Mining Co., Inc.,
6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance
with the language of section 104(d)(1), it is the contribution of a violation to the
cause and effect of a hazard that must be significant and substantial. U.S. Steel
Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
Consideration must be given to both the time frame that a violative condition existed
prior to the issuance of a citation, and the time that it would have existed if normal mining
operations had continued. Bellefonte Lime Co., 20 FMSHRC 1250 (Nov. 1998); Halfway, Inc., 8
FMSHRC 8, 12 (Jan. 1986); U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). The
question of whether a particular violation is significant and substantial must be based on the
particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
The condition is depicted in several photographs. A close-up view of the approximately
one and seven-eight’s inch diameter shaft shows that it did not project beyond the woven steel
mesh guard for the v-belt drive. Tr. 122, 415; Ex. G-22/1. A hole in the mesh, approximately
four inches by four inches provided some access to the shaft. Other photographs provide a better
perspective of the condition. A photo introduced by LTM shows the railing referred to in the
citation, as does a photograph taken after the condition had been abated by welding a box shaped
cap over the opening. Ex. G-22/2, R-8/1.
The exposed shaft was near a work platform for the cone crusher. The platform was
about five feet wide, and a miner working on the platform would have been on the side farthest
away from the railing depicted in the photographs. Tr. 277, 417. The guard and shaft surface
were 17 inches outside the railing, and the shaft was several inches beyond where the platform
and railing terminated, as shown in a photograph introduced by LTM. Tr. 418; Ex. R-8/1. Aside
from the previously rejected inspection/maintenance exposure, Chaix determined that a miner
traveling on the walkway might slip or trip, or become startled, or step back into the hazard. Tr.
278. West testified that a miner would rarely be in that corner of the walkway/platform, and that
it would not be easy to contact the shaft, which was outside the rail extension. Tr. 418-19.
33 FMSHRC 1228

I find that the shaft was essentially flush with the existing guard and, because of its
location, 17 inches away from and several inches outside the end of the railing and the fact that a
miner would rarely, if ever, be in that corner of the platform, that the condition was unlikely to
result in an injury. Because the shaft did not protrude beyond the surrounding guard, any injury
would have resulted in lost work days, and would not have been permanently disabling. This
condition, likewise, had not been deemed a violation during previous MSHA inspections, and I
find that LTM’s negligence was low.
Citation No. 6398755
Citation No. 6398755 alleges a violation of the guarding standard, described in the
“Condition and Practice” section of the citation as follows:
The self-cleaning tail pulley on the "under 1400" conveyor has not been
adequately guarded. Access to this rapidly rotating finned pulley was left open
across the entire 42 inch width of the conveyor at a height of 20 inches at the
bottom, and the top sides at a height of 36 inches, exposing miners performing
inspection, maintenance, lubrication, or cleanup activities in this area to the risk of
very serious injuries resulting from entanglement with this spinning machine part.
This condition was obvious to the casual observer. A miner was observed
traveling on foot and working in and around the plant while it was in operation
during the course of this inspection. Seven other guarding violations were cited in
this inspection. Therefore, termination due time has been set to allow for all
corrective action to be properly completed.
Ex. G-23.
Chaix determined that it was reasonably likely that the violation would result in a
permanently disabling injury, that the violation was S&S, that one person was affected, and that
the operator’s negligence was moderate. A civil penalty, in the amount of $176.00 was proposed
for this violation.
LTM contends that the pulley was adequately guarded and did not present a hazard, and
that it did not have fair notice of the Secretary’s interpretation of the standard. It also contests
the special findings and the amount of the penalty.
The Violation
The self-cleaning tail pulley was located under the 1400 trailer-mounted crusher. It is
depicted in photographs taken by Chaix and LTM. A close up of the pulley itself, taken by Chaix
while he reached under an existing guard, and several other photographs show the condition of
the existing guarding before abatement measures were taken. Ex. G-25/2, G-25/3, G-26/1. The
location of the pulley and conveyor in relation to the trailer components is partially shown in
another photograph introduced by the Secretary. Ex. G-25/1. As with other conditions,
33 FMSHRC 1229

photographs taken by LTM on the day of the inspection, present a considerably better perspective
of the alleged hazard. Ex. R-9.
The conveyor in question was located underneath the trailer on which the crusher was
mounted. The trailer deck was roughly four feet high, and the conveyor was recessed about three
feet in from the sides of the trailer. Tr. 292, 425. It was recessed a greater distance from the
ends of the trailer, and the trailer’s framing further prevented access to the conveyor, as depicted
in LTM’s photographs. Tr. 422; Ex. R-9/1, R-9/2, R-9/7-9. A ladder providing access to the
trailer deck, and jacks supporting the trailer, also inhibited access to the conveyor.23 Ex. R-9/1,
R-9/4. At its lowest point, the end where the pulley was located, the guard was slightly less than
20 inches off the ground. Tr. 133, 428; Ex. R-9/6.
There is little question that a person that became entangled in the rotating tail pulley
would suffer a serious, possibly fatal, injury. LTM had installed guarding around the pulley
toprevent such entanglements. The question is whether the guarding was adequate, i.e., met the
requirements of the standard.24 There were two alleged deficiencies in the guarding, an opening
on the top near the tail pulley, and the absence of a bottom guard.
As with the previous citation, I find application of the broadly worded standard to the
particular parts at issue to be ambiguous, and that deference should be afforded to the Secretary’s
interpretation if it is reasonable.
The Secretary argues the aforementioned two theories of exposure,
inspection/maintenance and travelway/cleanup. The inspection/maintenance theory has
previously been rejected, and this application further evidences the bases for doing so.25 The
photographs also make clear that the existing guarding was more than adequate to prevent
contact by anyone walking in the vicinity who might trip and fall. Because of its location under
the trailer deck, a person walking in the area would be at least three feet, and probably
considerably farther, away from the guarding. A miner engaged in cleanup activities could,
however, position himself under the trailer deck closer to the conveyor.
23

LTM’s photograph of the crusher illustrates a color-coding system that it employed at
the MC-1 plant. Green denoted proper travelways and approaches to equipment, e.g., the ladder
to the trailer deck and the gate to enter it. Orange denoted areas where caution was required,
such as the railing around the trailer deck. Red signaled “stop” - do not proceed, as indicated by
the guards around the conveyor and pulley. This color scheme was not implemented at the TDS,
because there was no intention to use that facility. Tr. 437-38.
24
As the photographs depict, not all of the attachment points for the guarding were in
use. However, the guarding was substantial in construction, and was in the location it was
intended to be in. Chaix did not cite the guard for being improperly secured. Tr. 295.
25
As Chaix explained, the existing guarding inhibited a miner’s ability to inspect and
maintain the conveyor while it was in operation, and one would have to enter the guarded area to
grease the pulley shaft bearings. Tr. 145. As West explained, however, LTM’s employees do
not perform those functions, or any function in close proximity to such equipment, while it is in
operation. Tr. 425-27.
33 FMSHRC 1230

There was conflicting testimony on LTM’s cleanup activity. Chaix explained that
spillage would be inevitable in the area of the pulley, and the photographs confirm that spillage
occurred at that location. Tr. 135. Because of the presence of the shovel, shown in the
photographs, he assumed that spillage, including spillage under the conveyor’s tail pulley, would
by cleaned by a miner using the shovel. Tr. 134, 146. He did not see a skid steer at the plant, a
piece of mobile equipment that could be used for cleaning, and assumed none was available. Tr.
146. He did not know how often cleaning would be needed, but stated that it would not be
unusual to see it done once per shift. Tr. 135. He did not inquire about actual cleanup activities
at MC-1, or, apparently, about the availability of a skid steer. Tr. 135. West testified that there
was a skid steer available for use at MC-1, and that he believed that miners would use it rather
than a shovel to clean the area. Tr. 430-32. The skid steer was located at LTM’s nearby asphalt
plant, approximately 150 yards from MC-1.
The presence of shovels in the MC-1 area strongly suggests that they were used for
cleanup of fugitive material, and I so find. However, while a shovel was most likely used to
clean small open areas, such as the approach to the ladder leading to the crusher deck, it is not
clear that a shovel was used to clean underneath the conveyor. The pictures suggest that fugitive
material was allowed to build up in that area, and it is more likely that removal of such material
would have been done infrequently and that a skid steer would have been used because of the
amount of material involved. Ken Hanson, one of Knife River’s safety managers, testified that at
Knife River facilities under his control, which did not include MC-1, build-ups of material under
a tail pulley were either removed with a “skid loader,” or by hand after the machinery had been
locked and tagged out. Tr. 208. As previously noted, MC-1 was essentially a one-man
operation, and it is highly unlikely, but possible, that the crusher operator would have used a
shovel to clean under the conveyor and tail pulley.26
Chaix opined that a miner using a long-handled tool, like the shovel shown in his
photograph, near a conveyor pulley could suffer a very serious injury and that MSHA records
include instances of fatalities occurring under such circumstances. Tr. 137. Unknown is the
extent of guarding, if any, that was in place when such events may have occurred. Here the
alleged deficiencies in the guarding were an opening on the top of the guard and the absence of
guarding on the bottom of the pulley. The opening, which was located approximately one foot
away from the end of the existing guard, is depicted in one of the Secretary’s photographs. Ex.
G-25/3. Access from the rear was blocked by the trailer’s frame, and the solid metal guard
around the pulley. A miner cleaning under the conveyor would not be exposed to danger because
of the opening in the top of the guard. I find that that opening was not a deficiency that rendered
the existing guarding inadequate, either solely or in conjunction with the alleged deficiency in
bottom guarding.
As explained in the following discussion of the fair notice issue, there is a considerable
history to MSHA’s enforcement of the standard as it relates to the guarding of the bottoms of tail
26

For example, a buildup of material that contacted the belt and threatened to disrupt
operations might have been dealt with initially by simply shoveling some of the material away
from the belt.
33 FMSHRC 1231

pulleys. Chaix did not explain, in detail, the mechanics of how use of a shovel near a conveyor
could be hazardous. It appears that the concern is possible entanglement, i.e., that the tool may
get caught between the belt and pulley and be forcefully rotated around the pulley resulting in
flailing of the handle and possibly pulling the miner into the pulley. Here, the existing guard
effectively covered the top and sides of the pulley and related portions of the conveyor. The
pulley itself was recessed, such that no part of it extended below the guard. Two to three feet
away from the pulley, the belt sagged slightly below the side guard. However, the guard appears
to have been sufficient to prevent entanglement with the pulley, especially since a miner would
most likely be sliding the bottom of the shovel along the ground and would not be attempting to
shovel material onto the belt, which was inaccessible from that area.
Considering the relatively isolated location of the tail pulley, and the considerable
guarding that was in place, guarding that had thus far been deemed in compliance with the
standard by LTM and other MSHA inspectors, I find that the Secretary’s interpretation of the
standard, as applied to the cited condition is not reasonable, and is not entitled to deference. In
addition, I find that LTM did not have fair notice of the Secretary’s interpretation.
The factors relevant to the fair notice defense are the same as those identified with respect
to previous citations. Here, as there, MSHA’s enforcement of the standard was consistent, until
Chaix issued his citation. The condition had been inspected by MSHA in the past, most recently
in March 2008, and no previous inspector determined that the guarding was inadequate. Tr. 436.
There is no evidence that MSHA has published notices that would have informed mine operators
with ascertainable certainty that the guarding of the tail pulley was inadequate.
Unlike the guarding of conditions discussed in previous citations, the topic of bottom
guarding for conveyor tail pulleys has provoked considerable interaction between mine operators
and MSHA. Ken Hansen has worked with crushers for 40 years and has dealt with guarding
issues throughout. Tr. 190-92. He testified that around 2004-2005, he was visited by two
MSHA inspectors, who told him that they had been informed during an office meeting that
bottom guarding would not be required on tail pulleys that were no more than 30 inches above
the ground. Tr. 193-94. Knife River, and other mine operators it dealt with in Southern Oregon,
applied that standard. It was applied throughout Knife River’s 5-6 mines over the course of
several years and there were no citations issued for the absence of bottom guarding on tail
pulleys that were less than 30 inches off the ground. Tr. 195-96. However, around August or
September of 2008, Hansen was told by another MSHA inspector, Mike Anderson, that the
standard that was going to be applied was “knee height.” Tr. 198. He did not like the ambiguity
inherent in the new interpretation, and took a “wait and see” approach to the newly announced
“guideline.” Tr. 206-07. One of his concerns was that reducing ground clearance by lowering a
tail pulley to avoid having to install bottom guarding would require more frequent stoppage of
the equipment, because material has a tendency to build up at the tail pulley and cleaning it
requires that the equipment be deenergized, and locked and tagged out. In his opinion, re-starting
a plant like MC-1 is “the most dangerous time” because you have to know where all your people
are, and things can break. Tr. 205-06.

33 FMSHRC 1232

Lynn Gullickson worked for Knife River for 11 years, and for the last six years held the
position of Safety Resource Manager for the Western Oregon, Northwest Division. He has
worked for 43 years in crusher operations, including 17 years as a crusher operator, maintenance
man, and asphalt plant operator. Tr. 549. In 2005 and 2006 he requested and obtained
compliance assistance visits from MSHA on two new crusher plants. The topic of bottom
guarding for tail pulleys was discussed, and his understanding was that tail pulleys less than 28
30 inches off the ground did not require bottom guarding. Tr. 550. Then about 2007-08, the
standard became “knee height.” Tr. 550. There was no official document establishing the rule,
and he doesn’t know where it came from.27
Michael Flewelling, one of three safety managers for Knife River Materials, testified that
he was present at a meeting on June 11, 2008, when one of the meeting participants received a
call regarding a citation that had been issued by Chaix at the Davis Slough for a tail pulley
without a bottom guard that was close to the ground. His understanding was that the 30-inch
guideline was in effect, i.e., bottom guarding was not required for pulleys less than 30 inches off
the ground. Tr. 573. He called MSHA’s Albany Field Office and spoke to the Field Office
Supervisor, “Brad” Breland. As a result of that conversation, his understanding was that the
guideline was “knee height,” about 24 inches or so. Tr. 573-74. Several persons, including
LTM’s representative, were present and overheard the call.
Rodric Breland, supervisor of MSHA’s Albany Field Office since January 2008,
confirmed that he had a phone conversation on June 11, 2008, with Flewelling and other Knife
River personnel on the subject of bottom guarding for tail pulleys. Tr. 588. While he did not
recall the exact wording of the discussion, he did recall that the concept of “knee height” came
up, “but there was a lot more to it.” Tr. 588. He explained that his position on bottom guarding
has been relatively consistent, i.e., that there is no minimum standard and that all pertinent facts
have to be examined. MSHA does not insist on guards when a person would have to lay on his
back and reach up into a pulley – but a pulley that was 20 inches off the ground and in a position
where it could cause injury would have to be guarded – every situation is different. Tr. 588-89.
He also explained that there are a number of materials on guarding put out by MSHA, including
the standard itself, the Policy and Procedures Manual, a guarding handbook, and a power-point
presentation. Tr. 586.
27

While not relevant to the issues presented here, controversy over application of the
guarding standard to the bottoms of tail pulleys continued. Gullickson related that five citations
for such violations were issued to Knife River on May 27, 2009, where the tail pulleys ranged
from 10 to 32 inches off the ground. The Secretary determined to vacate those citations after
Knife River contested them before the Commission. Tr. 559-62. The paperwork effectuating the
actions noted that the citations would serve as notice for future enforcement. Ex. R-13 at 16-20.
Subsequently Knife River representatives met with high level MSHA officials, who agreed to
visit the MSHA Field Office and retrain the inspectors on the guarding of tail pulleys. Tr. 563,
565-68. The conditions that lead to the citations, which had not been altered, had not been cited
subsequently. Tr. 563, 568. Roderic Breland, MSHA’s Field Office Supervisor, confirmed that
higher level MSHA officials had determined to vacate the citations, and produced photographs of
the cited conditions. Tr. 591-600; Ex. G-37.
33 FMSHRC 1233

Breland was an impressive witness. His approach to difficult guarding questions raised
by mine operators and inspectors is commendable. He strives for consistency in enforcement and
he often travels to a mine site to personally observe conditions in which an inspector’s
interpretation of the standard has been disputed. It is apparent that MSHA did not establish rigid
criteria for interpreting the guarding standard as applied to bottom guarding for conveyor tail
pulleys. The “30-inch” and “knee height” guidelines referred to by LTM’s witnesses were not
official MSHA-sanctioned interpretations. However, MSHA inspectors attempting to explain
their interpretation of the standard to mine operators may well have used such terminology.
LTM’s witnesses credibly testified to conversations with MSHA inspectors that led them to
reasonably conclude that the standard did not require bottom guarding for tail pulleys that were
less than 30 inches, and later knee height, from the ground. Their understanding was validated
by years of experience, and numerous inspections in which the “guidelines” appeared to have
been consistently applied.
LTM reasonably viewed Chaix’s citation for inadequate guarding of the tail pulley as a
significant and unexpected departure from their settled understanding of how the standard
applied to the subject condition. Upon consideration of the factors relevant to this defense, I find
that LTM did not have fair notice of the Secretary’s interpretation of the guarding standard as
applied with respect to this citation.
Citation No. 6398756
Citation No. 6398756 alleges a violation of the guarding standard, described in the
“Condition and Practice” section of the citation as follows:
The v-belt drive on the #2 (El Jay) screen has not been adequately guarded,
offering open access to the rapidly rotating primary drive and idler pulleys. Both
the leading and the trailing sides of the primary drive pulley were left open to
contact. This condition was obvious to the casual observer. Miners performing
inspection, maintenance, lubrication, or cleanup activities in this area risk very
serious injuries resulting from entanglement with these moving machine parts.
Seven other guarding violations were cited in this same inspection. Therefore,
termination due time has been set to allow for all corrective action to be properly
completed.
Ex. G-27.
Chaix determined that it was unlikely that the violation would result in a permanently
disabling injury, that the violation was not S&S, that one person was affected, and that the
operator’s negligence was moderate. A civil penalty, in the amount of $100.00 was proposed for
this violation.
33 FMSHRC 1234

LTM contends that the v-belt drive was adequately guarded in that the guard extended
down to within 20 inches of the walking surface, that it did not present a hazard, and that it did
not have fair notice of the Secretary’s interpretation of the standard.
The Violation
The cited condition is depicted in a number of photographs taken by Chaix and LTM.
Ex. G-29, R-10. A large electric drive motor, which transmitted power to the v-belt drive, was
traversed by an elevated walkway. The motor extended completely through the walkway, such
that persons using the walkway had to climb over it. Tr. 154; Ex. R-10/2. Intermediate steps,
approximately 14 inches above the walkway, were provided on each side of the motor.
Ex. R-29/1-2, R-10/2-3. Adjacent to and about six inches from the steps, there were openings in
the guarding that allowed direct access to the drive and idler pulleys. Tr. 152-54; Ex. R-29/1-2.
Chaix believed that they presented an entanglement hazard that could lead to a permanently
disabling injury.
The Secretary’s inspection/maintenance theory of exposure has been rejected. However,
the travelway/cleanup theory is more viable here. The steps adjacent to the openings in the guard
were an integral part of a walkway used by miners to access part of the screen. While the
walkway would have been used infrequently, it was designated as a travelway for use by miners.
The openings in the guard were in close proximity to the steps and were large enough to admit a
shoe or boot.
LTM argues that the factory-mounted guard was no more than 20 inches above the
walkway, i.e., less than knee height, which met the previously noted guideline. However,
application of any such guideline would be extremely doubtful here. As Breland noted in
reference to this citation, the condition here was more hazardous to a foot, and a minimum height
standard would have no application to this type of hazard.28 Tr. 589.
Again, I find the standard ambiguous as applied to the specific condition at issue in this
citation. However, I find the Secretary’s interpretation of the standard to be reasonable and
entitled to deference.
LTM’s fair notice defense presents a close question. The guard for the v-belt drive was
not painted red, as were the guards that LTM installed on MC-1. That was because it was
incorporated into the design of the screen and was installed at the time the screen was
manufactured. Tr. 441. It is a reasonable inference that it had been used in that condition for a

28

LTM’s argument is based, in part, on Chaix’s termination of the citation, wherein he
noted that the guard had been extended “down to approximately knee height.” Ex. G-27/2.
There were no photographs of the condition, as abated. It is unclear whether knee height was
considered from the main walkway, from the step, or from some other reference point. As Chaix
admitted, the termination documentation was vague and not his best work. Tr. 301-04.
33 FMSHRC 1235

number of years, and had not been cited as being in violation of the guarding standard in prior
inspections of MC-1, including the March 2008 inspection.
In determining whether LTM had fair notice of the Secretary’s interpretation, as with
other citations at issue in this case, the pertinent factors to be considered are the consistency of
the agency’s enforcement, whether MSHA has published notices informing the regulated
community with “ascertainable certainty” of its interpretation of the standard, and the
circumstances at the operator’s mine, including the location of the pulley in relation to where
miners traveled and worked, and when and how miners accessed it. MSHA’s enforcement of the
standard with respect to this condition had been consistent, until Chaix issued the citation. No
previous inspector determined that the guarding was inadequate. While, as Breland noted,
MSHA has published a good deal of material addressing application of the guarding standard,
there is no evidence that it has published notices that would have informed mine operators with
ascertainable certainty that the guarding of the v-belt drive, as presented here, was inadequate.
While the cited condition was directly adjacent to an elevated walkway, that walkway
was traveled infrequently, especially when the equipment was in operation. Chaix testified that
the screen was an extremely noisy piece of equipment, and that he would not expect any miner to
be in that area while the machinery was in operation unless he had some compelling reason to be
there. Tr. 152. His evaluation of the gravity of the violation was based upon a “very, very low
basis of frequency to exposure.” Tr. 152. Considering the relatively isolated location of the cited
condition, the previously recognized adequacy of the factory-installed guard, and the extremely
limited occasions that a miner would have traversed the walkway while the screen was in
operation, I find that LTM did not have fair notice of the Secretary’s interpretation of the
standard.
Citation No. 6398757
Citation No. 6398757 alleges a violation of the guarding standard, described in the
“Condition and Practice” section of the citation as follows:
The self-cleaning tail pulley on the #2 underscreen conveyor has been
inadequately guarded, exposing miners performing inspection, maintenance,
lubrication, or cleanup activities in this area to the risk of very serious injuries
resulting from entanglement with this rapidly rotating machine part. The finned
rotating pulley, at a height of 20 inches to the bottom of the side guards and 28
inches to the center of the shaft, was exposed across its bottom side for the entire
44 inch width of the conveyor, with less than 6 inches from the existing
(inadequate,) guards to the pulley. Grease points were located on the shaft
bearings. This condition was obvious to the casual observer. A miner was
observed traveling and working in and around the plant while it was in operation
at the time of this inspection. Seven other guarding violations were cited during
this inspection. Therefore, termination due time has been set to allow for all
corrective action to be properly completed.
33 FMSHRC 1236

Ex. G-30.
The citation was amended on June 25, 2008, to add the following language to the
“Condition and Practice” section:
There are also openings in the guard at the adjustment assemblies, large enough to easily
admit a body part, at a distance of less than 6 inches from the existing (inadequate,) guard
to the finned tail pulley.
Ex. G-30 at 5.
Chaix determined that it was reasonably likely that the violation would result in a
permanently disabling injury, that the violation was S&S, that one person was affected, and that
the operator’s negligence was moderate. A civil penalty, in the amount of $176.00 was proposed
for this violation.
LTM contends that the pulley was adequately guarded and did not present a hazard, and
that it did not have fair notice of the Secretary’s interpretation of the standard. It also contests
the special findings and the amount of the penalty.
The Violation
The condition at issue in this citation, the tail pulley on the No. 2 underscreen conveyor,
is similar to that addressed by Citation No. 6398755. It is depicted in several photographs taken
by Chaix and by LTM. Ex. G-32/1, G-32/2, G-33, R-11/1-7. Chaix’s photos are close-ups of the
tail pulley that were taken by reaching down under the existing guarding, which extended down
to 20 inches from the ground. Tr. 161, 305. LTM’s photos show that the tail pulley, like the one
previously discussed, was located under a trailer deck and was recessed approximately three feet
away from the sides of the trailer deck. There was no trailer framing immediately behind the
existing guard. However, access to the pulley was impeded by blending chutes that extended
down and away from the sides of the pulley/guard. Tr. 444; Ex. R-11/4. R-11/6-7.
In addition to those distinctions, there were also assemblies on each side of the conveyor
that were used periodically to adjust the tension on the belt. They were the subject of the
amendment to the citation two weeks after it was issued. The pulley shaft was mounted in
bearings that were affixed to an assembly that was attached to square tubing that slid into an
opening in a bracket. The end of the sliding adjustment consisted of a threaded rod, on which
two nuts were placed and were used to make the adjustments. Chaix believed that the openings
in the guard were large enough for a body part to be inserted. Tr. 313; Ex. G-30/5. He pointed
out an opening in the guard that he believed did not “fully protect miners” by referring to a “dark
spot behind the shaft and bearing” shown on the left side of a photograph taken by LTM. Tr.
165; Ex. G-33/1; R-11/1. Another photograph, a side view of the “opening,” shows that the
adjustment mechanism almost completely blocked access to the opening. Ex. R-11/4. West
described the spatial relationship between the slot on the guard and the square tubing of the
adjustment mechanism and opined that it did not provide easy access to the tail pulley. Tr. 448
33 FMSHRC 1237

50; Ex. R-11/4. Adjustments to belt tension and alignment are performed while the conveyor is
running, but only when necessary. The nuts on the end of the sliding mechanism, where the
adjustments are made, are about three feet away from the tail pulley, on the other side of the
blending chutes. Tr. 447.
The presence of the adjustment mechanism and the need to occasionally adjust belt
tension and alignment do not materially differentiate the conditions at issue in this citation from
those at issue in Citation No. 6398755. For the reasons there stated, I find that the Secretary’s
interpretation of the guarding standard to the tail pulley in question is not reasonable and is not
entitled to deference, and that LTM did not have fair notice of the Secretary’s interpretation of
the standard.
Citation No. 6398758
Citation No. 6398758 alleges a violation of 30 C.F.R. § 56.12032, which requires that
“inspection and cover plates on electrical equipment and junction boxes shall be kept in place at
all times except during testing or repairs.” The violation was described in the “Condition and
Practice” section of the citation as follows:
Fourteen holes had been left open on multiple components of the electrical
equipment in the plant MCC trailer, ranging in size up to 3 inches in diameter and
voltage up to 480 VAC. The electrical conductors, both insulated and exposed
(bare metal,) were clearly visible through several of the uncovered openings.
The "JCI control" panel had 5 open holes, up to 1 1/8" diameter. 480VAC.
The 120/240VAC breaker panel had 3 holes up to 1 1/4" diameter.
The Cutler/Hammer disconnect box had one hole, 1 1/4" diameter. 480VAC.
The "El Jay #2" panel had 2 holes: one 1 1/2" diameter, one 1 3/4" diameter.
480VAC.
The "6x20 JCI" panel had one hole. 480VAC.
The "Jaw" panel had one hole, 3 inches in diameter. 480VAC.
The junction box above the "6x20" and "El Jay" panels also had one open hole.
This MCC electrical trailer is also used on a daily basis as a shop, an operator's
station, and a break and lunch room, as well as for storage of tools and equipment
(including combustibles and flammables.) The trailer had a narrow walkway, and
the lunch room had one door to exit, requiring miners to pass in close proximity to
the electrical panels in order to escape. Electrical equipment and junction boxes
with open holes pose a shock /burn /fire hazard to miners working, traveling, or
taking a break in this area. This condition was extensive and obvious to the casual
observer. Termination due time is set to allow for proper corrective work to be
completed.

33 FMSHRC 1238

Ex. G-34.
Chaix determined that it was reasonably likely that the violation would result in a fatal
injury, that the violation was S&S, that one person was affected, and that the operator’s
negligence was moderate. A civil penalty, in the amount of $392.00 was proposed for this
violation.
LTM contends that there was “no likelihood that the hazard will result in injury, and thus
the citation should be dismissed.” Resp. Br. at 30. It also contests the special findings and the
amount of the penalty.
LTM’s assertion that there was no likelihood that an injury would result is not a defense,
but goes to the gravity of the violation. Allied Products Co. v. FMSHRC, 666 F.2d 890 (5th Cir.
1982). While not broadly worded, the regulation has been applied to require that there be no
openings in electrical control boxes. Richard E. Sieffert Res., 23 FMSHRC 426 (Apr. 2001)
(ALJ) (open backs of electrical control boxes violated regulation). There is no dispute that there
were more than one dozen openings in electrical equipment/junction boxes that were located in a
trailer that housed electrical controls for MC-1. Chaix took photographs of the bottoms of
various electrical panel boxes showing holes ranging up to three inches in diameter. Ex. G-36.
The regulation was violated.
S&S
The fact of the violation has been established. A measure of danger to safety was
contributed to by the openings in the electrical boxes allowing access to energized electrical
conductors. There is little question that if a miner came into contact with an energized electrical
circuit he could reasonably have been expected to suffer a serious injury. As is often the case,
the primary issue in the S&S analysis is whether the violation was reasonably likely to result in
an injury causing event.
The exterior dimensions of the trailer in question were on the order of eight feet by eight
feet. Tr. 460. It housed various electrical control boxes, as shown in photographs introduced by
LTM. Ex. R-17. Some of the boxes were energized, and some were not. Tr. 321, 457. West
testified that the box that had the three-inch hole in it was not energized. Tr. 457. The holes
were on the bottoms of the boxes. Tr. 177. The trailer was used for a variety of activities,
including energizing and deenergizing equipment, storage of tools and supplies and as a
lunch/break room. A miner entering or exiting the lunch room would pass by one electrical
panel. Tr. 515-16. Chaix noted that combustible and flammable materials were stored in the
trailer, but aside from wood, he was unable to identify specific substances. Tr. 318-20. West
testified that there were a couple of cans of aerosol brake cleaner in the trailer, but no oil or
grease. Tr. 463-64, 517.
Chaix determined that there were a number of ways that the hazard posed by the holes
could result in an injury. He cited, as an example, that the three-inch hole could lead to direct
contact with an energized conductor. Tr. 181. He also noted that the voltage of at least some of
33 FMSHRC 1239

the circuits was well above that of potentially fatal household current, and that if something
became energized a fatality could result. Tr. 183. Contact could also result in shock/burn
injuries, and he cited the possibility of a fire starting through the ignition of materials that might
accumulate inside an electrical panel. Tr. 184.
The possibility of a miner coming into direct contact with an energized conductor inside
of one of the panels was extremely remote. While the trailer had multiple uses, miners would
enter it for brief periods only a few times each day. All of the openings were on the bottoms of
the boxes, and below waist height. Tr. 460-61. The box with the three-inch hole in it was not
energized. Tr. 457. There is no evidence that any material had accumulated in the boxes, and the
pictures do not show any accumulations. The boxes were inside the trailer, not open and exposed
to the elements. While a serious injury, even a fatality, was possible, it was highly unlikely. The
possibility of a fire appears to have been virtually non-existent.
I find that the violation was not S&S, and that it was unlikely to result in a fatal injury. I
agree with Chaix’s assessment that the operator’s negligence was moderate.
The Appropriate Civil Penalties
The parties stipulated that Mobil Crusher #1 is a small mine; that its controlling entity is
medium sized, and that it had not been cited for any violations within the fifteen months
preceding the inspection. LTM does not contend that the maximum penalty that could be
assessed for the violations would affect its ability to continue in business. The Secretary does not
contend that the violations were not promptly abated.
Citation No. 6398754 is affirmed. However, the violation was unlikely to result in a lost
work days injury and was not S&S. LTM’s negligence was low. A civil penalty of $176.00 was
proposed by the Secretary. The lowering of the levels of gravity and negligence justify a
reduction in the proposed penalty. Upon consideration of the above, the factors enumerated in
section 110(i) of the Act, and guided by the Secretary’s penalty calculation regulations,29 I
impose a penalty in the amount of $100.00.
Citation No. 6398758 is affirmed. However, the violation was unlikely to result in a fatal
injury and was not S&S. A civil penalty of $392.00 was proposed by the Secretary. The
lowering of the level of gravity justifies a reduction in the proposed penalty. Upon consideration
of the above, the factors enumerated in section 110(i) of the Act, and guided by the Secretary’s
penalty calculation regulations, I impose a penalty in the amount of $100.00.
LTM withdrew its contest of Citation No. 6398766, which alleged that miners’ training
records were incomplete. The civil penalty proposed for that violation, $100.00, will be
imposed.

29

30 C.F.R. Subchapter P, Part 100.
33 FMSHRC 1240

ORDER
WHEREFORE, Citation Nos. 6398748, 6398749, 6398750, 6398751, 6398752,
6398753, 6398755, 6398756 and 6398757 are VACATED. Citation Nos. 6398754 and 6398758
are AFFIRMED as modified. Citation No. 6398766 is AFFIRMED. Respondent is
ORDERED to pay civil penalties in the total amount of $300.00, within 45 days.

/s/ Michael E. Zielinski
Michael E. Zielinski
Senior Administrative Law Judge
Distribution (Certified Mail)
Evan H. Nordby, Esq., Office of the Solicitor, U.S. Department of Labor, 1111 Third Avenue,
Suite 945, Seattle, WA 98101-3212
Chris Lawrence, Regional Safety Manager, LTM, Incorporated, Knife River Materials - Coast
Division, P.O. Box 1145, Medford, OR 97501

33 FMSHRC 1241

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVENUE, NW, SUITE 9500
WASHINGTON, DC 20001
TELEPHONE: 202-434-9980 / FAX: 202-434-9949

May 17, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA)
Complainant
v.
SANGRAVL COMPANY,
Respondent

:
:
:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDINGS
Docket No. SE 2008-994-M
A.C. No. 40-00811-160277
Docket No. SE 2010-785-M
A.C. No. 40-00811-219691
Mine: Sangravl Company, Inc.

DECISION
Appearances: Mr. John B. Herbert, representing Sangravl Company, Inc.
Schean G. Belton, Esq., U.S. Department of Labor, Nashville, TN on behalf of
the Secretary
Before:

Judge David F. Barbour

These cases are before me on a Petitions for Assessment of Civil Penalty filed by the
Secretary of Labor (“Secretary”) on behalf of her Mine Safety and Health Administration
(“MSHA”) against Sangravl Company, Inc. (“Sangravl”), pursuant to section 105 of the Federal
Mine Safety and Health Act of 1977 (the “Mine Act” or “Act”), 30 U.S.C. §815. The Secretary
seeks the assessment of penalties totaling $18,908 for eight alleged violations of mandatory
safety standards set forth in 30 C.F.R. Part 56.1 The violations are alleged in six citations issued
pursuant to section 104(a) of the Act , 30 U.S.C. § 814(a), one citation issued pursuant to section
104(d)(1) of the Act, 30 US.C. §814(d)(1), and one order issued pursuant to section 104(d)(1).
Id. The citations and order involve conditions cited at Sangravl’s Humphreys County, Tennessee
sand and gravel processing facility. The Secretary asserts that all of the alleged violations were
significant and substantial contributions to mine safety hazards (“S&S” violations). She further
asserts that two were the result of the company’s unwarrantable failure to comply with the cited
standards.

1

Part 56 contains standards applicable to the nation’s surface metal and nonmetal mines.
33 FMSHRC 1242

In answering the Secretary’s petition the company argues that the Secretary’s S&S
allegations and other assertions of gravity do not take account of the lack of employee exposure
to the alleged conditions. The company also argues that the Secretary’s negligence assertions are
inaccurate.
The matter was heard in Nashville, Tennessee. The Secretary was represented by
counsel. The company was represented by its president.
STIPULATIONS
The parties agreed that Sangravl’s facility is subject to the jurisdiction of the Act and that
Sangravl is a small operator.2 Tr. 10; See also Tr. 130.
THE EVIDENCE
THE MINE AND THE INSPECTION OF JUNE 23, 2008
Edward (“Ed”) Jewell is a federal mine inspector. Prior to becoming an inspector Jewell
worked in the mining industry as a general laborer, an electrician, a mechanic, a supervisor and a
company safety director. Tr. 14-15. In June 2008, he conducted two inspections at Sangravl’s
mine. Tr. 15. At the facility sand and gravel is off-loaded from barges, screened and hauled to
stockpiles. Tr. 15. Customers drive their haul trucks onto miner property where the resulting
product is loaded onto the trucks. Tr. 15-16.
DOCKET NO. SE 2008-994
CITATION NO.
7752045

DATE
6/23/08

30 C.F.R. §
56.16006

The citation states:
The valve of the oxygen cylinder on the portable
welding/cutting unit is not protected against
damage or contact. The valve of the cylinder is
fully exposed. The unprotected cylinder valve
is located just outside of the mine’s office.
2

John Herbert, the company’s president, explained that the company employs seven
persons: himself, his son, four miners, and a mine office worker. All of the employees work at
the mine site. See Tr. 63-64, 138.
33 FMSHRC 1243

Equipment traffic is observed in the area. A
front end loader is parked near the cylinder.
This condition creates a hazard of the valve
being knocked off and striking an employee
with a propelled object.
Gov’t. Ex. 1
On the morning of June 23, 2008, Jewell arrived at the mine and promptly began the
inspection. One of the first things Jewell saw was an oxygen cylinder that was missing a cover
for the cylinder’s valve. Because the valve was fully exposed, Jewell believed the cylinder was
in violation of 30 C.F.R. §56.16006. Tr. 16. The cylinder was located just outside the mine’s
shop. Tr. 17. According to Jewell, the supervisor’s office was within 10 to 12 feet of the
cylinder. Id. The cylinder was secured to a portable cart with a chain. Tr. 50. Jewell also noted
that a front end loader recently was operating in the vicinity. Tr. 17.
Jewell believed the combination of circumstances made the cylinder “very dangerous.”
Tr. 17. If the valve stem was damaged, a sudden, uncontrolled release of gas could turn the
cylinder into an erratic missile. Id. Jewell testified that such an accident could happen if the cart
was struck and overturned by equipment operating near it. Tr. 50-51. Jewell photographed the
cylinder. The photograph shows the cylinder’s exposed valve, as well as the gauges on the
cylinder. Gov’t Ex. 2. According to Jewell, the gauges indicate the cylinder was approximately
60 percent full. Tr. 18.
Jewell described the area where the cylinder was located as “highly trafficked.” Tr. 19. A
parking area was located approximately 15 feet across the road from the cylinder, and the cart
and cylinder were adjacent to the open door of the shop. Tr. 19. In Jewell’s opinion, the easy
access of equipment and people to the cylinder made an accident “reasonably likely” as mining
continued. Id. He believed the cylinder’s valve would be damaged and a miner would be struck
by the resulting uncontrolled and uncontrollable cylinder-projectile. A fatality would result. Tr.
18.
Because the cylinder’s missing valve cover was visually obvious and the cylinder was
located near Herbert’s office, Jewell thought that the condition was caused by the company’s
“high” negligence. Tr. 20. Although it was clear to Jewell that the cylinder had been used and
the cap had not been replaced, he did not know how long the valve was exposed and unprotected.
Tr. 20, 51.
John Herbert pointed out that the cylinder and the cart were next to a building and he
thought it unlikely a large piece of equipment would come close enough to the building to
knock over the cart and damage the valve. Tr. 65. Herbert also maintained that with only six
miners working outside at the mine (Herbert, his son and four others) there was little “traffic” in
the area. Tr. 64.
33 FMSHRC 1244

After the citation was issued, the condition was almost immediately corrected by covering
the cylinder’s valve. Tr. 20; Gov’t. Ex. 3.
THE VIOLATION
The language of the standard is clear. In pertinent part section 56.16006 requires valves
on compressed gas cylinders to “be protected by covers when being transported or stored.” Both
Jewell and Herbert agreed that the cylinder was stored and that its valve was not protected by a
cover. The violation existed as charged.
S&S AND GRAVITY
An S&S violation is a violation “of such nature as could significantly and substantially
contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d). A
violation is properly designated S&S, “if, based upon the particular facts surrounding that
violation, there exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC
822, 825 (Apr. 1981). As is well recognized, in order to establish the S&S nature of a violation,
the Secretary must prove: (1) the underlying violation; (2) a discrete safety hazard – that is, a
measure of danger to safety – contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury will
be of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC 3-4 (Jan. 1984); accord Buck
Creek Coal Co., Inc. 52 F. 3rd 133, 135 (7th Cir. 1995); Austin Power Co., Inc. v, Sec’y of Labor,
861 F. 2d 99,103 (5th Cir. 1988) (approving Mathies criteria).
It is the third element of the S&S criteria that is the source of most controversies
regarding S&S findings. The element is established only if the Secretary proves “a reasonable
likelihood the hazard contributed to will result in an event in which there is an injury.” U.S. Steel
Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985). An S&S determination must be based on
the particular facts surrounding the violation and must be made in the context of continued
normal mining operations. Texasgulf, Inc., 10 FMSHRC 1125 (Aug. 1985); U.S. Steel, 7
FMSHRC at 1130.
Further, the S&S nature of a violation and the gravity of a violation are not synonymous.
The Commission has pointed out that the “focus of the seriousness of the violation is not
necessarily on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry,
but rather on the effect of the hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC 1541,
1550 (Sept., 1996).
Here, the Secretary established the violation. She also proved that the cylinder’s
unprotected valve created a safety hazard that endangered miners. The inspector’s testimony that
33 FMSHRC 1245

the cylinder could become an uncontrolled projectile if the valve was damaged and that miners
worked and traveled in the area makes it clear that the violation endangered miners. It also is
clear that if a miner was struck by an airborne cylinder the miner would be seriously, even fatally
injured.
The question is whether the Secretary established the third element of the Mathies test,
and I conclude that she did. The fact that equipment operated in the vicinity of the cart on which
the cylinder was secured and the fact that miners worked and traveled in the area meant that as
mining continued, it was reasonably likely a loader or other equipment would hit and upset the
cart, that the valve would be damaged and the compressed oxygen would be released in an
uncontrolled fashion and the cylinder would be projected into the area. Although Herbert
maintained equipment did not come close enough to the building to hit the cart (Tr. 65), the
history of the Mine Act repeatedly shows that heavy mobile equipment does not always travel
where it is supposed to operate. Moreover, the nearby parking area meant such equipment either
was present in the area or would be present as mining continued. Further, the cart was mobile
and as mining continued it would presumably be moved to other areas as required and be
subjected to the same and possibly to an increased danger of overturning. Given all of this, I
conclude the violation was S&S.
The violation also was serious. As noted, if the cylinder became a projectile, it would
subject miners to the hazard of a potentially fatal injury.
NEGLIGENCE
Jewell found that the violation was due to Sangravl’s high negligence and I agree. Tr. 20;
Gov’t Ex. 1. The lack of a cover was visually obvious. The oxygen cylinder and cart were in an
area where they could easily be seen. Miners worked and traveled in the area, which meant that
either Herbert or his son, both of whom acted in a managerial capacity, had occasion to be in the
area too. The hazard created by the violation reasonably could be expected to cause a fatal
injury. The danger of the violation meant that management had a high standard of care. The
company fell short of this standard, and I therefore find that it was highly negligent.
CITATION NO.
7752046

DATE
6/23/08

30 C.F.R. §
56.12030

The citation states in part:
A potentially dangerous condition is observed on
the . . . portable welder. The positive and negative
conductors of the welder are not protected at the
connection point against employee contact. The
connection points of the conductors are bare and
fully exposed to contact. The bare connection points
are six inches above ground level. The bare con
33 FMSHRC 1246

nection points are within one foot of the stop/start
switch on the welder. The welder is normally used
for outside repair work. The welder is located just
outside the mine office. This condition creates an
electrical shock/burn hazard.
Gov’t. Ex. 4.
Shortly after observing that the cap was missing on the oxygen cylinder, Jewell noticed a
welder located just outside the shop. The connection points of the welder’s positive and negative
conductors were located close to the equipment’s stop and start switch. Tr. 23. The connection
points were bare. Id. They were not protected against accidental or inadvertent contact. The
welder was used regularly to perform maintenance and repair work. Tr. 22-23.
In Jewell’s opinion the condition created an electrical shock hazard to miners walking by
the welder and to those doing repair work with the welder and turning it on and off. Tr. 23. The
connection points and the control switch were located near the front of the welder. Tr. 52. A
miner using the welder had to stand adjacent to the connection points. A miner turning the
welder on and off or adjusting the welder had to access the on and off switch with his hand. The
switch was adjacent to the connection points. Tr. 51-52. If a miner contacted the bare,
uninsulated connection points, the miner could be fatally shocked. Tr. 52. Moreover, according
to Jewell, because the welder was located outside the shop, miners who regularly pass it while it
was in use could trip and contact the exposed connection points. Id. Jewell knew that the welder
had been used for repair work recently, and he believed that it would be used again as mining
continued. Tr. 24. Therefore, he found that it was reasonably likely a miner would touch one of
the connection points and be killed.3 Tr. 23.
Jewell also found that the exposed connection points were the result of high negligence
on the company’s part. Gov’t Ex. 4. He testified that the foreman’s office was within 10 to 12
feet of the welding machine. Tr. 24. Jewell testified the foreman said he “was aware of [the bare
connection points, but that he] had just not gotten to fix it.” Id. The condition was corrected by
insulating the connection points with non-conductive tape. Tr. 24-25; Gov’t Ex. 5.
Herbert had little to say about the condition, except to maintain that few miners were
endangered by it. He noted that Sangravl only had four hourly employees; the crane operator,
3

The welder was powered with 175 amps and 240 volts of electricity, more than enough
to electrocute a person. Tr. 26-27.
33 FMSHRC 1247

two truck drivers and the loader operator.4 Tr. 64. He also testified that the foreman’s office was
located on the “other side of the shop,” and that it was not adjacent to the welder. Id.
THE VIOLATION
Section 56.12030 requires the correction of a potentially dangerous condition before
equipment is energized. The testimony establishes the violation. Jewell’s description of the
hazard was not refuted. Nor was his testimony that the welder was used regularly. Tr. 22-23.
When in use the person doing the welding was required to stand adjacent to the bare connection
points. In addition, when he or another miner activated the welder’s on and off switch, his hand
came very close to the exposed points. In either case, a slip or misjudgement could cause the
miner’s hand or other body part to contact the energized connection point or points. The miner
could be electrocuted. Jewell’s statement that the welder had been used recently was not
disputed and there was no indication the insulation was going to be applied before mining
continued and the welder was used again.
S&S AND GRAVITY
In addition to proving the violation, the Secretary easily established the other criteria set
out in Mathies. 6 FMSHRC at 3-4. The violation exposed miners operating the welder or
working in close proximity to the exposed connection points to a possibly fatal injury. Jewell’s
testimony in this regard was not rebutted and it established criteria two and four, leaving only
criteria three. Tr. 23, 51-52.
The inspector believed an electrocution was reasonably likely because the welder had
been used recently and as mining continued would be used again. Tr. 24. The inspector thought
that the frequency of use when combined with the proximity of the exposed connection points to
those using the welder meant that as mining continued a miner was likely to slip and fall onto or
otherwise inadvertently contact the energized connection points. Id. I agree with Jewell that the
combination of factors made a very serious accident reasonably likely, and I hold that he was
right to find that the violation was S&S.5

4

According to Herbert, the crane operator did all of the welding at the facility. Tr. 64.
The finding is based solely on miners who used the welder. It is not based on the
hazard posed to miners who passed by the welder during the course of the work day. While
Jewell established that miners in fact passed the welder (Tr. 53), he did not testify as to how
likely it was that the miners would trip or stumble and come in contact with the connection
points. The record reveals nothing about the condition of the floor where miners passed or might
pass as mining continued, nor does it reveal anything about the distance between where they
might trip or stumble and the exposed connection points. Without evidence on these matters it is
not possible to determine the likelihood of injury to passing miners.
33 FMSHRC 1248
5

The violation also was serious. With 175 amps and 240 volts of electricity coursing
through the connection points, if a miner contacted the points, a fatality was likely. Tr. 26-27.
NEGLIGENCE
Jewell found that the violation was the result of Sangravl’s high negligence, and I agree.
Tr. 24; Gov’t Ex. 4. Jewell testified the foreman stated he knew of the violation but “had just not
gotten to fix it.” Tr. 24. Herbert did not dispute Jewell’s testimony. The high degree of danger
posed by the violation meant that mine management was under a commensurately high degree of
care to make sure the connection points were insulated. It was a duty management did not meet.
CITATION NO.
7752047

DATE
6/23/08

30 C.F.R. §
56.12004

The citation states in part:
The 120 volt orange power cable laying on the
concrete floor of the shop is . . . in a defective
condition. The inner conductors of the
energized power cable are not protected against
mechanical damage, in that the insulation is
broken in two spots. The inner conductors are
exposed in each spot for an area of
approximately one inch. In one of the damaged
spots the inner conductors are bare. This
condition created an electrical shock/burn
hazard.
Gov’t Ex. 6.
On June 23 Jewell entered the mine’s shop where he saw a 120 volt cable lying on the
floor. Tr. 28. The cable was adjacent to a walkway. Id. Jewell testified that he saw two different
openings in the cable’s jacket and through each of the openings he saw the cable’s exposed inner
conductors. Id. The hazard created by the condition was that a miner who contacted the inner
conductors would be electrocuted. Tr. 28. After he cited the condition as a violation, Jewell
took a photograph of one of the openings. Tr. 29; Gov’t Ex. 7.
Jewell believed the cited condition was reasonably likely to result in an electrocution. Tr.
29. Because the cable was energized and miners traveled on foot adjacent to the cable’s
openings, Jewell concluded that a miner was likely to contact the uninsulated conductors as
mining continued. Tr. 30, 52. The hazard endangered Sangravl’s miners and it contractors, all of
whom traveled in and out of the shop. Tr. 31, 53. Jewell stated he was told that the cable was
33 FMSHRC 1249

used on an “as needed” basis, meaning it was used as much as once or twice a day or as little as
once or twice a week. Tr. 55.
Jewell found the condition was due to the company’s moderate negligence. Tr. 31; Gov’t
Ex. 6. The open areas in the cable were, he stated, “fairly small.” Id. He did not think that the
condition was “readily obvious.” Id. Nonetheless, he believed that with “a little attention, [the
condition] should have been corrected.” 6 Id.
THE VIOLATION
Section 56.12004 requires in pertinent part that “[e]lectrical conductors exposed to
mechanical damage shall be protected.” The violation existed as charged. It is clear from the
testimony that the cable was damaged and that the conductors inside the cable were exposed. Tr.
28. In fact, they were exposed in two places. Id. Because the cable was open in two places, the
conductors were not protected. I infer from the openings in the cable that the conductors were
subjected to mechanical damage when the openings were made, and there is no evidence in the
record to indicate otherwise. Moreover, I accept Jewell’s testimony that miners traveled on foot
adjacent to the openings, and that the cable was used at the most once or twice a day and at the
least once or twice a week. Tr. 30, 53, 54-55. If a miner slipped and fell onto or against the
cable, the conductors would be subject to further damage. Tr. 30, 52; See Owyhee Calcium
Products, Inc., 21 FMSHRC 779, 781-782 (July 1999) (ALJ Cetti). In addition, ongoing use of
the cable subjected the unprotected conductors to damage.
S&S AND GRAVITY
In addition to proving the violation, the Secretary established the other criteria set out in
Mathies. 6 FMSHRC at 3-4. Jewell feared that the violation exposed miners traveling by the
cable to the danger of slipping and contacting the exposed conductors. Tr. 30. He also testified
that the cable was used on a fairly regular basis. Tr. 55. In fact the cable was energized when he
observed the exposed conductors. Although the Secretary did not provide any evidence
regarding the likelihood a miner’s slipping, falling and contacting the conductors, Jewell’s
unrefutted testimony regarding use of the cable means those who used the cable were in close
proximity to the exposed conductors on a regular basis. Id. I conclude that as mining continued,
one of the miners who used the cable was reasonably likely to touch the exposed conductors and
suffer a serious or fatal shock injury.

6

The cable was not required to be examined on a regular basis, except as part of the
general inspection of the workplace. Tr. 54.
33 FMSHRC 1250

Jewell believed that with 120 volts of electricity passing through the conductors, the least
that would happen if a miner contacted one of the open conductors is that the miner would be
severely shocked. Tr. 28. 30. Jewell’s testimony in this regard was not disputed. I accept it and
find that the violation was serious.
NEGLIGENCE
Jewell found the violation was due to the company’s moderate negligence. Tr. 31; Gov’t
Exh. 6. His finding was based on the fact that the openings in the cable were small. Tr. 31.
While the openings should have been detected and repaired, I agree with Jewell that the fact the
openings were small and presumably hard to detect meant that the company’s lack of care was
ordinary.
CITATION NO.
7752049

DATE
6/23/08

30 C.F.R. §
56.14101(a)(2)

The citation states in part:
The parking brake equipped on [a] . . . haul truck
[was] not maintained in functional condition.
When tested on the maximum grade it travels,
with [its] typical load, the parking brake would
not hold the truck in place. The truck is being
used to haul sand from the barge off [the]
loading area to stock piles. The truck travels
upon grades and around other mobile
equipment. This condition creates a haulage
hazard of equipment due to insufficient braking
and [of an] employee being struck by moving
equipment.
Gov’t Ex. 8.
Jewell testified that on June 23 he observed the truck in question traveling on 8 to 10
percent grades at the mine.7 He was told that the truck sometimes was parked on the grades. Tr.
32. Some of the grades were approximately 150 feet long. Tr. 33. When Jewell observed the
truck on June 23 it was hauling a typical load. Tr. 33. Jewell asked the truck driver to go to one
of the steepest grades the truck used, to apply the truck’s service brakes, to set the park brake and
to slowly let up on the service brakes. Id. The driver did as Jewell requested, and as he released
the service brakes, the truck began rolling down the grade. Id. The truck was owned by Sangravl.
Tr. 33, 55-56.
7

The truck is depicted in a photograph that Jewell took. Gov’t Ex. 9.
33 FMSHRC 1251

Because the truck at times was parked on grades, Jewell believed the faulty park brake
posed a fatal hazard to the truck driver and to others who worked and traveled at the mine. He
feared that after the truck driver parked and exited the truck, it would begin to roll endangering
the driver. Tr. 34, 56. The rolling truck would also endanger other miners traveling or working
on foot in the area. Tr. 56. For example, Jewell testified that the crane operator walked back and
forth from his equipment to the shop area and in doing so might passed the truck. Id. The
foreman too might pass the truck on foot. Id. Also, Jewell believed that operators of other
equipment using the same road were endangered. Tr. 34. The day he conducted the inspection
Jewell saw other vehicles traveling the road. Tr. 35.
Herbert explained that typically the truck was loaded with sand and gravel at the river site
hopper and it was then driven up a grade leading to the stockpiles. The product was dumped at a
stockpile in the yard at the top of the grade and the truck was driven down the grade. Tr. 66-67.
According to Herbert the truck was “not ever” parked on a grade. Tr. 65. It was usually parked in
the yard which was “mostly flat.”8 Tr. 67. The only time the truck driver got out of the truck
was “if he ha[d] to go or something.” Id.
In Jewell’s opinion, an accident was likely as mining continued because the truck driver
told Jewell that he had to occasionally park the truck on a grade, get out, and walk around the
truck to check conveyor belts or to check the belt feeder controls. An accident was made
reasonably likely by the fact that the truck was used frequently. Tr. 36. On the day he found the
defective brakes, the truck had already hauled 35 loads of sand. Id. Injuries resulting from being
hit by the haul truck could, in Jewell’s opinion, be fatal, or at least very serious. Tr. 35.

Jewell found that the company was moderately negligent in allowing the defective park
brake to exist. He was told by the truck operator that when the park brake was tested at the start
of the shift, it was functioning properly. However, Jewell noted that the morning test did not
meet the requirements of the safety standard because the test was conducted when the truck was
empty, not when it was bearing its typical load. 30 C.F.R. §56.14101(a)(2); Tr. 37. Nonetheless,
in Jewell’s view, testing the brake, albeit incorrectly, mitigated the company’s negligence to
some extent. Id. In order to return the park brake to functioning condition the haul truck was
taken out of service and repaired. Tr. 37-38; Gov’t. Ex. 10.

8

Herbert conceded however that in those instances when the truck was at the shop, there
“might be just a little grade . . . not much.” Tr. 66.
33 FMSHRC 1252

THE VIOLATION
Section 56.14101(a)(2) requires that parking brakes on self propelled mobile equipment
“be capable of holding the [self propelled mobile] equipment with its typical load on the
maximum grade it travels.” Jewell described how the cited haul truck was carrying a typical
load, was located on one of the steepest grades the truck travels, and how it rolled when the
service brakes were released after the park brake was set. Tr. 33. I credit all of Jewell’s
testimony in this regard, and I find the violation existed as charged.
S&S AND GRAVITY
In addition to proving the violation (number one of the four Mathies criteria, 6 FMSHRC
at 3-4), the Secretary established the other criteria. The hazard to the driver when leaving the
truck after parking it on a grade was real, as was the hazard posed to other miners who traveled
on foot or in other vehicles in the vicinity of the truck. Tr. 34, 56. With a defective park brake
the truck could roll at any time and do so without advanced notice. The driver and other miners
would not expect the truck to move. The moving truck would catch them unawares, and place
them in danger of being run over or otherwise struck. Although Herbert maintained the truck
was “not ever” parked on a grade (Tr. 65), the record does not support him. Herbert also testified
that the only time the driver got out of the truck was if he “ha[d] to go or something.” Tr. 67.
This makes the issue one of “when,” not “if,” and I find the driver occasionally parked on a grade
and left the truck. Moreover, Jewell testified he was told by the driver that he and others
occasionally parked on a grade, got out of the truck and checked conveyor belts and feeders. Tr.
36. This testimony established additional situations in which the driver would place himself in
danger.
Jewell’s testimony that other mobile equipment shared the road with the haul truck was
not refuted. Tr. 35. Thus, in addition to those on foot, the operators of the other equipment were
in danger of being injured if their vehicles were hit by the moving haul truck. Because a number
of miners were exposed to the hazard and because of the unexpected nature of the danger, I find
that in the context of continued mining miners and miner-operated equipment were reasonably
likely to be hit by the rolling truck. I further find that the resulting injuries to the haul truck
driver and other miners were likely to be serious, even fatal. The violation was S&S.
It also was serious. As I have noted, if the truck driver or other miners were on foot and
were struck by the truck as it rolled, a critical injury was probably the least that could be
expected. If a vehicle was struck, the driver of the other equipment would likely be seriously
injured or killed.
NEGLIGENCE
Negligence is the failure to exercise the care required by the circumstances. Here, the
park brake was tested just hours prior to the inspector finding it defective. Tr. 37. The test was
inadequate. The standard requires the brake to hold the truck when carrying its typical load, and
33 FMSHRC 1253

as Jewell pointed out, the brake was tested while the truck was empty. Id. Still, the fact that the
company tested the park brake signaled to Jewell that Sangravl was cognizant of the need to
maintain the brake in functioning condition and mitigates its lack of care to some extent. Tr. 37.
I agree with Jewell that the violation was the result of the company’s moderate negligence.
CITATION NO.
7752050

DATE
6/23/08

30 C.F.R. §
56.12008

The citation states in part:
The 120 volt power cable for the . . . battery charger
is pulled out of the entrance at the back of the
charger. The charger is located on the . . . crane.
The charger was used this morning to help jump
start the crane. The charger is often used outdoors.
The inner conductors of [the] power cable are
exposed a length of three inches. A bare spot is
observed in one of the conductors. This condition
creates an electrical shock/burn hazard.
Gov’t. Ex. 11.
Jewell testified that on June 23 he was inspecting the mine’s crane when he noticed
exposed conductors on a battery charger’s power cable. Tr. 39. The charger was located in the
crane’s engine compartment. Tr. 40, 57. The cable provided power to the charger. Tr. 39. Where
the cable entered the metal enclosure surrounding the charger, the insulation of the cable was
pulled back exposing the inner conductors. Id. In addition, the insulation on one of the cable’s
inner conductors was worn to the point were the conductor itself was exposed. Tr. 40. Jewell
explained that there were three conductors in the cable, two carried electricity and one was
neutral. Id. The neutral conductor served as a ground for the charger. Id. One of the exposed
electrical conductors was touching the metal frame of the charger. Tr. 39. Jewell photographed
the cable. Id., Gov’t Ex. 12. The photograph shows the condition of the cable. Tr. 39-40; Gov’t
Ex. 12. The charger and the cable were not energized at the time of the inspection. Tr. 42.
However, Jewell was told by the crane operator that the charger was used that morning to jump
start the crane. Tr. 42, 57. According to Herbert, jump starting the crane was not unusual. Tr. 66.
The crane operator did it frequently. Tr. 66. Jewell explained, however, that the problem with
the procedure was that it brought the crane operator dangerously close to the exposed conductors.
Tr. 58.
Jewell also noted that miners had to go into the engine compartment from time to time to
check fuel and oil levels. Tr. 58. Jewell described the compartment as “pretty confined.” Id.
Once in the compartment a miner had to “pass close by” the exposed conductors. Id. In addition
the control switch for the charger was located on the front of the charger, close to the walkway,
and using the control switch also brought a miner close to the exposed conductors. Id.
33 FMSHRC 1254

Jewell believed that given the condition of the conductors, it was reasonably likely a
miner would be very seriously or fatally shocked. Tr. 44. He noted that as mining continued the
charger would be in “[c]ontinued use” and that the totally exposed conductor was as close as two
feet away from the charger’s control switch. Tr. 42-43. An electrocution was made even more
likely by the fact that it was wet around the crane. Id.
According to Jewell the condition of the cable was due to the company’s moderate
negligence. Tr. 44. He credited the statement of the foreman that the cable had been examined in
the morning and that the cable was not then in the condition Jewell observed. Tr. 44.
THE VIOLATION
Section 56.12008 requires in part that “Power wires and cables . . . be insulated
adequately where they pass into or out of electrical compartments.” The standard is location
specific. Jewell explained that the cable entered the metal enclosure of the charger. Tr. 40. In
addition, a photograph taken by Jewell shows the metal enclosure and the cable where it enters
the enclosure. Tr. 39-40; Gov’t. Ex. 12. The enclosure is an “electrical compartment” within the
meaning of the standard, and I conclude that the Secretary has established the location
requirement of the standard.
The standard also requires the power cable to “be insulated adequately.” Jewell testified
without dispute that the insulation on the cable for the battery charger was worn away at the point
where the cable entered the metal enclosure. Tr. 40. On one of the three conductors inside the
cable, the insulation was completely gone. Id.; See Gov’t Ex. 12. From this testimony and from
the photograph of the cited cable and metal enclosure, I find the Secretary established the power
cable was not “insulated adequately” where it passed into the metal enclosure for the battery
charger. 30 C.F.R. §56.12008. Therefore, I conclude the violation existed as alleged.
S&S AND GRAVITY
In addition to proving the violation (number one of the four Mathies criteria, 6 FMSHRC
at 3-4), the Secretary established the other S&S criteria. Jewell testified that the violation created
the hazard that a miner would inadvertently touch the uninsulated part of the cable and receive a
severe, and perhaps fatal, shock. Tr. 42-44. He also believed it reasonably likely such an
accident would occur. Tr. 42. Jewell was right. The battery charger was locate in the engine
compartment. Although Herbert maintained that using the charger subjected a miner to “hardly
any” exposure (Tr. 66), he did not, and I assume he could not, explain how this was so when the
evidence established that the charger was used on a frequent basis to start the crane (Tr. 66) and
when using the charger and its control switch brought a miner close to the exposed conductors.
Tr. 42-43, See Tr. 58. Use of the charger and the proximity of those using it to the exposed
energized conductors meant that as mining continued it was reasonably likely a miner would slip
and touch the exposed conductors or would otherwise contact them. Obviously, the fact that the
conductors were not adequately insulated meant that the violation contributed significantly to the
likelihood the miner would be severely shocked or electrocuted. The violation was S&S.
33 FMSHRC 1255

It also was serious. Had a miner contacted the exposed conductors when the charger was
energized the miner would have been seriously injured or killed.
NEGLIGENCE
Jewell found that the violation was due to the company’s moderate negligence. I will not
second guess the inspector for crediting the company’s assertion that the lack of insulation was of
recent origin (Tr. 44), and like the inspector, I find the Sangravl’s negligence was moderate.
CITATION NO.
7752051

DATE
6/24/08

30 C.F.R. §
56.14206(b)

The citation states in part:
The bed of . . . [a] haul truck is raised to the
maximum position and not secured against
movement. The truck is parked outside the
shop area and left [un]attended. An independent
contractor was on site to repair the braking
system, however [the contractor] has left
temporarily to go after parts. The mine
operator failed to assure that safe work
practices were followed and the bed of the
truck was blocked against movement. This
condition creates a hazard of an employee
being mashed by the . . . movement of the . . .
[truck’s bed].
Gov’t. Ex. 13.
Jewell’s inspection continued on June 24. During the inspection he noticed a haul truck
with its bed raised. The truck was located behind the shop area. An employee of one of
Sangravl’s contractors had been repairing the truck. Tr. 46. The employee went for needed parts,
and he left the bed raised. Id. The bed was not blocked against motion. Tr. 47. Nothing was in
place (neither blocks nor pins) to keep the bed from moving unexpectedly. Tr. 45, 59. The truck
and its raised bed are clearly shown in a photograph that Jewell took. Gov’t Ex. 14. The person
Jewell thought most likely to be injured was the employee who had gone for parts and who was
expected to resume work. Tr. 47, 60-61. Jewell did not see the employee working, but he was
told the employee had been performing maintenance on the truck with the bed raised. Tr. 60-61.
Jewell also feared that because of the location of the truck in the shop area, an area where miners
frequently traveled, “if someone [got] up [on the truck] and a hydraulic line [broke] or any air
movement of the truck or whatever could cause a very serious accident.” Tr. 47; see also Tr. 59.
33 FMSHRC 1256

Because Sangravl’s foreman was “on site,” Jewell thought the condition was the result of
the company’s high negligence. Tr. 47. He noted that the foreman’s office was on the side of the
shop where the truck was located. Tr. 47-48.
THE VIOLATION
Section 56.14206(b) requires in part that “When mobile equipment is unattended or not in
use . . . moveable parts . . . shall be mechanically secured or positioned to prevent movement
which would create a hazard to persons.” Jewell’s testimony established the violation. Certainly,
the haul truck was “mobile equipment.” When the employee left it to go for parts (Tr. 46), the
truck was “unattended.” The truck’s bed was raised, and to abate the cited condition the bed was
lowered. The bed was a “movable part.” Tr. 46; Gov’t Ex. 14. The raised bed was not blocked
against motion in that no pins or blocks were in place to keep the bed from moving unexpectedly.
Tr. 45, 59. These factors were not disputed.
S&S AND GRAVITY
In addition to proving the violation (number one of the four Mathies criteria, 6 FMSHRC
at 3-4), the Secretary established the other S&S criteria. The unblocked and raised bed presented
a discrete hazard. If the bed moved suddenly and unexpectedly while a miner was working on or
under the truck, there was nothing to prevent the bed from hitting the miner, an accident that
would cause a serious or fatal injury. I agree with the inspector that such an accident was
reasonably likely to occur as mining continued. However, I do not find Jewell’s fear that those
traveling by the raised bed would get on or under the truck (Tr. 47) a proper basis for finding an
accident was reasonably likely. Jewell did not explain why miners with no business pertaining to
the truck would be likely to climb on or under it.
The same is not true of the contractor’s employee who was working on the truck. Jewell
was told that the employee was repairing the truck with the bed raised before he left for parts. Tr.
46. The employee did not block the bed to prevent it from moving prior to going for parts, and
there is nothing to suggest he would have done so after he returned and continued his labors. All
that was necessary for an accident was a failure of the truck’s hydraulic system and/or a broken
hydraulic hose. In either event, the truck’s bed would slam down on the mechanic. It is common
knowledge that such hydraulic failures occur, and I find in the context of continuing mining it was
reasonably likely one would happen causing the unblocked bed to fall on the contractor’s
employee. Jewell was right to find the violation was S&S.
The violation also was serious. If the truck bed fell and hit a miner, the miner almost
certainly would have been critically injured or killed. Gov’t Ex. 13.

33 FMSHRC 1257

NEGLIGENCE
Jewell testified that the violation was due to the company’s high negligence. The major
factors leading to his conclusion was the presence of the mine foreman in his office which was
located on the same side of the shop building where Jewell saw and cited the raised and
unblocked truck bed. Tr. 47-48.
I do not agree with Jewell. Looking at the same factors, I conclude the company’s
negligence was moderate. There is no testimony the mine foreman actually saw the truck with the
raised and unblocked bed. Nor is there any testimony the foreman should have seen the violation.
The supervisory responsibility of Sangravl for its contractors was not spelled out in the testimony.
This being the case, I find that the record does not support the inspector’s high negligence finding,
and although the company was negligent, I conclude its failure was moderate.
EVIDENCE REGARDING DOCKET NO. SE 2010-785
Robert Knight is a federal mine inspector who is assigned to MSHA’s Franklin, Tennessee
field office. Knight has worked for MSHA for the past five years. Before that Knight worked in
private industry in several jobs holding positions as a health and safety manager and an
environmental engineer at a cement plant. Tr. 70. On February 23, 2010, Knight conducted an
inspection of Sangravl’s facility during which he issued the section 104(d)(1) citation and order
that are the subjects of Docket No. SE 2010-785. 30 U.S.C. § 814(d)(1).
CITATION NO.
8545235

DATE
2/23/10

30 C.F.R. §
56.9300(a)

The citation states in part:
The approach to the scales and the scale house
had drop-offs into a small pond below that had
not been bermed off. The drop-off was
approximately 12 to 15 feet and had tracks within
two feet of the drop-off. There were loader
tracks, track hoe tracks, and truck tires tracks
in the area. There had been berms in the area
but they had been removed approximately
three months ago. Management has an office
and a presence at the scale house and travels
by this hazard multiple times daily. Multiple
truck operators are exposed to this hazard
daily as they approach the scales. Should
trucks over-travel the roadway they would
turn over and serious injuries would occur.
33 FMSHRC 1258

The foreman did not take any measures to
guard miners from the hazard. The foreman
engaged in an aggravated conduct constituting
more than ordinary negligence. This violation
is an unwarrantable failure to comply[.]
Gov’t Ex. 15.
Knight testified that on February 23 he saw a haulage road at the mine that lacked a berm
where the road bordered a drop-off. The road was traveled by trucks to reach the scales and scale
house. Tr. 73. During normal travel, trucks were usually 10 feet to 15 feet from the edge. Tr. 85.
The road is depicted in a photograph that Knight took. Gov’t Ex. 16. In the photograph the dropoff and pond are clearly depicted to the left of the road. The scale house and scales are in the
upper center of the photograph. Tr. 73; Gov’t Exh 16. Government Exhibit 17 is another
photograph taken by Knight. It shows the scale house, scales and the road in more detail. The
drop-off appears on the far left of the photograph. Herbert has an office in the scale house. Tr. 98.
Knight recalled asking Preston Herbert, John Herbert’s son about the depth of the dropoff. According to Knight, Preston Herbert told Knight that it was a 12 to 15 foot drop from the
edge of the road to the pond. Tr. 75. Knight also remembered seeing trucks driving along the
road during the course of his inspection. Id. In addition, he saw the tracks of a front end loader
and of a track hoe less than two feet from the edge of the drop-off. Tr. 76.
Knight testified that Preston Herbert told him the berm along the drop-off was removed
approximately three months before the inspection. Knight believed without a berm a truck or
loader or other type of mobile equipment could over-travel the road and fall to the pond. The
truck driver or equipment operator could suffer broken bones as a result, or if the equipment
overturned in the pond the driver or operator could drown. Tr. 77-79. Knight felt an accident was
reasonably likely because of the length of time the berm had been missing and because different
contractors and drivers used the road and therefore many were not familiar with the hazard. Tr.
78. In addition, tracks indicated equipment had actually come within less than two feet of the
unguarded drop-off. Tr. 85. Knight stated, “if they continue to operate this way, someone will go
over the edge.” Tr. 86.
Knight found that the condition was the result of the company’s high negligence. The fact
that the berm was missing was visually obvious. Knight stated, a person “can’t come on the
property without seeing . . . that the berm . . . is gone.” Tr. 80. He also believed that Preston
Herbert knew that the berm was missing. Id. Knight testified that he asked Preston Herbert why
the berm was removed, and Preston Herbert told him “they had been working . . . on the pond.”
Tr. 80-81.

33 FMSHRC 1259

In addition to being highly negligent Knight found that the company exhibited “aggravated
conduct . . . more than negligence” when it failed to make sure a berm or guardrail was in place
along the cited part of the road. Tr. 81. The berm was missing yet the company and its customers
continued to use the road. Tr. 81.
Once the citation was issued, the company made sure no one traveled the road until a new
berm was installed. Tr. 84. The work was completed the next morning. Tr. 82. The new berm
was 3 ½ feet high. It was, said Knight, a “real good” berm. Id.
John Herbert disagreed with Knight regarding the length of time the cited part of the road
was without a berm. Herbert stated the berm had been removed for “[n]ot more than a month.”
Tr. 87. Herbert explained that the State of Tennessee required the company periodically to drain
and clean the pond. The berm was eliminated so a track hoe could dig settled sand out of the
pond area. Tr. 88. Herbert maintained the company would not replace the berm until the work
was completed. Tr. 94. However, Herbert did not know when the track hoe dug out the sand
because he “didn’t write that down.” Tr. 91. Therefore, he did not know if the work was
completed. The track hoe was not in operation when Knight conducted the inspection. Tr. 93, see
Tr. 96.
Herbert stated that on any given day 25 to 100 trucks belonging to customers ran across
the scale and used the road. Tr. 94. Most were return customers, but some were new to the mine.
Tr. 95. Herbert describe the trucks as “barely creep[ing].” Tr. 89. Herbert believed there was “no
way” a truck was going to go off of the road and into the pond. Id. It had not happened in the 30
years he operated the facility. Tr. 90. Herbert added that the drop from the edge of the road to the
pond was eight feet, not 12 to 15 feet. Tr. 89.
THE VIOLATION
Section 56.9300(a) requires that berms or guardrails “be provided and maintained on the
banks of roadways where a drop-off exists of sufficient grade or depth to cause a vehicle to
overturn or endanger persons in equipment.” The cited area was a road used by trucks. Tr. 73. It
also was used occasionally by other mobile equipment, as witnessed by the tracks Knight saw
approximately two feet from the edge of the drop-off. Tr. 76. While Knight testified that the
drop-off was a minimum of 12 to 15 feet (Tr. 78) and Herbert believed it was not more than eight
feet, for the purposes of the standard it does not matter. At either distance a drop-off existed that
was of sufficient depth to cause a vehicle to overturn and endanger people in the equipment.
The parties agree the berm was missing along the edge of the road that bordered the dropoff. The exhibits make clear that a guard rail was not installed. Gov’t Ex. 16, Gov’t. Ex. 17. As a
result there was nothing between the edge of the road and the drop-off, and I accept Knight’s
commonsense testimony that if a truck or other equipment over-traveled the road along the dropoff, the vehicles could have overturned injuring or killing the drivers or operators. Tr. 77-78. For
these reasons, I find Sangravl violated section 56.9300(a).
33 FMSHRC 1260

S&S AND GRAVITY
In addition to proving the violation (number one of the four Mathies criteria, 6 FMSHRC
at 3-4), the Secretary established the other S&S criteria. The lack of a berm or guardrail presented
a discrete safety hazard in that if a truck or other mobile equipment approached the edge of the
drop-off, there was nothing to restrain the vehicle from going over the edge and/or nothing to
warn the driver or equipment operator before the vehicle went off the road. Berms or guardrails
serve as visual and physical reminders of the hazards they guard against. They also serve a
protective function, in that they may keep a truck of other vehicle from leaving the road. Without
a berm or a guardrail those traveling the cited area of the road had an increased risk of overtraveling the road and falling to the pond below. A fall of either eight feet or 12 to 15 feet was
reasonably likely to result in at least a serious injury. Tr. 79. As Knight testified broken bones or
drowning could result. Id.
Knight also believed that an accident was reasonably likely to occur. Customers’ trucks
frequently traveled the road. Tr. 75. In fact, Knight saw some using the road during the
inspection. Id. He testified the trucks came within ten to 15 feet of the unprotected edge. It would
not take much for an inattentive driver to “wander” over the edge or to otherwise misjudge the
distance been his vehicle and the edge. The fact drivers who were unfamiliar with the road
traveled it, made it even more likely an over-travel accident would occur. Tr. 85-86. In the
context of continuing mining I conclude that Knight was right and that it was reasonably likely
that an accident would happen.
The violation was serious. If a vehicle went off of the road and over the edge the operator
of the vehicle was likely to suffer broken bones or be killed. Tr. 78-79.
UNWARRANTABLE FAILURE AND NEGLIGENCE
As noted previously, the citation was issued pursuant to section 104(d)(1) of the Act.
Such a citation must be issued if a violation is both S&S and caused by the unwarrantable failure
of the operator. I have found that the violation of section 56.9300(a) was S&S. I also find the
violation was the result of the company’s unwarrantable failure.
The term “unwarrantable failure” is defined as aggravated conduct constituting more than
ordinary negligence. Emery Mining Corp., 9 FMSRHC 1997, 2004 (Dec. 1987). Unwarrantable
failure is characterized by such conduct as “reckless disregard,” “intentional misconduct,”
“indifference,” or the “serious lack of reasonable care.” Emery, 9 FMSHRC at 2203-2204.
Whether conduct is “aggravated” is determined by analyzing the facts and circumstances of each
case and identifying whether any aggravating factors exist. Such factors include the length of
time the violation existed, the extent of the violative condition, whether the operator was placed
on notice that greater efforts were necessary for compliance, the operator’s efforts in abating the
violative condition, whether the violation was obvious and posed a high degree of danger, and the
33 FMSHRC 1261

operator’s knowledge of the existence of the violation. Jim Walter Resources, Inc., 28 FMSHRC
579 (August, 2006).
The berm was deliberately removed from the area above the drop-off. At the time Knight
noted the condition, he was told by Preston Herbert the berm had been missing for approximately
three months. Tr. 82. However, John Herbert testified it had been removed “not more than a
month” previously. Tr. 87. I credit John Herbert’s first hand testimony over the recollected
hearsay testified to by Knight.
Herbert explained that the berm was removed so that the process of extracting settled sand
from the pond could begin. He stated that the berm would not be replaced until the process was
completed. Tr. 87-88. Nonetheless, sand was not being removed from the pond when Knight
conducted his inspection (Tr. 93, 96), and it seems clear that truck drivers and equipment
operators traveling the road in the cited area had been subject to the hazard for at least one month.
No barricades were erected closing off the area, no warning signs were posted, nothing was done
by the company to alert drivers and operators of the danger posed by the missing berm.
There is no doubt mine management knew of the violation from its inception, since the
company was responsible for having the berm removed. Tr. 87. In addition, I infer from the fact
that the missing berm was visually obvious and from the fact that the location the area was close
to the scale house and along a main mine haul road that mine management had continuing and
repeated reminders the berm was gone. The violation created a dangerous situation for the
company’s employees and for its customers. Because some of the customers were new to the
mine (Tr. 95) and therefore unaware of the danger posed by the missing berm, the hazard was
increased. Taken together these factors indicate that the violation was the result of the company’s
aggravated conduct, and I so find.
Not only was the violation due to unwarrantable failure on the company’s part, it was also
due to the company’s high negligence. Negligence is the failure to exercise the care required by
the circumstances. The missing berm was obvious and dangerous. Yet, for at least one month the
company did nothing to alleviate the danger. No excuse is apparent in the record for the
company’s failure.
ORDER NO.
8545236

DATE
2/23/10

30 C.F.R. §
56.11001

The order states in part:
The 2500 gallon diesel storage tank had a fixed
ladder that was used to access the top of the
storage tank for the purpose of checking the
levels within the tank and refilling the tank on a
quarterly basis. Miners checking . . . or filling
33 FMSHRC 1262

the tank could not access the tank in a safe
manner. The tank was accessed by
management, and management was aware it
was being filled quarterly. Should miners fall
from the ladder and hit structures[,] serious
injuries would occur. The foreman
did not take any measures to guard miners
from the hazard. The foreman engaged in
aggravated conduct constituting more than
ordinary negligence. This violation is an
unwarrantable failure to comply with a
mandatory standard.
Gov’t Ex. 19.
Knight testified that on February 23 he inspected a 2500 gallon diesel storage tank that
was located on mine property. Tr. 99. A ladder was affixed to the side of the tank. Id. The ladder
stopped short of the top of the tank. Id. The tank is set into a rectangular concrete depression
which caught fuel if the tank overflowed or ruptured. Tr. 101; See Gov’t Ex. 20. Surrounding the
depression was low concrete “curbing” that extended upward a foot or so above ground level. See
Gov’t Ex. 20.
Miners checked the amount of fuel in the tank by climbing the ladder and inserting a pole
into an opening on top of the tank. 9 Miners also used the ladder to fill the tank. Tr. 99. They
climbed the ladder while carrying a fuel line and then inserted the spout of the line into the
opening. Id.; See Gov’t Ex. 20. A work platform with hand rails was not in place at the top of the
tank and no handrails were present alongside the ladder. Tr. 104. In Knight’s opinion, safe access
was not provided to measure the fuel level and to fill the tank. Tr. 99-101, 102-103, See Gov’t Ex.
21. As Knight explained, “There’s nothing to keep a miner from falling.” Tr. 104.
The bottom of the ladder was set into the retaining depression. See Gov’t Ex. 20. To reach
the ladder, a miner stood on the concrete “curb” and stepped approximately one foot across the
depression. The miner then climbed almost to the top of the ladder and either worked from the
ladder or clambered to the top of the tank to do the jobs required. If the miner worked from the
ladder he had to stretch across the tank to access the tank top opening. To do this, Knight
believed that the miner had to maintain both feet on the ladder, grab the ladder with one hand and
use the other hand to check the fuel level or to fill the tank with the fuel line. Tr. 106. Or, the
miner had to lift the pole with one hand and hold onto the ladder with the other and stretch to
reach the opening. Tr. 106. If the miner climbed on top of the tank to do the jobs, he had to lift
the pole to the top and then insert it into the opening or he had to carry the hose with one or both
hands and insert the spout into the opening. Tr. 112. Doing either job meant that the miner’s

9

The pole was approximately eight feet long. Tr. 101, 110, 112; See Gov’t Ex. 20.
33 FMSHRC 1263

hands would be occupied. There was nothing in place to steady the miner if he lost his balance or
slipped. Tr. 104.
If a miner fell from the ladder or from the top of the tank, he would drop approximately
five to eight feet and land on concrete. Tr. 113. Knight believed that the fall would result in
serious injuries with broken bones and/or soft tissue injuries being the most likely result. Tr. 107
108, 113. In Knight’s opinion such an accident was reasonably likely. He believed at least once
every three months miners accessed the ladder to checked the fuel level and filled the tank. Tr.
109.
Preston Herbert told Knight that he was one of the miners who used the ladder to checked
the tank’s fuel level. Tr. 106. Preston Herbert was part of miner management and Knight
therefore believed the company was highly negligent in allowing the condition to exist. Tr. 109.
In addition, Knight noted that Preston Herbert also knew that any miners filling the tank had to do
the job from the ladder or the top of the tank. Tr. 109-110. The condition was corrected when a
railed platform was installed on top of the tank. Tr. 115. As a result, miners could perform both
jobs from a safe area. Tr. 115, Gov’t Ex. 23.
Herbert testified that the tank had been in place for approximately 40 years, and that the
same oil company had serviced the tank for 30 years. Tr. 116-117. According to Herbert, the
company filled the tank on the average of one time a month depending on the amount of business
at the mine. Herbert asserted that in the years the tank had been in place, there never was a
problem filling it and checking its fuel level. Tr. 116-117.
Herbert noted that although MSHA had been inspecting the mine since 1979, and as a
result had conducted approximately 60 inspections, the agency never had cited a violation with
regard to the tank. Tr. 118. This testimony caused the Secretary to recall Jewell. For several years
prior to Knight inspecting the mine on February 23, 2010, Jewell had inspected the facility. Tr.
123. Jewell did not remember ever seeing the tank during the inspections he conducted. Tr. 124.
He stated that he asked where equipment was fueled and a foreman told him there was a fueling
station behind the shop. Id. There was an area of the mine MSHA did not inspect because the
agency did not believe it came within MSHA’s jurisdiction, and Jewell implied the fuel tank
could have been in that area. Tr. 125. He also speculated that MSHA could have assumed
jurisdiction over the area when ownership of it and other parts of the mine was assumed recently
by Sangravl. Id., Tr. 126. This would account for the fact that the alleged violation was not cited
until February 2010. However, Herbert testified that nothing changed when the ownership
changed. The equipment remained the same and the employees remained the same. Tr. 126-127.
Herbert emphasized that the fuel tank always was located directly behind the plant where gravel
was processed. The tank was never moved. Tr. 128.
Herbert also testified that miners did not have to go to the top to of the tank to determine
its fuel level or to fill it. Tr. 117. He maintained both jobs could be done safely from the ladder.
Id. Knight disagreed, he thought that while a miner might be able to do the tasks from the top of
the ladder, the miner would not be able to do them safely. Tr. 121.
33 FMSHRC 1264

THE VIOLATION
Section 56.11001 requires that safe access “be provided and maintained to all working
places.” A “working place” is “any place in or about a mine where work is being performed.” 30
U.S.C. §56.2. The parties agree that work was performed in the cited area. Miners used the
ladder to reach the opening on top of the fuel tank in order to check the fuel level in the tank. Tr.
99. Miners also used the ladder to reach the opening to fill the tank. Tr. 99-101, 109-110. These
tasks were “work” within the meaning of the standard. Further, it is clear that this work was
performed from either the ladder or the top of the tank. The issue therefore is whether the ladder
and tank top provided “safe access” to perform the work.
To provide “safe access,” the operator had to ensure the ladder and the top of the tank
were “secure from threat of danger, harm or loss.” Western Industrial, Inc. 25 FMSHRC 449, 452,
453 (August 2003) (quoting Webster’s Third new International Dictionary 1998 (1993)). They
were not. If a miner tried to check the fuel level or fill the tank from the ladder, Knight
persuasively explained that the miner could not safely maintain both feet on the ladder, steady
himself with one hand, and use the other hand to reach across the tank and check the fuel level or
fill the tank. Tr. 106, See Tr. 121. If a miner tried to do these tasks from the top of the tank, there
was nothing for the miner to hold onto and steady himself. Tr. 104, 106-107; Compare Gov’t.
Exs. 21 and 23. A slip or loss of balance while working from the ladder or the tank’s top was not
unlikely. Falling from the ladder or the tank’s top meant falling five to eight feet onto the
concrete curbing or into the concrete depression. Tr. 111- 113. Surely, such a fall would result in
serious injuries.
For these reasons I conclude the company violated the cited standard.
S&S AND GRAVITY
In addition to proving the violation (number one of the four Mathies criteria, 6 FMSHRC
at 3-4), the Secretary established the other S&S criteria. As noted, the lack of safe access at the
top of the ladder and on the top of the tank meant that a slip or loss of balance would likely result
in a five to eight foot fall to concrete. Thus, the violation created a measure of danger to safety.
In addition, I conclude there was a reasonable likelihood the hazard would occur. By Herbert’s
own account the tank’s ladder or top was accessed much more frequently than Knight was lead to
believe. Herbert testified that, on the average, the company refilled the tank one time a month. Tr.
116-117. I credit his testimony, and I infer from this that a miner also checked the fuel level in the
tank at least once a month. This means that during the course of a year as mining continued a
miner or miners would be exposed to the hazard of falling from the ladder or the top of the tank at
least 24 times.
Herbert testified that the condition existed at the mine for many years without an accident
occurring. Tr. 139. I do not doubt this is true, but I conclude the lack of an accident speaks more
to the company’s luck than to whether a fall was likely. Nothing was alongside the ladder or on
33 FMSHRC 1265

the top of the tank that a miner could hold when perform the tasks required. A slip or loss of
balance and a resulting fall were made reasonably likely by the fact that the miner would have
either the measuring pole or fuel hose in one or both hands as he worked. With nothing to steady
himself or to grab onto in the event of a slip, falling five to eight feet to the concrete was
reasonably likely. Broken bones and/or internal injuries would have been the likely result.
In additional to being S&S, the violation was serious. As I have just found, it was likely a
miner would suffer disabling injuries.
UNWARRANTABLE FAILURE AND NEGLIGENCE
While I agree with Knight that the violation of section 56.11001 was S&S, I disagree that
it was caused by Sangravl’s unwarrantable failure. I recognize that several factors are present that
might support an unwarrantable failure finding. For example, the condition was obvious, the
condition existed for many years, the violation posed a serious hazard to those accessing the
ladder and the tank’s top, and management officials clearly knew of the existence of the condition.
See Jim Walter, 28 FMSHRC at 605.
However, just as Sangravl knew of the condition, I find that MSHA did too. Herbert
testified that MSHA inspectors had been coming to the facility since 1979, and that the tank had
been in place for about 40 years. Tr. 116-117, 118. While Jewell suggested in his testimony that
the area of the mine containing the subject fuel tank might not have been inspected by MSHA
until ownership of that part reverted to Sangravl in January 2010, his testimony was too
inconclusive to prove MSHA lacked jurisdiction. Tr. 124-125. Herbert, on the other hand, was
convincing when he stated that the tank had been in the same place for many years and that
although the ownership of part of the mine at one point changed, the equipment and employees
remained the same. Tr. 126-127. If the tank came under MSHA’s jurisdiction on February 23,
2010, the logical assumption is that it came under the agency purview prior to that time, no matter
who “owned” the subject part of the mine. I conclude therefore that for many years MSHA failed
to cite the condition. Sangravl was never placed on notice by MSHA that compliance was
necessary, and if MHSA’s inspectors “missed” the violation over the years it existed, it is
understandable Sangravl’s management also failed to see that the conditions constituted a
violation. Certainly, there was no intentional misconduct on management’s part, nor was there
purposeful indifference to the safety of its employees and those of its contractors. There was a
lack of reasonable care, but the lack of care was ordinary.
REMAINING CIVIL PENALTY CRITERIA
HISTORY OF PREVIOUS VIOLATIONS
At the close of the hearing the parties agreed that the Secretary could submit a certified
copy of the company’s applicable history of previous violations, and that the copy would be
admitted into evidence. Tr. 131, Gov’t Ex. 25. The history submitted by the Secretary shows that
33 FMSHRC 1266

the mine had a history of 13 prior violations, all of them cited pursuant to section 104(a) of the
Act. Id., 30 U.S.C. §814(a). None of the violations was assessed for more than $725.00. I
conclude from this that the company’s history is small.
SIZE
The parties stipulated that Sangravl is a small operator. Tr. 10.
ABILITY TO CONTINUE IN BUSINESS
The burden is on the company to establish that any penalties assessed will affect its ability
to continue in business. While John Herbert argued that the proposed penalties are “excessive”
(Tr. 139), he did not assert that the penalties assessed will affect the company’s ability to continue
in business, and I find that they will not.
GOOD FAITH ABATEMENT
All of the violations were abated within the time as set or as extended by the inspector.
This constitutes good faith abatement on the company’s part.
DOCKET NO. SE 2008-994
CIVIL PENALTY ASSESSMENTS
CITATION NO.
7752045

DATE
6/23/08

30 C.F.R. §
56.16006

PROPOSED ASSESSMENT
$873

I have found that the violation existed, that it was serious, and that the negligence of the
company was high. Given these findings and the other civil penalty criteria, I assess the
Secretary’s proposed penalty of $873.
CITATION NO.
7752046

DATE
6/23/08

30 C.F.R. §
56.12030

PROPOSED ASSESSMENT
$873

I have found the violation existed, that it was serious and that the negligence of the
company was high. Given these findings and the other civil penalty criteria, I assess the
Secretary’s proposed penalty of $873.
CITATION NO.
7752047

DATE
6/23/08

30 C.F.R. §
56.12004

33 FMSHRC 1267

PROPOSED ASSESSMENT
$263

I have found that the violation existed, that it was serious and that the negligence of the
company was moderate. Given these findings and the other civil penalty criteria, I assess the
Secretary’s proposed penalty of $263.
CITATION NO.
7752049

DATE
6/23/08

30 C.F.R. §
PROPOSED ASSESSMENT
56.14101(a)(2) $263

I have found that the violation existed, that it was serious and that the negligence of the
company was moderate. Given these findings and the other civil penalty criteria, I assess the
Secretary’s proposed penalty of $263.
CITATION NO.
7752050

DATE
6/23/08

30 C.F.R. §
56.12008

PROPOSED ASSESSMENT
$263

I have found that the violation existed, that it was serious and that the negligence of the
company was moderate. Given these findings and the other civil penalty criteria, I assess the
Secretary’s proposed penalty of $263.
CITATION NO.
7752051

DATE
6/24/08

30 C.F.R. §
56.14206(b)

PROPOSED ASSESSMENT
$873

I have found that the violation existed, that it was serious and that the negligence of the
company was moderate. Given these findings and the other civil penalty criteria, I assess a
penalty of $263.
DOCKET NO SE 2010-785
CITATION NO.
8545235

DATE
6/23/08

30 C.F.R. §
56.9300(a)

PROPOSED ASSESSMENT
$11,500

I have found that the violation existed, that it was serious and that the negligence of the
company was high. Given these findings and the other civil penalty criteria, I assess a penalty of
$4,000. I have lowered the penalty from that proposed because I conclude $4,000 more accurately
reflects the company’s small size and commendable prior history.
ORDER NO.
8545236

DATE
6/23/08

30 C.F.R. §
56.11001

PROPOSED ASSESSMENT
$4,000

I have found that the violation existed, that it was serious and that the negligence of the
company was moderate. Given these findings and the other civil penalty criteria, I assess a
penalty of $873.

33 FMSHRC 1268

ORDER
Within 40 days of the date of this decision, Sangravl IS ORDERED to pay civil penalties
totaling $7,671 for the violations found above. In addition, the inspector’s negligence finding on
Citation No. 7752051 IS MODIFIED to “moderate,” the inspector’s negligence finding in Order
No. 8545236 IS MODIFIED to “moderate” and the order IS MODIFIED to a citation issued
pursuant to section 104(a) of the Mine Act. 30 U.S.C. §814(a).
Upon payment of the penalties these proceedings ARE DISMISSED.

/s/ David F. Barbour
David F. Barbour
Administrative Law Judge
Schean G. Belton, Esq., U.S. Department of Labor, 618 Church Street, Suite 230, Nashville, TN
37219
John B. Herbert, President, Sangravl Company, Inc., 900 Herbert Road, New Johnsonville, TN
37134
/sa

33 FMSHRC 1269

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

May 19, 2011

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner
v.
WOLF RUN MINING COMPANY,
Respondent

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CIVIL PENALTY PROCEEDING
Docket No. WEVA 2007-600-A
A.C. No. 46-08791-120481-02
Sago Mine

DECISION APPROVING SETTLEMENT
Before: Judge Feldman
This matter concerns 104(d)(1) Order No. 7100904 that cites a violation of
30 C.F.R. § 75.370(a)(1) as a result of Wolf Run Mining Company’s (“Wolf Run’s”) alleged
unwarrantable failure1 to comply with an addendum to its approved ventilation plan. The cited
violation concerns the construction of ten Omega Block seals that were installed to seal an
abandoned area in the 2nd Left Mains. The seals were destroyed as a consequence of the fatal
explosion that occurred at the Sago Mine on January 2, 2006.
At the time of the explosion, 30 C.F.R. § 75.335 required seals to withstand an explosive
force of at least 20 pounds per square inch (“psi”). The accident investigators determined that the
seals in the Sago Mine were exposed to explosive forces in excess of 90 psi. Prior to this
accident, Mine Safety and Health Administration (“MSHA”) investigators had never encountered
this level of explosive forces that had originated in abandoned areas behind seals.
Following this accident, MSHA conducted extensive seal strength tests with the
participation of the National Institute for Occupational Safety and Health and the State of
West Virginia. Omega Blocks that simulated the construction of the seals that were destroyed
by the Sago Mine explosion, as well as seals constructed in accordance with the ventilation plan,
were exposed to explosive forces. It was determined that both types of seals would likely have
withstood explosive forces of 20 psi, although both would likely have failed to withstand the force
of at least 90 psi created by the Sago explosion.
1

A violation of a mandatory safety standard is unwarrantable when the actions
of the mine operator that resulted in the violation constitute more than ordinary negligence.
Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987).
33 FMSHRC 1270

Consequently, MSHA determined that Wolf Run’s strict compliance with the seal
installation requirements in the ventilation plan would not have prevented the fatal mine
explosion. Therefore, the Secretary has agreed to withdraw the unwarrantable failure allegation,
thus reducing the negligence attributable to Wolf Run from high to moderate, as the
subject seals apparently satisfied the 20 psi strength requirements in effect at the time
of the accident. Section 75.335 has since been modified to require seals constructed after October
20, 2008, to withstand forces of at least 50 psi, or 120 psi, depending on the type of atmospheric
monitoring of the sealed areas.
The Secretary initially proposed a penalty of $9,700.00 for 104(d)(1) Order No. 7100904.
The Secretary now has filed a motion to approve settlement wherein Wolf Run has agreed to pay a
reduced civil penalty of $8,500.00. The settlement terms include modifying 104(d)(1)
Order No. 7100904 to a 104(a) citation to reflect that the cited violation was not attributable
to an unwarrantable failure.
I have considered the representations and documentation submitted in this matter
and I conclude that the proffered settlement is appropriate under the criteria set forth in
Section 110(i) of the Act. WHEREFORE, the motion to approve settlement IS GRANTED,
and pursuant to the parties’ agreement, Wolf Run Mining Company IS ORDERED to pay a civil
penalty of $8,500.00 within 30 days of this Order in satisfaction of 104(a) Citation No. 7100904.2
Upon receipt of timely payment, the captioned civil penalty case IS DISMISSED.

/s/ Jerold Feldman
Jerold Feldman
Administrative Law Judge
Distribution: (Regular and Certified Mail)
Robert S. Wilson, Esq, Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
22nd Floor West, Arlington, VA 22209
R. Henry Moore, Esq, Jackson Kelly, PLLC, Three Gateway Center, 401 Liberty Avenue,
Suite 1340, Pittsburgh, PA 15222
/jel

2

Payment should be sent to the Mine Safety and Health Administration, U.S.
Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.
Please include the Docket No. and A.C. No. noted in the above caption on the check.
33 FMSHRC 1271

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, NW, Suite 9500
Washington, DC 20001-2021
Telephone No.: 202-434-9933
Telecopier No.: 202-434-9949

May 19, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner
v.
MOUNTAIN EDGE MINING, INC.
Respondent

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CIVIL PENALTY PROCEEDING
Docket No. WEVA 2009-1519
A.C. No. 184010
Mine: Sweet Birch

DECISION AND ORDER
Appearances: Allen Kelly, Esq. and Michelle Kim, Esq., Secretary of Labor, Office of the
Solicitor, representing the Mine Safety and Health Administration;
Sam Madia, Esq. for the Respondent
Before: Judge Moran
Introduction:
At the time of the matters in issue in this proceeding under the Federal Mine Safety and
Health Act of 1977 (“Mine Act”), miners at the Sweet Birch Mine were working in particularly
adverse conditions. Engaged in retreat mining, they were toiling in a 3 ½ foot mining height
environment, making crawling the means of moving about. It was while working under those
circumstances that MSHA inspector Brandon Ellison issued a 104(d)(1) Citation on March 9,
2009 (“Citation”) and, eight days later, on March 17th, a 104(d)(1) Order (“Order”). The Citation
alleged a failure to follow the mine’s approved roof control plan, while the Order alleged a failure
to conduct an adequate preshift examination. A hearing ensued on February 3, 2011.1

1

The parties stipulated that the Respondent is an Operator under the Mine Act; that the
Mine’s operations fall within that Act’s jurisdiction, that the proceeding is subject to the
Commission’s jurisdicition and its judges, that the citation and order involved here were issued
by an authorized representative, that such copies of those were authentic and that true copies of
them were served on the Respondent. Tr. 8 -9.
33 FMSHRC 1272

For the reasons which follow, the Court affirms both violations, finds for each that they were
“significant and substantial,” the result of high negligence and aggravated conduct, and hence
unwarrantable failures, and that the appropriate penalty for the Citation is $24,496.00 and for the
Order, $9,122.00, for a total penalty of $33,618.00.
Findings of Fact and Conclusions of Law
A. Citation No. 6622239, the roof control violation2
Brandon Ellison,3 is a coal mine inspector for MSHA. At the time in issue here Ellison
was conducting a regular inspection, referred to as an “E01.” Tr. 24. Referring to his 104(d)(1)
Citation, No. 6622239, and GX 3, his notes relating to the issuance of that citation, Ellison stated
that on March 9, 2009, he proceeded to the 001 Mechanized Mining Unit, or “MMU,” along with
mine foreman Terry Walker.4 Tr. 26. It was at the No. 4 entry where he observed the continuous
miner operating under circumstances where there were no test holes outby it. Tr. 27. The roof
control plan requires a test hole and also calls for “six-foot torque tension bolts to be placed in a
star pattern.” Tr. 27. Under the plan, a certified foreman is to examine those test holes prior to
mining and then certify that, by listing the date, time and his initials. Tr. 27.
Referring to GX 4, the mine’s “safety precautions” which were in effect on March 9, 2009,
Ellison stated that, under those provisions, the mine was not in compliance with safety
precautions 1 and 4. Safety precaution 1 provides that “[p]rior to retreat mining, supplemental
support will be installed in each intersection. The minimum support will be a six-foot fully
grouted rebar bolt installed in a star pattern. Such supplemental support may be installed during
development.” Tr. 28. Safety precaution 4 provides that “prior to retreat mining, a test hole shall
be drilled in each intersection to determine any separation in the strata. Such test holes shall be
examined by a certified foreman prior to beginning second mining in the pillar(s) immediately
inby. The examiner shall place his dates/times/initials at the test hole upon completion of the
examination. If any separations are detected, additional support such as longer bolts anchored
above the separation, timbers, cribs or crossbars shall be installed prior to retreat mining.” Tr. 28
29. Ellison explained that these requirements mean that there must be a test hole at each
2

The applicable provision related to the roof control violation, 30 CFR § 75.220 (a)(1),
provides: Each mine operator shall develop and follow a roof control plan, approved by the
District Manager, that is suitable to the prevailing geological conditions, and the mining system
to be used at the mine. Additional measures shall be taken to protect persons if unusual hazards
are encountered.
3
Government Exhibits 1- 12 were stipulated for admission at the outset of the hearing.
Tr. 17-18.
4
Before doing that he had reviewed various documents on the surface, such as the
operator’s plans and the preshift examination. Upon completing his imminent danger run, and
citing the operator for an alleged violation which is not part of this docket, he traveled to the
section feeder, finding another alleged violation, this time for coal accumulations at the No. 5
belt tailpiece. Tr. 27. These other alleged violations play no part in the violations at issue.
33 FMSHRC 1273

intersection. 5 Tr. 30. In his view, this failure, by not having the initial support present,
contributed to a safety hazard. He explained that retreat mining naturally weakens the mine roof
because that process, by its design, causes the roof to collapse. The extra support, installed in the
star pattern, is in the working area where miners would normally stand. By not having the test
holes, one doesn’t know if the roof is cracked above or if there are any coal or rider seams
present. Tr. 31. The importance of this requirement was not theoretical. Ellison noted that in that
particular area, only one crosscut outby, this mine did have a roof fall. It was his understanding
that occurred due to a “rider seam,” which is a “weaker type” of roof strata. Tr. 31.
Ellison was also asked about GX 5, a mine map of the Sweet Birch Mine and GX 5A,
which is an accurate representation of a part of GX 5. Tr. 32. Ellison marked on 5A the area
where he found the roof conditions he had just described, marking it with an “X.”6 When Ellison
found the problem, he was adjacent to the intersection where the miners were conducting the
mining cycle. Tr. 98. Thus he affirmed seeing the continuous miner working, immediately inby.
Being more particular as to his location, Ellision added that he had documented that he was three
breaks inby spad 694. Tr. 99. He did watch the miners load one or two shuttle cars. Tr. 100.
Also pertinent was GX 6, which is a copy of the roof fall incident that Ellison referred to
earlier in his testimony. The exhibit, which is an “accident report,” stated that the roof fall
occurred “[m]idway down to No. 9, area between spad 709 and 713 fell rib to rib, 20 foot long,
four foot thick. There seems to be a one to two inch rider seam of coal at the top of the fall.
The area is breakered off and will not be [ ] moved.”7 Tr. 35. Per GX 6, that roof fall occurred on
March 3, 2009, which was only a week before the inspection in issue here. Tr. 58.
Government Exhibit 12 consists of the preshift and onshift reports for the Sweet Birch
Mine and its production reports. Turning to the daily production reports for March 4, 2009, the
5

The test holes can be drilled during development, in which case they must be left open
so that they can be examined. Alternatively, they can be drilled as they retreat, that is, once the
development for a panel is completed, they can install the test holes before the retreat mining
commences. Tr. 30.
6
Ellison was confident of his location where he found the problem because he relied
upon the mine’s survey specs and his notes recorded that he was three breaks inby spad 3940. He
also marked this area, encircling it with a green ink marker. Another confirmation of his
location, Ellison added that he was in the No. 4 Entry, which he knew to be the belt entry and
that the subject area was three breaks from the section “going straight ahead.” Tr. 35. After he
had checked the section feeder he crawled straight ahead to where the miners were working.
Ellison crawled because, as noted, the mining environment is more even arduous than usual at
this mine; miners work there within a floor to roof span of about 3 and a half feet. Tr. 35-37.
7
Ellison marked, again with a green marker, the area of the roof fall on the map. Tr. 36.
On Exhibit 5A Ellison marked where mining was being conducted near to the area where he
found cited the condition, marking between the large “4” and “6” on that map. Tr. 40. His notes
also support the location he identified, as he indicated the spad number and the number of
crosscuts inby the condition. Tr. 40.
33 FMSHRC 1274

inspector noted that “major delays” was listed there,8 providing that “Section area low to 40 to 42
inches. We are unable to see the pressure gauges on the MRS, so federal inspector suggested we
pull back two to three rows and then continue pillaring... .” Ellison confirmed that the “inspector”
referred to in that report was himself.9 Tr. 41. Leaving some allowance for down time and other
intervening events, Inspector Ellison believed that in the time from the production report of March
4, 2009 to the date of his citation’s issuance, the miners could have completed two rows of
mining. Tr. 43. It is for that reason that he concluded miners would have been exposed to the
hazard of roof falls in the cited area. He noted again that, with the roof fall having occurred in a
very nearby area, it is indicative that the roof is weaker in that location. Tr. 44. Three people
would, typically, have been exposed: the continuous miner operator, a mobile roof support
operator and the shuttle car operator. Significantly, he observed each of these operators at the
time he cited the condition. Tr. 44.
Further addressing the cited violation of 30 C.F.R. 75.220(a)(1), Ellison emphasized that
retreat mining is more dangerous, as that activity weakens the mine roof and the intent is to have
the roof collapse. Tr. 49. Thus the extra precautions are especially important to assure roof
support. Adding to that concern, he again noted the weaker roof in the area together with the
indication that there was a coal rider seam. Tr. 48.
If a roof fall did occur, Ellison believed that fatal injuries could result. In this regard he
noted the massive section of roof that fell nearby. Tr. 49. Additionally, as noted, because this is a
“low coal” mine, miners have a diminished opportunity to get out of harms way because, should
there be any advance warning, one is relegated to crawling away from such a hazard. Tr. 49.
Further, it should be noted that it is not a given that one will even hear a warning of a roof fall,
through cracking or popping, as there might not be any such prior indication. Nevertheless, it is
obvious that, if such a warning does occur, crawling away from a danger is a slower process.
In terms of his finding that it was “S & S,” Ellison viewed it to be a discrete hazard, with a
reasonable likelihood to cause an injury, which injury would be serious, including the risk of a
fatality. Tr. 50. Because the certification process requires precautions be taken and the frequent
checking of conditions, Ellison believed the violation was obvious. For example, he noted the
foreman’s requirement to make the test hole examination. Each time the miners move from one
place to another, the foreman is required to check that hole, making sure it is not cracked, or that

8

Ellison believed that production report related to his citation in that it shows that they
moved back a few rows and shows the blocks of coal they left behind by that action and that
those areas would typically have been mined. Independent of that, the Solicitor introduced the
testimony to further establish the inspector’s location at the time he issued the citation. Tr. 47.
9
The inspector marked the number “1” at this low area from where he recommended they
pull back, marking the new location the miners move to with a “2.” The low mining height
made it difficult to see the gauges. Tr. 46. It is important to see the gauges to make sure the
machine is not overpressurized. One then must either move the gauges to the outside of the
machine so they can be viewed, or stop mining the area. Tr. 46.
33 FMSHRC 1275

there has been a roof shift. Thus, the foreman must continually evaluate the conditions, making
sure it is safe before mining starts. Tr. 51.
Ellison also considered the condition to be extensive. As noted, no test hole had been
made in the intersection. Tr. 52. The inspector expressed that in his view the problem was
extensive. Tr. 52. Another related factor was the length of time the conditions had existed.
Relying upon his notes, as reflected at GX 3, there had been eight shuttle cars loads removed from
the applicable pillar block. Tr. 53.
As Ellison graphically, and credibly, described the circumstances in which he found the
violation, he had just finished issuing a citation at section tailpiece when he “heard mining start . .
. [s]o I worked my way, eventually crawling up to where they were working at. I watched them
load out one or two shuttle cars. While I was on my hands and knees observing that, I was trying
to look for the roof bolts to make sure they were in place, and I couldn’t see them. So once one of
the shuttle cars left the continuous miner, I stopped for a second and crawled over to see if I could
find them. I couldn’t find them. I looked for the test hole and the section foreman’s dates and
initials, and couldn’t find it. That is when I brought it to [the company rep, Mr. Terry Walker
asking about the additional support, the test holes and evidence that the foreman had examined
them].” Tr. 55. Though he was asked, Walker did not know why no test holes had been installed.
Tr. 61. Instead, Walker apologized for the problem and then had it corrected. 10 Tr. 61.
10

Jerry Bias was the mine superintendent at the time in issue. Tr. 229. Bias agreed they
were engaged in retreat mining in entries 1 through 8 during March 2009, an area he described as
“First off of two north.” Tr. 232-234. Regarding the roof control citation, Bias was informed that
there was an area that had not been bolted. Tr. 236. He did not view the condition at the time it
was cited, but stated that he did later. Tr. 237. Bias felt it was, on balance, better to drill the test
holes, not as they were advancing, but rather just before they began the retreat mining. Tr. 238.
Referring to Ex 1A, Bias’s attorney circled the pillar at spad 812. Before retreat mining the
circled pillar, the roof control plan required had to have five bolts, a “five-star pattern, six-foot
bolts and a test hole.” Tr. 240.
Bias testified as to where they were mining on March 4th, but this was based on his
reliance upon production reports from that date. Tr. 244. The mining environment had gotten so
low, that the roof supports would not work properly, causing the mine to retreat to a point where
they had sufficient clearance. Machines which temporarily support the roof require a minimum
of 12 to 18 inches of movement “in case something happens,” but Bias informed they only had
six inches. Tr. 244. These conditions required them to “pull back at least two rows” leaving
those unmined. Tr. 245. On March 6th, the mine was able to produce some coal, based on Bias’s
review of its production report. Tr. 247. On March 9th, when Ellison’s violation of the roof
control plan was issued, by the time of its issuance, Bias speculated that the mine would have
mined a third of the way through two pillars, “at best,” as there would have been only an hour of
production by that time. Tr. 257. Bias continued, for some time, reviewing his interpretation of
the mining activity, and problems they encountered, during the time frame connected with
Ellison’s alleged violations. Tr. 230- 262. In response to the Court’s inquiry, Counsel for
Respondent explained that the purpose behind Bias’ recounting of the mining activity was to
33 FMSHRC 1276

It was Ellison’s view that the section foreman, as a member of mine management, should
have known about these failures since he was the individual who instructed the crew to start
mining. Ellison spoke to both the section foreman and Terry Walker, the mine foreman, about
this. Neither of those individuals could locate the required test hole nor any initials. Tr. 57.
Further, Ellison considered the violation to be aggravated conduct, beyond ordinary negligence.
He stated that the foreman’s duty to check for these holes is a “very, very important process in
this mining cycle.”11 Tr. 58. With the foreman then instructing his men to commence mining,
show the areas where Safety Precaution 1 and 4 were needed but that those areas were not the
area for which the mine was cited. Tr. 259.
It was Bias’ position that “if [they] were mining at spad 718, that intersection [was the
only one which] would have had to have been bolted, but that was in No. 5 entry.” Tr. 260.
Thus, it was Bias’ position that Ellison identified an intersection that “was three breaks inby spad
694, . . . which was the one he referenced in that entry, No. 4 entry. That would have been one
break outby where we would have been mining that day, and that is not required to be bolted
until you mine the block immediately inby.” Tr. 261.
With testimony based on production reports, not firsthand knowledge, Bias stated that the
mine was actually mining half what was recorded in its production report. Tr. 265. This was
because they were misreporting the linear footage. R’s Ex. 3, the March 9, 2009 production
report, reflects there were “Major Delays.” Bias noted that there was an inspector on the section
and that the shift had to finish star bolting and finish the belt move. Tr. 266. The first shift
operates from 7 a.m. to 3 p.m. and then the second shift operates from 3 p.m. to 11 p.m. Tr. 267.
Bias maintained that those reports were written backwards, that is, that the what was listed as
done on the second shift was actually done on the first shift. Tr. 267. R’s Ex. 3, at page 16,
notes: “Major delays, first shift, it says down because of an inspector 90 minutes.” Tr. 274. Bias
admitted that inspector was Ellison. This created an additional problem for Bias’s contention, as
Ellison testified that he was at the mine during the first shift. Tr. 274. Bias had to concede that
the mine’s report showed the belt move occurred during the second shift. Tr. 268. While Bias
maintained that the No. 5 entry was actually being mined at that time, when Inspector Ellison’s
notes were brought to his attention and those notes stated, regarding the issuance of Citation No.
6622238, that a roller was turning in coal accumulation of loose coal, Bias was conflicted, as he
agreed that the belt was running at 11:05 a.m. that day. Tr. 269 - 271, GX 3 at p.8. Even the
contention by Bias that the mine never moves a belt on the second shift was qualified by himself
as he stated that a move on the second shift can occur if “it’s an absolute have-to case, which was
the case earlier when [the mine] had the low area.” Tr. 272. Bias could offer no credible
explanation for an accumulation of eight inches in height and stretching for three feet to develop
in five minutes. Tr. 271. The best Bias could offer up was that “if they had moved back in an
area that had a spill . . . and they didn’t clean it up, [the accumulation] would have been there.
Tr. 271. This was pure speculation and without any record support. Therefore Bias’ theories
and speculations are rejected.
11
Abatement was carried out by installing supplemental support, consisting of six-foot
bolts, in the required star pattern. This was followed by drilling the test hole and then that was
examined by the section foreman. Tr. 59.
33 FMSHRC 1277

without checking the hole to see if the hole was even present, let alone not examining it, he
placed those miners in danger. Tr. 58. Compouding this failure was the fact that the roof was
weaker in this area and, as the Inspector observed, “the company was well aware of [the roof
issue].” Tr. 58.
Although Ellison agreed that he did not see any rib rolls outby the cited area, nor did he
see other loose material in the cited area, the absence of these conditions must be understood in
the context of the retreat mining. Tr. 96. As Ellison explained, “you’ve got to understand this is
where they’re drilling. They’re actually causing the roof to collapse right in that area because
they’re mining. So you are going to have sloughage. You’re causing the roof to fall naturally.
That is how it is designed to work.” Tr. 96-97. The inspector’s larger point was that one
wouldn’t be documenting things like “loose or shaggy top,” as counsel inquired about, because
the whole idea with retreat mining is to have the roof collapse.12 Tr. 98.
Further Discussion
The violation of the roof control standard was established.
It is clear that the violation was established; the intersection immediately outby where the
continuous miner was operating had neither a test hole nor the required support of 6 foot rebar
bolts installed in a star pattern, as required by the roof control plan. The preponderance of the
evidence standard was more than met by the Secretary. Thus the Court rejects the contention that
the intersection identified by Ellison was not immediately outby the area of retreat mining.
Inspector Ellison’s testimony was credible and both his location and the area where mining was
occurring were established by the reliable evidence.13

12

Outby that area, as the inspector acknowledged is a different matter and, if found there,
he would note such conditions. In this instance he did not find such problems outby the cited
area. Tr. 98.
13
Accordingly, the Court rejects the Respondent’s claim that the belt move occurred
during the day shift on March 9th. Instead, as the production report confirms, the belt move
occurred during the second shift, that is, between 3 and 11 p.m. That report also references the
delay because of Ellison’s findings during the first shift. Thus, the Respondent’s claim that the
production reports were mixed up, that is, reversed, is rejected. Though reliance on Ellison’s
credible testimony is sufficient in this regard, it is also noted that Bias was not present with the
inspector when the violation was noted and that his version of the events was based on his
interpretation of the production reports. Further, the Respondent could not even rely upon those
reports, as it had to assert that the information in them had been reversed. Ellison also found the
rollers of the No. 5 belt turning in an 8 inch high and 3 foot long coal accumulation, a condition
that could not have developed in a mere 5 minutes time.
33 FMSHRC 1278

The special findings were also established. Applying Mathies,14 the violation having been
established, the discrete safety hazard, or measure of danger, contributed to by the violation, is
plain: roof falls are one of the most basic threats to mine safety. Here, the failure to comply with
the minimum requirements of the plan, by not having created the test hole and by failing to install
the supplemental support, inherently created a discrete safety hazard. That there was a
reasonable likelihood that the hazard contributed to will result in an injury is demonstrated by
the plan’s requirement for such protection to be installed. Such roof control measures are not
required as window dressing; they are included to reduce the odds of a roof fall’s occurrence.
Thus, Ellison’s view that the lack of supplemental support made a roof fall reasonably likely, was
fully justified. The last element, that there is a reasonable likelihood that the injury will be of a
reasonably serious nature is a given, where roof falls are involved. While that observation is
enough, the 20 foot long 4 foot thick roof fall in a nearby area only serves to underscore the
demonstrated gravity of this failure to comply with the plan. Even if a miner were to sense,
through tangible warning signs, that a roof fall was about to happen, this mine’s environment,
with its ceiling of only 3 ½ feet, meant that the ability to avoid such an event was compromised
by the need to crawl, instead of run, from such a development.
The Court also finds that the violation resulted from high negligence and aggravated
conduct and consequently was an unwarrantable failure. In support of this finding, Inspector
Ellison’s testimony that both of the hazardous conditions he found were obvious, is noted. This
is because section foremen are to monitor whether such safety precautions have been taken.
Here, the absence of a test hole and the missing supplemental support were obvious and readily
ascertainable, had the duties been carried out. In the case of the test hole, those need to be drilled
prior to the retreat mining cycle. Contrary to that requirement, Ellison determined and the Court
finds that the problems continued, unaddressed, through eight shuttle car loads. This meant that
the mining crew had been exposed to roof which was not in compliance with the roof control
plan for that period of time.15 In addition to being obvious and continuing until the Inspector
discovered the shortcoming, another factor supporting the unwarrantable failure finding is that
the section foreman, as a supervisor and therefore a member of management, knew or should
have known, of the deficiency. In fact, Inspector Ellison observed the section foreman direct the
crew to begin mining, in spite of the minimum roof control requirements not having been carried
out. While these findings are sufficient, it is noted again that the situation was further aggravated
by the recent and close-by roof fall.
Penalty Determination
The Secretary’s original proposed assessment was $12,248.00 for the Citation. In its
opening statement, the government announced that it was seeking an increase in its proposed
penalty for Citation No. 6622239, involving a violation of 30 C.F.R. 75.220(a)(1), a section

14

Secretary of Labor v. Mathies Coal Co., 6 FMSHRC 1 (January 1984)
Ellison estimated the time of exposure before he spotted the problem to have been 15 to
20 minutes.
33 FMSHRC 1279
15

104(d)(1) citation.16 As discussed supra, this involved a failure to follow the approved roof
control plan, despite prior notice of the risk of roof falls in the area cited. As the Secretary notes,
the violation involved two distinct failures of the roof control plan. The failure of either
requirement established the cited violation and the proposed penalty would have $12,248.00
under the penalty policy for either one of the two shortcomings. The Court agrees that as the
Secretary could have cited two different provisions, but instead only cited one violation, the
enhanced penalty is justified. Tr. 10.
Therefore, it is both rational and reasonable that the penalty should be doubled to
$24,496.00 where the record establishes two distinct and independent failures to comply with the
minimum requirements of the Plan.17 The importance of these independent roof control
requirements need to be understood in the context of the retreat mining that was occurring here.
With retreat mining, collapse of the mine roof is part of the process. This makes the safety
requirements particularly important. Test holes are drilled in order to determine if there have
been cracks or shifts in the roof’s strata. So too, the roof’s collapsing creates added pressure on
those roof areas that remain intact. It is for this reason that supplemental roof support is required
when retreat mining.
The negligence and gravity have already been discussed. Size of business, history of
violations, ability to continue in business have likewise been addressed above. While the
Respondent demonstrated good faith in abating the violations, once Ellison brought them to the
mine’s attention, that does not afford a basis for any penalty reduction.
Accordingly, having considered the entire record related to this violation, and the parties’
arguments related thereto, the Court concludes that the penalty for the roof control citation
should be $24,496.00.
B. Order No. 8082063, the inadequate preshift violation
This Order, issued under Section 104(d)(1) of the Mine Act, cites 30 C.F.R. §
75.360(b)(3). That Section, in relevant part, provides:
Preshift examination.
16

The parties stipulated that the total proposed penalties will not affect the Respondent’s
ability to continue in business, that the Violator Data Sheet, per Exhibit A as attached to the
Secretary’s penalty petition, accurately sets forth the Respondent’s size, the total number of
assessed violations for the time period therein listed, and the total number of inspection days for
such time. Tr. 8-9.
17
In addition, the Court has independently examined each of the statutory penalty criteria,
weighed the gravity and negligence and the other circumstances surrounding this violation, all as
developed through the evidentiary record and, apart from the recommendation by the Secretary,
concludes that a penalty of $24,496.00 is appropriate for this roof control violation.
33 FMSHRC 1280

(a)(1) Except as provided in paragraph (a)(2) of this section, a certified person designated
by the operator must make a preshift examination within 3 hours preceding the beginning
of any 8-hour interval during which any person is scheduled to work or travel
underground. No person other than certified examiners may enter or remain in any
underground area unless a preshift examination has been completed for the established
8-hour interval. . . .
(b) The person conducting the preshift examination shall examine for hazardous
conditions, test for methane and oxygen deficiency, and determine if the air is moving in
its proper direction at the following locations: . . .
(3) Working sections and areas where mechanized mining equipment is being installed or
removed, if anyone is scheduled to work on the section or in the area during the
oncoming shift. The scope of the examination shall include the working places,
approaches to worked-out areas and ventilation controls on these sections and in these
areas, and the examination shall include tests of the roof, face and rib conditions on these
sections and in these areas. . . .
30 C.F.R. § 75.360(b)(3) (emphasis added).
Inspector Ellison issued the Order on March 17, 2009. GX 3, and GX 7. Tr. 63-66.
As with the prior citation, issued on March 9, 2009, and just discussed, Ellison was visiting the
001 MMU and, following his practice, he first reviewed mine records, such as the preshift and
onshift exams, before going underground. Tr. 63. Terry Walker, mine foreman, accompanied
Ellison on this day. Before coming upon the condition which prompted the issuance of the
subject order, Ellison wrote up several other alleged violations.18 Following those actions, the
inspector found that the mine’s ventilation plan was not being followed in that the bleeder system
lacked permanent controls. The air was found to be reversed at entry No. 4 and the bleeder and
intake air were mixing, instead of being separated, as required. Also, several stoppings had holes
and leaks.19 Tr. 65. Ellison took a smoke survey and used a chemical smoke to determine the
direction of air flow and where it was mixing. Tr. 66. Explaining further, Ellison stated that the
No. 5, 6 and 7 entries had ventilation controls which had been removed and this caused bleeder
18

These included an access road that lacked a berm in an area, a finding that a lifeline, at
Break 2, didn’t come completely out of the mine, and which lacked the required reflective
material, and a communication cable that was touching the coal rib. Tr. 64-65. While noted,
these problems are not considered at all in determining any of the issues here. It is highlighted
here and noted by the Respondent in its Post-Hearing Reply Brief, that, while there was
testimony from Inspector Ellison as to another citation he issued, Citation No. 8082062,
regarding an alleged failure to establish escapeways, that matter has been contested by the
Respondent and was not resolved at the time of the hearing. Accordingly, no part of this decision
relies upon that alleged escapeway violation.
19
The context of these discoveries, where these controls should have been installed, was
that the mine had started moving their mining equipment to a new location. Tr. 65-66.
33 FMSHRC 1281

air20 and intake, that is, “fresh air” to mix before it arrived at the new section where miners were
working. Tr. 67.
Per GX 7, pertaining to Citation No. 8082061, also issued on the same date, March 17,
2009, as Order No. 8082063, the inadequate preshift violation being addressed here, Ellison cited
the Respondent for not following the approved ventilation plan. Citation No. 8082061 was
issued some 35 minutes just prior to the Order presently under discussion, Order No. 8082063.
Unlike the escapeway issue cited by Ellison, Citation 8082061 has become a final order and was
paid. Tr. 73. Thus, it is considered here. That citation stated that:
The Approved ventilation plan is not being followed.
No ventilation control is present at spad # 692 to separate the bleeder
system from the intake. A proposed set of double doors were to be
installed at this location. This is allowing the bleeder air to mix with
the intake air that is feeding the construction section being installed and
the electrical installations. The ventilation controls at the mouth of the
1 right 2 right north panel are not in place. No ventilation controls are
present in the #5, #6 and #7, entry’s (sic) to separate the bleeder
system from the intake. The bleeder system is not functioning properly.
The air is reversed coming back out of the gob in the #7 entry.
The controls that have been installed in this area are not adequate.
Several holes are present in the stoppings in the #4, #3 and #2
entry’s (sic). This is causing bleeder air to mix with the air in the belt
entry and the electrical installations.
GX 7, Citation No. 8082061.21
By comparison, the subject Order, Order No. 8082063, asserted:
An inadequate preshift exam was conducted for the day shift on the
construction section where equipment was being removed and
installed. Several obvious hazards were found. No ventilation
control is present at spad # 692 to separate the bleeder system
from the intake. A proposed set of double doors were to be
20

Bleeder air is involved with retreat mining. Once air has passes over coal blocks that
have been mined, it is deemed “return” or “bleeder” air. Such air must be dumped into a return
entry to the mine’s surface. Tr. 67. While Ellison did not find low air or methane at the time of
finding the violation, he stated that, if one allows bleeder air in with transit air, over a period of
time low oxygen will develop. Tr. 114.
21
That citation’s gravity was marked as “significant and substantial” and the negligence
as “high,” that is, just below the “reckless disregard” categorization.
33 FMSHRC 1282

installed at this location. This is allowing the bleeder air mix with
the intake air that is feeding the construction section being
installed and the electrical installations. The ventilation controls
at the mouth of the 1 right 2 right north panel are not in place.
No ventilation controls are present in the #5, #6, and #7 entry’s (sic)
to separate the bleeder system from the intake. The bleeder
system is not functioning properly. The air is reversed coming
back out of the gob in the #7 entry. The controls that have been
installed in this area are not adequate. Several holes are present
in the stoppings in the #4, #3, and #2 entry’s. (sic). This is causing
bleeder air to mix with the air in the belt entry and the non permissible
electrical installations. . . . [ escapeway allegations omitted]. These
hazards are obvious to the most casual observer. Management
engaged in aggravated conduct constituting more than ordinary
negligence by not adequately recognizing and recording these
hazardous conditions. This is an unwarrantable failure to comply
with a mandatory standard.
Order No. 8082063
Thus, comparing Citation No. 8082061 with Order No. 8082063, one notes that the two
are nearly identical in describing the problem. The key difference is that the Citation holds the
Respondent accountable for the ventilation plan violations, while the Order speaks to the
Respondent’s related failure to note those problems in its preshift examination. The former, paid
violation for the ventilation failures, has significant implications for the latter alleged preshift
violation.
As Ellison emphasized, the “whole ventilation was really messed up” at the time of his
discovery of the problem, as controls were not in place and there were air reversals. Tr. 70.
Thus, the ventilation system was compromised.22 Nine people were inby this condition,
installing equipment, and thereby exposed to the problem. Tr. 71. He listed the violation as
“significant and substantial” in that, with ventilation controls out and the air compromised,

22

GX 8 is part of the mine’s ventilation control plan, which plan was in effect on March
17, 2009. Tr. 68. It includes a schematic, showing where controls are to be located. Tr. 68.
The plan requires that the ventilation controls are to be in place prior to installing mining
equipment. Tr. 69. Ellison considered this failure to be “high negligence.” This was based on
the mine’s failure to follow its plan, exposing miners to hazardous conditions by allowing intake
and return air mixing. Low oxygen would be an issue in such circumstances. Ellison added that
if any problem had arisen, as in the case of a mine fire, the intake air would have been
compromised.
33 FMSHRC 1283

contaminated air in the intake was present, complicating matters in the event of an emergency.
Tr. 71. He found no mitigating factors to be present. 23 Tr. 72.
The inspector explained that, as the preshift indicated there were no hazards, his
subsequent findings led him to issue an order for an inadequate examination. Tr. 76. The
problems, as identified in Citation 8082061 were obvious, and thus he issued the inadequate
examination citation. Here, while the section foreman had examined the area, none of the
ventilation problems were documented in then preshift examinations and this led the inspector to
issue a violation for the inadequate examination, citing section 75.360(b)(3). Tr. 78-79.
Ellison’s point was that once the mine had completed the pillaring, that production had
stopped, and the ventilation controls should have been installed. Tr. 81.24 A total of 9 preshifts
had elapsed from the time when these controls, the ventilation controls, should have been in
place. Tr. 82. The onshift report for March 17 records the problems identified by Ellison and
notes that “[a]ll people working on violation.”25 Tr. 83. The Inspector added that he was
referring to every type of hazard, air, roof and ribs, when he stated there were obvious hazards.
Tr. 109. While other citations he issued at this time involved the conditions he found, this
citation pertains to the examination, that is, what the examiner should have seen. Tr. 111.
Terry Walker, who as previously noted, was the mine foreman at the Sweet Birch Mine in
March 2009,26 identified R’s Ex. 4 at 9 as a preshift report for March 15, 2009. Tr. 149-154.
That report did not show any low oxygen level present. In fact, Walker noted that the oxygen
23

On cross-examination Ellison was asked about the flow direction of the intake air and
in this regard GX 5 was referenced. Ellison marked the No. 8 entry on that map, with an asterisk
to identify the mine’s intake air. Tr. 125. Referring to the intake air flow in the area the mine
was cited, Ellison advised that the air was coming up near the No. 8 entry and then going into the
bleeder system. Because stoppings were not in place across the mouth of the panel, the air was
coming back out to the panel where the miners were installing equipment. Tr. 127. Ex. 5.
Ellison then drew, using a pink ink marker, the air flow he just described, marking it on Ex. 5.
Tr. 127. Ellison noted that the map, GX 5, that he was marking was created after the time he
issued his citation and thus it reflects some ventilation controls which were not present when he
cited the problem. Tr. 131. He therefore added “Xs” to indicate those controls which, while
reflected on GX 5, were not in fact present when he found the violation. Tr. 132. He used a
blue asterisk to mark the intake, blue “Xs” to show the controls that were not present when he
found the violation but which are nevertheless present on GX 5. He then used a pink marker
arrows to show the airflow as he found it.
24
Ellison explained further the timing for installing controls, stating that once the mining
was completed, the ventilation plan required that the controls be installed. Therefore once the
equipment was out past where the controls should have been, the controls were to have been
built. Tr. 140.
25
That onshift report specifically mentioned that the intake needed to be extended, and
that “[a]dditional controls [were] being installed.” Tr. 83, onshift report.
26
Walker informed that the mine has since been shut down. Tr. 152.
33 FMSHRC 1284

level was good. Tr. 156-157. Walker stated that the March 16, 2009 shift exam also showed no
methane and good oxygen level. Tr. 161. These readings were taken in the No. 8 entry, the
intake entry. Tr. 162. R’s Ex. 5, an onshift report, similarly showed no methane and good
oxygen level. Tr. 167. The other reports showed essentially the same results; all the reports for
the entries showed good air and no methane. Tr. 170-177. Those reports also informed that
construction was going on. Tr. 181. Walker agreed that a move was taking place at the time
Ellison cited the mine. Tr. 183.
Referring to the equipment that was being moved, Walker stated that the miner, that is the
machine that cuts the coal, along with the cables and water line associated with it, and three
shuttle cars, are among the things that must be moved out to the new section. The roof bolter,
and its cable, the power center, all water lines, the beltline, scoop chargers, and all spare parts,
needed to be moved out. Tr. 189. Walker stated that these need to be moved before one can do
any work on “ventilation and stuff in there.”27 Tr. 185.
Thus, it was Counsel for the Respondent’s position that there still was equipment in the
area they were leaving and that the ventilation requirements cited by the inspector do not become
operative until after the equipment has all been removed. Tr. 196. However, these contentions
were overtaken by the Respondent’s conceding and paying the underlying ventilation violation.
Respondent cannot now contend that those cited conditions did not apply, as that would mean it
could relitigate the issue here. The only question at this point in time is whether the conceded
ventilation violation should have been noted in the pre-shift exam. The answer to this is found in
the preshift examination standard itself. That standard requires, among other things, that the
areas be examined for “hazardous conditions” as well as to “determine if the air is moving in its
proper direction.”

27

Walker agreed he was probably not present when the inspector wrote the violation for
the inadequate preshift exam. Tr.207. Further, when asked if he discussed the matter with the
inspector, he stated he could not remember. Tr. 208. Critically, when asked if he admitted to the
inspector that he knew that the ventilation controls had not been established, he answered, “I
might have, [then adding] I don’t know. I don’t remember.” Tr. 209. After having Walker mark
on the exhibit R 1B where spad 692 was located, the Court inquired of the witness whether
equipment was or was not still inby that location at the time the violation was cited. Tr. 218.
Walker answered that part of the beltline was still in there and some spare parts, but that was
“about all that [was] in there.” Tr. 218. Walker maintained that one couldn’t have the ventilation
controls in place because of the equipment yet to be moved. Tr. 219. Yet, despite that stance, he
could not recall protesting about the violation to the inspector when it was issued. Tr. 219.
Though he acknowledged that it would have been natural to protest the violation, given his
perspective, he was unable to provide a credible reason for that failure to speak up. Tr 219-220.
Further, the citation was issued to Walker. Tr. 224.
33 FMSHRC 1285

Although the Respondent contends that there were no hazards to list in its preshift report,
the Secretary asserts that the failure to have installed the ventilation controls28 constitutes such a
hazard, as Inspector Ellison’s gravity and negligence determinations, relating to the underlying
violations, demonstrate that the failure did constitute a hazard. Sec. Br. at 23. The Court agrees.
The Secretary also contends that the Order, No. 8082063, was significant and substantial
and constituted an unwarrantable failure. Regarding the “S&S” contention, the Secretary again
points to the testimony of the inspector, expressing his view that an accident resulting in a fatality
was reasonably likely to occur, as a consequence of the preshift failures. Those failures, that is,
the failure to identify the hazards, allowed them to continue without correction. The ventilation
shortcomings risked contamination of the intake air, as air from the bleeder was entering that air.
Therefore the risk of diminished oxygen was present. As Ellison noted, nine miners were
installing equipment inby and these shortcomings placed them at risk should a problem
develop.29
As to the high negligence, aggravated conduct, aspect of the violation, the Secretary notes
that the Commission has identified seven factors which may be considered. Sec. Br. at 26, citing
Emery Mining, 9 FMSHRC 1997 (Dec. 1987) and Peabody Coal, 14 FMSHRC 1258, 1261.
Among those factors the Secretary points out that the condition was both obvious and extensive.
Restated as the obverse, the condition was not latent at all.30 Further, as agents of mine
management, the preshift examiner’s failure to record the hazard is imputable to the Respondent.
Establishment of the violation and Penalty Determination
The violation was established and, as the underlying ventilation violation was conceded,
no material evidence was presented to demonstrate otherwise. As noted earlier, the cited
standard expressly requires an examination for hazardous conditions and it must be determined if
air is moving in its proper direction. Section 75.360(b)(3) expressly addresses the requirements,
as cited by Inspector Ellison, which the Respondent failed to meet. The final order for the failure
to follow the approved ventilation plan, and covering the same deficiencies identified as the basis
for the inadequate preshift examination, establishes the shortcomings of the preshift exam.
Accordingly, the Respondent is collaterally estopped from contesting the facts which were
resolved by its conceding the failure to follow its ventilation plan. For that reason, much of the
testimony offered through Walker was beside the point.

28

Citing Old Ben Coal Co., 7 FMSHRC 205, 209 (1985), the Secretary notes that the
underlying ventilation violation, per Citation No. 8082061, was paid and consequently the
hazards identified in that matter have been established.
29
In this regard, the Secretary cites Buck Creek Coal, 17 FMSHRC 8, 15 (Jan. 1995) for
the proposition that examination requirements are of “fundamental importance in assuring a safe
working environment underground.” Sec. Br. at 25.
30
In terms of the length of time that the hazard continued, the Secretary contends that
nine preshift and nine onshift exams failed to record the problem.
33 FMSHRC 1286

In terms of the special findings of unwarrantability and the violation’s significant and
substantial characteristic, a few preliminary observations are in order. As noted by Judge Miller
in Big Ridge, 2011 WL 1621389 (F.M.S.H.R.C.) (March 2011), “the Commission has
determined that preshift examinations are fundamental in assuring a safe work environment for
the miners,” citing Enlow Fork Mining Co., 19 FMSHRC 5, 15 (Jan. 1997 ) and Buck Creek
Coal Co., 17 FMSHRC 8, 15 (Jan. 1995). Thus, Judge Miller rejected the contention that the
lack of an adequate preshift does not create a hazard, quoting from Enlow that “[t]he preshift
examination is intended to prevent hazardous conditions from developing . . . [t]he preshift
examiner must look for all conditions that present a hazard.”
So too, Judge Bulluck observed that “[t]he purpose of the pre-shift examination is to
‘prevent loss of life and injury’ resulting from hazards at mines,” citing S. Rep. No. 91-411, at 71
(1969), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Part I Legislative
History of the Federal Coal Mine Health and Safety Act of 1969, at 183 (1975). The Judge also
observed that the “Commission has long recognized that ‘[t]he preshift examination requirement
‘is of fundamental importance in assuring a safe working environment underground,’” citing
Enlow Fork, 19 FMSHRC at 15 (quoting Buck Creek Coal Co., 17 FMSHRC 8, 15 (Jan. 1995)).
The Commission has also made clear the inherent importance of the preshift examination
for mine safety and health, describing it as “of fundamental importance in assuring a safe
working environment underground.” 17 FMSHRC 8, at * 15, 1995 WL 29274, Buck Creek Coal
Company, Inc., (January 20, 1995). There the Commission reversed an administrative law
judge’s finding that the failure to conduct a complete preshift examination and record the results
before allowing miners to enter the mine was not S&S. As summarized by Judge Zielinski in
ICG Knott County, LLC, the “Commission held [ in Buck Creek] that the violation was S&S,
even though no hazardous conditions were found upon completion of the examination. . . .
Consequently, neither the absence of hazardous conditions, nor the fact that no injuries occurred,
bar a finding that a violation was S&S.” 2011 WL 840799, (February 2011).
It is noted that the Secretary has, at various times, maintained that a failure to conduct an
adequate preshift examination is, per se, a “significant and substantial”31 violation. Although it
is not necessary to reach such a conclusion here, it may be said that the preshift exam is by its
very nature a fundamental and foundational requirement for effective mine safety. Without an
adequate preshift examination, the conditions for avoiding a preventable mine accident are
greatly diminished. Here, the admitted facts, by virtue of the Respondent’s concession to the
underlyilng ventilation violation, establish both the inadequacy of the preshift exam and its
31

A violation is “S&S” if, based on the particular facts surrounding the violation, there
exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature. Cement Div., Nat'l Gypsum Co., 3 FMSHRC 822, 825-26 (April
1981). While fundamental and foundational to effective mine safety, not every failure to conduct
an adequate preshift exam would necessarily be “S & S.” For example, the failure to include
one’s initials, assuming all other aspects of the preshift requirements were adhered to, would not
seem to justify an “S & S” designation.
33 FMSHRC 1287

significant and substantial characteristic. Ellison found the bleeder was not separated from the
intake, that ventilation controls were not in place and that several holes were present in stoppings
at multiple locations, and all of these deficiencies have been conceded by the Respondent.
Ellison testified, and the Court adopts, the inspector’s view that those deficiencies established the
third and fourth elements of Mathies.32 Accordingly, the Court concludes that the violation was
“significant and substantial.”
As noted earlier, the underlying ventilation violations described the negligence as “high.”
Ellison’s Order noted that the hazards were “obvious to the most casual observer.” With the
section foreman having ostensibly examined the area, but failing to note the deficiencies, the
unwarrantable finding is sustained.
The Secretary contends that the full penalty, as originally proposed, should be assessed
here. The other statutory criteria, such as size, ability to continue in business, and good faith are
not altered from the analysis presented regarding the roof control violation. Given its
unwarrantable failure and the gravity, as discussed above, the Secretary maintains that the
penalty it seeks is fully justified.33 The Court, finding that the special findings were justified,
agrees with the Secretary’s penalty proposal and imposes it here.

32

In Mathies Coal Co., 6 FMSHRC 1 (January 1984), the Commission set forth that in
order to establish that a violation of a mandatory safety standard is significant and substantial
under National Gypsum, the Secretary of Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard -- that is, a measure of danger to safety -
contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will
result in an injury; and (4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature.
33
Although Respondent’s Counsel believed that Walker’s testimony established
mitigating factors, the Secretary countered that, per GX 7, the mine paid the violation for the
ventilation issues along with the findings for gravity and negligence, as contained in that citation.
The Court, as previously expressed, agrees with the Secretary’s perspective; Walker’s testimony
did not mitigate the penalty.
33 FMSHRC 1288

ORDER
For the reasons set forth above, Citation No. Citation No. 6622239 is AFFIRMED and Order
No. 8082063 is AFFIRMED.
Respondent is ORDERED to pay a civil penalty in the amount of $24,496.00 for the Citation
and $9,122.00 for the Order, for a total civil penalty of $33, 618.00, within 45 days. Upon
payment of the penalty, these proceedings are dismissed.

/s/ William B. Moran
William B. Moran
Administrative Law Judge
Distribution:
Allen Kelly, Esq. and Michelle Kim, Esq., U.S. Department of Labor, Office of the Regional
Solicitor, 1100 Wilson Blvd, 22nd Floor, Arlington, VA 22209
Sam D. Madia, Esq. for the Respondent, Flaherty, Sensabaugh & Bonasso, PLLC, 200 Capitol
Street, Charleston, West Virginia 25314.
WBM/ryg

33 FMSHRC 1289

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001
Telephone 202 434-9933

May 19, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
MOUNTAIN EDGE MINING, INC.,
Respondent

:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDING
Docket No. WEVA 2009-1617
A. C. No. 46-09150-186782-01

Dorothy No. 3 Mine

DECISION AND ORDER
Appearances: Jonathan Marcus, Esq., Secretary of Labor, Office of the Solicitor, representing
the Mine Safety and Health Administration;
Eric Thomas Frye, Esq., Flaherty, Sensabaugh Bonasso, PLLC, for Respondent.
Before: Judge Moran
In this case involving one section 104 (d)(1) citation, (No. 8081161), and two section
104(d)(1) orders, (Nos. 8081168 & 8081212), the Secretary of Labor, Mine Safety and Health
Administration, (“Secretary,” or “MSHA”) alleged that Mountain Edge Mining, Inc. (“Mountain
Edge”) violated its approved roof control plan by mining at widths which exceeded its roof
control plan, as set forth in Citation 8081161, that it failed to follow its approved ventilation
plan, as set forth in Order 8081168, and that it failed to record the results of tests for methane in
any of nine working places, as set forth in Order 8081212. For the reasons which follow, the
Court affirms the citation and both orders, the special findings associated with each of them and,
based on the facts developed at the hearing, imposes an increased penalty for the 8081161 and
8081168 violations, and adopts the penalty, as originally proposed for Order 8081212.1

1

All post-hearing briefs were fully considered. Arguments not specifically addressed
were either implicitly dealt with in this decision, rejected, or considered unnecessary to
specifically address.
33 FMSHRC 1290

Findings of Fact – Conclusions of Law
Citation 8081161
Jack Hatfield, Jr., MSHA coal mine inspector testified with regard to all of the alleged
violations in this case. Inspector Hatfield’s coal mine experience is extensive, going back to
1970. Tr. 23. First addressing Citation 8081161, issued April 1, 2009 for an alleged violation of
30 C.F.R. 75.220 (a)(1), which pertains to the mine’s approved roof control plan, Hatfield was
aware that the mine’s plan allowed 18 foot mining widths. That, he noted, was unusual, as
typically such widths are 20 feet. Tr. 36-37. This was no secret, as signs were posted at the mine
reminding miners of the 18 foot width limitation. Upon entering the mine, Hatfield immediately
sensed that the widths seemed to be in excess of that limitation. Tr. 38. At that time of this
inspection Hatfield was with the mine superintendent, Ralph Tabor. Tr. 38. Upon stopping to
check his impression, Hatfield found that indeed the widths were in excess of 18 feet. Tr. 39.
On the 001 Mechanized Mining Unit, or “MMU,” Hatfield noted that the mining was nearing the
outcrop, that is, the point where the coal seam ends, as surface is reached. Hatfield stated that as
one moves towards the outcrop the likelihood of roof control problems increases. Tr. 42. At any
rate, per his citation, Hatfield used a tape measure and found that the mining widths on the 001
MMU exceeded the 18 foot width “in numerous locations and the entries and adjoining crosscuts
up on the section.” Tr. 43. He had brought maps of the mine, section prints, with him
underground and he proceeded to mark down the measurements. Hatfield marked on those
section prints the locations where he found excessive widths. Tr. 39-44, GX 4. Mr. Tabor and,
for some of the measurements, Roger Justice, held one end of tape, while Hatfield held the other
end. Significantly, in terms of reliability of his findings, Hatfield noted the measurements taken
right on the map he had with him and did so immediately upon taking each measurement. Tr. 45.
Where a measurement was not excessive, he would note “OK.” Tr. 46. Hatfield’s notations of
excessive widths were only recorded where they were greater than 5 feet long. Tr. 48-49. This is
because exceedances over the 18 feet are only a violation when they continue for more than 5
feet. Tr. 49.
Of importance to the finding of violation made here but also as to the appropriate penalty
to be imposed, Inspector Hatfield found over 50 of these violations, as reflected on his map. Tr.
51. Addressing the suggestion that a slopping roof makes it more difficult to mine precisely, and
that width exceedances are therefore unavoidable, Hatfield acknowledged that there was a grade,
but that one has to take more time in making cuts and may have to make a shorter cut under such
circumstances. Tr. 52. This approach allows one to do a good job keeping the center lines
correct. Hatfield knew that this mine had adverse roof and a history of roof falls. Tr. 53. Coal
rider seams present a problem at this mine because if one does not anchor above such a seam, the
roof may fall. Tr. 53. GX 2 represents an accident report for this mine, covering February 1,
2007 through March 6, 2009. The report reflects 12 roof fall accidents during that period. Tr.
56. Hatfield believed that number of such roof falls led to the requirement for18 foot wide
entries. Tr. 56. Whatever the origin, the 18 foot limitation did not simply materialize without a
reason.
33 FMSHRC 1291

This was later acknowledged through the testimony of Respondent’s witness, Frank
Pearson, who acts as consultant for the Respondent in a variety of areas: production, safety and
cost. Tr. 314. Pearson agreed that there was an old mine, worked out, above the Dorothy No. 3
and that the old mine is from 50 to 120 feet above it. Tr. 323. He also agreed that there were
bodies of water above the Dorothy, but asserted that they had monitored them and drained them.
Tr. 323. Of particular significance to this violation, while Pearson stated that there was no
history of roof falls in the section cited, he did concede there were undetected rider seams at this
mine and that there had been “problems.” Tr. 324. This explains the basis for the origin of the
18 foot width limitation. Further, while he expressed that sandstone was the safest top one can
have, he concluded, “all top, you know, can fall.” Tr. 325.
In his citation, Hatfield wrote that the “mine roof is primarily sandstone with areas of
slate joints, horsebacks and kettlebottoms.2” Tr. 57. The roof also had areas with a slate joint
butting up against the sandstone. This presents, he expressed, a dangerous situation, because the
slate, a horseback, will fall with little or no warning. Tr. 57. Where these conditions exist, with
the slicksided slate up against the sandstone, there is no binding between the two formations. Tr.
58. At any rate, each of these is considered to be adverse roof conditions. The presence of these
problems makes the failure to comply with the 18 foot width requirement more serious. Tr. 60.
As noted, the mine’s approved roof control plan requires that entry widths and crosscut
widths be at a maximum of 18 feet. Tr. 63. Hatfield also pointed to a number of items which
served to confirm what was not in any genuine dispute in this proceeding; this mine has long had
adverse roof conditions.3 Tr. 67.
To abate the violation, supplemental roof support, consisting of timbers, were installed.
Tr. 74. Some 215 such timbers, each of which are generally 6" by 6", were installed. Tr. 74.
Hatfield marked “reasonably likely” for the box addressing the likelihood of an injury or illness.
Tr. 81. He also marked that such injuries would be “permanently disabling,” and credibly
explained the basis for that view. Tr. 82. Similarly, he rationally explained the basis for his
marking the violation as “significant and substantial.” As to negligence, the inspector marked
that it was “high” because of the extensive nature of the violation. In his words, the excessive
widths were “everywhere.” Tr.84. Further, as noted at the outset of this decision, warnings were
everywhere that they were to mine at 18 foot widths. Tr. 84.4 The Court expressly adopts
Hatfield’s special findings as its own.

2

“Kettlebottoms” are basically coal-encrusted petrified tree stumps. They are not found
in sandstone top. Rather they are found in slate or shale tops. Tr. 58. A “horseback” is a slang
coal term, also referring to pieces of petrified wood.
3
While observing this, the Court was fully cognizant of the Respondent’s contention that
in the particular area cited the roof appeared better.
4
Hatfield noted that management people were on the section, the mine had signs posted
on the surface about the 18 foot limitation, and the approved roof control plan also expressed that
limitation. Tr. 84.
33 FMSHRC 1292

Hatfield stated that mine management admitted that there were violations. Hatfield knew
this, in part, because he asked the boss how wide they were to mine and the response was that it
was to be 18 feet. Tr. 88. Tabor and Justice, who helped Hatfield take the measurements,
admitted to him they were wide and the Court explicitly finds this to have been the case. Tr. 89.
On cross-examination, Hatfield was directed to the original of the map he used when he
took his measurements. Instead, at the hearing, Respondent was only provided with a copy of the
map, which is Exhibit 4. Respondent’s Counsel’s complaint was that the original map was not
provided to it, despite having made a FOIA request. Tr. 173. Any FOIA failure was not
Hatfield’s doing. Nor did Respondent show it suffered any disadvantage from the omission.
Moving to Hatfield’s measurements, it is sufficient to note that cross-examination did
nothing to diminish the accuracy of the inspector’s findings. Hatfield acknowledged that he had
no actual knowledge of whether there were rider seams within 10 feet of the cited area. Tr. 178.
He also acknowledged that he saw no roof falls, rib sloughage. Tr. 179. In terms of “kettle
bottoms,” which he agreed is the root base of an ancient tree, it was Hatfield’s position that, by
mining too wide, a kettle bottom could fall out. Tr. 181. Supplemental roof support is required if
one encounters a kettle bottom. Although the inspector had never seen kettle bottoms in
sandstone, he noted that the mine’s top was not all sandstone. Tr. 183. Hatfield did not know
whether the current roof control plan (as opposed to the plan in effect at the time when he made
the inspection relating to this case) calls for 20 foot openings where sandstone is encountered.
Tr. 184. Such issues are not relevant here anyway.
On his map Hatfield did record measurements greater than 20 feet wide. Tr. 185-186.
As part of his actions concerning this matter, Hatfield did speak with the continuous miner
operator, inquiring why he was cutting wide. Tr. 189. However, no explanation was offered. He
advised the continuous miner operator that he needed to “take his time more.” Tr. 190. Hatfield
maintained that the condition was obvious in that, if one had sufficient experience, one could
“eyeball” it, as he obviously did, and tell right away that it was wide. Tr. 194.
Respondent’s witness Ralph E. Tabor, who is currently a foreman for Hanover Resources,
was in April 2009 the mine superintendent for Mountain Edge. Tr. 232. He stated that he wrote
down the measurements on a map but that his measurements were not recorded on GX 4.
Instead, Tabor stated that he recorded the measurements on GX 5. Tr. 235. A review of GX 5,
especially when compared with Hatfield’s numbers on GX 4, reveals that the former is not useful
and primarily serves as a defensive exhibit by prominently asserting that there is a steep slope,
causing everything to slide to the right. Although Tabor stated that most of the exceedances were
less than 19 feet and he could not “recall” if any were as wide as 20 feet. Tr. 236. Tabor, who
held one end of tape, did not hold the end that reflected the widths found. Tr. 238. After a
measurement was taken, Tabor would mark “how many timbers it would take to take care of the
wide spot.” Tr. 238. Though he had been to the area earlier that day, he did not notice any wide
spots. Tr. 239. Tabor maintained that as they were advancing the entry they were moving
downhill and that this made it more difficult to keep within the 18 foot width limit. Tr. 244. As
to the number of timbers that actually had to be set to abate the condition, Tabor stated he did not
33 FMSHRC 1293

know, as he “didn’t count them,” although the number 215 appears on GX 5 beside the
description “Total Timbers.” Tr. 240.
Accordingly, consistent with the Court’s credibility determination, above, it is found that
in critical aspects, Tabor’s testimony must be discounted. He held the non-measuring side of the
tape, he could not recall if areas were as wide as 20 feet, and he didn’t count how many timbers
had to be installed. Even Tabor admitted the widths were over 18 feet, “we [Hatfield and Tabor]
measured across the section and all these wide places.” Tr. 241-243. (emphasis added).
Respondent also called Frank Pearson on this violation. He acts as consultant for the
Respondent in a variety of areas: production, safety and cost. Tr. 314. When asked if he had
been to the cited wide area, he responded that he had, describing it as “basically not wide.” Tr.
316. His view was that one can’t “mine anywhere without cutting a wide place here or there.”
Tr. 316. As with Tabor, he too maintained that due to slants in the road, it was real hard to
maintain straight entries. Although he agreed that journeymen roof bolters would know if an
entry was wide as they did their job, no roof bolters complained to him that the area was wide.
Tr. 320. He also stated that the roof was then and remains today, standing, with no problems.
Tr. 321. Critically, Pearson conceded that he was not present on the day the citation was issued,
but rather visited that area a day or two later. Tr. 338. Thus he agreed he was not there to see
what Hatfield observed at the time the citations were issued. He also agreed that, while the
slope presented compliance issues, it did not make it impossible to comply with the roof control
plan in the area cited. Tr. 340. Incredibly, Pearson expressed that a wide place “here or there”
could mean 50 times in adverse conditions. Tr. 340. It must be said that Pearson’s testimony did
not advance the Respondent’s defense.
On cross-examination, Tabor, who earlier had stated that he took notes regarding these
issues, could not produce them, stating that “I’d say when I cleaned out my desk I throwed them
away.” Tr. 257. As to whether Hatfield had a map with him, Tabor admitted that he did not
know if Hatfield had a map in his front pocket. Tr. 258. Further, Tabor admitted that he wasn’t
there for all the measurements but that Roger Justice took over for part of the measurements. Tr.
258. Nevertheless, Tabor insisted that Hatfield’s measurements were incorrect. As one example,
he offered up that by adding only 5 timbers at one location, it could not have been 19 feet wide
for the entire 80 foot area. Tr. 260. In sum, Tabor stated that he recalled no 20 foot
measurements and only “some” that were 19 feet. Tr. 262-263. He did recall one at 19.6 feet.
Tr. 263. The Court did not find Tabor particularly credible.
Accordingly, regarding Citation 8081161, the Secretary clearly established the violation.
Just as clearly, this violation was significant and substantial, unwarrantable, and the enhanced
penalty sought by the Secretary is appropriate. Here, the violation occurred in the context of an
abject failure to follow the roof control plan in 52 separate places, where the maximum mining
entry width exceeded 18 feet. This was done despite the mine’s own obvious reminders to itself
to not exceed the 18 foot limitation, as Hatfield observed.

33 FMSHRC 1294

As to the “S & S” aspect, the record supports the conclusion that there was a discrete
safety hazard, a measure of danger to safety, contributed to by the violation because per force
exceeding the maximum width increased the likelihood of a roof fall. To conclude otherwise
would mean that the maximum width requirement was meaningless, a mere number inserted in
the plan. But that number did not come out of the blue, it arose as a result of roof control
problems at this mine. As to the twin “reasonable likelihoods” required by the Mathies decision,
it was shown that there was a reasonable likelihood that the hazard will result in an injury both
because the exceedances were present and because of the other factors, described by Hatfield, in
this section. This included the risk of slate joint, kettle bottoms, horsebacks and the fact that
mining was progressing toward the surface. The other “reasonable likelihood” element was also
established and can hardly be disputed. Roof falls, by their nature, often carry the risk of
permanently disabling injuries. All it takes is a person being in the wrong place at the wrong
time. Here, miners were exposed to the risks resulting from the wide spaces.
Addressing the unwarrantable claim, ofttimes described as high negligence or aggravated
conduct, constituting more than ordinary negligence and showing indifference or a serious lack
of reasonable care, the Court finds that the violation did involve unwarrantable failure on the
Respondent’s part. In this regard it bears repeating that Inspector Hatfield found the
exceedances in 52 locations. That, by itself, establishes an unwarrantable failure. Beyond that,
though unnecessary, the mine knew of both the history of its roof control problems and the
resultant requirement for the 18 foot width limitation. Further, there was a disconcerting tone
presented by the Respondent’s witnesses that, either they didn’t notice the problem, though
immediately obvious to Hatfield, or that complying with the plan was difficult and that, at least
in Pearson’s view, 50 such exceedances was just part of mining where adverse conditions exist.
Exercising its authority to impose an appropriate penalty, either lowering, raising, or
accepting the originally proposed amount, the Court here agrees that the $70,000.00 now
proposed by the Secretary is justified. This enhanced penalty is justified both by the extent of the
large number of violations and by the Court’s assessment of the low credibility of the
Respondent’s witnesses in this regard. The unwarrantability finding, next above, also justifies
the increased penalty. Further, as pointed out by the Secretary, the original assessment made no
distinction between a single width exceedance and the 52 found here. Thus, based on the
negligence involved, the inherent gravity associated with roof control violations, the fact this
mine had a history that required it to mine at 18 foot widths, instead of the more usual 20 foot
widths, the penalty imposed is appropriate. The size of the operator, with the Dorothy No. 3
being a medium to large mine and Mountain Edge itself a large operator, coupled with its history
of roof falls, (GX 2, Tr. 57-61 and 81-82), do not operate to reduce this amount. While the
violation was, upon being cited, abated in good faith, and as the penalty will not effect its ability
to continue in business, neither of those factors operate to reduce the penalty imposed here.
Order 8081168
Turning to Order 8081168, issued April 2, 2009, Inspector Hatfield cited the mine for a
violation of 30 CFR 75.370(e). Tr. 92, GX 1. That standard requires workers to be advised as to
33 FMSHRC 1295

changes in ventilation plans.5 The inspector noted that the mine was on a reduced standard
because of the presence of quartz.6 Continuing with his earlier reference that he had previously
discussed the insufficient air with the foreman, Hatfield related that the section foreman told him
they had 3,000 cfm.7 Tr. 107. While the foreman showed Hatfield his notes reflecting the 3,000
cfm, Hatfield advised that the requirement was in fact for 4,500 cfm, which amount is
considerably more. Tr. 108. Hatfield also determined that the miners had no idea how much air
they were supposed to have behind the end of the line curtain. Tr. 109. More importantly, mine
management people did not know about the minimum requirements under the ventilation plan.
Tr. 110.
GX 8 reflects the approved methane/dust control plan for the 002 MMU. It is dated
December 23, 2008 and it was in effect at the time the citations were issued and it reflects that
the Plan requires that the CFM is to be at least 4,500.8 Tr. 116-117.
5

In the context of the alleged violation reflected by Order 8081168, GX 9 includes within
it a section 104(a) citation, Citation 8081159, for an alleged violation of 30 C.F.R. 75.370(a)(1),
issued the day prior to that Order 8081168, on April 1, 2009. Tr. 93. That citation, issued for
MMU 1, was for a failure to follow the ventilation plan in that there was insufficient air velocity.
The next day, Hatfield issued Citation 8081166, for another alleged violation of 30 CFR
75.370(a)(1), involving a violation of the mine’s approved ventilation plan for methane and dust
control. This was cited at MMU 002, the mine’s other section. For that citation Hatfield
observed visible dust where the roof bolt crew was working in the No. 2 heading. Tr. 97. Upon
taking an air reading behind the end of the line curtain, he found there was insufficient air. He
measured it at 1,908 cfm and the plan required 4,500. Tr. 97-98, 105. Hatfield spoke to section
foreman Tim Shrewsberry about this and was advised that they were going to get to that. Tr. 98,
114. The foreman is supposed to know about the methane and dust control plan’s requirements.
Tr. 114. Yet, both Shrewsberry and the superintendent, Ralph Tabor, seemed to not know about
the correct, that is to say, the minimum required amount under the plan. Tr. 115. While GX 7,
which was attempted to be included in the evidentiary record, reflects a citation Hatfield issued
to Ralph Tabor on April 2, 2009, shortly after he had issued 8081166, that Exhibit was not
admitted because the matter is still in dispute. Tr. 105. However, Citation 8081166, GX 9, noted
above, was admitted.
6
As alluded to in the earlier discussion of the excessive mining width violation, the
Dorothy 3 is underneath Big Mountain 16. There is only about 90 feet separating the two. Big
Mountain 16 has a lot of water in it and Hatfield advised that this can be a source for trapping
methane. Tr. 119.
7
As noted, Hatfield’s measurements were decidedly less than the foreman’s reading as he
found only 1908 cfm. Tr. 111. Hatfield however did not contend that the foreman’s reading was
inaccurate. Differences in the anemometer used and the recency of its calibration can account for
this. Tr. 112. A line curtain coming down can also be a source for accounting the different
readings. Tr. 113.
8
Note that GX 8, in the official record, is several pages long but that a blue divider sheet
was apparently inadvertently added by the reporter. Thus, although the divider is present, the
exhibit continues after that first page.
33 FMSHRC 1296

Referring back to GX 1, Hatfield agreed that it reflects that the MMU is on a reduced
standard of .9 mgm3 because of the presence of quartz. Tr. 120. Where quartz is present, miners
need to be exposed to much less dust because of the risk of silicosis. Hatfield could see dust in
the air at that location. Tr. 121. The Court expressly finds that Hatfield’s testimony was in fact
the case; he did observe such dust. There is also no dispute that quartz is present with the dust at
this mine. His visual observations prompted him to take a reading at the line curtain and the
results showed that the miners were not getting sufficient air.9 Tr. 122. Thus, the reading
confirmed what he had visually observed. Tr. 122. To Hatfield’s consternation, the supervisors
did not know the correct air requirement. Tr. 122. Hatfield’s position was that management is
held to a higher standard than the crew and accordingly that they should know the air
requirements. Tr. 124. The Court agrees. Hatfield also expressed that the crew should know
what the air requirements are too, but they have to rely upon management to correctly advise
them of those requirements. Here, no one volunteered the correct information.10 Tr. 124. It was
management’s lack of knowledge of the ventilation requirements that caused Hatfield to deem
the violation as unwarrantable. Tr. 139.
Hatfield marked the gravity for 8081168 as “reasonably likely” for injury or illness
because he believed that exposure to this dust made it of such likelihood that the miners would
contract silicosis or “black lung.” Tr. 128. He also marked the violation as “significant and
substantial” because he believed it to be reasonably likely that there would be serious illness
from such dust exposure.11 Tr. 130. Even apart from the presence of quartz, Hatfield still would
have marked the violation as S & S because, while perhaps not permanently disabling, such dust
exposures could still lead to lost workdays. Tr. 132. He felt the negligence was appropriately
marked as “high” because management people did not know what the air requirements were. Tr.
132.
Directed to GX 10, copies of 5000-23 forms, which forms relate to employee training,
such forms are to reflect annual training given to certain individuals. However, those forms do
not reflect that those listed individuals were trained in methane and dust control. Those subjects
are to be part of such annual training.12 Tr. 135.
Regarding the training requirement identified in the citation, Hatfield stated that
Shrewsbury and Tabor were present when he asked questions about the training.13 Tr. 197.
9

Later, one of the crew told Hatfield that the air was chronically insufficient. Tr. 127.
To his credit, Superintendent Tabor did apologize to the crew for not knowing the
correct requirements and for failing to review the particulars of the ventilation plan with them.
11
Six (6) miners were exposed to the dust conditons.
12
David Crone III, a roof bolter, and Jason Atkins were the individuals listed. It was
Crone who advised Hatfield that his boss had told him they were getting sufficient air. Tr. 138.
13
Respondent’s counsel tried to make inroads in this area, inquiring if Hatfield actually
attended the miners’ training, knew what was covered in the refresher training, or whether he
asked for their training forms. Although Hatfield answered in the negative to each of the
33 FMSHRC 1297
10

Tabor, referring to this dealing with ventilation and the crew’s lack of awareness as to the
required amount of air, stated he was not present for this issue. Tr. 247. However, he
maintained that the men were trained on the ventilation plan.14 Tr. 247. Significantly, Tabor
could not recall what the required CFM was for the section. Tr. 248.
Tabor having affirmed that he was not present when Hatfield issued that Order,
necessarily agreed to not knowing about any conversations between Hatfield and those at the
scene when the Order was issued. Tr. 265. While Tabor insisted that he did know how much air
was required under the plan, when asked if he told Hatfield what that amount was, he responded,
“I don’t remember telling him that. I could have. I don’t remember.” Tr. 266. Thus, in critical
areas of his testimony, Tabor’s memory failed him.
Shown Ex 8, Tabor agreed that the methane and dust control plan requires 4500 cfm.
Despite agreeing that this was readily discernable, Tabor still maintained that members of the
crew had difficulty interpreting the plan because they didn’t know of the requirement. Tr. 268.
Shown Ex 10, the 500-23 forms, for David Crone and Jason Atkins, which reflect that those men
had training in the provisions of the form, Tabor agreed those forms reflected such training. Tr.
269. As for foreman Tim Shrewsbury, Tabor had “no idea” where his training certificate form
was. Again, the Court views the attempt, insufficient as it was, to show that miners had received
training on this issue, as missing the point. Thus, this information serves only to distract and is
not considered to be a mitigating factor in any sense, both because of its insufficiency and
because it was ineffective if it is assumed that all were so trained. The key here is that no one
knew at the time of the citation being issued how much air was required.15
questions, he reminded that it isn’t simply about conducting such training but that, as plans
change, the miners need to be informed about those changes too. Tr. 197. Here, it was clearly
established that the miners had no idea about the required amount of air.
14
Tabor attempted to draw a distinction in the apology he made to Hatfield, asserting that
he apologized for misinterpreting or misunderstanding the ventilation plan, but he maintained his
apology did not speak to any alleged lack of training on the plan, as he asserted that the miners
were trained. Trained or not, it is not necessary to resolve that issue for this Order. However, it
would be fair to comment that, if it did occur, the effectiveness of it was wanting.
15
Because the following is deemed to be more of the same distraction and not considered
to be mitigating, this has been footnoted: David Justice, mine superintendent at Mountain Edge,
was also called by the Respondent. Tr. 273. At the time of these citations he was the mine
foreman. Tr. 274. Referring the witness to citation 8081168, GX 1, Justice disagreed that the
mine had failed to give the men proper instruction regarding the ventilation plan. Tr. 275.
Justice stated that he had trained the men on the plan in February of that year. Justice also
affirmed that Ex 8 reflects what he trained the men about at the annual refresher. All employees
received this training. Tr. 276. He took offense at the citation because, to him, it implied that
no one was listening to him during the training. On cross-examination, Justice agreed that the
records at the hearing only reflected that Crone and Atkins were trained, at least based on the
certificates of training that were presented. Tr. 278. In response to questions from the Court,
Justice stated that the training lasts about an hour and that about 25 to 30 miners are in
33 FMSHRC 1298

Hatfield repeated that, upon asking the miners if they had been instructed on their plan,
with management people present at that time, he then issued his order, shutting down the section
and establishing a meeting concerning the ventilation requirements. Tr. 200. He noted that no
one from management protested that action; no one asserted that they had all their training and
knew the requirements. To the contrary, noting that, Hatfield stated that management’s reaction
to his order was “almost apologetic,” he concluded that it was clear that management had not
instructed the men about the plan.16 Tr. 200.
Respondent’s counsel did establish that Hatfield’s notes do not record that he observed
visible dust in the section. Tr. 202-203. His order did not state that either. Hatfield agreed that
MSHA’s instruction to its inspectors is to record such observations, but that this policy did not
come into effect until after the citation in issue here. Tr. 204. While he couldn’t state how long
the miners on the section had been exposed to excessive dust, he did note that he was in the
process of making an imminent danger run when he observed the problem. As evidence of the
gravity of the situation, Hatfield decided to stop his imminent danger run and speak to the roof
bolter right then. Tr. 205. While Hatfield did not know how long it takes before adverse
consequences may occur to a miner from exposure to silica, that hardly diminishes the gravity
involved. Any exposure to such dust, or respirable dust without silica for that matter, is a serious
attendance. Tr. 282-283. However, he stated that, though he gives the training, he doesn’t fill out
the form for everyone who is trained, although he signs it. At any rate, he agreed that in the
course of a year, as there are four different classes in a year, there would be on the order of at
least a 100 such forms per year. Tr. 284. These forms then are kept as mine records in its files.
Counsel for the government stated that it tried to reach these records, but only received the two
forms presented at the hearing. Tr. 285. That is indeed the case, evidentiary-wise. Although
Counsel for the Respondent stated that it was under the impression that the government only
sought such records from the two individuals, Crone and Atkins, it is hard to understand why the
Respondent would not have provided all the records anyway, as it apparently did view this
information as helpful to its stance. Tr. 286. For the same reasons, Respondent’s testimony
from David L. Crone III, a roof bolter who was also performing that same task back in April
2009 at the mine, was not illuminating to the issues, nor otherwise informative. Tr. 289. Crone
stated that he had been trained as to the ventilation plan in April 2009, but he could not recall the
date of his training. Tr. 290. He also identified Ex 10 as his training form for his 2009 annual
refresher training. Tr. 291. However he could not recall being asked by Inspector Hatfield about
the ventilation plan in April 2009, nor could he recall other aspects of any conversation between
them, stating that Mr. Hatfield does not talk a lot. Tr. 294. The Court did not find this witness to
be especially credible.
16
Respondent’s counsel suggested that perhaps the inspector had intimidated everyone
and that they were reticent to speak up and challenge his actions. However, Hatfield rebutted this
claim, noting that he knew David Crone, as well as his father and his grandfather and that having
worked with all of them, there could be no element of shyness to speak up, had a counter claim
been credible. Tr. 201. Instead, when he asked the youngest David Crone, if he knew how
much air they were supposed to have, his response to Hatfield was that “the boss told me we had
enough, Jack.” Tr. 201. The Court finds that this response was made.
33 FMSHRC 1299

matter. MSHA cannot be at every section of every mine 24/7. Thus, even an incremental step
down the road to respiratory disease must be taken very seriously.
Clearly the violation was established here. Individuals simply didn’t know what was
required, had it wrong, or were advised they had enough air. No documentation contradicts this
conclusion. Even if it is assumed, for the sake of argument only, that training was given, it was
manifestly ineffective. The section involved requires that before implementing an approved
ventilation or a revision to a ventilation plan, persons affected by the revision shall be instructed
by the operator in its provisions. This requirement necessarily carries with it the requirement that
miners be adequately and effectively trained by such instruction. Secretary of Labor v. Western
Fuels-Utah, Inc., 900 F.2d 318, 32017 (D.C. Cir. 1990) and RAG v. Cumberland Resources LP,
26 FMSHRC 639, 647 (Aug. 2004). 18
This violation was significant and substantial. Again, applying the second element of
Mathies, the first having been discussed, a discrete safety hazard was demonstrated by virtue of
the foreman and crew’s ignorance of the ventilation plan’s requirement. This apparently
prompted them to continue working away despite the presence of visible dust, at less than half
the required amount of air and in a dust made more treacherous by its quartz content. So too, as
for the twin “reasonable likelihoods” required by the Mathies decision, it was shown that there
was a reasonable likelihood that the hazard will result in an injury. Even if the dust had no
quartz, Congress’s concern fully reaches coal dust without that additional grave characteristic. It
is obvious that working in conditions of visible coal dust is adverse to one’s health. Further,
even short term lung problems from such exposure such as bronchitis or inflammation are serious
injuries to one’s health.
The violation was also unwarrantable. As the Secretary points out, the conditions present
here, as exacerbated by the presence of quartz in the dust, required a higher standard of care on
the mine operator’s part. Sealing the finding of unwarrantability here, supervisory people were
present yet ostensibly ignorant of the amount of air required under the approved plan. In the

17

The full quote from the D.C. Circuit stated that “Section 115(a) of the Mine Act is
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 mines. 43
Fed.Reg. 47,454 (October 13, 1978). Indeed, Congress considered training to be of such great
importance that it specifically empowered inspectors to withdraw untrained miners from the
mines and to prohibit their reentry until they received proper training. 30 U.S.C. § 814(g).” 900
F.2d at 320.
18
Although RAG v. Cumberland Resources LP, dealt with a bleeder ventilation, the
principle is fully applicable that whether it be a system or training, to have meaning they must be
effective. Accordingly the absence of the literal word that a system or training be effective is no
barrier. Following the analogy presented by RAG if such reasoning were adopted then any
training, however useless, would pass muster and as the Commission has expressed it, lead to an
“absurd result.”
33 FMSHRC 1300

Court’s view, the roof bolter’s statement to Inspector Hatfield that the miners “never have any air
in this place,” a remark which the Court finds was made to the Inspector, was telling.
Given the entirety of the circumstances disclosed during the course of the hearing and the
Court’s findings regarding the collective absence of knowledge of the amount of air required,
when coupled with Congress’ long-standing deep concern about chronic lung diseases acquired
by those in the occupation of coal mining, the Court agrees that, in these circumstances the
enhanced penalty proposed now by the Secretary should be and is adopted here in the sum of
$54,732.00. None of the other statutory factors, each of which have been considered, operate to
reduce that amount.
Order 8081212
Last, Hatfield was asked about his Order, number 8081212, issued April 20, 2009, in
which he cited a violation of 30 CFR 75.360(f). Tr. 141. That standard requires that results of
examinations are to be recorded in a book on the surface. Tr. 142. In order to have been in
compliance for this violation of Section 75.360, the operator should have not simply written for
hazards, “none observed” for the Number 1 heading, but rather should have included the methane
readings and the air quality readings for the working places. Tr. 164.
GX 12, dealing with Citation 8081200, issued April 17, 2009 was issued because the
book similarly did not reflect any methane concentrations. Tr. 144. Citation No. 8081206,
issued April 18, 2009, also cited 30 CFR 75.360(f). This was attributable to the lack of a record
of examinations to the approaches of the abandoned panel with AMP’s19 No. 1, 2 and 3. Tr. 145.
Intake air passes these approaches and ventilates the working place. Tr. 145. These areas are
required to be preshifted and the results recorded. The same was true for Citation 8081207, also
involving a violation of 30 CFR 75.360(f). The distinction is that they relate to different record
books and different areas of the mine. Tr. 146. These approaches, as they still bring intake air,
are to be preshifted three hours before workers go underground. Tr. 147. Although Counsel for
the Respondent belatedly advised that these citations were being challenged, they were admitted
for a limited purpose. Tr. 149. This ruling came about because Counsel for the Secretary’s
restricted purpose for their admission was to show that the operator was put on heightened alert
as a result of their issuance. That is, that they were advised about the requirements for
examinations and the proper recording of their results. Thus, the Court can take notice of these
because the notice aspect for which they are being offered is not dependent upon whether those
citations are ultimately affirmed or not. Tr. 151.
With that predicate, Hatfield believed that, as he kept finding the same type of violation,
that the mine seemed to be taking a “cavalier attitude” about the requirements. Tr. 152. Thus, he
19

“AMPs” refers to air measurement points, for air going in. Tr. 155. “Eps” refers to
evaluation points for air going out. Tr. 155.
33 FMSHRC 1301

was advising them that with the repeated nature of these violations, the negligence attributable to
them was going to be higher with future failures of its obligation to both make and then record
the examinations regarding air quality. Tr. 153. In fact, Inspector Hatfield spoke to Roger
Justice and Ralph Tabor about this very issue. Tr. 154.
The relevance of this warning is displayed with Order 8081212, issued April 20, 2009,
because that was only two days after the heightened alert warning. Tr. 155. For this violation
Hatfield noted that the preshift would have been made for the 002 MMU on the day shift and that
no record of methane readings were taken for nine working places. Tr. 156. This finding
prompted him to order that the miners be pulled from the face until the methane readings were
taken and recorded. Tr. 157. While no methane was found, the presence of methane can develop
at any time; methane is endemic to coal mines. Hatfield’s notes for this violation are found
within GX 1 for the April 20, 2009 inspection, at page 8. Tr. 158-159. No methane record was
reflected in the books.20 Tr. 159. The methane readings and the air quality readings should have
been recorded.21
Importantly, Hatfield reiterated that he had previously spoken to management, that is
prior to April 20th, about their failure to properly keep the record books. Tr. 162. That is his
practice when he issues a citation; he talks to the mine representative about the standard for
which he has issued a citation and its requirements. Tr. 163, 165. Hatfield listed the gravity as
unlikely because the violation was for failure to make the record, and he could not state that the
company did not take a reading, (or that they did). What he could determine was that no record
was made. Tr. 167. Hatfield did feel that lost workdays was the appropriate description because
if there was an accumulation of methane there could be a “pop” resulting in burns. Tr. 167.
Still, focusing upon the recordkeeping aspect, he did not list the violation as “significant and
substantial.” Tr. 167. However, those findings did not dissuade Hatfield from listing the
negligence as “high” nor from issuing his D order. He noted, correctly, that a non-S&S finding
and unwarrantability are not mutually exclusive. Tr. 168.

20

Marty Deck was the individual who made the preshift exam on the 002 on that day.
Frank Pearson was the individual who took the call from Deck and wrote down the results. Tr.
160-161. Pearson was described by Hatfield as the “general manager” or “head boss” at the
mine. Tr. 161.
21
Hatfield pointed to other instances where the correct information was recorded, noting
an instance where it reflected “zero percent methane” and 20.8 percent oxygen. Tr. 164. Thus,
merely recording “NO” for “none observed” is insufficient. Tr. 165.
33 FMSHRC 1302

Respondent then turned to its Exhibits, marked for identification as 2 and 3.22 Inspector
Hatfield identified R’s Ex. 2 as the preshift exam for a citation in issue, number 8081212.
Regarding Hatfield’s notes for that, Hatfield stated that he does not recall speaking personally to
Mr. Pearson or Mr. Deck, but that he had been told by Ralph and Roger that issues regarding
citations are brought to Mr. Pearson. Tr. 213. Hatfield was next asked about GX 12, and upon
reviewing it, stated that he did not know if Pearson or Deck had received additional training. Tr.
216. On redirect, Hatfield stated that he had never seen any certificates of training for anyone on
the crew nor for foremen, with respect to the methane and dust control violations involved in this
litigation. Tr. 225. Instead, all he was given were copies of 5000-23s, which deal with refresher
training. Tr. 225. While the belt line is distinguishable from the working face, it is still an area
of the mine where people normally work or travel, so it is an active area and must be preshifted.
Tr. 216. The same statement applies to the man trip roadway. Tr. 216-217. As for abandoned
panels, which Hatfield noted in his citation for 1206, there is a requirement to preshift three
hours before men come to that section if intake air passes such abandoned works and is used to
ventilate the working section. Tr. 217. Hatfield agreed that the missing element from the
preshift, which caused the citation to be issued, was the failure to record the methane reading
results. Tr. 218. No methane was found when the reading was taken to abate the citation. Tr.
219. Methane readings were taken during the on-shift.
To comply with standard he cited, Hatfield had the mine conduct a training class to
ensure that the examiners are filling out the books correctly. Tr. 225. The essential problem here
was that when the section foreman for the oncoming shift would review the books for hazards,
there was no listing for methane. Accordingly that person would not know if they found methane
or not. Tr. 227.
Marty Deck was called as a witness for the Respondent. Deck is an electrician at the
mine and held the same position back in April 2009. Tr. 302. He was also shown GX 1,
pertaining to Citation 8081212. While Deck did not have his glasses on the day of testimony,
and needed them, nevertheless he knew that the citation was issued because he failed to record
the methane reading. Tr. 304. On cross-examination, when shown R’s Ex. 2, he agreed that
Roger Justice’s initials were recorded there. This meant that Justice filled out the form for him.
Deck stated that, as he rarely filled out such forms, both Justice and and Frank Pearson helped
him complete the form. Tr. 309-310. Yet, Deck stated that he is part of mine management. Tr.
310.

22

As the Court’s copy had no numbers on those exhibits, these were initially identified by
counsel as exhibit 2 which lists “4/20/09, First Right” at the top of the page. Tr. 207. R’s Ex. 1,
a voluminous FOIA report, was not admitted after all because the Respondent agreed that its sole
purpose was to show that Hatfield’s map was not included in the FOIA response, as a basis to
impeach the credibility of the map. The Court accepted R’s Counsel’s representation that the
map was not so included. As it turned out R’s Ex. 3 was never brought up during counsel’s cross
exam, so it was never offered into evidence. Tr. 223.
33 FMSHRC 1303

Witness Frank Pearson, at the time of the citations in issue here, had responsibilities then
which were the same as presently. That is, to consult on any problems the mine may have in a
wide number of matters. These include production, safety, human resources and equipment. Tr.
334. He admitted that he was a part of mine management, at least loosely speaking. Tr. 334
335. He believed it was more accurate to describe his role as one of oversight. Tr. 335. Pearson
was asked about Order No. 8081212. For this, he denied that Jack Hatfield ever told him to
make sure the preshift book was correctly filled out. Tr. 326. Usually he does not fill out such
books but on this day, he filled in and took the report in issue. Tr. 326. In this instance he took
the “call out” on the phone, scribbled the information down. Then, after others provide their
information, it is entered in the preshift examiner book. Tr. 327, and referring to R’s Ex. 2, the
preshift examiner’s book. He took the report and he was the one who entered the information.
He admitted that he failed to fill out “that top part.” Tr. 327. While admitting this failure, he
added that it used to be that one did not have to include such information. Tr. 328.
On cross-examination, Pearson admitted that he was not a novice to mining, having been
vice-president of Trinity Coal and with the operations of six mines. Tr. 333. Amazingly, despite
stating that he has had 38 years of coal mining experience, Pearson stated that in that entire
experience he has never been privy to knowing of an MSHA inspector telling an operator to be
on heightened alert, nor of even being warned not to violate a standard again. Tr. 348.
Although the violation identified in Order No. 8081212 was established, the Court
concludes that, in the entire context, were it not for the fact that the Respondent had been warned
about the requirement to record methane levels and that the failure was brought about by one
who was clearly part of management, it might have been tempted to find a lesser degree of
negligence than that advocated by the Secretary. Again, whether those prior citations were
established or conceded or otherwise disposed of, it is the fact of prior warnings about this
problem, not how they were resolved, that is critical. Thus, given the failure by management
coupled with the warnings to adhere to the very requirement cited, high negligence, aggravated
conduct, and consequently the designation of unwarrantability is inescapable.
Despite the foregoing, contrary to the Secretary’s urging, the Court concludes here that, in
the complete context, a higher penalty is not appropriate. Hatfield noted that the likelihood was
“unlikely” as he described the violation as a “recordkeeping” violation. Tr. 221. That does not
mean that the violation should not be considered to be of minimal consequence because, as
Inspector Hatfield expressed it, his “concern with that mine, once again, was the amount of water
up - - entrapped overhead in the Big Mountain 16. And these hilltop mines, they’re apt to
encounter methane and blow up.” Tr. 221. Along with that concern, he expressed that, although
the failure to record a methane reading would not, by itself, make an injury likely to occur, one
can encounter methane at any time and therefore designating the violation as having “no
likelihood” would be an understatement. Tr. 221-222. However, Hatfield was not contending
that the omission was intentional, but rather that it was “high negligence” because of the number
of citations that he had served on mine management on this matter. Noting that the violation was
not designated as significant and substantial, even considering its unwarrantable nature, the
penalty does not deserve to be increased.
33 FMSHRC 1304

ORDER
The section 104 (d)(1) citation, No. 8081161, and the two section 104(d)(1) orders, Nos.
8081168 & 8081212, are hereby affirmed. Each of the special findings included with the citation
and the orders are affirmed. Respondent, Mountain Edge Mining, Inc., is directed to pay within
40 days of the date of this decision, civil penalties as follows: $70,000.00 for Citation No.
8081161, $54,732.00 for Order No. 8081168, and $2,341.00 for Order No. 8081212. Upon
payment of the penalty, totaling $127,073.00, these proceedings are DISMISSED.

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

Distribution:
Jonathan D. Marcus, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson
Boulevard, 22nd Floor West, Arlington, VA 22209-2247. (Certified Mail)
Eric T. Frye, Esq., Flaherty Sensabaugh Bonasso PLLC, 200 Capitol Street, Charleston, WV
25338-3843. (Certified Mail)

33 FMSHRC 1305

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
7 PARKWAY CENTER
875 GREEN TREE ROAD, SUITE 290
PITTSBURGH, PA 15220
TELEPHONE: (412)920-7240
FAX:(412) 928-8689

May 20, 2011
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BIG RIDGE, INC.,
Contestant
v.
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Respondent
PEABODY MIDWEST MINING LLC,
Contestant,
v.
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Respondent

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CONTEST PROCEEDINGS
Docket No. LAKE 2011-116-R
Citation No. 6670850; 11/09/2010
Docket No. LAKE 2011-117-R
Order No. 6670851; 11/09/2010
Mine: Willow Lake Portal
Mine ID: 11-03054
CONTEST PROCEEDINGS
Docket No. LAKE 2011-118-R
Citation No. 6670852; 11/09/2010
Docket No. LAKE 2011-119-R
Order No. 6670853; 11/09/2010
Mine: Air Quality #1 Mine
Mine ID: 12-02010

DECISION
Appearances: Daniel W. Wolff, Esq., Crowell & Moring, LLP, Washington, District of
Columbia for Peabody Midwest Mining LLC
Samuel Charles Lord, Esq., Office of the Solicitor, U.S. Department of Labor, Arlington,
Virginia for the Secretary of Labor
Before: Judge Andrews
These cases arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801
et seq. (“the Act”).

33 FMSHRC 1306

These cases are before me upon Notices of Contest filed by the Contestants on November
11, 2010. Although the notices informally requested an expedited hearing, a separate formal
motion for expedited proceedings under section 2700.52 of the Commission Rules was also filed
on November 12, 2010. The motion was granted on November 24, 2010.
The Order of November 24, 2010, also consolidated Docket Nos. Lake 2011-116-R, 117
R, 118-R, and 119-R, involving two mines controlled by Peabody Energy (Peabody”). The
hearing on these Dockets was held in Jeffersonville, Indiana, on December 14, 2010.
By agreement of all parties, additional Part 50 audit contest cases involving mines
controlled by Massey Energy Company were heard in Charleston, West Virginia, on December
16, 2010. A separate decision will be issued for those Dockets.
PRELIMINARY MATTERS
On December 17, 2010, a request for intervention in the Willow Lake Portal (“Willow”)
case was received from the Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers
Local S-8 of Harrisburg, Illinois. Since the hearing had been held, limited intervention in form
of a memorandum to be filed no later than December 31, 2010, the date for submission of post
hearing briefs, was granted. However, no submission was received from the intervenor.
A Memorandum for District Managers regarding Part 50 Audit procedures for
safeguarding personally identifiable medical or other sensitive information was admitted as
Exhibit G-5, but the document did not bear a date. The Secretary of Labor (“Secretary”) later
reported that the document had been distributed on December 13, 2010.1
At the hearing, the Secretary moved for admission of the notes made by the inspector on
November 9, 2010, at each of the mines. These notes had been referred to in the testimony of a
witness, Mr. Peter J. Montali. After reviewing the notes, Contestants objected to their admission.
By Order dated December 21, 2010, the notes were admitted. Ex. G-16, 17. On January 14,
2011, Contestants filed a motion for reconsideration of the decision to admit the Inspector’s
notes, or in the alternative to strike section four of the Secretary’s Post Hearing Brief. The
section referred to mentions the notes, along with other matters regarding time for abatement of
the citations issued. Since the notes were recorded by the inspector at the times that the citations
and orders were issued on November 9, 2010, they are relevant. While the notes are hearsay,
they are admissible. The motion in the alternative is denied.
1

This information was provided by Counsel for the Secretary on the record at the hearing
held on December 16, 2010 in Charleston, West Virginia. See transcript, pg. 12 for Docket Nos.
WEVA 2011-398R, 399 R, 402R and 403R, 540R, 541R; and KENT 2011-255R, 256R, 305R,
306R. The date of distribution was again reported in an email from counsel on December 21,
2010. All of the mines involved in both of the hearings received superseding letters requesting
the contested information. Separate hearings were held due to the distant locations of these
groups of mines, but for all major purposes, counsel treated them all as one large, related case.
33 FMSHRC 1307

The parties reported stipulations at the hearing, recited for the record, and summarized as
follows:
1. Both Big Ridge, Inc., and Peabody Midwest Mining, LLC, are properly within the
jurisdiction of the Federal Mine Safety and Health Review Commission.
2. The citations and orders and the modifications to the citations and orders were issued
by an authorized representative of the Secretary to an agent of Big Ridge, Inc., and to
an agent of Peabody Midwest Mining, LLC.
3. That various pieces of correspondence between the Secretary and Big Ridge, Inc., and
Peabody Midwest Mining, LLC, including the October 20, 2010 request letters and
the superseding October 28, 2010 request letters, and the responses from Ms.
Mitchell-Bromfman, were authentic. There was no stipulation as to the truth of the
matters asserted in such correspondence.
BACKGROUND
In October 2010, the Mine Safety and Health Administration (“MSHA”) began a
nationwide initiative to conduct thirty-nine (39) compliance audits under the authority of 30
C.F.R Part 50. Ex. G-1, p.2, ¶8. Two subsidiary mines of the Peabody Energy Company
(“Peabody”), Willow, and Air Quality #1 (“Air Quality”) are a part of this initiative.
On October 19, 2010, each mine was presented with a letter dated October 8, 2010, not
specifically addressed to the mine, requesting certain documents. Ex. C-A, Tr. 106, 128-129.
Two of the five requests, forms 7000-1 and 7000-2, maintained by the safety department of each
mine, were made available to the MSHA inspector. Ex. G-2, 3. However, both Health and Safety
Managers objected to providing the other requests, which included payroll records, time sheets,
and a number of medical records. Tr. 107-09, 128. The requests for these records were repeated
at each mine the next day, October 20, 2010. Tr. 109, 129. The records were not released by
either mine. No citations or orders were issued at that time.
The first request was superseded by an October 28, 2010 request letter addressed to each
mine and in pertinent part is as follows:
The Federal Mine Safety and Health Administration (MSHA) is
conducting an audit to determine your mine’s compliance with the injury and
illness reporting regulations in 30 Code of Federal Regulations (CFR) Part 50.
Pursuant to 30 CFR §50.41, MSHA is requesting certain records that are
considered to be relevant and necessary to complete its audit.
Please have the following information and documentation available for
review by October 29, 2010. The documents should cover the period beginning
July 1, 2009 through June 30, 2010.
33 FMSHRC 1308

1.

All MSHA Form 7000-1 Accident Reports

2.

All quarterly MSHA Form 7000-2 Employment and Production
Reports

3.

All payroll records and time sheets for all individuals working at
your mine for the covered time period

4.

The number of employees working at the mine for each quarter

5.

All medical records, doctor’s slips, worker compensation filings,
sick leave requests or reports, drug testing documents,
emergency medical transportation records, and medical
claims forms in your possession relating to accidents,
injuries, or illnesses that occurred at the mine or may have
resulted from work at the mine for all individuals working
at your mine for the period of July 1, 2009 through June 30,
2010.

“In your possession” means within your mine’s possession or within the
control, custody, or possession of another entity or person from whom you have
authority to obtain the required records. If any of the required records are in the
exclusive possession of any other entity or person from who you do not have
authority to obtain the required records, you must so certify and identify the entity
or person who has exclusive possession. Ex C-D, C-E.
Since the content of the October 28, 2010 audit request letters is identical, they will be
referred to as the Uniform Audit Request (“UAR”).
Peabody’s Senior Counsel responded by letters dated October 28 and 29, 2010, that the
information listed in categories three (3) and five (5) would not be made available for MSHA’s
review. There was an indication that Peabody would welcome further discussion with MSHA,
but conditioned such discussion on MSHA’s cooperation in furnishing information regarding
how the record demands could be narrowed to accommodate MSHA’s legitimate audit concerns
without jeopardizing privacy rights of employees or revealing confidential business information.
There is no evidence that the information requested by Peabody as a condition for further
discussion was provided by MSHA. Ex. C-F, C-G.
On November 9, 2010, MSHA inspectors went to the Willow and Air Quality mines to
review the documentation requested in the UAR. Ex. G-16, G-17. Both mines refused to provide
any medical records. A 104(a) citation was issued to each mine based on the refusal. Ex. G-10,
11. The request was repeated and again refused, and a 104(b) order was issued fifteen (15)
minutes after the initial citations. Ex. G-12, 13. The citations were later modified to include the
time sheets and payroll records. Ex. G-14, 15. An unopposed motion to amend the citations to
33 FMSHRC 1309

include the timesheets and payroll records was granted.
Citation No. 6670850 was issued at Willow with the following notations:
Mike Baize, Safety Director, refused to permit an Authorized Representative of
the Secretary of Labor to inspect and copy information to determine compliance
with the reporting requirements related to accidents, injuries, or illnesses at the
Willow Lake Mine (Mine ID 1103054). The requested documents include
medical records. (Sic) Doctor’s slips, worker compensation filings, sick leave
request or reports, emergency medical claims forms relating to accidents, injuries,
or illnesses that occurred at the mine or may have resulted from work at the mine
for the period currently being audited (07/01/2009 – 06/30/2010). MSHA
considers this information relevant and necessary to determine compliance with
the reporting requirements of 30 CFR, Part 50.
Order No. 6670851 was issued fifteen (15) minutes later with the following notations:
Todd Grounds, Compliance Manager, continued to refuse to provide records
requested by an Authorized Representative of the Secretary identified in citation
6670850 for the purpose of conducting a Part 50 Audit at the Willow Lake Potal
(Sic) Mine (Mine ID 11-03054) in accordance with the requirements of 30 CFR,
Part 50.41.
At Air Quality, Citation No.6670852 and Order No. 6670853 were issued, and were
essentially the same with the exception of the name of the mine and the employee served.
Peabody timely contested the citations and orders for both mines.
The record also contains evidence from officials at Willow that some miners objected to
the release of medical and workers compensation files. Ex. C-J, Tr. 111, 112, 134. Cross
examination of Michael Middlemas, Manager of Health and Safety at Air Quality, revealed that
the miners were told only of the citation, and not that the audit was limited to workplace injuries
and illnesses and limited to a one year period. Tr. 139. Also noted is the intervention granted to
the union, which was not pursued. Since the miners were not fully informed, and there is no
intervention for consideration, this matter will not be further discussed.
LAW AND REGULATIONS
Section 103(a) of the Act states in pertinent part:
Authorized representatives of the Secretary…shall make frequent
inspections and investigations in coal or other mines each year for the purpose of
(1) obtaining, utilizing, and disseminating information relating to health and
safety conditions, the causes of accidents, and the causes of diseases and physical
33 FMSHRC 1310

impairments originating in such mines, (2) gathering information with respect to
mandatory health or safety standards,…and (4) determining whether there is
compliance with the mandatory health or safety standards or with any citation,
order or decision issued under this title or other requirements of this Act. 30
U.S.C. §813(a).
Section 103(h) of the Act states in pertinent part:
In addition to such records as are specifically required by this Act, every
operator of a coal or other mine shall establish and maintain such records, make
such reports, and provide such information, as the Secretary ... may reasonably
require from time to time to enable him to perform his functions under this Act.
The Secretary ... is authorized to compile, analyze, and publish, either in summary
or detailed form, such reports or information so obtained. 30 U.S.C. §813(h).
Section 103 (e) of the Act states in pertinent part:
Any information obtained by the Secretary ... under this Act shall be
obtained in such a manner as not to impose an unreasonable burden upon
operators, especially those operating small businesses, consistent with the
underlying purposes of this Act. Unnecessary duplication of effort in obtaining
information shall be reduced to the maximum extent feasible. 30 U.S.C. §813(e).
The purpose and scope of 30 C.F.R. Part 50 is found in section 50.1 and states:
This part 50 implements sections 103(e) and 111 of the Federal Coal Mine
Health and Safety Act of 1969, 30 U.S.C. 801 et seq., and sections 4 and 13 of the
Federal Metal and Nonmetallic Mine Safety Act, 30 U.S.C. 721 et seq., and
applies to operators of coal, metal, and nonmetallic mines. It requires operators to
immediately notify the Mine Safety and Health Administration (MSHA) of
accidents, requires operators to investigate accidents, and restricts disturbance of
accident related areas. This part also requires operators to file reports pertaining
to accidents, occupational injuries and occupational illnesses, as well as
employment and coal production data, with MSHA, and requires operators to
maintain copies of reports at relevant mine offices. The purpose of this part is to
implement MSHA's authority to investigate, and to obtain and utilize information
pertaining to, accidents, injuries, and illnesses occurring or originating in mines.
In utilizing information received under part 50, MSHA will develop rates of injury
occurrence (incident rates or IR), on the basis of 200,000 hours of employee
exposure (equivalent to 100 employees working 2,000 hours per year). The
incidence rate for a particular injury category will be based on the formula:
IR = (number of cases x 200,000) divided by hours of employee exposure.
MSHA will develop data respecting injury severity using days away from
work or days of restricted work activity and the 200,000 hour base as criteria. The
33 FMSHRC 1311

severity measure (SM) for a particular injury category will be based on the formula:
SM = (sum of days x 200,000) divided by hours of employee exposure.
Section 50.41 states:
Upon request by MSHA, an operator shall allow MSHA to inspect and
copy information related to an accident, injury or illnesses which MSHA
considers relevant and necessary to verify a report of investigation required by
50.11 of this part or relevant and necessary to a determination of compliance with
the reporting requirements of this part.
The preamble to the proposed rule at Section 50.41 sets forth the purpose of this
regulation and explains what MSHA (then the Mining Enforcement and Safety Administration
(“MESA”)) may request and the importance of cooperation with these requests:
Section 50.41 requires operators to allow MESA to inspect or copy any
information the agency thinks may be relevant and necessary for verification of
reports or for determination of compliance with Part 50. In effect, it allows
MESA to copy company medical records, employment records, and other
company information.
MESA believes that this provision is necessary if it is to be able to develop
epidemiologic data essential to development of effective health standards. It is
also necessary if MESA is to be able to discover instances of intentional violation
of statutory or regulatory requirements. It will allow MESA to control the data
flow, rather than depend upon operator filtered records. 42 Fed. Reg. 55569
(1977).
The preamble to the final rule addressed privacy concerns and the need for
verification:
The patient-physician confidentiality privilege is not absolute. Where
disclosure of patient data is related to a valid purpose, disclosure has been held
not to be violative of privacy rights. It is questionable whether employers have
standing to assert employees’ privacy rights and significant that no miner or
representative of miners has objected to §50.41.
Without inspection of records beyond those required to be kept it is
impossible to verify the required records. The Secretary’s power to acquire
information related to his functions under the Coal Act and the Metal Act is not
limited to any particular records. Section 111 (b) of the Coal Act and § 13 of the
Metal Act explicitly authorize analysis of other information related to his
functions, and only the Secretary, subsequent to inspection and copying, can
determine relevance…42 Fed. Reg. 65535 (1977).
33 FMSHRC 1312

ARGUMENTS
Contestants contend, first, that the Act and MSHA Regulations do not require mine
operators to maintain and/or provide access to the medical and personnel records demanded by
the audit. Further, they contend that the heavy-handed, improper and unlawful attempt to gain
access to highly private and confidential information was an abuse of executive authority. Third,
they assert that MSHA has not engaged in the necessary notice and comment rulemaking
procedure to permit such arbitrary, wholesale, warrantless, and broad and burdensome requests
for hundreds of thousands of pages of records. Fourth, they argue that there is a constitutionally
protected expectation of privacy in records not explicitly required to be kept by law, as well as
legal record keeping obligations, and potential liability of the company under federal and state
laws. Thus, due to the foregoing reasons, they contend that the citations and orders issued to
Willow and Air Quality should be vacated.
The Secretary contends, in effect, that the plain meaning of the statutory and regulatory
language, and Court precedents, permit MSHA to access relevant and necessary records even if
they are not specifically required to be kept by the Act. Second, the regulations currently in effect
and applicable to audits implement the statutory mandate and provide for verification of
compliance with the reporting requirements, so no further rule making is required. Third, the
audit request is limited to information regarding reportable, work-related injuries and illnesses
and time and attendance data for a specific time period, and there is no reasonable expectation of
privacy in such records. Fourth, the requirements of Part 50 are important to MSHA’s mission of
improving mine health and safety; compliance with the reporting requirement cannot be verified
without the requested records. Finally, she argues that because of the foregoing, violations of
section 50.41 exist and, therefore, the citations and orders issued are valid.
QUESTIONS PRESENTED
While the issue to be decided is whether the citations and orders written to each of the
mines are valid, there are several questions for consideration:
-Are the medical, personnel, and timesheet records sought by the UAR relevant and
necessary to determine compliance with the reporting requirements of the regulations?
-Does the Secretary have the authority to request medical and employment records and
other company information pursuant to an audit request under the governing statutes and
Part 50 of the regulations?
-Does the UAR impose an unreasonable burden upon the operator?
DISCUSSION
Reporting accidents, injuries, and illnesses occurring at a mine is a well-known
33 FMSHRC 1313

and long-established requirement under the Act and the Part 50 regulations. 30 C.F.R.
§50.20. Definitions and instructions for reporting are provided in Sections 50.2(e)-(f),
50.20-3. The 7000-1 form is to be mailed to MSHA within ten (10) days of the accident,
injury, or illness. MSHA then uses this information, in combination with the 7000-2
form, which is a quarterly calculation of the hours worked by each employee at the mine,
to determine the mine’s incidence rate and severity measure. These numerical indicators
quantify a mine’s overall safety record and may be used to objectively view a particular
mine’s record in comparison to national averages.
The IR for a particular injury category is calculated by multiplying the number of
reportable incidents and the coefficient 200,000, and dividing that number by the total
hours of employee exposure. The SM for a particular injury category is calculated by
multiplying the total number of missed and restricted duty workdays and the coefficient
200,000 and dividing that number by the total hours of employee exposure. The
incidence rate is important in that it gives an overall picture of the safety record of the
operator. Energy West Mining Company, 15 FMSHRC 587, 591 (Apr. 1993). Knowing
the prevalence of specific types of injuries and their usual severity allows for more
efficient allocation of agency resources in developing strategies not only for enforcement
but also for training with the goal of improving the health and safety of miners.
The responsibility for reporting via the 7000-1 and 7000-2 forms at Willow and
Air Quality specifically belongs to the Safety Manager at the mine, who appears to be in
the best position to determine if a particular incident is reportable. However, the record is
not entirely clear as to how the Safety Manager learns of each and every injury or illness,
whether reportable or not.
Mike Baize, Safety Manager at Willow, testified that he is responsible for the
reports of injuries, coal production, and average [number] of employees. Baize receives
information from the employee’s supervisor, who fills out the initial report of injury. He
might also get a note from a doctor regarding return to work or restricted duty. Any
medical records are turned over to the Human Resources Department (“HR.”) Tr. 116
118. He stated that he was not privy to payroll, personnel, medical or Worker’s
Compensation files. Tr. 101, 114. However, should he need information, he could ask
HR for return to work information and the nature of an employee’s injury or illness. Tr.
114, 116.
Michael Middlemas, Manager of Health and Safety at Air Quality, testified that he
held the same position and had the same responsibilities as Baize. Tr. 124,125.
Middlemas testified that the only verification of the information on the 7000-1 and 7000
2 forms was essentially whatever information he put on the forms. Tr. 136, 137.
Chad Barras, Safety Director for both mines, testified that he had prior experience
at another mine preparing the 7000-1 and -2 documents, and with Part 50 reporting. Tr.
143,144. He stated that the foreman initially filled out the injury report, and the Safety
33 FMSHRC 1314

Manager would follow up with the foreman or the employee regarding days off and return
to work or restricted duty. Tr. 149-151.
Robert Grossman, Senior Manager of Human Resources at Willow, and before
August 2010, in a similar position at Air Quality, testified that he had the responsibility
for employee and union relations, payroll, benefits, and worker’s compensation. His
department maintains medical files, personnel change actions, payroll deduction
information and vacation and other leave information. Tr. 52-55, 63.
On direct examination, Mr. Grossman testified:
Q. …Within your knowledge, does the Safety Department monitor those
sets of records that you’ve just described?
A. No.
Q. Do they have general and ready access to those records?
A. No.
Tr. 55, 56
Grossman further testified that payroll records and timesheets had not been
provided to MSHA, and he decided that the medical records request, item no. 5 of the
UAR, would not be provided. Tr. 64, 66. In addition, he testified that even if given
weeks to produce the requested records, he would not provide them. Tr. 90.
The testimony of the safety officials of the mines illustrates an important point.
The Safety Manager, the person with the responsibility to submit the reports to MSHA,
must first be informed of an accident, injury, or illness of an employee. The flow of this
information is generally from the foreman, but the Safety Department may also receive
medical documents, which are turned over to and kept by HR. The Safety Manager may
follow up with the foreman or employee to complete the information to be reported, but
does not have access to the various medical files safeguarded by HR. To the contrary, the
time sheets, payroll records, worker compensation records and medical documents of all
types are in the exclusive possession and control of HR and are essentially “off limits” to
the Safety Manager and all other personnel. Tr. 55,65,74,75,77,91, Ex. C-K. No evidence
was produced at the hearing to suggest that HR would take the initiative to provide
relevant injury or illness time off information to the Safety Department.
Considering the volume of medical information that no doubt flows into HR, but
not available to the Safety Manager, there is at least the potential for relevant events to go
unreported. In addition, should the foreman or the employee fail to initiate a report to the
Safety Manager, it appears likely that an otherwise reportable event would escape the
33 FMSHRC 1315

notice (and hence the reporting responsibilities) of the Safety Manager. The resulting
lack of complete reporting could, of course, be inadvertent or unintentional. But the
result is the under-reporting of information needed by MSHA to discharge its duties and
responsibilities to compile and report incidence rates and severity measures as well as
manage the allocation of agency resources.
Over-reporting would also result in inaccurate information and misallocation of
resources. The mine would appear less safe than it actually is, and this could result in
increased inspections. However, this would rarely be the concern to be addressed. On
the other hand, there would be incentives to under-report injury and illness information to
MSHA.
If the total number of reportable incidents is under-reported, a mine, obviously,
will appear to be safer than it actually is. If the incidence rate and severity measure are
artificially low, an unsafe mine may be able to avoid enhanced MSHA scrutiny. Further,
an elevated severity measure is one criterion in the initial screening for establishing a
“pattern of significant and substantial violations.” 30 C.F.R. 104.2(b)(3), Ex. G-4. Once
this pattern has been established, the mine may be subjected to enhanced penalties and
possible forced shutdowns. 30 C.F.R. §104.4. If given the power to solely control the
information flow between itself and MSHA, an operator possesses incentives to constrict
that flow and under-report incidents at the mine.
The purpose of the Part 50 regulations is to implement MSHA’s authority not only
to investigate but also to obtain and utilize information pertaining to accidents, injuries or
illnesses occurring or originating at mines. 30 C.F.R. §50.1. In order to develop effective
health standards, control the data flow, and discover violations, MSHA is allowed to
inspect and/or copy any information the agency thinks may be relevant and necessary to
determine compliance with reporting requirements. This includes medical records,
employment records, and other company records. 42 Fed. Reg. 55569, 65535 (1977), 30
C.F.R. §50.41. Under §50.41, it was intended that MSHA would not depend on operatorfiltered records. Id. Forms 7000-1 and 7000-2, the only part of the audit request complied
with by the mines, are operator-filtered records. Tr. 79. Without the cooperation of the
operator, there can be no effective, independent verification of the information submitted
to MSHA.
The suggestion advanced by the Contestants that MSHA inspectors would have
the authority to interview miners with visible signs of injury could not serve to verify
complete and accurate reporting. Tr. 147, 152, 153. This suggestion is contained in a
MSHA handbook, where it is also stated that examination and comparison of state
workers’ compensation records to the MSHA reports (7000-1, 2 forms) may be
appropriate. Page 43, Metal and Nonmetal General Inspection Procedures Handbook, No.
PH09-IV-1 (Oct. 2009).
Peter Joseph Montali, Acting Director of Accountability for MSHA, testified that
33 FMSHRC 1316

the same audit request, the UAR, was sent to all 39 mines audited. Tr. 28. Mr. Montali
stated that the information reported on the 7000-1 and 7000-2 forms is used to determine
the national incidence rates and averages, which can be compared to the rates at a
particular mine. Tr. 19, 20, 22, 23. In a similar manner, the severity measure can also be
calculated and compared. In the affidavit of record, Ex. G-1, Mr. Montali reported he had
prior experience with Part 50 requirements. He pointed out that the medical records
requested by the audit are limited to accidents, injuries, and illnesses that occurred at the
mine or may have resulted from work at the mine. Also, he indicated that the payroll and
time sheet records were only to verify the total number of employees and the total hours
worked, as reported on the 7000-2 form. As to the various medical records, including the
worker’s compensation filings, Mr. Montali noted that these are cross-referenced with the
7000-1 forms submitted by the mine to verify proper and accurate reporting of all
required information, including permanent total or partial disability, days away from
work, restricted work activity, date of return to full duty, or no lost time. The drug-testing
documents are limited to tests taken after an accident-causing injury, and the medical
claims forms are limited to a determination of whether a particular illness would fit the
definition of an “occupational Illness”. Id.
It is the operator who posses the means to ensure complete and accurate reporting.
Absent an audit of company records, MSHA must rely solely on the information provided
by the operator’s Safety Manager. If the company does not cooperate in the process, there
can be no assurance that the safety and health information compiled by MSHA is correct.
In summary of the above discussion, the undersigned does not consider it to be an
overstatement that the complete and accurate reporting of accidents, injuries, and illnesses
occurring at mines is critically important to the mission of MSHA to protect the health
and safety of miners. “The health, safety and the very lives of coal miners are jeopardized
when mandatory health and safety laws are violated.” Youghiogheny and Ohio Coal
Company v. Morton, 364 F.Supp. 45, 50 (1973). From the stated intent in the
promulgation of 30 C.F.R. §50.41 it can be found that it is not what the operator
considers important to report; rather, it is what MSHA thinks is relevant and necessary to
verify reports or determine compliance with Part 50 of the regulations. It follows, then,
that the particular records sought by the MSHA audit are relevant and necessary to verify
compliance with all reporting requirements. Testimony confirms that the records are
either maintained by the mine or a third party, or stored, but not destroyed. Tr. 83 ,85.
FINDINGS AND CONCLUSIONS
Commission precedent in this area is rare and does not address the specific set of facts in
the instant case. In BHP Copper, 21 FMSHRC 758 (July 1999), a fall of ground caused the death
of one miner and the injury of another. Id. at 759. While MSHA inspectors were allowed to
interview several BHP employees, BHP would not provide the phone number and address for the
injured miner who had just been released from the hospital, stating that the information was
confidential. Id. In denying the contention of the operator, the Commission explained that the
33 FMSHRC 1317

Secretary has broad authority under the Act to investigate mine accidents and the operator may
not impede that investigation Id. at 765-766. The Commission also rejected the argument that
the Secretary must seek injunctive relief under Section 108 of the Act. Id. at 766.
A second, older Commission case is Peabody Coal Company, 6 FMSHRC 183 (Feb.
1984). Here, an inspector was refused access to accident reports because the operator had
already filed them with MSHA. Id. at 185. Peabody argued that because this inspection was of a
“type so random, infrequent, or unpredictable that the appellant, for all practical purposes, had no
real expectation that its property would from time to time be inspected by government officials.”
Id. Further, it asserted that, in order for MSHA to inspect, it must obtain a warrant. Id. In
disagreeing with the operator, the Commission found that a search warrant was not required and
since the Act required the operator to maintain the records of accidents for five years there was
no realistic expectation of privacy in them. Id. at 186.
Although these Commission cases involve conflicts over information contained in the
operator’s records, this is where the similarities end. No accident has occurred in the instant
case; rather, MSHA is conducting audits. MSHA is requesting documents to verify that no
accident, injury or illness has gone unreported, not investigating the facts and circumstances
surrounding such an incident. In this respect, neither BHP Copper nor Peabody specifically
addresses the questions raised by the compliance audit at hand.
In Sewell Coal Company, 1 FMSHRC 864 (1979)(ALJ), the Administrative Law Judge
(“ALJ”) held that MSHA could not inspect the private personnel files of a mine, in the absence
of a valid warrant. Id. at 872-873. In Sewell, a MSHA inspector began an inspection of the
foremen’s records, accident, injury and illness records and medical and compensation records at
the mine. Id. at 865. All of this information was contained in personnel records that contained
other data as well. Id. After the discovery of two instances of failure to report, the safety
manager informed the inspector that he would not be permitted to continue the inspection. In
characterizing the inspection, the ALJ maintained that Part 50 does not explicitly authorize the
warrantless search of personnel files containing medical and other information that may or may
not be related to accidents, injuries, and illnesses that are reportable. Id. at 873. The ALJ thus
held that MSHA could not inspect the private personnel files of a mine, in the absence of a valid
warrant. Id. at 872-873. The Contestants rely heavily on this decision.
However, the instant case can easily be distinguished from Sewell. First, the actions of
the MSHA inspectors here do not constitute warrantless searches; rather, they are simply
requesting that the operator produce certain documents. Unlike in Sewell, the inspector would
not be rummaging through the file cabinets or files of the operators.2 At the hearing, it was
acknowledged that no physical access to files was requested. Tr. 184, 185. Each mine operator
would search his own files for this information, producing only those records meeting the
specifics of the request, thereby limiting the chance that unrelated private information would be
released to MSHA.
2

In Peabody, the Commission similarly distinguished Sewell in this manner.
33 FMSHRC 1318

Second, this was not some wholesale demand that would cause the operator great cost
and burden to produce. MSHA’s request was for documents related only to those accidents,
injuries, and illnesses that occurred while working at the mine or as a result of work at the mine.
Moreover, MSHA is only requesting documents that were recorded within the span of one year.
The request concerns only employees, not family members, relatives, or others; if non-employee
medical or other records are maintained at the mine, they would not be required for the audit.
Any medical tests or Emergency Medical Transportation (“EMT”) records would concern only
the employee, and as to drug tests, only those conducted following an accident that caused an
injury. Ex. G-1, P. 3, ¶ 15. Family medical leave records involve care given by the employee,
and not relevant to the audit, since the time off would be reflected in other records used to fill out
the 7000-2 form. Tr. 53, 54, 57. In addition, only those employee disabilities occurring at the
mine or as a result of work at the mine need be disclosed, and not disability records of nonemployees that might be in company files. Tr. 56. Similarly, both insurance claims and worker’s
compensation information are limited to employees of the mine during the one year period. The
timesheet and payroll records are to verify the hours actually worked and reported on the 7000-2
form, Ex. G-1, P. 2, ¶ 10. Banking information, including various deductions from pay, is not
needed. When other parts of the statute require the operator to keep records of accidents for a
period of five years3 and the testimony revealed that the types of records sought are maintained
and not destroyed, Tr. 83-85, compiling records for only a one year period could hardly be
burdensome.
Third, as an ALJ decision, this case does not have value as precedent. Admittedly, if the
facts were so similar that they could barely be distinguished, I may have been persuaded to
consider its reasoning. However, for the reasons listed above, I find the facts in the instant case
to be so distinct, that Sewell does not provide guidance and is not controlling.
In the absence of controlling Commission precedent, we turn to the statutes, regulations
and case law for guidance. We begin by noting that the Mine Act and the implementing
regulations are to be liberally construed as long as the Secretary’s interpretation is reasonable and
promotes miner safety. Hanna Mining Co., 3 FMSHRC 2045, 2048 (Sept. 1981); Secretary of
Labor v. Cannelton Industries, Inc., 867 F.2d 1432, 1437 (D.C. Cir. 1989).
In Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984),
the Court explained that when confronted with review of an agency’s construction of the statute
it administers, a judge must consider two questions. The first is whether Congress has spoken to
the issue in question. Id. If so, the questions are at an end and the language must be enforced as
written. Id. If the statute is silent or ambiguous to the issue in question, however, the Court must
question whether the agency’s answer is a permissible interpretation of the language of the
statute. Id. In this instance, the agency’s interpretation must be reasonable, and if so, it will be
accorded deference. “…Considerable weight should be accorded to an executive department’s
3

See 30 CFR § 50.21, which requires operators to keep Form 7000-1 after an accident for
a period of five (5) years.
33 FMSHRC 1319

construction of a statutory scheme it is entrusted to administer….” Id. At 844.
The same analysis applies equally to the language and interpretation of the Secretary’s
own regulations. Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994).
Where the language of a regulatory provision is clear, the terms of that provision must be
enforced as written unless the regulator clearly intended the words to have a different meaning or
unless such a meaning would lead to absurd results. Utah Power and Light Co., 11 FMSHRC
1926, 1930 (Oct. 1989); Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993); Cyprus
Emerald Resources Corp., 20 FMSHRC 790 (Aug. 1998).
I find there is no need to go beyond the plain language of the statutes and regulations. In
Section 103(a)(1)(4) of the Act the Secretary is empowered to obtain and utilize information to
determine “…whether there is compliance with the mandatory health or safety standards or with
any citation, order, or decision issued under this title or other requirements of this Act”.
(Emphasis added). Section 103(h) of the Act broadens the scope of compliance actions by
explicitly stating “[i]n addition to such records as are specifically required by this Act, every
operator of a coal or other mine shall establish and maintain such records, make such reports,
and provide such information, as the Secretary…may reasonably require from time to time….”
(Emphasis added). These statutory provisions create a duty on the part of the operator to
maintain and provide records to MSHA for the agency to determine compliance with any
requirements of the Act. Hence, there would be a legitimate basis for enforcement of reporting
requirements even without the Part 50 rules. American Mining Congress, 995 F. 2d 1106, 1109
(1993).
The Contestants argue that the records sought are highly sensitive and private, and
granting the Secretary access to them would violate the privacy rights of its employees.
Although no one would argue against the notion that medical and personnel records are of a
highly sensitive and personal nature, there are certain important interests of the government that
override these concerns. MSHA, a public health agency, does have the authority to obtain
information to determine compliance with the above cited statutes, and permission from the
employees is not required. United Steelworkers of America, AFL-CIO-CLC, 647 F.2d 1189, 1241
(Jan. 1981). The disclosure of private medical information to a public health agency is a
reasonable exercise of government responsibility over public welfare where it is related to
occupational health and safety and does not violate any rights or liberties protected by the
Fourteenth Amendment. Whalen v. Roe, 429 U.S. 589, 597, 598, 602. Further, and importantly,
it may be concluded that the governmental interest in promoting mine safety far outweighs any
interest the mine operators may have in privacy. Youghiogheny at 51.
Even if the statutes were considered ambiguous, the Part 50 rules are legislative rules.
Their publication in 1977 satisfies the requirement that the rules have general applicability and
legal effect. American Mining Congress, at 1109, 1110. Entirely consistent with the statutory
mandate, the agency promulgated regulations, including 50.41, that also spelled out duties of the
operator to cooperate in determinations of compliance, Id. at 1110, 1111. Section 50.41 of the
regulations allows the Secretary “to inspect and copy information related to an accident, injury
33 FMSHRC 1320

or illnesses which MSHA considers…relevant and necessary to a determination of compliance
with the reporting requirements of this part.” (Emphasis added). Both the statutory and
regulatory provisions are clear in their purpose and intent to grant the Secretary authority to
request documents that are not specifically required to be kept under the Act. To find otherwise
would be to render these passages meaningless.
Further, as set forth and discussed above, the preambles to the controlling regulation, 30
C.F.R. §50.41, are instructive in that MSHA may request the employment, medical and other
records of the employer. The Secretary is authorized to inspect records in order to determine
reporting compliance. The reasoning is that reliance on the information provided in the required
forms by the operator itself would do very little to verify and ensure complete reporting. In order
to verify compliance, the Secretary must have some control over the flow of information. The
power to acquire information was not limited to any particular records, and only the Secretary,
subsequent to inspection and copying, could determine relevance. 42 Fed. Reg. 55569, 65535
(1977). The language of these preambles is persuasive.
The Health Insurance Portability and Accountability Act (“HIPAA”) created a national
framework for health privacy protection while also protecting the rights of consumers to access
their own health information. 45 C.F.R. §160.101. Without suggesting that HIPAA in any way
extends the Secretary’s authority to request records, it is significant from the standpoint of
expectations of privacy that it explicitly exempts “[a] public health authority that is authorized by
law to collect or receive such information for the purpose of preventing or controlling disease,
injury, or disability.” 40 CFR § 164.512. The preamble to the HIPAA regulations specifically
lists MSHA as one of the entities included as a public health authority. 65 Fed. Reg. 82624 (Dec.
28, 2000).
Moreover, and in consideration of the Contestant’s concerns regarding the possibility of
records containing both employee and non-employee information, the safeguards that MSHA
utilizes during its Part 50 audits to prevent disclosure of private information are adequate. The
agency has established specific procedures that must be followed when handling the records of
an operator’s employees. These include special filing procedures, locked storage, limited access,
safe transportation methods, and an alert that medical information is ordinarily exempt from
Freedom of Information Act (FOIA) disclosure. Ex. G-5. While no procedures are fool-proof,
these go a long way to ensuring that information will not be disclosed. Considering the
Congressional mandate to the agency, the controlling regulations, and the exemption from
HIPAA provisions, there can be no reasonable expectation of privacy in the records sought by
MSHA.
Having found that the Secretary does have the authority to request the records at issue in
these cases, I do not have to rule on the reasonableness of her interpretation of the statutes and
regulations. However, given the compelling need to verify reports and determine compliance, I
would have found her interpretation reasonable anyway. The request is limited to defined types
of documents that are necessary to further her mission to protect the safety and health of miners.
She is not requesting a wholesale search of all of the records of the operator, including those that
33 FMSHRC 1321

are irrelevant to the goals of the audit.
It follows also from the above discussion, that contrary to the Contestants’ arguments,
this is not arbitrary, ad hoc rulemaking that violates the necessary notice and comment
rulemaking procedures. The Secretary has interpreted “in addition to such records” to broaden
the document requesting power that she already possessed. She did not create new powers for
herself, as the Contestants contend. Her interpretation further defines that this phrase includes
employee time sheets, payroll records, medical records and such other documentation requested
as relates to work at the mine. The language of the Act lends itself to this interpretation and,
thus, the Secretary did not engage in arbitrary, ad hoc rulemaking.
In fact, legislative rulemaking has already been accomplished, in 1977, and there is no
need for additional rulemaking. The regulatory scheme under Part 50 is adequate for the
purposes of the audit. A reasonable interpretation of the statutory language would establish that
documents, in addition to those required to be kept under the Act, may be requested by the
Secretary from time to time as long as they are relevant and necessary. Specific types of
documents or information do not need to be named in either the statutes or the regulations. There
is no discernible inconsistency between the UAR and either the Act or the Part 50 regulations.
The Secretary did not exceed her interpretation authority under Chevron analysis.
The Contestants further argue that the audit request amounts to a wholesale search of
private company records that cannot be obtained absent a valid search warrant. The most
obvious deficiency in this argument is that the Secretary is not demanding to rummage around in
the files of the operator. To the contrary, she is requesting that the Contestants produce the
documents for the Secretary. Moreover, the documents to be produced are limited by both
content and time. By its own description, the request is not a wholesale search. Even if the UAR
is considered to be a warrantless demand for the production of documents, as distinguished from
a warrantless search and/or seizure of company files, it still does not violate the Fourth
Amendment. It is authorized by law to verify compliance with the Act and regulations and
necessary to further a federal interest, the health and safety of miners. Where Congress has
allowed the agency access to the records, with the specific language of Section 103(h), in a
pervasively regulated industry, there cannot be an expectation of privacy. Donovan v. Dewey,
452 U.S. 594, 599, 600 (1981). Neither the 1987 opinion of Associate Solicitor Edward P. Clair
nor the recent statement of Assistant Secretary Joseph A. Main is helpful to the Contestants.
Since the current audit request is not a wholesale, warrantless search of the operator’s files, Mr.
Clair actually concludes in his opinion that verification of compliance by a Part 50 audit would
be entirely permissible. Ex. C-I, P. 3. Mr. Main’s statement suggesting that MSHA should have
subpoena powers does not undermine the Secretary’s authority to request the production of
documents under Part 50.
Finally, the Contestants argue that the information sought is overly broad, burdensome
and unreasonable. I have discussed, above, that the audit request is not burdensome. I also find
that it is neither overly broad nor unreasonable. The Secretary does not request every
documented injury or illness to every miner for a number of years. She is only requesting the
33 FMSHRC 1322

documentation of reportable injuries, illnesses, or accidents that occurred while working at the
mine or as a result of work at the mine. The UAR is for a lawful purpose. It is limited to the
span of one year’s time. Moreover, the records listed in #3 and #5 are maintained at the mine in
HR or at a known third party. The records are clearly described. Peabody has not established on
this record that the UAR is burdensome. In light of the significant limitations incorporated into
the audit request, it is not overly broad, burdensome or unreasonable.
I find that the Contestant mines failed to fully cooperate in the Part 50 audit and violated
30 C.F.R. §50.41. I further find that Citations 6670850 and 6670852, as modified, and Orders
6670851 and 6670853 issued to the Willow and Air Quality mines are valid.
ORDER
The valid Citations and Orders issued to the Contestant mines are AFFIRMED.

/s/ Kenneth R. Andrews
Kenneth R. Andrews
Administrative Law Judge

Distribution:
Daniel W. Wolff, Esq., Crowell & Moring LLP, 1001 Pennsylvania Ave NW, Washington, DC
20004-2595
Samuel Charles Lord, Esq., Office of the Regional Solicitor, U.S. Department of Labor, 1100
Wilson Blvd, 22nd Floor West, Arlington, VA 22209

/kmb

33 FMSHRC 1323

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

May 23, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner
v.
S & S DREDGING,
Respondent

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CIVIL PENALTY PROCEEDING
Docket No. SE 2007-447-M
A.C. No. 09-00023-125618 E027
Mine: Lithonia Mine Site

DECISION
Appearances: Jonathan J. Hoffmeister, Esq., U.S. Department of Labor, Office of the Solicitor,
Atlanta, Georgia, for Petitioner,
Patty Schildt, Pro Se, S&S Dredging, Lilburn, Georgia, for the Respondent.
Before:

Judge Weisberger
Statement of the Case

This case is before me based upon a petition for assessment of civil penalty filed by the
Secretary of Labor (“Secretary”) alleging that S&S Dredging (“S&S”)violated 30 C.F.R.
§56.14100(b). The petition is based on a citation issued by the Secretary to S&S under Section
104(d) of the Federal Mine Safety and Health Act of 1977 (“Act”).1 A hearing was held in
Atlanta, Georgia on May 4, 2011. At the conclusion of the hearing, a bench decision was made.
The decision is set forth below, with the correction of non-substantive matters.
Finding of Facts and Conclusions of Law
a.
Violation of Section 56.14100(b)
On May 3rd, 2007, Robert Knight, an MSHA inspector who has had experience as a
health and safety manager in private employment, inspected the Lithonia mine, located in
DeKalb County, Georgia. S&S is an independent contractor that operates on the site.

1

This citation had initially been issued as an order under Section 104(d)(1) of the Act, but
was subsequently amended to a citation under Section 104(d)(1), supra.
33 FMSHRC 1324

In the course of Knight's inspection, he specifically examined an L160 Michigan loader
that was owned and operated by S&S. He observed that there were two steps that were defective.
The lower step was attached only in the front of the step by two chains, with one on each side of
the step. Normally, the step should have also been supported by two cables, one on each side of
the rear end of the step. In addition, the upper step was bent upwards and contained a hole.
The inspector testified as to various hazards of falling or slipping that could occur as a
result of a person ascending or descending these steps and slipping or falling.
The citation the inspector issued alleges a violation of Section 56.14100(b), which
provides as follows: "defects on any equipment, machinery and tools that affects safety shall be
corrected in a timely fashion to prevent the creation of a hazard to persons."
According to the parties' stipulations filed at the hearing, the condition of the steps had
been in existence for approximately two years prior to the time that the citation was issued.
Based on the parties' stipulations and the testimony of Knight, I conclude that the loader
in question did have defects that did affect safety and that had not been corrected in a timely
manner.
Accordingly, I conclude that S&S did violate Section 56.14100, as alleged.
b.
Significant and Substantial
Knight also found this condition to be significant and substantial. He indicated that this
determination was based upon a reasonable likelihood of injury. In support of this determination,
he explained that because of the lack of adequate connection of the lower step, a person
ascending or descending the loader could slip and contact his shins and could also sprain or break
an ankle, or strain his back.
In addition, Knight noted that there was a cable sticking up from the lower step, so that if
one falls, the cable then could impact a person's shin, causing some type of abrasion. As he
indicated, these injuries could occur when one ascends or descends the first step.
Knight also indicated that there was a reasonable likelihood of injury if a person, in
ascending or descending the loader, would avoid the lower step and instead use the next step. He
explained that this step was bent upwards and also had a hole. Knight indicated that a person
ascending or descending the loader could step in mud or water and therefore have mud or water
on his shoes. If this occurred, there would be a heightened danger of slipping from the upper
step, which was bent and had a hole, and a person could then fall to the ground. Knight indicated
the upper step was approximately 3 feet above the ground. A fall from the upper step could
therefore cause injuries, such as a sprained ankle, a broken ankle, or a strain to a back.
Essentially, Knight indicated, and the evidence supports his testimony, that the loader at issue
was used regularly, and in a day in which it's operated, a person using the loader would have to
ascend or descend the loader many times.
Knight also indicated that he took into account the fact that this loader travels on-site,
over various different types of terrain, and at any one place the loader could stop, requiring the
operator to get off. He indicated that although there were not any “overly large aggregates” on
the ground, there is “uneven ground in many locations and they do have gravel.” (Tr. 33).
He concluded that based on all of these conditions, there was a reasonable likelihood of a
serious injury, and therefore the violation was significant and substantial.
33 FMSHRC 1325

The determination of whether a violation is significant and substantial is governed by
case law as cited by Government counsel.
The Commission has explained that:
[i]n order to establish that a violation of a mandatory safety standard is significant
and substantial under National Gypsum, the Secretary of Labor must prove: (1)
the underlying violation of a mandatory safety standard; (2) a discrete safety
hazard–that is, a measure of danger to safety–contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in an injury; and
(4) a reasonable likelihood that the injury in question will be of a reasonably
serious nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan.1984).
It is clear, based on the earlier discussion, that the first two factors have been established
here: one, the underlying violation of a mandatory safety standard, and two, a discrete safety
hazard.
The third element requires a reasonable likelihood of an injury-producing event. In the
situation at bar, this translates to a reasonable likelihood of a fall, i.e. somebody slipping or
falling due to the conditions referred to earlier.
Based on the usage of the loader and the need to ascend and descend more than once in its
use, and taking into account the continuing operation, I find that there was a reasonable
likelihood that the hazard of the violation, specifically the condition the loader’s steps were in,
would result in an injury-producing event.
The key issue in this case is the fourth element, which is a reasonable likelihood that the
injury in question “will be of a reasonably serious nature.” Mathies, 6 FMSHRC 3-4. This, in
essence, is the problem in the Secretary's case.
The inspector testified that there was a reasonable likelihood that the injury in question
would be of a reasonably serious nature based upon his opinion that injuries would result in lost
workdays. There is not any evidence that any of the possible type of injuries that he set forth,
specifically, sprains, possibly a broken ankle, would require hospitalization or surgeries.
He also indicated that there was not any “overly large aggregate” on the ground. The
ground was uneven in “many locations,” and there was gravel. (Tr. 22).
However, significantly, there is an absence of any objects that would be likely to cause a
serious injury, such as boulders, rocks, or sharp objects. I place particular emphasis on the
absence of evidence of the objects that would cause head injuries, neurological injuries or any
injuries that would have some lasting impact or would have a high likelihood of a long period of
recuperation.
Further, the height at which these steps are located does not appear to be very significant
in terms of a contributing factor to a serious injury. The lower step was only one foot off the
ground. The inspector estimated the higher step the inspector to be at a height of three feet.
There wasn't any evidence of an exact measurement, and it is unclear what the inspector’s
approximation was based upon.
I conclude that, based upon all of these factors, the Secretary has failed to prove, as
required by case law, that the injury in question “will be of a reasonably serious nature.”
Mathies, supra, at 4. Therefore, I find that the violation was not significant and substantial.
c.

Unwarrantable Failure
33 FMSHRC 1326

The Secretary also asserts that the violation was as a result of the operator's unwarrantable
failure as support for the Secretary’s issuance of citation under Section 104(d)(1) of the Act.
That section requires as follows:
If upon inspection of a coal or other mine, an authorized representative of the
Secretary finds there has been a violation of any mandatory or health standard,
and if he also finds that, while the conditions created by such violation do not
cause imminent danger, such violation is of such a nature as could significantly
and substantially contribute to the cause and effect of a coal or other mine
safety or health hazard. . . he shall include such finding in a citation given to
the operator under this Act.
30 U.S.C. §814(d)(1).
Based upon the wording of Section 104(d)(1), it is clear that the unwarrantable failure
aspect of the violation must be predicated upon a finding of significant and substantial.
Therefore, in order to find that a violation was the result of an unwarrantable failure, it first must
be established that the violation was significant and substantial. For the reasons I indicated
above, I find that the Secretary has not established that the violation was significant and
substantial. Based upon that finding, and the clear wording of Section (d)(1), I find that
unwarrantable failure does not apply in this case.
Therefore, I find that the Secretary did establish a violation of Section 56.14100(b), but
that violation was neither significant or substantial, nor an unwarrantable failure.
d.
Penalty
The next matter to be resolved is the issue of a penalty. The Act, under Section 110(i),
requires the following factors be considered by the Commission in assessing a penalty: the
operator’s history of previous violations, the appropriateness of the penalty to the size of the
business of the operator, whether the operator was negligent, the effect on the operator’s ability
to continue in business, the gravity of the violation, and the demonstrated good faith of the
operator in attempting to achieve rapid compliance after notification of a violation. 30 U.S.C.
§820(i).
As to negligence, the evidence established here that the operator was negligent to a high
degree. The condition involved two steps. Based upon the parties stipulations, the operator was
aware of these conditions and the conditions had been in existence for two years.
With regard to gravity, the gravity was not of a highly significant nature, for the reasons
set out earlier in discussing significant and substantial.
As to the size of the operator, there is uncontradicted testimony that two persons work at
the mine. I conclude that the mine is very small in size, and this is a significant factor to be taken
into account. Regarding the history of violations, I note the operator only received six violations
within the last fifteen months. There isn’t any evidence that this is an unusually high number for
an operator of this size.
Another factor is whether the imposition of a penalty would have an effect on the
operator's ability to continue in business. The owner and operator, Patty Schildt, testified that the
company is no longer in business. The parties stipulated that the company went out of business
after receiving the citation.
The last fact to be considered is good faith abatement, and there is not any evidence that
the abatement was not abated in good faith.
33 FMSHRC 1327

Considering all these factors and placing considerable weight on the size of the
operator and the ability to continue in business, and the history of violations, I find that a penalty
of $300 is appropriate.

ORDER
It is ORDERED that S&S shall pay a penalty of $300.00 within thirty (30) days of this
decision.

/s/ Avram Weisberger
Avram Weisberger
Administrative Law Judge

Distribution (Via Certified Mail Return Receipt Requested):
Jonathan J. Hoffmeister, Esq., U.S. Department of Labor, Office of the Solicitor, 61 Forsyth
Street, S.W., Room 7T10, Atlanta GA 30303
Patty Schildt, Pro Se, S&S Dredging, 5126 Remington Court, N.W., Lilburn, GA 30047
/cmj

33 FMSHRC 1328

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

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.
BRODY MINING, LLC.,
Respondent.

May 23, 2011
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CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 2009-1000
A.C. No. 46-09086-178774-01
Docket No. WEVA 2009-1306
A.C. No. 46-09086-181457-01
Mine: Brody Mine No. 1

DECISION
Appearances: J. Matthew McCracken, Esq., United States Department of Labor, Solicitor’s
Office, Arlington, VA, for the Secretary of Labor
Amos H. Presler, Esq. USDOL, United States Department of Labor, Solicitor’s
Office, Arlington, VA, for the Secretary of Labor
Jason M. Nutzman, Esq. Smith, Moore, Leatherwood, LLP, Greenville, SC, for
the Respondent
George J. Oliver, Esq., Smith, Moore, Leatherwood, LLP, Raleigh, NC, for the
Respondent
Before:

Judge L. Zane Gill
Procedural History

This case consolidates WEVA 2009-1000 and WEVA 2009-1306 and arises from
petitions for civil penalties filed by the Secretary of Labor under Section 105(d) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. §§ 801 et seq., (the "Act").1 The petition charges
Brody Mining ("Brody”) with eight violations of mandatory standards and seeks civil penalties
for those violations, as summarized in the following table.

1

This penalty assessment case was originally filed as WEVA 2009-1000 and WEVA 2009-1001
on or about May 18, 2009. The two cases were consolidated initially and assigned to me. WEVA 2009
1000 subsumed two previously filed contest cases, WEVA 2009-0813-R and WEVA 2009-0814-R. On
or about June 7, 2010, counsel for the Secretary filed a motion to sever WEVA 2009-1000 from WEVA
2009-1001 and to consolidate WEVA 2009-1000 with WEVA 2009-1306, which had been assigned to
Judge Feldman. The severance and consolidation motion was granted on June 25, 2010, resulting in the
paring of WEVA 2009-1000 and WEVA 2009-1306 for purposes of this decision.

33 FMSHRC 1329

Cit/Ord
No.
8075863

Date Issued Inspect Standard
Docket No
or
January 15, Ward 75.370(a WEVA 2009-1000
2009
)(1)
8075864 January 15, Ward 75.360(b WEVA 2009-1000
2009
)(3)
8079178 January 22, Jackson 75.380(d WEVA 2009-1000
2009
)(1)
8079179 January 22, Jackson 75.400 WEVA 2009-1000
2009
8068033 October 8,
Ward
75.1403 WEVA 2009-1306
2008
8075874 February 11, Ward 75.370(a WEVA 2009-1306
2009
)(1)
8075906
March 3,
Ward 75.1722( WEVA 2009-1306
2009
a)
8079224 February 26, Jackson 75.400 WEVA 2009-1306
2009

Action

Penalty

104(d)( $5,211
2)
104(d)( $7,774
2)
104(d)( $56,929
2)
104(d)( $70,000
2)
104(d)( $4,099
2)
104(d)( $4,440
2)
104(d)( $4,000
2)
104(d)( $70,000
2)

Negligence
High
High
Reckless
Disregard
Reckless
Disregard
High
High
High
Reckless
Disregard

The general issue before me is whether Brody violated the standards as alleged and, if so,
what the appropriate civil penalty is for those violations. Additional specific issues are addressed
as noted. No objection was raised in the pleadings or during the trial to the jurisdiction of this
court over the case.
The case was heard on December 16 and 17, 2010, at the National Mine Academy in
Beckley, West Virginia.
Common Legal Standards
Concepts of negligence and gravity apply to all citations and orders under the Mine Act,
irrespective of whether the Secretary pursues enhanced enforcement. They are codified and
reduced to table form at 30 C.F.R. § 100.3 and form a defined and integral part of the penalty
assessment mechanism used by MSHA and its inspectors. The concepts of “significant and
substantial” and “unwarrantable failure” are applied, primarily to 104(d) orders2, as part of the
enhanced enforcement mechanism set forth in the Mine Act.
Negligence
Section 110(i) of the Mine Act requires that in assessing penalties the Commission must
consider, among other criteria, “whether the operator was negligent.” 30 U.S.C. § 820(I). Each
mandatory standard thus carries with it an accompanying duty of care to avoid violations of the
standard. An operator's failure to meet the appropriate duty can lead to a finding of negligence if
a violation of the standard occurs. The fact that a violation was committed by a non-supervisory
employee does not necessarily shield an operator from being deemed negligent. In this type of
case, we look to such considerations as the foreseeability of the miner's conduct, the risks
involved, and the operator's supervising, training, and disciplining of its employees to prevent
violations of the standard in issue. Southern Ohio Coal Co., 4 FMSHRC at 1463-64. See also
Nacco Mining Co., 3 FMSHRC at 848, 850-51 (April 1981) (construing the analogous penalty
2

The Mine Act also contemplates that “any citation given to the operator under this Act” may
form the basis for enhanced enforcement if the elements of “significant and substantial” and
“unwarrantable failure” can be proved. 30 U.S.C § 814(d)(1)

33 FMSHRC 1330

provision in 1969 Coal Act where a foreman committed a violation), cited in A. H. Smith Stone
Company, 5 FMSHRC 13, (January1983).
Negligence “is conduct, either by commission or omission, which falls below a standard
of care established under the Mine Act to protect miners against the risks of harm.” 30 C.F.R. §
100.3(d). “A mine operator is required […] to take steps necessary to correct or prevent
hazardous conditions or practices.” Id. “MSHA considers mitigating circumstances which may
include, but are not limited to, actions taken by the operator to prevent or correct hazardous
conditions or practices.” Id. Reckless negligence is when “[t]he operator displayed conduct
which exhibits the absence of the slightest degree of care.” Id. High negligence is when “[t]he
operator knew or should have known of the violative condition or practice, and there are no
mitigating circumstances.” Id. Moderate negligence is when “[t]he operator knew of should have
known of the violative condition or practice, but there are mitigating circumstances.” Id. Low
negligence is when “[t]he operator knew or should have known of the violative condition or
practice, but there are considerable mitigating circumstances.” Id. No negligence is when “[t]he
operator exercised diligence and could not have known of the violative condition or practice.” Id.
Gravity (“Seriousness”)
The gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), is
often viewed in terms of the seriousness of the violation. Sellersburg Stone Co., 5 FMSHRC
287, 294-95 (March 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984); Youghiogheny & Ohio Coal Co.,
9 FMSHRC 673, 681 (April 1987). However, the gravity of a violation and its S&S nature are
not the same. The Commission has pointed out that the “focus of the seriousness of the violation
is not necessarily on the reasonable likelihood of serious injury, which is the focus of the S&S
inquiry, but rather on the effect of the hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC
1541, 1550 (September 1996). The gravity analysis focuses on factors such as the likelihood of
an injury, the severity of an injury, and the number of miners potentially injured. The analysis
should not equate gravity, which is an element that must be assessed in every citation or order,
with “significant and substantial,” which is only relevant in the context of enhanced enforcement
under Section 104(d). See Quinland Coals Inc., 9 FMSHRC, 1614, 1622, n.1 (September 1987).
Gravity is “often viewed in terms of the seriousness of the violation.” Consolidation Coal
Co., 18 FMSHRC 1541, 1549 (Sept. 1996). The seriousness of a violation can be examined by
looking at the importance of the standard which was violated and the operator's conduct with
respect to that standard, in the context of the Mine Act's purpose of limiting violations and
protecting the safety and health of miners. See Harlan Cumberland Coal Co., 12 FMSHRC 134,
140 (Jan. 1990) (ALJ). The Commission has recognized that the likelihood of injury is to be
made assuming continued normal mining operations without abatement of the violation.
Consolidation Coal Co., 8 FMSHRC 890, 899 (June 1986).

33 FMSHRC 1331

Significant and Substantial
In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Federal Mine Safety and Health
Review Commission (“Commission”) explained that:
In order to establish that a violation of a mandatory safety standard is significant and
substantial under National Gypsum, the Secretary of Labor must prove: (1) the underlying
violation of a mandatory safety standard; (2) a discrete safety hazard – that is, a measure
of danger to safety – contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury; and (4) a reasonable likelihood that the
injury in question will be of a reasonably serious nature.
Id. at 3-4. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125 (Aug. 1985), the Commission held:
We have explained further that the third element of the Mathies formula “requires that the
Secretary establish a reasonable likelihood that the hazard contributed to will result in an
event in which there is an injury.”... We have emphasized that, in accordance with the
language of section 104(d)(1), it is the contribution of a violation to the cause and effect
of a hazard that must be significant and substantial.
Id. at 1129 (internal citations omitted) (emphasis in original). The question of whether a
particular violation is significant and substantial must be based on the particular facts
surrounding the violation. See Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny &
Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
S&S enhanced enforcement is applicable only to violations of mandatory standards.
Cyprus Emerald Res. Corp. v. FMSHRC. 195F.3d42 (D.C. Cir. 1999)
Unwarrantable Failure
The term “unwarrantable failure” comes from section 104(d) of the Act and, taken
together with “significant and substantial,” creates a standard for enhanced enforcement
procedures, including withdrawal orders and potential enhanced liability, if a pattern of
violations is eventually proved. Existing Commission authority is less than clear in defining the
terms and tends to imply that they refer simply to more serious conduct by an operator in
connection with a violation.
In Emery Mining Corp., 8 FMSHRC 1997 (Dec. 1987), the Commission determined that
unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at
2001. Unwarrantable failure is characterized by such conduct as “reckless disregard,”
“intentional misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at 2003-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal
Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission's unwarrantable
failure test). The Commission has examined various factors in determining whether a violation is
unwarrantable, including the extent of a violative condition, the length of time that it has existed,
whether the violation is obvious, or poses a high degree of danger, whether the operator has been
33 FMSHRC 1332

placed on notice that greater efforts are necessary for compliance, and the operator's efforts in
abating the violative condition. Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994);
Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC
705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603 (July 1984); BethEnergy
Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Warren Steen Constr., Inc., 14 FMSHRC
1125, 1129 (July 1992). The Commission has also examined the operator's knowledge of the
existence of the dangerous condition. e.g., Cyprus Plateau Mining Corp., 16 FMSHRC 1604,
1608 (Aug. 1994) (affirming unwarrantable failure determination where operator aware of brake
malfunction failed to remedy problem); Warren Steen, 14 FMSHRC at 1126-27 (knowledge of
hazard and failure to take adequate precautionary measures support unwarrantable
determination); see also Consolidation Coal Co., 23 FMSHRC 588, 593 (June 2001).
It is clear in the Mine Act that since negligence and gravity, which are clearly delineated
in 30 C.F.R. § 100.3 and related tables, apply to all citations and orders, the enhanced
enforcement provisions set out in Section 104(d) contemplate something distinct and “more,”
when talking about “significant and substantial” and “unwarrantable failure.” The Secretary
must prove negligence and gravity for all citations and orders and, in order to invoke the
enhanced enforcement plan in Section 104(d), also must prove that the circumstances of the
violation satisfy both the “significant and substantial” and “unwarrantable failure” standards. If
the Secretary fails to prove both, there can be no enhanced enforcement. The Secretary has to
prove four distinct elements3 when the enhancement scheme in Section 104(d) is alleged: (1)
negligence; (2) gravity; (3) “significant and substantial;” and (4) “unwarrantable failure.” As a
result of this, I generally treat the two groupings and each element in each grouping separately.
In the interest of clarity, I see no advantage in blurring the distinctions between and among the
concepts, the groupings, or the elements.
Findings of Fact - Conclusions of Law
The orders in this case arise from MSHA inspections of Brody’s No. 1 mine, MSHA ID
No. 46-09086, located in Boone County, WV.4 The contested citations were written by MSHA
Inspectors, Charles H. Ward5 and James Jackson on six different dates between October 8, 2008,
and March 3, 2009, as shown in the table above.
Dockets
[1.0] WEVA 2009-1000
Docket WEVA 2009-1000 comprises four citations/orders listed below as 1.1 through
1.4.

3

The Secretary must also prove the existence of the underlying strict liability violation of a
health or safety standard.
4
According to the public data maintained by MSHA on its website, Brody No. 1 mine is
operated by Brody Mining, LLC, and the operation is owned by the Brody Trust.
5
Ward assumed the duties of MSHA Health Specialist in December 2008. (Tr.15:22-16:21)

33 FMSHRC 1333

[1.1] Order No. 8075863 reads as follows:
“The Approved Ventilation Methane and Dust Control Plan for the 009-0 MMU is [sic]
not been complied with. The approved plan requires 3,00[0]6 CFM behind the line curtain in all
idle faces. When using an approved calibrated anemometer behind the line curtain in the No.6
working face, the air measured 1,974 CFM. [At] [t]he No.5 working face behind the line curtain,
the air measured 1,462 CFM. The operator was placed on heighten [sic] alert during this
inspection. The mines [sic] liberates 1.5 million cube [sic] feet of methane in [a] 24 hour period.
This citation is unwarrantable failure to comply with a standard. Mine management has
engaged in aggravated conduct by failure to take actions on this hazard.”
Exhibit S-2
The gravity of the violation was assessed as reasonably likely to result in lost workdays or
restricted duty for five persons and as significant and substantial (S&S). The S&S designation
was dropped by the Secretary at the hearing. (Tr. 12:6-13) It was written as a 104(d)(2) order, an
unwarrantable failure to comply with a mandatory standard. The operator’s negligence level was
assessed as “high”, and the proposed fine is $5,211.00. (Petition for Assessment of Penalty)
The Standard
30 C.F.R. § 75.370(a)(1) states: “The operator shall develop and follow a ventilation plan
approved by the district manager. The plan shall be designed to control methane and respirable
dust and shall be suitable to the conditions and mining system at the mine. The ventilation plan
shall consist of two parts, the plan content as prescribed in §75.371 and the ventilation map with
information as prescribed in §75.372. Only that portion of the map which contains information
required under §75.371 will be subject to approval by the district manager.”

6

Trial testimony makes it clear that this number should be 3,000 and not 3,00. (Tr. 39:23-40:24)

33 FMSHRC 1334

The Evidence
Ward inspected the Brody No. 1 Mine on January 15, 2009. He wrote the order in
Exhibit S-2, No. 8075863. (Tr. 25:15-24) He testified that he wrote the order because he found
that the fly pads7 at the No. 5 and No. 6 faces were being blown straight out by the ventilation
airflow. As a result, the air was not going where it was intended. Instead of being diverted and
directed by the fly pads, it was going under and through them at the last open break and exiting
the section. Ward measured 1,462 CFM of airflow at the No. 5 face and 1,974 CFM at the No. 6
face. The ventilation plan for this mine calls for at least 3,000 CFM behind the line crew. (Tr.
26:15-27:8)
Brody asserted at trial that there should be a substantive distinction drawn between
airflow volumes at “idle” vs. “active” faces. (Tr. 69:19-72:1)8 Brody also intimated in its
questioning of witnesses that the focus of this order should have been whether the airflow,
regardless of the measurable volume, was effective in removing methane from the faces rather
than whether the airflow volume was at least 3,000 CFM, as required by the mine ventilation
plan. On cross examination, Ward agreed that if there is no methane present, there is no chance
for a methane ignition. (Tr. 76:20-77:2) And, the evidence showed that in January 2009, after
this order was written, the ventilation plan was changed to focus more on whether the ventilation
effectively removed methane rather than on the actual measurable volume of air at the faces. (Tr.
49:24-51:1; 74:6-23; 358:14-359:8)9 But, there is no dispute that the ventilation plan in place
when this order was written called for measurable airflow volume of at least 3,000 CFM at all
faces. (Tr. 74:6-23; 379:15-380:3) There is also no dispute that Ward obtained reliable airflow
readings of 1,462 CFM at the No. 5 face and 1,974 CFM at the No. 6 face while the 3,000 CFM
requirement was in place. (Tr. 380:9-381:11) Finally, it is clear that those two measurements
were not in compliance with the ventilation plan in place at that time. (Tr. 381:12-18)
The Mine Act is a strict liability statute, and an operator is liable for a violation of a
mandatory safety standard regardless of its level of fault. Spartan Mining Co., 30 FMSHRC 699,
706 (Aug. 2008); Asarco, Inc., 8 FMSHRC 1632, 1634-36 (Nov. 1986), aff'd, 868 F.2d 1195
(10th Cir. 1989). In Asarco, the Commission concluded that “the operator's fault or lack thereof,
rather than being a determinant of liability, is a factor to be considered in assessing a civil
penalty.” Id. at 1636.

7

Fly pads are temporary, semi-clear plastic airflow control devices hung like curtains from the
ceiling to direct ventilation air. They are about four feet wide and overlapped so as to be passable by
equipment while still directing airflow. (Tr. 34:16-35:3 and 291:7-18)
8
The distinction between “idle” and “active” is of no import in relation to the issue of strict
liability under the regulations. The regulatory standard relevant to this order requires ventilation airflow
of at least 3,000 CFM at any face. Anything less than that constitutes a strict liability violation. It does
have relevance as to the degree of negligence, as discussed further below.
9
With the change in the ventilation plan that happened in January 2009, this event would not
have been a violation. The plan now focuses on whether there is any detectable methane above 1%
behind the line curtain and not on the volume of airflow. (Tr. 85:12-24; 50:15-21; 86:3-9)

33 FMSHRC 1335

Accordingly, I conclude that the Secretary has proved a violation of the standard, as
alleged in Order No. 8075863.
Significant and Substantial.
The Secretary stipulated that Order Number 8075863 was not a significant and
substantial violation of 30 C.F.R. Section 75.370(a)(1).
Negligence.
The Secretary alleges that the conditions described in Order No. 8075863 and the
evidence relating to them constitute “high” negligence, as that term is used at 30 C.F.R.
§100.3(d) (Table X). High negligence describes a situation in which the operator knows or
should know of a violative condition or practice, and there are no mitigating circumstances.
Brody addresses this point on two fronts: (1) A distinction should be drawn on the basis
of whether the faces in question were “idle”. The implication is that there should be a
substantive difference in the way the standard is applied based on whether the area is being
actively mined at the time of the inspection, even though the regulations are silent with respect to
this distinction10; and/or (2) The fact that there was no detectable methane at either face proves
that it was not guilty of “high” negligence. This is, in effect, the “no harm – no foul” argument.
This argument moves the focus from the unambiguous requirement in the mine ventilation plan
that there be airflow of at least 3,000 CFM at all faces to whether the underlying purpose for the
airflow requirement has been effectively addressed. The argument is that negligence should be
lower because the ends (no detectable methane) take precedence over the means ( the exact
amount of airflow). (Tr. 386:11-387:17) This is an appropriate issue in the context of mitigating
circumstances, which are, in turn, relevant to the degree of negligence to be assessed.
Mitigation is but one prong of a two-prong negligence analysis. The other element is
whether the operator knew or should have known of the violating condition. The violating
condition in this analysis is the low airflow at the faces, not the fact that this mine is considered
“gassy.” There is no dispute between the parties that this is a “gassy” mine. Ward was aware
that the mine liberates approximately 1.5 million cubic feet of methane per 24 hours. He felt that
even though this area was arguably idle at the time, with that volume of methane, there is always
a danger of explosion in any part of the mine that is not adequately ventilated. (Tr. 28:16-29:10)
Jay Heiss, a Brody third shift move boss at the time of this violation, also testified that this mine
is known as a “gassy” mine and produces around 1.5 million cubic feet of methane per day. (Tr.
318:16-21)

10

The CFR does not have a definition for “idle face.” It does have one for “working space.”
Ward’s definition for “idle face” is a place in a mine where there are no miners present and coal is not
being presently extracted. Ward is not certain, but he cannot say that there was anyone working at the
No. 5 or 6 face. In his deposition six months earlier, he said there were no men working in those areas.
(Tr. 69:19-72:1)

33 FMSHRC 1336

Although Ward considered the low volume of ventilation air to be the hazard rather than
the relative concentrations of methane and oxygen (Tr.75:23-76:19), he considered it more than a
simple violation that Brody failed to follow its ventilation plan, even though there was no
methane/oxygen hazard. (Tr. 77:3-78:13) Ward’s review of the pre-shift examination report
showed him that there was no measurable methane. (Tr. 69:3-18 ) He took methane readings at
all of the mine faces that day; there was zero methane and 20.8% oxygen, which is normal. (Tr.
75:3-19; 80:3-82:9) Ward considered this mine to meet the definition of a “gassy” mine under
Section 103(i) of the Mine Act,11 which to him meant that there was increased risk of a methane
explosion which justified increased vigilance on the part of the inspector and the operator. (Tr.
28:16-30:23) It appears that Ward thought the low airflow measurements justified the
assignment of high negligence, at least in part, just because this is a gassy mine.
However, the fact that this mine is gassy is not a violation of the standard. It also appears
that Ward decided to make more of the gassy nature of this mine than the fact that there was no
measurable methane present when he chose to charge this at the level of “high negligence.” For
example, at the hearing he testified that, even though these orders had been negotiated to
eliminate the S&S designation as originally charged, the danger was still there. In his view, the
fact that the mine liberates 1.5 million cubic feet of methane per twenty-four hours justifies a
charge of “high negligence.”
I find that this violation did not result from “high negligence.” The definition of
“moderate negligence” in 30 C.F.R. §100.3(d) fits these facts more closely. According to 30
C.F.R. §100.3(d) (Table X), moderate negligence is when “[t]he operator knew or should have
known of the violative condition or practice, but there are mitigating circumstances.” Brody is
attributed with knowledge of the low airflow at the faces, but the lack of any measurable methane
is a mitigating circumstance which justifies a finding of moderate negligence.12
Unwarrantable Failure
In order to establish unwarrantable failure under the Commission’s case law, there must
be a showing of aggravated conduct - significantly more than ordinary negligence - characterized
by “reckless disregard,” “intentional misconduct,” “indifference,” or a “serious lack of
reasonable care.” Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987) at 2003-04. Other
relevant factors to consider include the length of time a violating condition has existed, the
operator’s efforts to abate the condition, whether the operator has been placed on notice that
greater efforts are necessary to assure compliance, the operator’s knowledge of the violating
11

“For purposes of this subsection, ‘liberation of excessive quantities of methane or other
explosive gases’ shall mean liberation of more than one million cubic feet of methane or other explosive
gases during a 24-hour period.” 30 U.S.C. 813(i)
12
I am aware that Ward claims to have put Brody on notice that he would be more aggressive in
his enforcement of this standard based on his opinion that this being a gassy mine justified stricter
enforcement, and I am aware that Ward wrote several other similar citations during his tenure as MSHA
inspector for this mine, but I am not persuaded that his announcement of his intentions is enough to make
this strict liability violation subject to enhancement for the reasons stated above. (Tr. 31:10-32:19;
33:21-34:15)

33 FMSHRC 1337

condition (or lack thereof), and whether the violation poses a high degree of danger. See
Consolidation Coal Co., 23 FMSHRC 588, 593 (June 2001).
Ward issued the order under Sec. 104(d) for unwarrantable failure to comply with a
mandatory safety standard. (Tr. 26:15-27:8) He wrote this order as “unwarrantable” because, in
his experience a mine like this13, should have ventilation of at least 3,000 CFM at the idle faces.
He wrote a series of 104(a) citations over the six months that he had been inspecting this mine.
He was concerned about the lack of airflow at the 3,000 CFM level in the plan and had put
management on alert that he would consider future violations of the 3,000 CFM limit an
unwarrantable failure. (Tr. 29:15-30:23) Ward concluded from the timing of events that the fly
pads were blowing up at the time of the pre-shift report, even though the report does not mention
anything about them. (Tr. 72:6-24) He concluded that the fly pads were not properly constructed
or hung, viz they were only a single layer thick. When they were corrected in response to this
order, they were doubled and tripled. When the fix was done, the airflow rose to 4,368 CFM at
the end of the line curtain. (Tr. 73:6-22)
As mentioned above regarding mitigation and the “high negligence” standard, the fact
that there was no detectable methane is a mitigating factor. It should be noted that there is no
evidence, other than a possible inference, that this was the result of the operator’s care or
diligence – it appears to be a fortuitous circumstance. The violating condition was the low
airflow and defectively deployed fly pads. It is appropriate to attribute to Brody knowledge of
the low airflow and how to properly deploy fly pads. It is also clear that Brody was aware of the
gassy mine issue that weighed on Ward’s mind. However, the fact that there was no measurable
methane, whether it is attributable to anything Brody did or not, does act to mitigate.
It is quite apparent that Ward placed more emphasis on the airflows than the resulting
methane levels. It is fair to conclude from these facts that Ward was more interested in
addressing the potential for an ignition in this gassy mine than the facts relevant to the low
airflows that underlie this order.14 The back-and-forth between MSHA and Brody evident in the
changes in the ventilation plan and Ward’s role in it are evidence of this. Brody was clearly
aware of the gassy nature of this mine, but that is not the appropriate focus of this analysis. The
issue is whether Brody knew or should have known of the low airflows, not whether it knew that
this was a gassy mine. Ward, on the other hand, placed more emphasis on the form of the
regulation (the airflow measurements) and less on the substance (the lack of measurable
methane). So, in this regard, the fact that there was no “harm” does affect the assessment of the
“foul.” In sum, there are two elements that mitigate negligence and weigh against a finding of
unwarrantable failure: (1) Ward’s personal emphasis on airflow rather than the result of the
airflow; and (2) the lack of any measurable methane. The fact that there was no measurable
13

Ward referred to this mine as a “103-I methane mine”.
This is not an inappropriate issue for a MSHA inspector to take into account. However,
placing extra emphasis on a “potential” condition when addressing actual events cannot bridge the gap
between these facts and the quantity and quality of facts needed to prove unwarrantable failure.
14

33 FMSHRC 1338

methane is relevant and material, and Brody is correct to argue that absence of measurable
methane is one of the ultimate objectives of requiring adequate airflow at the faces. Although
Brody cannot take direct credit for the fortuitous lack of measurable methane under these facts, it
also cannot be penalized by Ward’s emphasis on the potential of a methane ignition in a gassy
mine. I conclude that this violation did not arise from an unwarrantable failure on Brody’s part.
Gravity
For the reasons stated above, I conclude that the facts do not support the Secretary’s
gravity allegation, i.e., that these conditions are “reasonably likely” to result in “lost workdays or
restricted duty” for five persons. The gravity designation is modified to “unlikely” to result in
lost workdays or restricted duty for five persons.
Summary and Decision for Order No. 8075863
The Secretary alleged that Brody was strictly liable for violating 30 C.F.R. § 75.370(a)(1)
because measured airflows behind the line curtain at the No. 5 and 6 working faces at Brody
Mine No. 1 were less than 3,000 CFM, as required by the Approved Ventilation Methane and
Dust Control Plan in place at the time. The evidence establishes the strict liability violation.
The Secretary also alleged that Brody’s violation constituted an unwarrantable failure to
comply with 30 C.F.R. § 75.370(a)(1), that there was “high” negligence, that the violation was
reasonably likely to result in lost workdays or restricted duty for five persons, and that the
violation was significant and substantial (S&S). The evidence does not support these allegations
for the reasons stated above. I conclude that this violation is the result of moderate negligence,
and the violation is “unlikely” to result in “lost workdays or restricted duty” for five persons.
The proposed penalty is $5,211.00. In reference to Sections 105(b) and 110(i) of the
Mine Act and 30 C.F.R. §100.3(d), I conclude that the penalty should be reduced to $350.00.

33 FMSHRC 1339

[1.2] Order No. 8075864 reads as follows:
“An inadequate pre-shift examinations [sic] was conducted on the active 001-009 MMU,
No. 1 Section for the day shift on this date. The person conducting the pre-shift examination
shall examined [sic] for hazards. The appropriate ventilation plan requires 3,000 CFM in all idle
faces. Citation is issued for low air in the No. 5 and 6 working face. The condition of the line
curtains and controls were [sic] very obvious that the each [sic] working face to the most casual
observer did not contain 3,000 CFM behind the line curtain at the working faces. The operator
was placed on heighten [sic] alert during this inspection. The mines [sic] liberates 1.5 million
cube [sic] feet of methane in [a] 24 hour period. This citation is unwarrantable failure to comply
with a standard. Mine management has engaged in aggravated conduct by failure to take actions
on working faces by a certified person.”
Exhibit S-4
The gravity was assessed as reasonably likely to result in lost workdays or restricted duty
for 14 people and as S&S.15 It was also written as a Section 104(d)(2) violation, an
unwarrantable failure to comply with a mandatory standard. The operator's negligence level was
assessed as “high,” and the proposed fine is $7,774.00.
The inspector alleged that Brody failed to perform an adequate pre-shift examination on
the 001-009 MMU because the line controls in the No. 5 and No. 6 faces did not have 3,000
CFM behind each line curtain. The inspector alleged that the condition was reasonably likely to
cause an injury resulting in lost workdays for fourteen persons.
The Standard
Section 75.360(b)(3) of the Department's regulations, 30 C.F.R. § 75.360(b)(3), requires
that a coal mine operator must, prior to every shift, examine every working area for potential
hazards. “The scope of the examination shall include the working places, approaches to worked
out areas and ventilation controls on these sections and in these areas. 30 C.F.R. §75.360(b)(3)
(emphasis added). The Commission has recognized that the preshift examination requirements
are "of fundamental importance in assuring a safe working environment underground." Secretary
of Labor (MSHA) v. Buck Creek Coal Co., 17 FMSHRC 8, 15 (Jan. 1995); see also 61 Fed. Reg.
9764, 9790 (Mar. 11, 1996) ("The preshift examination is a critically important and fundamental
safety practice in the industry. It is a primary means of determining the effectiveness of the
mine's ventilation system and of detecting developing hazards, such as methane accumulations,
water accumulations, and bad roof.").

15

The S&S designation was dropped by the Secretary at the hearing. (Tr. 12:6-13)

33 FMSHRC 1340

The Evidence
On January 15, 2009, Ward wrote an order for failure to conduct a thorough and accurate
pre-shift examination on the 001-009 MMU, because the line controls in the No. 5 and No. 6
faces did not have 3,000 CFM behind each line curtain. (Exhibit S-4, Order No. 8075864)16
Ward concluded that the operator could not have done a competent pre-shift examination
because he concluded that: (1) The fly pads at the No. 5 and No. 6 faces had been pushed out for
the entire shift, including the time when the pre-shift examination should have been done.
(Tr.41:14-43:11); (2) The airflow readings were below ventilation plan specifications when he
checked them, implying the likelihood that they were low at the time of the pre-shift examination
as well17; and (3) The pre-shift examination report for January 15, 2009, (Exhibit S-5) did not
mention anything about defective ventilation controls or low airflows, indicating, in light of
items (1) and (2), that the pre-shift examination could not have been conducted in compliance
with the standard. (Tr. 43:15-24)
Ward tested for methane when he checked the airflow for three orders, No. 8075863, No.
8075864 (the present order), and No. 8075874. In each instance, he got zero methane readings.
Ward’s view is that there is still a danger with low airflows, even in the absence of methane.
Adequate airflow is required to evacuate methane if it should be present. (Tr. 48:13-49:10)
Prior to issuing Order Number 8075864, Ward reviewed Brody’s pre-shift report for the
section where the No. 5 and No. 6 faces were located and confirmed that no hazards were noted.
(Tr. 69: 3-11) Prior to issuing Order Number 8075864, Ward confirmed that Brody’s pre-shift,
daily, and on-shift reports, examiner’s dates, times, and initials were present, which indicated
that this pre-shift examination was completed. (Tr. 80:4-9 and Exhibit R-2)
Jay Heiss, Brody’s third shift move boss, testified that as part of his pre-shift
examination, he checked that the section was clean and rock dusted in the faces, that the curtain
was hung properly, that there was proper airflow behind the curtains and proper airflow through
each of the last open breaks, and checked for methane in every face. (Tr. 290:17-291: 1)
According to Heiss, Brody hangs fly pads in the intersections to push air towards the faces. (Tr.
291:7-12) There are approximately five fly pads on each board which can be doubled or tripled
to hold the air back depending on the air pressure. (Tr. 291:20- 23)
Heiss testified that at the time he completed his pre-shift examination on January 15,
2009, proper ventilation controls were in place. (Tr. 301:16-18)
According to Heiss, if Brody’s scoop operators are running behind cleaning and rock
dusting the faces of sections, they will complete those tasks after the pre-shift examination is
completed. (Tr. 300:17-301: 3) It is possible that a scoop could have come by after the pre-shift
examination and bumped the fly pad, causing it to lift up. (Tr. 301:6-11) When completing the
cleaning and rock dusting process before the start of the new shift, the No. 5 and No. 6 faces are
normally the last faces to be rock dusted. (Tr. 309:8-15)
16
17

This order is related to the fly pad violation covered in Order No. 8075863.
See the discussion of Order No. 8075863 for details about the condition of the fly pads.

33 FMSHRC 1341

According to Heiss, Brody management informed its miners to keep a close eye on
ventilation to make sure that everything was correct in the faces. (Tr. 318:8-15)
Carl Blankenship, the Safety Manager for Brody Mining, testified that fly pads being
blown straight out like this is a sign that there is a lot of airflow in the area. But, he agreed that it
could also indicate that there may not be adequate airflow where it is needed, e.g., at the face
area.18 Ward suspected as much, checked the airflow at the face, and found that it was below the
amount called for in the ventilation plan. (Tr. 384:11- 386:10) Blankenship also speculated that
the fly pads were knocked out of place by a piece of equipment after the pre-shift examination
was conducted, but before the end of the prior shift. (Tr. 358:3-13) However, no coal had been
mined during the prior shift. The prior shift was a non-production, maintenance shift. (Tr.
42:13-23)
Discussion
I conclude from the preponderant evidence that Brody’s pre-shift examination did not
satisfy the requirements of 30 C.F.R. § 75.360(b)(3). It is appropriate to consider the fact that
three19 of the eight order/citations comprising this consolidated docket deal with the ventilation
plan, alleging either that airflows were inadequate or that conditions relating to the airflow
controls constituted violations of their respective standards. This weighs against the argument
that this was a one-off event that is not representative of how Brody operates this mine. Brody’s
argument rests on two pillars: (1) The records of the pre-shift examination contradict Ward’s
allegations; and (2) It is possible that the condition of the fly pads and the resulting low airflows
were caused by an event after the pre-shift examination was conducted and recorded. The first of
these arguments deserves more attention than the second. However, in order to give it sufficient
decisional weight, I would have to place considerable reliance on the speculation that something
intervened after the pre-shift report to create the conditions Ward observed and on which be
based this order. I cannot go this far. I give more weight to Ward’s observations. I cannot join
in Brody’s speculation that there was an intervening event, nor am I convinced that the pre-shift
examination described the conditions in the mine at the time.

18

According to Blankenship, it is not out of the ordinary to see a fly pad lifted up a little by the
airflow. That is just evidence of good air volumes. (Tr. 360:11-17)
19
Orders No. 8075863, 8075864, and 8075874,

33 FMSHRC 1342

Violation / Negligence
The standard found at 30 C.F.R. § 75.360(b)(3) requires that a coal mine operator must
examine every working area for potential hazards, including ventilation controls, prior to each
shift. In this instance, there is a significant disconnect between Ward’s inspection findings and
Brody’s pre-shift examination records. There is no evidence to challenge the accuracy of Ward’s
inspection findings or the method he used to test the airflow. Brody’s witnesses suggested that
some intervening cause might have accounted for the discrepancy between their pre-shift reports
and Ward’s inspection results, but I cannot agree, with nothing more than speculation for
support. I find and conclude from the evidence that Brody’s pre-shift examination, as reflected
in their pre-shift report records, did not satisfy the requirements of 30 C.F.R. § 75.360(b)(3).
The negligence attributable to Brody’s failure to adequately conduct its pre-shift report
does not derive from the negligence allegation of Order No. 8075863. Failure to conduct and
document an effective pre-shift report carries its own potential consequences and does not
depend on the conditions described in the related low airflow order. I can infer from the
defective condition of the fly pads that the condition existed at the time of the pre-shift
examination and report.
I have found that the violation alleged in Order No. 8075863 had moderate negligence,
but that conclusion was the result of taking into account the mitigating effect of the underlying
conditions relating to the faulty fly pads. In this instance, there is nothing to mitigate the
deficient pre-shift examination or related report. The fact that there was no detectable methane
does not mitigate the fact that the examination and report missed the fly pad problem. As a
result, the knowledge attributed to Brody for the violation in Order No. 8075863 carries over to
this violation, but not the mitigating effect of no detectable methane. The failure here is not with
how the fly pads degraded the ventilation plan, it is with the thoroughness and reliability of the
examination process. I conclude, therefore, that Brody’s negligence in relation to this violation
was high.
Gravity
The Secretary alleges that the same facts that support the underlying fly pad violation
should support the faulty pre-shift report violation. There is no separate allegation or separate
proof that the faulty pre-shift examination itself was likely to cause injury to miners independent
of the underlying fly pad violation. The gravity of a faulty examination and report must derive
from the hazard the examination missed. Therefore I conclude that the gravity ruling for Order
No. 8075863 applies here as well. The gravity designation is modified to “unlikely.”
Significant and Substantial.
The Secretary stipulated that Order No. 8075864 was not a significant and
substantial violation of 30 C.F.R. Section 75.370(a)(1).

33 FMSHRC 1343

Unwarrantable Failure
Here, too, the Secretary alleges that the same facts that support the underlying fly
pad violation should support the faulty pre-shift report violation. This alleged violation derives
from the underlying fly pad violation in Order No. 8075863. There is no separate allegation or
separate proof that this faulty pre-shift examination order was anything more than a derivative
action based on the deficient pre-shift examination report related to Order No. 8075863.
Therefore I conclude that the unwarrantable failure ruling for Order No. 8075863 applies here as
well. I conclude that this violation did not arise from an unwarrantable failure on Brody’s part.
Summary and Decision for Order No. 8075864
On January 15, 2009, inspector Charles Ward issued Order Number 8075864, a 104(d)(2)
order alleging high negligence and a violation of 30 C.F.R. Section 75.360(b)(3). Specifically,
the inspector alleged that Brody failed to perform an adequate pre-shift examination on the 001
009 MMU because the line controls in the No. 5 and No. 6 faces did not have 3,000 CFM behind
each line curtain. The inspector alleged that the condition was “reasonably likely” to cause an
injury resulting in lost workdays to fourteen persons. The Secretary proposed a fine of
$7,774.00.
For the reasons stated above, I conclude that Brody’s negligence was high, that the
conditions underlying this violation were unlikely to cause injury amounting to anything more
than lost workdays or restricted duty for fourteen persons, that the violating condition was not
significant and substantial, and that Brody’s actions did not constitute an unwarrantable failure to
comply with the standard. The penalty will be adjusted to $1,400.00.
[1.3] Order No. 8079178 reads as follows:
“The primary escape way on the No. 3 section at Break 7 to Break 8 is not maintained in
a safe condition to assure passage of anyone including disabled persons. Water covers the entry
for approximately 175 feet, rib to rib, and was measured 12 to 20 inches deep in one area. The
water is black to brown in color and is not transparent. The coal and rock under the water makes
[sic] travel perilous. This condition is obvious, extensive, has existed for numerous shifts and
was known by the foreman and examiners, who recorded it as ‘Water at Break 7 in the primary
escape way’. This is more than ordinary negligence and the operator displayed aggravated
conduct in allowing persons to work with only one escapeway. This is unwarrantable failure to
comply with a mandatory standard.”
Exhibit S-8
The gravity was assessed as reasonably likely to result in fatalities for eight people and as
S&S. It was also written as a Section 104(d)(2) violation, an unwarrantable failure to comply
with a
33 FMSHRC 1344

mandatory standard. The operator's negligence level was assessed as “reckless disregard”, and
the proposed fine is $56,929.00.
The Standard
30 C.F.R. §75.380(d)(1) provides: “Each escapeway shall be -- (1) Maintained in a safe
condition to always assure passage of anyone, including disabled persons.”
The Evidence
On January 22, 2009, inspector James Jackson issued Order Number 8079178, a
104(d)(2) order with reckless disregard, alleging a violation of 30 C.F.R. Section 75.380(d)(1),
which provides:
Each escapeway shall be—
(1) Maintained in a safe condition to always assure passage of anyone,
including disabled persons.
Inspector Jackson alleged that Brody failed to maintain the primary escapeway on the No.
3 section at Break 7 to Break 8 because of presence of water in the entry for approximately 175
feet and 12 to 20 inches deep. He also alleged that the condition was reasonably likely to cause a
fatal injury to eight persons. The Secretary assessed a penalty of $56,929.00.
James Jackson is an MSHA mine inspector in Region 4 out of the Madison, WV Field
Office. (Tr. 104:18-105:1) Jackson assisted Inspector Ward with some of the Brody mine
inspections relevant to this order. Jackson was coming on as a new inspector for this mine at the
time relevant to this order. (Tr. 33:1-20) This order arises from Jackson’s inspection of the
Brody No. 1 mine on January 22, 2009.20 He wrote the order for the blocked escapeway in
question here. Jackson was accompanied by a trainee inspector, Elmer Borne. (Tr. 107:15-23
and Exhibit S-8)
Prior to issuing Order No. 8079178, Jackson and Borne reviewed Brody’s examination
records which noted water at Break 7 in the primary escapeway of the No. 3 Section. (Tr. 108:4
21; 130:3-6 and Exhibit S-9) Brody’s weekly examination for the week ending January 24,
2009, for the No. 3 section revealed that water existed at Break 7 on January 21, 2009. (Tr.
166:8-14 and Exhibit R-3) The water condition was first noted, according to the weekly
examination report, on Wednesday, January 21, 2009. (Tr. 195:3-12 and Exhibit R-3) Brody’s
daily and on-shift examination for January 22, 2009, revealed that it was pumping water at this
location. (Tr. 169:1-7 and Exhibit R-3)

20

Jackson was on Section Number 3 on Wednesday, January 21, 2009, but did not issue a
citation or order to Brody for accumulations of water in this escapeway. (Tr. 188:10-19)

33 FMSHRC 1345

Jackson and Borne went to Section 3. Jackson attended to the lifting of another citation,
and Borne went to Break 7 to check on the water. Borne returned and reported to Jackson that
there was water 12"-20" deep covering about 175 feet from rib to rib. Jackson testified that the
bottom was uneven and the water was too cloudy to see the bottom. Jackson concluded the area
was unsafe to travel through. The inspectors instructed the foreman to withdraw his miners from
that area. (Tr. 109:12-110:12)
Jackson measured the water with a metal rule. (Tr. 111:15-17; 131:10-14) He did not
travel the entire distance of the water accumulation to determine how deep it was, to see if the
accumulations were black in color, or if the floor was smooth or passable for the entire distance
of the accumulations. (Tr. 132:3-16) Jackson estimated that the area covered by water was 175
feet by counting the rows of roof bolts. There is a row of bolts every four feet. (Tr. 111:20
112:1)
Glenn Fields, has been Brody’s Mine Superintendent since 2006. (Tr. 184:4-7) Fields is
not required to by law, but he does review all of Brody’s examination record books on his own.
(Tr. 184:8-21) Fields traveled with Jackson on the day Jackson wrote the order for the water in
the escapeway. Fields saw Jackson measure the water with a ruler close to the pump. (Tr.
185:14-186:1) However, Fields disputes that Jackson went into the water to the level of twenty
inches. (Tr. 186:2-7) Exhibit R-3 states that the water was twelve to twenty inches deep. Fields
testified that it was only twelve inches deep. (Tr. 211:23-212:5) Fields did not see Jackson
measure the water with a ruler. But, he also did not challenge Jackson’s intention to write a
citation by showing him that the water was only twelve inches deep by walking out into it. (Tr.
212:6-214:2) Fields cannot dispute the record notation (Exhibit. R-3) that the water hazard
covered an area approximately 175 feet long and from rib to rib. (Tr. 211:13-22)
Prior to Jackson’s issuing Order No. 8079178, Brody had already placed a pump in the
primary escapeway. (Tr. 113:7-13; 129:23-130:2; and 191:20-22) According to Jim Epperly,
Brody’s General Mine Foreman, Brody had completed a section move on the prior shift and
moved the cable line supplying power to the pump. (Tr. 178:21-179:4) According to Glenn
Fields, Brody’s Superintendent, as part of the section move, Brody’s miners have to travel
approximately one and a half miles to pull the power off of the power center, lock and tag out the
cable, pull the cables up with the section move, and then return to the power center to hook the
power back up. (Tr. 191:5-16) After the section move, the cable that went to the pump had not
been moved up because there was not enough cable on it. (Tr. 191:17-19) According to Jim
Epperly, at the time the inspector issued Order No. 8079178, Brody was in the process of adding
additional cable to the pump in order to continue pumping the water out of the section. (Tr.
180:12-15) At the time of this order, all equipment in the area was energized, except the pump.
(Tr. 214:3-216:21)
Brody had tried to pump the water, but it was too soupy. They also tried to scoop it up,
without success. So, they built a bridge over it. (Tr. 112:5-16) Jackson noted in his records that
the pump found in the area was not energized and did not have a drain line attached. Jackson
testified that miners told him that they had been using the pump until the mining advanced
beyond it. When they moved the power center to stay with the advance, they did not have enough
cable to reach the pump, so they just left it where it was. (Tr. 113:4-13)
33 FMSHRC 1346

The area in question was a primary escapeway. Jackson explained that in the event of a
mine accident, this is the way miners would exit the mine. Jackson and Borne tried to walk
through it, but determined they could not. (Tr. 110:13-111:3) Aubrey Hartman, Brody’s Day
Shift Foreman, testified that he did not have any trouble walking through the accumulations in
the escapeway. (Tr. 245:8-24) Jackson testified about Hartman walking through the flooded
area as well. He observed that Hartman walked through the water. Jackson’s version is that it
was hard for Hartman to walk through. When he came out on the other side, he was wet to his
waist. (Tr. 111:4-14)
At the time Jackson issued Order No. 8079178, the secondary escapeway was the most
direct route out of the mine from the section. (Tr. 133:14-16; 171:15-22; 196:21-197:1) The
secondary escapeway was clear and did not contain any hazards. (Tr. 197:13-17) Also at this
time, Brody was driving Section No. 3 (the section in question here) in order to connect with two
bore holes – one of which was a de-watering hole. (Tr. 159:8-24) This mine has always been
very wet. (Tr. 186:20-23) The predominant purpose of driving Section No. 3 was to develop a
borehole in order to remove the water from the mine from its lowest point. Coal mining in this
section was secondary to this purpose. (Tr. 186:8-19; 187:12-14)
Although Exhibit S-8 shows that the water in the escapeway is noted under the heading
“Hazard,” Fields argued that it was a not a real hazard. (Tr. 216:22-217:18)
Jackson determined that this violation was S&S because, if there were a need to evacuate
the mine, the miners could not use this primary escapeway. According to Jackson, it would have
been too hazardous for an injured miner to exit through the water. If they had done a four man
stretcher test, the stretcher would have been in the water. When they are in escape mode, the
men are all tethered together - if one goes down, they all go down. The escapeway has to be
usable by an injured miner by regulation. The stretcher test is one way of checking that
possibility. (Tr. 113:19-114:20) In order to abate the water situation, Jackson ordered Brody to
remove all the miners who were inby the water and move them outby, which meant in the area of
Break 7. (Tr. 190:11-191:2)
Jackson considered this “reckless disregard” because the situation was noted in the log
books, but Brody went ahead and mined in that area without abating the hazard. Upper
management had counter signed the log books. (Tr. 114:21-115:7) Jackson’s notes show that
Jim Epperly, the mine foreman, and Eddie Lester, the mine manager, had apologized to Jackson
for “dropping the ball” on “D” orders relating to the intake escapeway. They acknowledged that
it was their fault, and they would do better. (Tr. 115:8-24) Brody had abated this “D” order by
the next workday. (Tr. 116:2-5)

33 FMSHRC 1347

Discussion
Violation
The thrust of Brody’s protest of Order No. 8079178 hinges on the argument that, even if
the water obstructed the primary escapeway, it is of no effective consequence because: (1) the
secondary escapeway remained open, unobstructed, and useable; and (2) miners used the
secondary escapeway more than the primary anyway, even in the absence of any obstruction.
This argument may pertain to the penalty issues arising from this violation, but not to the issue of
whether the regulation was violated. The violation alleged by the Secretary is proved by
preponderant evidence.
The regulation is clear. It requires that all escapeways be kept free of any obstruction that
would impede travel of miners through the area, including an injured or incapacitated miner.
Travel through the escapeway involved in this order was impeded by water accumulation for a
distance of approximately 175 feet, rib-to-rib. The water’s opacity prevented a view of the
bottom, making it impossible to see the floor surface and making it even harder to travel this area
safely and expeditiously. The fact that there was an alternate escapeway is irrelevant to the
existence of the violation. The regulation requires more than one escapeway in a situation like
this, and both escapeways must be kept free of obstruction, irrespective of whether the other
escapeway is obstructed. Sec’y of Labor and UMWA, vs. Maple Creek Inc., 27 FMSHRC 555,
561 (Aug. 2005)
We also reject Maple Creek's suggestion that the judge erred in ignoring the existence of
an alternate escapeway. The regulation is clear that the maintenance requirement of
section 75.380(d)(1) applies to “each” escapeway. More than one escapeway is required,
not in recognition that conditions routine to the mine might prevent use of one of the
escapeways, but rather because the emergency condition that causes the need to evacuate
the mine may prevent use of one of the escapeways. The Senate Committee which was
responsible for drafting the Coal Act explained the two-escapeway requirement in the
following manner: Mine fires, extensive collapse of roof, or similar occurrences may
completely block the regular travelway between the working section and the surface, thus
cutting off escape in an emergency unless an alternate route is provided to the surface. As
recently as March 1968, 21 men at a salt mine lost their lives because a travelable second
escapeway was not provided.
S. Rep. No. 91-411, at 83 (1969), reprinted in Senate Subcomm. on Labor, Comm. on Labor and
Public Welfare, 94th Cong., Part I Legislative History of the Federal Coal Mine Health and
Safety Act of 1969, at 209 (1975).
Gravity
The Secretary alleges that this violation involves a reasonable likelihood of fatal injury to
eight miners. The operator contends that the existence of a second escapeway mitigates the
gravity of the violation. I find that there is a reasonable likelihood of fatal injury to eight miners.
33 FMSHRC 1348

All escapeways must be kept free and open to travel. The fact that a secondary
escapeway was available is fortunate in the abstract but irrelevant in the specific. The language
of the standard is clear and unambiguous. It requires “each” escapeway to be “maintained in a
safe condition to always assure passage of anyone, including disabled persons.” Had there been
any intent to allow for an adjustment of either the liability or the penalty assessment in this
regard, it would have been included in the regulation (and addressed in precedent). Although the
evidence of record does allow for some dispute as to whether the inundated area was totally
impassible, it is clear enough that in an emergency situation requiring use of this passage as an
escapeway in the true sense of the word, the amount of water present here, whether twelve inches
or twenty, could render the passage impassible for a disabled person or those assisting a disabled
person. The analysis must focus on the most restrictive provision in the standard, otherwise the
legislative intent to require a reasonable opportunity for safe exit from a mine in an emergency
situation would be undercut. I agree with Judge Barbour’s analysis of a similar issue involving
the distinction between a primary and secondary escapeway in Knox Creek Coal Corp. v.
Secretary of Labor, 2010 WL 5619977, VA 2010-0081-R, December 27, 2010. The designation
of “primary” or “secondary” is of no legal significance. The standard does not allow that
distinction to be drawn since it unambiguously refers to “any” escapeway.
Significant and Substantial
The Secretary alleges that the violation associated with Order No. 8079178 is “significant
and substantial.” (Exhibit S-8) By Commission precedent, there are four elements that must be
proved in order to establish a "significant and substantial" violation: (1) The underlying violation
of a mandatory standard; (2) The existence of a discrete safety hazard contributed to by the
violation; (3) A reasonable likelihood that the hazard contributed to will result in an injury; and
(4) A reasonable likelihood that the injury in question will be of a reasonably serious nature.
Secretary of Labor v. Mathies Coal Company, 6 FMSHRC 1 (January 1984).
In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125 (Aug. 1985), the Commission held:
We have explained further that the third element of the Mathies formula “requires that the
Secretary establish a reasonable likelihood that the hazard contributed to will result in an
event in which there is an injury.”... We have emphasized that, in accordance with the
language of section 104(d)(1), it is the contribution of a violation to the cause and effect
of a hazard that must be significant and substantial.
Id. at 1129 (internal citations omitted) (emphasis in original). The question of whether a
particular violation is significant and substantial must be based on the particular facts
surrounding the violation. See Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny &
Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
First, the facts in this record establish an underlying violation of 30 C.F.R. §
75.380(d)(1), as discussed above. Second, the water accumulation presented a discrete safety
hazard in that it hindered unobstructed use of the passage as an escapeway in the event of an
emergency mine evacuation. Third, the hazard created by the obstructed escapeway was
reasonably likely to cause or contribute to an injury. The Mine Act requires more than one
33 FMSHRC 1349

unobstructed escapeway in anticipation of a worst case scenario in which miners must evacuate a
mine to escape harm or death. Conditions in an escapeway must not hinder safe evacuation in
any significant way. If conditions as obvious, long standing, serious, and easily remedied as
those in this case do impede evacuation, the very purpose of this portion of the Mine Act is
compromised, i.e., to prevent injury to miners in emergent circumstances. Rather than prevent
injury - the very purpose of requiring multiple clear escapeways - these conditions increased the
likelihood of injury to miners by rendering one escapeway unuseable. Fourth, there was a distinct
probability that these conditions would contribute to serious injury. During an evacuation, it is
presumed that the miners are trying to move from danger to safety. Anything that disrupts or
thwarts the evacuation, by definition, subjects the miners to the very dangers they are fleeing.
The flooded escapeway here did that and more. It created the additional danger that miners
would be injured in the process of evacuating or that rescue operations would be compromised.
The crucial third element of the Mathies test guides us to consider the way the violation
contributed to either the cause or effect of a hazard in order to determine whether the violation
can be considered significant and substantial. As mentioned in the previous paragraph, this
violation tended to thwart one of the primary purposes of the Mine Act as it created a new and
complicating hazard. This violation could have both caused and increased injury to miners. It
was significant and substantial.
Negligence / Unwarrantable Failure / Reckless Disregard
The Commission has held that "unwarrantable failure" on the part of a mine operator in
relation to a violation of the Mine Act connotes something more than ordinary negligence.
Secretary of Labor v. Emery Mining Corporation, 9 FMSHRC 1997 (December 1987).
"Unwarrantable failure" may be characterized by such conduct as "reckless disregard",
"intentional misconduct", "indifference", or a "serious lack of reasonable care".
The formulations of what constitutes unwarrantable failure present a range of aggravating
circumstances from the egregious, e.g., “intentional misconduct”, to the dangerously careless,
e.g., “reckless disregard”, to careless, e.g., “serious lack of reasonable care”, to sloppy execution,
e.g., “indifference.” These factors do not describe the underlying negligence as such, but rather
the circumstances beyond negligence which may justify enhanced enforcement action in the
context of a 104(d) order, i.e., potential withdrawal orders or pattern of violation enhancement.
The facts of this case place the aggravating circumstances at the lower end of that continuum
somewhere between careless and sloppy. If Brody had restored power and a drain line to the
pump they had used in the escapeway until the section move, they would have demonstrated
reasonable care. The fact that they restored power to all other equipment in the area, but not to
the pump, is an aggravating circumstance. Despite the claim that Brody was driving this section
with the primary purpose of connecting to ventilation and water removal shafts, their priorities
are clear. All other equipment was restored to power, but not the pump in this escapeway. This
supports a finding of unwarrantable failure to comply with the standard.
It is also consistent with a finding of “moderate” negligence. “Moderate” negligence is
described at 30 C.F.R. § 100.3, Table X as a situation in which the operator knew or should have
33 FMSHRC 1350

known of the violative condition or practice, but there are mitigating circumstances. This is
where the existence of a second escapeway inures to Brody’s benefit. There is no question that
strict liability requires a finding that there was a violation of 30 C.F.R. § 75.380(d)(1) and that
Brody’s allowing or causing this situation to occur justifies a finding of unwarrantable failure to
maintain both escapeways in a safe condition. However, the fact that there was an alternate
escapeway in a safe condition and that Brody promptly remedied the violating condition mitigate
the degree of negligence to “moderate.” This draws an appropriate and fact-supported distinction
between concepts of negligence, severity, and enhancement without inappropriately doublecounting any individual factor.
Summary and Decision for Order No. 8079178
Order No. 8079178 was written as a Section 104(d)(2) violation alleging S&S and an
unwarrantable failure to comply with a mandatory standard. The operator's negligence level was
assessed as “reckless disregard,” and gravity was assessed as reasonably likely to result in
fatalities for eight people. The proposed fine is $56,929.00.
The Secretary alleged that Brody was strictly liable for violating 30 C.F.R. §75.380(d)(1)
because it failed to maintain the primary escapeway on the No. 3 section at Break 7 to Break 8.
Specifically the Secretary alleged that Brody allowed water to accumulate in the entry covering
an area approximately 175 feet long, rib-to-rib, and 12 to 20 inches deep.
The evidence establishes the strict liability violation. I find that there was a reasonable
likelihood of fatal injury to eight miners. I find that this exhibits an unwarrantable failure to
comply with the standard and that the violation is significant and substantial. However, for the
reasons stated above, I conclude that Brody’s negligence is more appropriately characterized as
“moderate.”
The proposed penalty is $56,929.00. In reference to Sections 105(b) and 110(i) of the
Mine Act and 30 C.F.R. §100.3(d), I conclude that the penalty should be reduced to $ 18,750.00.
[1.4] Order No. 8079179 reads as follows:
“Accumulation of combustible material in the form of loose coal, coal dust, and float coal
dust is allowed to accumulate at the No. 3 Section tail piece. The front roller and the tail roller
on the tail piece is [sic] completely gobbed out and turning in dry compact coal. The conveyor
belt is running over top of compacted coal that measured 31 feet in length, 6 to 17 inches deep,
and 4 feet wide on the off side of the belt. This condition is visible to the most casual observer.
This mine has a history of 75.400 violations, and 29 of these violations have been cited in the last
4 months. This order is unwarrantable failure to comply with a mandatory standard. Mine
management has engaged in aggravated conduct constituting more than ordinary negligence.”

33 FMSHRC 1351

Exhibit S-10 and R-4
The gravity was assessed as reasonably likely to result in fatalities for eight people and as
S&S. It was also written as a Section 104(d)(2) violation, an unwarrantable failure to comply
with a mandatory standard. The operator's negligence level was assessed as “reckless disregard,”
and the proposed fine is $70,000.00.
The Standard
30 C.F.R. § 75.400 provides: “Coal dust, including float coal dust deposited on
rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be
permitted to accumulate in active workings, or on diesel- powered and electric equipment
therein.”
The Evidence
On January 22, 2009, inspector James Jackson issued Order No. 8079179, a 104(d)(2)
order alleging a violation of 30 C.F.R. § 75.400. Jackson alleged “reckless disregard” and that
Brody failed to maintain the No. 3 Section tail piece by allowing combustible loose coal, coal
dust, and float coal dust to accumulate. (Exhibits S-10 and R-4)
After dealing with the blocked primary escape way in Order No. 8079178, Inspector
Jackson and Glenn Fields, a Brody representative, went to the secondary escape way to withdraw
the miners. As they did, they came across a belt line tail piece that was congested (“all gobbed
up”) with coal accumulations. (Tr. 116:15-117:7) Jackson testified that he observed coal
accumulations thirty-one feet long, four feet wide, and from six to seventeen inches deep under
the belt line. In Jackson’s experience, this is a lot of accumulation. (Tr. 118:5-11) The
accumulations were on the off-side of the belt.21 (Tr. 199:2-5)
There are two rollers on the tail piece. One is used to tension the belt, and the other to
keep the belt elevated. Jackson testified that he observed coal touching the bottom of the belt
and the rollers. The coal appeared dry from touching the rollers. The coal around the front
“holdup” roller had turned gray to white in color, which, to Jackson, indicates heat and a
potential fire hazard. (Tr. 119:23-120:11)
Jackson characterized this as an S&S violation because belt friction can cause an ignition
and fire that could fill the area with smoke and flames, causing danger to the miners and the need
to evacuate the area. (Tr. 120:12-19) Jackson also characterized this as “reckless disregard”
because one of the miners told him that Brody had mined only thirty feet of coal on that shift,
which, according to his experience, was not enough mining to account for that much coal
accumulation. He determined that the belt had operated for a longer time because of the amount
of accumulation. (Tr. 120:20-122:1) Another reason Jackson gave for the “reckless disregard”
21

According to Inspector Jackson the off side of the belt is the area where people do not
normally travel or work. (Tr.143:14-17)

33 FMSHRC 1352

allegation was the fact that this mine had a history of 75.400 violations - 29 in the preceding four
months. (Tr. 122:2-18)
Jackson felt there was a fire hazard despite the fact that this was a very wet area of the
mine.22 He determined this because the coal fires he observed during his years of mining
experience were due to friction with rollers on belt lines. (Tr. 122:20-123:7) Jackson also felt
the hazard was greater because of the flooded escapeway covered by Order No. 8079178. If there
were a fire due to the coal accumulation on the tail piece, the miners would have to exit through
the flooded primary escape way. (Tr. 123:8-15)
Fields explained how a typical belt line is configured. When the belt line is moved up,
the new area is first dusted with rock dust. (Tr. 209:3-24) There is fire suppression equipment
on the feeder over the top of the tail piece. There is 500 feet of fire hose. There is an air regulator
across from the tail piece that brings ventilation air in, across the face, an then outby. There is a
gob switch at the head that will shut the line down if too much material accumulates there. (Tr.
200:7- 14;199:8-200:14) Fields testified that if the belt had been completely “gobbed out,” the
belt line would have shut down automatically. (Tr. 206:19-22) Jackson confirmed that the mine
had fire suppression systems at the belt head, a water line beside the belt, a fire hose outlet every
300 feet, and fire extinguishers near the tail piece. (Tr. 140:14-17; 141:21-23)23 Fields testified
that there were carbon monoxide detectors at the belt head and at the tail piece in question. (Tr.
207:1-8)
According to Fields, Brody performs belt examinations as part of its pre-shift
examination in order to determine if any hazards exist along the belt-lines. (Tr. 202:20-203:5)
The day before Order No. 8079179, Brody cleaned and rock dusted24 the tail piece. (Tr. 204:13
19; 209:3-24 and Exhibits R-4 and S-10) According to Fields, Brody applies rock dust every
day. (Tr. 210:1- 3) During Brody’s last belt examination report between 4:00 AM and 7:00 AM
on January 22, 2009, before Jackson issued Order No.8079179, it was reported that the tail piece
needed spot cleaning. (Tr. 206:7-15 and Exhibits R- 4 and S-10)
On cross examination Jackson testified that the rock dust used in this mine is black, not
gray. When pressed about the gray portions of the coal accumulations he testified about earlier,
Jackson stated that the fact that the coal dust material was black only underscored his conclusion
that the gray accumulations he observed had turned gray due to friction and heat. (Tr.142:15-24)
Fields, on the other hand, testified that rock dust is white. He opined that it is possible that
Brody’s men got some rock dust on the line when they were dusting below the line, and this is
what Jackson saw and thought was dry coal accumulation. However, the coal accumulation was

22

It is in the same area as the flooded escapeway mentioned above in relation to Order No.

8079178.
23

Counsel intimated in questioning that coal loaded on the belt line would be wet from spray at
the feeder, but Jackson did not agree. He did not recall if the feeder’s spray mechanism was operating.
(Tr. 140:23-141:9)
24
Rock dust is used to keep float coal dust down to prevent an explosion. (Tr. 209:3-14)

33 FMSHRC 1353

completely saturated with water. (Tr. 200:22-201:5; 210:4-10) Coal that is being mined is not
sprayed with rock dust unless some gets on it unintentionally. (Tr. 217:19-219:21)
Fields testified that one shuttle car can carry between nine and ten tons of coal (Tr. 198:9
14); that because a shuttle car can carry that much coal, it is possible for one shuttle car load to
cause the accumulations cited by the inspector (Tr. 201:18-21); and that this could happen in a
matter of minutes. (Tr. 210:11-8)
According to Fields, when he and Jackson approached the belt line, he could detect no
smoke, he could see no dust, and he could feel no heat on or near the accumulations. (Tr. 200:15
18)
30 C.F.R. § 75.400 is the most cited standard in the United States and could be issued for
a number of different factual circumstances. (Tr. 143:18-144:16)
Discussion
Violation
Brody does not dispute that there were coal accumulations or that the amount of
accumulations were essentially as described in Jackson’s testimony and related exhibits. Nor
does it dispute that the accumulations were in an area considered “active workings.” It does
dispute when and how the accumulations got there and whether there was evidence of a potential
ignition. The fact that accumulations existed is sufficient to support a finding that the standard
was violated. The standard does not designate what quantity of coal accumulation constitutes a
violation, it merely mandates that any accumulation “in active workings” be cleaned up.25 I
conclude that the Secretary has proved a strict liability violation of 30 C.F.R. § 75.400 buy a
preponderance of the evidence.
Negligence / Unwarrantable Failure / Reckless Disregard
I refer to the prior discussion of the elements of “unwarrantable failure.” There is no
basis to discount Brody’s evidence that it conducted an effective pre-shift examination as
reflected in Exhibits R-4 and S-10. However, I cannot conclude that the accumulations Jackson
saw were the result of spillage from the limited mining that occurred in the time between the preshift report and his inspection, as Brody argued. Although there is more inferential support for
this than for the contrary view advocated by the Secretary, the weight of the evidence is still not
convincing. Without more convincing evidence, and given that it is the Secretary’s burden to
prove this point, I cannot conclude that Brody’s actions reflected an unwarrantable failure to
abide by the standard. The evidence and reasonable inferences do not support a finding of

25

Brody’s evidence and argument is pertinent to the related issues of negligence and gravity.

33 FMSHRC 1354

"reckless disregard," "intentional misconduct," "indifference," or a "serious lack of reasonable
care.”26 I conclude, for purposes of this 104(d)(1) order that there was no unwarrantable failure.
I also conclude that the degree of negligence must be adjusted downward. I refer to the
prior discussion of the elements of the various degrees of negligence addressed in the regulations.
All levels of negligence allow for consideration of the operator’s knowledge of the violating
conditions and related mitigating circumstances.27 See, 30 C.F.R. § 100.3, Table X. The most
significant mitigating circumstance here is the fact that the mine in general and the specific area
where this violation occurred are both considered wet. This fact is disputed by no one. Wet
material is less likely to combust. Jackson noted in Exhibit S-10 and R-4 that he observed the
tail roller turning in dry, compact coal. Further, in testimony, Jackson stated that the coal he
observed touching the bottom belt and rollers appeared dry. (Tr. 119:23-120:11) Most of the
evidence on this point dealt with the appearance of the accumulations. Moreover, there is no
evidence that Jackson, or anyone else, actually felt the material to confirm that it was as dry as it
looked or hot. This, taken with the evidence that the rock dust used in the area was white or gray
- similar to how Jackson described the dry accumulations - reduces the convincing value of
Jackson’s observation. This significantly mitigates the degree of Brody’s negligence.
According to 30 C.F.R. § 100.3, Table X, all degrees of negligence include knowledge of
the violating condition as a factor. Jackson alleged reckless disregard based on Brody’s history
of being cited for similar incidents, inferring that a pattern existed from which one can further
infer that the operator actively avoided “knowing” about violating conditions. I have already
dealt with this issue above. Thus, based on the facts in this case, the difference between low,
moderate, and high negligence hinges on the degree of mitigation, not on the element of
knowledge. I turn then to whether the mitigation I discussed above fits better with low,
moderate, or high negligence.
A finding of high negligence requires a finding of no mitigating circumstances. I have
found that there are mitigating circumstances. For the reasons discussed above, the mitigation
here is more than what is required to find low negligence. A finding of moderate negligence is
more appropriate on these facts.
Gravity / Significant and Substantial

26

I am aware that Jackson decided to cite this violation as an “unwarrantable failure” because:
(1) miners told him that they had only mined thirty feet on that shift (Tr. 120:20-122:1); (2) Brody had
received thirty-nine other 75.400 citations in the prior four-month period (Tr. 122:2-18); and the primary
escapeway was flooded, increasing the risk of serious consequences should a fire occur from these
accumulations. (Tr. 123:8-15) These items also fail to convince that Brody’s actions constituted an
unwarrantable failure.
27
The category of “No Negligence” in Table X corresponds to the concept of strict liability and
recognizes that an operator can be held strictly liable for violating a standard even though it cannot know
of the violating condition by exercising reasonable diligence. Strict liability is not based on a finding of
negligence.

33 FMSHRC 1355

The Secretary alleges that this violation results from negligence at the level of “reckless
disregard” and gravity at the level of reasonable likelihood of fatal injury to eight miners.
(Exhibit S-10) The Secretary also alleges that this violation was “significant and substantial” for
purposes of the 104(d)(1) order. The operator asserts three points in defense: (1) The
accumulations occurred in the short period between the pre-shift report and Jackson’s inspection,
thus there was no notice of or opportunity to avoid the violation; (2) Jackson misinterpreted the
appearance of the accumulations when he concluded they had become discolored from friction
and heat from the moving belt line; and (3) The accumulations were too wet to be a potential
ignition source.
I refer to the prior discussion of the elements of “significant and substantial.” First, the
facts in this record establish an underlying violation of 30 C.F.R. § 75.400, as discussed above.
Second, the coal accumulations described by Jackson create a discrete safety hazard. There is an
articulable and credible danger that even wet coal accumulations can be heated by belt friction to
the point of ignition. However on the third point, the evidence fails to convince that there is a
reasonable likelihood that the coal accumulations described here will result in an injury. The
evidence of a dedicated water spray fire suppression system along the belt line, carbon monoxide
detectors, and secondary fire hose system at regular intervals leads to the conclusion that in the
event of a fire or smoke caused by belt friction in coal accumulations, the likelihood of resulting
injury is remote.28 As a result of this conclusion, the fourth Mathies element is moot. I conclude
that this violation was not significant and substantial.
For the same reasons, I conclude that it is “unlikely” that an injury or illness would occur,
and any injury that might occur would be limited to “lost workdays or restricted duty.” To hold
otherwise, I would have to engage in significant speculation beyond reasonable inference and
give full credit to Jackson’s conclusions about what the appearance of the coal accumulations
meant, a point that is discussed elsewhere in this decision. There is no reason to modify the
number of persons potentially affected by the violation.
Summary and Decision for Order No. 8079179
The Secretary alleged that Brody was strictly liable for violating 30 C.F.R. § 75.400
because Inspector Jackson alleged that Brody failed to maintain the No. 3 Section tail piece by
allowing combustible material in the form of loose coal, coal dust, and float coal dust to
accumulate. Gravity was assessed as reasonably likely to result in fatalities for eight people.
Regarding 104(d) enhancement, the Secretary alleged unwarrantable failure and S&S. The
operator's negligence level was assessed as “reckless disregard,” and the proposed fine is
$70,000.00.
I find that it is “unlikely” that an injury or illness amounting to “lost workdays or
restricted duty” would occur, that there was no unwarrantable failure to comply with the
28

The Secretary produced no evidence that the redundant fire control systems would not work as

designed.

33 FMSHRC 1356

standard, and that the violation was not significant and substantial. For the reasons stated above,
I conclude that Brody’s negligence is more appropriately characterized as “moderate.”
In reference to Sections 105(b) and 110(i) of the Mine Act and 30 C.F.R. §100.3(d), I
conclude that the penalty should be reduced to $4,450.00.
[2.0] Docket WEVA 2009-1306
Docket WEVA 2009-1306 comprises four citations/orders listed below as 2.1 through
2.4.
[2.1] Order No. 8068033 reads as follows:
“Safeguard at this mines [sic] requires all employees working in the underground portion
of this mine to wear safety goggles or eye shields while traveling in any open type transportation
vehicle in this mine. Observed an open type man trip exiting the mine at the top of the slope
with 14 miners on board and 5 miners without safety goggles or eye shields being used. One of
the miners was the foreman, which [sic] is an agent of the operator being transported on this open
type man trip. This citation is unwarrantable failure to comply with a mandatory standard. Mine
management has engaged in aggravated conduct by failure to allowed [sic] this hazard to existed
[sic].”
Exhibit S-1
Gravity was assessed as reasonably likely to be “permanently disabling” for five people.
It was written as a Section 104(d) violation, alleging a “significant and substantial” violation and
an unwarrantable failure to comply with a mandatory standard. The operator's negligence level
was assessed as “high,” and the proposed fine is $4,099.00.
The Standard
30 C.F.R. § 75.1403 states:
“Other safeguards adequate, in the judgment of an authorized representative of the Secretary, to
minimize hazards with respect to transportation of men and materials shall be provided.”

33 FMSHRC 1357

The Evidence
On October 8, 2008, inspector Charles Ward issued Order Number 8068033,29 a 104(d)
order, alleging a violation of 30 C.F.R. Section 75.1403.30 Ward alleged that the violation was
significant and substantial and constituted unwarrantable failure for purposes of 104(d)
enhancement. He assessed gravity as reasonably likely to be permanently disabling for five
people because the miners were reasonably likely to incur a permanently disabling injury from a
scratched cornea. He also determined that the operator showed a high degree of negligence,
because the foreman, who is supposed to set an example and is a member of mine management,
participated in the violation by not wearing his safety glasses or insuring that the other miners
wore theirs. (Exhibits S-1 and R-5) The Secretary assessed a penalty of $4,099.00. (Exhibit S
13)
Ward traveled with Aubrey Hartman, the mine foreman, on this day. They were going to
enter the mine down the one-way slope entrance. (Tr. 228:5-6) They had to get clearance from a
dispatcher. (Tr. 228:7-19) A mantrip was exiting the mine; they had to wait for it. (Tr. 59:22
60:4) Ward saw a miner at the front of the mantrip without safety goggles. He confirmed this
with Hartman. Hartman spoke to the foreman on the mantrip, Robert Hill, and asked him where
his glasses were. Foreman Hill told Ward that one of the men on his section had lost his glasses,
so Hill had given him his. (Tr. 20:3-21)
The mantrip that the miners were traveling in on October 8, 2008, could hold 14 miners –
two in the front (driver and passenger) facing the direction of travel; four in the middle of the
mantrip facing the direction of travel; four in the middle facing the back of the mantrip; two at
the back facing the direction of travel; and two in the back facing the back of the mantrip. (Tr.
230:12-231:4) Of the fourteen miners riding on this mantrip, five were not wearing safety
glasses. One of the five miners not wearing safety goggles was Robert Hill, the foreman. In
addition, there were three miners in the middle of the mantrip with no glasses and one at the
back. None of the five men had safety glasses on their person. (Tr. 17:18-19:18) One of the
men in the middle of the mantrip was facing backwards. The others were all facing the direction
of travel. (Tr. 62:1-17)
The order alleges that the five miners were riding in an open mantrip and were not
wearing safety goggles or eye shields. It further alleges that this was reasonably likely to cause
an injury resulting in a permanent injury to five persons. (Exhibit S-1; Tr. 16:22-17:17) Ward’s
rationale in issuing this order was that failure to wear safety glasses while riding in a mantrip can
result in eye injury because the mantrip traveled through entries where the airflow was high.
Ward measured the airflow at the mine entrance. It was over 200,000 CFM. (Tr. 21:3-18) He
testified
29

Order Number 8068033 was admitted into evidence as Exhibits R-5 and S-1.
Inspector Ward cited this as a violation of 20 C.F.R. § 1403. He could have cited this as a
violation of 20 C.F.R. § 75. 1720(a) Section 75, which explicitly requires the wearing of goggles or
safety glasses in situations where the eyes need protection from airborne particles.
30

33 FMSHRC 1358

that this can create a whirlwind effect, which can cause dust, or water droplets containing dust or
rust particles, to get into the miners' eyes if left unprotected. (Tr. 20:22-22:24)
The mantrip in question was covered on top and in the back. (Tr. 20:22-21:2; 59:18-2;
231:13-20; 241:21-242:23) The mantrip canopy is made out of sheet metal between 1/32 and
3/32 of an inch thick. (Tr. 232:6-13) At the back of the mantrip is an expandable metal sheet
with holes no larger than a finger. (Tr. 233:4-14) There are no holes on the top of the mantrip.
(Tr. 232:23-234:3) The mantrip does not have mud flaps because the wheels are set under the
body. (Tr. 235:3-7) A loaded mantrip can travel only six or seven miles per hour. (Tr. 229:22
230:3) If miners were sitting on the mantrip facing the direction of travel, the air coming out of
the mine would first hit the expandable metal sheet on the back of the mantrip and then hit the
miners in the back of their heads. (Tr. 236:6-11)
Ward asked the miners if they had eye protection that day. They all said they did not. He
did not ask them if they left it underground. (Tr. 65:12-66:23) Ward concluded that the men had
entered the mine and worked the shift without safety glasses. (Tr. 19:19-20:2; 24:6-23)
According to Ward, when he asked the miners where their eye protection was, some of them
acted a little sheepish as if they knew they were in trouble, not only with MSHA but with Aubrey
Hartman, their foreman. (Tr. 95:3-18)
The entry slope was 1,487 feet long with a grade of eleven degrees. (Tr. 227:22-228:4)
There was water dripping off the roof of the mantrip which Ward alleged could have contained
dissolved rust and other potential eye irritants. His theory is that the air could have blown these
irritants into the miners’ eyes. (Tr. 22:3-24:5)
In his thirty-three years of mining experience, Aubrey Hartman, has never heard of
anyone being injured by something dripping off the ceiling or flipping up from the floor and
getting in someone’s eye. (Tr. 241:17-20) Ward also has never seen a miner get an eye injury
from something dripping off the ceiling in his eight years as an inspector. He testified from
personal experience that water dropping into the eyes can carry abrasive material that can scratch
the cornea. (Tr. 67:2-68:4) In 35 years in the mining industry, Ward had only had one
experience, either personally or as an inspector, where water dropped into someone’s eye while
riding on a mantrip. (Tr. 67:20-68:7)
Hartman appeared upset that these miners were not wearing eye protection in light of the
fact that Brody has a policy and trains miners to always wear goggles when they are riding in a
moving piece of equipment. (Tr. 68:11-19; 243:2- 11) Brody supplies its miners with safety
goggles and requires all miners to wear them when riding in mantrips. (Tr. 237:6-15) All of the
men riding on the covered mantrip in Exhibit S-1 were wearing hard hats with bills. (Tr. 61:20
24)

33 FMSHRC 1359

Discussion
Violation
Either of the safety standards mentioned above could serve as the basis for this order.
They both reasonably comprehend the conditions Inspector Ward had in mind when he wrote it.
There is no dispute that five miners, including a shift supervisor, traveled up the entry slope to
the mine opening in a covered mantrip and that none of them was wearing eye protection. There
is little to gain from debating whether a coal mine entry slope is an environment in which
airborne dust and other eye irritants are common. Although there is no evidence specifically
showing the type and amount of airborne dust and irritants, it is a matter of common sense that a
coal mine is a dusty place in general, and that any volume of perceivably moving air can carry
such irritants. This is also consistent with the fact that Brody had a company policy, independent
of the safety directive in question here, that required its miners to wear eye protection at all time
in the mine. In addition, although it is less obvious, any water dripping from a mine roof could
contain suspended irritant particles. As a result, the preponderant evidence, reasonable
inferences arising from it, and common sense support a conclusion that these conditions violate
30 C.F.R. Section 75.1403. The miners and their supervisor should have been wearing eye
protection.
Negligence / Unwarrantable Failure
I refer to the discussion of negligence above. Inspector Ward alleged here that Brody’s
actions and omissions constituted high negligence as that term is defined at 30 C.F.R. §100.3(d)
Table X. “High negligence” is roughly defined as a situation in which the operator knew or
should have known of the violative condition and there are no mitigating circumstances. If there
are any mitigating circumstances, a finding of “high negligence” is not appropriate. The
definitions of all other levels of negligence include some degree of mitigation.31
The weight of the evidence here supports a finding that Brody knew of the violating
conditions, particularly in light of the fact that a management employee was among the group of
miners observed not wearing eye protection. (A foreman or superintendent is held to a higher
standard of care. Secretary of Labor (MSHA) v. S&H Mining, Inc., 17 FMSHRC 1918, 1923
(Nov. 1995)).
Mitigating circumstances are generally defined as actions taken by the operator to prevent
or correct hazardous conditions or practices. See, Rochester & Pittsburgh Coal Co., 9 FMSHRC
2069 (December 1987). Guided by that concept, it appears that Brody did some things
affirmatively to address the danger underlying this order and was the beneficiary of some
happenstance that also tended to reduce the danger. In the former group: (1) The mantrip was
substantially enclosed. It had a roof, a windscreen in front, a rear passenger compartment guard,
31

The category of “no negligence” corresponds to the fact that a violation can be based on strict

liability.

33 FMSHRC 1360

and its wheels were under the body. (2) Brody had in place a policy requiring the use of eye
protection in this circumstance, it provided its miners with appropriate eye protection, and it
trained to its policy. (3) The mantrip was traveling at a slow speed. (4) The miners were all
wearing hard hats that afforded some degree of eye protection from above. (5) Traffic to and
from the surface was restricted to one-way only and was regulated by a dispatcher, thus reducing
the risk of debris being thrown up by other traffic. In the happenstance group: (1) No one was
injured. (2) No witness had any personal experience over decades of mine experience that would
confirm the likelihood of an injury. (3) The inspector did not observe any actual condition that
would increase the likelihood of an injury, other than the fact that there was a substantial volume
of airflow moving out of the mine and hitting the mantrip from behind.32 In sum, these items are
mitigating factors which undercut a finding of “high negligence” and support a finding of
“moderate negligence” under the operative definitions. An argument could be made for a finding
of “low negligence” based on the list of mitigating facts, but I find that the miners had been
without eye protection for the entire shift, and given that fact, there was ample time for protective
eye wear to be brought into the mine for the men.
I refer to the discussion of unwarrantable failure above. A violation of a standard means
that someone has failed to comply. The standard concepts of negligence and gravity as set out in
30 C.F.R. § 100.3 are applied to assess an appropriate penalty for a violation. To establish
“unwarrantable failure” it is necessary to prove something more than what is needed to prove the
violation and penalty. This is consistent with the notion of enhanced enforcement found in
Section 104(d). For purposes of proving a violation and an appropriate penalty the focus is on
culpability and severity. For purposes of justifying the enhanced enforcement of Section 104(b)
the focus should be on why the operator violated the standard not if the standard was violated or
how serious the violation was. It is sometimes difficult to avoid overlap between these areas, but
careful analysis requires greater care to separate them.
There is a range of aggravating circumstances which justifies enhanced enforcement
under Section 104(d), as discussed above. These factors do not describe the underlying
negligence and gravity as such, but rather the circumstances beyond negligence and gravity
which may justify enhanced enforcement action in the context of a 104(b) order, i.e., potential
withdrawal orders or pattern of violation enhancement.
The facts of this case prove the existence of sufficiently aggravating circumstances to
justify enhanced enforcement. One of the group of five unprotected miners was the shift
foreman, Robert Hill. Not only is his status important for purposes of imputing knowledge of the
violating condition to the operator, which is more relevant to determining the degree of
negligence, but it is also important for enhancement purposes. The foreman is charged with
knowledge of the relevant health and safety standards. He also had full and immediate
knowledge of the violation, since he was one of the unprotected miners. He was in a position to
32

Without more detail in the evidence, it is impossible to be more specific about the volume of
air involved here. There was no estimate of exiting air speed, and without information about the
diameter of the exit slope (among other related factors) it is impossible to begin to calculate how fast the
air was moving or whether it could carry with it anything likely to be an eye irritant.

33 FMSHRC 1361

make an on-the-spot management decision to effectively remedy the situation. However, Mr.
Hill allowed the condition to persist the entire shift, adding to the likelihood of something
untoward. This was an unwarrantable failure.
Gravity (“Seriousness”)
The inspector assessed gravity as reasonably likely to be permanently disabling for five
people. I concur with the inspector’s assertion that five people could reasonably be affected by
this violation. I also agree with the inspector that it is “reasonably likely” that this violation
could result in some injury to miners. However, the facts do not convince me that the severity is
as dire as predicted by the inspector. First, there was no specific evidence directed to the issue of
severity. Second, the evidence on this issue is limited to inferences from the environment, the
layout and construction of the mantrip, and the volume of air through the area in question. I am
comfortable inferring that an injury involving “lost workdays or restricted duty” is possible under
these conditions, but I cannot press the inference any further. This is consistent with common
sense and the fact that Brody itself saw fit to adopt a policy requiring the use of protective eye
wear in its mines, to provide its miners with such eye wear, and to train miners about prevention
of eye injuries in general. For these reasons, I conclude that the severity designation should be
reduced to “lost workdays or restricted duty.”
Significant and Substantial
I refer to the discussion of S&S above. The existence of a violation has been established.
I find that the lack of protective eye wear in these circumstances and for this length of time
contributed to the potential of eye injury to the miners involved. I also find that there is a
reasonable likelihood that the lack of protective eye wear could contribute to the discrete hazard
of eye injury. Finally, I find that an eye injury from airborne dust or other irritants could be of a
reasonably serious nature, potentially resulting in a loss of workdays or restricted duty. I
conclude that this violation was significant and substantial.
Summary and Decision for Order No. 8068033
On October 8, 2008, inspector Charles Ward issued Order Number 8068033, a 104(d)
order, alleging a violation of 30 C.F.R. Section 75.1403. Ward alleged that the violation was
significant and substantial and constituted unwarrantable failure for purposes of 104(d)
enhancement. He assessed gravity as “reasonably likely” to be “permanently disabling” for five
people. He also determined that the operator showed a “high” degree of negligence. The
Secretary assessed a penalty of $4,099.00.
For the reasons stated above, I conclude that Brody’s negligence was “moderate,” that
these circumstances reflect an unwarrantable failure to abide by the standard, that gravity is
consistent with a reasonable likelihood of “lost workdays or restricted duty” for five miners, and
that the violation was S&S. The penalty will be reduced to $1,050.00.
33 FMSHRC 1362

[2.2] Order No. 8075874 reads as follows:
“The Approved Ventilation Methane and Dust Control Plan for the 007-0 MMU is not
been complied with. The approved plan requires 3,000 CFM behind the line in all idle faces. The
No. 4 working face that is idle, using an approved anemometer behind the line curtain 1,050
CFM was measured behind the line curtain [sic]. The operator has been placed on heighten [sic]
alert during this inspection and has been cited for this condition. The mines [sic] liberates 1.5
million cube [sic] feet of methane in a 24 hour period.
This order is unwarrantable failure to comply with a mandatory standard. Mine
management has engaged in aggravated conduct by failure to take action on this hazard.”
Exhibit S-6 and R-633
The gravity was assessed as reasonably likely to result in lost workdays or restricted duty
for five people and as S&S.34 It was also written as a Section 104(d)(2) violation, an
unwarrantable failure to comply with a mandatory standard. The operator's negligence level was
assessed as “high,” and the proposed fine is $4,440.00.
The Standard
30 C.F.R. § 75.1403 states:
“The operator shall develop and follow a ventilation plan approved by the district manager. The
plan shall be designed to control methane and respirable dust and shall be suitable to the
conditions and mining system at the mine. The ventilation plan shall consist of two parts, the
plan content as prescribed in §75.371 and the ventilation map with information as prescribed in
§75.372. Only that portion of the map which contains information required under §75.371 will be
subject to approval by the district manager.”
The Evidence
On February 11, 2009, inspector Charles Ward issued Order Number 8075874, a
104(d)(2) order with high negligence, alleging a violation of 30 C.F.R. Section 75.370(a)(1).
Specifically, Ward alleged that Brody did not comply with its approved ventilation methane and
dust control plan for the 007-0 MMU. He alleged that the airflow measured 1,050 CFM behind
the line curtain in the No. 4 face, and that the condition was reasonably likely to cause an injury
resulting in lost workdays to five persons.
33

Order Number 8075874, including Brody’s pre-shift, daily, and on-shift reports, were admitted
into evidence as Exhibit R-6.
34
At the hearing, the Secretary stipulated that Order Numbers 8075863, 8075864, and 8075874
were non- S&S violations. (Tr. 12:2-11)

33 FMSHRC 1363

Ward conducted his examination of the No. 4 working face on the 007MMU on February
11, 2009, in the presence of Carl Blankenship, Brody’s Safety Manager. It appeared to
Blankenship as if the crew had just “scooped” before he got there. In doing this, they pushed
loose material out into the face area causing a restriction of the airflow behind the line curtain.
The mine's ventilation plan called for a minimum airflow of 3,000 CFM behind the line curtain at
an idle working face. (Tr. 47:22-49:10) Ward tested the airflow and found 1,050 CFM. He
explained to Blankenship that he was issuing a 104(d) order for unwarrantable failure and that he
had warned Brody representatives several weeks earlier (“high alert”) that he would use the more
aggressive citation in the future. (Tr.44:12-46:18; 47:22-48:12 and Exhibit S-6)
The No. 4 face was empty of men and equipment at the time Ward inspected for this
order. (Tr. 83:8-14; 362:5-12)
Ward tested for methane when he checked the airflow. He got a zero methane reading
and oxygen at 20.8%. (Tr. 83:18-22; 361:1-362:4) According to Ward, there is still a danger
with low airflows, even in the absence of methane. The airflow is required to evacuate methane if
it should be present. Ward explained that unless there is a sufficient amount of airflow, methane
will not get flushed out of the mine and can accumulate. A methane buildup can lead to an
explosion, which can result in death or serious injury to miners. (Tr. 48:13-49:10) Since this
mine expels approximately 1.5 million cubic feet of methane every twenty-four hours, Ward
believed it imperative that Brody adhere to its ventilation plan and insure that it meet the plan's
minimum airflow requirements. (Tr. 34:16-35:18) Ward agreed that when there is 0% methane
and 20.8% oxygen, there is no chance of a methane explosion. (Tr.86:10-13)
Brody had a history of thirty-one citations for violating its ventilation control plan
between October 28, 2008, and January 15, 2009, a ten week period . (Tr. 32:-34: 4 and Exhibit
S-13)
Ward reviewed the pre-shift report. There was no mention of any hazard. (Tr. 83:23-84:6)
The cause of the low airflow at the No. 4 face was lack of space and obstruction behind
the curtain. There was gob at the face that restricted the airflow. Blankenship did not remove the
gob, he just moved the curtain back from the face a little while Ward was standing there. He
moved it to the next row of roof bolts to create more space between it and the face. (Tr. 84:14
21; 390:1-391:1) Ward took another air reading. It showed airflow of 3,408 CFM and again,
zero methane. (Tr. 84:14-21; 362:17-363:15; 387:18-390:7) The order was abated in six
minutes. (Tr. 46:20-21; 84:7-13; 362:13-16)
Ward testified that the gob that restricted the low air in the No. 4 face was near the fly pad
for no longer than one shift, even though Carl Blankenship testified that there was no gob at the
face. (Tr. 47:15-21; 362:21- 23)
Blankenship argued that there was adequate airflow behind the line curtain, regardless of
what the ventilation plan required, because there was no methane there. He agreed that the
33 FMSHRC 1364

measured airflow was less than required by the ventilation plan in effect at the time. (Tr. 391:2
9)
Prior to Inspector Ward starting his inspection at the Brody mine, there was a different
methane and dust control plan in place. In January 2009, the plan was changed at the request of
Inspector Ward. According to Ward, if he encountered the condition cited in this order today, he
would not find a violation. (Tr. 50:4-21) The plan in effect at the time of this order focused on
whether there is any detectable methane above 1% behind the line curtain and not on the volume
of airflow. (Tr. 85:12-24)
Discussion
Violation
There is no dispute that the mine ventilation plan in place at the time relevant to this order
called for a minimum of 3,000 CFM of airflow at all idle faces. The No. 4 face was idle at the
time of this order. Ward took valid readings of the air flow at face No. 4 and detected only 1,050
CFM of air flow. This is sufficient to prove a strict liability violation of 30 C.F.R. Section
75.370(a)(1) and the portion of the mine’s ventilation place that requires 3,000 CFM at all idle
faces.
I take note of the “no harm, no foul” argument raised by Mr. Blankenship, but as I
discussed above in relation to order No. 8075863, such an argument is of no avail with regard to
whether a violation has occurred in a strict liability environment. It is relevant and will be
considered in relation to other issues.
Negligence / Unwarrantable Failure
Inspector Ward alleged “high negligence” in Exhibit S-6. “High negligence” describes a
situation in which the operator knew or should have known of the violative condition and there
are no mitigating circumstances. If there are any mitigating circumstances, a finding of “high
negligence” is not appropriate, according to the categories of negligence shown at 30 C.F.R. §
100.3 Table X. The definitions of “low negligence,” “moderate negligence,” and “high
negligence” all include some degree of mitigation.
With few departures, I adopt and repeat my analysis of negligence and mitigation in
relation to order No. 8075863 above. Here again Brody raises two points: (1) A distinction
should be
drawn on the basis of whether the face in question was “idle”; and/or (2) The fact that there was
no detectable methane mitigates against a finding of “high” negligence, again the “no harm – no
foul” argument.

33 FMSHRC 1365

The evidence shows that the condition causing the low airflow was the presence of gob
between the No. 4 face and its line curtain. The only evidence pertinent to whether Brody had
knowledge of the low airflow is the pre-shift report which made no mention of it. As a result, the
weight of the evidence supports a finding that Brody did not have actual knowledge of the low
airflow. There is no evidence that would show that Brody should have known that gob was
restricting the airflow at face No. 4 prior to Ward’s inspection. Nothing was presented to call
into question Brody’s thoroughness, accuracy, or diligence in performing its examination and
pre-shift report. The Secretary argues, in broad strokes, that Brody’s history of prior violations of
the same standard should be considered as evidence of knowledge. However, her argument has
little traction with this evidence. The low airflow in this instance has a clear cause which has
nothing to do with any reasonable inference to be drawn from Brody’s violation history. The
evidence fails to show any deficiency in the examination or pre-shift report, despite Brody’s
history of accused noncompliance. I find that Brody did not know and is not imputed to know of
the condition causing the low airflow in this instance.35
This does not affect my finding of a strict liability violation of the standard, but it is
important vis-a-vis negligence. All degrees of negligence summarized at 30 C.F.R. § 100.3
Table X require a finding that the operator knew or should have known of the violating
condition. The only category of liability associated with a lack of culpable knowledge is that for
a strict liability violation. I find that this violation did not result from “high negligence.” The
definition of “no negligence” in 30 C.F.R. §100.3 fits these facts more closely. According to 30
C.F.R. §100.3(d) (Table X), “no negligence” is when “[t]he operator exercised diligence and
could not have known of the violative condition or practice.” I conclude that Brody was not
negligent in relation to this strict liability violation.
The Commission has examined various factors in determining whether a violation is
unwarrantable, including the extent of a violative condition, the length of time that it has existed,
whether the violation is obvious, or poses a high degree of danger, whether the operator has been
placed on notice that greater efforts are necessary for compliance, and the operator's efforts in
abating the violative condition. Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994);
Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC
705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603 (July 1984); BethEnergy
Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Warren Steen Constr., Inc., 14 FMSHRC
1125, 1129 (July 1992). The Commission has also examined the operator's knowledge of the
existence of the dangerous condition. E.g., Cyprus Plateau Mining Corp., 16 FMSHRC 1604,
1608 (Aug. 1994) (affirming unwarrantable failure determination where operator aware of brake
malfunction failed to remedy problem); Warren Steen, 14 FMSHRC at 1126-27 (knowledge of
hazard and failure to take adequate precautionary measures support unwarrantable
determination); see also Consolidation Coal Co., 23 FMSHRC 588, 593 (June 2001).
One of the various factors relevant to unwarrantable failure is whether the operator has
been placed on alert that greater compliance efforts are required. There is evidence of heightened
35

I repeat my treatment of the “gassy” condition of this mine from above as to the facts, analysis,
and conclusion. As above, the fact that this mine was gassy was not a violation of the standard.

33 FMSHRC 1366

alert in this record. However, there must be a nexus between the actions relevant to a given
violation and MSHA’s having put the operator on heightened alert. A heightened alert must be
shown to have a specific point of connection to the facts of an alleged violation. A general
statement of heightened alert cannot substitute for the Secretary carrying her burden of proof.
With all alleged violations, it is the Secretary’s burden to prove all elements necessary to support
the violation, the proposed penalty, and any enhanced enforcement consequences. The fact that
an operator is on heightened alert about violations of its ventilation plan in general does not
change the Secretary’s burden of proving anything. The Secretary cannot bootstrap a violation
up to the level of enhanced enforcement consequences without proving a convincing connection
between the circumstances giving rise to the heightened alert and the specific circumstances of
the violation. The Secretary has not proved the nexus in this instance. The fact that Brody was
on heightened alert from its prior history of ventilation plan violations is inapposite to the issue
of unwarrantable failure on the facts of this order. Had there been evidence that the physical
obstruction that disrupted the airflow existed for a longer period of time, or evidence of methane
buildup, an argument could be made that the heightened alert that Inspector Ward noted when he
wrote this order had a connection to the facts giving rise to the violation. But, such evidence is
not in this record. The heightened alert that Ward refers to relates to the effectiveness of Brody’s
ventilation actions, in general, not to this one-off and very short-term airflow obstruction. To
find that the heightened alert in this case had a bearing on this violation would bypass the very
important requirement that the Secretary prove a nexus between her theory of generalized
compliance laxity and the specific facts of this violation. The nexus has not been proved; the
theory remains unconnected to this violation.
Another relevant factor is knowledge of a dangerous condition. The Brody mine is
known as a gassy mine. Depending on the facts of a case, this could be a relevant and dangerous
condition and could support a finding of unwarrantable failure. The low airflow in this case was
caused by debris between the face and the line curtain that obstructed flow. As soon as the
curtain was repositioned to provide a larger area for the air to flow through, the airflow reading
increased to approved levels. There is no evidence to suggest that Brody knew or could have
known that this otherwise innocuous circumstance could affect the airflow, nor was there any
evidence that the condition existed for long enough to become apparent. Despite this being a
gassy mine, the reading detected no methane, so its being gassy has no connection to any real
danger. The condition did not exist long enough to put Brody on notice. Had there been
evidence showing that Brody could have and should have anticipated that such an accumulation
of gob would occur, and that it would likely cause an airflow disruption, or that this type of
airflow obstruction was foreseeable with any amount of gob obstruction when the line curtain is
placed so close to the face, the Secretary’s argument that Brody had the type of actionable
knowledge necessary to apply this precedent would be much stronger. I am not able to find that
Brody had knowledge of this type of dangerous condition such as would be needed to elevate this
situation to the level of an unwarrantable failure.
Another of the factors mentioned in precedent that can support enhanced enforcement is
the existence of a high degree of danger. Nearly all activity in a mine is attended by some
33 FMSHRC 1367

danger. There is no debate that given the right mixture of oxygen and methane, a devastating
explosion is a possibility. But, in order to have the advantage of this common knowledge for
purposes of penalty enhancement, the Secretary has to prove the existence of the conditions
likely to likely to cause an explosion. It is not enough to ask the fact finder to agree that, in the
abstract, a disaster is possible. There must be some evidence capable of taking the fact finder
from the abstract possibility to a distinct likelihood. In other words, the Secretary has to prove by
a preponderance of the evidence that the conditions reflected in the evidence are, in reality,
reasonably likely to pose a high degree of danger. The evidence here does not go that far, in fact
it falls quite short. Despite these violations of the extant ventilation plan, there was never any
measurable methane detected. It is impossible to infer a high degree of danger with this
evidence.
Finally, it bears mention that the fix for the violation took only six minutes. It is hard to
argue that a short-term condition that has the effect of obstructing airflow to a level in violation
of the plan is serious enough to warrant enhanced enforcement treatment when the fix is so
immediate and when, despite the violation, no methane has accumulated. This weighs against a
finding of unwarrantable failure.
In sum, none of the various factors cited in precedent as a basis for finding an
unwarrantable failure avails here. I conclude that Brody’s violation of its ventilation plan was
not an unwarrantable failure.
Gravity
Gravity was assessed as “reasonably likely” to result in “lost workdays or restricted duty”
for five people. I conclude that there is no likelihood that any loss of workdays or other greater
consequence would result from these conditions. I base this conclusion on the analysis in the
previous section. Under these facts, I must also conclude that with no likelihood of occurrence,
there is “no likelihood” of any workdays or anything more dire. As a result, I also conclude that
with no likelihood of any injury or lost work, no miners are involved.
Summary and Decision for Order No. 8075874
On February 11, 2009, inspector Charles Ward issued Order Number 8075874, a
104(d)(2) order with “high” negligence, alleging a violation of 30 C.F.R. Section 75.370(a)(1).
Ward alleged that Brody did not comply with its approved ventilation methane and dust control
plan for the 007-0 MMU. He alleged that the air measured 1,050 CFM behind the line curtain in
the No. 4 face, and that the condition was “reasonably likely” to cause an injury resulting in lost
workdays to five persons. The Secretary assessed a penalty of $4,440.00.
For the reasons stated above, I conclude that Brody has no negligence, that the violation is
not an unwarrantable failure to abide by the standard, that there is “no likelihood” of any loss of
workdays for any miners, and that the parties stipulated that the violation was not S&S. The
penalty will be reduced to $100.00.
33 FMSHRC 1368

[2.3] Order No. 8075906 reads as follows:
“Mechanical equipment guards that exposed moving machine parts which may be
contacted by persons shall be guarded. The Joy High Land shuttle car Co. No. 4, Ser. No. 2006
04-1001 being used on the 005-0 MMU, No. 2 Section is missing a guard that exposed an
opening 1 foot by 1 foot to the cable reel sprocket. The guard was laying [sic] in the operator
compartment. The operator stated that the guard has been missing for at least 2 weeks.
This order is unwarrantable failure to comply with a mandatory standard. Mine
management has engaged in aggravated conduct by failure to act on this hazard.”
Exhibit S-7
The gravity was assessed as “reasonably likely” to be “permanently disabling” for one
person and as S&S. It was also written as a Section 104(d)(2) violation, an unwarrantable failure
to comply with a mandatory standard. The operator's negligence level was assessed as “high,”
and the proposed fine is $4,000.00.
The Standard
30 C.F.R. § 75.1722(a) states:
“Gears; sprockets; chains; drive, head, tail, and take up pulleys; flywheels; couplings,
shafts; saw blades; fan inlets; and similar exposed moving machine parts which may be contacted
by persons, and which may cause injury to persons shall be guarded.”
The Evidence
On March 3, 2009, Inspector Ward issued Order No. 8075906, a 104(d)(2) order,
alleging a violation of 30 C.F.R. Section 75.1722(a)36 and high negligence. The inspector alleged
that a missing guard on a shuttle car exposed an opening of one foot by one foot to moving parts.
The inspector alleged that the condition was “reasonably likely” to cause a “permanently
disabling” injury to one person. (Tr. 51:8-19 and Exhibit S-7)
Accompanied by Carl Blankenship, Ward traveled down to the No. 2 Section where he
observed the mining of coal. Ward and Blankenship walked across an entry to where a
continuous miner was digging coal. A shuttle car came up to the continuous miner to retrieve
some coal, and Ward, standing on the offside of the shuttle car, noticed that the reel unit wheel
sprocket compartment was missing a guard plate. (Tr. 52:5-53:9) He pointed it out to
Blankenship who promptly ordered the operator to shut the car down. Ward and Blankenship
walked to the shuttle car. Ward asked the shuttle operator, Mr. Lambert, where the 12" x 12"
guard plate was. Lambert told him it was under his feet in the cab compartment. (Tr. 53:10-13)
36

Order Number 8075906, including Brody’s electrical examination reports, were admitted into
evidence as Exhibits R-8 and S-7.

33 FMSHRC 1369

According to Scott Watkins and Carl Blankenship, the operator’s compartment on a
shuttle car is small. It would be annoying and possibly in the way to have a 12" x 12" guard plate
rattling around in the cage. (Tr. 340:19-341:11)
Ward asked Lambert how long the plate had been missing. According to Ward, Lambert
answered, “Two weeks.” (Tr. 53:5-21; 89:7-23)
Ward testified that he was concerned that someone approaching from the offside of the
shuttle car, as he and Mr. Blankenship had just done, could slip, fall, and accidentally thrust a
limb into the unguarded wheel sprocket which could cause a serious injury. (Tr. 56:6-57:12)
Consequently, Inspector Ward issued a 104 (d) Order, for failure to guard exposed moving
machine parts.
Ward testified that Scotty Ray Watkins, the electrician who came to repair the guard
plate, told him that he had reported the missing plate two weeks earlier. Watkins took a
notebook out of his pocket and showed Ward a notation to that effect. (Tr. 54:3-24; 89:7-23 )
The guard was located on the left side of the shuttle car, opposite the driver, on the same
side as the cable reel and toward the dumping end. (Tr. 86:17- 87:3; 99:5- 101:15; 336:1-11;
364:3-365:13) It was about waist high. It covered an opening about 12" x 12" over a six inch
chain sprocket wheel. It was part of what is called the “leveling wind.” There was about three
inches of clearance from the sprocket wheel to the plate opening. (Tr. 55:1-21) According to
Ward, anyone walking on the left side of the shuttle car could trip over loose material, throw out
a hand to catch his fall, and have it wind up inside the sprocket housing. (Tr. 90:9-91:11)
Ward also testified that the shuttle operator cannot reach around from the operator’s
compartment and put his hand in the cable reel sprocket. (Tr. 88:6-9) For the shuttle operator to
come into contact with the cable reel sprocket, the operator would have to get out of the shuttle
car and walk around to the other side of the car (off side). (Tr. 327:23-328:10) There is a panic
bar in the operator cage that shuts the vehicle off if the operator leaves the cage. (Tr. 405:24
409:1)
Brody has a policy that forbids anyone walking on the off side of the shuttle car while it is
in operation. (Tr. 329:20-329:2) Because of the gear ratio, the shuttle car would only have to
move a little for the sprocket wheel to turn enough to catch a hand. Despite the company policy,
Ward concluded there was still a danger of an injury with the plate missing. (Tr. 55:22-57:7)
Brody developed evidence at the hearing that despite the company policy to the contrary, during
this inspection, Ward and Blankenship were on the off side of the shuttle car while it was
operating. (Tr. 57:8-12)
When the operator of a shuttle car exits the compartment, he is trained to turn the
machine off and de-energize the equipment. (Tr. 328:14-18; 407:21-408:4)

33 FMSHRC 1370

Ward did not observe any debris that would create a tripping hazard or any men working
on the off-side of the shuttle car. (Tr. 88:10-24; 367:8-11)
Regulations require the mine operator to do a weekly mine equipment inspection and note
any hazards in a log book. Ward did not review that log book. (Tr. 92:4-16; 364:3-365:13)37
Ward was on the Brody premises on March 3, 2009, to test for respirable dust, not airflow. He
was not looking for anything not related to dust testing. However, when he saw the missing
guard plate, he felt he had a duty to write it up. According to Ward, that is one reason why he did
not review the company examination records regarding the missing guard plate. Ward testified
that if he had known that the examination records did not mention the missing plate, and had
learned from the miners what he did about the plate, he would have written them up for a
violation of an additional standard.38 Ward stated that he had failed in his duty with respect to
this. (Tr. 98:1-24)
Based on his experience, Ward has seen situations where coal “humps up” on the feeder
system so the shuttle car driver cannot see anything on the off-side. So, even though a company
may have a policy prohibiting miners from being on the off-side of a shuttle car in operation, if
someone violates the policy by being where he shouldn’t, the operator cannot always see
someone over there. (Tr. 99:5-100:1)
In March 2009, Scotty Ray Watkins was a troubleshooter on the day shift working in the
Brody mine. (Tr. 323:7-326:7) He was present when Ward wrote citation No. 8075906. Watkins
testified that Ward noticed that the guard plate was missing. Shuttle operator Lambert reached
inside the operator’s deck and pulled the guard out. Lambert said, sarcastically: “The guard has
been off for two weeks. I told them to fix it, and they just disregard it.” Kevin Webb, Brody’s
day shift mine foreman, was in on the last of this exchange. Webb told Watkins to fix the
problem. (Tr. 333:18-335:3) Watkins got the service scoop and came back and fixed the guard
plate. The repair was done the same shift; it took about ten minutes. (Tr. 51:21-54:50; 335:4-11;
349:10-12; 366:23-367:2)
According to Watkins, the guard plate covered an opening about one foot square, not
large enough to get a foot into. (Tr. 335:12-24)
According to Watkins, the examination report for the shuttle car for the most recent
examination before this order was February 28, 2009. It does not show anything related to the
guard plate. There was no report of any problem with the cable reel on the shuttle car for the two
weeks prior to the order. If the guard plate had been missing during any of the prior
examinations, the shuttle operator has a legal obligation to note it in the records and to get it
37

According to counsel, Brody’s records for the shuttle car for the four weeks prior to this order
did not show any hazard. This is not evidence. (Tr. 89:4-11)
38
Although the record is silent as to what additional or different standard Ward would have used
as a basis for the hypothetical second order, I take from context that he would have cited Brody for
failing to note the missing guard plate in its examination records.

33 FMSHRC 1371

fixed. (Tr. 336:12-340:18; 329:21-23; 366:15-22) During the two weeks prior to the order, the
shuttle car would have been inspected several times. (Tr. 342:10-343:6)
Kevin Webb described how frequently a shuttle car is examined and what a typical
examination entails. If an operator finds something wrong with the shuttle car, he shuts it off and
reports it to management. (Tr. 409:7-410:21) Webb reviewed the documents in Exhibit R-8 and
noted that they do not talk about any problem with a missing guard plate. (Tr. 410:22-412:11)
Brody operated this shuttle car on two production shifts with two different miner
operators. (Tr. 330:18-23) Brody performed a weekly permissibility check by a certified
electrician once a week on shuttle cars and a physical examination of the equipment two times
per day (Tr. 330:2- 331:1 and Exhibit R-8)
Brody cleaned and washed the shuttle car on February 16, 2009, and did not note any
hazards on that date. (Tr. 331:18-21 and Exhibit R-8) Brody performed a ground continuity
check on February 20, 2009, which included checking the cable reel. (Tr. 332:1-4 and Exhibit R
8) Brody cleaned and washed the shuttle car on February 23, 2009, and did not note any hazards
on that date. (Tr. 332:19-21 and Exhibit R-8) Brody performed a ground continuity check on
Saturday February 28, 2009, which included checking the cable reel. (Tr. 338:17-22 and Exhibit
R-8)
Watkins testified that the bolts on the guard plate had been sheered off, which would have
taken more force than just prying on it. It would take something like an impact with another
piece of equipment to do it. One of the bolts looked like it had just been broken. The other one
had been broken long enough to rust a little. (Tr. 341:12-342:9)
The notes on page 14 of Exhibit S-7 indicate that Watkins showed Ward his notes where
it states that Watkins had reported that the guard plate was missing. Watkins denied this in his
testimony. (Tr. 344:20-346:21) At his deposition, Watkins conceded that he may have
“possibly” written something in his personal work notebook about the missing guard plate.
When pressed on this point, Watkins stood firm on his denial that he wrote anything about this in
his notebook. (Tr. 345:13-349:4) Watkins was keeping a personal notebook at work and had
been doing so for some time prior. (Tr. 348:7-349:4)
As shown in Exhibit R-8, Carl Blankenship was with Ward when this order was written.
In his testimony, Blankenship described the dimensions of a shuttle car and Brody’s policy
regarding what an operator must do to inspect the vehicle before using it. He also explained the
“off side” rule about miners not working around a shuttle car. (Tr. 364:3-365:13) Blankenship
saw the guard plate missing. He saw that there was a bolt missing on the guard plate. (Tr. 367:5
7) He did not measure it. Both he and Ward were off side while they looked at the missing
plate. The shuttle car was not energized, so he felt it was nothing of any consequence. (Tr.
365:14-366:14; 419:5-7)

33 FMSHRC 1372

According to Blankenship, it is not realistic to believe that someone could get their foot
or hand inside the guard plate opening and be injured. (Tr. 367:8-368:1) Blankenship does not
believe it would be prudent to operate the shuttle car with the guard plate rattling around inside
the operator cage. (Tr. 369:8-19)
Blankenship goes over the daily and weekly examinations Brody reports does on each
shuttle car. (Tr. 369:1- 9) If anyone had been aware of the guard plate issue, it would have been
fixed immediately. (Tr. 369:10- 13) Blankenship does not believe that the guard plate could
have been missing for two weeks. (Tr. 369:14-370:6)
Regarding the apparent conflict between Ward’s recollection and notes about Lambert’s
purported statement that he had notified Brody maintenance people about the missing plate two
weeks prior to this order, Blankenship stated that a miner would make up a story about the plate
missing for two weeks to cover his own failure for not reporting it sooner. A miner would have
been written up for this. (Tr. 370:7-14)
Webb saw that the guard plate was missing. He did not remember any damage to the
plate. Webb stated that it took Watkins 15 - 20 minutes to fix it. He also confirmed that it would
be possible, but annoying, to operate the shuttle car with a loose guard plate in the operator’s
cage. (Tr. 412:12- 415:22)
Webb denied hearing Lambert say anything about the guard plate missing for two weeks.
(Tr. 415:5-416:5)
Discussion
Violation / Negligence
There is no dispute that the shuttle car was missing a guard plate and that mechanical
parts, including a sprocket wheel, were exposed. Brody does not dispute that the missing guard
over the sprocket wheel on the shuttle car was a violation. (Brody's Motion for Summary
Decision at 39, n. 9) The other element necessary to prove a violation of 30 C.F.R. § 75.1722(a)
is whether a person might come in contact with the exposed moving parts. The parties dispute
this second element. Brody raises four points in its defense39: (1) The opening was too small to
pose a threat of “contact”; (2) In order for a person to be on the offside of the shuttle, where the
plate should be while the shuttle is in operation, he/she would have to violate a company policy;
(3) There was no trip and fall hazard that could result in a person falling into the mechanism; and
(4) It would be impossible for the operator to come in contact with the moving parts while the
shuttle is operating.
The “violation of company policy” defense is the least compelling vis-a-vis whether a
violation occurred. Would that all that was required to avoid injury to miners was a company
39

These defense issues are also relevant to the analysis of negligence, gravity, S&S, and
unwarrantable failure.

33 FMSHRC 1373

policy! It is easily foreseeable that a miner might violate a company policy, even one designed to
protect him/her. The fact that Brody anticipated the likelihood of injury when miners work on
the blind side (offside) of dangerous equipment shows how weak this defense is. There is no
better evidence of the seriousness of a hazard than when a company implements a policy to avoid
it - and no weaker defense for a violation. It avails them nothing to argue that they should be
absolved of liability for a violation if a miner violates one of their policies.
On the other hand, the offside policy does help Brody when we consider negligence.
Recognition of a hazard and implementation of a protective policy is evidence of due care that
can be weighed with other evidence pertinent to negligence.
The arguments that the opening was too small and that there was no evidence of a tripand-fall hazard are discussed in tandem.40 The argument that the opening was too small to allow
a miner’s body to contact the moving parts under the guard is not convincing. Brody’s evidence
was primarily focused on whether a miner’s boot would fit through the opening. Again, it is
easily foreseeable that a miner (who is violating the offside policy) might fall toward the
unprotected opening and throw out a hand to break the fall. There is no need for a special
finding of a distinct trip and fall hazard. Falls at work (especially in mines) can occur in the
absence of a specific trip and fall hazard. Other dangerous scenarios are easy to foresee, e.g.,
articles of clothing being drawn into the moving parts or objects that get into the gears and
become missiles. The 12" x 12" opening is large enough to present a danger.
Finally, Brody contends that it would be impossible for the shuttle operator to come in
contact with moving parts under the missing guard plate. This argument is strongest when
considered as part of the gravity analysis, but it does tend to weigh against a finding of violation.
However, since the shuttle operator is only one person among many who might come into contact
with this dangerous situation, the fact that there are other miners potentially exposed to the
danger of unprotected moving machine parts supports my conclusion that a violation of the
standard occurred.
Inspector Ward alleged “high negligence” with this order. Three of the four defense
issues just addressed can be recast as mitigation issues, which become relevant for the negligence
assessment: (1) There was a company “offside” policy; (2) A shuttle operator could not contact
moving parts under the missing guard plate; and (3) There was no trip-and-fall hazard.41
The “offside” policy argument arises from actions purposely taken by Brody that are
directed, if not at this specific instance, at circumstances very similar to these. The fact that
Brody had a policy relevant to this circumstance can legitimately be considered in mitigation of
its negligence.

40

These two issues are relevant to the likelihood component of the gravity analysis.
The “small opening” defense is not realistically relevant to mitigation and is more pertinent to
the likelihood analysis to follow.
41

33 FMSHRC 1374

Brody did not build or design the shuttle car, so the fact that it is effectively impossible
for the shuttle operator to come in contact with moving parts under the missing plate does inure
to its benefit, but only slightly. However, the fact that Brody trains its operators to de-power the
shuttle car when they leave the operator’s cab, taken in conjunction with the design elements that
are intended to prevent the parts from moving if the operator leaves the cab, does amount to
mitigation.
The absence of an obvious trip-and-fall hazard mitigates against the likelihood of an
injury, but not against the extent of Brody’s negligence in allowing the guard plate to go missing
for so long. I will consider the trip-and-fall issue again later.42
Brody’s negligence is mitigated to “moderate” by the factors described above. Brody is
imputed with knowledge of the missing guard plate due to the length of time the condition
existed and the fact that at least two employees knew of it. The weight of mitigation here is quite
low, but still sufficient to justify reducing the negligence assessment to “moderate.”
Gravity / Significant and Substantial
The order alleged gravity at the level of reasonably likely to be permanently disabling for
one person and constitutes a significant and substantial violation deserving of enhanced
enforcement treatment. Brody asserts that the Secretary improperly assigned the gravity of the
violation and that it does not rise to the level of S&S. Three issues are presented here: (1) Do the
conditions underlying this violation present a reasonable likelihood of an injury to a miner? (2)
Is the injury potentially permanently disabling? (3) How many miners were exposed to these
conditions?
Starting with the last of the three gravity issues, I find nothing in the record to weigh
against the Secretary’s allegation that one miner would be potentially injured by these conditions.
There is also nothing in the record to support a finding that more than one miner is potentially
exposed to this hazard. I find that these conditions would subject one miner to a risk of injury.
Regarding the issue of reasonable likelihood, I take guidance from the Commission
position that the Department's regulations require the guarding of machine parts that "may be
contacted." 20 C.F.R. § 75.1722(a); Secretary of Labor (MSHA) v. Thompson Brothers Coal
42

The Secretary argues that the guard plate was missing for at least two weeks. For reasons that
will be more thoroughly discussed below, I agree with the Secretary on this point and find that the guard
plate had indeed been missing for at least two weeks. This can be seen as an aggravating circumstance.
Mitigating circumstances can be offset by aggravating circumstances, so it might seem to some that this
would be the logical point to consider evidence of aggravation. However, I choose to treat aggravating
circumstances in the context of the enhanced enforcement issues of S&S and “unwarrantable failure” to
follow.

33 FMSHRC 1375

Co., 6 FMSHRC 2094, 2097 (Sept. 1984). In Thompson Brothers Coal Co., the commission
reasoned:
Use of the word "may" in these key phrases introduces considerations of the likelihood of
the contact and injury, and requires us to give meaning to the nature of the possibility
intended. We find that the most logical construction of the standard is that it imports the
concepts of reasonable possibility of contact and injury, including contact stemming from
inadvertent stumbling or falling, momentary inattention, or ordinary human carelessness.
Thompson Brothers Coal Co., 6 FMSHRC at 2097 (emphasis added).
The fact that the operator may not allow the equipment with the exposed moving parts to
be operated while people are present is not inconsistent with a finding that the violation is
reasonably likely to occur or amounts to S&S. See Crimson Stone v. FMSHRC. 198 Fed. App.
846 (11th Cir. 2006) (court upheld an ALJ's finding that failure to guard machine parts in a plant
was significant and substantial even though the equipment was not energized if anyone was near
it).
Although Brody was prudent to have a policy of not allowing people around a shuttle car
while it is operating43, rules are not always followed by mine personnel. See Thompson Brothers
Coal Co., 6 FMSHRC at 2097 (human carelessness a factor in determining occurrence of a
violation for guarding standard). Case in point - both Blankenship and Ward approached the
shuttle car in question from the offside while it was in operation. (Tr. 57:8-12)
Brody challenges the likelihood of injury by stressing the fact that the area exposed by the
missing guard plate was only 12" x 12", too small for a miner’s boot. This argument is too
restrictive to have real weight. First, the opening was approximately waist high. At that height,
it is much more likely that a smaller item, e.g., a hand or some loose equipment or clothing item
attached to a miner, would come in contact with the exposed mechanism. Second, irrespective of
the height, a 12" x 12" opening would accept the toe or heel of any boot, and definitely
something as small as a hand. An opening of that size presents a real and significant hazard and
supports a finding of reasonable likelihood of injury. Obviously, if the guard plate is in its proper
place, there is no hazard of injury related to this condition. It follows that the missing guard plate
violation does more than contribute to the hazard here, it creates the hazard. As such, the key
element of the Mathies Coal S&S test, as clarified in U.S. Steel Mining Co., Inc., 7 FMSHRC
1125 (Aug. 1985), is satisfied.
The final point of consideration is whether a potential injury could be permanently
disabling, which for S&S purposes is an injury of “reasonably serious nature.” Without
cataloging all the possible injuries that could result from this hazard, suffice it to say that the loss
of fingers, toes, a hand, or a foot is permanently disabling to some extent.
43

I considered Brody’s offside policy as a mitigating element in the negligence assessment

above.

33 FMSHRC 1376

I refer to the prior discussion of the elements of “significant and substantial.” As to the
first of the four S&S elements outlined above, I have found that there was a violation of 30
C.F.R. § 75.1722(a). The second step is to determine whether the violation constitutes a discrete
safety hazard. I have found that the missing guard plate creates an injury hazard that is
reasonably likely to result in a permanently disabling injury. Third, this violation contributes to
the cause and effect of an injury hazard. Fourth, there is a reasonable likelihood that the injury
will be of a reasonably serious nature.
In sum, I find and conclude that the conditions underlying this violation are reasonably
likely to be permanently disabling for one person. I find further that the violating condition is
significant and substantial.44
Unwarrantable Failure
I refer to the prior discussion of the elements of “unwarrantable failure.” There is
considerable evidence in this record on the issue of whether two Brody employees, Scotty Ray
Watkins and Mr. Lambert, had known about the missing guard plate, and in the case of Mr
Watkins, kept notes about it, and shared their knowledge with Brody management. Inspector
Ward testified, and his inspection notes in Exhibit S-7 confirm, that Watkins and Lambert both
told him they knew the plate was missing for two weeks. This evidence is pertinent to several of
the issues identified in the following cases as having probative relevance to the issue of
unwarrantable failure. See, Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994);
Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC
705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603 (July 1984); Beth Energy
Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Warren Steen Constr., Inc., 14 FMSHRC
1125, 1129 (July 1992). In addition to the basic and universal considerations of whether a
violation has occurred, what degree of negligence is involved, and how serious or grave the
violation is, the cited cases suggest the following as evidence of the aggravating circumstances
that will support a finding of unwarrantable failure in the context of the enhanced enforcement
objective of a 104(d) order: (1) how long the violating condition existed; (2) whether it is
obvious; (3) whether the operator has been placed on notice that greater efforts are necessary for
compliance; (4) the operator’s efforts to abate the condition. This is not an exhaustive list of
relevant factors.
There is a clear conflict of evidence regarding whether Watkins told Ward he had noted
the absence of the guard plate in a personal notebook and showed the notes to Ward on March 3,
2009. At the hearing, Watkins denied that he showed the notes to Ward. (Tr. 344:20-346:21)
But, in an earlier deposition, Watkins allowed that he may have written something about the
missing guard plate in his personal work notebook. (Tr. 345:13-349:4) Watkins also conceded
that he had kept a personal notebook at work for some time prior to this incident. (Tr. 348:7
349:4) Ward’s inspection notes, page 14 of Exhibit S-7, mention that Watkins showed Ward his
44

Generally, a violation is properly designated as S&S if it is reasonably likely that
the hazard contributed to by the violation will result in a serious injury. Nat'l. Gypsum Co.,
3 FMSHRC 822, 825 (April 1981).

33 FMSHRC 1377

notes about the missing guard plate. I conclude from this that Watkins did keep notes about the
missing plate and showed them to Ward on March 3, 2009. Watkins is still employed by Brody,
was called as a witness by Brody, and has an understandable motive to preserve an appearance of
loyalty to his employer. I find his disavowal of his notes at the hearing unconvincing and lacking
credibility.
In consideration of Watkin’s notes, Lambert’s blurted statement that he had known about
the situation and reported it to management, Ward’s entry in his inspection notes, and Brody’s
unconvincing general denial of knowledge about the missing plate, I find that the plate had been
missing for at least two weeks and Brody either knew about it or had ample reason to know about
it. Brody’s regularly kept examination and maintenance records were silent about this missing
plate. These two items are evidence of an aggravating circumstance that deserves enhanced
enforcement consideration under the cited case precedent. Two weeks’ knowledge of a violating
condition without any effort to remedy is an aggravating circumstance. Brody was on notice, due
to the fact this condition had been noted and reported to management, that corrective action was
needed. Yet it did nothing. In light of all the facts of this violation, I find and conclude that
Brody’s failure to repair the missing guard plate was unwarrantable.
Summary and Decision for Order No. 8075906
On March 3, 2009, Inspector Ward issued Order No. 8075906, a 104(d)(2) order, alleging
a violation of 30 C.F.R. Section 75.1722(a) and “high” negligence. The inspector alleged that a
missing guard plate on a shuttle car exposed an opening of 12"x12" to moving parts. The
inspector alleged that the condition was “reasonably likely” to cause a “permanently disabling”
injury to one person, was significant and substantial, and constituted an unwarrantable failure to
comply with Section 75.1722(a). The Secretary assessed a penalty of $4,440.00.
For the reasons stated above, I conclude that Brody’s negligence was “moderate,” that the
conditions underlying this violation were “reasonably likely” to be “permanently disabling” for
one person, that the violating condition is significant and substantial, and that Brody’s actions
constituted an unwarrantable failure to comply with the standard. The penalty will be adjusted to
$450.00.
[2.4] Order No. 8079224 reads as follows:
“Accumulation of combustible material in the form of loose coal, coal dust, and float coal
dust saturated with hydraulic oil was allowed to accumulate on the Co. No. 602 Stamler feeder.
This condition exists around the oil tank, oil filters, valve chest, electrical components, and
hydraulic hoses. The oil tank and filter area on the off side of the [sic] was hot to the touch. The
accumulations were approximately up to 18 inches deep, and 12 feet long. The feeder was
energized and the section crew was loading coal. Twenty three [sic] citations have been issued at
this mine for violations of 75.400 in the past 2 months.

33 FMSHRC 1378

This order is unwarrantable failure to comply with a mandatory standard. Mine
management has engaged in aggravated conduct constituting more than ordinary negligence.”
Exhibit S-11
The gravity was assessed as reasonably likely to be fatal for 14 persons and as S&S. It
was also written as a Section 104(d)(2) violation, an unwarrantable failure to comply with a
mandatory standard. The operator's negligence level was assessed as “reckless disregard,” and
the proposed fine is $70,000.00.
The Standard
30 C.F.R. § 75.400 states:
“Coal dust, including float coal dust deposited on rock-dusted surfaces, loose coal, and
other combustible materials, shall be cleaned up and not be permitted to accumulate in active
workings, or on diesel- powered and electric equipment therein.”
The Evidence
On February 26, 2009, inspector James Jackson inspected Brody Mine No. 1 and issued
Order
Number 8079224,45 a 104(d)(2) order alleging reckless disregard and a violation of 30 C.F.R.
Section 75.400.
Inspector Jackson alleged that Brody failed to maintain the stamler feeder by allowing
loose coal, coal dust, and float coal dust to accumulate. (Exhibit S-11) According to Jackson,
the condition existed on the oil tank, oil filters, valve chest, electrical components, and hydraulic
hoses. Jackson also alleged that the oil tank and filter area on the off side of the feeder were hot
to the touch. The accumulations were alleged to be up to eighteen inches deep and twelve feet
long and saturated with hydraulic oil. Jackson was concerned that the heat from the oil tank, oil
filter, and various electrical components could serve as an ignition source of the coal dust mixed
with hydraulic oil. (Tr. 124:9-125:11) Jackson alleged that the condition was reasonably likely
to cause a fatal injury to fourteen persons. (Exhibit S-11)
Jackson found coal accumulations on a Stamler feeder. A feeder is a stationary piece of
equipment where shuttle cars dump coal to send down the belt line. (Tr. 254:13-22) The feeder
acts like a funnel at the end of a belt line. Shuttle cars bring coal to the feeder and dump it in.
The feeder connects to the tail piece and funnels the coal onto the tail piece and the belt line.
Jackson found an accumulation of coal dust, loose coal, and coal float dust saturated with what
he took for hydraulic oil. The accumulation was in the area of the oil tank, oil filters, a valve
45

Order Number 8079224, including Brody’s pre-shift, daily, and on-shift reports, were admitted
into evidence as Exhibit R-7 and with Jackson’s field notes as S-11.

33 FMSHRC 1379

chest, and electrical components. The feeder was energized and running, and the crew was
actively loading coal into it. (Tr. 124:9-125:11)
The oil filters, hydraulic hoses, and valve chest will heat up when in use. Jackson
observed these items to be hot to the touch. (Tr. 147:7-18 and Exhibit S-11, p. 9) The material
was not dry because it was saturated with what Jackson believed to be hydraulic oil. (Tr.125:12
23)
Jackson also wrote a citation for an electrical cable splice on the feeder that was not done
with the right type of connectors and issued Citation No. 8079225.46 (Tr. 126:14-127:24 and
Exhibit S-12) Jackson concluded that the faulty splice could have led to a spark, which in turn
could have ignited the coal accumulations and started a fire. (Tr. 126:14-128:8)
According to Jackson, he wrote the order alleging “reckless disregard” because Brody had
been cited twenty-three times within the previous two months for allowing combustible materials
to accumulate and had been warned about running equipment under these conditions. Brody was
on heightened alert as to the coal accumulations and dirty equipment but continued to operate
without cleaning things up. Jackson felt the mine needed to be more vigilant. (Tr. 128:9-23)
Brody had water hoses, CO monitors, fire extinguishers, and other fire suppression near
the stamler feeder on the No. 2 section. (Tr. 256:9- 21) There was a fire hose within as little as
ten feet of the feeder. (Tr. 147:19-148:1)
The fluid Jackson took for hydraulic oil was not on top of the feeder; it was around the
valve chest, the hoses, and the tank itself. Jackson did not test to determine if the substance
around the valve chest, the hoses, and the oil tank was hydraulic oil. According to him, it is not
likely that he mistook the fluid for water because water and hydraulic oil are different colors.
(Tr. 145:13-146:7) Although Jackson believed that hydraulic oil is flammable, he cannot prove
that it is. (Tr. 148:15-17)
Jamie Lester, Brody’s Assistant Shift Foreman, testified that he did not observe hydraulic
oil on the coal - only water. (Tr. 254:4-9)
According to Lester, Jackson did not take any measurements of the accumulations on the
feeder. (Tr. 253:20- 22) Lester did not see any oil on the coal fines. He did not smell any oil.
Jackson did not take any samples of the oil. (Tr. 258:8-15)
According to Brody’s witnesses, the accumulations were loose, wet coal. It had not been
there long enough to be compacted. (Tr. 266:6-13) The accumulated coal consisted of pieces of
coal, each about 2 inches in diameter. (Tr. 266:16-22)

46

Citation No. 8079225 is not part of this case. It was offered as evidence of another possible
ignition source for the coal accumulations in Exhibit S-11.

33 FMSHRC 1380

Lester testified that Jackson decided to write the order within one minute of looking at the
machine. (Tr. 253:17-254:3)
Lester did not observe any smoke near the feeder. There are systems with detectors to
alert the miners if smoke occurs. The law requires a dispatcher to send someone to check on
smoke and CO sensors if there is an alarm. (Tr. 260:13-21) Prior to the issuance of this order,
there were no reports of any CO monitor going off near the feeder. (Tr. 261:3-5)
Lester did not observe Jackson touching anything to determine whether the feeder was
hot to the touch. Lester testified that if the feeder had been hot to the touch, he would have done
something immediately and would definitely remember something like this. Lester testified he
would have de-energized the feeder and sprayed it with water to cool it down. (Tr.257:17-258:7)
Each shuttle car can carry from ten to fifteen tons of material at a time. In a twelve-hour
shift, from fifty to eighty shuttle car loads are dumped at the feeder. (Tr. 255:12-256:3)
There are conditions that can occur instantaneously that can cause coal to accumulate
such as in this case. For instance, a large rock can block the pick breaker. (Tr. 258:16-259:13)
The pick breaker has a mechanism that will sheer off a pin if it gets blocked by hard and big
objects, but if it just gets overloaded, there is nothing that will shut it off to prevent spillage. (Tr.
259:15- 260:3)
It is possible that the coal on the feeder could have accumulated to the extent alleged by
Jackson during a single shift. But, according to Jackson, the coal dust with the hydraulic oil
would have taken more than a single shift. It is on another part of the feeder, and there are covers
over the area. It would have taken a lot longer for the material to have accumulated in the
covered area. (Tr. 128:24-129:12)
There are also times when the shuttle operator cannot see what is happening with the
feeder so that accumulations may happen even though he is there. (Tr. 260:4-12)
The area of the mine where the Stamler feeder is located is wet. In addition, the feeder
has sprayers on it to wet the material down. The area was wet; the feeder was wet; the feeder was
standing in about 6 inches of water from when the maintenance crew had cleaned it. (Tr. 263:2
264:7)
The feeder was cleaned by the second shift every day at the end of their shift by soaking it
with water for ten to fifteen minutes. (Tr. 263:14-264:7) As part of Brody’s regular
maintenance, the feeder is greased and rocked dusted. (Tr. 264:8-17) Brody examines the feeder
on a weekly basis. (Tr. 257:3-5 and Exhibit R-7) When Brody calls out the weekly report, it does
so from a telephone located near the feeder. (Tr. 262:15-18)

33 FMSHRC 1381

If there had been any accumulations, they would have been called out as part of the preshift report process and included in the pre-shift report. There are no accumulations noted in the
reports. (Tr. 261:6-262:22)
To abate the order, Brody personnel removed the accumulated coal from the feeder. The
accumulations were loose, not compacted. They did not have to use a scoop to remove the
accumulations, however they were dense enough that they had to be washed off, not just brushed
away. (Tr. 146:8-147:2) The abatement was finished about one hour and fifteen minutes later.
(Tr. 148:2-14) It took about fifteen minutes to remedy the situation. (Tr. 265:2-21)
Discussion
Violation
There is no dispute that Inspector Jackson found coal accumulations in the Brody Mine
No. 1 on February 26, 2009, that measured up to eighteen inches deep and twelve feet long. The
standard at 30 C.F.R. § 75.400 requires that coal dust and other combustible materials be cleaned
up and not permitted to accumulate in active workings or on electric equipment. The area in
question was an active working area, being actively mined at the time. The stamler feeder on
which the accumulations were found is a piece of electrically powered equipment. All of the
elements needed to prove a strict liability violation of the standard are present. I conclude that
the coal accumulations observed by Inspector Jackson constituted a violation of 30 C.F.R. §
75.400.
Negligence
Inspector Jackson alleged that Brody exhibited reckless disregard by allowing the coal
accumulations he observed on February 26, 2009 to occur. I address the following questions
related to negligence: (1) Did the accumulations occur in a short time? (2) Were the
accumulations saturated with water or oil? (3) Were there potential ignition sources in the area?
A scenario can be constructed from the facts in this case in which reckless disregard is the
resulting finding. However, the evidence has to be convincing that the coal accumulations were
saturated with oil and/or that they had been present for an extended period. Short of that, a lesser
degree of negligence is more appropriate.
The most important disputed fact issue is whether the accumulations were saturated with
oil instead of water. Obviously, a petroleum based substance can be presumed to be flammable
and lend its flammable nature to something soaked with it. On the other hand, coal
accumulations saturated with water are presumably less flammable than they would be in a dry
state.
The strongest evidence tending to prove that the substance was oil is the proximity of the
accumulations to a source of hydraulic oil, e.g., a hydraulic oil reservoir or hydraulic lines. That
33 FMSHRC 1382

fact is established in this record. However, the evidence does not show convincingly that the
fluid was oil instead of water even given the proximity. To the contrary, there is no dispute that
the environment where this violation occurred was wet with water. Inspector Jackson did not
smell the fluid; he did not feel its consistency; he did not sample it; he did not have it tested. The
evidence is that he observed that the coal accumulations were saturated with something that did
not look like water and that he felt the oil tank, oil filters, valve chest, electrical components, and
hydraulic hoses and determined that they were hot to the touch. In the space of a minute, Jackson
determined that it was oil and proceeded to construct the order based on that conclusion. When
pressed on cross examination, Jackson conceded that he could not prove that the fluid was
hydraulic oil.
I am guided by the knowledge that I can give an MSHA inspector a presumption of
credibility due to his experience. But, that presumption is overcome by the evidence in total.
Brody’s witnesses testified that the accumulations appeared to be wet with water. There is
nothing that compels me to discount that testimony. In fact, their description of the
accumulations is more detailed and convincing that Jackson’s. They testified that the area of the
mine where the Stamler feeder is located is wet. It had sprayers on it to wet the material down.
The area was wet; the feeder was wet; and the feeder was standing in about six inches of water
from when the maintenance crew had cleaned it. The feeder was cleaned every day soaking it
with water for ten to fifteen minutes. There is nothing implausible about these facts that would
call them into question. In short, without additional evidence from the witnesses to bolster the
notion that the fluid was oil, the evidence that it was water is more convincing. Under the
circumstances, I am not inclined to bridge the gap between the evidence in the record and
Jackson’s belief at the time he wrote this order. The Secretary has failed to carry her burden to
prove this point by a preponderance of the evidence.
The evidence of heat from the oil tank, oil filters, valve chest, electrical components, and
hydraulic hoses is consistent with a Jackson’s conclusion that there was a potential ignition
source, particularly given his belief that the soaking fluid was oil. There was another possible
ignition source from an improper electrical splice in the vicinity, documented in Citation No.
8079225. But, the fact that the accumulations wet with water mitigates significantly against a
potential ignition.
I am unable to resolve whether the coal particles accumulated in a short time. Brody put
on credible evidence that it is possible that this volume of accumulations could have built up in
very short order. To the contrary, the Secretary’s evidence on this point focused on the
likelihood that, if the soaking fluid was oil, it was also likely that it would have taken longer than
a single shift to get to the condition that Jackson observed on February 26, 2009. The weakness
of the evidence tending to prove that the fluid was oil undercuts the Secretary’s position. At
base, the evidence does not mitigate Brody’s negligence greatly, but it also does not support the
Secretary’s position that Brody’s negligence is at the level of reckless disregard.
I conclude from the foregoing that Brody’s negligence is more appropriately characterized
as “moderate.” Even if the accumulations built up rapidly, Brody should have been more on top
33 FMSHRC 1383

the situation than these facts reveal. The fact that the accumulations were wet with water is a
mitigating factor, as mentioned already. These findings do not support a negligence
determination lower than “moderate.”
Gravity / Significant and Substantial
Jackson characterized the gravity as reasonably likely to be fatal for fourteen persons and
as S&S. If the facts supported Jackson’s conclusion that the accumulations were soaked with oil
and that there was a possible ignition source in the immediate vicinity, his conclusion could be
consistent with his gravity assessment. There is no dispute about the number of miners
potentially affected by the violation. The issues to be resolved are whether the violation was
reasonably likely to result in an injury and whether the potential injury could be a fatality, as
alleged.
In order to consider gravity and S&S with some separation, I am guided by Consolidation
Coal Co., 18 FMSHRC 1541, 1550 (September 1996): the “focus of the seriousness of the
violation is not necessarily on the reasonable likelihood of serious injury, which is the focus of
the S&S inquiry, but rather on the effect of the hazard if it occurs.” The potential effect of a wet
coal accumulation in the presence of an ignition source is not severe. In this instance, there is not
much difference between a raw assessment of likelihood and a more nuanced analysis of the
effect of the hazard. Whether one looks at simple likelihood or the potential effect of the hazard,
the result is the same. The likelihood of an ignition is remote, and the potential of a serious
injury is also remote.47 There was no evidence of any heat from belt friction that could have
dried out the wet accumulations; there was also no specific evidence as to how hot the oil tank
and other heat sources were. I conclude that it was unlikely that an injury would result from
these facts, and due to the fact that there was little likelihood of an event, there was also lower
potential severity. I conclude that the severity level should be “no lost workdays.”
I turn now to the question of whether this violation should be characterized as “significant
and substantial.” The Commission looks at a "confluence of factors" in determining whether or
not an accumulation of coal or coal dust is likely to lead to a fire or explosion, and therefore
constitutes a significant and substantial violation, including the extent of the accumulations and
the presence of potential ignition sources. Amax Coal Co., 19 FMSHRC 846, 849 (May 1997).
The Commission has found that friction from a belt line or roller, electrical equipment, and
power cables can all serve as ignition sources, Mid-Continent Resources, Inc., 16 FMSHRC at
1222 (June 1994). No matter what the relevant standard is, there must be evidence in the record
sufficient to prove the various elements. The facts supported by the record must establish that
the violation contributes to the cause and effect of a hazard, according to the Commission
opinion in U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), citing U.S. Steel
Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., Inc., 6
FMSHRC 1573, 1574–75 (July 1984).
47

It is easy to hypothesize a set of facts similar to these that would support a vastly different
conclusion, however we react to proven facts - not hypotheticals.

33 FMSHRC 1384

On these facts, this violation does not contribute to a discrete safety hazard. I am aware
that the build up of coal accumulations wet with water could, with the right combination of
additional causation elements such as be belt friction or other prolonged heat exposure sufficient
to cause an ignition, contribute to a safety hazard. However, the Secretary did not prove the
additional causation elements, and I cannot infer them. I conclude that this violation was not
significant and substantial.
Unwarrantable Failure
The Secretary argues that Brody had also been repeatedly cited for allowing combustible
materials to accumulate in violation of 20 C.F.R. § 75.400, and was therefore put on notice that
it should employ increased measures to insure that coal and coal dust not accumulate. Eagle
Energy, Inc., 23 FMSHRC, 829, 838 (Aug. 2001) (prior citations put operator on notice of
recurring problem); IO Coal Company, Inc., 31 FMSHRC 1346, 1351 (Dec. 2009) (repeated
violations of the same standards serve to put operator on notice that greater efforts are required
for compliance). Brody had been cited for Section 75.400 violations twenty-three times in the
previous two-month period. I find that Brody was on notice from this relevant and recent history
that it should put forth greater effort to comply with Section 75.400. From this I conclude that
Brody was generally indifferent to the requirements of Section 75.400 and that the facts of this
violation constitute an unwarrantable failure to comply with the standard and that the penalty
should be affected by Brody’s indifference independent of the methodology reflected in 30
C.F.R. § 100.3, Table X.
Summary and Decision for Order No. 8079224
On February 26, 2009, inspector James Jackson inspected Brody Mine No. 1 and issued
Order Number 8079224, a 104(d)(2) order alleging reckless disregard and a violation of 30
C.F.R. Section 75.400. The inspector alleged that the condition was “reasonably likely” to cause
a permanently disabling injury to one person, was significant and substantial, and constituted an
unwarrantable failure to comply with Section 75.1722(a). The Secretary assessed a penalty of
$70,000.00.
For the reasons stated above, I conclude that Brody’s negligence was “moderate,” that the
conditions underlying this violation were unlikely to cause injury amounting to anything more
than “lost workdays or restricted duty” for fourteen persons, that the violating condition was not
significant and substantial, and that Brody’s actions constituted an unwarrantable failure to
comply with the standard. The penalty will be adjusted to $7,000.00.
Order
It is ORDERED that Citation No. 8075863 be MODIFIED to reduce the negligence level
from “high” to “moderate,” the gravity level from “reasonably likely” to “unlikely,” and to delete
the unwarrantable failure designation.
33 FMSHRC 1385

It is ORDERED that Citation No. 8075864 be MODIFIED to reduce the gravity level
from “reasonably likely” to “unlikely,” and to delete the unwarrantable failure designations.
It is ORDERED that Citation 8079178 be MODIFIED to reduce the negligence level
from “reckless disregard” to “moderate.”
It is ORDERED that Citation No. 8079179 be MODIFIED to reduce the gravity level
from “reasonably likely” to “unlikely,” and to delete the significant and substantial and the
unwarrantable failure designations.
It is ORDERED that Citation No. 8068033 be MODIFIED to reduce the negligence level
from “high” to “moderate,” and the gravity level from “permanently disabling” to “lost workdays
and restricted duty.
It is ORDERED that Citation No. 8075874 be MODIFIED to reduce the gravity level
from “reasonably likely” to “no likelihood,” from “lost workdays or restricted duty” to “no lost
workdays,” to reduce the negligence level from “high” to “no negligence,” and to delete the
significant and substantial and the unwarrantable failure designations.
It is ORDERED that Citation No. 8075906 be MODIFIED to reduce the negligence level
from “high” to “moderate.”
It is ORDERED that Citation No. 8079224 be MODIFIED to reduce the gravity level
from “reasonably likely” to “unlikely,” and from “permanently disabling” to “lost workdays or
restricted duty,” and the negligence level from “reckless disregard” to “moderate.”
It is further ORDERED that the operator pay a penalty of $33,550.00 within 30 days of
this order. Upon receipt of payment, this case will be DISMISSED.

/s/ L. Zane Gill
L. Zane Gill
Administrative Law Judge
Distribution: (CERTIFIED RECEIPT)
J. Matthew McCracken, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson
Blvd., 22nd Floor West, Arlington, VA 22209-2247
Jason M. Nutzman., Esq., Smith, Moore, Leatherwood, P.O. Box 87, 300 E. Avenue, Suite 500,
Greenville, SC 29602
33 FMSHRC 1386

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
7 PARKWAY CENTER
875 GREEN TREE ROAD, SUITE 290
PITTSBURGH, PA 15220
TELEPHONE: (412)920-7240
FAX:(412)928-8689

May 23, 2011
INDEPENDENCE COAL COMPANY,
INC.,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Respondent
INMAN ENERGY CORPORATION,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Respondent
PROCESS ENERGY,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Respondent

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CONTEST PROCEEDINGS
Docket No. WEVA 2011-402-R
Citation No. 4900014; 11/10/2010
Docket No. WEVA 2011-403-R
Order No. 4900015; 11/10/2010
Mine: Justice #1 Mine
Mine ID: 46-07273
CONTEST PROCEEDINGS
Docket No. WEVA 2011-398-R
Citation No. 490011; 11/09/2010
Docket No. WEVA 2011-399-R
Order No. 4900012; 11/09/2010
Mine: Randolph Mine
Mine ID: 46-09244
CONTEST PROCEEDINGS
Docket No. KENT 2011-255-R
Citation No. 8257128; 11/18/2010
Docket No. KENT 2011-256-R
Order No. 8257129; 11/18/2010
Mine: Mine No. 1
Mine ID: 15-19097

33 FMSHRC 1387

SPARTAN MINING COMPANY,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH,
ADMINISTRATION, (MSHA),
Respondent
ROAD FORK DEVELOPMENT CO.,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
KNOX CREEK COAL CORPORATION,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

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CONTEST PROCEEDINGS

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CONTEST PROCEEDINGS

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CONTEST PROCEEDINGS

Docket No. WEVA 2011-540-R
Citation No. 7281434; 11/30/2010
Docket No. WEVA 2011-541-R
Order No. 7281435; 11/30/2010
Mine: Road Fork #5
Mine ID: 46-01544

Docket No. KENT 2011-305-R
Citation No. 8257134; 12/01/2010
Docket No. KENT 2011-306-R
Order No. 8257135; 12/01/2010
Mine: Love Branch South
Mine ID: 15-19270

Docket No. VA 2011-386-R
Citation No. 8185763; 04/21/2011
Docket No. VA 2011-387-R
Order No. 8185768; 04/21/2011
Mine: Coal Creek Prep Plant
Mine ID: 44-05236

DECISION
Appearances: Alexander Macia, Esq. & Mark E. Heath, Esq., Spilman, Thomas, & Battle,
PLLC, Charleston, West Virginia for Massey Energy Company
Samuel Charles Lord, Esq., Office of the Solicitor, U.S. Department of
Labor, Arlington, Virginia for the Secretary of Labor
Before: Judge Andrews
33 FMSHRC 1388

This case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et
seq. (“the Act”).
Notices of Contest were initially filed by the Contestants on November 15 and 16, 2010.
Although the notices informally requested an expedited hearing, separate formal motions for
expedited proceedings under section 2700.52 of the Commission Rules were also filed on
November 15 and 22, 2010. The motions were granted on November 24, 2010.
The Order of November 24, 2010, also consolidated Docket Nos. WEVA 2011-402R,
403R, 398R, 399R, and KENT 2011-255R, 256R, involving mines controlled by Massey Energy
Company (“Massey”). Docket Nos. WEVA 2011-540R, 541R and KENT 2011-305R, 306R
were not formally consolidated at that time; however, the Respondents were present by counsel
at hearing.
Although not present at the hearing, Knox Creek Coal Corporation entered its Notice of
Contest and filed a Motion to Consolidate Docket Nos. WEVA 2011-386R and 387R with the
aforementioned dockets. As such, it was assigned to the undersigned on April 26, 2011.
By Order dated May 5, 2011, all dockets were formally consolidated.1
PRELIMINARY MATTERS
The parties reported joint stipulations at the hearing, cited for the record, and summarized
as follows:
1. Process, Inman, and Independence were, during all relevant times herein, the operators of
coal mines located in Pike County, Kentucky, Boone County, West Virginia, and Boone
County, West Virginia, respectively.
2. The Contestants are subject to the provisions of the Mine Act.
3. Process received a citation under § 104(a) of the Mine Act on November 18, 2010, for an
alleged failure to permit inspection of certain records in response to a request by an
authorized representative of the Secretary of Labor, pursuant to 30 C.F.R. § 50.41. A
subsequent citation was issued under § 104(b).
4. Inman received a citation under § 104(a) of the Mine Act on November 9, 2010, for an
alleged failure to permit inspection of certain records in response to a request by an
authorized representative of the Secretary of Labor, pursuant to 30 C.F.R. § 50.41. A
subsequent citation was issued under § 104(b).

1

Additional Part 50 audit cases involving mines controlled by Peabody Energy were
heard in Jeffersonville, Indiana on December 14, 2010. Separate hearings were held due to the
distant locations of these groups of mines, but for all major purposes, counsel treated all of the
contests as one large, related case.
33 FMSHRC 1389

5. Independence received a citation under § 104(a) of the Mine Act on November 10, 2010,
for an alleged failure to permit inspection of certain records in response to a request by an
authorized representative of the Secretary of Labor pursuant to 30 C.F.R. § 50.41. A
subsequent citation was issued under § 104(b).
6. The citations and orders were issued by an authorized representative of the Secretary to
an agent of Process, an agent of Inman, and an agent of Independence.
7. That the following various pieces of communications between the Secretary and Process,
Inman, and Independence were authentic, but not the truth of the matters asserted therein:
a. The records requests that occurred on October 8, October 25, and October 27,
2010.
b. The October 28, 2010 letter from Charlie Lord to M. Shane Harvey.
c. The November 9, 2010 and November 10, 2010 letters from Mark Heath and Alex
Marcia to Charlie Lord and Robert Hardman, respectively.
8. The records at issue are the medical records requested in the letters of October 25 and
October 27, 2010.
BACKGROUND
In October 2010, the Mine Safety and Health Administration (“MSHA”) began a
nationwide initiative to conduct thirty-nine (39) compliance audits under the authority of 30
C.F.R Part 50. Six subsidiary mines of Massey are a part of this initiative: the Justice #1 mine
of the Independence Coal Company, Inc. (“Justice”); the Randolph Mine of Inman Energy
Corporation (“Randolph”); Mine #1 of Process Energy (“Process”); the Road Fork #51 mine of
the Spartan Mining Company (“Road Fork”); the Love Branch South mine of the Road Fork
Development Company (“Love Branch”); and the Coal Creek Prep Plant of the Knox Creek Coal
Corporation (“Coal Creek”).
The initial audit request was presented by letter dated October 8, 2010, addressed to
Inman Energy. Ex. J-A. Mr. M. Shane Harvey, Vice President and General Counsel of Massey
Energy Company responded by letter dated October 13, 2010, that Forms 7000-1, 7000-2, and
the number of employees for each quarter would be made available for the audit team’s review;
however, the payroll records and timesheets (request #3), and the medical records (request #5)
would not be made available.
The superseding Part 50 audit request was provided to Mr. Harvey by letter of October
25, 2010. Ex J-C, J-D. The superseding audit request was also sent to Independence Coal and
Process Energy on October 27, 2010. Ex. J-E, J-H. Somewhat later, in November and
December, 2010, and April 2011, Spartan Mining, Road Fork Development, and Knox Creek
Coal also received the respective audit requests.
The superseding audit request provided to each mine is, in pertinent part, as follows:
33 FMSHRC 1390

The Federal Mine Safety and Health Administration (MSHA) is
conducting an audit to determine your mine’s compliance with the injury and
illness reporting regulations in 30 Code of Federal Regulations (CFR) Part 50.
Pursuant to 30 CFR §50.41, MSHA is requesting certain records that are
considered to be relevant and necessary to complete its audit.
Please have the following information and documentation available for
review by …. The documents should cover the period beginning July 1, 2009
through June 30, 2010.
1.

All MSHA Form 7000-1 Accident Reports

2.

All quarterly MSHA Form 7000-2 Employment and Production
Reports

3.

All payroll records and time sheets for all individuals working at
your mine for the covered time period

4.

The number of employees working at the mine for each quarter

5.

All medical records, doctor’s slips, worker compensation filings,
sick leave requests or reports, drug testing documents,
emergency medical transportation records, and medical
claims forms in your possession relating to accidents,
injuries, or illnesses that occurred at the mine or may have
resulted from work at the mine for all individuals working
at your mine for the period of July 1, 2009 through June 30,
2010.

“In your possession” means within your mine’s possession or within the
control, custody, or possession of another entity or person from whom you have
authority to obtain the required records. If any of the required records are in the
exclusive possession of any other entity or person from who you do not have
authority to obtain the required records, you must so certify and identify the entity
or person who has exclusive possession. Ex. J-C, J-D
Counsel for Massey responded to the audit requests at the Inman and
Independence mines expressing concerns about the medical records request. Ex J-F, J-G.
Since the content of the superseding audit request letters is essentially the same, they will
be referred to as the Uniform Audit Request (“UAR”).
Photocopies of forms 7000-1 and 7000-2 are of record at Exhibits A and B of the
Secretary’s Pre-Hearing Bench Memorandum.
33 FMSHRC 1391

The audit letters, citations, and orders for each of the six mines are dated beginning in
October 2010 and ending in April 2011. Rather than setting forth at length all of the particulars
of each citation and order, the following is a brief summary of the general circumstances:
-Each mine received a UAR.
-All mines provided the 7000-1 and 7000-2 forms and the number of employees.
-Not all of the mines provided timesheet data at the time of the audit.
-Personnel records and medical information were not provided by any mine.
-Section 104(a) citations were issued to each mine upon refusal to disclose.
-Section 104(b) orders were issued to each mine upon continued refusal.
Reported at the time of the hearing was the policy of Massey to provide timesheet
information or a Lawson Report (described as a big summary sheet) for Part 50 audits. Tr. 91, 92,
99, 100, 149, 159. The timesheet information is essentially a record of the on or off duty time of
each employee.
It should also be noted that the citations and orders issued to Road Fork and Love Branch
cited Section 103(h) of the Act rather than Section 50.41 of the regulations. However, in the
condition or practice narrative of each of these citations, 30 C.F.R. Part 50 was correctly
referenced.
LAW AND REGULATIONS
Section 103(a) of the Act states in pertinent part:
Authorized representatives of the Secretary…shall make frequent
inspections and investigations in coal or other mines each year for the purpose of
(1) obtaining, utilizing, and disseminating information relating to health and
safety conditions, the causes of accidents, and the causes of diseases and physical
impairments originating in such mines, (2) gathering information with respect to
mandatory health or safety standards,…and (4) determining whether there is
compliance with the mandatory health or safety standards or with any citation,
order or decision issues under this title or other requirements of this Act. 30
U.S.C §813(a).
Section 103(h) of the Act states in pertinent part:
In addition to such records as are specifically required by this Act, every
operator of a coal or other mine shall establish and maintain such records, make
such reports, and provide such information, as the Secretary ... may reasonably
require from time to time to enable him to perform his functions under this Act.
The Secretary ... is authorized to compile, analyze, and publish, either in summary
or detailed form, such reports or information so obtained. 30 U.S.C. § 813(h)
33 FMSHRC 1392

Section 103(e) of the Act states in pertinent part:
Any information obtained by the Secretary ... under this Act shall be
obtained in such a manner as not to impose an unreasonable burden upon
operators, especially those operating small businesses, consistent with the
underlying purposes of this Act. Unnecessary duplication of effort in obtaining
information shall be reduced to the maximum extent feasible. 30 U.S.C. §813(e)
The purpose and scope of 30 C.F.R. Part 50 is found in section 50.1 and states:
This part 50 implements sections 103(e) and 111 of the Federal Coal Mine
Health and Safety Act of 1969, 30 U.S.C. 801 et seq., and sections 4 and 13 of the
Federal Metal and Nonmetallic Mine Safety Act, 30 U.S.C. 721 et seq., and
applies to operators of coal, metal, and nonmetallic mines. It requires operators to
immediately notify the Mine Safety and Health Administration (MSHA) of
accidents, requires operators to investigate accidents, and restricts disturbance of
accident related areas. This part also requires operators to file reports pertaining
to accidents, occupational injuries and occupational illnesses, as well as
employment and coal production data, with MSHA, and requires operators to
maintain copies of reports at relevant mine offices. The purpose of this part is to
implement MSHA's authority to investigate, and to obtain and utilize information
pertaining to, accidents, injuries, and illnesses occurring or originating in mines.
In utilizing information received under part 50, MSHA will develop rates of injury
occurrence (incident rates or IR), on the basis of 200,000 hours of employee
exposure (equivalent to 100 employees working 2,000 hours per year). The
incidence rate for a particular injury category will be based on the formula:
IR = (number of cases x 200,000) divided by hours of employee exposure.
MSHA will develop data respecting injury severity using days away from work or
days of restricted work activity and the 200,000 hour base as criteria. The severity
measure (SM) for a particular injury category will be based on the formula:
SM = (sum of days x 200,000) divided by hours of employee exposure.
Section 50.41 states:
Upon request by MSHA, an operator shall allow MSHA to inspect and copy
information related to an accident, injury or illnesses which MSHA considers
relevant and necessary to verify a report of investigation required by 50.11 of this
part or relevant and necessary to a determination of compliance with the reporting
requirements of this part.
The preamble to the proposed rule at Section 50.41 sets forth the purpose of the
33 FMSHRC 1393

regulation and explains what MSHA (then the Mining Enforcement and Safety Administration
(“MESA”)) may request and the importance of cooperation with these requests:
Section 50.41 requires operators to allow MESA to inspect or copy any
information the agency thinks may be relevant and necessary for verification of
reports or for determination of compliance with Part 50. In effect, it allows
MESA to copy company medical records, employment records, and other
company information.
MESA believes that this provision is necessary if it is to be able to develop
epidemiologic data essential to development of effective health standards. It is
also necessary if MESA is to be able to discover instances of intentional violation
of statutory or regulatory requirements. It will allow MESA to control the data
flow, rather than depend upon operator filtered records. 42 Fed. Reg. 55569
(1977).
The preamble to the final rule addressed privacy concerns and the need for verification:
The patient-physician confidentiality privilege is not absolute. Where
disclosure of patient data is related to a valid purpose, disclosure has been held
not to be violative of privacy rights. It is questionable whether employers have
standing to assert employees’ privacy rights and significant that no miner or
representative of miners has objected to §50.41.
Without inspection of records beyond those required to be kept it is
impossible to verify the required records. The Secretary’s power to acquire
information related to his functions under the Coal Act and the Metal Act is not
limited to any particular records. Section 111 (b) of the Coal Act and § 13 of the
Metal Act explicitly authorize analysis of other information related to his
functions, and only the Secretary, subsequent to inspection and copying, can
determine relevance…42 Fed. Reg. 65535 (1977).
ARGUMENTS
Contestants argue, first, that the Secretary does not have the right to inspect records
possessed by an operator that are not required to be maintained by the Act without obtaining a
warrant. This proposition, founded in Sewell Coal Co., 1 FMSHRC 864 (1979)(ALJ), has stood
without being overturned for nearly thirty-two (32) years and cannot be overlooked. Further, the
legislative history of the Act itself expresses that, while the Secretary’s powers of inspection are
broad, those powers should also be limited to prevent unnecessary burden on operators. Second,
they argue that the Secretary must use her rulemaking authority to obtain the information
requested. As such, this request is ad hoc rulemaking that violates the standard notice and
33 FMSHRC 1394

comment rulemaking requirements. Third, they argue that MSHA’s request to inspect private
medical records of the employees is not authorized under the provisions of the Health Insurance
Portability and Accountability Act (“HIPAA”). MSHA could verify reporting accuracy with
much less information and, therefore, has not met the standard of requesting only that
information that is the “minimum necessary” to accomplish the intended purpose. Moreover,
Contestants argue that MSHA’s procedures are insufficient to ensure the nondisclosure of private
employee information. Their final contention is that, due to the foregoing reasons, the citations
and orders issued to the mines should be vacated.
The Secretary argues, first, that Part 50’s role in advancing miner safety and health cannot
be overstated, as it identifies the aspects of mining that require intensified attention with respect
to health and safety regulation. The under-reporting of accidents undermines this role by
diverting MSHA attention from important areas of risk. Second, the information sought is
relevant and necessary to verify accurate compliance with the regulations. Third, she argues that
the Act, by its plain language, permits MSHA to obtain records that are relevant and necessary
even when the statute and regulations do not require such records to be maintained. The
Secretary asserts that the inclusion of “[i]n addition to such records” is evidence of the Act’s
intent. (Emphasis Added). Finally, the Secretary argues that, as a public health agency, MSHA
may obtain the records that have been requested without violating the medical privacy rights of
mine employees. Moreover, she contends that MSHA has protective procedures that sufficiently
protect private employee information from public disclosure.
QUESTIONS PRESENTED
While the issue to be decided is whether the citations and orders written to each of the mines are
valid, there are a number of questions for consideration:
-Are the medical, personnel, and timesheet records sought by the UAR relevant and
necessary to determine compliance with the reporting requirements of the regulations?
-Does the Secretary have the authority to request medical and employment records and
other company information pursuant to an audit request under the pertinent statutes and
Part 50 of the regulations?
-Does the UAR impose an unreasonable burden upon the operator?
DISCUSSION
Reporting accidents, injuries, and illnesses occurring at a mine is a well-known and longestablished requirement under the Act and the Part 50 regulations. 30 C.F.R. §50.20. Definitions
and instructions for reporting are provided in Sections 50.2(e),(f) and 50.20-3. The 7000-1 form
is to be mailed to MSHA within ten (10) days of the accident, injury, or illness. MSHA then uses
this information, in combination with the 7000-2 form, which is a quarterly calculation of the
hours worked by each employee at the mine, to determine the mine’s incidence rate (“IR”) and
33 FMSHRC 1395

severity measure (“SM”). These numerical indicators quantify a mine’s overall safety record and
may be used to objectively view a particular mine’s record in comparison to national averages.
The IR for a particular injury category is calculated by multiplying the number of
reportable incidents and the coefficient 200,000 and dividing that number by the total hours of
employee exposure. The SM for a particular injury category is calculated by multiplying the total
number of missed and restricted duty workdays and the coefficient 200,000 and dividing that
number by the total hours of employee exposure. The incidence rate is important in that it gives
an overall picture of the safety record of the operator. Energy West Mining Company, 15
FMSHRC 587, 591 (Apr. 1993). Knowing the prevalence of specific types of injuries and their
usual severity allows for more efficient allocation of agency resources in developing strategies,
not only for enforcement, but also for training with the goal of improving the health and safety of
miners.
David Brown is the Safety Director for Independence and Inman Coal Companies. Tr. 86.
James Endicott is the Safety Director for Road Fork Development Co. and Sidney Coal
Company, which covers Process Energy. Tr. 113. Both men described essentially the same
functions. Their responsibilities include keeping basic training records, completing accident
reports, and handling federal and state citations. Tr. 87, 113. Although both men are responsible
for completing the 7000-1 Form, neither maintains possession of medical records, worker’s
compensations records, or doctor’s or emergency room slips. Tr. 87-88, 114-116. Instead, the
Human Resources Department (“HR”) maintains all of the aforementioned records in a separate
location. Tr. 87-88, 116. At least in Brown’s case, he testified that he relies on phone calls from
miners, the foremen’s investigation and accident reports, and the supervisors’ reports to fill out
the 7000-1 Forms. Tr. 96. He had only received information from HR on one occasion. Tr. 99.
Steven E. Richards, Human Resources Manager for Independence Coal, testified that he
maintains the medical, personnel, and worker’s compensation records. Tr. 74-75. This
information is kept at a single location, although in separate rooms, and is maintained for
“several years,” which he implied meant more than ten (10) years. Tr. 77, 83. Although Richards
receives the doctor’s slips, he has never filled out a 7000-1 or 7000-2 Form. Tr. 84. Further, he
has never experienced a situation in which a safety director has called to ask about a particular
miner’s absence. Tr. 85. Jeffery Ratliff is the Human Resources Manager for Process Tr. 105.
He confirmed that he also maintained workers’ compensation, medical, and personnel records for
each miner in separate files and stored separately with security measures in place. Tr. 106, 107.
Mr. Ratliff was present at the time of the audit request at Process and testified that the medical
records had not been provided to MSHA Inspectors. Tr. 110,111.
It is clear from the testimony of Safety Directors Brown and Endicott that information
regarding accidents, injuries and illnesses must be provided to them if they are to submit the
required reports to MSHA. The flow of this information is generally from the Supervisor or
Foreman, but the Safety Department may also receive medical documents, which are turned over
to and kept by HR. The Safety Director may follow up with the Supervisor, Foreman or
employee to complete the information on the 7000-1 form, but does not have access to the
33 FMSHRC 1396

various medical files safeguarded by HR. To the contrary, the time sheets, payroll records,
worker compensation records and medical documents of all types are in the exclusive possession
and control of HR. Tr. 74-75. While the records are not necessarily “off limits,” HR Manager
Richards stated that he had never experienced a situation where a Safety Director called to
inquire about the absence of a particular miner. Tr. 85. Neither was evidence produced at the
hearing to suggest that HR would take the initiative to provide relevant injury time off
information to the Safety Department.
Considering the volume of medical information that undoubtedly flows into HR, but not
available to the Safety Director, there is at least the potential for relevant events to go unreported.
In addition, should the Supervisor, Foreman or employee fail to initiate a report to the Safety
Director, it appears likely that an otherwise reportable event would escape the notice (and hence
the reporting responsibilities) of the Safety Director. The resulting lack of complete reporting
could, of course, be inadvertent or unintentional. But the result is the under-reporting of
information needed by MSHA to discharge its duties and responsibilities to compile and report
incidence rates and severity measures as well as manage the allocation of agency resources.
Over-reporting would also result in inaccurate information and misallocation of
resources. The mine would appear less safe than it actually is, and this could result in increased
inspections. However, this would rarely be the concern to be addressed. On the other hand,
there would be incentives to under-report injury and illness information to MSHA. Contestants
suggest that MSHA has the authority to interview miners. Tr. 17, 18, 61, 93, 94, 149. But such
interviews would be prohibitively time consuming and, without 100 percent participation, could
fail to verify complete and accurate reporting. This suggestion is also contained in a MSHA
handbook, where it is stated that examination and comparison of state workers’ compensation
records to the MSHA reports (7000-1, 2 forms) may be appropriate. Ex. J-M, Page 43, Metal and
Nonmetal General Inspection Procedures Handbook, No. PH09-IV-1 (Oct. 2009).
Peter Joseph Montali, Acting Director of Accountability for MSHA, testified that the
same audit request, the UAR, was sent to all of the mines audited, including Process. Tr. 26, 31,
32. All of the mines provided the 7000-series forms, and some timesheet information (request
#3). Tr. 27, 28. In the affidavit of record, See Secretary’s Pre-hearing Bench Memorandum, Ex.
D, Mr. Montali reported that he had prior experience with Part 50 requirements. He pointed out
that the medical records requested by the audit are limited to accidents, injuries, and illnesses that
occurred at the mine or may have resulted from work at the mine. Also, he clarified that the
payroll and time sheet records were only to verify the total number of employees and the total
hours worked, as reported on the 7000-2 form. As to the various medical records, including the
Worker’s Compensation filings, sick leave requests and emergency medical transportation
(EMT) records, Mr. Montali provided information to the effect that these are cross-referenced
with the 7000-1 forms submitted by the mine to verify proper, complete and accurate reporting of
all required information, including severity, treatment, permanent total or partial disability, days
away from work, days of restricted work activity, date of return to full duty, or no lost time. The
drug-testing documents are limited to tests taken after an accident-causing injury, and the
medical claims forms are limited to a determination of whether a particular illness would fit the
33 FMSHRC 1397

definition of an “occupational illness”. id.
It is understood that the Massey policy is to release the timesheet data to the audit team.
While this may be adequate to verify information on the 7000-2 form, regarding employee hours
worked, this would not suffice to verify accident, injury or illness reporting. As is made clear by
the affidavit and testimony of Montali, discussed above, much more information is needed to
fully and properly complete the 7000-1 form. Therefore, the medical and personnel information
sought by the Secretary is relevant and necessary to cross-reference with forms that were
submitted to the agency by the operator. Indeed, without the documents, verification of all of the
information listed on each form is not possible, nor would it be possible to discover instances of
injuries that were not reported.
It is the operator who possesses the means to insure complete and accurate reporting.
Absent an audit of company records, MSHA must rely solely on the information provided by the
operator. If the operator does not cooperate in the process, there can be no assurance that the
safety and health information compiled by MSHA is correct.
If the total number of reportable incidents are under-reported, a mine, obviously, will
appear to be safer than it actually is. If the incidence rate and severity measure are artificially
low, an unsafe mine may be able to avoid enhanced MSHA scrutiny. Further, an elevated
severity measure is one criterion in the initial screening for establishing a “pattern of significant
and substantial violations.” 30 C.F.R. 104.2(b)(3). Once this pattern has been established, the
mine may be subjected to enhanced penalties and possible forced shutdowns. 30 C.F.R. §104.4.
If given the power to solely control the information flow between itself and MSHA, an operator
possesses incentives to constrict that flow and under-report incidents at the mine.
The purpose of the Part 50 regulations is to implement MSHA’s authority not only to
investigate but also to obtain and utilize information pertaining to accidents, injuries or illnesses
occurring or originating at mines. 30 C.F.R. §50.1. In order to develop effective health
standards, control the data flow, and discover violations, MSHA is allowed to inspect and/or
copy any information the agency thinks may be relevant and necessary to determine compliance
with reporting requirements. This includes medical records, employment records, and other
company records. 42 Fed. Reg. 55569, 65535 (1977), 30 C.F.R. §50.41. Under 50.41, it was
intended that MSHA would not depend on operator-filtered records. Id. It is pointed out that the
7000-1 and 7000-2 forms are operator-filtered records. Absent all of the documents and
information listed in the UAR, there can be no effective, independent verification of the
information submitted by the operators to MSHA.
In summary of the above discussion, the undersigned does not consider it to be an
overstatement that the complete and accurate reporting of accidents, injuries, and illnesses
occurring at mines is critically important to the mission of MSHA to protect the health and safety
of miners. “The health, safety and the very lives of coal miners are jeopardized when mandatory
health and safety laws are violated.” Youghiogheny and Ohio Coal Company v. Morton, 364
F.Supp. 45, 50 (1973). From the stated intent in the promulgation of 30 C.F.R. §50.41 it can be
33 FMSHRC 1398

found that it is not what the operator considers important to report; rather, it is what MSHA
thinks is relevant and necessary to verify reports or determine compliance with Part 50 of the
regulations. It follows, then, that the records sought by MSHA are relevant and necessary to
verify compliance with all reporting requirements. Testimony confirms that the records are
either maintained by the mine or a third party, or stored, for more than 10 years. Tr. 83.
FINDINGS AND CONCLUSIONS
Commission precedent in this area is rare and does not address the specific set of facts in
the instant case. In BHP Copper, a fall of ground caused the death of one miner and the injury of
another. Id., 21 FMSHRC 758, 759 (July 1999). While MSHA inspectors were allowed to
interview several BHP employees, BHP would not provide the phone number and address for the
injured miner who had just been released from the hospital, stating that the information was
confidential. Id. In denying the contention of the operator, the Commission explained that the
Secretary has broad authority under the Act to investigate mine accidents and the operator may
not impede that investigation Id. at 765-766. The Commission also rejected the argument that
the Secretary must seek injunctive relief under Section 108 of the Act. Id. at 766.
A second, older Commission case is Peabody Coal Company, 6 FMSHRC 183 (Feb.
1984). Here, an inspector was refused access to accident reports because the operator had
already filed them with MSHA. Id. at 185. Peabody argued that because this inspection was of a
“type so random, infrequent, or unpredictable that the appellant, for all practical purposes, had no
real expectation that its property would from time to time be inspected by government officials.”
Id. Further, it asserted that, in order for MSHA to inspect, it must obtain a warrant. Id. In
disagreeing with the operator, the Commission found that a search warrant was not required and
since the Act required the operator to maintain the records of accidents for five years there was
no realistic expectation of privacy in them. Id. at 186.
Although these Commission cases involve conflicts over information contained in the
operator’s records, this is where the similarities end. No accident has occurred in the instant
case; rather, MSHA is conducting an audit. MSHA is requesting documents to verify that no
accident, injury or illness has gone unreported, not investigating the facts and circumstances
behind such an incident. In this respect, neither BHP Copper nor Peabody specifically addresses
the questions raised by the compliance audit at hand.
The Contestants argue that the decision in Sewell Coal Company, 1 FMSHRC 864
(1979)(ALJ) cannot be overlooked. In Sewell, an MSHA inspector began an inspection of the
foremen’s records, accident, injury and illness records and medical and compensation records at
the mine. Id. at 865. All of this information was contained in personnel records that contained
other data as well. Id. After the discovery of two instances of failure to report, the safety
manager informed the inspector that he would not be permitted to continue the inspection. In
characterizing the inspection, the ALJ maintained that Part 50 does not explicitly authorize the
warrantless search of personnel files containing medical and other information that may or may
not be related to accidents, injuries, and illnesses that are reportable. Id. at 873. Accordingly, the
33 FMSHRC 1399

Administrative Law Judge (“ALJ”) held that MSHA could not inspect the private personnel files
of a mine, in the absence of a valid warrant. Id. at 872-873.
However, the instant case can easily be distinguished from Sewell. First, the actions of
the MSHA inspectors here do not constitute a warrantless search; rather, they are simply
requesting that the operator produce certain documents. Unlike in Sewell, the inspector would
not be rummaging through the file cabinets or files of the operator.2 The mine operator would
search his own files for this information, producing only those records meeting the specifics of
the request, thereby limiting the chance that unrelated private information would be released to
MSHA.
Moreover, this was not some wholesale demand that would cause the operator great cost
and burden to produce. MSHA’s request was for documents related only to those accidents,
injuries, and illnesses that occurred while working at the mine or as a result of work at the mine.
Furthermore, MSHA is only requesting documents that were recorded within the span of one
year. The request concerns only employees, not family members, relatives, or others; if nonemployee medical or other records are maintained at the mine, they would not be required for the
audit. Any medical or EMT records would concern only the employee, and as to drug tests, only
those conducted following an accident that caused an injury. See, Affidavit of Montali. Since the
requested records are maintained for a number of years, compiling the requested records for only
one year would not be burdensome.
Third, as an ALJ decision, this case does not have value as precedent. Admittedly, if the
facts were so similar that they could barely be distinguished, I may have been persuaded to
consider its reasoning. However, for the reasons listed above, I find the facts in the instant case
to be so distinct, that Sewell does not provide guidance and is not controlling.
In the absence of controlling Commission precedent, we turn to the statutes, regulations
and case law for guidance. Initially, we note that the Mine Act and the implementing regulations
are to be liberally construed as long as the Secretary’s interpretation is reasonable and promotes
miner safety. Hanna Mining Co., 3 FMSHRC 2045, 2048 (Sept. 1981); Secretary of Labor v.
Cannelton Industries, Inc., 867 F.2d 1432, 1437 (D.C. Cir. 1989)
In Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984),
the Court explained that when confronted with review of an agency’s construction of the statute
it administers, a judge must consider two questions. The first is whether Congress has spoken to
the issue in question. Id. If so, the questions are at an end and the language must be enforced as
written. Id. If the statute is silent or ambiguous to the issue in question, however, the Court must
question whether the agency’s answer is a permissible interpretation of the language of the
statute. Id. In this instance, the agency’s interpretation must be reasonable, and if so, it will be
accorded deference. “…Considerable weight should be accorded to an executive department’s
construction of a statutory scheme it is entrusted to administer….” Id. At 844.
2

In Peabody, the Commission similarly distinguished Sewell in this manner.
33 FMSHRC 1400

The same analysis applies equally to the language and interpretation of the Secretary’s
own regulations. Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994).
Where the language of a regulatory provision is clear, the terms of that provision must be
enforced as written unless the regulator clearly intended the words to have a different meaning or
unless such a meaning would lead to absurd results. Utah Power and Light Co., 11 FMSHRC
1926, 1930 (Oct. 1989); Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993); Cyprus
Emerald Resources Corp., 20 FMSHRC 790 (Aug. 1998).
I find no need to go beyond the plain language of the statutes and regulations. Section
103 (a)(1)(4) of the Act empowers the Secretary to obtain and utilize information to determine
“…whether there is compliance with the mandatory health or safety standards or with any
citation, order, or decision issued under this title or other requirements of this Act.” (Emphasis
added). Section 103(h) of the Act broadens the scope of compliance actions by explicitly stating
“[i]n addition to such records as are specifically required by this Act, every operator of a coal
or other mine shall establish and maintain such records, make such reports, and provide such
information, as the Secretary…may reasonably require from time to time….” (Emphasis added).
These statutory provisions create a duty on the part of the operator to maintain and provide
records to MSHA for the agency to determine compliance with any requirements of the Act.
Hence, there would be a legitimate basis for enforcement of reporting requirements even without
the Part 50 rules. American Mining Congress, 995 F. 2d 1106, 1109 (1993).
The Contestants argue that the records sought are private, and the procedures for
safeguarding the information released to MSHA are insufficient. Although no one would argue
against the notion that medical and personnel records are of a highly sensitive and personal
nature, there are certain important interests of the government that override these concerns.
MSHA, a public health agency, does have the authority to obtain information to determine
compliance with the above cited statutes, and permission from the employees is not required.
United Steelworkers of America, AFL-CIO-CLC, 647 F.2d 1189, 1241 (Jan. 1981). The
disclosure of private medical information to a public health agency is a reasonable exercise of
government responsibility over public welfare where it is related to occupational health and
safety and does not violate any rights or liberties protected by the Fourteenth Amendment.
Whalen v. Roe, 429 U.S. 589, 597, 598, 602. Further, and importantly, it may be concluded that
the governmental interest in promoting mine safety far outweighs any interest the mine operators
may have in privacy. Youghiogheny at 51.
Even if the statutes were considered ambiguous, the Part 50 rules are legislative rules.
Their publication in 1977 satisfies the requirement that the rules have general applicability and
legal effect. American Mining Congress, at 1109, 1110. Entirely consistent with the statutory
mandate, the agency promulgated regulations, including 50.41, that also spelled out duties of the
operator to cooperate in determinations of compliance, Id. at 1110, 1111. Section 50.41 of the
regulations allows the Secretary “to inspect and copy information related to an accident, injury
or illnesses which MSHA considers…relevant and necessary to a determination of compliance
with the reporting requirements of this part.” (Emphasis added). Both the statutory and
regulatory provisions are clear in their purpose and intent to grant the Secretary authority to
33 FMSHRC 1401

request documents that are not specifically required to be kept under the Act. To find otherwise
would be to render these passages meaningless.
Further, as set forth and discussed above, the preambles to the controlling regulation, 30
C.F.R. §50.41, are instructive in that MSHA may request the employment, medical and other
records of the employer. The Secretary is authorized to inspect records in order to determine
reporting compliance. The reasoning is that reliance on the information provided in the required
forms by the operator itself would do very little to verify and ensure complete reporting. In order
to verify compliance, the Secretary must have some control over the flow of information. The
power to acquire information was not limited to any particular records, and only the Secretary,
subsequent to inspection and copying, could determine relevance. 42 Fed. Reg. 55569, 65535
(1977). The language of these preambles is persuasive.
The Health Insurance Portability and Accountability Act (“HIPAA”) created a national
framework for health privacy protection while also protecting the rights of consumers to access
their own health information. 45 C.F.R. §160.101. Without suggesting that HIPAA in any way
extends the Secretary’s authority to request records, it is significant from the standpoint of
expectations of privacy that it explicitly exempts “[a] public health authority that is authorized by
law to collect or receive such information for the purpose of preventing or controlling disease,
injury, or disability.” 40 CFR § 164.512. The preamble to the HIPAA regulations specifically
lists MSHA as one of the entities included as a public health authority. 65 Fed. Reg. 82624 (Dec.
28, 2000).
Moreover, and in consideration of the Contestant’s concerns regarding the possibility of
unauthorized disclosure of private employee information, the safeguards that MSHA utilizes
during its Part 50 audits to prevent any further release are adequate. Among the joint exhibits is
a memorandum, distributed on December 13, 2010, Tr. 12, outlining procedures for safeguarding
personally identifiable medical or other sensitive information. Ex. J-K. The agency has
established specific procedures that must be followed when handling the records of an operator’s
employees. These include special filing procedures, locked storage, limited access, safe
transportation methods, and an alert that medical information is ordinarily exempt from Freedom
from Information Act (FOIA) disclosure. Id. While no procedures are fool-proof, these go a long
way to ensuring that information will not be disclosed. Considering the Congressional mandate
to the agency, the controlling regulations, and the exemption from HIPAA provisions, there can
be no reasonable expectation of privacy in the records sought by MSHA.
Having found that the Secretary does have the authority to request the records at issue in
this case, I do not have to rule on the reasonableness of her interpretation of the statutes and
regulations. However, given the compelling need to verify reports and determine compliance, I
would have found her interpretation reasonable anyway. The request is limited to defined types
of documents that are necessary to further her mission to protect the safety and health of miners.
She is not requesting a wholesale search of all of the records of the operator, including those that
are irrelevant to the goals of the audit.
33 FMSHRC 1402

It follows also from the above discussion, that contrary to the Contestant’s arguments,
this is not arbitrary, ad hoc rulemaking that violates the standard notice and comment rulemaking
requirements. The Secretary has interpreted “in addition to such records” to broaden the
document requesting power that She already possessed. She did not create new powers for
herself. Her interpretation further defines that this phrase includes employee time sheets, payroll
records, medical records and such other documentation requested as relates to work at the mine.
The language of the Act lends itself to this interpretation and, thus, the Secretary did not engage
in arbitrary, ad hoc rulemaking.
In fact, legislative rulemaking has already been accomplished, in 1977, and there is no
need for additional rulemaking. The regulatory scheme under Part 50 is adequate for the
purposes of the audit. A reasonable interpretation of the statutory language would establish that
documents in addition to those required to be kept under the Act may be requested by the
Secretary from time to time as long as they are relevant and necessary. Specific types of
documents or information do not need to be named in either the statutes or the regulations. There
is no discernible inconsistency between the UAR and either the Act or the Part 50 regulations.
The Secretary did not exceed her interpretation authority under Chevron analysis.
The Contestants, citing Sewell, argue that the audit request amounts to a search of private
company records that cannot be conducted absent a valid search warrant. The most obvious
deficiency in this argument is that the Secretary is not demanding to rummage around in the files
of the operator. To the contrary, She is requesting that the Contestants produce the documents
for analysis by MSHA. Moreover, the documents to be produced are limited by both content and
time. By its own description, the request is not a wholesale search. Even if the UAR is
considered to be a warrantless demand for the production of documents, as distinguished from a
warrantless search and/or seizure of company files, it still does not violate the Fourth
Amendment. It is authorized by law to verify compliance with the Act and regulations and
necessary to further a federal interest, the health and safety of miners. Where Congress has
allowed the agency access to the records, with the specific language of Section 103 (h), in a
pervasively regulated industry, there cannot be an expectation of privacy. Donovan v. Dewey,
452 U.S. 594, 599, 600 (1981).
Finally, the Contestants argue that the Secretary could verify reporting accuracy with
much less information. This argument suggests that the audit is unreasonable. I have discussed
above, that the audit request is not burdensome. I also find that it is neither overly broad nor
unreasonable. The Secretary does not request every documented injury or illness to every miner
for a number of years. She is only requesting the documentation of injury, illness, or accident
that occurred while working at the mine or as a result of work at the mine. The UAR is for a
lawful purpose. It is limited to the span of one year’s time. Moreover, the records listed in #3
and #5 of the UAR are maintained at the mine, in HR, or with a known third party. The records
needed to verify compliance are clearly described. The undersigned is of the opinion that the
Part 50 audit requests are the minimum necessary to verify all of the information submitted to
MSHA on the 7000 forms. Therefore, and in light of the significant limitations incorporated into
the audit request, it is not overly broad, burdensome or unreasonable.
33 FMSHRC 1403

I find that the Contestant mines failed to fully cooperate in the Part 50 audit and violated
30 C.F.R. §50.41. I further find that Citations 4900014, 4900011, 8257128, 7281434, 8257134
and 8185763 and Orders 4900015, 4900012, 8257129, 7281435, 8257135 and 8185768 issued to
the Justice, Randolph, Process, Road Fork and Love Branch mines and Coal Creek Prep Plant,
respectively, are valid.
ORDER
The valid Citations and Orders issued to the Contestant mines are AFFIRMED.
/s/ Kenneth R. Andrews
Kenneth R. Andrews
Administrative Law Judge
Distribution:
Alexander Macia, Esq., Mark E. Heath, Esq., Spilman, Thomas & Battle, PLLC, Spilman Center,
300 Kanawha Boulevard, East, Charleston, WV 25301
Samuel Charles Lord, Esq., Office of the Regional Solicitor, U.S. Department of Labor, 1100
Wilson Blvd, 22nd Floor West, Arlington, VA 22209
/kmb

33 FMSHRC 1404

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

May 27, 2011
SECRETARY OF LABOR, MSHA
on behalf of LOUIE ALBERT
ROCCHETTI,
Complainant

:
:
:
:
:
:
v.
:
:
GMS MINE REPAIR & MAINTENANCE, :
Respondent
:

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. VA 2011-338-D
NORT-CD-2111-02

Buchanan No. 1

DECISION AND ORDER GRANTING TEMPORARY REINSTATEMENT
Appearances:

A. Scott Hecker, Esq., U.S. Department of Labor, Office of the Solicitor,
Arlington, Virginia, for the complainant
Maria W. Hughes, Esq., JACKSON LEWIS, LLP, Pittsburgh,
Pennsylvania, for the respondent

Before:

Judge Koutras

This matter is before me on an application for Temporary Reinstatement filed by the
Secretary on behalf of the complainant Louie Albert Rocchetti pursuant to Section 105(c)(1) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(1). A hearing was held in
Beckley, West Virginia on May 16, 2011, and the parties appeared and participated fully therein.
The complainant filed his complaint with MSHA alleging that his discharge by the
respondent on February 14, 2011, was motivated by his protected activity. The Secretary
contends that the complaint is not frivolous and seeks an order requiring the respondent to
temporarily reinstate the complainant to his former position, or a comparable position, within the
same commuting area and at the same rate of pay and benefits he received prior to his discharge,
pending a final commission order on the complaint.
The MSHA Discrimination Complaint Form 2000-123, filed by the complainant reflects
that it was filed because he believed he was discharged for requesting to file an accident report.
(Secretary’s application, Exhibit B).
A copy of a sworn affidavit of MSHA Inspector David E. Smith, in support of the
Secretary’s temporary reinstatement application (Exhibit A), asserts that the complainant injured
his right hand on February 4, 2011, while performing his normal work duties, and after
attempting to report his accident for more than an hour, he left the mine to seek medical
treatment. The persons allegedly responsible for the alleged discriminatory action are identified
on the face of the form as Curtis Lusk, supervisor, and Adam Smith, coordinator.
33 FMSHRC 1405

The supportive affidavit asserts that the complainant’s unsuccessful efforts to report his
accident included speaking with various respondent (GMS) and mine operator (Consolidation
Coal) management members, on-site, and leaving messages for Curtis Lusk, GMS job
coordinator for the Buchanan Mine, Adam Smith, GMS safety coordinator based in Beckley,
West Virginia, and Mike Hudson, his designated GMS crew leader.
The supportive affidavit further asserts the complainant filed a workers’ compensation
claim and on February 6, 2011, spoke with Messrs. Lusk, Smith, and Hudson concerning his
attempts to file an accident report, his filing of the compensation claim, and his doctor’s orders
concerning his work.
Stipulations
The parties stipulated to Commission and ALJ jurisdiction; that GMS is a contractor
performing services at Consolidation Coal Company’s Buchanan Mine No. 1; that GMS is “a
person” as defined by Section 3(f) of the Mine Act; and that Mr. Rocchetti was employed by
GMS from July 29, 2011, and was discharged on February 14, 2011. (Tr. 7).
Pre-Hearing Order
On May 6, 2011, I granted the Secretary’s Motion In Limine based on Commission Rule
45(d), 29 C.F.R. § 2700.45(d), and the supporting Commission case precedents cited therein
concerning the limited scope of the hearing to determine whether an application for temporary
reinstatement was frivolously brought. A copy of my ruling was served on the parties in advance
of the hearing in this matter.
Complainant’s Testimony
Miner Louie Rocchetti was employed by the respondent, GMS as a general laborer on
July 29, 2011, until his discharge on February 14, 2011. GMS was a contractor providing
services to the mine operator Consolidation Coal Company at its Buchanan No. 1 mine. Mr.
Rocchetti testified that during a work break after helping to move 12 or 15 I-beams on the third
shift on February 4, 2011, his hand tightened up and was swollen. At the end of the shift, he
went to the hospital for treatment and a doctor’s report indicated that he was treated for strains
and was off work for two days, with light duty for five days. (Tr. 35, ALJ Exhibit 1). He also
filed a workers’ compensation claim at the hospital. (Tr. 79).
Mr. Rocchetti and fire boss John Smith discussed the filing of an accident report, and Mr.
Smith referred him to Consol foreman Steve Bell after his shift ended at 7:30 a.m. Mr. Rocchetti
and Mr. Bell went to the GMS office and found a Consol accident reporting form.
However, day shift foreman Dave Lambert informed Mr. Bell that GMS had to use its
own accident report forms. (Tr. 36-39). Mr. Rocchetti drove to the GMS office trailer to obtain a
form but was unable to find one. He spoke to third shift crew man Daniel Adams who referred
him to GMS supervisor Curtis Lusk and safety coordinator Adam Smith. Mr. Rocchetti called
and left telephone messages for Mr. Lusk, Mr. Smith, and crew chief Mike Hudson informing
them that he was going to the hospital. (Tr. 41-43, 65). Mr. Smith also called him at his home
two days after his accident asking him about his workers’ compensation claim and his hospital
doctor’s placing him two days off work and five limited duty days. (Tr. 75). Mr. Rocchetti
requested a copy of the report from Mr. Adams, but Mr. Adams would not accept his request and
rejected it because Mr. Rocchetti and Mr. Hudson did not work on the same shift. (Tr. 70, 84).
Mr. Rocchetti stated that after his accident Mr. Hudson eventually filled out an accident
report and informed him that he gave it to Mr. Lusk. After several contacts with Mr. Lusk
requesting a copy of the accident report, including two scheduled meeting which Mr. Lusk stated
33 FMSHRC 1406

he forgot about, and one statement by Mr. Lusk that he would provide him with a copy, Mr. Lusk
told him he needed to get the copy from Adam Smith. (Tr. 70, 86-88). Mr. Rocchetti confirmed
that he has never received a copy of any accident report and was unable to report his accident
because he could not obtain a reporting form that he had requested, and no one was made
available to assist him in obtaining the form or give him a copy that may have been filled out.
(Tr. 85, 90-91).
Respondent’s Testimony
Randy Scott Smith, GMS vice-president for sales, explained company policy regarding
accident reports as stated in its employee handbook. He stated that there is an 800 phone number
for reporting an accident to the GMS office in Maryland and to leave a message for the mine
safety coordinator. He stated that an attempt should be made to contact an immediate supervisor
or safety director at the mine where the employee is working. (Tr. 94-96). He confirmed that he
was not at the mine on February 4, 2010, was not involved with the accident, and had no
knowledge of the content of any conversations related to Mr. Rocchetti’s attempts to report his
accident. (Tr. 97).
Mr. Smith stated that accident forms are available at the mine locations and that the safety
coordinator is responsible to make sure they are accessible for everyone. The form itself is not
posted, but the procedures are generally posted. Attempts are made to give copies of the form to
all crew leaders. (Tr. 98-100).
Note: The GMS employee manual dated January 1, 2010, was produced and without objection
two relevant paragraphs were recorded for the transcript by the official court reporter. (Tr. 100
101). Paragraph one states as follows:
Accidents and injuries, all work related injuries must be reported immediately
after the occurrence to the GMS Oakland offices at (301) 334-8186 and an
accident report filled out. All injuries must be reported for insurance and MSHA
purposes. Emergency medical attention will be provided as required.
Mr. Smith confirmed that the procedures for reporting of accidents varies from MSHA
districts and Consol’s requirements, and that the forms used by GMS and Consol overlap and are
at times interchanged. (Tr. 95). He stated that procedures for reporting accidents are posted at
the mine, but the form is not. Attempts are made to give every crew leader a supply of forms and
it is the responsibility of the safety coordinator to make sure they are available to everyone. (Tr.
99).
Mr. Smith stated that Mr. Rocchetti’s understanding of the handbook accident reporting
procedures “was fairly accurate,” and he confirmed that a miner should try and contact his
immediate supervisor or a safety director in his area or mine management where he is working.
(Tr. 96).
Mr. Smith stated that the policy manual does not explicitly direct the miner to report an
accident, and while he guessed that it was general policy that a miner remain at the mine if he is
injured to fill out a form, he did not know what is further posted at the mine site in this regard.
(Tr. 102-103).
Respondent’s counsel failed to produce or present testimony from GMS management
members Curtis Lusk, a supervisor, and Adam Smith, the safety coordinator, who were named in
the complaint filed by Mr. Rocchetti as the individuals who allegedly interfered with his efforts
to report his accident, and whose alleged actions are directly related to the critical issue of
whether the complaint filed by Mr. Rocchetti was frivolous or non-frivolous.
33 FMSHRC 1407

Counsel’s theory of the case and the reasons for not presenting the testimony of the two
critical witnesses was raised for the first time at the hearing during her opening statements, and at
the conclusion of the Secretary’s testimony and closing arguments. (Tr. 11-29, 108-109).
Although acknowledging her understanding of the limited and narrow scope of the
hearing, as well as the motion granted regarding this issue, counsel asserted her intention to
present evidence of events that would have tolled the respondent’s ability to be reinstated with
back pay because of a layoff and because there is no work being done at the mine of the type Mr.
Roccehitti was performing prior to his discharge. (Tr. 10-11). She further stated that she
intended to present testimony from her witness regarding the layoff. (Tr. 12-13).
I informed counsel that her arguments, raised for the first time, were premature and that
the testimony that I will accept is strictly limited to whether or not Mr. Rocchetti’s complaint that
he was unable to file an accident report was frivolous, and the Secretary’s objections expanding
the scope of the hearing as proposed by respondent’s counsel were granted, and the respondent’s
proffers were rejected. (Tr. 17, 20, 25). However, her objections were noted and she was
permitted to file a brief preserving her legal argument for the record. (Tr. 106-110).
The parties filed post-hearing briefs on May 20, 2011. The Secretary re-states its hearing
position that any evidence or argument regarding the availability of Mr. Rocchetti’s reinstatement
relates to the respondent’s affirmative defenses on the merits and is outside the limited bounds of
the instant temporary reinstatement proceeding. The Secretary asserts further that the respondent
may advance these arguments in the context of a merits proceeding after the parties have had
sufficient time to evaluate the merits claim and complete full discovery on these issues, and that
until such time as respondent can properly plead and prove such a defense, an order of temporary
reinstatement must remain in effect.
The respondent’s submission includes a Motion to Exclude Evidence Exceeding Order
Granting Motion in Limine and Motion for Reopening of Hearing, with supporting memoranda.
The Secretary filed a letter in response to the motions, pointing out that the fact that counsel for
the respondent was confused or unprepared to address the “frivolously brought” issue should not
bear on that determination. The Secretary pointed out that the respondent had significant time to
familiarize itself with the Application and Motion in Limine and to educate itself as to the proper
boundaries of a temporary reinstatement proceeding.
After careful consideration of the respondent’s post-hearing motions, and the responses
by the Secretary, the motions ARE DENIED, and my hearing rulings in this regard are RE
AFFIRMED.
With respect to Mr. Rocchetti’s complaint, I conclude and find that his attempts to secure,
complete, and file an accident report after he was injured at work were made in good faith and
constituted protected activity within the intent and meaning of the Mine Act. The credible and
un-rebutted testimony of Mr. Rocchetti clearly establishes that the respondent’s management
officials, namely safety coordinator Adam Smith, supervisor Curtis Lusk, and crew leader Mike
Hudson were all aware of Mr. Rocchetti’s injury for several days following that event as well as
his efforts to obtain an accident form.
I further conclude and find that rather than reasonably accommodating and facilitating
Mr. Rocchetti’s attempts to obtain an accident form in order to fill it out and file it, respondent’s
management officials did the opposite. The credible and un-rebutted testimony of Mr. Rocchetti,
in much detail, chronicle a series of telephone calls, conversations, both personal and by
telephone, between Mr. Rocchetti and respondent’s management officials, including its safety
coordinator Adam Smith, on the day he was injured and after that event, all of which resulted in
his failure to obtain an accident report form for filing. Indeed, he testified that as of the date of
the hearing he had never been given a copy of any accident form related to his accident that had
33 FMSHRC 1408

been filed, notwithstanding the statutory and regulatory requirement to file one. Under all of
these circumstances, I conclude and find that Mr. Rocchetti’s failed efforts and requests to obtain
an accident report and to report his injury was a direct result of the non-responsive, evasive, and
non-cooperative conduct by management to accommodate his requests.
The Secretary’s arguments that the relatively short time period between Mr. Rocchetti’s
protected activity and his discharge; managements inquiries concerning his filing of a workers’
compensation claim about his medical treatment; and his transfer from his usual work location to
another one, for less pay, arguably demonstrates animus against Mr. Rocchetti, and his accident
reporting efforts are persuasive.
Based on all of the aforementioned circumstances, I find that there is reasonable cause to
believe that Mr. Rocchetti may have been discriminated against as alleged in his complaint, and
conclude that the Application for Temporary Reinstatement has not been frivolously brought.
ORDER
The Application for Temporary Reinstatement IS GRANTED. The respondent IS
ORDERED TO REINSTATE Mr. Rocchetti to the position that he held prior to his February 14,
2011, discharge, or to a similar position, at the same rate of pay and benefits, IMMEDIATELY
ON RECEIPT OF THIS DECISION.

/s/ George A. Koutras
George A. Koutras
Administrative Law Judge
Distribution:

(Certified Mail)

A. Scott Hecker, Esq., U.S. Department of Labor, Office of the Solicitor, 1100 Wilson
Boulevard, 22nd Floor West, Arlington, VA 22209-2247
Maria Hughes, Esq., Jackson Lewis, One PPG Place, 28th Floor, Pittsburgh, PA 15222
Louie Rocchetti, HC 76, Box 879F, Crumpler, WV 24868

33 FMSHRC 1409

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

May 27, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner
v.

:
:
:
:
:
:
B&J EXCAVATING, INCORPORATED, :
Respondent
:

CIVIL PENALTY PROCEEDING
Docket No. YORK 2010-205-M
A.C. No. 18-00017-212386 x358
Mine: Union Bridge, MD / LeHigh Cement

DECISION
Appearances: Matthew Epstein, Esq., Office of the Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, for the Petitioner
Steven D. Sandbrook CMSP, President, Eagle Mine Safety, Inc., Nazareth,
Pennsylvania, for the Respondent
Before:

Judge Koutras

This civil penalty proceeding was held pursuant to the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 802 et seq. (2000), (the “Mine Act”). This matter concerns an alleged
violation of the mandatory safety standard 30 C.F.R. § 56.9315. Citation No. 6537795, a
104(d)(1) violation, was served on the respondent on January 11, 2010. This alleged violation
was found to be significant and substantial, (hereafter “S & S”), and an unwarrantable failure.
The cited mandatory safety standard requires the control of dust at muck piles, material transfer
points, crushers, and on haulage roads where hazards to persons would be created as a result of
impaired visibility. In this case, the alleged violation is in connection with reduced visibility on
the quarry haulage roads.
A hearing was held in Frederick, Maryland, on March 8, 2011, and the parties appeared
and participated fully therein. The critical issue was whether the violation was the result of the
respondent’s unwarrantable failure to comply with the cited safety standard, which resulted in a
proposed civil penalty assessment of $3,689.
The inspector issued the citation because he believed the most effective way to control
roadway dust was through the application of water. The respondent agreed that dust could have
been controlled by applying water, but also believed that the dust could have been controlled
using other methods. The respondent asserted that it acted to control the dust by scraping the
road and applying clean stone, and by reducing the speed limit. The respondent contends that it
33 FMSHRC 1410

did not initially apply water to the road because it was restricted from doing so by Lehigh
Cement’s quarry foreman, who had authority to permit the use of water to control the dust.
Lehigh Cement chose not to initially allow the respondent to apply water to the road due to
freezing temperatures. (Tr. 79 - 82).
Mr. Bartsch, the respondent’s representative, testified that attempts to control the dust
without the use of water began at 6:00 a.m., and were ongoing when he arrived at 11:00 a.m.;
approval for using water started at 2:00 p.m. He explained the procedures to safely control truck
traffic during that time. (Tr. 87 - 92).
At the close of all of the testimony, the petitioner’s counsel requested a short recess to
further confer with the inspector, and the respondent’s representative. Upon resumption of the
hearing on the record, counsel stated that the parties agreed to settle the matter by modifying the
Section 104(d)(1) unwarrantable failure citation to a Section 104(a) “S & S” citation, with a
moderate negligence finding and a penalty assessment of $2,000.
In support of the settlement proposal, petitioner’s counsel agreed that the respondent’s
failure to use water to control the dust was due to its limited options based on contractual
limitations with the mine operator, Lehigh Cement. Under these circumstances, counsel agreed
that the attempts and efforts by the respondent to control the dust were mitigating circumstances
that warranted the issuance of a Section 104(a) citation rather than a Section 104(d)(1)
unwarrantable failure citation. (Tr. 114-115).
In addition to the aforementioned mitigating circumstances, which I accept as a
reasonable and credible compromise of this case, I have considered the stipulations by the parties
that the respondent abated the citation in good faith, that it is a small to medium sized contractor,
that the assessed civil penalty will not adversely affect its ability to continue in business, and
with a relatively good prior history of eight violations in the past 15 months, none of which is the
same as the one issued in this case. (Tr. 6 - 8).
Wherefore, in view of the foregoing and after consideration of the criteria set forth in
Section 110(i) of the Mine Act, I conclude and find that the settlement agreed to by the parties in
this case is appropriate and in the public interest and it is APPROVED. My prior approval on
the record is RE-AFFIRMED.
The contested Section 104(d)(1) “S & S” Citation No. 6537795 that was issued on
January 11, 2010, is modified to a Section 104 (a) “S & S” citation, with a “moderate
negligence” finding and a civil penalty of $2,000 is assessed.

33 FMSHRC 1411

The respondent is ORDERED to pay the $2,000 civil penalty assessment within 30 days
of the date of this decision. Payment shall be made to the Mine Safety and Health
Administration, U. S. Department of Labor, Payment Office, P. O. Box 790390, St. Louis, MO
63179-0390. Upon receipt of payment, this matter is DISMISSED.

/s/ George A. Koutras
George A. Koutras
Administrative Law Judge
Distribution:
Mathew E. Epstein, Esq., Office of the Solicitor, U. S. Department of Labor, Suite 630E, The
Curtis Center, 170 S. Independence Mall West, Philadelphia PA 19106-3306
Steven D. Sandbrook, CMSP, President, Eagle Mine Safety, P.O. Box 412, Nazareth, PA 18064
George W. Statzell, Safety Director, B&J Excavating, Inc., 140 Robbins Road, Trestle Bridge
Business Center, Downington, PA 19335-3409

33 FMSHRC 1412

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

June 6, 2011

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
HELDEBERG BLUESTONE &
MARBLE INC.,
Respondent

:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDING
Docket No. YORK 2010-15-M
A.C. No. 30-03038-198913
Grippee Quarry #4 South

DECISION
Appearances:

Paul Koob, Esq., U.S. Department of Labor, Office of the Solicitor,
Philadelphia, Pennsylvania, for the Petitioner
Paul F. Giebitz, President, Heldeburg Bluestone & Marble, Inc., East
Berne, New York, for the Respondent

Before:

Judge Koutras
STATEMENT OF THE CASE

This civil penalty proceeding, pursuant to the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 802 et seq. (2000), (hereafter “Mine Act”) concerns an alleged violation of
mandatory safety standard 30 C.F.R. § 56.15004, as stated in a Section 104(d)(1) significant and
substantial (hereafter “S & S”) unwarrantable failure citation No. 6536680, served on the
respondent on August 3, 2009. The cited standard, in relevant part, requires all persons to wear
safety glasses when in or around an area of a mine where a hazard exists which could cause
injury to unprotected eyes.
A hearing was held in Albany, New York on March 22, 2011, and the parties appeared
and participated fully therein. The issues include whether the alleged condition or practice, if
established, could significantly and substantially contribute to the cause and effect of a mine
hazard resulting from the respondent’s alleged unwarrantable failure to comply with the cited
safety standard resulting in a penalty assessment of $2,000.00.
The parties stipulated to the following:
1. The respondent and its quarry operations that are the subject of these proceedings are
subject to the jurisdiction of the Mine Act and the Commission.
2. MSHA Inspector Matthew Mattison was acting in his MSHA official capacity when
he issued the citation on August 3, 2009, and that a true copy was properly served on the
respondent.
33 FMSHRC 1413

3. A prior citation was issued on July 21, 2009, for a violation of Section 30 C.F.R. §
56.15004, was served on the respondent and issued to foreman Mark Kudlack. The
respondent did not contest that citation and the assessed civil penalty was paid.
(TR. 5-7).
Petitioner’s counsel noted my partial summary decision of March 1, 2011, finding that
miner, Perry Shaul failed to wear protective glasses while performing work, striking stone with a
sledge hammer. (Tr. 7). I take note that Respondent failed to respond to Petitioner’s motion in
this regard. The respondent does not dispute the fact that no safety glasses were worn.
MSHA inspector, Matthew Mattison testified that when he arrived at the quarry on
August 3, 2009, at approximately 2:30 p.m., he observed two miners extracting stone and that he
was 40 to 60 feet away. He observed stone splitter, Perry Shaul using a sledge hammer and a
chisel on the stone striking it two or three times without wearing any eye protection. The chisel
was positioned on the bluestone stone bottom where he was trying to pop it off the ground, and
he observed shards of stone splinters and dust coming off the stone. The other individual
working with him was foreman Mark Kudlack. (Tr. 16-18).
Mr. Mattison stated that he was familiar with bluestone quarries and has inspected many
such operations and that workers typically wear eye protection. He explained that the stone
would break apart when struck when someone was hitting a wedge with a sledge hammer. The
size of the chips and dust he observed ranged from the size of a penny/dime to dust particles.
(Tr. 19-20).
Mr. Mattison stated that Mr. Shaul was directly facing and leaning into the stone while
swinging the sledge hammer. He was concerned for Mr. Shaul’s safety when he observed him
working without wearing his safety glasses because the debris, chips, and splinters could enter
his eyes causing possible blindness and permanently disabling eye injuries. (Tr. 20). He was not
concerned with the foreman’s safety because he was wearing his safety glasses. (Tr. 21).
Mr. Mattison stated that the foreman was standing five to six feet from Mr. Shaul
observing his work and that during this time the foreman never told Mr. Shaul to put his glasses
on or to stop working. Mr. Mattison believed that had he not been present, Mr. Shaul would
have continued his work without eye protection because two weeks earlier on July 21, 2009, he
observed him doing the same work without eye protection and issued a citation that he served on
foreman Kudlack. (Tr. 22-23; Exhibit P-2).
Mr. Mattison stated that after he issued the previous citation he spoke to Mrs. Giebitz,
one of the respondent’s owners who was working at the quarry office about the matter. (Tr. 24
26).
On cross-examination by Mr. Paul Giebitz, Mr. Mattison confirmed that he terminated
the citation in issue after Mr. Shaul put on the safety glasses that were provided to him by the
respondent that was nearby where he was working. (Tr. 30). The glasses were ten to 12 feet
away, sitting on an air compressor. (Tr. 33).
Mr. Mattison confirmed that when he initially observed Mr. Shaul working on the stone
from a distance of 40 to 60 feet, he could see dust and chip debris coming from the stone, and
that Mr. Shaul and Mr. Kudlack showed him where the glasses that were not worn were located
on the compressor. (Tr. 32-33).
Mr. Mattison explained that while he indicated on the face of the citation that any
resulting injury would be “fatal”, he did not believe that a fatal accident would occur. He further
confirmed that while he never observed any stone debris striking Mr. Shaul’s face, it was flying
off the stone while it was struck. (Tr. 36).
33 FMSHRC 1414

Mr. Mattison further explained that the basis for his “high negligence” finding was due to
the fact that foreman Kudlack was present during the work performed by Mr. Saul and was the
designated individual responsible to ensure the safety of the miners. Petitioner’s counsel
confirmed that a Section 110(c) investigation concerning foreman Kudlack did not result in any
further action against him because it involved a higher burden of proof as is required pursuant to
a Section 104(d)(1) citation. (Tr. 37).
Quarry foreman Mark Kudlack testified as an adverse witness and that his duties include
maintaining safety, training miners, and correction violations. He confirmed that he issues safety
glasses to the miners in the morning and insures that they have them before leaving the office
(Tr. 42-45). He testified that on August 3, 2009, he observed miner Perry Shaul working to
extract stone using a wedge and sledge hammer without wearing his safety glasses for
approximately five minutes. He confirmed that Mr. Shaul was previously cited for not wearing
safety glasses two weeks prior to the issuance of the citation in issue in this case. Although Mr.
Shaul was extracting stone in both instances, Mr. Kudlack explained that on the prior occasion he
was using a jackhammer rather than a sledge hammer. (Tr. 47-48).
Mr. Kudlack testified that Mr. Shaul obviously had a problem with failing to wear his eye
protection “because he was cited beforehand,” as well as previous instances when he was
observed without wearing eye protection. (Tr. 48-49). Mr. Kudlack further explained that Mr.
Shaul complained that his glasses did not fit him well and was given larger ones. Even though
they were a better fit, Mr. Kudlack stated “I’d catch him without them on,” and confirmed that he
fired Mr. Shaul after the citation was issued. (Tr. 50).
The Violation
The respondent did not dispute the fact that miner Perry Shaul was not wearing his safety
glasses while working to extract stone with a wedge and sledge hammer on August 3, 2009. The
respondent’s admission, and the credible testimony of the inspector clearly establish this was the
case. I therefore conclude and find that the failure of the cited miner to wear his safety glasses
constituted a violation of mandatory safety standard Section 30 C.F.R § 56.15004, AND IT IS
AFFIRMED.
Significant and Substantial Issues
A significant and substantial (“S&S”) violation is described in Section 104(d)(1) of the
Act as a violation “of such nature as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard.” A violation is properly designated
S&S “if based upon the particular facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious
nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
The Commission has explained that in order to establish that a violation of a mandatory
safety standard is significant and substantial under National Gypsum, the Secretary of Labor must
prove:
(1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard–that is, a
measure of danger to safety–contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal,
Inc. v. FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861 F.2d 99,
33 FMSHRC 1415

103-04 (5th Cir. 1988), aff’g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving
Mathies criteria).
In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission
provided additional guidance:
We have explained further that the third element of the Mathies formula “ requires that the
Secretary establish a reasonable likelihood that the hazard contributed to will result in an event in
which there is an injury.” U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 (August 1984).
We have emphasized that, in accordance with the language of section 104(d)(1), it is the
contribution of a violation to the cause and effect of a hazard that must be significant and
substantial. U.S. Steel Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel
Mining Co., Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
This evaluation is made in terms of “continued normal mining operations.” U.S. Steel Mining
Co., Inc., 6 FMSHRC at 1574. The question of whether a particular violation is significant and
substantial must be based on the particular facts surrounding the violation. Texasgulf, Inc., 10
FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
The existence of a violation has clearly been established pursuant to the first prong of the
Mathies Test. With respect to the second prong requiring a discrete safety hazard contributed to
by the violation, Inspector Mattison testified that he observed shards of stone splinters and dust
coming off the stone as the miner was striking a chisel or wedge placed under the stone with a
sledge hammer in an effort to raise and extract the stone. (Tr. 16-18; 32, 36). Although the
inspector did not include his observations on the face of his citation, after observing his
demeanor during his testimony, I find his testimony to be credible. He further testified that the
miner could be struck in the eye by shards, dust, or debris causing an injury. (Tr. 20).
Foreman Kudlack did not rebut the inspector’s testimony regarding his observations of
shards, splinters, and dust on the day of his inspection. Although Mr. Kudlack testified during
his deposition that he observed no chips, he explained that the presence of such debris would
depend on the condition of the wedge. However, he agreed that a miner striking a wedge into
stone without eye protection presents a slight degree of danger and a hazard to the eyes. (Exhibit
P-1; 14-17).
Given the fact that foreman Kudlack was wearing his safety glasses while in close
proximity to the miner who was wielding the sledge hammer as he struck the wedge, there is a
credible inference that he was aware of the existence of a hazard and wore his safety glasses to
protect his eyes against injury. Under all of these circumstances, I conclude and find that the
petitioner’s evidence clearly establishes the existence of a discrete safety hazard that satisfies the
second prong of the Mathies Test.
With respect to the third prong of the Mathies Test requiring the establishment of a
reasonable likelihood that the hazard contributed to will result in an event in which there is an
injury, an evaluation of the risk of injury necessarily assumes the continuance of normal mining
operations. In this case, the inspector testified that had he not been present when he observed the
miner without wearing eye protection, it was his belief that the miner would have continued
working without wearing eye protection that would expose him to an injury. (Tr. 22-23). He
based this conclusion on the fact that he cited the same miner for a prior violation of the same
safety standard for not wearing eye protection, and took note of the fact that foreman Kudlack
never instructed the miner to put on his glasses while he observed his work and never instructed
him to stop. (Tr. 22-23).
Foreman Kudlack confirmed that the cited mine had a problem with failing to wear
protection, and that he observed him working without eye protection on several prior occasions,
33 FMSHRC 1416

in the issuance of the prior citation of July 21, 2009. (Tr. 50). Under all of these circumstances, I
conclude and find that if it were not for the issuance of the citation by the inspector, one can
reasonably conclude that the work being performed by the miner without eye protection would
have continued in an unsafe manner exposing him to an injury to his eyes. The rather short fiveminute window between the inspector’s observations that the miner was not wearing safety
glasses, thereby exposing him to injury to his eyes, and the issuance of the citation, does not on
the facts of this case negate the reasonable expectation of a hazardous situation exposing the
miner to injury to his eyes in the event he continued with his normal mining work duties. Under
all of these circumstances, and the evidence presented in this case, I conclude and find that the
third prong of the Mathies Test has been established.
With respect to the fourth Mathies Test, requiring a showing that any injury resulting
from the safety hazard would reasonably likely be of a reasonably serious nature, the credible
testimony of the inspector reflects that the miner worked directly within the hazardous work area
facing and leaning into the stone while performing his task. The inspector observed chips and
dust particles that came off the stone, and he was concerned for the miner’s safety because stone
debris, chips, and splinters entering the eye would cause possible blindness, eye damage, or
permanently disabling eye injuries. Based on his experience with bluestone operations, he
believed it was reasonably likely that the miner working without protection could sustain an
injury. (Tr. 19-21). I conclude and find that the fourth prong of the Mathies Test has been met in
this case.
Under all of the aforementioned circumstances, I conclude and find that the inspector’s
significant and substantial (“S&S”) finding is supported by a preponderance of the credible
evidence presented by the petitioner and IT IS AFFIRMED.
The Unwarrantable Failure Issue
In Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987), the Commission
determined that unwarrantable failure is aggravated conduct constituting more than ordinary
negligence. Unwarrantable failure is characterized by such conduct as “reckless disregard,”
“intentional misconduct,” “indifference” or a “serious lack of reasonable care.” Id. at 2003-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission’s unwarrantable failure
test).
The Commission has recognized that a number of factors are relevant in determining
whether a violation is the result of an operator’s unwarrantable failure. Consolidation Coal Co.,
23 FMSHRC 588, 593 (June 2001). These include the extent of the violative condition, the
length of time that it has existed, the operator’s efforts at abating the violative condition, whether
the operator has been placed on notice that greater efforts are necessary for compliance, the
operator’s knowledge of the existence of the violation, whether the violation is obvious, and
whether the violation poses a high degree of danger. Id. See also San Juan Coal Co., 29
FMSHRC 125, 128 (Mar. 2007).
Although the cited condition existed for only five minutes, a discrete danger existed that
the respondent would not have corrected the condition and the miner would have continued his
work without eye protection if it were not for the intervention of the inspector. The inspector
first observed the miner striking the stone two or three times without wearing his safety glasses,
while the foreman was standing next to him observing his work. At no time did the foreman
instruct the miner to stop work or to put his glasses on. Although he had an opportunity to do
this before the inspector appeared on the scene, he did not do so.
The foreman confirmed that management was responsible for training workers to wear
eye protection. Nonetheless, he observed the cited miner splitting stone without wearing
33 FMSHRC 1417

protective eye wear, was aware that the same miner had been cited two weeks earlier by the same
inspector, and admitted that he observed the same miner on prior occasions performing similar
work without wearing eye protection. While he candidly admitted that the cited miner had a
problem wearing his safety glasses and that he would “catch him without them on,” there is no
evidence that he, as well as the respondent’s owners, ever disciplined the miner until after the
second violation was issued. Such inaction constitutes indifference and a serious lack of
reasonable care, aggravating factors supporting the inspector’s unwarrantable failure finding.
See Sec’y v. Lopke Quarries Inc., 23 FMSHRC 705, 711 (July 2001).
The Commission has recognized that supervisors, being held to a higher standard of care,
must ensure their workers take proper safety precautions. Sec’y v. REB Enterprises Inc., 20
FMSHRC 203, 225 (March 1998). On the facts of the instant case, the foreman disregarded the
safety of the miner, albeit for a short period of time, but did nothing to stop him from working or
instructing him to put on his safety glasses which were nearby.
The petitioner’s credible and unrebutted evidence supports the inspector’s high
negligence finding. I find that the foreman knew, or should have reasonably known, of the
existence of the obvious nature of the violation as he stood next to the miner observing him
working without protective eye wear, and the high degree of danger presented at that time. I
further find that the lack of any effort by the foreman to take reasonable protective action prior to
the issuance of the citation by insuring and requiring the miner to put on his protective glasses,
and management’s knowledge of the prior citation and instances of the miner’s failure to wear
eye protection, was conduct that should have alerted management that greater efforts were
necessary for compliance, and are relevant factors supporting the inspector’s unwarrantable
failure finding. Sec’y v. Consolidation Coal Co., 22 FMSHRC 340, 353 (March 2000).
Under all of the aforementioned circumstances, I conclude and find the inspector’s
unwarrantable failure finding is supported by a preponderance of the credible evidence presented
by the petitioner and IT IS AFFIRMED.
Remaining Mine Act Section 110(i), civil penalty assessment criteria.
History of Prior Violations
An MSHA mine violation report dated March 18, 2011, reflects one prior violation of
Section 30 C.F.R. § 56.15004, for which a penalty of $100.00 was paid, and two unrelated
citations with a total penalty of $200.00, which was paid. I conclude that the respondent has no
significant violation history.
Size and ability to continue in business
The evidence establishes that the respondent is a seasonal small family owned bluestone
mine quarry owner who operates the mine eight months a year. (Tr. 56).
With respect to the effect of a civil penalty assessment on its ability to continue in the
business, I take note of the fact that in its answer to the civil penalty petition, the respondent
stated its continued operation would depend on the outcome of this case. In the course of the
hearing, the respondent pointed out that it paid a $100.00 civil penalty for the first citation of
Section 56.15004, and believed that the proposed penalty of $2,000.00 in the instant case “is very
high,” and expressed a willingness to pay a lesser assessment. (Tr. 52-53).
Petitioner’s counsel stated that as a routine matter he requested information from the
respondent concerning its financial position, and was only provided with partial tax return
deductions information and nothing further has been forthcoming from the respondent. (Tr. 57
58).
33 FMSHRC 1418

The burden of proof to establish that the imposition of a civil penalty assessment would
adversely affect its ability to continue in business lies with the respondent, and in the absence of
any proof in this regard it is presumed that no such adverse effect would occur. See Sellersburg
Stone Co., 5 FMSHRC 287, 294 (March 1983), aff’d 763 F. 2d 1147 (7th Cir. 1984); Broken Hill
Mining Co., 19 FMSHRC 673, 677 (Apr. 1997); Spurlock Mining Co., 16 FMSHRC 697, 700
(Apr. 1994).
I conclude and find that the respondent has failed to provide evidence establishing that
the imposition of the proposed civil penalty assessment of $2,000.00, for the contested Section
104 (d)(1) citation would adversely affect its ability to continue business.
Good Faith Abatement
The citation was terminated within minutes after the cited miner retrieved his safety
glasses from where they were located nearby his work area.

33 FMSHRC 1419

ORDER
Based on the aforementioned findings and conclusions, the contested Section 104(d)(1)
“S & S” unwarrantable failure citation IS AFFIRMED, and the respondent IS ORDERED TO
PAY a civil penalty assessment of $2,000.00, which I find is appropriate in this case, within 30
days of the receipt of this decision.

/s/ George A. Koutras
George A. Koutras
Administrative Law Judge

Distribution: (Certified Mail)
Paul Koob, Esq., Office of the Solicitor, U.S. Department of Labor, 170 S. Independence Mall
West, Suite 630 East, Philadelphia, PA 19106-3306
Paul F. Giebitz, Heldeberg Bluestone & Marble, Inc., P.O. Box 36, East Berne, NY 12059

33 FMSHRC 1420

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

June 8, 2011

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner
v.
EXCEL MINING LLC.,
Respondent

:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDING
Docket No. KENT 2009-200
A.C. No. 15-18839-164793

Van Lear Mine.

DECISION
Appearances: Matthew Shepard, Esq., U.S. Department of Labor, Nashville, TN, on behalf of
the Secretary
Gary D. McCollum, Esq., Excel Mining, LLC, Lexington, KY on behalf of Excel Mining, LLC
Before: Judge David F. Barbour

This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor (“Secretary”) acting through her Mine Safety and Health Administration (“MSHA”)
against Excel Mining, LLC (“Excel”) pursuant to sections 105 and 110 of the Federal Mine
Safety and Health Act of 1977 (the “Mine Act”) 30 U.S.C. §§ 815 and 820. In the petition the
Secretary seeks the assessment of civil penalties for 10 alleged violations of the Secretary’s
mandatory safety standards for underground coal mines. She charges that the violations occurred
at Excel’s Van Lear Mine, an underground bituminous coal mine located in Martin County,
Kentucky.
After the petition was filed, the company answered and the matter was assigned for
hearing and decision. Upon the court’s order, the case was consolidated with two additional civil
penalty cases (Docket Nos. KENT 2009-521 and KENT 2009-523), which also involved Excel.
The parties conferred to determine whether they could settle the matters. As a result of their
discussions, they resolved all of their differences regarding Docket Nos. KENT 2009-521 and
KENT 2009-523. The settlements were approved and the matters were dismissed. The parties
also settled all issues with regard to nine of the alleged violations in the subject docket, and on
October 29, 2010, the court issued a partial decision approving the settlement. The court noted
that the parties remained at odds over the alleged violation of 30 C.F.R. §75.202(a) set forth in
Citation No. 8218342.
Citation No. 8218342 was issued pursuant to section 104(a) of the Mine Act. 30 U.S.C.
§814(a). Section 75.202(a) requires in part that a mine operator protect persons in areas where

33 FMSHRC 1421

they work or travel from hazards related to roof falls.1 In addition to alleging a violation of the
standard, the Secretary asserts that the violation was reasonably likely to result in lost workdays
or restricted duty to one miner, that the violation was a significant and substantial contribution to
a mine safety hazard (an “S&S” violation) and that the violation was caused by the company’s
moderate negligence. The Secretary proposes a civil penalty of $687.00. The issues were tried
in Pikeville, Kentucky.
STIPULATIONS
At the commencement of the hearing the parties stipulated as follows:
1. At all times relevant to this proceeding [Excel] was the operator of the Van
Lear Mine . . .
2. The Van Lear Mine is a “mine” as that term is defined in Section 3(h) of
the Mine Act, 30 U.S.C. §802(h).
3. At all times relevant to this proceeding, products of the Van Lear Mine
entered commerce, or the operations or products thereof affected commerce,
within the meaning and scope of Section 4 of the Mine Act,
30 U.S.C. §803.
4. Employees at the Van Lear Mine produced more than 800,000 tons
of coal in 2008. Excel . . . is a large operator.
5. A copy of the citation at issue in this proceeding was served on
Excel . . . by an authorized representative of the Secretary.
6. Excel . . . timely contested the citation.
7. Excel . . . is subject to the jurisdiction of the Federal Mine Safety
and Health Review Commission and the presiding Administrative Law
Judge has the authority to hear this case and issue a decision regarding
this case.
8. The proposed penalties will not affect [Excel’s] ability to remain in
business.
Jnt. Exh. 1 at 1-2; See Tr. 11-13.
THE TESTIMONY
Billy Ray Meddings is a federal mine inspector working in MSHA’s Pikeville, Kentucky
office. Meddings began working for MSHA in April 2007. Tr. 15. After being hired by the
agency Meddings received inspector training at the MSHA academy in Beckley, West Virginia.
1

Section 75.202(a) states:
The roof, face and ribs of areas where
persons work or travel shall be supported or
otherwise controlled to protect persons from
hazards related to falls of the roof, face or ribs
and coal or rock bursts.
33 FMSHRC 1422

Tr. 16. He also received on-the-job training by traveling with other inspectors for a little over a
year. Tr. 16-17. Before becoming an MSHA employee Meddings worked for Excel for 26 years,
beginning as a day laborer and rising to the position of a mine foreman. Tr. 17. Along the way he
held the positions of section foreman, shift foreman and safety coordinator. Tr. 18, 22.
Most of Meddings’s Excel-related experience was at the Excel Two Mine. The mine was
located on the site of the present Van Lear Mine. Coal from the Pond Creek seam was extracted
at the mine. Tr. 20. When the Pond Creek seam was exhausted, the company began mining the
Van Lear seam which was located above the Pond Creek seam, and the mine’s name was
changed to the Van Lear Mine. Tr. 20-21. Meddings explained that the Van Lear Mine is at the
“same location” and in the “same drift or slope” as the Excel Two Mine. Further, the Van Lear
Mine uses the “same portal, same bathhouse, [and] same office” as the Excel Two Mine. Tr. 20.
Approximately 150 miners are employed at the Van Lear Mine. Tr. 53.
The roof at the Van Lear Mine consists of “laminated shale, shale and sandstone.” Tr. 24.
Had the roof consisted primarily of sandstone, Meddings believed the roof would have “tend[ed]
to stay together.” Id. However, because of the laminated shale and sandstone mix, separation of
the seams in the roof is always “a good possibility.” Id. To keep the roof stable, the company
uses two kinds of roof bolts: fully grouted resin bolts and cable bolts.2 Tr. 23-24, 27. The resin
bolts are five or six feet long. Tr. 27-28. The cable bolts used at the mine are 10 feet long.3
According to Meddings, roof falls usually originate 10 to 12 feet into the roof. Tr. 28. In
Meddings’s opinion by using 10 foot cable bolts the company is “trying to keep from having
major roof falls.” Tr. 24.
Prior to inspecting the mine, Meddings reviewed the records of its reported roof falls. He
found there were fourteen roof falls in the three-year period of 2005 through 2008. Tr. 27-28. In
addition, from 2005 though 2008 the mine experienced 11 draw-rock injuries. Id.4 Meddings
described draw- rock injuries as “a piece of draw-rock . . . falls and injures a person.” Id.
On August 27, 2008, Meddings conducted an inspection of the mine. Meddings traveled
with Daryl Banks. They rode on Banks’s rubber tired permissible buggy. Tr. 33-34. The men
proceeded along a return airway when they came to a part of the entry that was cribbed on both
sides. Tr. Id., 100. There was a swag in the entry.5 Id. Meddings estimated that the cribbed
entry, which was located between the intersections of two crosscuts, was “probably 70 feet
long.”6 Tr. 37, see Tr. 99; Gov’t Exh. 2 at 4. A cutter was visible in the roof of the entry.
2

Banks explained that resin bolts are used at the mine because when they are tightened,
their resin is released and is forced into the cracks and seams of the roof. The resin sets and
forms a solid “beam” in the roof’s strata. Tr. 83-84. The cable bolts supplement the resin bolts
by providing support higher into the roof. Tr. 84.
3
There is inconsistent testimony regarding the length of the resin bolts. Meddings
testified that five foot resin bolts are used at the mine. Tr. 27-28. Darryl Banks, a company mine
examiner, testified that six foot cable bolts are generally used. Tr. 84, 92. The actually length of
the resin bolts is not critical to this decision.
4
The term “draw-rock,” while not defined in commonly used mining dictionaries, is
understood to refer to shale or slate pieces in the outer roof that tend to fall easily when under
pressure.
5
Meddings described a “swag” as a dip in the mine floor. Tr. 37.
6
Banks testified that the entry was between the Number One and Number Two crosscuts.
Tr. 99. Banks traveled through the entry at least one time each week as part of examination
duties he undertook for the company. Id.
33 FMSHRC 1423

Tr. 35.7 On one side of the cutter the roof dropped two to eight inches. Tr. 36.
Banks did not think the deformity in the roof was a cutter. Although Banks agreed that
the roof was uneven, in his opinion the roof area that Meddings thought was a cutter was simply
a place where draw-rock had fallen making a two to eight inch difference in the roof’s elevation.
Tr. 103.
According to Meddings, draw-rock existed though out the entry, both along the cutter and
along the middle of the roof. Tr. 43. He estimated that the draw-rock pieces weighed from five
to 500 pounds. Tr. 73. Roof support in the entry consisted of cribs, resin bolts and 10 foot cable
bolts. The resin bolts were installed and spaced according to the mine’s roof control plan. Tr. 59.
The 10 foot cable bolts were installed throughout the entry and the cribs were installed along the
entry’s sides. Tr. 43, 44, 59-60. Normally cable bolts would have been installed in the
intersections, not in the entry. Tr. 44. Meddings believed that the cable bolts and cribs helped to
disburse the weight of the roof and were added to stop draw-rock from falling. Tr. 61.
Meddings speculated that when the company was driving the entry there “were some
signs of the top getting bad or they wouldn’t have bolted the whole entry . . . full of cable bolts.”
44. He believed that the 10 foot cable bolts were installed first, and when draw-rock continued
to fall, the cribs were installed. Tr. 45. However, according to Meddings even with the
supplemental support, the roof in the entry continued to deteriorate and draw-rock continued to
fall. Id. Draw-rock in the roof was so extensive Meddings thought that the only ways to
eliminate its danger were to install chain link netting across the entry roof, install steel crossbars
every four feet along the roof, or close the entry and have the mine examiner take a new route
around the area. Tr. 45-47.
In Meddings’s opinion the cutter in the roof had existed for a couple of months. Tr. 48.
Because the situation was worsening and because Banks passed through the entry at least every
seven days when examining the airways, Meddings thought that it was reasonably likely Banks
would be seriously injured by falling draw-rock. Tr. 48-49. Meddings speculated that the
vibration from the buggy could cause the draw-rock to fall on Banks.8 Tr. 50. Meddings also
suggested that Banks might pile things on the back of the buggy, and the material would strike
draw-rock in the roof and cause the rock to fall. The height of the entry was five feet. Tr. 51.
Meddings told Banks that he, Meddings, had “no choice but to cite” a violation. Tr. 38,
90. Meddings stated that the entry was “too dangerous to be traveling through even if it’s just
once a week.” Tr. 39. Meddings remembered Banks saying he knew that the condition “was
getting worse,” a statement that Banks denied making.9 Tr. 38. 63. Tr. 106, see also Tr. 91.
Meddings described his reaction to the roof in the entry. He testified that “the hair on my neck
stood up.” Tr. 38.
After Meddings and Banks passed through the entry, Meddings asked Banks to stop and
park the buggy in the adjacent crosscut, which Banks did. Meddings and Banks got out of the
buggy and walked back to the entry. Tr. 58. Before entering the affected area Meddings noticed
a “dog-eared” plate on a roof bolt.10 Tr. 39; Gov’t Ex. 2 at 9. As the men continued into the
entry and walked between the cribs, Meddings noticed several more dog-eared plates as well as
7

Meddings described a “cutter” as “where the roof is actually separated.” Tr. 35.
Banks was skeptical. He testified that he never heard of vibration from a buggy causing
draw-rock to fall. Tr. 97.
9
Meddings wrote in his contemporaneous notes, “[Banks] said he realized that the top
was getting worse, but didn’t think he needed to do anything about it yet.” Gov’t Ex. 2 at 10.
10
The plate was also seen by Banks. Tr. 102.
33 FMSHRC 1424
8

fallen draw-rock in the entry.11 Tr. 40, 55, see also Tr. 90. In addition, Meddings noticed several
squeezed crib wedges. Tr. 40, 56; Gov’t Ex. 2 at 9. Banks too saw the squeezed wedges. Tr. 102.
The dog-eared plates and squeezed wedges indicated to Meddings that the roof was bearing
additional weight, and Banks agreed. Tr. 41; 102.
Meddings found that Excel’s negligence in allowing the condition to exist was
“moderate.” Gov’t Ex. 2. He thought the cable bolts in the entry and the cribs on each side of the
entry indicated Excel had tried to do something about the condition. Tr. 52.
The condition was abated when Excel placed timbers and “do not enter” signs at the ends
to the entry blocking access to it. Tr. 52-53; see Gov’t Ex. 2 at 12. Banks now had to take a new
route around the area when he conducted his weekly examination. Tr. 53.
Meddings agreed that during the summer when the humidity increased the mine
experienced a “sweat season” and draw-rock conditions generally worse.12 Tr. 64. He conceded
that the loose and scaling draw-rock in the roof could have developed since Banks last conducted
an examination of the area. He agreed he did not know for sure if the roof conditions that existed
on August 27, were there the week before. Tr. 64-65, 69. Banks speculated that perhaps the
fallen draw-rock in the entry was due to the “sweat season.” Id. Banks also testified that in his
experience intake airways were more affected by the increased humidity than return airways, and
he noted that the cited area was ventilated by return air. Tr. 112-113.
Meddings found that falling draw-rock could cause Banks to suffer lost work days or
restricted duty. Tr. 48; Gov’t Ex. 1. There was even a chance that Banks could be fatally injured.
Tr. 48. However, Meddings agreed that a large majority of draw-rock injuries were not
reportable because they did not cause lost work days or restricted duty. Tr. 70-71.
Banks testified that he examined all of the Van Lear Mine’s airways at least once every
seven days. Tr. 77-78. On any given day, he traveled six to ten miles in the mine. Tr. 78. Banks
estimated that he had traveled through the cited area 30 times before August 27, 2008. Tr. 80. As
far as he knew, he was the only company miner who passed through the entry. Id. He further
stated that it took him between 30 seconds and a minute to pass under the cited roof. Tr. 80-81.
During air way examinations he mainly looked for “loose rock on the top.” Tr. 81. When he saw
loose rock, he stopped and took it down with a slate bar. Tr. 81.
Banks agreed that on August 27, 2008 roof support in the area consisted of resin bolts, 10
foot cable bolts and cribs and that the combined support extended for approximately 70 feet. Tr.
83. Banks speculated that the 10 foot bolts were installed because miners “probably
encountered” adverse roof conditions as they drove the entry. Tr. 85. As far as Banks knew, the
10 foot bolts and the cribs were not required under the mine’s approved roof control plan.
Tr.101. They were purposefully added to address roof hazards particular to the entry. Tr. 102.
Banks testified that when he first examined the area in December, 2007 the three types
of roof support were already in place. Tr. 87-88. At that time some of the cribs and some of the
10 foot bolts showed signs of taking weight. Tr. 88. For the next eight months the roof
conditions remained the same except for some “draw-rock scaling out here and there.” Id. Banks
insisted that when Meddings issued the citation on August 27, 2008 conditions were as they had
been except for “two or three pieces of [draw-rock] that [had] fallen in the middle of the entry,”
and “a few pieces [of draw-rock that had fallen] . . . toward the left cribs.” Tr. 89.
11

Meddings did not know when the draw-rock fell. Tr. 67.
According to Banks, the “sweat season” occurred when temperatures outside the mine
were significantly hotter than temperatures inside the mine. The temperature differential caused
condensation on the roof, ribs and bottom, which in turn could cause the roof to scale. Tr. 91-92.
33 FMSHRC 1425
12

Banks was asked about the cutter. He defined a cutter as “where the main roof is
weighing maybe above the . . .[resin] bolts and maybe not above the 10 foot [cable] bolts, and
it’s breaking like in the middle or down the sides . . . and you see pieces of rock separating from
one another.” Tr. 92. Banks was asked if he saw a cutter in the affected area. He responded that
he saw a place four feet from the right rib where draw-rock had fallen out of the roof. Tr. 93-94.
He would not call what he saw a cutter. Rather, he saw “cracks and where the draw-rock and
stuff was separating.”13 Tr. 95, see also Tr. 102-103. Banks explained that “Cracks in the mine
roof will cause the draw-rock to break apart from itself and scale out and try to fall.” Tr. 109. He
agreed that on August 27 cracks in the roof caused draw-rock to develop above the entry. Id. In
addition, he noted that when, as at the Van Lear Mine, the mine roof is laminated shale, cracks
are “[r]eal common” and the roof is “just not very stable.” Tr. 110.
VIOLATION
Citation No. 8218342 states in part:
The roof and ribs of areas where persons work
or travel [are] not being supported or otherwise
controlled to protect persons from the hazards
related to [the] fall of the roof or ribs. Approximately
70 [feet] between [the] No. 1 and No. 2 entry at the
mouth of Room-1 off the 1st Southeast Submains the
room has visible cutters running parallel and across
the entry. The roof in this area has sagged down in
the center and loose draw-rock measuring
approximately two to 8 inches thick. [(sic)] This condition
exposes the mine examiner who travels this area once
per week to crushing hazards associated with the fall
of the roof and ribs. The areas has been cribbed and
cable bolts [have been] installed in the past.
Gov’t Ex. 1.
Section 75.202(a) pertains to specified components of a mine’s underground workings.
To prove a violation the Secretary must establish a number of things. First, she must show that
the challenged citation relates to an area specified in the standard, in this case, to the mine’s roof.
Here the witnesses consistently testified that the area cited encompassed approximately 70 feet of
roof between two crosscuts, and I so find. Tr. 37, 99.
The standard also contains a specific location requirement. It is only applicable to “areas
where persons work or travel.” 30 C.F.R. § 75.202(a). The inspector understood that Banks, as
Excel’s mine examiner, traveled under all 70 feet of the cited area one time a week when he
conducted his examination, and Banks agreed. Tr. 48-49, 99. Therefore, the Secretary
established the location requirement of the standard.
Finally, the standard contains a protective component. It requires that the roof “be
supported or otherwise controlled” to protect miners from hazards as they work or travel beneath
it. The requirement is generally worded so as to be adaptable to mining’s myriad roof conditions.
Liability is determined by deciding whether a “reasonably prudent person familiar with the
13

It is clear from the testimony that although Meddings and Banks saw the same physical
deformity in the roof, they referred to it differently. Meddings called the crack in the roof a
“cutter.” Tr. 38. Meddings though the same feature was a crack where draw-rock had fallen
causing a separation in the roof. Tr. 103-104.
33 FMSHRC 1426

mining industry and the protective purposes of the standard, would recognize the hazardous
condition the standard seeks to prevent and would properly support or otherwise control the roof.
Cannon Coal Company, 9 FMSHRC 677, 668 (April 1987). I conclude the company did not
meet this requirement. While Meddings and Banks disagreed as to whether or not a “cutter”
existed in the roof, their disagreement was one of semantics rather than substance. Tr. 32, 103.
The testimony of both established that in the cited entry, draw-rock had loosened and fallen. On
August 27 some of the draw-rock was on the floor and more was hanging in the roof.
Tr. 40, 42-43. In addition, both Meddings and Bank agreed that along a crack in the roof, fallen
draw-rock left the roof at different levels, one level being two to eight inches below the other
(Gov’t Exh. 2 at 10, Tr. 36, 103) and that there were physical indications – dog-eared roof bolt
plates and squeezed crib wedges – which signaled that the roof was continuing to take weight.
Tr. 39, 41, 67, 102; Gov’t Exh. 2 at 9. Further, Banks testified cracks would cause draw-rock to
scale and fall and that there were cracks in the roof. Tr. 109. Banks added that the kind of roof
that existed at the mine was “just not very stable.” Tr. 110. The fallen draw-rock and the
indications of weight on the roof meant that the roof was subject to ongoing stresses and
confirmed the instability to which Banks referred.
I accept Meddings common sense testimony that hanging draw-rock posed a hazard to
Banks when he traveled under it. Tr. 39. Meddings’s estimate that the pieces of draw-rock
weighed between five and 500 pounds was not disputed by Banks. Tr. 38. Meddings’s fears that
vibrations from Bank’s passing buggy could cause draw-rock to fall (Tr. 50) or items protruding
from the buggy could strike the roof and bring down draw-rock (Tr. 51) were unsupported, and I
give them no credence. However, I find the presence of fallen draw-rock on the floor of the entry
establishes that the force of gravity and the stresses on the roof made it likely draw-rock would
fall at any time, including the 30 seconds to one minute that Banks spent beneath the roof on a
weekly basis. Tr. 80-81. In addition, the fact that it was the “sweat season” increased to some
extent the likelihood that pieces of draw-rock would fall even in an entry ventilated by return air.
Tr. 91-92. Although, as Meddings agreed, a great majority of draw-rock caused injuries did not
result in lost workdays or restricted duty (Tr. 70-71), with draw-rock weighing up to 500 pounds
in the roof (Tr. 38), I conclude that a hazard existed that was capable of causing grave injury to
Banks. For these reasons I find that the condition of the roof in the cited area posed a roof fall
hazard to Banks, a hazard a reasonably prudent operator would have noted and eliminated, and I
conclude the violation existed as charged.14
S&S AND GRAVITY
An S&S violation is a violation “of such nature as could significantly and substantially
contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d). A
violation is properly designated S&S, “if, based upon the particular facts surrounding the
violation, there exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC
822, 825 (Apr. 1981). As is well recognized, in order to establish the S&S nature of a violation,
the Secretary must prove: (1) the underlying violation; (2) a discrete safety hazard – that is, a
measure of danger to safety – contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury will
be of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC 3-4 (Jan. 1984); accord Buck
Creek Coal Co., Inc. 52 F. 3rd 133, 135 (7th Cir. 1995); Austin Power Co., Inc. v, Sec’y of Labor,
861 F. 2d 99,103 (5th Cir. 1988) (approving Mathies criteria).

14

Meddings persuasively testified that the danger could have been obviated either by
placing steel netting or steel bars across the roof or by closing the entry and rerouting the
examiner’s path. Tr. 45-47. As noted, the company chose the latter course to abate the violation.
33 FMSHRC 1427

It is the third element of the S&S criteria that is the source of most controversies
regarding S&S findings. The element is established only if the Secretary proves “a reasonable
likelihood the hazard contributed to an event in which there is an injury.” U.S. Steel Mining Co.,
Inc., 7 FMSHRC 1125, 1129 (Aug. 1985). An S&S determination must be based on the
particular facts surrounding the violation and must be made in the context of continued normal
mining operations. Texasgulf, Inc., 10 FMSHRC 1125 (Aug. 1985); U.S. Steel, 7 FMSHRC at
1130.
Further, the S&S nature of a violation and the gravity of a violation are not synonymous.
The Commission has pointed out that the “focus of the seriousness of the violation is not
necessarily on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry,
but rather on the effect of the hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC 1541,
1550 (Sept. 1996).
The Secretary established the first of the S&S criteria. There was a violation of section
75.202(a). The violation created a discrete safety hazard in that it subjected Banks to the
possibility of being hit by falling draw-rock as he traveled under the cited roof during the course
of his weekly examination. I find as well that in the context of continued normal mining it was
reasonably likely Banks would be hit and injured by falling rock. The draw-rock on the floor of
the entry and the signs of stress on the roof bolt plates and crib wedges (Tr. 39, 41, 67, 102)
evidenced that the roof in the entry was under stress and that forces were at work causing drawrock to loosen and fall. Further, the “sweat season” meant that condensation made falling drawrock at least somewhat more likely as mining continued.15 There was no indication that Excel
planned to support the roof with steel mesh or beams, close the entry, or take other remedial
measures. This means that in the context of continued mining Banks would have traveled once a
week under a portion of the roof where forces were at work causing draw-rock to fall, and I
conclude it was reasonable likely that as mining continued Banks would have been hit. Excel did
not challenge Meddings’s testimony that the draw-rock weighed between five and 500 pounds
(Tr. 73). Although Meddings agreed that a large majority of draw-rock falls did not cause lost
workdays or restricted duty, there obviously were pieces of draw-rock in the roof, which if they
fell and struck Banks, would have caused him to suffered broken bones and/or contusions or
worse. I therefore find that it was reasonably likely an injury caused by the violation would have
been of a reasonably serious nature. The violation was S&S.
The violation also was serious. As noted, if an injury occurred broken bones and/or cuts
or even a fatality were not out of the question.
NEGLIGENCE
Negligence is the failure to exercise the care required by the circumstances. Meddings
found that Excel, through Banks, was moderately negligent, and I agree. Gov’t Ex. 1. The
violation was visually obvious. Banks traveled under the cited roof on a weekly basis. The
conditions deteriorated over time. By August 27 they reached the point where draw-rock on the
floor, dog-eared roof bolt plates, pinched crib wedges and the uneven roof indicated the
inadequacy of roof support measures.
Banks first examined the entry in December 2007. Tr. 87-88. Banks estimated he made
30 trips though the area between his first examination and August 27, 2008. Tr. 80. He testified
that true to his once-a-week schedule, he traveled through the entry on August 20. Tr. 108.
Banks maintained that in general the roof conditions on August 20 were the same as on August
27 and that except for some fallen draw-rock the conditions were as they always had been. Tr.
15

I take judicial notice of the fact that summer temperatures are likely to continue well
into September in eastern Kentucky.
33 FMSHRC 1428

89. However, I infer from the testimony that the fallen draw-rock indicated changes in the roof
were ongoing and that its condition was in fact deteriorating. The dog-eared plates, squeezed
wedges and uneven level of the roof were signs that Banks should have heeded. It may be as
Medding speculated that Banks became used to the roof’s condition and failed to appreciate the
hazard it posed. Tr. 69. Or, it may be that he misjudged the roof’s condition because he honestly
believed it did not pose a hazard. In either event, Banks was wrong and his failure to exercise the
care that was required establishes the company’s negligence. Since there is no suggestion that
Banks purposefully looked the other way or that he was highly indifferent to his own safety, I
agree with Meddings that the company’s negligence was moderate.
HISTORY OF PREVIOUS VIOLATIONS
The Van Lear Mine’s history of previous violations is reflected in a computer printout
that shows in the two years prior to August 27, 2008 the company paid civil penalties for 408
violations. Gov’t Ex. 3 at 37-46. Of the paid violations, 23 were violations of section 75.202(a).
This is a large history of prior violations.
SIZE AND ABILITY TO CONTINUE IN BUSINESS
The parties agreed that Excel is a large operator and that the proposed penalties will not
adversely affect the company’s business. Stips. 4, 8 infra.
GOOD FAITH ABATEMENT
Within a few minutes after he was notified of the violation of section 75.202(a), Banks
dangered off the area with tape. Tr. 96. That evening or the following morning, Banks returned
and set timbers to block both ends of the entry to travel. Id. He spray painted a danger sign to
warn unsuspecting miners about the area. Id. Closure of the area to travel meant that Banks had
to take a new and different route, one under a safe roof, when conducting future examinations.
Tr. 96-97. Banks’s timely and effective efforts constituted good faith abatement of the violation.
See Gov’t Ex. 1 at 2.
CIVIL PENALTY ASSESSMENT
CITATION NO.
8218342

DATE
8/27/08

30 C.F.R. §
75.202(a)

PROPOSED ASSESSMENT
$687.00

I have found that the violation existed, that it was serious and that the negligence of the
company was moderate. Given these findings and the other civil penalty criteria, I assess the
Secretary’s proposed penalty of $687.00.
ORDER
Within 40 days of the date of this decision, Excel should pay a civil penalty of $687.00.
Payment should be sent to the: Mine Safety and Health Administration, U.S. Department of
Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. The payment should
reference Docket No. KENT 2009-200 and A.C. No. 15-18839-164793.
This case IS DISMISSED.
/s/ David F. Barbour
David F. Barbour
Administrative Law Judge
33 FMSHRC 1429

Distribution: (Certified Mail)
Matthew S. Shepherd, Esq., Christian Barber, Esq., Office of the Solicitor, U.S. Department of
Labor, 618 Church Street, Suite 230, Nashville, TN 37219-2456
Gary D. McCollum, Esq., Corporate Counsel, Excel Mining, LLC, 771 Corporate Drive, Suite
500, Lexington, KY 40503

33 FMSHRC 1430

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

June 8, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner
v.
JOHNCO MATERIALS, INC.,
Respondent

:
:
:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDING
Docket No. SE 2009-994-M
A.C. No. 01-03331-000195920

Mine: JohnCo Materials #1

DECISION
Appearances: Sophia Haynes, Esq., Office of the Solicitor, U.S. Department of Labor, Atlanta,
Georgia, on behalf of the Petitioner;
Clatus Junkins, Esq., JohnCo Materials, Inc., Fayette, Alabama, on behalf of the
Respondent.
Before:

Judge Melick

This case is before me upon a petition for civil penalty filed by the Secretary of Labor
pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq. (“the Act”), charging JohnCo Materials, Inc. (“JohnCo”) with three violations of mandatory
standards and seeking civil penalties of $9,527.00 for those violations. At hearing on May 4,
2011 JohnCo admitted the violations and the findings relating thereto and challenged only the
amount of civil penalties proposed by the Secretary. In this regard Respondent maintains that the
penalties proposed by the Secretary would affect its ability to remain in business.
Citation Number 6515787
This citation alleges a “significant and substantial” violation of the standard at 30 C.F.R.
§ 56.14100(b) and charges as follows:
The oxygen/acetylene torch on the service truck had a defect
affecting safety (a broken gauge on the acetylene bottle regulator,
and another one on the oxygen bottle regulator). The lens was
missing on each. The faces of both gauges showed some corrosion,
and the needle and the outside case were bent on the one on the
oxygen. Dust, dirt, moisture or impact would contribute to these
gauges giving inaccurate readings once the protective lens is gone.
The torch is used as needed around the mine, and was up on the
crusher platform and had been used by the welder just prior to the
inspection. Should a welder use improper pressure, accidents
resulting in burns would likely result.
The cited standard provides that “[d]efects on any equipment, machinery, and tools that
affect safety shall be corrected in a timely manner to prevent the creation of a hazard to persons.”
33 FMSHRC 1431

Issuing Inspector White described the hazard as burns to a miner resulting from
inaccurate pressure readings on the oxygen and acetylene bottles and resulting in a hose burst or a
torch flare (Ex. G-5). Respondent also admits that the violation was properly characterized as
“significant and substantial1.” The violation was therefore of high gravity.
Respondent does not dispute the inspector’s findings of high negligence. Inspector White
noted that the mine’s general manager, Matt Junkin, admitted that he had not been “properly
checking the pre-op exams” and had not done one that day. The evidence clearly supports the
admitted findings of high negligence (Ex. G-5).
Citation Number 6515788
This citation alleges a “significant and substantial” violation of the standard at 30 C.F.R.
§ 56.14100(a) and charges as follows:
The service truck was not inspected by the operator prior to being
put in to service. The welder had driven the truck and was using
the torch and welder on it without inspecting any of the equipment
for safety problems. The torch had a defect affecting safety, which
the welder should have seen and reported. Should serious defect
[sic] go undetected, fatal accidents would be reasonably likely.
The cited standard, 30 C.F.R. § 56.14100(a), provides that “[s]elf propelled mobile
equipment to be used during a shift shall be inspected by the equipment operator before being
placed in operation on that shift.”
Inspector White characterized this violation as “significant and substantial.” Respondent
admits this finding. White noted that the failure to conduct a pre-op examination would likely
result in fatal accidents (Ex. G-6). The violation was therefore of high gravity. Furthermore,
Respondent does not dispute the inspector’s findings of high negligence. General Manager Matt
Junkin admitted that he had not been properly checking the pre-op exams and had not performed
one that day (Ex. G-6). The evidence clearly supports the admitted findings of high negligence.
Citation Number 6515791
This citation also alleges a violation of the standard at 30 C.F.R. § 56.14100(b) and
charges as follows:
1

In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Commission explained its
interpretation of the term “significant and substantial” as follows:
In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum the Secretary of Labor
must prove: (1) the underlying violation of a mandatory safety standard;
(2) a discrete safety hazard -- that is, a measure of danger to safety -
contributed to by the violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a reasonable likelihood that
the injury in question will be of a reasonably serious nature.
33 FMSHRC 1432

The back-up alarm installed on the Cat D6H dozer failed to work
when tested. The dozer is used about once per month, usually
around the pit area, exposing miners to being struck. Should a
miner be struck by the dozer, fatal crushing injuries would likely
occur.
Inspector White found this violation “unlikely” to cause injuries because there was “good
vision to the rear” of the cited bulldozer and “very little foot traffic” in the area (Ex. G-7). Under
the circumstances, gravity would properly be characterized as low.
White found Respondent’s negligence to be “moderate” based on the statement of the
general manager “that he was not aware of the condition” (Ex. G-7). In light of the additional
evidence that the general manager had not been checking the pre-op examinations, I accept the
admission as to that level of negligence.
Civil Penalties
Under Section 110(i) of the Act, the Commission and its judges must consider the
following factors in assessing a civil penalty: the history of violations, the negligence of the
operator in committing the violation, the size of the operator, the gravity of the violation, whether
the violation was abated in good faith and whether the penalties would affect the operators ability
to continue in business.
The Secretary’s undisputed representations in her petition established that Respondent is
small in size and has a moderate history of violations. There is no dispute that the violations
herein were abated in good faith. The gravity and negligence of the violations have been admitted
by Respondent and have previously been discussed.
As noted, the Respondent claims only that the civil penalties proposed by the Secretary
would affect its ability to remain in business. This Commission has held that the mine operator
has the burden of proving such a claim. Sellersburg Stone Co., 5 FMSHRC 287, 294 (Mar.
1985). To provide the most credible form of financial data, Respondent was afforded the
opportunity to produce, post-hearing, an audited financial statement which Respondent agreed to
provide. However, Respondent subsequently provided only an unaudited statement from certified
public accountants McCabe and Associates dated May 11, 2011. That financial statement has,
nevertheless, been marked and admitted as Respondent’s Exhibit No. 16.
A second document, purportedly a judgement against the individual, Clatus Junkin, is
marked for identification and admitted as evidence as Respondent’s Exhibit No.17. I find
however that since this judgement is against Mr. Junkin personally, it is not relevant to the
corporate entity, JohnCo Materials, Inc. The unaudited statement labeled “Accountant’s
Compilation Report” provides as follows:
We have compiled the accompanying balance sheet of Johnco
Materials, Inc., (an S corporation) as of March 31, 2011 and the
related statement of income and retained earnings for the three
month period then ended in accordance with Statements on
Standards for Accounting and Review Services issued by the
American Institute of Certified Public Accountants.
A compilation is limited to presenting in the form of financial
statements information that is the representation of management.
We have not audited or reviewed the accompanying financial
33 FMSHRC 1433

statements and accordingly, do not express an opinion or any other
form of assurance of them.
Management has elected to omit substantially all of the disclosures
and the statement of cash flows required by generally accepted
accounting principles. If the omitted disclosures and statement of
cash flows were included in the financial statements, they might
influence the user’s conclusion about the Company’s financial
position, results from operations and cash flows. Accordingly,
these financial statements are not designed for those who are not
informed of such matters.
Johnco Materials, Inc., with the consent of its shareholders, has
elected under the Internal Revenue Code to be an S Corporation. In
lieu of corporate income taxes, the shareholder(s) of an S
corporation are taxed on their proportionate share of the
Company’s taxable income. Therefore, no provision or liability for
federal income taxes has been included in these financial
statements.
(Ex. R-16)
Clearly, with the significant limitations noted in the accountant’s report, I find that
Respondent has failed to sustain its burden of proving that the penalties of $9,527.00 would
affect its ability to remain in business.

ORDER
Citations Number 6515787, 6515788 and 6515791 are affirmed and JohnCo Materials,
Inc., is directed to pay civil penalties of $9,527.00 within 40 days of the date of this decision.

/s/ Gary Melick
Gary Melick
Administrative Law Judge
202-434-9977
Distribution:
Sophia E. Haynes, Esq., Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street,
S.W. Room 7T10, Atlanta, GA 30303
Clatus Junkin, Esq., Junkin, Pearson, Harrison, Junkin & Pate, LLC, Suite 600, Alston Place, 601
Greensboro Avenue, Tuscaloosa, AL 35401
Clatus Junkin, Esq., 202 3rd St. NE, P.O. Box 730, Fayette, AL 35555
/to
33 FMSHRC 1434

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19th Street, Suite 443
Denver, CO 80202-2500
303-844-3577/FAX 303-844-5268

June 9, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

D. HOLCOMB & CO., and its successors,
Respondent

:
:
:
:
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CIVIL PENALTY PROCEEDINGS
Docket No. WEST 2008-1113-M
A.C. No. 45-03570-149664-01
Docket No. WEST 2008-1114-M
A.C. No. 45-03570-149664-02
Docket No. WEST 2008-1196-M
A.C. No. 45-03570-153016
Black Diamond Quarry

DECISION
Appearances:

Matthew Vadnal, Esq., Office of the Solicitor, U.S. Department of Labor,
Seattle, Washington, for Petitioner;
Merrily Munther, Esq., Munther Goodrum, Chartered, Boise, Idaho, for
Respondent

Before:

Judge Manning

These cases are before me on petitions for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”),
against D. Holcomb & Company (“Holcomb & Company”) pursuant to sections 105 and 110 of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”).
The parties introduced testimony and documentary evidence at a hearing held in Seattle,
Washington, and filed post-hearing briefs. MSHA Inspector Ron Eastwood testified for the
Secretary and Dennis Holcomb testified for Holcomb & Company.
Holcomb & Company operates a small sand and gravel quarry in Clallam County,
Washington. This facility employed four people at the time of the MSHA inspection including
the owner, Dennis Holcomb, and his son, Tim. These cases involve 17 citations issued under
section 104(a) of the Mine Act. The Secretary proposes a total civil penalty of $65,039.00 in
these cases.
I. DISCUSSION WITH FINDINGS OF FACT
CONCLUSIONS OF LAW
A. Citation No. 6433221
On March 27, 2008, MSHA Inspector Ron Eastwood issued Citation No. 6433221 under
section 104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.15005 as follows:
An employee was standing on the edge of the elevated Pioneer
screen working on the screen without being tied off. Two
employees were changing the screens with one inside the screen
and the other standing on the edge which was approx. 10 inches
wide and 6 ft. in length. The ledge was approx. 10 ft. above
ground level.
33 FMSHRC 1435

(Ex. G-1). The inspector determined that an injury was reasonably likely and if an injury did
occur it could be fatal. He determined that the violation was of a significant and substantial
nature (“S&S”) and that Respondent’s negligence was high. Section 56.15005 provides, in part,
that “[s]afety belts and lines shall be worn when persons work where there is a danger of falling.”
The Secretary proposes a penalty of $6,458 for this citation.
Inspector Eastwood testified that when he arrived at the quarry, he observed Jim Crist, an
hourly employee, standing on a beam of the screen crusher that was about 10 feet above the
ground. Crist was helping change the screen on the crusher and the beam he was standing on
was 10 inches wide and six feet long. (Tr. 17). Crist was not wearing any fall protection and,
given the nature of the work he was performing, a fall was reasonably likely. The inspector
testified that when he asked Crist, he was told that he had not been trained concerning the need to
tie off. (Tr. 20). When Crist went to get a harness from his own service truck, the inspector saw
that it was brand new and was still in the original packaging. The Secretary argues that the
citation should be affirmed as written. Inspector Eastwood determined the Holcomb &
Company’s negligence was high because the miner had not been trained to tie off and the harness
that he retrieved was still in the original packaging.
Holcomb & Company does not dispute that Crist should have been tied off when
changing the screen. Inspector Eastwood testified that he was told by Tim Holcomb that the
employee was new and he had been told to tie off. (Tr. 20). Respondent submits that the citation
should not have been designated as S&S, and that if an injury did occur, it would have at most
resulted in lost workdays or restricted duty. In addition, it argues that its negligence was low.
When Crist was hired, he told Dennis Holcomb that he was familiar with and had used fall
protection during previous employment. (Tr. 150). Fall protection was available to its
employees and four hours of training had been provided to employees. Id. Tim Holcomb, his
supervisor, was operating the excavator at the time and he did not know that Crist was changing
a screen without using fall protection. Id. Respondent maintains that the violation was the result
of employee misconduct.
I find that the Secretary established an S&S violation of the safety standard. It is
undisputed that Mr. Crist was helping to change a screen without using a safety belt and line. He
was standing on the edge of the Pioneer screen at the time and was about ten feet off the ground.
A violation is properly designated S&S “if, based on the particular facts surrounding the
violation, there exists a reasonable likelihood that the hazard contributed to by the violation will
result in an injury or illness of a reasonably serious nature.” Cement Division, National Gypsum,
3 FMSHRC 822, 825 (Apr. 1981). The Commission has set forth the elements that the Secretary
must establish. Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984). The elements are:
(1) [T]he underlying violation of a mandatory safety standard; (2) a
discrete safety hazard—that is, a measure of danger to
safety—contributed to by the violation; (3) a reasonable likelihood
that the hazard contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will be of a
reasonably serious nature.
Id. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission
provided additional guidance:
We have explained further that the third element of the Mathies
formula “requires that the Secretary establish a reasonable
likelihood that the hazard contributed to will result in an event in
which there is an injury.” U.S. Steel Mining Co., Inc., 6 FMSHRC
1834, 1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d)(1), it is the
contribution of a violation to the cause and effect of a hazard that
33 FMSHRC 1436

must be significant and substantial. U.S. Steel Mining Co., Inc., 6
FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., Inc.,
6 FMSHRC 1573, 1574-75 (July 1984).
This evaluation is made in terms of “continued normal mining operations.” U.S. Steel, 6
FMSHRC at 1574. The question of whether a particular violation is S&S must be based on the
particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
The Secretary established all four elements of the S&S test. There was a violation of a
mandatory standard that created a discrete safety hazard. I find that the Secretary established that
it was reasonably likely that the hazard contributed to would have resulted in an injury.
Maneuvering a screen while standing on the edge of the equipment makes it reasonably likely
that the employee will fall. A fall of ten feet will likely result in a serious injury including lost
workdays, permanently disabling injuries, or a fatality.
The evidence as to Holcomb & Company’s negligence is conflicting. The inspector
testified that Mr. Crist told him that he had not been trained to tie off. Mr. Holcomb testified that
Crist told him that he had used fall protection in his previous job. (Tr. 150). He also testified
that Respondent’s employees were trained to use safety belts and lines. Id. Respondent argues
that this evidence plus the fact that Crist’s immediate supervisor could not see him when he was
changing the screen should be credited and that the degree of negligence attributed to Respondent
should be reduced.
The negligence of a rank-and-file miner is not imputable to an operator for the purposes
of assessing a penalty. Whayne Supply Co., 19 FMSHRC 447, 451, 453 (Mar. 1997); Fort Scott
Fertilizer-Cullor, Inc., 17 FMSHRC 1112, 1116 (July 1995); Southern Ohio Coal Co., 4
FMSHRC 1459, 1463-64 (Aug. 1982). The Secretary argues that Tim Holcomb was on the
property that day but he did not direct Crist to tie off. (Sec. Br. 6). I find that the Secretary
established that the violation was the result of the operator’s high negligence. When the
inspector advised Crist that he had to wear fall protection, he went to his own truck to get a
harness rather than to the trailer or the shop were Respondent’s harnesses were kept. (Tr. 151
52). I find that Crist was not told to use fall protection and that Dennis Holcomb relied on the
fact that Crist had previous work experience in construction. Crist was not adequately trained or
supervised for the task to which he was assigned. It is worth noting that fall protection is not
necessary at any other location at this quarry. The operator’s negligence was high and a penalty
of $600 is appropriate.
B. Citation No. 6433222
On March 27, 2008, MSHA Inspector Eastwood issued Citation No. 6433222 under
section 104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.11004 as follows:
The portable aluminum ladder the employees were using to access
the Pioneer screen was not secured at the top of the ladder. The
employees were changing the screens on the elevated screen deck.
The ladder was an extension ladder which was not extended and
was approx. 10 ft. in length for this application.
(Ex. G-2). The inspector determined that an injury was unlikely but that if an injury did occur it
could be fatal. He determined that the violation was not S&S and that Respondent’s negligence
was moderate. Section 56.11004 provides, in part, that “[p]ortable rigid ladders shall be
provided with suitable bases and placed securely when used.” The Secretary proposes a penalty
of $392 for this citation.
33 FMSHRC 1437

Inspector Eastwood testified that he issued this citation when he saw that the ladder
employees used to change out the screen was not secured at the top. (Tr. 22-23). The ladder was
a 10-foot portable extension ladder made of aluminum. Eastwood testified that an injury was
unlikely because the base of the ladder was on firm ground and the ladder was at a good angle. If
an injury did occur it could be fatal. (Tr. 24). The inspector stated that the operator could have
complied with the standard by securing the ladder at the top or having someone hold the ladder
from the bottom. (Tr. 26-27).
The operator argues that a violation was not established because the cited ladder was
provided with a suitable base and was placed securely when used. There is nothing in the safety
standard that requires that ladders be secured at the top. The Secretary argues that, because the
ladder was not secured at the top, it was not secured in a manner that complied with the safety
standard.
This citation is vacated because the safety standard only requires that portable ladders be
placed securely when used. The fact that the ladder was not secured at the top does not establish
that it was not placed securely when used. See Higman Sand & Gravel Inc., 24 FMSHRC 87,
103 (Jan. 2002) (Judge Manning). The photograph shows that the top of the ladder straddled a
beam, which would prevent it from moving to the side. (Ex. G-2, p. 3). The inspector merely
speculated that someone could fall backwards off the ladder because it was not secured at the top.
The inspector agreed that the ladder was at a proper angle and that it did have a suitable base.
C. Citation No. 6433223
On March 27, 2008, MSHA Inspector Eastwood issued Citation No. 6433223 under
section 104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.14107(a), as follows:
The drive line on the 1 1/4 inch chip conveyor belt extended out
approximately 6 inches and was not guarded. The diameter of the
drive shaft was approx. 2 inches. The drive line was approx. 3 ft.
up from ground level next to a walkway. The shaft had a slot in it
for a shear pin.
(Ex. G-3). The inspector determined that an injury was reasonably likely and that if an injury did
occur it could result in lost workdays or restricted duty. He determined that the violation was
S&S and that Respondent’s negligence was moderate. Section 56.14107(a) provides that
“[m]oving machine parts shall be guarded to protect persons from contacting gears, sprockets,
chains, drive, head, tail and takeup pulleys, flywheels, couplings, shafts, fan blades, and similar
moving parties that can cause injury.” The Secretary proposes a penalty of $4,329 for this
citation.
Inspector Eastwood testified that he issued this citation because the drive line protruded
about 6 inches beyond the guard on the tail pulley on the chip conveyor. (Tr. 28). The drive line
was about three feet above the ground and it had a keyway in it, enhancing the danger to
employees. The shaft was next to a walkway that is used when maintenance is performed and
when the area is examined. (Tr. 30). The inspector determined that an injury was reasonably
likely because a person walking or working in the area could be come entangled in the fast
moving drive line and could be permanently disabled as a result. He believed that the violation
was S&S because the cited condition had existed for a long time. (Tr. 31). Inspector Eastwood
evaluated the negligence as moderate because the drive line had been previously guarded. He
determined that the shaft had previously been guarded because the condition was immediately
terminated when the operator covered the shaft with a previously-manufactured guard. (Tr. 32).
Holcomb & Company argues that the quarry was not operating at the time the citation
was issued. More importantly, it argues that its employees were not exposed to the hazard
33 FMSHRC 1438

because of the location of the shaft. A large concrete block was immediately adjacent to the cited
shaft which would prevent anyone from accidently coming into contact with it. (Tr. 159; Ex. G-3
p. 5). This screen sits on this block. MSHA’s Guide to Equipment Guarding recognizes that not
all shafts and shaft ends require guarding:
Shafts and shaft ends need guarding if they present a hazard.
Rotation speed, size, location, keyways, burrs and other factors
need to be considered when determining which shafts need
guarding. Not all shaft ends require guarding. . . .
(Ex. G-23, p. 17).
Third, it argues that this condition has existed since 2005, including during a previous
inspection by Inspector Eastwood. (Tr. 157). As a consequence, Holcomb & Company was not
provided with fair notice of the requirements of the safety standard at this location.
I address the notice issue first. The Secretary’s safety standards must “give a person of
ordinary intelligence a reasonable opportunity to know what is [required or] prohibited, so he
may act accordingly.” Lanham Coal Co., 13 FMSHRC 1341, 1343 (Sept. 1991).
When faced with a challenge that a safety standard failed to
provide adequate notice of prohibited or required conduct, the
Commission has applied an objective standard, i.e., the reasonably
prudent person test. The Commission recently summarized this
test as “whether a reasonably prudent person familiar with the
mining industry and the protective purposes of the standard would
have recognized the specific prohibition or requirements of the
standard.
Id. (citations omitted).
In Alan Lee Good d/b/a/ Good Construction, 23 FMSHRC 995 (Sept. 2001), the
Commission grappled with the notice issue. Although the Commission split on the application
of the facts of that case to the law, the legal principles set forth are basically the same in both
opinions.
In applying the reasonably prudent person standard to a
notice question, the Commission has taken into account a wide
variety of factors, including the text of a regulation, its placement
in the overall enforcement scheme, its regulatory history, the
consistency of the agency’s enforcement, and whether MSHA has
published notices informing the regulated community with
“ascertainable certainty” of its interpretation of the standard in
question. Also relevant is the testimony of the inspector and the
operator’s employees as to whether certain practices affected
safety. Finally we look to accepted safety standards in the field,
considerations unique to the mining industry and the circumstances
at the operator’s mine.
23 FMSHRC 1005 (citations and footnotes omitted). The regulatory history of section
56.14107(a) makes clear that the Secretary provided notice to the mining community that she
interprets the safety standard very broadly to protect persons from coming into contact with
moving machine parts and that the standard covers inadvertent, careless or accidental contact.
See Higman Sand & Gravel Inc., 24 FMSHRC 92-93.
33 FMSHRC 1439

In this case, the operator is arguing that fair notice was not provided because the shaft had
never been cited by MSHA despite the fact that the quarry had been inspected several times by
MSHA with the shaft in the same condition and in the same location in relation to other
equipment since 2005. Mr. Holcomb testified that the shaft had never been guarded and that it
simply used a part of a conveyor roller to quickly abate the condition. (Tr. 158, 163-64). After
the citation was terminated, Respondent cut the shaft off so that it was no longer protruding past
the existing wire mesh. Id. The Respondent also argues that MSHA’s guarding guide makes
clear that not all shaft ends require guarding. Taking into consideration the location of the shaft,
which was protected by the large concrete block, and the fact that it had never been cited,
Respondent did not believe that the shaft required guarding.
I find that Respondent was provided with fair notice of the requirements of the standard.
The shaft presented a hazard of accidental contact, especially since it contained a keyway. The
guarding standard is designed to protect against the possibility of contact and injury, including
contact stemming from inadvertent stumbling or falling, momentary inattention, or ordinary
human carelessness. Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097 (Sept, 1984). Although
it appears that the condition had not been previously cited by MSHA during inspections between
2005 and 2008, the condition was not particularly obvious because of its location and may have
simply been missed.1 The fact that the quarry was not producing aggregate or operating its
equipment at the time of the inspection is irrelevant. I find that the violation was neither serious
nor S&S because contact with the shaft was not very likely. Respondent’s negligence was low
because it reasonably believed that a guard was not required at that location. A penalty of $100
is appropriate.
D. Citation No. 6433224
On March 27, 2008, MSHA Inspector Eastwood issued Citation No. 6433224 under
section 104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.14107(a), as follows:
The Chicago brand hand-held grinder did not have the safety shield
on the grind[er]. The safety shield had been removed. The
grind[er] had been used to grind off a weld on a pair of vice grips
earlier in the shift. The grinder was laying in the back of a service
truck where it had been left.
(Ex. G-4). The inspector determined that an injury was reasonably likely and that if an injury did
occur it could result in a permanently disabling injury. He determined that the violation was
S&S and that Respondent’s negligence was moderate. The Secretary proposes a penalty of
$4,329 for this citation.
Inspector Eastwood testified that he issued the citation because a grinder located on the
bed of the truck was not equipped with any type of guard. (Tr. 36). The grinder was plugged
into an electrical outlet. Mr. Crist told the inspector that the grinder had been recently used. (Tr.
37). Inspector Eastwood determined that the violation was S&S because it was reasonably likely
that someone would be injured and that the injury would be reasonably serious. Without a guard,
metal slivers or sparks can injure the user’s eyes, face, or arms. (Tr. 34).

1

In Higman Sand & Gravel, on the other hand, the cited condition had existed for over
20 years, the tail pulley was completely guarded except for openings on the sides, and the moving
machine parts were recessed more that eight inches from each side. 24 FMSHRC 91-92. In that
case, I determined that the Secretary failed to give adequate notice to Higman that the guard on
the tail pulley was no longer sufficient to meet the requirements of the safety standard. Id. at 93.
33 FMSHRC 1440

Apparently, Mr. Crist used his own grinder rather than one owned by Holcomb &
Company because the grinding wheel on Respondent’s grinder was worn out. (Tr. 166). Mr.
Holcomb testified that Respondent’s grinder had a guard on it and the employee could have
installed a new grinding wheel. Id. Holcomb & Company argues that it had no way to know that
the hourly employee would use his own unguarded grinder rather a guarded grinder supplied by
Respondent. A mine operator’s supervisor cannot be expected to stand alongside its employees
“to prevent him from making stupid mistakes.” (Resp. Br. 7). There were three other grinders
available at the shop, was well as other grinding wheels. (Tr. 166). In addition, it maintains that
the evidence shows that employee told Mr. Holcomb that he was wearing a face shield while
using the grinder. (Tr. 167).
I find that the Secretary established an S&S violation of the safety standard. I credit
Inspector Eastwood concerning the hazards presented when using a grinder without a guard. I do
not credit the hearsay testimony that the employee was fully protected by a face shield when he
was using the grinder. I also find that Respondent’s negligence was low. The negligence of a
rank-and-file miner is not imputable to an operator for the purposes of assessing a penalty. I
agree with the operator’s argument that it could not have anticipated that an employee would use
his own unguarded grinder rather than a company-issued grinder with a guard on it. A penalty of
$100 is appropriate for this violation.
E. Citation No. 6433226
On March 27, 2008, MSHA Inspector Eastwood issued Citation No. 6433226 under
section 104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.14112(b), as follows:
The back side of the tail pulley guard on the VSI exit conveyor was
not secured. The bolt securing the guard had come loose and did
not keep the guard from pushing outward. The rest of the tail
pulley was guarded. The tail pulley was located on the ground
level and was not located in a highly traveled area. The conveyor
belts was not running when inspected.
(Ex. G-5). The inspector determined that an injury was unlikely but that if an injury did occur it
could be permanently disabling. He determined that the violation was not S&S and that
Respondent’s negligence was moderate. Section 56.14112(b) provides that “[g]uards shall be
securely in place while machinery is being operated, except when testing or making adjustments
which cannot be performed without removal of the guard.” The Secretary proposes a penalty of
$176 for this citation.
Inspector Eastwood determined that the back side of the guard on the cited tail pulley was
not secured, which allowed access to the moving pulley. (Tr. 40-41). Based on the presence of
mud caked on the bolt, the inspector concluded that it had not been tight for a long time. (Tr.
41). He was concerned that someone could lift up the guard and attempt to clean around the area
while the tail pulley was operating. (Tr. 42). He determined that an injury was not reasonably
likely.
Mr. Holcomb testified that someone had pulled the guard up to clean up accumulations
under the tail pulley. (Tr. 171). Whoever did this cleaning failed to completely secure the nut
after he was finished cleaning. The plant was not operating at the time the citation was issued
because it has been down for two weeks for maintenance. Mr. Holcomb testified that a
walkaround inspection would have been conducted before the plant was started again.
Employees do not enter the area when the plant is operating because the loader dumps gravel in
the area and it would be too dangerous to be in that location. (Tr. 172). He believed that the
presence of mud on the bolt did not establish that the condition had existed for a period of time.
33 FMSHRC 1441

The area around the tail pulley was muddy and the employee who cleaned under the tail pulley
could have easily gotten mud on the bolt. (Tr. 174).
The photograph establishes that the tail pulley was provided with a substantial guard and
that the guard was secured in most areas. (Ex. G-5; Ex. R-5). The guard on the back was slightly
loose because it was not bolted down securely. The likelihood that anyone would become
entangled in the tail pulley was remote at best, especially because of its location. (Ex. R-5). In
addition, the plant was not operating and the condition may well have been corrected during the
pre-operational examination. The fact that mud was on the bolt does not establish that the
condition had existed while the plant was operating. The bolt could have become muddy in any
number of ways including while an employee shoveled loose accumulations from under the tail
pulley. I find that there is insufficient evidence to establish that the equipment was operated
while the guard on the back side was not secured bolted down. Such a finding is a prerequisite to
a violation of section 56.14112(b). See Northwest Aggregates, 20 FMSHRC 518, 523 (May
1998) (Judge Manning). Consequently, this citation is vacated.
F. Citation No. 6433227
On March 27, 2008, MSHA Inspector Eastwood issued Citation No. 6433227 under
section 104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.12016, as follows:
The electrically powered Pioneer Screen was not locked/tagged out
before 2 employees changed the screens. The generator was shut
off but no means of locking the power source [was] taken. There
was no tag stating who was working on the piece of equipment or
when they were working on it. There was no place to lock out the
generator.
(Ex. G-6). The inspector determined that an injury was reasonably likely and if an injury did
occur it could be fatal. He determined that the violation was S&S and that Respondent’s
negligence was moderate. Section 56.14107(a) provides, in part, that “[e]lectrically powered
equipment shall be de-energized before mechanical work is done on such equipment. Power
switches shall be locked out or other measures taken which shall prevent the equipment from
being energized without the knowledge of the individuals working on it.” The Secretary
proposes a penalty of $2,106 for this citation.
The inspector determined that the Pioneer Screen was not locked out or tagged out when
two employees were changing the screen. (Tr. 45-46). If someone were to turn on the screening
equipment while the men were changing the screen at the top, the men could be seriously injured
or killed. An injury was reasonably likely and the violation was S&S. The inspector determined
that Respondent’s negligence was moderate because the miners had turned off the generator that
supplies power to the Pioneer Screen prior to working. (Tr. 46-47).
Inspector Eastwood testified that, although Holcomb & Company has a policy that only
the lead mechanic can energize equipment, that policy did not comply with the safety standard
because it requires that it be locked out and tagged out by the miners performing the maintenance
in electrically powered equipment. (Tr. 48). The men changing the screen may not have been
visible to anyone who closed the switch providing power to the screen. (Tr. 50).
Mr. Holcomb testified that the only people authorized to energize electrical equipment
that has been shut down for repair were his son Tim and himself. (Tr. 176-77). Other employees
could de-energize equipment in an emergency but they were trained to never energize equipment
on their own.
33 FMSHRC 1442

I find that the Secretary established a violation. Respondent argues that the safety
standard authorizes an operator to take “other measures to prevent the equipment from being
energized without the knowledge of the individuals working on it.” Although that language is
contained in the safety standard, the measures taken by Holcomb & Company do not fit into the
category of “other measures” as contemplated by the standard. The standard clearly requires that
some sort of mechanical device to prevent equipment from being energized without the
knowledge of the employee work on the equipment. Indeed, the final sentence of the standard
states that “[s]uch locks or preventive devices shall be removed only by the persons who installed
them or by authorized personnel.” (emphasis added). The lockout standard is not satisfied by
having a company policy that only grants certain management employees the authority to
energize machinery and equipment.
I also find that the violation was serious and S&S. Many serious and fatal accidents at
sand and gravel quarries could have been avoided if electrically-powered equipment had been
locked out and tagged out. There is a history of such accidents at quarries for violations of this
safety standard. I credit the Secretary’s evidence on this issue. I find that it was reasonably
likely that the violation would result in an accident of a reasonably serious nature. Respondent’s
negligence was moderate. A penalty of $500 is appropriate.
G. Citation No. 6433228
On March 27, 2008, MSHA Inspector Eastwood issued Citation No. 6433228 under
section 104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.12008, as follows:
Several 480 volt power cables entered the generator trailer through
the door frame. The conductors controlled the various conveyor
belts and equipment used to screen the rock. There were no bare
conductors visible going into the trailer.
(Ex. G-7). The inspector determined that an injury was unlikely but that if an injury did occur it
could be fatal. He determined that the violation was not S&S and that Respondent’s negligence
was moderate. Section 56.12008 provides, in part, that “[p]ower wires and cables shall be
insulated adequately where they pass into or out of electrical compartments. Cable shall enter
metal frames of motors, splice boxes, and electrical components only through proper fittings.
When insulated wires, other than cables, pass through metal frames, the holes shall be
substantially bushed with insulated bushings” The Secretary proposes a penalty of $392 for this
citation.
The electrical cables at issue entered the open door to the trailer that contained the
quarry’s power center. (Tr. 52; Ex. G-7). These cables carry 480 volts from the generator in the
trailer to electrically-powered equipment at the quarry. The inspector believed that, because the
power cables were unprotected where they entered the trailer, they could be cut at that location.
(Tr. 53). Vibration in the trailer could also damage the cables where they enter the trailer. (Tr.
58). He determined that it was unlikely that anyone would be injured because the door to the
trailer was tied open so it could not close on the cables. (Tr. 54-55). The cables were
substantially bushed where they entered the control box inside the trailer. (Tr. 56).
I find that the Secretary did not establish a violation of the cited standard. Because cables
are involved in this instance, such cables “must enter the metal frames of motors, splice boxes,
and electrical components only through proper fittings.” 30 C.F.R. § 56.12008. The cables were
supplied with proper bushings and/or fittings where they entered the control box inside the
trailer. The safety standard does not apply to the area where the cables passed through the
doorway of the trailer. This location was not a metal frame of a motor, splice box, or any type of
electrical component or equipment. It was simply an open doorway at the back of a trailer. The
doorway for the trailer had a metal frame, but this frame was not part of the electrical system or
33 FMSHRC 1443

an electrical component. The inspector’s interpretation of the safety standard to require bushings
or other protection whenever cables “go through metal” is incorrect. In any event, the cables did
not “go through metal” at this location. The cables were substantially protected with an outer
jacket and insulating material around the conductors inside. The door to the trailer could not be
closed because there was a metal landing at the doorway that would prevent the door from
closing. (Tr. 180). There was no evidence that the cables were damaged or that vibrations were
causing any wear on the cables. This citation is therefore vacated.
H. Citation No. 6433229
On March 27, 2008, MSHA Inspector Eastwood issued Citation No. 6433229 under
section 104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.11002, as follows:
The stairway accessing the generator trailer did not have handrails
on the stairways. The landing at the top of the stairway had a
handrail. The stairway elevates approx. from 0 ft. to approx. 5 ft.
The stairs are used daily to access the generator that provides
power to various equipment.
(Ex. G-8). The inspector determined that an injury was unlikely but that if an injury did occur it
could result in lost workdays or restricted duty. He determined that the violation was not S&S
and that Respondent’s negligence was low. Section 56.11002 provides, in part, that
“[c]rossovers, elevated walkways, elevated ramps, and stairways shall be of substantial
construction provided with handrails, and maintained in good condition.” The Secretary
proposes a penalty of $100 for this citation.
Inspector Eastwood testified that the cited stairways provided access to a landing for the
generator trailer from each side. (Tr. 60). The elevated landing between the two stairways was
equipped with a handrail. There were two steps on each stairway that were made of expanded
metal inside a metal frame. (Ex. G-8). The stairways were of substantial construction. There
was no handrail for these two stairways. The landing was about five feet off the ground and it
was accessed at least twice a day. (Tr. 61-62). Inspector Eastwood was concerned that someone
using the stairs could slip and fall. If someone were to fall away from the trailer while on the
stairs he could fall ten feet to a lower area of the plant. (Tr. 63; Ex. R-8). Inspector Eastwood
determined that the violation was not S&S because the landing had a handrail that could be
reached from the stairs. Id. He determined that Respondent’s negligence was low because of the
presence of the handrail for the landing and because the condition had existed through several
MSHA inspections.
Mr. Holcomb testified that employees use the upright supporting the handrail on the
landing to provide stability while walking up or down the stairs. (Tr. 184). There have been no
slips or falls at this location.
I find that the Secretary established a violation. Although the upright for the handrail
around the landing provided some measure of safety, the stairs themselves were not provided
with handrails as required by the safety standard. Handrails or other means of support would be
especially important if an employee were walking down the stairs carrying supplies or materials.
The citation is affirmed as written. A penalty of $50 is appropriate.
I. Citation No. 6433230
On March 27, 2008, MSHA Inspector Eastwood issued Citation No. 6433230 under
section 104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.14107(a), as follows:
33 FMSHRC 1444

The return roller on the VSI exit conveyor belt was not guarded.
The roller was approx. 4 ft. above ground level. Employees access
the area of the roller to clean up under the conveyor belt. The
conveyor belt was not running at the time of the inspection.
(Ex. G-9). The inspector determined that an injury was unlikely but that if an injury did occur it
could be permanently disabling. He determined that the violation was not S&S and that
Respondent’s negligence was moderate. The Secretary proposes a penalty of $873 for this
citation.
Inspector Eastwood testified that a return roller on the VSI exit conveyor belt was not
guarded. (Tr. 70). The roller was about 4 feet above the ground. He testified that miners will
occasionally clean up accumulations under this belt in the vicinity of the roller. An employee or
his clothing could become entangled between the belt and the unguarded roller. In such an event,
he could be pulled into the pinch point and sustain a serious injury. (Tr. 71; Ex. G-9). He
determined that an injury was unlikely because the area is cleaned only once or twice a year. An
excavator is typically used to clean up accumulations in the area.
Mr. Holcomb testified that employees do not work around this conveyor while it is
operating. (Tr. 189). Any accumulations are cleaned out first thing in the morning before the
plant is operating. (Tr. 190). After the plant starts operating, the employees are operating an
excavator or a loader; they are “not wandering around.” Id.
Holcomb & Company argues that this roller had existed in the same location since at least
2005 and had never been cited by an MSHA inspector. It contends that it had not been given fair
notice that this condition might be a violation of the safety standard. (Resp. Br. 13). If the
citation is not vacated, the negligence should be reduced to low because of the mitigating
circumstances testified to by the inspector. It also argues that the quarry was not operating at the
time the citation was issued and that uncontradicted evidence establishes the miners are never in
the cited area while the belt is running.
The Secretary counters the operator’s notice argument by observing that the conditions
under the roller will be different during each MSHA inspection. Indeed, Inspector Eastwood
warned Holcomb & Company that a change in conditions under the roller could result in a
citation. He issued this warning during an inspection in December 2007. At that time the return
roller was “pretty much at ground level” because of the accumulation of material at that location.
(Tr. 73). The Secretary also contends that the fact the quarry was not in a production mode when
the citation was issued is not relevant.
I find that the citation should be affirmed as written. Holcomb & Company was
previously warned that the cited return roller could possibly be cited if it were high enough above
ground level. Respondent’s “fair notice” and negligence arguments are not well founded. I also
conclude that the fact that the quarry was not in production at the time of Eastwood’s inspection,
so that subject conveyor belt was not operating, is not determinative. The operator had shut
down operations for about two weeks to conduct maintenance. Holcomb & Company did not
allege that it was planning to install a guard at this location as part of the scheduled maintenance.
Equipment and facilities that are available for use by miners must be maintained in compliance
with applicable safety standards and are subject to inspections whether or not they are actually
being used at the time. See, e.g., Ideal Basic Ind., Cement Div., 3 FMSHRC 843 (Apr. 1981)
(equipment located in a normal work area and capable of being used must be in compliance with
safety standards).2 A penalty of $75 is appropriate.
2

I vacated Citation No. 6433226, above, because I found that the Secretary had not
established that the VSI exit conveyor had been used while part of the guard on the tail pulley
33 FMSHRC 1445

J. Citation No. 6433231
On March 27, 2008, MSHA Inspector Eastwood issued Citation No. 6433231 under
section 104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.14107(a), as follows:
The return roller on the 1 1/4 inch chip conveyor belt was not
guarded. The return roller was approx. 6 ft. 6 inches above ground
level. It was located in an area accessible by anyone working in
the area. The conveyor belt was not running at the time of the
inspection.
(Ex. G-10). The inspector determined that an injury was unlikely but that if an injury did occur it
could be permanently disabling. He determined that the violation was not S&S and that the
Respondent’s negligence was moderate. The Secretary proposes a penalty of $873 for this
citation.
Inspector Eastwood testified that the return roller was in a location that was accessible to
miners. (Tr. 77). His testimony with respect to this citation was similar to that of the previous
citation, except that this roller was 6 feet 6 inches above the ground level. (Tr. 77-80). The
inspector was concerned that, if material built up under the conveyor were, the roller would be
more accessible to miners. He had warned Respondent during his December 2007 inspection
that he would cite the roller if it was less than seven feet above the ground. (Tr. 80). Mr.
Holcomb testified that the inspector did not give him this warning. (Tr. 193). He also testified
that employees do not walk in the cited area and that accumulations in the area are cleaned up
using mobile equipment. (Tr. 194; Ex. R-10).
I find that the citation should be affirmed. Holcomb & Company was previously warned
that the cited return roller could possibly be cited if it were less than six feet off the ground. I
credit the testimony of Inspector Eastwood on this issue. The violation was not very serious
because of the height of the roller. My findings and conclusions for this citation are the same as
in the previous citation. A penalty of $75 is appropriate.
K. Citation No. 6433233
On March 27, 2008, MSHA Inspector Eastwood issued Citation No. 6433233 under
section 104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.14107(a), as follows:
A return roller located on the under jaw conveyor belt was not
guarded. The return roller was approx. 4 ft. above ground level
and had recently been cleaned underneath it. The return roller was
accessible to the employee cleaning underneath the conveyor belt.
(Ex. G-12). The inspector determined that an injury was reasonably likely and that if an injury
did occur it could be permanently disabling. He determined that the violation was S&S and that
Respondent’s negligence was moderate. The Secretary proposes a penalty of $4,329 for this
citation.

was loose. I draw a distinction between that situation and the present situation because, in the
former, the quarry operator was performing maintenance on its equipment and the guard may
well have been tightened before operations commenced. In this citation, the return roller was not
guarded at all and it is quite clear that this condition would not have been corrected before the
quarry started producing again.
33 FMSHRC 1446

Inspector Eastwood testified that this condition was on a different belt from the two
previous citations. (Tr. 92). As with the two previous citations, Inspector Eastwood testified that
he warned Holcomb & Company in December 2007 that a citation would be issued if the roller
remained unguarded and was at a height that exposed miners to a hazard. (Tr. 93, 97-98). The
inspector determined that an injury was reasonably likely because he observed shovels in the area
that led him to believe that someone had been cleaning up accumulations. (Tr. 94). On that
basis, he determined that the violation was S&S.
Mr. Holcomb testified that the area under this belt is cleaned with a shovel and with an
excavator. He said the area is shoveled out every morning before the belts are started. (Tr. 205
06). He also said that a guard had been on the roller at this location but it had to be replaced
because it ripped up the belt. (Tr. 208). The guard was being fabricated at the time of
Inspector’s Eastwood’s March 2008 inspection. (208-09).
I find that Holcomb & Company violated the safety standard because a guard was
required at that location. I find, however, that an injury was not reasonably likely, the violation
was not S&S, and Respondent’s negligence was low. The mere fact that shovels were in the area
does not establish that an injury was reasonably likely. I credit the testimony of Holcomb that the
area is shoveled out in the mornings before production begins. Thus, although an accident was
possible at this location, it was not reasonably likely. I find that the operator’s negligence was
low because a guard had been installed after MSHA’s December 2007 inspection, but it did not
function correctly. Respondent was in the process of fabricating a new guard to replace the old
one. The violation was serious. A penalty of $75 is appropriate.
L. Citation No. 6433232
On March 27, 2008, MSHA Inspector Eastwood issued Citation No. 6433232 under
section 104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.11011, as follows:
The elevated walkway to access the control booth on the jaw
crusher was unsafe. The walkway was sitting on the rock pile used
to feed the crusher. The rock pile had eroded and the walkway was
twisted down where it was not sitting on solid ground. A chain
had been installed from the crusher frame to hold the walkway.
The walkway was approx. 15 ft. above the ground and was approx.
25 ft. in length. The walkway had handrails and toe boards.
(Ex. G-11). The inspector determined that an injury was reasonably likely and that if an injury
did occur it could be fatal. He determined that the violation was S&S and that Respondent’s
negligence was high. Section 56.11001 provides that “[s]afe means of access shall be provided
and maintained to all working places.” The Secretary proposes a penalty of $6,458 for this
citation.
Inspector Eastwood testified that the walkway was supported by feed material for the jaw
crusher. (Tr. 83). This material had deteriorated with the result that the walkway was starting to
lean out away from the crusher. Someone had attached a chain to the walkway to try to prevent
the walkway from rolling over. The operator was taking material from the feed pile that was
supporting the walkway to the feed hopper for the jaw crusher. Id. The jaw crusher operator
would have to use this walkway several times a day. This person also operated the excavator
used to feed the hopper with material. The walkway was about 15 feet above the ground and it
was equipped with handrails. (Tr. 84). The walkway was sitting on a rock pile that was being
undermined as the rock was removed to feed the hopper. (Tr. 85; Ex. R-9). The inspector was
concerned that the walkway could collapse or roll down the hill. (Tr. 86).
33 FMSHRC 1447

Based on the above, Inspector Eastwood determined that the violation was S&S because a
serious injury or fatality was reasonably likely. Id. Someone could be killed if the walkway
rolled and flipped because there was a vertical drop below the outer edge of the walkway. He
determined that the negligence was high because the presence of the chain indicated that the
operator knew about the hazard and failed to take adequate steps to correct it. (Tr. 87). The
inspector admitted that Tim Holcomb advised him that when he noticed that the walkway was
starting to sag earlier that day, he had shut down the jaw crusher and excavator to fix the
walkway. (Tr. 90).
Dennis Holcomb testified that Tim had run into the walkway with the track of his
excavator on the day of the inspection. (Tr. 197-98). He shut down his excavator and went to
get his tools. When he returned, Inspector Eastwood had arrived. (Tr. 198). Neither Tim nor
any other employee had any need to use the walkway after the excavator was shut down. (Tr.
198-99). Dennis Holcomb testified that he installed the chain when the walkway was first placed
there because he “knew, with the walkway sitting on that product there, that as we ate away at the
pile, that some of that rock was going to fall down the hill.” (Tr. 199, 204). He said that he paid
good money for the walkway and he did not want it to fall or get damaged. The walkway was
safe when he installed it. Dennis Holcomb admitted that Tim had to walk across the walkway to
shut down the jaw crusher after he hit the walkway with his excavator. (Tr. 203).
Holcomb & Company argues that Tim Holcomb hit the walkway and was in the process
of repairing it when the inspector arrived. Because the walkway would not have been used until
it was repaired, it did not pose a hazard to anyone. It was not used for access while it was in the
condition observed by Inspector Eastwood. (Resp. Br. 16).
I find that the Secretary established an S&S violation of the safety standard. I credit the
testimony of Inspector Eastwood. The conditions observed by the inspector establish that safe
access was not provided to the jaw crusher. The fact that Dennis Holcomb used a chain to help
support the walkway indicates that he knew that the walkway was in a precarious position. By
excavating the rock under the walkway, the operator was removing the support for the walkway.
When Tim Holcomb bumped the walkway with the excavator he made the condition worse, but a
hazard was already present. The violation was S&S because it was reasonably likely that the
hazard contributed to by the violation would have resulted in a very serious injury. I find that the
negligence was moderate rather than high because I credit the testimony of Holcomb that his son
Tim had begun the work to correct or at least mitigate the hazard. A penalty of $200 is
appropriate.
M. Citation No. 6433234
On April 1, 2008, MSHA Inspector Eastwood issued Citation No. 6433234 under section
104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.12030, as follows:
The ground prong on the plug of the green and black extension
cord had been cut off. The cord was plugged into the United
Rentals Miller welder. The cord was not energized at the time of
the inspection. The extension cord was laying [sic] in mud and
water and had a burn in the outer insulation exposing the inner
individual conductors. No bare conductors were visible.
(Ex. G-13). The inspector determined that an injury was reasonably likely and that if an injury
did occur it could be fatal. He determined that the violation was S&S and that Respondent’s
negligence was moderate. Section 56.12030 provides that “[w]hen a potentially dangerous
condition is found it shall be corrected before equipment or wiring is energized.” The Secretary
proposes a penalty of $1,944 for this citation.
33 FMSHRC 1448

Inspector Eastwood testified that without the ground prong on the plug, any electrical
equipment plugged into the extension cord would not be adequately protected in the event of a
fault. (Tr. 100-01). The extension cord had been used for the grinder, as described in Citation
No. 6433224 above. There was also a burn on the cord which exposed the inner conductors.
The inspector testified that, because the extension cord was lying in the water and the ground
prong was missing, there was a reasonable possibility that the person using the extension cord
would suffer an electrical shock. (Tr. 102).
Dennis Holcomb testified that Crist had used the extension cord when he used the
grinder. (Tr. 209). He said that the cord had been hanging up in the shop to be repaired. He
believes that he told Crist that anything hanging above the shop’s vice was there to be repaired.
He further testified that there were three other extension cords in the shop available for use that
were in safe condition. Holcomb & Company discharged Crist from his employment after this
inspection.
Respondent argues that the extension cord had been “taken out of service” and put in the
shop for repair. Thus, Respondent recognized the hazard and removed the cord from service.
The cord was used “by the same ‘cowboy’ who failed to wear fall protection and took it upon
himself to use his own grinder without a shield.” (Resp. Br. 18). There were other extension
cords available for use on the shop door. It should have been obvious to Crist that the ground
plug was missing and that the cord itself was damaged.
I affirm the violation and the inspector’s S&S determination. I find that Respondent’s
negligence was low because it should have been obvious to Crist that the cord was not safe to
use. Holcomb had other extension cords that could have been used. Crist was an hourly
employee and his negligence should not be imputed to the operator. The Mine Act is a strict
liability statute, however. A penalty of $50 is appropriate.
N. Citation No. 6433235
On April 1, 2008, MSHA Inspector Eastwood issued Citation No. 6433235 under section
104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.14107(a), as follows:
The tail pulley on the under the jaw conveyor belt was not guarded
on the bottom and back side of the tail pulley. The tail pulley was
approx. 5 ft. above ground level. The sides were guarded. The
area is not a highly traveled area and is cleaned with an excavator.
There is no ground person work[ing] on the ground around the
equipment.
(Ex. G-14). The inspector determined that an injury was unlikely but that if an injury did occur it
could be permanently disabling. He determined that the violation was not S&S and that
Respondent’s negligence was moderate. The Secretary proposes a penalty of $807 for this
citation.
Inspector Eastwood testified that the tail pulley on the jaw conveyor was not properly
guarded. (Tr. 105). The sides of the tail pulley were well guarded, but the bottom and back side
were not. He was concerned that someone working in the area could become entangled in the
fast moving, self-cleaning, pulley. (Tr. 105-06). He did not consider that an accident was
reasonably likely because the pulley was guarded on the sides.
Mr. Holcomb testified that, as with the other tail pulleys at the mine, any cleaning with a
shovel is performed at the beginning of the day before the plant is operating. (Tr. 210-11). As a
consequence no hazard was present. In addition, this tail pulley has been inspected many times
by MSHA inspectors and no citations have been issued. He also testified that the tail pulley is
33 FMSHRC 1449

normally less than two feet above the ground. It is raised only when it is necessary to clean out
accumulations with the excavator. (Tr. 212-13).
As with previous guarding citations, Respondent argues that it did not receive fair notice
that the bottom and back of the tail pulley was required to be guarded because it had never
received a citation in the past for this condition. Employees do not work on the ground while the
conveyor is running so there was no risk of injury from this condition.
For the reasons discussed above with respect to other guarding citations, above, this
citation is affirmed as written. The violation was not especially serious because the hazard was
largely protected by location. A penalty of $75 is appropriate.
O. Citation No. 6433237
On April 1, 2008, MSHA Inspector Eastwood issued Citation No. 6433237 under section
104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.14107(a), in part as follows:
The drive line and drive pulley and belts on the Detroit Diesel
motor providing power for the jaw crusher were partially guarded.
A section of approx. 18 inches could be accessed on the 3 inch
drive line. The drive line had a slot for a shear pin machined into
it. The drive line bolts onto a flange that connects to the drive
pulley for the crusher. A hole had been cut in the original metal
guard on the flange approx. 2 inches X 4 inches exposing the
rapidly moving flange and flange bolts. Another hole had been cut
in the guard approx. 6 inches X 4 inches allowing access to the
rapidly spinning drive pulley. The owner Dennis Holcomb stated
that the holes had been cut in the guard in order to grease the
equipment.
(Ex. G-15). This citation was originally written under section 104(d)(1) but it was modified the
following day by Inspector Eastwood to a section 104(a) citation. As modified, the inspector
determined that an injury was reasonably likely and that if an injury did occur it could be
permanently disabling. He determined that the violation was S&S and that Respondent’s
negligence was moderate. The Secretary proposes a penalty of $29,529 for this citation.
Inspector Eastwood testified as to the conditions he observed. (Tr. 110-22). The
conditions he observed are shown on the photos he took. (Ex. G-15). The drive line shaft was
partially guarded. (Tr. 111). An employee could access the area adjacent to the cited motor by
climbing down a ladder on the jaw crusher to a platform that was 16 inches wide and 6 feet long.
There were fixed ladders at either end of this platform. An employee had to climb down onto
this platform to turn the motor off, check the oil, and perform maintenance. (Tr. 112). The shaft
could be reached from this platform and, if an employee stumbled, he could get tangled up in the
moving shaft. (Tr. 113).
Two holes had been created in a guard adjacent to the shaft using a torch. (Tr. 113). The
holes were 2 by 4 inches and 4 by 6 inches. These holes exposed a rapidly moving flange and a
rapidly spinning drive pulley. (Tr. 114-15). Dennis Holcomb told the inspector that the holes
had been cut in order to grease the equipment. (Tr. 116). As modified, the citation alleges that
an injury was reasonably likely. The inspector was concerned that, because the rung on one of
the adjacent ladders was loose, an employee could slip and his hand could enter one of the holes
or come in contact with the moving shaft as he tried to brace himself. (Tr. 118-20). Because the
platform was small and confined, it would be easy for someone to become entangled in the
moving parts and be severely injured or killed. He considered the violation to be S&S. He
33 FMSHRC 1450

admitted that the equipment had to be shut down to grease it. (Tr. 124). The operator of the jaw
crusher has to travel to the platform to turn the motor off and on. (Tr. 125-26).
Mr. Holcomb testified that when he purchased the equipment, the cited holes were
already present. (Tr. 217). The partially-guarded shaft and holes were present during previous
MSHA inspections. He testified that the moving machine parts were protected by their remote
location. The shaft for example was protected by hydraulic hoses in the area. (Tr. 220). He
admitted that the platform shakes as the jaw crusher is operating. (Tr. 223). Holcomb said that
the guard would have to be removed to grease the machinery if the holes were not present. (Tr.
225). The guard weighs about 150 pounds. (Tr. 226). The excavator would need to be used to
accomplish this. The condition was abated by placing a special guard over the existing guard and
this extra guard is removed for greasing. Finally, he testified that the ladder with the broken
rung was not used as a ladder but was used as a barrier or guard to prevent an employee from
falling off that end of the platform. (Tr. 228).
Holcomb & Company argues that it was unlikely that anyone would be able to access the
shaft or the pulleys because they were guarded by location behind several hydraulic hoses and the
clutch lever, as well as the heavy, substantial guard. (Resp. Br. 19). No maintenance or greasing
occurs when the jaw crusher is operating. Respondent also makes the fair notice argument on the
basis that the equipment has been in the same condition since it was purchased.
I find that the Secretary established a violation. Whether the violation was S&S is a
closer question. I credit the testimony of Mr. Holcomb that the exposure is not that great. Tim
Holcomb and other employees are rarely on the platform when the jaw is operating. Greasing
and other maintenance is performed with the equipment shut down. In addition, the drive shaft
and openings are partially protected by location. I also credit the testimony of Mr. Holcomb that
the cited ladder is rarely if ever used to access the platform. On this basis, I find that it was not
reasonably likely that the hazard contributed to by the violation would have led to an injury. The
violation was serious, however, because if someone were injured by the moving machine parts,
he could experience significant trauma. I also find that Respondent’s negligence was moderate
to low because the violation was not obvious and it had not been previously cited by MSHA. A
penalty of $200 is appropriate.
P. Citation No. 6433238
On April 1, 2008, MSHA Inspector Eastwood issued Citation No. 6433238 under section
104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.11003, in part as follows:
The metal fixed ladder to access the Detroit diesel motor that
provides power to the jaw crusher had the top rung unsecured on
the right hand side of the ladder. The weld had broken loose on the
rung and it had separated from the framework of the ladder. The
ladder was approx. 3 ft in length and accessed a walkway along the
side of the motor.
(Ex. G-16). The inspector determined that an injury was reasonably likely and that if an injury
did occur it could be fatal. He determined that the violation was S&S and that Respondent’s
negligence was moderate. The safety standard provides that “[l]adders shall be of substantial
construction and maintained in good condition.” The Secretary proposes a penalty of $1,944 for
this citation.
Inspector Eastwood testified that the top rung of the ladder had become “unwelded” on
one side and was no longer attached to the right side of the ladder. (Tr. 128). He testified that
someone has to go down that ladder to turn on the diesel engine that operates the jaw crusher.
He believed that it was reasonably likely that someone would be injured while descending the
33 FMSHRC 1451

ladder. The rung would give way and the person would fall to the platform and could hit his
head. A person could also come into contact with the moving machine parts discussed in the
previous citation. (Tr. 132). He determined that the negligence was moderate because Dennis
Holcomb did not know that the ladder was broken and the ladder is not used that often.
Mr. Holcomb testified that the ladder in question was not used to get to the platform.
Instead, it was used as a barrier to keep anyone from falling off the end of the platform. (Tr.
231). It was placed there at the request of an MSHA inspector. Indeed, the MSHA inspector was
present when the ladder was welded in place. Id. This ladder was never used to get to the
platform. (Tr. 233).
The Secretary argues that the cited ladder was available for use as a ladder and that in
Respondent’s answer to the petition for assessment of penalty, it stated that the “rung on the
ladder needed to be welded and was on the repair list. . . .” (Ex. G-21). Respondent argues that
the ladder was used as a barrier and was not used to get to the platform. Employees accessed the
platform using the ladder at the other end of the platform. (Resp. Br. 21). In addition, the
“ladder” had only two rungs and if someone were to slip, it was unlikely that he would sustain a
serious injury.
I find that the Secretary established a violation but that the violation was not S&S. I
credit the testimony of Holcomb that the ladder was rarely if ever used. It was placed there to
prevent anyone from falling off the edge of the platform. It was not reasonably likely that the
condition would contribute to an injury. The violation was not very serious. Respondent’s
negligence was low. A penalty $50 of is appropriate.
Q. Citation No. 6433239
On April 2, 2008, MSHA Inspector Eastwood issued Citation No. 6433239 under section
104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.12016, in part as follows:
The Detroit diesel motor that powers the jaw crusher was not
locked or tagged before an employee worked on it. The employee
had removed the guarding on the fan, fan belts alternator, and
alternator belt to work on the alternator. The employee did not
lock out or put a tag on the motor saying who was working on the
motor or what date the motor was being worked on.
(Ex. G-17). The inspector determined that an injury was reasonably likely and that if an injury
did occur it could be permanently disabling. He determined that the violation was S&S and that
Respondent’s negligence was moderate. The Secretary proposes a penalty of $873 for this
citation.
Inspector Eastwood testified that Tim Holcomb had removed a guard from the diesel
motor and was working on the motor without locking or tagging out the motor in violation of the
safety standard. (Tr. 134). The key was in the ignition so any employee could have started the
motor while Tim was working on it. The inspector testified that Tim should have removed the
key from the ignition and kept it in his pocket. He should have also tagged the diesel motor out
to show that he was working on it. The inspector believed that a serious injury was reasonably
likely because the guard for the fan on the generator had been removed exposing the moving
parts.
Mr. Holcomb testified that nobody other than Tim had the authority to start the diesel
motor. He also testified that he wants employees to keep the key in the ignition so the key does
not get lost. (Tr. 235). The key is always kept in the ignition.
33 FMSHRC 1452

I affirm this citation as written by Inspector Eastwood. Lockout and tagout procedures
are crucial because miners can be seriously injured or killed when an employee turns on
machinery or equipment while someone else is working on it. Mr. Holcomb can make a
duplicate key that he keeps in his possession if he is concerned that someone could lose it. A
penalty of $200 is appropriate.
III. APPROPRIATE CIVIL PENALTIES
Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an
appropriate civil penalty. Holcomb & Company had a history of eleven paid citations prior to the
March/April 2008 inspection. (Ex. G-18). Only two of these citations were designated as S&S.
Holcomb & Company is an extremely small operator. It employed four people in 2008 and three
people in 2010, including Dennis and Tim Holcomb. The total number of hours worked by all
employees in 2008 was 8,345. In 2010, the total hours worked was 4,198. It currently employs
two people.3 Holcomb & Company is a sole proprietorship that is not affiliated with any other
operator. I have reduced the penalties substantially based on the very small size of the operator.
Evidence of an operator's financial condition is relevant to the ability to continue in business
criterion. See Unique Electric, 20 FMSHRC 1119, 1122-23 (Oct. 1998). Respondent submitted
its profit and loss statement for 2009, which showed a net annual income of $6,661. (Ex. R-20).
Its net profit for 2008 was about $21,000 and it showed a net loss between January and July
2010. (Exs. R-19, R-21).4 I have taken into account Respondent’s financial condition when
considering the ability to continue in business criterion. (Tr. 246-50). The violations were
abated in good faith. The gravity and negligence findings are set forth above.
IV. ORDER
Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
following civil penalties:

Citation No.

30 C.F.R. §

Penalty

56.15005
56.11004
56.14107(a)
56.14107(a)
56.14112(b)
56.12016
56.12008
56.14107(a)
56.14107(a)
56.11001
56.14107(a)
56.12030
56.14107(a)

$600.00
Vacated
100.00
100.00
Vacated
500.00
Vacated
75.00
75.00
200.00
75.00
50.00
200.00

WEST 2008-1113-M
6433221
6433222
6433223
6433224
6433226
6433227
6433228
6433230
6433231
6433232
6433233
6433234
6433237
3

This employment information was obtained from MSHA’s website.
Exhibits R-19, R-20, and R-21 were discussed at the hearing, but were not officially
entered into the record. I hereby admit them as exhibits to these proceedings.
33 FMSHRC 1453
4

6433238
6433239

56.11003
56.12016

50.00
200.00

56.11002

50.00

56.14107(a)

75.00

WEST 2008-1114-M
6433229
WEST 2008-1196-M
6433235

TOTAL PENALTY

$2,350.00

For the reasons set forth above, Citation Nos. 6433222, 6433226, and 6433228 are
VACATED and the other citations are AFFIRMED or MODIFIED as set forth above. D.
Holcomb and Company is ORDERED TO PAY the Secretary of Labor the sum of $2,350.00
within 40 days of the date of this decision.5

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

5

Payment should be sent to the Mine Safety and Health Administration, U.S.
Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.
33 FMSHRC 1454

Distribution:
Matthew Vadnal, Esq., Office of the Solicitor, U.S. Department of Labor, 1111 Third Avenue,
Suite 945, Seattle, WA 98101-3212 (Certified Mail)
Merrily Munther, Esq., Munther Goodrum, Chartered, 1161 West River Street, Suite 350, Boise,
ID 83702 (Certified Mail)
RWM

33 FMSHRC 1455

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

June 16, 2011

KNIFE RIVER,
Contestant,

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

v.
KNIFE RIVER,
Respondent.

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CONTEST PROCEEDINGS
Docket No. WEST 2009-1147-RM
Citation No. 6479737; 07/22/2009
Docket No. WEST 2009-1167-RM
Citation No. 6479744; 07/28/2009
Docket No. WEST 2009-1168-RM
Citation No. 6479745; 07/28/2009
Docket No. WEST 2009-1169-RM
Citation No. 6479738; 07/22/2009
Docket No. WEST 2009-1170-RM
Citation No. 6479741; 07/27/2009
Docket No. WEST 2009-1171-RM
Order No. 6479742; 07/28/2009
Docket No. WEST 2009-1172-RM
Order No. 6479743; 07/28/2009
Docket No. WEST 2009-1185-RM
Citation No. 6479746; 07/29/2009
Mine ID: 35-02968
Mine: Reed Pit
CIVIL PENALTY PROCEEDINGS
Docket No. WEST 2009-1437-M
A.C. No. 35-02968-195779-01
Docket No. WEST 2009-1438-M
A.C. No. 35-02968-195779-02
Docket No. WEST 2010-232-M
A.C. No. 35-02968-202121
Mine: Reed Pit

DECISION
Appearances:

Patricia Drummond, Esq., Office of the Solicitor, U.S. Department of
Labor, Seattle, Washington, on behalf of the Secretary of Labor;
Adele L. Abrams, Esq., Law Office of Adele L. Abrams, P.C., Beltsville,
Maryland, on behalf of Knife River.
33 FMSHRC 1456

Before:

Judge Paez
I. Statement of the Case

The above-captioned proceedings are before me on Notices of Contest filed by Knife
River against the Secretary of Labor, acting on behalf of the Mine Safety and Health
Administration (“MSHA”) pursuant to section 105 of the Federal Mine Safety and Health Act of
1977 (“Mine Act”), 30 U.S.C. § 815 (2006).1 In accordance with my Order of Consolidation, the
above-captioned penalty proceedings are before me upon the Secretary of Labor’s Petitions for
Assessment of Civil Penalties pursuant to section 105 of the Mine Act.
In these combined contest and civil penalty proceedings, Knife River challenges the
validity of five citations and one order issued in July 2009 at its Reed Pit mine.2 Citation No.
6479741 and Order No. 6479743 allege violations of 30 C.F.R. § 56.14100(b), a mandatory safety
standard requiring correction of defects on any equipment, machinery and tools that affect safety.3
Citation No. 6479746 alleges a violation of Order No. 6479743. Citation Nos. 6479737, 6479744
and 6479745 allege violations of 30 C.F.R. § 56.11027, a mandatory safety standard requiring
working platforms to be of substantial construction and provided with handrails and toeboards in
good condition.4
I conducted a hearing in Portland, Oregon where both parties offered documentary
evidence and witness testimony.5 Both parties submitted post-hearing briefs including
supplemental exhibits, which I admitted into the record. The parties have agreed to several
stipulations and facts established by admissions regarding the Commission’s jurisdiction and the
factual circumstances leading to the citations and order. (Sec’y Prehr’g Report 2–3; KR Prehr’g
Report 1–3.)
II. Issues
Knife River denies any violations occurred and denies the allegations set forth in the
citations and order. It further contends that the cited conditions in question existed for many years
with MSHA’s knowledge and contests the Secretary’s application of the regulations. Knife River
argues that the issuance of these citations violated its rights to fair notice and due process. The
1

In this decision, the hearing transcript, Knife River’s exhibits, and the Secretary’s
exhibits are abbreviated as “Tr.,” “Ex. KR-#,” and “Ex. S-#,” respectively. In citations, Knife
River is abbreviated as “KR.”
2
Initially, the company challenged a sixth citation and a second order, but at the hearing
the parties stated that Citation No. 6479738 and Order No. 6479742 were settled out of court.
(Tr. 10:1–11:17.) After the hearing, the parties filed a Joint Motion to Approve Settlement, and
the motion is considered at the end of this decision.
3
Unless otherwise indicated, all citations to the Code of Federal Regulations are to the
2009 edition, the provisions of which were in effect at the time these citations and orders were
issued.
4
Citation No. 6479737 was originally issued on July 22, 2009, as a violation of 30 C.F.R.
§ 57.11002. It was first amended on July 23, 2009, to reflect a violation of 30 C.F.R. §56.11002
and then subsequently amended on July 27, 2009, to reflect a violation of 30 C.F.R. § 56.11027.
5
Knife River filed a Motion to Expedite Proceedings, which was denied by Order dated
August 5, 2009.
33 FMSHRC 1457

Secretary responds that the conditions were properly cited as violations and that the allegations
underlying the citations and order are valid. Accordingly, the following issues are before me:
Whether the cited conditions were violations of the Secretary’s mandatory health and
safety standards.
Whether the Secretary’s assertions regarding the gravity of the alleged violations are
supported by the record.
Whether the Secretary’s assertions regarding Knife River’s negligence in committing the
alleged violations are supported by the record.
Whether the proposed civil penalties are appropriate.
III. Background and Findings of Fact
A.

The Operation at Reed Pit

Knife River owns and operates Reed Pit, a mine located near Salem, Oregon. (KR Prehr’g
Statement 1.) The mine produces sand and gravel and operates twenty-four hours a day. (Tr.
24:2–7, 24:21–25.) The sand and gravel deposit is extracted by a floating piece of machinery, a
dredge, which removes the gravel from the surface below the mine site’s pond and transports it to
land where it is dewatered, sized, and screened. (Tr. 24:22–25.) Knife River uses floating
machinery as well as land-based machinery for dewatering, sizing, and crushing. (Tr. 25:3–5.)
The dredge sits on a pond that is more than seven hundred square feet in size and approximately
fifteen to twenty feet deep. (Tr. 25:10–14.) A walkway leads to a dock on the edge of the pond.
(Tr. 29:25–30:4.) The pond water levels fluctuate, which can change the angle of the walkway
that leads to the dock. (Tr. 34:14–15.) Reed Pit requires that life jackets be used at all times
when work is being conducted over water. (Tr. 337:17–338:1.)
Once gravel is extracted, it is sorted by size, and a portion of it is conveyed to a cobble
surge pile. (Ex. S-12, at 3.) A single feeder sits below approximately at the center of the pile.
(Tr. 493:13–20.) A draw-off tunnel (“tunnel”), which is also known as a culvert, runs from the
feeder out through the side of the pile. (Ex. S-12, at 3.) The tunnel is made of corrugated
galvanized steel and is ninety-three feet long. (Id. at 4.) A forty-foot section of the middle of the
tunnel is reinforced by twelve vertical posts, spaced approximately four-and-a-half feet apart. (Id.
at 4–5.) Nine posts measure four-and-a-half inches in diameter; two measure six-and-a-half
inches in diameter; and one is a three- by five-inch rectangular steel tube. (Id. at 4.) A conveyor
belt runs through the tunnel. (Id. at 3.) Half of the belt is held up and suspended by turnbuckles,
which are similar to hangers, and attached to the structure of the tunnel, and the other half of the
belt is supported by the floor of the conveyor. (Tr. 276:4–15.)
A twenty- to thirty-foot wall was erected adjacent to the crushing unit to contain dust and
noise. (Ex. S-12, at 8.) The wall is held up by several wooden structural columns. (Id. at 8–9.)
These columns are supported by steel brackets installed at their bases, which were installed
following MSHA’s inspection of the mine. (Id. at 8.) The trailer housing the crusher operator
station, which also serves as a break room, passes through and beneath the wall. (Tr. 50:13–14.)
A small workshop is located off to one side of the operator station. (Tr. 50:18–19.)
B.

Knife River’s Report Concerning the Tunnel

Around September 2008, Lynn Gullickson, Knife River’s Safety Director, asked Dr. Keith
Kaufman, Chief Engineer of Knife River’s prestress plant in Harrisburg, Oregon, to inspect the
tunnel and to give his viewpoints on its structural condition. (Tr. 353:1–4, 407:23–408:2.)
Gullickson made the request because MSHA had identified a structural issue at Knife River’s
33 FMSHRC 1458

Springfield quarry, and he wanted to confirm that the tunnel was a “safe structure.” (Tr.
352:22–353:3, 407:23–408:2.) On September 8, 2008, Kaufman inspected the tunnel for fifteen
to twenty minutes. (Tr. 408:18–19.) He did not walk the tunnel’s entire length or take any
measurements of it. (Tr. 409:2–3, 410:7.) Kaufman also inquired of Steve Zurfluh, Reed Pit’s
plant manager at the time, about information concerning the tunnel’s design. (Tr. 408:19–21.)
Zurfluh had no information about the tunnel’s design. (Id.)
Kaufman issued his report on the tunnel on October 26, 2008. (Ex. S-6.) He noted that
“[a] structural analysis of the culvert would be extremely difficult to perform. The age of the
structure combined with the deformed shape and temporary shoring would require difficult
engineering assumptions in the analysis.” (Id. at 2.) Kaufman made six recommendations
concerning the tunnel:
1.

Provide a sump pump to remove the standing water in the culvert.

2.

Provide horizontal control points spaced at 10 feet along the length of the
culvert. . . . Record measurements on a weekly interval and then monthly
once it has been identified that the geometry is stable. If the geometry of
the stock pile changes significantly or becomes non symmetric to the axis
of the culvert then measurements should be increased as required.

3.

Measure and record the deformations between adjacent seams that have
exhibited movement.

4.

Make sure the stockpile loading does not extend to the region of the culvert
where the local buckling and damage has [sic] occurred as shown in the
second photo.

5.

Maintain a balanced geometry of the stockpile on each side of the
longitudinal axis of the culvert.

6.

Inspect the condition of the temporary struts and the top of the culvert to
ensure the concentrated reactions do not result in localized failure of the
culvert skin.

(Ex. S-6, at 3.) Kaufman further stated:
Signs of deformation changes might require discontinued use of the culvert.
Replacement of the culvert should be considered. Though I have little knowledge
of this type of stock pile access of aggregates, a flexible culvert is a wrong
application. A rigid culvert would better handle the possibilities of unbalanced
loading if a continued bottom stock pile access is desired.
(Ex. S-6, at 3.)
C.

MSHA’s Inspection of Reed Pit

In July of 2009, Brad Breland, MSHA supervisory mine inspector of the Albany, Oregon,
field office, was asked to select mines that MSHA officials would tour while in Oregon for a
meeting. (Tr. 163:9–18.) MSHA Acting Deputy Administrator Neal Merrifield, MSHA Western
District Manager Art Ellis, and Conference Litigation Officer John Pereza toured the Reed Pit
mine. (Id.) The MSHA officials were accompanied on the tour by Knife River representatives,
including Knife River Safety Director Lynn Gullickson, Reed Pit Superintendent Bill Wetmore,
and Corporate Safety Manager Zack Knoop. (Tr. 164:19–165:7.) During the tour, Art Ellis
viewed the dredge area and spoke with Zack Knoop regarding the need for handrails on the work
33 FMSHRC 1459

boats and docks, as well as the need for adequate illumination for miners working after dark.6 (Tr.
164:19–25.) Knoop asked Ellis to speak with Bill Wetmore, the mine superintendent, regarding
the matter. (Tr. 348:7–9.) Even though Ellis and Wetmore never had a conversation about the
handrail and illumination issues, Knoop told Gullickson about his conversation with Ellis. (Tr.
347:4–10, 347:20–348:16.) After the tour concluded, Gullickson and Knoop met with Ellis and
Merrifield to further discuss MSHA’s position regarding the requirement for handrails. (Tr.
348:17–350:15.) According to Gullickson, the conversation was rather heated. (Id.)
A few weeks after the tour, Breland informed MSHA Inspector Brian Chaix that it was
time to administer a “regular” inspection of Reed Pit and that he should follow up on the handrail
and illumination concerns. (Tr. 23:5–20.) On July 21, 2009, Chaix began his inspection, which
lasted several days. (Tr. 23:19–23, 27:9–12.) Initially, Breland was not present at the inspection;
however, Breland returned to Reed Pit mine at the request of Production Superintendent Fred
Sondermayer and met with Chaix to discuss the inspection and Kaufman’s October 2008 report.
(Tr. 165:20–166:22.)
Chaix cited several conditions as alleged violations of the Secretary’s mandatory safety
standards, which are now at issue before me. On July 22, Chaix issued Citation No. 6479737
pursuant to section 104(a) of the Mine Act alleging that the work boats and dock at the mine site’s
pond lacked handrails and toeboards, exposing miners to the risk of fatal drowning by falling into
the pond after a slip or fall. (Ex. S-2, at 1.) Chaix alleged that the gravity of the citation was
“significant and substantial” (“S&S”).7 (Id.) In accordance with MSHA policy, on July 28, Chaix
divided Citation No. 6479737 and issued Citation Nos. 6479744 and 6479745 specifically
covering the lack of handrails and toeboards on Knife River’s work boats. (Tr. 28:18–29:13; Ex.
S-2, at 21–24.)
Additionally, Chaix issued a citation and an order under section 104(d)(1) of the Mine Act,
alleging the existence of S&S violations that were the result of Knife River’s unwarrantable
failure to comply with the Secretary’s mandatory health and safety standards.8 Chaix issued
Citation No. 6479741 on July 27 asserting that the tunnel underneath the surge pile had structural
failures and was not being maintained properly. (Id. at 10.) On July 28, Chaix issued Order No.
6479743, noting that five of the six posts in the wall alongside the crushing unit had rotted away,
creating the risk of the wall falling on the miners. (Id. at 17.)
After the issuance of the order, Knife River, on its own initiative (Tr. 73:14–16), put up
caution tape around the wall in an attempt to comply with the order’s requirement to withdraw
from the affected area (Tr. 173:3–174:8). Sondermayer showed the tape to Breland and stated that
his miners could operate the crusher without entering the taped-off area. (Tr. 173:9–174:17,
581:12–582:23.) At the time, though, Breland was unaware the crusher operation booth was in
the area subject to closure under the order. (Tr. 183:9–19.) On July 29, Chaix issued Citation No.
6479746 under section 104(a) of the Mine Act asserting that miners improperly entered the area
subject to the order. (Ex. S-2, at 25.) No evidence suggests that the alleged violations before me
6

Knife River subsequently added more illumination, which addressed this issue. (Tr.
24:8–10.)
7
The S&S terminology is taken from section 104(d)(1) of the Mine Act, which
distinguishes as more serious any violation that “could significantly and substantially contribute
to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d)(1).
8
The unwarrantable failure terminology is taken from section 104(d) of the Mine Act,
which establishes more severe sanctions for any violation that is caused by “an unwarrantable
failure of [an] operator to comply with . . . mandatory health or safety standards.” 30 U.S.C.
§ 814(d)(1).
33 FMSHRC 1460

had been previously cited or even raised into question during prior MSHA inspections in 2008
and 2009. (Tr. 93:19–107:24.)
IV. Principles of Law
A.

The Secretary’s Interpretation of Regulations

To assess the validity of the Secretary’s interpretation of her regulations, the Commission
explains as follows:
[w]here the language of a regulatory provision is clear, the terms of that provision
must be enforced as they are written unless the regulator clearly intended the words
to have a different meaning or unless such a meaning would lead to absurd results.
See Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir. 1987); Utah Power &
Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989). 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 Labor v. Western Fuels-Utah, Inc., 900 F.2d 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)). The Secretary’s
interpretation of her regulations is reasonable where it is “logically consistent with
the language of the regulation[s] and . . . serves a permissible regulatory function.”
General Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995) (citations omitted).
Lodestar Energy, Inc., 24 FMSHRC 689, 692 (July 2002). The required analysis asks whether the
Secretary’s interpretation of the regulation is reasonable. Id. (citing Energy West Mining, 40 F.3d
at 463). The Secretary’s interpretation must harmonize with and advance the objective of the
statute it implements and not conflict with it. Lodestar Energy, 24 FMSHRC at 692 (quoting
Emery Mining Corp. v. Sec’y of Labor, 744 F.2d 1411, 1414 (10th Cir. 1984)). An individual
provision of the Secretary’s regulations should comport with the other sections of the regulations
so as “to effectuate the Mine Act’s goal of promoting the safety and health of miners.”
Consolidation Coal Co., 14 FMSHRC 956, 969 (June 1992) (citing Emery Mining, 744 F.2d at
1414).
B.

Fair Notice

Regarding the minimum notice due that is due to the regulated community with regard to
the Secretary’s enforcement position of a particular regulatory provision, the Commission states
that
“[d]ue process . . . prevents . . . deference from validating the application of a
regulation that fails to give fair warning of the conduct it prohibits or requires.”
Gates & Fox Co. v. OSHRC, 790 F.2d 154, 156 (D.C. Cir. 1986). An agency’s
interpretation may be “permissible” but nevertheless fail to provide the notice
required under this principle of administrative law to support imposition of a civil
sanction. [General Elec. Co. v. EPA, 53 F.3d 1324, 1333–34 (D.C. Cir. 1995)].
Island Creek Coal Co., 20 FMSHRC 14, 24 (Jan. 1998).
Actual notice of the Secretary’s interpretation is not required. Id. Instead, the test for
notice follows an objective standard that asks “‘whether a reasonably prudent person familiar with
the mining industry and the protective purposes of the standard would have recognized the
specific prohibition or requirement of the standard.’” Id. (quoting Ideal Cement Co., 12
FMSHRC 2409, 2416 (Nov. 1990)). A regulation cannot be “‘so incomplete, vague, indefinite or
33 FMSHRC 1461

uncertain that men of common intelligence must necessarily guess at its meaning and differ as to
its application.’” Alabama By-Products Corp., 4 FMSHRC 2128, 2129 (Dec. 1982) (quoting
Connolly v. Gerald Construction Co., 269 U.S. 385, 391 (1926)). Under the Commission’s test,
the reasonably prudent person, the operator, is “charged with knowledge of the ‘mining industry
and the protective purposes of the standard.’” Island Creek Coal, 20 FMSHRC at 25 (quoting
Ideal Cement, 12 FMSHRC at 2416).
The analysis of the notice afforded to the operator is explicitly focused on the facts of that
particular case. Alabama By-Products, 4 FMSHRC at 2129. In applying this test, the
Administrative Law Judge should consider a “wide variety of factors,” such as “the text of [the]
regulation, its placement in the overall regulatory scheme, its regulatory history, the consistency of
the agency’s enforcement, and whether MSHA has published notices informing the regulated
community with ascertainable certainty of its interpretation of the standard in question.” Lodestar
Energy, 24 FMSHRC at 694–95 (citations omitted).
C.

Significant and Substantial

An S&S violation is a violation “of such nature as could significantly and substantially
contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. §814(d)(1). A
violation is S&S “if, based on the particular facts surrounding that violation, there exists a
reasonable likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature.” Cement Div., Nat'l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
To establish an S&S violation, the Secretary must prove: “(1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard—that is, a measure of danger to
safety—contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to
will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3–4 (Jan. 1984) (footnote omitted).
See also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc.
v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving the Mathies criteria). The
Commission has further found that “an inspector’s judgment is an important element in an S&S
determination.” Mathies, 6 FMSHRC at 5 (citing National Gypsum, 3 FMSHRC at 825–26); see
also Buck Creek Coal, 52 F.3d at 135–36 (stating that ALJ did not abuse discretion in crediting
opinion of experienced inspector). An evaluation of the reasonable likelihood of injury should be
made assuming continued normal mining operations. U.S. Steel Mining Co., 7 FMSHRC 1125,
1130 (Aug. 1985) (quoting U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984)).
D.

Unwarrantable Failure

The unwarrantable failure terminology is taken from section 104(d) of the Mine Act and
refers to more serious conduct by an operator in connection with a violation. 30 U.S.C. § 814(d).
In Emery Mining, the Commission determined that an unwarrantable failure is “aggravated
conduct constituting more than ordinary negligence.” 9 FMSHRC 1997, 2001 (Dec. 1987).
Unwarrantable failure is characterized by such conduct as “reckless disregard,” “intentional
misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at 2003–04; Rochester &
Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, 52 F.3d at
136 (approving the Commission’s unwarrantable failure test).
Whether conduct is “aggravated” in the context of unwarrantable failure is determined by
looking at all the facts and circumstances of each case to see if any aggravating factors exist, such
as the length of time that the violation has existed, the extent of the violative condition, whether
the operator has been placed on notice that greater efforts are necessary for compliance, the
operator’s efforts in abating the violative condition, whether the violation is obvious or poses a
high degree of danger, and the operator’s knowledge of the existence of the violation. See
Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000); Cyprus Emerald Res. Corp., 20
FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest
33 FMSHRC 1462

Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195
(Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy Mines, Inc.,
14 FMSHRC 1232, 1243–44 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June
1988). All of the relevant facts and circumstances of each case must be examined to determine if
an actor’s conduct is aggravated or whether mitigating circumstances exist. Consolidation Coal,
22 FMSHRC at 353.
V. Further Findings of Fact, Analysis, and Conclusions of Law
A.

Citation No. 6479737 – The Dock and Walkway
1.

Violation

Originally, Citation No. 6479737 was issued for alleged violations found on the work
boats, the dock, and the walkway. However, Chaix modified the citation to cover only the docks
and the walkway. (Tr. 28:18–29:13.) The modification resulted from a conclusion that the work
boats “were different pieces of equipment” and Chaix “needed to issue separate citations for
separate pieces of equipment” in accordance with MSHA policy. (Tr. 28:21–24.) Also, Citation
No. 6479737 originally alleged a violation of the mandatory safety standard at 30 C.F.R.
§ 57.11002 but was amended to allege a violation of the mandatory safety standard at 30 C.F.R.
§ 56.11027 (Tr. 29:3–6), which requires, in pertinent part, that “[s]caffolds and working platforms
shall be of substantial construction and provided with handrails and maintained in good condition.
. . . Working platforms shall be provided with toeboards when necessary.” Chaix deemed the
alleged violation to be S&S based on his reasoning that “the hazard was clear and present” and
“the sort of injuries that [he] would expect to result from an accident . . . would be serious.” (Tr.
31:24–32:8, Ex. KR-1, at 1.) According to Chaix’s documentation in the citation, the dock lacked
handrails and toeboards, “exposing miners to the risk of fatal drowning in the event of a slip or
fall into water reported to be . . . approximately 20 feet deep.” (Ex. KR-1, at 1.)
Knife River contends that no work is performed on the dock or walkway. (Tr. 337:10–14.)
Additionally, it argues that the walkway has handrails, that life jackets are required, and that no
accidents have occurred in the area, demonstrating the existence of minimal safety risks. (Tr.
337:15–338:1, 343:19–344:2, 558:8–11.) However, the evidence shows that miners assembled
materials, as well as loaded and unloaded items from the dock. (Tr. 31:18–23, 395:25–396:2.)
Also, miners traveled in this area at least twice each shift—to get to the dredge and back—and
when making trips for materials. (Tr. 31:4–12.) MSHA Supervisor Breland personally observed
two miners on the dock who did not properly secure their life jackets, such that had they fallen
into the water, the life jackets could have either slipped off or choked the miners. (Tr.
178:24–179:25.)
The Secretary’s and Knife River’s witnesses acknowledged that work activities regularly
took place on the dock. Because miners periodically performed work-related tasks on the dock, it
is a working platform that falls within the cited regulation at 30 C.F.R. § 56.11027. Under these
circumstances, a reasonably prudent operator like Knife River should have recognized that the
dock would be considered a “working platform.” Based on these facts, this citation does not
involve a novel interpretation of § 56.11027. Even assuming, arguendo, that this proceeding
involves a novel regulatory interpretation, Knife River had prior, explicit notice of the Secretary’s
enforcement position of § 56.11027. During the visit by MSHA officials preceding Chaix’s
inspection, MSHA Western District Manager Art Ellis informed Knife River’s officials about the
need to install handrails.
2.

Gravity and S&S
33 FMSHRC 1463

As for the question of whether this violation was S&S, Knife River’s violation of a
mandatory safety standard establishes the first element of the Mathies test. As for the remaining
elements of Mathies, the Secretary asserts that the discrete safety hazard is the danger of slipping
and falling on the dock, potentially falling into the water and drowning. The evidence
demonstrates that miners frequently worked on the dock, which lacked both handrails and
toeboards. Knife River admitted that it regularly operates in rainy weather, a common occurrence
in the area. (Tr. 570:23–571:3.) Given that miners worked frequently in this area, often in wet
conditions, the lack of handrails and toeboards created the discrete safety hazard of slipping and
falling. The handrails on the walkway to the dock did not obviate this risk.
Given the dock’s proximity to water, the risk of slipping and falling created not only the
possibility of a miner hitting an object from such a fall but also the possibility of a miner falling
into the water, potentially incurring hypothermia or drowning. (Tr. 178:24–179:13.) Knife
River’s lifejacket policy did not ameliorate the risk of injuries associated with falling into the
water. Supervisory Mine Inspector Breland’s observations about the miners’ improper use of
lifejackets demonstrate that miners do not always properly secure life jackets, and as a
consequence, miners could be seriously injured or drown should they fall into the water.
Besides Knife River’s lifejacket policy, another factor offered to mitigate the risks
associated with this violation is the assertion that some of Knife River’s miners work in steel-toed
boots. (Tr. 223:17–224:24.) Nevertheless, despite the rugged construction of such shoes, they do
not guarantee stability, particularly if their soles are worn. (Tr. 225:1–15.) This possibility is why
toeboards are required in slippery areas to increase surface traction. (Id.)
In light of the slippery environment where this violation took place and the miners’
frequent exposure to that environment, I determine that the violation created the reasonably likely
risk that the hazard would contribute to injuries associated with slipping, falling, and drowning.
These injuries could be broken bones, or in the case of falling into the water with an improperly
secured lifejacket, death by drowning. These types of injuries are more serious than mere bumps
and bruises and are to be expected from the types of accidents associated with the hazards created
by this violation. Significant injuries, including fatal ones, were reasonably likely as a result of
this violation. I conclude that the gravity of this violation was appropriately assessed as a
reasonable likelihood of fatal injuries. Accordingly, I determine that the violation created the
reasonable likelihood that the expected injury would be of a reasonably serious nature. This
violation created a discrete safety hazard that gave rise to the reasonable likelihood of an injury of
a reasonably serious nature, establishing the remaining three elements of the Mathies test. I
conclude that the violation was S&S.
3.

Negligence

The Secretary asserts that Knife River was moderately negligent in committing this
violation. Here, Knife River required the use of life jackets in the area at issue. Unfortunately, as
noted above, this policy did not adequately guard against the risks associated with working in this
area. The evidence demonstrates that the improper use of lifejackets was not uncommon. Knife
River could have taken the cost-effective measures of installing handrails and toeboards on the
dock and significantly reduced the risks of working in this area. In light of the fact that Knife
River took partial measures to address the risks in this area, I determine that Knife River’s
violation constitutes moderate negligence. Citation No. 6479737 is hereby AFFIRMED, as
written.
4.

Civil Penalty

Under section 110(i) of the Mine Act, the Administrative Law Judge must consider six
criteria in assessing a civil penalty: the operator’s history of previous violations, the
33 FMSHRC 1464

appropriateness of the penalty relative to the size of the operator’s business, the operator’s
negligence, the penalty’s effect on the operator’s ability to continue in business, the violation’s
gravity, and the demonstrated good faith of the operator in attempting to achieve rapid compliance
after notification of a violation. 30 U.S.C. § 820(i).
Knife River’s history of violations over the fifteen months preceding this violation
consists of merely nine non-S&S violations assessed at $100 each, none of which involve the
standard breached in Citation No. 6479737. Nothing in the record suggests that the proposed
penalty amount of $585 that the Secretary seeks in these proceedings is inappropriate for the size
of Knife River’s business or that it would infringe on Knife River’s ability to remain in business.
Moreover, once this citation was issued, nothing suggests that Knife River failed to make a good
faith effort to achieve rapid compliance with the safety standard. Knife River was moderately
negligent, and the violation exposed one miner to a reasonable risk of fatal injuries. In
considering all of the facts and circumstances of this matter, I hereby assess a civil penalty of
$585.
B.

Citation Nos. 6479744 and 6479745 – The Work Boats
1.

Violation

Citation No. 6479744 was issued for the 40-horsepower work boat not having handrails or
toeboards. The boat measured approximately 15-feet long and 10-feet wide, and according to
Inspector Chaix “[t]his boat was observed to be in use by the dredge operator for transport to and
from the dredge at least twice each shift.” (Ex. KR-10.) Citation No. 6479745 was issued for the
20-horsepower work boat not having handrails or toeboards. (Ex. KR-12.) The boat was
approximately 14-feet long and 8-feet wide and according to Chaix was “used on an as-needed
basis for transport and as a work platform.” (Id.) Like a platform, these work boats are flat with
no sides or gunnels. (Ex. S-9.) Also, the boats have cranes built onto them. (Ex. S-9.) On the
night of the inspection, the 40-horsepower boat was holding welding equipment. (Tr. 58:17–25;
Ex. S-9.)
Citation Nos. 6479744 and 6479745 allege violations of 30 C.F.R. § 50.11027, which, as
stated above, require working platforms to be provided with handrails and toeboards. Both of the
alleged violations were deemed S&S by Chaix based on his determination that miners were
exposed to the risk of drowning. (Exs. KR-10, KR-12.) Knife River does not view the boats as
work platforms. (Tr. 337:6–7.) However, uncontroverted testimony showed that miners work on
the dredge and pipeline from the boats. (Tr. 58:17–59:9, 60:3–15.) Miners position the boats on
the water where they must perform necessary work tasks, such as moving them against the
pipeline so that they can use the welder, torches, and the crane. (Tr. 60:7–15.) Miners stand on
the boats to bolt and maintain the pipeline that carries out the sand, rock, and slurry mixture. (Tr.
60:16–61:21.) Periodic work is conducted on the boats, and the work is not so infrequent as to
preclude them from being regarded as working platforms. See Rohloff Sand & Gravel Co., 20
FMSHRC 868 (Aug. 1998) (ALJ Barbour) (finding a water pump platform floating on a pond to
be a “working platform”). Accordingly, I find that these boats constitute working platforms.
The analysis of Knife River’s notice regarding the application of § 56.11027 to its work
boats parallels the analysis of § 56.11027’s application to the dock. See discussion supra Part
IV.A.1. Knife River’s miners regularly performed work tasks from these boats. A reasonably
prudent operator should have recognized that the boats would be considered “working platforms.”
Even if the need to install handrails had been unclear, Knife River received notice from MSHA
official Art Ellis prior to Chaix’s inspection that it needed to install handrails on the boats. Thus,
I reject Knife River’s arguments to the contrary.
2.

Gravity and S&S
33 FMSHRC 1465

As articulated above, Knife River’s violations of a mandatory safety standard establishes
the first element of the Mathies test for an S&S violation. Like the dock, the boats need handrails
and toeboards to keep miners from slipping and falling either against other objects or into the
water, notwithstanding any mere inconvenience these safeguards may pose. (Tr. 575:1–19,
576:23–577:11.) The heightened possibility of such falls caused by this violation constitutes a
discrete safety hazard.
The miners had relatively frequent exposure to the hazard in these violations. The fact that
a miner had fallen off of a work boat in the past while on the job demonstrates the risks of
working in this environment. (Tr. 63:6–10.) Work is conducted on the boats during inclement
weather, such as rain, heightening the risk of slipping on a wet surface despite scoring on the
boats’ surfaces designed to add foot traction. (Tr. 91:14–15, 151:2–5, 570:10–571:3.) Life
jackets do not adequately ameliorate the varied hazards of this work environment, as they may not
be properly secured. Moreover, besides drowning, a falling miner could catch hypothermia from
exposure to the water or break a bone. As with the violation concerning the dock, the nature of
this hazard exposes one miner to the risk of drowning, a potentially fatal injury. Given the nature
of the hazard, the miners’ exposure to it, and the likelihood of injury, I conclude that the violation
resulted in a discrete safety hazard associated with the reasonable likelihood of an injury of a
reasonably serious nature. This conclusion establishes the remaining three elements of the
Mathies test for an S&S violation. I determine that these violations were S&S.
3.

Negligence

These citations charged Knife River with moderate negligence. The general circumstances
surrounding these violations are similar to the circumstances surrounding Knife River’s failure to
provide adequate safety measures on the dock. In light of Knife River’s notice of these violations,
the likelihood of injury, and the nature of the injury, I agree with the inspector’s determination
that Knife River’s negligence was moderate. As a result, Citation Nos. 6479744 and 6479745 are
hereby AFFIRMED.
4.

Civil Penalty

The Secretary seeks a civil penalty of $585 for each of these violations. I have considered
Knife River’s history of few violations. I have determined that the gravity and negligence of Knife
River’s violations in these two citations is the same as that committed in Citation No. 6479737,
which involves the same safety standard as the one breached in Citation Nos. 6479744 and
6479745. Nothing suggests that Knife River failed to make a good faith effort to achieve rapid
compliance with the safety standard once Citation Nos. 6479744 and 6479745 were issued.
Accordingly, based on the six civil penalty criteria, I conclude that the proposed civil penalty for
these violations is appropriate and hereby assess a civil penalty of $1,170.
C.

Citation No. 6479741
1.

Additional Findings of Fact – The Experts’ Reports

Citation No. 6479741 was issued by Inspector Chaix because the corrugated steel tunnel
running underneath the cobble surge pile had “at least two radial seams” that were failing and
“other significant deformations in the structure.” (Ex. KR-4, at 10.) One of the radial seams split
near the first vertical support. (Ex. S-5, at 3.) The second radial seam split near the twelfth
vertical support. (Ex. S-5, at 6.) The tunnel’s “other significant deformations” included buckling,
areas where the roof is inverted (Tr. 246:22–247:2), and distortion of the tunnel’s vertical
supports. Chaix felt the damage was “obvious” because the tunnel was visibly buckled, curved,
kinked, and bulged. (Tr. 35:13–38:22, 44:9–45:4.)
Two experts and one of Knife River’s engineers offered detailed testimony concerning the
33 FMSHRC 1466

condition of the tunnel. Terence Taylor testified on behalf of the Secretary and was accepted as
an expert in civil structural engineering. (Tr. 241:8–10.) H. John Head testified on behalf of
Knife River and was accepted as an expert in mining engineering. (Tr. 472:7–14.) Dr. Keith
Kaufman, author of Knife River’s 2008 report concerning the tunnel and Chief Engineer at Knife
River’s prestress plant in Knife River’s western Oregon division, also testified on behalf of Knife
River. (Tr. 404:19–405:4.)
Taylor observed that the overall shape of the tunnel was skewed, meaning the tunnel was
not a perfect ellipse or circle. (Tr. 250:8–14.) Part of the tunnel had widened out, but the
expansion ranged between only seven and thirteen inches. (Tr. 250:15–24.) This expansion
occurred in an area reinforced by the vertical posts. (Id.) Kaufman and both experts agreed that
the tunnel’s circular design is integral to its function. (Tr. 290:20–25, 409:18–25, 476:8–15.)
They also agreed that the cobble must be loaded evenly on the tunnel, as uneven loading could
compromise its strength. (Tr. 261:10–19, 418:22–419:1, 477:10–22.) Kaufman asserted that
cobble should not be removed from the tunnel in such a way as to unbalance its load. (Tr.
441:3–8; Ex. S-6, at 3.) Head agreed with this point and stressed that the tunnel should never be
uncovered. (Tr. 480:6–9.)
Taylor explained that a twenty percent deflection measurement indicates a risk of incipient
collapse, which is the point when the tunnel will buckle (or bulge) and go into a reverse curvature
shape. (Tr. 291:6–13.) Taylor relied upon two separate criteria to determine whether a particular
part of the tunnel had failed: (1) a measurement of twenty percent deflection or (2) buckling. (Tr.
310:24–311:1.) Knife River engineer Kaufman acknowledged that a buckle constitutes a
localized failure of the tunnel. (Tr. 450:4–6.) Here, the range of the tunnel’s deformation
measurements equated to a six to eleven percent deflection of the pipe. (Tr. 251:2–3.) According
to Taylor, the industry allows a deflection measurement of five percent. (Tr. 291:1–4.)
Taylor documented six bulges in the tunnel. (Tr. 244:16–18.) He stated that the tunnel
had permanently deflected in the bulging areas and would not return to its original shape. (Tr.
290:16–18.) Taylor described two bulges at the back of the tunnel and opined that the feeder
frame had prevented the tunnel’s complete collapse in that section. (Tr. 245:7–13.) Two bulges
were observed in the middle section of the tunnel. Head, Kaufman, and Taylor noted that the
vertical supports in this area added redundant support to the tunnel. (Tr. Tr. 293:5–16, 413:3–12,
516:19–24.) Finally, Taylor described two bulges at the entrance of the tunnel, which he
recognized as the ones shown in Kaufman’s report. (Tr. 246:12–17.)
Taylor’s analysis corroborated the two seam splits identified by Chaix and recognized a
third one located between the sixth and seventh vertical supports. (Tr. 247:15–21, 249:16–17.)
Kaufman’s report identified only the seam split near the first vertical support. (Ex. S-6, at 2.)
Kaufman recognized seam separation as a criterion indicating failure of the tunnel. (Tr. 450:7–9.)
Taylor testified that the tunnel’s design did not give it a safety factor of two, the prudent
design standard, and that in its current condition a variety of potential structural failures could
occur, such as the sudden buckling of a portion of the tunnel’s roof. (Tr. 269:9–270:5.) The
safety factor measures the ratio of the tunnel’s load bearing capacity over the load associated with
the height of the cobble pile. (Tr. 501:3–8.) To compute the safety factor, Taylor estimated the
load on the tunnel based on the cobble density measurement of one hundred pounds per cubic foot
provided by Knife River. (Tr. 288:11–21.) He approached the calculation from “an engineering
standpoint,” estimating the safety factor based on the maximum expected load, that is, the
maximum estimated height of the cobble pile, which he stated to be thirty feet. (Tr.
288:11–289:25.) Head disagreed with Taylor’s calculations, criticizing the compaction value
chosen by Taylor.9 (Tr. 503:23–505:14.) Head stated that although the exact value is unknown, it
lies somewhere between the extremes of seventy percent—“almost no compaction”—and eighty
9

The compaction value measures how tightly packed the cobble is. (Tr. 503:23–504:7.)
33 FMSHRC 1467

five percent—“the good end” of the range. (Tr. 507:20–508:3.) Noting that Taylor used a
compaction measurement of seventy percent, Head explained that a compaction factor of seventythree percent would yield a safety factor of two. (Tr. 505:16–506:14.) In response to this
criticism, Taylor explained his position that a compaction measurement of seventy percent “really
[gave] the company the benefit of the doubt,” in light of how loose the cobble material
surrounding the tunnel is. (Tr. 592:12–21.) Nevertheless, Taylor conceded that his analysis did
not account for the tunnel in its present condition, i.e., with installation of supplemental supports
and buckles in the tunnel’s structure. (Tr. 297:25–298:4.)
As one of the steps taken to abate this citation, MSHA required Knife River to measure
changes in the tunnel’s size. (Tr. 361:7–365:24.) Knife River measured the tunnel’s width in four
locations and also measured the size of two of the larger bulges. (Tr. 362:23–363:6.) The
monitoring data reveal that the measurements of these locations did not change in a sample of
thirty-five days spanning from September 2009 to October 2009. (Ex. KR-26.) During that time,
the cobble pile’s height varied from fifteen percent to eighty-five percent of its maximum. (Id.)
Although the tunnel has been damaged for a number of years, the damage’s cause is
unclear. (Tr. 135:20–136:6, 280:11–19.) The experts and Knife River’s engineer agree, however,
that at least the two bulges located nearest to the tunnel’s entrance were created by equipment
loading and unloading the surge pile. (Tr. 256:14–24, 258:9–15, 280:20–281:1, 432:13–22,
479:21–480:1.)
Indeed, no expert could specifically trace the progression of the tunnel’s damage, and it
was evident that the tunnel existed in mostly the same condition for a long period of time. The
tunnel’s vertical supports were installed approximately fourteen years ago. (Tr. 253:25–254:4.)
Kaufman and Head reported that they spoke with Knife River employees who stated that the
tunnel has been in its present condition for at least fourteen years. (Tr. 408:3–25, 484:11–14.)
Taylor noted that the bearing channel, which runs along the roof of the tunnel and connects to the
vertical supports, had rotated at the site of one of the buckles, implying that the tunnel was
damaged after the installation of the vertical supports. (Tr. 253:13–254:4.) Kaufman agreed that
“a lot of [the] deformation occurred after the retrofit,” specifically identifying the area with the
vertical supports. (Tr. 422:13–423:17.) He did state, though, that the bulges are not new
developments. (Tr. 421:22–422:1.) Head concurred that none of the damage to the tunnel was
new. (Tr. 484:15–21.) In contrast to Taylor and Kaufman, Head did not think that the tunnel had
deformed after the installation of the vertical supports. (Ex. KR-28, at 5.)
The substantial education and experience of Taylor, Kaufman, and Head allowed them to
make expert conclusions about the tunnel’s present condition. (Tr. 237:1–241:7, 405:2–406:16,
465:18–472:5.) Taylor’s analysis carefully documented the condition of the tunnel, finding
several locations where it had failed. In contrast, Kaufman visited the tunnel for fifteen minutes
and neither walked its entire length nor noted all of its deformations. (Tr. 410:5–19.) Head
explained that because some of the facts concerning the tunnel are unknown, he felt that a
“subjective analysis” was more appropriate than a “detailed, quantitative analysis.” (Tr.
473:24–474:7.) Head acknowledged that he did not perform “a rigorous technical evaluation” and
admitted that it was not “quite as complex as Mr. Taylor’s exam.” (Tr. 485:13–23.) Also, in
discussing his conclusion that the tunnel is safe, Head stated his opinion that “[s]hort of complete
inversion, [the] tunnel would not make me uncomfortable.” (Tr. 541:14–15.) The notion that a
tunnel on the verge of collapse is acceptable is incongruent with the Mine Act’s goal of protecting
miners’ safety. I grant more weight to Taylor’s analysis of the tunnel because it was more
thorough than Kaufman’s and Head’s reports and because Taylor did not rely on premises
contrary to the purpose of the Mine Act.
2.

The Violation

This citation alleges a violation of 30 C.F.R. § 56.14100(b), which states that “[d]efects on
33 FMSHRC 1468

any equipment, machinery, and tools that affect safety shall be corrected in a timely manner to
prevent the creation of a hazard to persons.” Chaix deemed the alleged violation S&S and an
unwarrantable failure to comply with a mandatory safety standard. He regarded the violation as
unwarrantable because Knife River had notice of the defect through a written report emailed on
October 26, 2008, by engineer Keith Kaufman to Gullickson, Dave Bull, Knife River Western
Oregon Division President, and Steve Zurfluh, Superintendent of Reed Pit prior to Wetmore. (Tr.
44:25–45:12; Ex. S-6.)
Knife River objects to the application of § 56.14100, and argues, in essence, that the
tunnel in question is not “equipment” within the ordinary meaning of the word as set forth in
§ 56.14100(b). Knife River further contends that even if, arguendo, the tunnel is considered
“equipment,” the Secretary has not demonstrated that the structures at issue had “defects affecting
safety” because no “mining” occurs within the tunnel; only a conveyor runs through it, and the
tunnel is rarely occupied by miners.10
Equipment is defined, in pertinent part, as “1a: the equipping of a person or thing; b: the
state of being equipped; 2a: the physical resources serving to equip a person or thing as (1): the
implements (as machinery or tools) used in an operation or activity (2): all the fixed assets other
than land and buildings of a business enterprise. . . .” Webster’s Third New International
Dictionary, Unabridged 768 (2002). Accordingly, inasmuch as the testimony indicates that the
tunnel is a fixed asset used in Knife River’s mining operation but is not a building, and is used in
the transport of materials in Knife River’s mining operation, it comes within the definition of
“equipment,” and thus is within the purview of § 56.14100(b).
Additionally, reference to the regulations further illuminates the Secretary’s interpretation
of her regulation. Part 56, Subpart M—“Machinery and Equipment,” regards large physical
components of mining operations as equipment. Several sections of the subpart regulate conveyor
systems, of which the tunnel is an integral part. E.g., 30 C.F.R. § 56.14109. The Secretary’s
interpretation of § 56.14100 is consistent with 30 C.F.R. Part 56, which sets forth the safety and
health standards governing surface metal and nonmetal mines, such as Reed Pit. I find that the
Secretary’s definition is a reasonable interpretation, as the tunnel allows Knife River to carry on
its aggregate mining activity. Therefore, the Secretary has established a violation. In light of this
conclusion, a reasonably prudent operator should have recognized that this standard applied to its
operation. Indeed, as noted by the Secretary (Sec’y Br. 61), Knife River admitted that it initiated
Kauman’s report in light of MSHA’s enforcement action against a structure at another one of its
facilties, implying that it was well aware equipment like the tunnel is subject to MSHA’s
regulatory authority.
3.

Gravity and S&S

Having established a violation of a mandatory safety standard, the first element of the
Mathies test, I now turn to the questions of gravity and whether this violation was S&S. The
tunnel deformations resulted in a discrete safety hazard. The buckling and deformations of the
tunnel could easily contribute to the potential collapse of the tunnel. Because the damage has
been present for a significant period of time, continued mining operations, with no additional
remedial measures, could contribute to increased deterioration. Assuming continued mining
operations from the issuance of the citation, further deterioration of the tunnel’s structure was
reasonably likely, creating a discrete hazard that could contribute to a miner’s injury.
Significantly, no accurate means exist to predict what circumstances might cause the tunnel to
collapse or even when a collapse might occur. (Tr. 298:20–25.) Miners must regularly work in
this environment, and to perform maintenance work, miners access the entire tunnel. (Tr.
10

Knife River acknowledged that miners access the cited culvert tunnel periodically to
perform workplace examinations or maintenance on the conveyor. (KN’s Prehr’g Statement 2.)
33 FMSHRC 1469

430:19–21.) At least one miner is required to spend some time in the tunnel every day as part of
his job. (Tr. 484:4–6.) A tunnel cave-in with miners inside of it would result in a reasonably
serious, if not fatal, injury. Accordingly, the hazard associated with this violation was properly
cited as a reasonably likely risk of fatal injury to one miner. The violation created a discrete
safety hazard associated with the reasonable likelihood of a reasonably serious injury. I conclude
that this violation was S&S.
4.

Negligence and Unwarrantable Failure

In this case, Knife River initiated the report on its own accord to confirm the tunnel’s
safety in light of MSHA’s concerns of a structure at another one of its mines. Moreover, Knife
River followed several of Kaufman’s recommendations. Its employees visually inspected the
tunnel’s deformations and temporary struts on a daily basis, recording their observations of the
struts, as recommended by the report. (Tr. 381:20–382:2, 383:14–23.) Most importantly, Knife
River ensured that it evenly loaded the tunnel in accordance with Kaufman’s recommendation.
(Tr. 382:11–383:13.) Indeed, all of the experts agreed that evenly loading the tunnel was crucial
to preserving its structural integrity. Nonetheless, Knife River did not implement all of
Kaufman’s recommendations. It did not install a sump pump to remove water from the tunnel.11
(Tr. 381:9–15.) Most significantly, Knife River did not install horizontal control points in the
tunnel in order to take periodic measurements of the tunnel’s geometry. (Tr. 381:16–19.)
When the violation was cited, the tunnel’s condition was relatively static. Only some of
the damage had occurred since the installation of the tunnel’s vertical supports approximately
fourteen years ago. All of the experts agreed that the vertical supports supplemented the tunnel’s
strength. Moreover, Taylor’s albeit thorough analysis of the tunnel did not account for these
supports. This fact softens Taylor’s criticism of Knife River that the tunnel, as originally
designed, was inadequate to its use. The present stability of the tunnel given Knife River’s own
observations of it and the tunnel’s 2009 size measurements under MSHA’s direction suggest that
the tunnel is not in immediate danger of collapse. At the same time, although the tunnel
conditions remained static, none of the experts could provide calculations that accurately
established its safety factor. This unknown risk factor posed a risk to miners’ safety that Knife
River failed to adequately address.
Here, Knife River did take some steps to investigate the condition of its damaged tunnel
and implemented measures to ensure that it did not pose a danger to its miners. The relatively
static condition of the tunnel did not give Knife River reason to think that its tunnel posed an
immediate threat to its miners. At the same time, Knife River failed to take significant, yet costeffective, steps to mitigate the dangers posed by the tunnel, including researching its original
design plan and measuring its size. Furthermore, relying on visual observations, instead of taking
measurements of horizontal control points, is no way to ensure equipment such as this tunnel,
which had sustained visible damage long ago, was in a condition that it would not fail. Based on
these considerations, I conclude that Knife River’s violation evinced a high degree of negligence.
None of the evidence suggests that in using the tunnel Knife River engaged in aggravated
conduct constituting more than ordinary negligence. Knife River took steps to ensure that its
miners would not be exposed to the tunnel’s collapse. Knife River could have taken further
simple steps to ameliorate the hazards associated with this tunnel. However, it should not be
penalized for its self-directed efforts to investigate the tunnel and its attempt to address the
tunnel’s compromised structure. I conclude that this violation did not constitute an aggravated
11

Chaix issued Order No. 6479742 alleging standing water in the tunnel, and he
referenced Kaufman’s recommendation to install a sump pump. As explained below, I have
approved the parties’ agreement to settle the order, modifying it to a section 104(a) citation.
33 FMSHRC 1470

failure to adhere to a mandatory safety standard.
Accordingly, Citation No. 6479741 is hereby MODIFIED to a section 104(a) citation.
5.

Civil Penalty

The Secretary seeks a civil penalty of $2,000 for this violation. Here, nothing suggests
that Knife River failed to make a good faith effort to achieve rapid compliance after this citation
was issued. However, I have determined that this citation still involved Knife River’s high
negligence with regard to a hazard involving the reasonably likely risk of fatal injuries to one
miner. Therefore, a civil penalty of $1,000 is appropriate for this violation.
D.

Order No. 6479743
1.

Violation

Both Order No. 6479743, issued July 28, 2009, and Citation No. 6479746, issued July 29,
2009, involve a wooden barrier wall. The wall is 100-feet long by 28-feet high and was built to
suppress noise and dust. (Tr. 370:1–3, Ex. S-12, at 8.) It originally surrounded the entire crusher,
but some sections had been removed. (Tr. 370:5–12, Ex. S-12, at 8.) Order No. 6479743 was
issued based on Inspector Chaix’s assertions that five of the six support columns in the wall were
significantly rotted at the time of the inspection, and the remaining column was only slightly less
rotted. (Ex. KR-8.) Chaix testified that daylight was visible beneath the posts. (Tr. 46:22–24,
Ex. S-8.) Also, the wall was attached to the crusher operator station and to a workshop.12 (Tr.
318:7–15; 520:1–4; Ex. S-12, at 8.) Chaix determined that miners working and traveling in the
area would be exposed to the hazard of the wall moving abruptly or collapsing altogether. (Tr.
49:23–50:21, 52:20–23.)
Order No. 6479743 was issued as a section 104(d)(1) order for an alleged violation of
30 C.F.R. § 56.14100(b), which requires that “[d]efects on any equipment, machinery, and tools
that affect safety shall be corrected in a timely manner to prevent the creation of a hazard to
persons.” Chaix found the alleged violation to be S&S and an unwarrantable failure, stating that
“[m]ine management engaged in aggravated conduct constituting higher than ordinary negligence
in that they were aware of the condition of the wall and the need for it to be removed, but failed to
act to protect their miners by ensuring the correction of the condition prior assigning miners to
continue to work and travel in the area.” (Ex. KR-8.) Chaix’s allegations of “aggravated
conduct” stem from the “obvious” poor condition of the wall and the fact that Reed Pit
management allowed miners to travel to and from the crusher operator station located under the
wall. (Tr. 53:12–24.) Terence Taylor testified that due to the rotted columns, it would not have
the capacity to resist the significant wind loading expected for that part of Oregon—eighty-five
miles per hour. (Tr. 272:17–273:1.) The order required Knife River employees to be withdrawn
from the north wall along the crusher and the area beneath the wall on both sides “for a distance
equal to its height.” (Ex. KR-8.) Citation No. 6479746 was issued for an alleged failure by Knife
River to follow the withdrawal order. (Ex. KR-14.)
Knife River contends that the wall is not within any ordinary definition of “equipment,
machinery, and tools.” While Knife River acknowledged that it was aware of the condition of the
wall and was in the process of taking it down, it had been almost a year since Knife River worked

12

The wall’s plywood paneling was toed into the sill plate, and angled bracing also
supported the wall. (Tr. 520:1–521:2, Ex. S-12, at 8–9.)
33 FMSHRC 1471

on removing the wall. (Tr. 56:14–23, 565:19–566:1, 572:13–23.)13 Also, the evidence showed
that the wall still blocks noise and dust—intentionally or not. (Tr. 48:13–49:22, 131:20–22,
370:1–3; Ex. S-12, at 8.) I find that the wall served as a physical resource, equipping Knife River
in its mine operation in that the wall still blocks dust and noise. See discussion supra Part IV.C
(analyzing the meaning of the term equipment). Reference to Subpart M of 30 C.F.R. Part 56
reveals that the regulations regard items like this barrier wall as “equipment.” Section 56.14110
requires the construction of “guards, shields, or other devices that provide protection against . . .
flying or falling materials.” Knife River constructed the wall, in part, to block the dust generated
by the crusher unit. Therefore, I find that the Secretary has reasonably interpreted the term
“equipment” to include the wall and has therefore established a violation.
2.

Gravity and S&S

Based on the evidence, a danger to safety from the wall was present because the posts
holding the wall were rotted, posing a high risk of the wall falling in light of the expected wind
velocities in that part of Oregon. Even though the wall is reinforced by plywood backing
anchored into a concrete and steel base, the base posts were extensively rotted and cracked. (Tr.
124:3–125:21, 561:11–24.) Simply because the wall had not previously shown signs of instability
in high winds does not mean a gust could not knock the wall over. This fact simply means that a
wall collapse is not highly likely should mining operations continue. Even though MSHA
Supervisor Breland testified that the crusher operator station would protect the miners if the wall
fell, miners not inside the operator station were exposed to the risk of the falling wall. (Tr.
230:16–231:16.) A wall collapse could result in severe or even fatal injuries. The gravity of this
violation was properly cited as a reasonably likely risk of fatal injuries to two miners. I conclude
that this violation was S&S.

3.

Negligence and Unwarrantable Failure

Here, the evidence demonstrates that the posts supporting the wall had severely rotted
away. This deterioration could not have happened abruptly. Instead, it developed over time.
Prior to the abatement of this violation, the wall was reinforced by plywood backing anchored into
a concrete and steel base. (Tr. 124:3–125:21, 561:11–24.) Furthermore, the structure of the wall
is such that its position abutting the trailer gave the wall added stability. In light of these
reinforcements, the deteriorated condition of the wall was not so extensive as to justify a finding
of unwarrantable failure. Knife River had taken steps to remove other parts of the wall and stated
it had intentions of removing the remaining portion, though the subsequent dismantling of the
wall had not yet occurred. Additionally, during prior inspections Knife River had not been told
that their measures to secure the wall were inadequate. Aggravated conduct exhibiting more than
ordinary negligence is not present in this case, and I conclude that the violation cited in Order No.
6479743 does not rise to the level of unwarrantable failure. Instead, a finding of high negligence
more accurately reflects Knife River’s dilatory response to the wall’s structural problems.
Based on the foregoing, Order No. 6479743 is hereby MODIFIED to a 104(a) citation.
4.

Civil Penalty

Here, the Secretary seeks a civil penalty of $2,341. This violation involved Knife River’s
high negligence as to a hazard involving the reasonably likely risk of fatal injuries to two miners.
13

Knife River planned on removing the wall because it was considered an “eyesore” and
because it created a blind spot for mobile equipment. (Tr. 566:2–15.)
33 FMSHRC 1472

No evidence leads to the conclusion that Knife River failed to make a good faith effort to achieve
rapid compliance after this citation was issued. Given the significant gravity of this violation, I
determine that a civil penalty of $1,100 is appropriate.
E. Citation No. 6479746
1.

Violation

Citation No. 6479746 alleges Knife River’s violation of Order No. 6479743, which was
issued under section 104(d)(1) of the Mine Act. (Ex. KR-14.) Inspector Chaix asserted that
“[m]iners were not withdrawn from the area affected . . . in [the] Order of Withdrawal # 6479743
. . . . Two miners were observed to have been assigned to work and travel in, through, and near the
crusher operator shack, which was located through and underneath the North wall.” (Id.) Knife
River argues that should Order No. 6479743 be found invalid, Citation No. 6479746 should be
vacated. (KR Br. 34.) Given that I have modified Order No. 6479743 to a section 104(a) citation,
the issue presented by Citation No. 6479746 is whether the Secretary can establish a violation.
In Lodestar Energy, Inc., 25 FMSHRC 343 (July 2003), the Commission vacated an
Administrative Law Judge’s decision affirming a section 104(d)(1) withdrawal order on the basis
that the Judge negated the section 104(d)(1) citation underlying the order, thereby removing one
of the necessary predicates to the issuance of the withdrawal order. Id. at 346. The difference
between Lodestar Energy and this case, however, is that the underlying violation in Lodestar
Energy could still stand as a section 104(a) citation, as the violation concerned the breach of a
particular safety standard. Id. at 346–47. Here, Citation No. 6479746 concerns the breach of a
withdrawal order that has been invalidated by this decision.
Although the withdrawal order underlying Citation No. 6479746 has been found to be
invalid, when the Citation No. 6479746 was issued, the withdrawal order was still effective. The
question here is whether the post-citation invalidation of the order underlying a section 104(a)
citation through the judicial process necessitates the invalidation of the section 104(a) citation.
The text of section 104(a) is silent on this issue:
If, upon inspection or investigation, the Secretary or his authorized representative
believes than an operator of a coal or other mine subject to this Act has violated
this Act, or any mandatory health or safety standard, rule, order, or regulation
promulgated pursuant to this Act, he shall with reasonable promptness, issue a
citation to the operator.
30 U.S.C. § 814(a).
The Commission has recognized that “[s]ection 104(d) is an integral part of the Mine
Act’s graduated enforcement scheme.” Greenwich Colleries, 12 FMSHRC 940, 945 (May 1990).
As the Secretary’s representatives, mine inspectors play a crucial role in ensuring miners’ health
and safety. See Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2164 (Nov. 1989)
(discussing the mine inspector’s discretion to issue imminent danger orders).
If the violation of a withdrawal order may be vacated simply by the Commission’s postinspection modification of the underlying withdrawal order to a section 104(a) citation, then mine
operators will have a significantly reduced incentive to comply with the withdrawal order.
Adherence to withdrawal orders is vital to the Mine Act’s enforcement scheme, and violating
these orders, even if they are ultimately found not to be sustainable under section 104(d), may risk
the lives of miners. Moreover, the unprecedented caseload before the Commission means that the
validity of a particular withdrawal order may go unresolved for a significant period of time.
Based on the text and purpose of the Mine Act, I conclude that a violation of an effective
33 FMSHRC 1473

withdrawal order may be established by demonstrating the breach of the order, notwithstanding
the result of the post-inspection adjudication of the withdrawal order.
As for the factual circumstances surrounding this citation, the facts demonstrate that
following the issuance of the withdrawal order concerning the wall, miners entered and exited the
crusher operator station. (Tr. 69:5–72:3.) This structure ran underneath and adjacent to the barrier
wall and was clearly visible within the area subject to the order. (Tr.51:21–52:13, 68:16–20; Ex.
S-8, at 1.) Miners entered an area closed by MSHA’s withdrawal order, so I conclude that a
violation occurred.
2.

Gravity

The Secretary has asserted that the likelihood of injury in this violation was non-existent.
Here, the deteriorated wall had remained standing for years. Miners entered the area affected by
the risk of the wall’s collapse in violation of Order No. 6479743 for merely a day. Indeed, the
wall did not fall during that brief time period. Application of the “continued normal mining
operations” test invokes a counterfactual inquiry into the risks associated with an operator
continuing to mine in spite of a particular condition that violates a mandatory health or safety
standard. The instant violation does not involve a condition that breaches a particular mandatory
safety standard. Instead, the instant violation involves the breach of a government order. Given
this distinction and the limited duration of the violation, the continued normal mining operations
test has limited use here. I conclude that this violation was not associated with the risk of any
injury.
3.

Negligence

Knife River argues that its negligence should be reduced based on its good faith effort to
comply with the withdrawal order. (KR Br. 33–34.) Knife River put up tape around the area
affected by the withdrawal order in an attempt to comply with it. Inspector Chaix did not direct
Knife River to erect this tape. (Tr. 73:14–16, 126:19–21.) In Knife River’s favor, MSHA
Supervisor Breland did state that Knife River could continue operating its crusher, not realizing
that the crusher was in the area subject to the order. (Tr. 183:9–19.) MSHA Supervisor Breland
acknowledged that a misunderstanding may have occurred, and he modified the citation from high
negligence to moderate. (Tr. 181:16–22.) Regardless of whether a miscommunication occurred,
if Knife River had any doubts as to the parameters of the order, Knife River could have clarified
thoroughly with Chaix or Breland. Most importantly, the crusher operator station’s location
inside the tape set up by Knife River was clear to the naked eye. Knife River violated the
withdrawal order because miners continued to work near the crusher operator station, which was
within the parameters of the area subject to the withdrawal order.
At the same time, the evidence demonstrates that the risk of Knife River’s violation was
low. The miners were entering and exiting the crusher operator station where the expectation of
injury was virtually non-existent. Based on all of these factors, I conclude that Knife River
committed no more than ordinary negligence in this violation and conclude that the violation was
appropriately determined to involve moderate negligence. Citation No. 6479746 is hereby
AFFIRMED.
4.

Civil Penalty

The Secretary seeks $112 for this violation. Based on the gravity and negligence
associated with the violation, as well as the fact that the evidence does not reveal any lack of good
faith by Knife River to achieve rapid compliance after being alerted of the violation, I conclude
that a civil penalty of $112 is appropriate for this violation.
33 FMSHRC 1474

F. Settlement of Citation No. 6479738 and Order No. 6479742
As stated above, the parties reported at the hearing that Citation No. 6479738 and Order
No. 6479742 have settled. The Secretary has filed a Joint Motion to Approve Settlement pursuant
to Commission Rule 31, 29 C.F.R. § 2700.31. The originally assessed amount of the applicable
two citations at issue was $2,117, and the proposed settlement is $410. The proposed settlement
is as follows:
Docket No. WEST 2009-1437-M
Citation/
Order No.
6479742

Date
07/28/2009

30 C.F.R.
56.20003(b)

Assessment
$2,000

Settlement
$293

Docket No. WEST 2009-1438-M
Citation/
Order No.
6479738

Date
07/22/2009

30 C.F.R.
56.18002(a)

Assessment
$117

Settlement
$117

Knife River has agreed that as a condition of settling Citation No. 6479738, it will conduct
visual inspections of the escape tunnel at issue on a daily basis, and someone will travel and
inspect the entire length of the tunnel on a quarterly basis. (Tr. 9:25–10:17.) In the Joint Motion
to Approve Settlement, the Secretary has agreed to modify Order No. 6479742 to a citation under
section 104(a) of the Mine Act involving Knife River’s “moderate” negligence.
In support of the proposed settlement, the Secretary has submitted information pertaining
to the six statutory civil penalty criteria found in section 110(i) of the Act, 30 U.S.C. 820(i),
including information regarding Knife River’s size, ability to continue in business, and history of
previous violations.
In addition, the Secretary has stated reasons fully warranting the agreed upon reduction in
the proposed penalties.
After review and consideration of the pleadings, arguments, and submissions in support of
the settlement motion, I find the proposed settlement is reasonable and in the public interest.
Pursuant to 29 C.F.R. 2700.31, the motion is GRANTED, and the settlement is APPROVED.
VI. ORDER
In light of the foregoing, it is hereby ORDERED that Citation Nos. 6479737, 6479744,
6479745, and 6479746 are AFFIRMED. Knife River is ORDERED to pay a civil penalty of
$4,377 within 40 days of this decision. Upon payment of the civil penalty, the above-captioned
contest proceedings are DISMISSED.
Also within 40 days of this decision, the Secretary is ORDERED to MODIFY Order No.
6479742 by striking its designation as an unwarrantable failure to comply with a mandatory safety
standard, reducing its negligence to “medium,” and changing it to a citation issued under section
104(a) of the Mine Act.
/s/ Alan G. Paez
Alan G. Paez
Administrative Law Judge
33 FMSHRC 1475

Distribution:
Patricia N. Drummond, Esq., U.S. Department of Labor, Office of the Solicitor, 1111 Third
Avenue, Suite 945, Seattle, WA 98101
Adele L. Abrams, Esq., Law Office of Adele L. Abrams, P.C., 4740 Corridor Place, Suite D,
Beltsville, MD 20705
/jts

33 FMSHRC 1476

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
7 PARKWAY CENTER
875 GREENTREE ROAD, SUITE 290
PITTSBURGH, PA 15220
TELEPHONE: (412) 920-7240
FACSIMILE: (412) 928-8689

June 17, 2011

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

:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDING
Docket No. WEST 2010-1508-M
A.C. No. 26-02314-223636 A3V

Mine: Midas Mine

DECISION
Appearances: Isabella M. Finneman, Esq., Office of the Solicitor, U.S. Department of
Labor, San Francisco, CA, on behalf of the Secretary of Labor;
Charles W. Newcom, Esq., Sherman & Howard, 633 Seventeenth Street,
Suite 3000 Denver, CO 80202, on behalf of Small Mine Development.
Before:

Judge Kenneth Andrews

This case is before me upon the petition for assessment of a civil penalty filed by the
Secretary of Labor (“Secretary”) pursuant to Section 105(d) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C §801 et seq. (the “Act”) charging Small Mine Development
(“Respondent”) with violations of mandatory standards and seeking civil penalties in the Special
Assessment amount of $52,500.00 for one safety violation. The order is a section 104(d)(1)
action. Section 104(d)(1) of the Act provides as follows:
(d)(1) If, upon any inspection of a coal or other mine, an authorized representative
of the Secretary finds that there has been a violation of any mandatory health or
safety standard, and if he also finds that, while the conditions created by such
violation do not cause imminent danger, such violation is of such nature as could
significantly and substantially contribute to the cause and effect of a coal or other
mine safety or health hazard, and if he finds such violation to be caused by an
unwarrantable failure of such operator to comply with such mandatory health or
safety standards, he shall include such finding in any citation given to the operator
under this Act. If, during the same inspection or any subsequent inspection of such
mine within 90 days after the issuance of such citation, an authorized
representative of the Secretary finds another violation of any mandatory health or
safety standard and finds such violation to be also caused by an unwarrantable
failure of such operator to so comply, he shall forthwith issue an order requiring
the operator to cause all persons in the area affected by such violation, except those
persons referred to in subsection (c) to be withdrawn from, and to be prohibited
from entering, such area until an authorized representative of the Secretary
determines that such violation has been abated.
A hearing was held on March 15, 2011 in Reno, Nevada.

33 FMSHRC 1477

The general issues before me are whether Small Mine Development violated the cited
standard as charged and, if so, what are the appropriate civil penalties to be assessed for those
violations. Additional specific issues are addressed as noted below.
Discussion with Findings of Fact and Conclusions of Law
The Midas Mine is an underground gold mine, which necessitates quarterly inspections.
Hearing Transcript (Tr.) 25.
On February 9, 2010, Mine Safety and Health Administration (“MSHA”) Inspector
Lawrence King performed an E01 inspection of the Midas Mine. (Tr. 18). Before working for
MSHA, Inspector King spent 21 years as a supervisor of heavy construction projects for E.T.
Simonds, where he gained experience with fall protection and fall arrest systems. (Tr. 22-23).
Inspector King also received 23 weeks of training at the Mine Safety and Health Academy in
Beckley, West Virginia. (Tr. 23). Interspersed with his training in West Virginia, Inspector King
traveled to Anchorage, Alaska for field training with experienced MSHA inspectors. (Tr. 23).
Citation No. 85554051
Citation No. 85554051, issued at 1055 hours, alleges a violation of a mandatory safety
standard, section 57.15005, and states:
The project superintendent John Boltz and a second miner was [sic] observed on
the roof of a connex without safety belts and lines. One side had a tent like
structure used as a temporary shop to prevent a fall, but one side and both ends had
no rails to prevent falling. The connex was approxatimly [sic] 8 feet 8 inches high
from the ground, and 8 foot wide and 40 foot long. This creates a fall hazard to
miners. Project superintendent John Boltz engaged in aggravated conduct
constituting more than ordinary negligence by allowing a miner and himself to be
on the roof of the connex with no fall protection. This violation is an
unwarrantable failure to comply with a mandatory standard.
Petitioner (“P”) Exhibit (“Ex.”) 2.
Inspector King testified that from a distance he noticed a man without fall protection
climbing a ladder that leaned against an unfamiliar structure. (Tr. 26). As he approached, King
realized that the structure consisted of two connexes with a tent in between them. (Tr. 26). King
learned that the man on top of one of the connexes was project superintendent John Boltz. (Tr.
27). Although he could not see what Boltz was doing, King insisted that Boltz return to the
ground because Boltz did not have any fall protection. (Tr. 26-27). King says that Boltz claimed
he was tying down the tent, and that he “sheepish[ly]” admitted to forgetting fall protection. (Tr.
27).
Inspector King determined that failing to use fall protection in this situation constituted a
violation of MSHA standard 57.15005. King found that the connex was eight feet wide, 40 feet
long and eight feet, eight inches tall. (Tr. 29). He said that there was no railing on the 8 foot wide
front. (Tr. 32). Based upon what Boltz told him, King also says that Boltz was moving from
kneeling to standing while he worked. (Tr. 36).
30 C.F.R §57.15005 states:
Safety belts and lines shall be worn when persons work where there is danger of
falling; a second person shall tend the lifeline when bins, tanks, or other dangerous
areas are entered.
A violation of 30 C.F.R §57.15005 is determined by an objective standard that does not
consider the skill of the miner involved. It occurs when “a reasonably prudent person…would
recognize a hazard warranting corrective action.” Secretary of Labor v. Great Western Electric
33 FMSHRC 1478

Company 5 FMSHRC 840, 841 (1983); See also Secretary of Labor v. Lexicon Inc., D/B/A Schuek
Steel Company 24 FMSHRC 1014, 1021 (2002).
John Boltz was admittedly not wearing fall protection, and I credit Inspector King’s
testimony that the unguarded front edge presented a danger of falling. Therefore, Small Mine
Development violated the mandatory safety standard at section 57.15005.
Significant and Substantial
The inspector designated citation No. 85554051 as significant and substantial (“S&S”). A
violation is S&S when it is “of such a nature as could significantly and substantially contribute to
the cause and effect of a coal or other mine safety or health hazard.” 30 U.S.C. §814(d)(1). A
violation is properly designated as 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.” Secretary of Labor v. Cement Division, National
Gypsum Company, 3 FMSHRC 822, 825 (Apr. 1981). In order to establish that a violation is
S&S, the Secretary must prove:
(1) the underlying violation of a mandatory safety standard; (2) a discrete safety
hazard—that is, a measure of danger to safety—contributed to by the violation; (3)
a reasonable likelihood that the hazard contributed to will result in an injury; and
(4) a reasonable likelihood that the injury in question will be of a reasonably
serious nature.
Secretary of Labor v. Mathies Coal Company, 6 FMSHRC 1, 3 (Jan.1984); See also Buck Creek
Coal Inc. v. FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary of Labor,
861 F.2d 99, 103-04 (5th Cir. 1988), aff’g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec.
1987) (approving Mathies criteria). The evaluation is made in terms of “continued normal mining
operations.” U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984).
I have found a violation of the cited mandatory safety standard, which meets the first
criterion. John Boltz did not wear a safety belt or fall protection as required by 30 C.F.R
§57.15005. Inspector King found, and the Secretary proved on this record, a danger of falling
existed on the front edge of the connex where the ladder was placed. There were no railings along
that edge of the connex. (Tr. 31-32); see also P. Ex. 4. Showing that a violation should be
designated S&S, however, requires a finding “to be made in addition to a finding of a violation;
something more than the violation of a standard itself is required.” National Gypsum, 3 FMSHRC
at 826 (emphasis in original).
In accordance with Inspector King’s testimony, I find that the discrete safety hazard of
falling existed at the unprotected front edge of the connex. Respondent did not deny King’s
testimony that the 8-foot front edge of the connex where the ladder was placed did not have a
railing. King estimated that the ladder extended no more than 18 inches from the top of the
connex, which would not act as a safety railing for a falling miner. (Tr. 31-35). Considering that a
miner had to use the ladder to travel between the ground and the top of the connex, the front edge
presented a danger of falling that could not be avoided. (Tr. 102). The act of getting on and off of
the ladder made a miner even more likely to fall due to the movements involved in the process
and the need to approach the edge of the connex. Fall protection would have removed this hazard.
The failure to wear fall protection in violation of §57.15005 contributed to the discrete safety
hazard of falling from a height of 8 feet 8 inches.
Furthermore, at some point Boltz would have to secure the tie-downs closest to the front
edge of the connex. Considering that he stood up to move between tie-downs, the possibility that
he could lose his balance and fall in the process of securing the last tie downs increased. (Tr. 31
32). Although Boltz did not work near the front edge for the entire time he was on the connex, he
could reasonably have fallen over that edge due to the fact that he had no fall protection, had to
33 FMSHRC 1479

use the unsecured ladder leaning against the front edge, and had to approach the edge to secure the
last tie downs.
In the reasonably likely circumstance that a miner were to fall off of the front edge of the
connex, it is reasonably likely that a fatal injury could occur. Three to four inch rocks- comprised
the base around the connexes. (Tr. 28). Based on personal experience and MSHA fatalgrams,
Inspector King testified that an 8 foot fall onto stone ground could kill a miner. (Tr. 34-35). John
Boltz also testified that he had heard of 8 foot-fall resulting in broken bones and fatalities.
(Tr.106). There was a reasonable likelihood that falling would result in an injury of a reasonably
serious nature. Accordingly, I find that the violation was S&S.
Unwarrantable Failure
The inspector also designated citation No. 85554051 as an unwarrantable failure, as set
forth in section 104(d)(1) of the Mine Act, 30 U.S.C. §814(d)(1). Unwarrantable failure means
“aggravated conduct, constituting more than ordinary negligence, by a mine operator in relation to
a violation of the Act.” Emery Mining Corporation v. Secretary of Labor, 9 FMSHRC 1997, 1997
(Dec. 1987). An unwarrantable failure is characterized by language such as: “reckless disregard”
“intentional misconduct” “indifference” or a “serious lack of reasonable care.” Id. at 2003-04;
Secretary of labor v. Rochester & Pittsburgh Coal Corp., 13 FMSHRC 189, 193-94 (Feb. 1991).
In Mullins & Sons Coal Co., the Commission set forth factors to be considered in an
unwarrantable failure (“UWF”) analysis: “the extensiveness of the violation, the length of time
that the violative condition has existed, the operator's efforts to eliminate the violative condition,
and whether an operator has been placed on notice that greater efforts are necessary for
compliance.” Secretary of Labor v. Consolidation Coal Co., 18 FMSHRC 1541, 1548 (Sept.
1996), citing Secretary of Labor v. Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994).
The violative condition was eliminated even before receipt of the citation. When Inspector
King noticed the two miners on top of the connex, he approached them immediately and told them
to return to the ground. (Tr. 26). The miners complied and Inspector King subsequently wrote the
citation and recorded the violation as terminated. See P. Ex. 2.
The violation existed for a short period of time. The work of tying down the tent needed
to be done only once. (See Tr. 73-74). The miners spent less than one hour on top of the connex.
(Tr. 104). This violation did not threaten the safety of the miners continuously over a long period
of time; it did not even last as long as the MSHA inspection.
Respondent had no prior notice that greater efforts were necessary for compliance, such as
warnings from MSHA personnel or even conversations with inspectors about working on the
connex. Respondent was not previously cited for this type of violation, even though they had used
the tent structure before. (See Tr. 118). John Boltz testified that he was convinced he was safe
without fall protection at the time of the violation. (Tr. 93-94); (see also Tr. 90-91). Without a
citation or other communication from MSHA about the safety standard, there is insufficient
evidence that Respondent was on notice that compliance required greater efforts on their part.
Although the extent of this violation endangered the lives of two miners, Respondent had
no advance notice of the problem. Furthermore, the violation was terminated immediately and
only lasted a short period of time. This violation does not constitute any intentional, indifferent or
reckless behavior, or even a serious lack of reasonable care. Therefore, the Secretary has not
carried the burden of proof by a preponderance of the evidence that the violation constituted UWF
on the part of Respondent Small Mine Development.
Notwithstanding that UWF is not established, I find that the degree of negligence was
correctly designated as “High”. As a supervisor, Boltz should have known of the requirement of
fall protection for persons working at unprotected heights, such as the top of the connex with no
33 FMSHRC 1480

hand or guard rails installed, and no secure ladder access. Considering supervisory responsibility
to protect workers, mitigating circumstances are not shown.
Lastly, It is again noted that the violation was abated immediately and in good faith.
Penalty
Pursuant to section 110(i) of the Act, “[t]he Commission shall have authority to assess all
civil penalties provided in this Act.” §30 U.S.C. 820(i). The following six statutory criteria are to
be considered:
The operator’s history of previous violations, the appropriateness of such penalty
to the size of the business of the operator charged, whether the operator was
negligent, the effect on the operator’s ability to continue in business, the gravity of
the violation, and the demonstrated good faith of the person charged in attempting
to achieve rapid compliance after notification and violation.
Id. I have considered each of the statutory criteria in assessing the penalties.
Citation No. 85554051 is found to be S&S, non-UWF, and with high negligence. This
results in a penalty reduction from $52,500.00 to $9,882.00.
ORDER
For the reasons set forth above, Citation No. 85554051 is MODIFIED to delete the
unwarrantable failure designation. Small Mine Development is hereby ORDERED TO PAY the
sum of $9,882.00 within 30 days of the date of this decision.1 Upon receipt of payment, this case
is DISMISSED.
/s/ Kenneth R. Andrews________
Kenneth R. Andrews
Administrative Law Judge
Distribution:
Isabella M. Finneman, Esq., Office of the Solicitor, U.S. Department of Labor, 90 7thStreet, Suite
3-700, San Francisco, CA, 94103
Charles W. Newcom, Esq., Sherman & Howard, 633 Seventeenth Street, Suite 3000 Denver, CO
80202

1

Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION,
U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P.O. BOX 790390, ST. LOUIS, MO
63179-0390
33 FMSHRC 1481

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19th STREET, SUITE 443
DENVER, CO 80202-2500
303-844-5266/FAX 303-844-5268

June 21, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

v.

BLACK BEAUTY COAL COMPANY,
Respondent.

:
:
:
:
:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 2009-470
A.C. No. 12-02010-182283-01
Docket No. LAKE 2009-471
A.C. No. 12-02010-182283-02
Docket No. LAKE 2009-612
A.C. No. 12-02010-191237-02
Mine ID: 12-02010
Mine: Air Quality #1 Mine

DECISION
Appearances:

Awilda Marquez, Pam Mucklow, Office of the Solicitor, U.S. Department
of Labor, Denver, Colorado, for Petitioner;
Arthur Wolfson, Dana Svendson, Jackson Kelly, Pittsburgh, Pennsylvania, for Respondent.
Before:

Judge Miller

These cases are before me on a petition for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration, against Black
Beauty Coal Company at its Air Quality #1 mine, pursuant to sections 105 and 110 of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act” or “Act”). The
three dockets captioned above , which are the subject of this decision, were heard along with three
other dockets, LAKE 2009-565, 569, and 570, and share a common transcript and exhibits.
Docket Nos. LAKE 2009-565, 569, and 570 are addressed in two other decisions. With the
exception of the seven citations and orders discussed below, the parties have agreed to settle all
citations and orders in the captioned dockets. The settlement terms are set forth below. The
parties presented testimony and documentary evidence at the hearing held in Evansville, Indiana
commencing on February 15, 2011.
I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
Black Beauty Coal Company, (“Black Beauty”) operates the Air Quality #1 mine (the
“mine”), a bituminous, underground coal mine, near Vincennes, Indiana. The mine uses a
continuous miner and utilizes the room and pillar method. (Tr. 15). The mine is subject to
regular inspections by the Secretary’s Mine Safety and Health Administration (“MSHA”) pursuant
to section 103(a) of the Act. 30 U.S.C. § 813(a). The parties stipulated that Black Beauty is the
operator of the mine, that the mine’s operations affect interstate commerce, and that it is subject to
the jurisdiction of the Mine Act. Jt. Ex. 1; (Tr. 587-588). Black Beauty Coal, like a number of
other mines in the Indiana-Illinois area, is owned by Peabody Energy. The mine is a large
operator.
33 FMSHRC 1482

A.

Common Facts and Law

In addition to the penalty criteria and jurisdictional matters, there are a number of facts
that are common to the citations and orders discussed below. The parties have agreed that each of
them is “free to argue that evidence admitted in the context of a particular Citation or Order is
relevant to the court’s determination of other Citations and Orders. Further, if the Court accepts
the party’s argument, the Court may consider that evidence in reaching her decision concerning
those other Citations and Orders.” Jt. Ex. 1, Stip. 11. I have used the evidence in total in
reviewing the various violations.
At the time the subject citations and orders were issued the mine had been on the (d)(2)
series for quite some time. Each inspector who testified indicated that this mine has had a number
of serious, ongoing problems. The primary ongoing problem has been accumulations, including
coal, float coal dust, and oil. The mine has also had chronic issues with keeping the
accumulations out of the belt areas, and keeping the ventilation in place to prevent exposure to
dust. This mine has a greater than normal number of permissibility violations. All inspectors
credibly testified that the mine was on notice, both from past violations and meetings with
management, that it should be paying attention to the violations related to accumulations,
ventilation plans, roof control plans, and dust exposure.
The mine is on a 103(I) five day spot inspection due to the large quantities of methane
liberated. The mine argues that the methane is primarily emitted at the sealed areas.
Nevertheless, the mine is considered a gassy mine. During the time frame that many of these
citations and orders were issued, from March 30, 2009 until June 29, 2009, the mine received 271
citations and 11 orders. Sec’y Ex. 60. The mine history shows that, in the less than one year
period prior to when the subject violations were issued, the mine received 102 citations and orders
for accumulations violations, Sec’y Ex. 63, and 47 violations for permissibility violations, Sec’y
Ex. 64. Further, a number of the subject violations were issued in February 2009. The history
also shows 234 violations of accumulation standards in the prior two year period. Sec’y Ex. 69.
Finally, the history shows that, from March 2007 to March 2009, there were a large number of
permissibility, accumulations, ventilation and roof violations, all or which are very serious
matters. Sec’y Ex.71. During testimony, each of the inspectors who issued the subject violations
found that the violations were obvious and were something that should have been discovered prior
to the inspection on either a preshift examination, an onshift examination, or during the regular
course of mining.
The majority of the orders and citations discussed below have been designated as
significant and substantial. A significant and substantial (“S&S”) violation is described in section
104(d)(1) of the Act as a violation “of such nature as could significantly and substantially
contribute to the cause and effect of a coal or other mine safety or health hazard.” 30 U.S.C. §
814(d)(1). A violation is properly designated S&S “if, based upon the particular facts surrounding
that violation, there exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC
822, 825 (Apr. 1981). The Commission has explained that:
[i]n order to establish that a violation of a mandatory safety standard is significant and substantial
under National Gypsum, the Secretary of Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard--that is, a measure of danger to
safety--contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to
will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861 F.2d 99,
103-04 (5th Cir. 1988), aff’g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving
Mathies criteria).
33 FMSHRC 1483

The difficulty with finding a violation S&S normally comes with the third element of the
Mathies formula. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the
Commission provided additional guidance:
We have explained further that the third element of the Mathies formula “requires that the
Secretary establish a reasonable likelihood that the hazard contributed to will result in an event in
which there is an injury.” U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 (August 1984). We
have emphasized that, in accordance with the language of section 104(d)(1), it is the contribution
of a violation to the cause and effect of a hazard that must be significant and substantial. U.S.
Steel Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., Inc., 6
FMSHRC 1573, 1574-75 (July 1984).
This evaluation is made in consideration of the length of time that the violative condition existed
prior to the citation and the time it would have existed if normal mining operations had continued.
Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc.,
6 FMSHRC at 1574. Further, the question of whether a violation is S&S must be based on the
particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
In addition to being designated S&S, many of the citations and orders were designated as
an unwarrantable failure or attributable to high negligence. The term “unwarrantable failure” is
defined as aggravated conduct constituting more than ordinary negligence. Emery Mining Corp.,
9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable failure is characterized by such conduct as
“reckless disregard,” “intentional misconduct,” “indifference,” or the “serious lack of reasonable
care.” Id. at 2004-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC at 193-94. Aggravating
factors include the length of time that the violation has existed, the extent of the violative
condition, whether the operator has been placed on notice that greater efforts were necessary for
compliance, the operator’s efforts in abating the violative condition, whether the violation was
obvious or posed a high degree of danger, and the operator’s knowledge of the existence of the
violation. See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000); Mullins & Sons Coal
Co., 16 FMSHRC 192, 195 (Feb. 1994); Windsor Coal Co., 21 FMSHRC 997, 1000 (Sept.
1999); Consolidation Coal Co., 23 FMSHRC 588, 593 (June 2001). All of the relevant facts and
circumstances of each case must be examined to determine if an actor’s conduct is aggravated, or
whether mitigating circumstances exist. Consol, 22 FMSHRC at 353.
I rely on the cited case law when considering the citations and orders discussed below,
particularly with respect to the issues of S&S and unwarrantable failure. The findings of fact are
based on the record as a whole and my careful observation of the witnesses during their testimony.
In resolving any conflicts in testimony, I have taken into consideration the interests of the
witnesses, corroboration, or lack thereof, and consistencies or inconsistencies, in each witness’
testimony and between the testimonies of witnesses. In evaluating the testimony of each witness,
I have relied on his or her demeanor. Any failure to provide detail on each witness’s testimony is
not to be deemed a failure on my part to have fully considered it. The fact that some evidence is
not discussed does not indicate that it was not considered. See Craig v. Apfel, 212 F.3d 433,436
(8th Cir. 2000) (administrative law judge is not required to discuss all evidence and failure to cite
specific evidence does not mean it was not considered).
B.

Docket No. LAKE 2009-470

This docket contains three violations, all of which remain at issue, with a total proposed
penalty of $190,787.00.
1.

Order No. 8414994
33 FMSHRC 1484

On February 26, 2009, Inspector Danny Franklin issued Order No.8414994 to Black
Beauty for a violation of section 75.400 of the Secretary’s regulations. The citation alleges that:
Combustible material is allowed to accumulate around the 1 West “B” tail roller. The
accumulations are in the form of loose and fine cola measuring approximately 2 by 5 feet by 19
inches width. The tail roller was touching and running in coal 17 inches wide by 2 feet tall and 4
feet in length. When inspected there was a distinctive odor indicating there was material getting
hot. With past history, the operator has engaged in aggravated conduct constituting more than
ordinary negligence by continuing to violate this standard. This violation is an unwarrantable
failure to comply with a mandatory standard.
The inspector found that a fatal injury was highly likely to occur, that the violation was significant
and substantial, that six persons would be affected, and that the violation was the result of the
operator’s high negligence and unwarrantable failure to comply with the mandatory standard. The
Secretary has proposed a civil penalty in the amount of $70,000.00.
a.

The Violation

Inspector Danny Franklin started in coal mining in 1973 and has worked for MSHA for the
past four years. While conducting an inspection of the Air Quality mine on February 26, 2009, he
issued a citation for a violation of section 75.400 which prohibits the accumulation of combustible
material. Franklin was accompanied by Randy Hammond, a representative of the mine. After
arriving in the 3 main north area he traveled on foot toward the west 1b belt area. (Tr. 79). After
turning the corner to the three main north and walking an additional 60 feet, Franklin noticed the
distinct odor of burning coal. He questioned a belt examiner about the odor and was told that the
belt examiner had noticed and investigated the odor about 30 minutes prior to Franklin’s arrival,
but found nothing of concern. (Tr. 81-82). Franklin followed the smell and immediately found
the problem at the tail roller. He observed the roller turning in the coal which had compacted in
the guard around the roller. (Tr. 85).
The accumulation around the tail roller was approximately 2 feet deep and covered an area
5 feet in length by 19 inches wide. (Tr. 86). This is an active working area where there was
combustible material in the form of coal and an ignition source created by the friction of the
turning belt and roller. The coal had compacted near the guard and was spilling off the belt onto
the bottom and along the sides of the belt for about 5 feet in length. The accumulation was 2 feet
in depth and packed alongside the belt. Franklin observed that no one was posted at the tail, but
several people were working about 100 feet inby the area, and mining was taking place in 3
locations near the cited area. Franklin described the material as coal that was black in color. He
described the smell as obviously that of coal, however, no smoke was present and the CO monitor
did not sound its alarm.
Randy Hammond a production foreman at the mine, accompanied Franklin on his
inspection. Hammond is currently in the safety department and has been working as a compliance
supervisor for about one year. He has 26 years experience in mining and holds a BS degree in
mining engineering. (Tr. 148-149). Hammond testified that he observed the tail piece of the west
1 belt and he could smell hot rubber. When Franklin walked on the off-side of the belt,
Hammond observed coal spilling out of the transfer point where skirt rubber had come loose.
Hammond remembered that the area was wet, the belt was fire resistant and, while friction would
have created a smell, it would not have been the smell of burning coal. Hammond believed that
the smell was burning rubber and there was no smoke or flame present. (Tr. 159-161).
James Villain, an employee at the mine, was a belt shoveler at the time the order was
issued. He has worked in the mining industry for approximately 17 years. (Tr. 171). Villain
testified that, on February 26, 2009, he was working the day shift, during which he cleaned the tail
of the B belt around 9:15 a.m. Villain does not recall much spillage and believes that the belt skirt
33 FMSHRC 1485

was in place. The area was wet because he had hosed off the spillage. At some point while he
was traveling to the head of the one west B belts, the belts went down. Villain promptly turned
around and went back to the tail area where he met Franklin and Hammond. There he observed
the spillage and the damaged skirt rubber. He explained that two bolts had passed through the
rubber, caused it to wear out, and had pulled the rubber back. (Tr. 173-175). According to
Villain, the spill had not been in place for very long because he had just cleared the area about ten
minutes before Franklin arrived.
There is no factual dispute that there was an accumulation of coal packed in the guard and
the rollers were turning in it. The parties agree that some coal had spilled on the ground but
disagree as to the amount. The testimony of the mine witnesses is that there was some spillage,
but it was permissible spillage as opposed to an accumulation of coal. I need not address the issue
of spillage on the ground since it is undisputed that there were accumulations packed in the guard
on the conveyor and the rollers were turning in that accumulation. For the above reasons, I find
that a violation of the cited standard did exist.

b.

Significant and Substantial Violation

I have found that, as alleged by the Secretary, there is a violation of the mandatory safety
standard. Second, I find that a discrete safety hazard existed as a result of the violation, the
danger of fire and explosion given that presence of combustible material and an ignition source.
The fact that there are safety measures in place along the belt does not take away from the fact that
an incident is likely to occur in a gassy mine with many accumulation violations and a history of
ignitions. Third, the hazards associated with this condition such as being trapped or required to
fight a fire, exposure to smoke from a belt fire, and the hazards associated with an explosion, will
result in an injury. Fourth, that injury will be serious or even fatal.
Franklin explained that a fire hazard definitely existed due to the combustible material
surrounding the roller, which was turning and creating friction, thereby providing an ignition
source and a fuel source. (Tr. 87). The coal was dark and dry. (Tr. 92). No cleaning was going
on at the time that would have prevented the accumulation from continuing to exist. Franklin
explained that a fire grows rapidly under the conditions he observed. (Tr.98). In addition, he
opined that there is little room for error in this area because there is only one air course and, in the
event of a fire, there would be no alternative for a smoke free escape. (Tr. 101).
There were three miners working in the immediate area and Franklin observed three
additional miners working nearby. At least two of the individuals in the area were trainees that
were accompanying the belt mechanic. I find that at least six miners were immediately exposed,
that it reasonably likely that an injury will occur as a result of the accumulation turning in the
rollers and, further, that the injury will be fatal. Franklin testified that he was concerned about
smoke inhalation and burns that would be suffered while trying to put out a fire. According to
Franklin, the end result would be smoke inhalation and burns that would be fatal.
The S&S evaluation is made in consideration of the length of time that the violative
condition existed prior to the citation and the time it would have existed if normal mining
operations had continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel
Mining Co., Inc., 6 FMSHRC at 1574. While Villain testified that the accumulation was probably
only present for ten minutes, his testimony conflicts with Franklin’s, who was told by a miner in
the area that he investigated the burning odor 30 minutes prior to the arrival of Franklin. The
condition was serious and the rubber and coal were already beginning to put off the “burning”
odor. If left unabated, a fire was certain to start. . In addition, Franklin observed that the miners
in the area were not paying attention and either had not looked, or had dismissed as irrelevant, the
source of the burning smell. Based on such, Franklin concluded that a fire would start and flare
out of control before the miners even noticed. I credit the testimony of Franklin and find that the
33 FMSHRC 1486

condition had existed for some time. If this condition had been allowed to persist, it is
reasonably likely that it would have led to a fire or explosion. See Black Diamond Coal Mining
Co., 7 FMSHRC 1117, 1121 (Aug. 1985). The particular facts surrounding this violation lead to a
finding of significant and substantial.
The mine argues that the violation is not significant and substantial because the condition
existed for only a short time and the fire suppression system that was in place would control any
fire that might start. Again, I credit the inspector’s testimony regarding the length of time the
condition existed. Further, I reject the argument that the fire suppression system would negate the
finding of S&S.
The mine operator argues that all of the other protections required by the Mine Act and its
regulations detract from the possibility of an injury producing event. The Courts and the
Commission have found to the contrary. The Commission, relying on Buck Creek Coal, Inc., 52
F.3d 133, 136 (7th cir. 1995), has rejected arguments that after-the-fact safety systems, such as
carbon monoxide detectors, fire suppression systems, and fire retardant belts, reduce the
likelihood of serious injury. In Buck Creek the mine operator argued that carbon monoxide
detectors, a fire-retardant belt, a fire suppression system, a fire brigade team, a rescue team, fire
fighting equipment and ventilation all undermined the likelihood of a serious injury that would
result from a coal accumulation violation. The Seventh Circuit, in upholding the decision of the
ALJ regarding the serious nature of the accumulations, determined that the existence of other
safety measures to deal with a fire does not mean fires are not a serious safety hazard since the
precautions are in place because of the “significant dangers associated with coal mine fires.” Id.
I conclude that the preponderance of the evidence establishes that coal accumulations were
reasonably likely to result in injury causing events, and that the injuries would be serious or fatal.
I rely primarily on the testimony of Inspector Franklin in reaching this conclusion. I find that the
Secretary has satisfied the four Mathies criteria and established the violation as S&S.
c.

Unwarrantable Failure

The burning odor that Franklin and Hammond described was distinctive and should have
given the miners good reason to search for the cause. However, when the miners did not discover
the source of the odor, they simply returned to their duties. Those miners confirmed that the
burning odor had been in the air for a minimum of 30 minutes prior to the inspector’s arrival.
Franklin testified that the miners were desensitized to the smell and a fire would get started before
they even noticed. Franklin believes that the work force is a reflection of the management,
particularly the attitude toward safety, and it was obvious to him that this smell was ignored. (Tr.
102).
Hammond explained that the skirt rubber looked as if it had been torn, thereby creating a
chute to send coal down from the belt to the ground. According to Hammond, a tear can happen
“in an instant” and result in spillage, but not necessarily a lot of spillage. In his opinion, the spill
had been ongoing for only a short time, perhaps a minute or less, based upon the quantity he
observed spilling and the amount on the ground. Hammond testified that the material on the
ground was wet, had been sprayed at the transfer point, and was newly on the ground. Franklin
agrees that this kind of spill can occur at any moment but explained that he based his
unwarrantable designation primarily on the lack of concern about the coal turning in the rollers
resulting in a burning odor and this mine’s history of accumulations. While the parties agree that
the spill could have occurred quickly, the operator did not explain why the odor of burning coal
had been evident for more than 30 minutes prior to the arrival of Hammond and Franklin. It is
fair to assume that coal had been turning in the rollers for some time in order for the burning odor
to permeate the air. While the spill on the ground may have been recent, it is clear that the coal
turning in the belt was not. The coal on the belt should have been seen and noted by Villain.
Villain did not recall any spill, at least on the ground, and he testified that the ground was wet
33 FMSHRC 1487

because he had sprayed off the spillage. Hammond agrees that the spillage was wet because the
coal had traveled through the water sprays. Neither witness explained the coal turning in the
rollers emitting the burning odor and, therefore, I find that Franklin presented a scenario that was
the most likely and well grounded in fact. While he cannot be certain how long the condition
existed, it is fair to say that it existed far longer than it should have. (Tr. 90).
This mine has had a number of prior violations for accumulations, along with prior
warnings for excessive accumulations on the belt line. Franklin sited 3 other nearby
accumulations on the same day. (Tr. 89). The mine has not taken effective measures to correct
the continued accumulation violations and, according to Franklin, it is possible that it has made no
effort to correct the these persistent conditions. (Tr. 102). Many accumulation violations have
been issued at the mine since 2007 and, in Franklin’s view, the mine was not doing enough. It is
clear to me that the mine has failed to train its miners to call or seek help when they cannot
discover the source of a burning smell. The actions of the miners lead Franklin to assume that
little had been done to address accumulations on the belt at this mine. Moreover, the mine did not
refute the allegations made by Franklin. In light of the foregoing, I agree with Franklin that the
negligence was high, that the operator demonstrated indifference or lack of reasonable care and
that the violation was the result of the operator’s unwarrantable failure to comply with the
mandatory standard. I assess the proposed $70,000 penalty.
2.

Order No. 8415253

On February 27, 2009, the day following the numerous accumulations sited by Franklin,
Inspector Glenn Fishback issued Order No.8415253 to Black Beauty for a violation of section
75.400 of the Secretary’s regulations. The citation alleges that:
Obvious an[d] extensive accumulations of combustible material in the form of loose coal, coal
fines and float coal dust (Dry and black in color) have been allowed to accumulate on the 4 West
A energized conveyor belt Drive and Take-up located at crosscut number 2 to crosscut 3 on the
return side of the 4 West roadway. The combustible material measured approximately 38 feet in
length by 20 foot in width and 8 inches to 2 ½ feet in depth directly behind the take-up. From the
take-up to the drive rollers the accumulations measured approximately 2 inches to 16 inches in
depth by 3 feet in width and 39 feet in length of loose coal, coal fines and float coal dust. These
accumulations were observed on all of the frame work and structure of the drive and take-up[.]
[T]he belt was observed smoking and running in accumulations of float coal dust measuring
approximately 5 inches in depth and 12 inches in width and also rubbing the drive frame at this
same location. The belt was also observed rubbing the frame work in the take-up and the hanger
which holds the cross under up, float coal dust was present on all of the water lines and electrical
cables and starter boxes from crosscut #1 to #3. With past history, the operator has shown more
than ordinary negligence by allowing the belt to run under this known condition until the arrival of
MSHA to the area. This violation is an unwarrantable failure to comply with a mandatory
standard.
The inspector found that a permanently disabling injury was highly likely to occur, that the
violation was significant and substantial, that ten persons would be affected, and that the violation
was the result of the operator’s high negligence and unwarrantable failure to comply with the
mandatory standard. The Secretary has proposed a civil penalty in the amount of $70,000.00.
a.

The Violation

Inspector Glenn Fishback has been with MSHA for three years and has 20 years of mining
experience. He worked at the Air Quality mine for a time during his career. On February 27,
2009 , while inspecting the conveyor, Fishback found an accumulation of combustible material
and issued an order for a violation of 30 C.F.R. § 75.400 which prohibits the accumulation of
combustible material.
33 FMSHRC 1488

Prior to going underground Fishback reviewed the mine books and noticed a problem in
the 4 west A area. (Tr. 427). When he arrived in the subject area, he observed accumulations of
coal on the running, energized belt. He observed accumulations of loose coal, coal dust, and fines
that were black, dry, dusty, and existed for a distance of 38 feet long, and 20 feet wide. There
were various lengths and depths of accumulations along the belt, with one accumulation being 38
feet long and 2 feet in depth as measured by tape. (Tr. 429). Fishback observed the
accumulations running in the belt, and could smell burning and see smoke on the belt at the
tandem rollers. (Tr. 432). He found the belt out of alignment and rubbing in the framework. He
asked the operator to shut it down immediately. The belt, which was rubbing the framework in
the tandem rollers and in the take up, had cut ¾ of an inch into the metal framework. (Tr.
430-431). In addition to running on the frame, the belt was rubbing in the accumulated material.
Fishback could not understand why it took an hour for the mine to lock out the belt after
he shut it down and issued the citation. (Tr. 438). He testified that, when asked, the shift foreman
refused to remove a guard so that Fishback could measure under the belt, until management
arrived and told Fishback that “this is the one he’s been waiting for.” (Tr. 439). Fishback was
unclear as to the meaning of the foreman’s statement. Once the belt was locked out, Fishback
took his measurements and completed the citation.
The mine argues that there was not a violation as described by Fishback, that there were
not dangerous accumulations and the area was well rock dusted. In support of the proposition,
the mine called Kim Orr, an hourly employee who accompanied Fishback on his inspection. Orr
saw the belt rubbing on the frame but she did not recall it cutting into the structure and she did not
remember any smoke. She agreed that some accumulations of pressings, rock dust, and some
float dust were seen between the drive and the take-up. (Tr. 516-517). She explained that it was
not a hazard “right there.” (Tr. 518). Orr agreed that there was a little float dust, but disagreed
with Fishback that it was all float dust. Instead, she testified that what she observed was rock
dust. She couldn’t estimate how much rock dust, but she thinks it was “quite a bit.” (Tr. 519).
Jamie Haantz, the operation superintendent at the mine, oversees the entire plant and mine
and has done so since July 2010. At the time this order was issued he was the underground
superintendent, in charge of the entire underground mine. (Tr. 531-532). Haantz holds a number
of certifications, including a BA in mining engineering and several MAs, including safety
management and engineering. (Tr. 533) On February 27, 2009, he learned from Randy
Hammond that the 4 west belt had been shut down due to accumulations. He testified that he
“[w]ent ahead and got ahold of everybody[,] we treat the D order like an accident. We start
bringing the mine managers, the assistant mine manager, we all-we all go to that location.” (Tr.
534).1 When he arrived, the belt was down. Haantz did not see the belt rubbing, but saw rock
dust and some float dust on the water line. He touched the dust and saw that it was white and had
moisture in it. At the sump he saw some coal pressings, but no accumulation. (Tr. 537-538). He
did not observe the extent of accumulations that Fishback described in other areas (i.e., around the
take-up and drive roller areas) and, as far as he could see, everything was rock dusted.
Randy Hammond traveled with Haantz and took photographs. BB Ex. R-S. Haantz
testified as to the locations in photographs A through X. Id. He identified the sump area, power
boxes coming into crosscut 2, the drive at crosscut 2, drive and take-up area, waterlines, a rib,
waters supply, south side of the take-up unit, and guard on the drive. He testified that there was
very little float dust or other accumulations in any of the pictures and, rather, there was rock dust
in virtually every picture. Setting aside for a moment the fact that the photos were taken without
the knowledge of Fishback or MSHA, they remain unreliable because they contained no date to
identify when they were taken. Further, no other reliable evidence was offered to support that the
1

I note that during the hearing of these cases there were many unwarrantable violations
but this is the only instance where the mine alleged or presented evidence that a (d) order is
treated like an accident.
33 FMSHRC 1489

photos did indeed depict the areas and conditions cited by Fishback. Instead Hammond testified
that he took the photos and that they represented the conditions he observed. However, Fishback
testified that he observed no one taking photos and, further, he was unable to testify that the
photos represented what he observed during the investigation. In addition, the photos do not
square with the testimony of Orr, the miner who accompanied the inspector. I do not credit
Hammond’s testimony and, without any further evidence, I give very little weight to the
photographs.
While the testimony concerning the accumulations is disputed, i.e. there are three different
descriptions of the area, I credit the description provided by Fishback and I find that the Secretary
has shown that accumulations, which were black and dry, were present on the belt and the
surrounding areas. In light of the foregoing, I find a violation.
b.

Significant and Substantial Violation

I have found that there is a violation of the mandatory safety standard. Second, I find that
a discrete safety hazard existed as a result of the violations, the danger of a belt fire caused by the
belt rubbing on the frame and igniting the accumulations of coal and float coal dust. Third, there
is a high likelihood of an accident occurring in this gassy mine that has many accumulation
violations, and a belt rubbing on a metal frame. A fire on the belt caused by the friction of the belt
in the coal accumulation will result in an injury. Fourth, any injury sustained will be serious or
even fatal.
Fishback based his conclusions on his experience. He credibly testified that the belt was
creating friction and providing an ignition source as it turned in coal and against the side of the
metal framework. In his view, the hazard presented by the accumulation at the belt drive was the
creation of a mine fire and, when combined with the float coal dust and the gassy nature of the
mine, the possibility of an explosion. (Tr. 430). Fishback could smell burning rubber and noticed
that the belt had folded over on it’s edge and was rubbing in the tandem. (Tr. 433-436). He
explained that fire and smoke would travel quickly to the face where the men were working.
According to Fishback, a minimum of ten persons would be exposed. (Tr. 435). Fishback opined
that any injury would be permanently disabling or even fatal, given that a fire will result in burns
and smoke inhalation. (Tr. 437). If an explosion were to occur, the result would be worse. Given
the presence of an ignition source, along with the size of the accumulation he observed, a mine
fire was reasonably likely to occur given the cited conditions. (Tr. 430-431).
The operator’s argument regarding the S&S designation is primarily factual. Orr testified
that she did not believe that the accumulation was as extensive as Fishback described. She did,
however, concede the existence of accumulations and the fact that the belt was rubbing on the
frame. Haantz also testified that he believed that the accumulations were not as extensive as
Fishback described and that they consisted primarily of rock dust and not coal dust as asserted by
Fishback. Fishback described the accumulations as black in color and agreed that there was some
rock dust under the float dust he cited. Haantz indicated that the accumulations in certain areas
were white or gray with rock dust, but not black. I credit the observations of Fishback in this
regard. If this condition had been allowed to persist, as it obviously had up to this time, it is
reasonably likely that it would have led to a fire or explosion. See Black Diamond Coal Mining
Co., 7 FMSHRC 1117, 1121 (Aug. 1985).
The Commission has addressed the issue of accumulations and conveyor belts a number of
times. In Amax Coal Co., 19 FMSHRC 846 (May 1997), the Commission upheld an ALJ’s
finding that a belt running on packed coal was a potential ignition source for extensive
accumulations of loose, dry coal and float coal dust along a belt line, and that the condition
presented a reasonable likelihood of an injury causing event. In addition, in Mid-Continent
Resources, Inc., 16 FMSHRC 1218, 1222 (June 1994), the Commission held that accumulation
violations may properly be designated as S&S where frictional contact between belt rollers and
33 FMSHRC 1490

the accumulations, or between the belt and frame, results in a potential ignition source for the
accumulations. The Commission in Mid-Continent found that it was immaterial that there was no
identifiable hot spot in the accumulations because continued normal mining operations must be
taken into account when evaluating the circumstances. In the present case, if the violative
condition had been allowed to persist, it would have reasonably led to smoke, fire and, potentially,
an explosion. In fact, Fishback testified that he could smell smoke as he entered the area.
The Respondent argues that all of the other protections required by the Mine Act and its
regulations, which it alleges were properly in place at the time of the order, reduced the possibility
of an injury producing event, thereby rendering the violation non-S&S. Specifically, the
Respondent points out that the CO detector did not activate and that the belt is made of fire
resistant material. (Tr. 469-471). The Courts and the Commission have addressed the issue of
other required safety standards that come into play in discussing whether a violation is S&S. In
Buck Creek Coal, 52 F.3d 133, 136 (7th cir. 1995), the mine operator argued that carbon
monoxide detectors, a fire-retardant belt, a fire suppression system, a fire brigade team, a rescue
team, fire fighting equipment and ventilation all undermined the likelihood of a serious injury that
would result from a coal accumulation violation. The Seventh Circuit, in upholding the decision
of the ALJ regarding the serious nature of the accumulations, determined that the fact that there
were other safety measures to deal with a fire does not mean that fires are not a serious safety
hazard and, rather, the precautions are in place because of the “significant dangers associated with
coal mine fires.” While extra precautions may help to reduce some risks, they do not render
accumulations violations non-S&S.
I conclude that the preponderance of the evidence establishes that it was reasonably likely
that the coal accumulations, combined with the other conditions cited, would result in injury
causing events, and that the injuries would be serious or fatal. I rely primarily on the testimony of
Inspector Fishback in reaching this conclusion. I find that the Secretary has satisfied the four
Mathies criteria and established the violation as S&S.
c.

Unwarrantable Failure

This order for accumulations on the belt was issued only one day after the order discussed
above that was issued by Inspector Franklin for accumulations on the belt. Fishback testified that
the accumulations were “obvious and extensive. I don’t know how the examiner didn’t trip over
some of it.” (Tr. 443). Fishback could smell the rubber burning when he arrived. While there is
some dispute as to how long the accumulation had existed, it was in place at least for the hours
between 9:00 a.m., when the onshift examination was conducted, and 5:00 p.m., the time of the
citation. Fishback believes that, given the extent of the accumulations, it had to exist for a longer
period of time. However, the examiner testified that he did not see this extensive accumulation
when he conducted his examination at 9:00 a.m. Therefore, it is unlikely that the extensive
accumulation existed for more than the eight hours.
In addition to the obvious and extensive nature of the accumulation, Fishback relied on the
mine history of accumulations in determining that the violation was unwarrantable. He has issued
previous orders for accumulations, including some specifically for accumulations on the belt. He
has spoken to the safety director, mine manager and section foreman, as well as others at the
mine, about the accumulation problems at this mine. (Tr. 449-450). He talked about the number
of accumulations and the lack of improvement with the accumulation issue. After being
questioned on cross examination, Fishback candidly said that he has been trying to avoid a major
catastrophe at this mine, given the continued problem of accumulations.
The Respondent denies that it has a problem with accumulations and believes that it was
not put on notice of the need to improve. However, this mine has demonstrated a serious lack of
reasonable care. The mine’s primary argument is that the accumulations were not as extensive
and serious as Fishback described. I have already credited the testimony of Fishback in that
33 FMSHRC 1491

regard and, therefore, I agree with Fishback that the negligence was high and the result of the
operator’s unwarrantable failure to comply with the mandatory standard. I assess a $70,000
penalty.
3.

Order No. 8415254

On April 27, 2009, Inspector Glenn Fishback issued Order No. 8415254 to Black Beauty
for a violation of Section 75.360(b) of the Secretary’s regulations. The citation alleges that:
An inadequate onshift examination was conducted for the 7:30 AM to 3:30 PM examination on
2/27/2009 for the second shift production. Order number 8415253 was issued under this
104(d)(2) Order. Obvious and extensive accumulations of combustible material in the form of
loose coal, coal fines and float coal dust (Dry and black in color) was observed by MSHA with the
conveyor belt running in this material on this date. The examination record for the 7:30 AM to
3:30 PM examination of this affected area showed no hazards listed. This violation is an
unwarrantable failure to comply with a mandatory standard. Management will have a meeting
with all mine examiners to terminate this 104(d)(2) Order.
The inspector found that a permanently disabling injury was highly likely to occur, that the
violation was significant and substantial, that ten persons would be affected, and that the violation
was the result of the operator’s high negligence and unwarrantable failure to comply with the
mandatory standard. The Secretary has proposed a civil penalty in the amount of $50,787.00.
The citation was amended at hearing to reflect a violation of section 75.362(b).
a.

The Violation

As a result of the accumulation violation discussed above, Inspector Glen Fishback issued
this citation for failure to note the accumulation violation during the onshift examination of the
belt. The cited standard, as modified to at hearing, requires that “[d]uring each shift that coal is
produced, a certified person shall examine for hazardous conditions along each belt conveyor
haulage way where a belt conveyor is operated.” 30 C.F.R. § 75.362(b).
Fishback testified that he looked at the examination books both before he went
underground and after the citation was issued and could find no indication that the accumulation
he cited on the belt was noted by the mine examiner. He determined that nothing was listed about
either the belt or the accumulation. (Tr. 455-456). He testified that there was no entry in pre-shift
exam book on February 27, 2009 about the 4 west A belt. BB Ex. R-V; (Tr. 442). In Fishback’s
view, the accumulations were obvious and extensive and he couldn’t see how the examiner would
have been able to avoid tripping over them. Fishback further testified that the violation was S&S
because the accumulation of coal and float dust would lead to a fire and explosion. In addition, he
marked the negligence as high for the same reasons he described in the accumulation violation.
Buskirk, the mine employee who conducted the inspection of the belts on the day of the
alleged violations, testified that, had he seen the amount of accumulation described by Fishback,
he would have noted it in the report and shut down the belt. On the day of the alleged violation,
Buskirk noted several conditions in his report, including that rock dust was needed in the belt area
of 4-5. The report says that the rock dusting was done. BB Ex. R-V; (Tr. 495). His report also
indicates that, at crosscut seven through nine, Buskirk observed that the drive and takeup needed
to be cleaned and dusted. (Tr. 495). He saw no combustible material so he did not record it as a
hazard, but he did record it as a condition. (Tr. 496). He listed other hazards that day that were
corrected. (Tr. 497). He has reviewed the citations issued by Fishback and is certain that the cited
condition was not present when he made his onshift examination at 8:45 a.m. (Tr. 493, 498).
Buskirk explained that, had he seen such a condition, he would have listed it as a hazard and shut
the belt down.
33 FMSHRC 1492

Contrary to Fishback’s belief, on Feb 27, 2009, Buskirk was not conducting an onshift
exam of the belts at 1:51 p.m. and, instead, was conducting a preshift of the power center and
drive boxes at that time. There is a drive on the belt near where Fishback cited the condition, but
it is between the roadway and the belt. Further there is a date board near the drive where he
would have initialed. He conducted his onshift of the belt on his way into the mine at around
9:00 a.m. and would have examined the box on his return at approximately 2:00 p.m. At the time
he was examining the electrical installation he would not have gone along the four west A belt or
to the drive. (Tr. 501). Given that Buskirk was only in the cited area during his onshift exam at
9:00 a.m, and not at 2:00 p.m as believed by Fishback, there was ample time between the
examination and the issuance of the citation, i.e., nearly eight hours, for coal and float dust to
accumulate to the degree cited by Fishback. Without further evidence, the Secretary has not met
her burden of demonstrating that the onshift examination was inadequate. Therefore, the citation
is vacated.
C.

Docket No. LAKE 2009-471

This docket contains twenty-two violations with a total proposed penalty of $172,506.00.
The parties have agreed to settle all but the three violations addressed below. The terms of the
settlement are addressed near the end of the decision.
1.

Citation No. 6681954

On February 17, 2009, Inspector Marsha Price issued citation number 6681954 for a
violation of section 75.220(a)(1). The citation alleges the following:
The operators approved roof control plan was not being complied with on the number 2, (MMU
002-0, 1 Left 2 Right / 4 Main North active working section. The number 5 entry right that
creates an intersection with number 5 entry right is not permanently bolted with the at least two
rows of bolts or one row of temporary support before work or travel is permitted in the
intersection. The number 45, Joy CM 14 miner is cutting in the number 5 entry right. Work was
stopped and the area was secured until the number 5 entry could be bolted.
The inspector found that a fatal injury was reasonably likely to occur, that the violation was
significant and substantial, that one person would be affected, and that the violation was the result
of moderate negligence.
The cited standard requires that “[e]ach mine operator shall develop and follow a roof
control plan, approved by the District Manager, that is suitable to the prevailing geological
conditions, and the mining system to be used at the mine. Additional measures shall be taken to
protect persons if unusual hazards are encountered.” 30 C.F.R. § 75.220(a)(1). The Black Beauty
plan requires that two rows of roof bolts must be placed for the first cut that creates an
intersection. The Secretary has proposed a civil penalty in the amount of $5,080.00.
a.

The Violation

Marsha Price, has been an inspector with MSHA for 2 years and has 17 years mining
experience. She is a health specialist but also an authorized representative of the Secretary. (Tr.
329-330). On February 17, 2009, Price conducted an inspection at the mine and was accompanied
by Dave Wininger. (Tr. 331). She observed the alleged violation of the roof control plan after
checking the miner to see that all ventilation controls were in place. As she walked to the other
side of the miner to watch the cutting process, she noticed that, while the plan calls for two rows
of support, there was only one. (Tr. 333). Price said that the she did not notice whether there
were two rows of bolts when the 5 entry began, but she did notice it on the right side as the cut on
the right concluded. According to Price, the mine’s roof control plan requires that first cuts that
33 FMSHRC 1493

create an intersection must have either temporary support or two rows of bolts installed. Sec’y
Ex. 34 p. 7 item 6; (Tr. 334). The entry that had just been cut was 18 to 20 feet wide and the one
row of bolts in place did not qualify as temporary support. (Tr. 336). Price testified that she
observed cracks in the roof and ribs that created a hazard. In the event of a roof fall, a fatal
crushing injury would be sustained. Miners, including foremen and supervisors, often travel in
the area to move equipment and examine the area. According to Price, it was a busy area. (Tr.
337). Price testified that the first cut off of the five straight entry, to the right, created an
intersection in that area. At the time she initially observed the area they had not made the turn to
the right. (Tr. 364). Price explained that the entry was bolted but, as the cut went further and the
intersection was created, there was only one row of bolts installed instead of the required two
rows. (Tr. 366).
John Rennie offered testimony, albeit somewhat confusing, that he did not agree with
Price that there was a violation. Aside from creating a drawing of what he believed were the two
row of bolts at issue, Rennie did not explain the reason for his opinion that there was no violation.
(Tr. 376). However, Chad Barras, the Midwest safety director for Peabody, did attempt to explain
his view of the roof control plan and why it was not applicable in this instance. Barras is
responsible for 12 mines, including Air Quality. He has a BA in mining engineering and has
worked in various mines and held various responsibilities over the course of his career. He has
negotiated roof control plans at other mines and has worked on roof plans at Air Quality. (Tr.
408-412). Barras does not believe that the cited condition is a violation of the plan. He testified
that Item 6 of the roof control plan, cited by Price, requires that the first cut creating the
intersection must be permanently bolted. According to Barras, the cut that created the intersection
was the cut from the 4 to 5 entry. He opined that the area cited by Price was not the first cut that
created an intersection and, hence, there was no violation.
The requirement for each underground coal mine to develop a roof control plan is a
fundamental directive of the Mine Act and its predecessor, the Federal Coal Mine Health and
Safety Act of 1969, 30 U.S.C. § 801 et seq. (1976). See 30 U.S.C. § 862(a) (setting forth general
requirements for plans “to protect persons from falls of the roof or ribs.”). The intent of the
provision was “to afford comprehensive protection against roof collapse - the ‘leading cause of
injuries and death in underground coal mines.’” UMWA v. Dole, 870 F.2d 662, 669 (D.C. Cir.
1989) (citations to legislative history omitted). The Commission has acknowledged the high
degree of danger posed by roof control plan violations. See Cyprus Plateau Mining Corp., 16
FMSHRC 1610, 1616 (Aug. 1994).
In this instance both parties seemingly did their utmost to make the issue confusing and
incomprehensible. I do not find Barras to be a credible witness and I give little weight to Rennie’s
responses to leading questions. I find Price to be the most credible and straight forward. She
agreed with the operator that the #5 entry was bolted when she arrived but she left that entry
before mining continued straight and then to the right. It is unclear whether Price believes that the
first opening into the intersection was the straight cut or the cut to the right. The Secretary’s brief
indicates that “5 entry straight” was the subject cut. Sec’y Br. 20. However, after carefully
reading the transcript, I cannot understand where Price believes the two rows of bolts should have
been placed, nor can I find any indication about MSHA’s position as to what “the first cut in
openings that create an intersection” means. The Secretary has the burden to prove all elements of
the violation. I find that the Secretary has failed to prove every element of the violation and, as a
result, the citation must be vacated.
2.

Citation No. 6681953

On February 17, 2009, Inspector Marsha Price issued citation number 6681953 for an
alleged violation of section 75.208. The citation alleges that “no visible warning or physical
barrier is installed to impede travel beyond the permanent support in Entry number 5 of the
number 2 unit, (MMU 002-0), 1 left 2 right/4 main north inby crosscut 39 of the active miner
33 FMSHRC 1494

unit.” She designated the violation as significant and substantial with moderate negligence and a
penalty of $3,689 has been proposed.
a.

The Violation

Marsha Price issued this citation in the same location and at the same time as the roof
control citation discussed immediately above. She observed that there were no flags or barriers to
keep persons from proceeding under the unsupported top. (Tr. 344). The cited area of the five
entry was 18-20 feet wide, 35-40 feet deep, and was referred to as the #5 straight. The area had
not been roof bolted after the cuts were taken and, as a result, it was required to be barricaded so
that no miner would unknowingly walk under the unsupported roof. Unsupported roof is, by its
nature, unstable and a hazard to those walking under or even nearby. (Tr. 346). As Price
explained, a barricade is important because a miner “wouldn’t know that it wasn’t supported,
because there wasn’t a flag in there and at the same time you’re watching your feet where you’re
walking a lot and not paying attention a lot of times whenever you’re helping move equipment, so
you wouldn’t be-you wouldn’t notice an unsupported top.” (Tr. 345). As a result of her
observation, Price cited a violation of 30 C.F.R. § 75.208 which requires that “[e]xcept during the
installation of roof supports, the end of permanent roof support shall be posted with a readily
visible warning, or a physical barrier shall be installed to impede travel beyond permanent
support.” Miners are trained to look for the barrier to indicate unsupported roof thereby directing
their route of travel. No installation of roof support was observed and she saw no barricade or
flag to impede travel beyond the last permanent support. (Tr. 344).
The respondent argues that a visible warning device had been in place but had been
unknowingly removed. John Rennie is a mine examiner, lead man, and fill-in section foreman
who has held a number of positions in the mine. Rennie testified that, when he entered the area,
he believes there was a red reflective baton acting as a warning device hanging from the ceiling.
In his opinion, the baton was knocked down and got loaded out without the knowledge of those
working in the area. The respondent agrees that there was no warning or barrier at the time Price
issued the citation, and Price agrees that, given the position of the miner operator, the operator
may not have seen that the barrier/warning device was missing. Based on such, Price ascribed
moderate negligence to the violation. Given the undisputed testimony that there was no warning
or barrier in an area of unsupported roof, I find that a violation occurred as alleged.
b.

Significant and Substantial

I have found that there is a violation of the mandatory safety standard. Second, I find that
a discrete safety hazard existed as a result of the violations, the danger of a miner walking under
unsupported roof. Third, the hazards described, that of walking under unbarricaded or unmarked,
unsupported roof, would result in an injury. Finally, the injury would be fatal.
This evaluation is made in consideration of the length of time that the violative condition
existed prior to the citation and the time it would have existed if normal mining operations had
continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc.,
6 FMSHRC at 1574. Price testified that, while the baton was not in view at all times, it was
certainly not in place for a period of time. Black Beauty agrees that it was not in place but argues
that it had only been missing for a short, but undetermined, length of time. Rennie explained that,
from his location he could not always see the area where the flag should have been placed.
However, he opined that the baton may have been dragged off the roof and loaded with the coal,
thereby explaining its absence. (Tr. 385). Price testified that she did not see the flag on the
ground or anywhere in the vicinity. She could not say if it was in place earlier since the miner had
just begun the cut when she left the area. I give greater weight to Price’s recollection of the events
and find that the baton or flag was not in place at any time. I do not find Rennie’s testimony to be
credible given that most of his responses were made primarily to very leading questions. I find
33 FMSHRC 1495

that, had Price not brought the matter to the attention of the mine, it would have remained
uncorrected for some time.
Price believes that there was a reasonable likelihood that, given the weight of the unbolted
roof, it would fall at any time. Price observed cracks in the roof and ribs. (Tr. 359). Anyone
traveling in the area would be struck by falling material and suffer serious, and potentially fatal,
crushing injuries. (Tr. 346). The failure to provide a flag created the hazard for miners who
would unknowingly walk under unsupported roof and be crushed by falling rock and coal. While
the mine examiner, foreman, workers, and persons moving cable, would all have been in the area
and exposed to the unsupported roof, it is likely that only one miner at a time would be exposed.
Price explained that cars back up to the miner in that intersection and it is a constant working area.
(Tr. 357). Given that the roof was newly cut, a roof fall was likely. Such falls are known to cause
crushing injuries, including broken bones, severe internal injuries and often fatal injuries. (Tr.
345). A person working in the area or walking through the area would not realize that the roof
had not yet been supported without some warning or barricade to alert them and keep them out.
(Tr 345). Based upon the foregoing, all of the circumstances surrounding this violation lead to a
finding that it was S&S.
Price testified that she believed the negligence to be moderate at the time she issued the
citation because, even though miner operators are trained to look for flags or barricades, this
miner operator told her that a flag had been in place in earlier. Since issuing the citation, she
found that the mine had been cited for an identical violation five times in the 18 months prior to
the time she issued the subject violation. (Tr. 347). I agree with Price that the negligence was
moderate. However, this violation is especially serious given that the required act, while routine,
can result in deadly consequences when not performed. In light of the foregoing, I access a
penalty of $10,000.00.
3.

Citation No. 8414992

On February 25, 2009, Inspector Danny Franklin issued a citation for a guarding violation
on a belt. The citation alleges the following:
The guards protecting the miners from the hazards of the two moving take-up rollers and two
drive rollers for the 3 West “B” drive are not extended a distance sufficient to protect persons
from reaching over or tripping and falling between the belt and the pulleys. An area over the
guards measuring approximately 20' by 13' exposing miners to the hazards of these massive
rollers.”
The inspector found that a fatal injury was reasonably likely to occur, that the violation was
significant and substantial, that one person would be affected, and that the violation was the result
of moderate negligence. A penalty of $3,689 has been proposed.
a.

The Violation

Franklin cited the Respondent for an alleged violation of 30 C.F.R. § 75.1722(b) which
requires that “[g]uards at conveyor-drive, conveyor-head, and conveyor-tail pulleys shall extend a
distance sufficient to prevent a person from reaching behind the guard and becoming caught
between the belt and the pulley.” Franklin testified that, while in the 3 West B drive area, he
observed that the guards were not installed to extend a sufficient distance over the take-up rollers
and the drive rollers such that they would prohibit reaching around and becoming entangled. The
belt was running when he arrived in the area and he immediately noticed that the guards were not
sufficient over both sets of rollers. In his view, the take up and drive rollers require more
guarding due to their destructive nature. In his experience, there have been many injuries and
fatalities as result of getting caught in one of these moving parts.
33 FMSHRC 1496

The drive rollers require regular clean-up, rock dusting, and examination, during which
miners walk within inches of the moving rollers. This guard extended from the ground, up 4 feet,
so that the rollers were level or above the top of the guards and were approximately 16-18 inches
from the walkway. There was no means to protect the miners from tripping and falling into the
either set of rollers. Franklin explained that the guards were insufficient because they were not
high enough to prevent accidental contact. The walkway was packed down but contained areas of
uneven ground that built up 10-14 inches in some areas. Given the difficulty of walking the path,
and the fact that the rollers were higher than the guards, persons would not be prevented from
reaching behind the guard and becoming caught between the belt and the pulley.
Franklin’s concern was with reaching around the guard while the belt was in operation. He
agreed that this guard could be made to work if it were installed differently. Hammond, testified
on behalf of Air Quality that he accompanied Franklin during the inspection. Hammond viewed
the area, including the take up and drive rollers, which were near one another but still in two
different locations. In the first area, the drive rollers were on the outby side of the drive and he
observed that the guard was parallel to the drive frame and, in his view, there was not a 16 by 20
inch opening which could be accessed. Additionally, there was a cross-under nearby that would
be used by miners, keeping travel five feet away from location cited. Hammond further testified
that contact with drive rollers is not likely to occur. He couldn’t reach the drive rollers and during
normal mining activity and in his view, someone could only touch it if they intentionally sought to
do so. Regarding the take-up pulleys, he testified that they are on the side of the belt that is not
traveled, i.e. the back side. He recalled that Franklin demonstrated the hazard by reaching over
the guard, however, it is Hammond’s opinion that the demonstration did not mimic normal
activities since no one would have a reason to reach over the guard. Hammond saw no tripping
hazards in the area.
The mine operator argues that these guards were installed in an effort to abate a number of
guarding citations issued by MSHA inspector Johnny Moore. Brandon Flath testified that he has
been the belt supervisor at the mine since 2007. In February, 2008, he had a conversation with
inspector Johnny Moore, who had written a number of guarding violations requiring more rigid
frames to replace the ones held together with wire. Flath made a plan and, after four or five
months, completed the change of the guards on all of the belts. Flath testified that at some point
Moore told him that all of the guards looked good. This guards in this area were completed in
March 2008, and no citations had been issued from 2008 until February 2009.
I am not persuaded by Flath that this particular guard or area was approved by any person
with MSHA. I am also not persuaded by Hammond that the take-ups and the drive-pulleys would
not be inadvertently contacted by those working in the area. Instead, I agree with Franklin and
credit his testimony describing the condition. I find that the guarding did not adequately protect
persons from harm and, accordingly, I find a violation.
b.

Significant and Substantial

I have found that there is a violation of the mandatory safety standard. Second, I find that
a discrete safety hazard existed as a result of the violations, i.e., the danger of being caught in the
turning rollers either by tripping and falling while on the walkway, or during maintenance and
clean-up tasks along the belt. Once a miner comes into contact with a moving part on the belt,
there is little to no chance of escape from being pulled into the belt. Such an occurrence will
result in being crushed in the rollers and seriously, or even fatally, injured. Franklin explained
that the miners work alone in the area and, therefore, even if a miner somehow manages to free
himself from the belt, it is an impossible distance to travel for aid or to the surface. Franklin
explained that a miner’s arm is no match for the power of the drive rollers. Given the nature of
the walkway and its uneven bottom, it is even more likely that an injury will occur. I credit
Franklin’s testimony and his understanding of the hazards. I find that the violation is S&S. Based
upon the foregoing analysis, and considering all of the penalty criteria, including the gravity and
negligence, I assess the $3,689.00 penalty proposed by the Secretary.
33 FMSHRC 1497

D.

Docket No. LAKE 2009-612

This docket contains eighteen violations with a total proposed penalty of $106,988.00.
The parties have resolved all but the one violation discussed below.
1.

Citation No. 8416307

On May 26, 2009, Inspector Anthony DiLorenzo issued Citation No. 8416307 to Black
Beauty for a violation of section 75.362(b). At hearing, the cited standard was modified to section
75.362(a)(1). The citation alleges that:
Inadequate on-shift examinations have been performed on MMU 004-044. The following
conditions were observed; The secondary escapeway lifeline was 2 crosscuts outby the section
loading point; The escapeway maps were not being kept in a current, up to date condition in that
the maps were marked to crosscut #89 when in actuality . . . [they] were at crosscut #105. The life
line has existed since the morning of 5/22/2009 and the escapeway maps have not been marked up
for several weeks based on the normal mining times.
The inspector found that a fatal injury was reasonably likely to occur, that the violation was
significant and substantial, and that the violation was the result of high negligence. The Secretary
has proposed a civil penalty in the amount of $45,708.00
The cited standard, as modified at hearing, requires the following:
At least once during each shift, or more often if necessary for safety, a certified person designated
by the operator shall conduct an on-shift examination of each section where anyone is assigned to
work during the shift and any area where mechanized mining equipment is being installed or
removed during the shift. The certified person shall check for hazardous conditions, test for
methane and oxygen deficiency, and determine if the air is moving in its proper direction.
30 C.F.R. § 75.362(a)(1). The Secretary must demonstrate first that the either someone was
assigned to work during the shift or the MMU equipment is being installed or removed during that
shift. Next, she must show that a hazardous condition existed that should have been observed,
recorded and eliminated by the onshift examiner.
a.

The Violation

Inspector DiLorenzo testified that, while conducting an inspection of the Air Quality mine
on May 26, 2009, he observed conditions at MMU044 that lead him to believe that an inadequate
onshift examination had been conducted. First, the lifeline was not extended to the working face
and, second, the escapeway map was several weeks out of date. According to DiLorenzo, a
hazardous condition exists if there is no updated escapeway map and the lifeline does not go
directly to the working section. (Tr 1038-1039). DiLorenzo explained that the hazard he
observed is that, in the event of a fire or explosion, heavy dust and smoke would be created and
miners could not safely exit the mine from the face since the lifeline was not extended to that area.
According to DiLorenzo, the miners “might not get the two crosscuts outby the working section to
find the lifeline.” (Tr. 1040). He notes that a miner can become disoriented quickly, have a
difficult time traversing the 100 feet to the lifeline, panic, and fail to escape. The lack of a lifeline
in the secondary escapeway could cause the miners to turn around and look for the primary
escapeway. (Tr. 1041-1043). This lack of a lifeline is compounded by the fact that the escapeway
map indicated that the mine was cut to crosscut 89 instead of crosscut 105, i.e., where the miners
were working. If a miner attempting an escape grabs the map to help find his way, the fact that it
is out of date adds to total confusion.
33 FMSHRC 1498

Based upon the observations of DiLorenzo, it may be reasonably inferred that the missing
lifeline and faulty map existed at the time of the on-shift examination. DiLorenzo viewed the
on-shift examination reports for MMU004. There were no entries to show that the lifeline was
not extended to the working area and that the escapeway map had not been updated. The mine
records demonstrate that the last advanced belt move for that unit was 4 days prior, which
indicated to DiLorenzo that the lifeline had not been moved up for at least 4 days, i.e., 12 shifts.
Sec’y Ex. 42; (Tr. 1048).
Air Quality does not dispute that the lifeline was missing for two crosscuts or that the
escape map was not updated. They argue instead that neither of these conditions created a hazard
and, therefore, did not need to be noted by the on-shift examiner. The operator’s proof of this
contention is found in the testimony of Mr. Hammond:
Q.
A.
Q.
A.

Is the escapeway map noted in the condition or practice an item that would be covered on
an on-shift examination?
No
Why not?
It’s not

(Tr. 1084).
Given the obvious nature of the violation herein, I find that a reasonably prudent person,
familiar with the mining industry and the protective purpose of the safety standard herein, would
have recognized that this hazard needed to be recorded in the examination book. Utah Power&
Light Co. 12 FMSHRC 965,968 (May 1990) aff’d 951 F.2d 292 (10th Cir. 1991). Accordingly, I
find Respondent’s argument to be without merit. I find that a violation did exist.
b.

Significant and Substantial

Based upon the case law discussed above, I find that this violation is not significant and
substantial. I base this finding primarily upon the fact that the evidence presented goes to the
S&S nature of the hazard created by the lack of a lifeline and the lack of a map, and not by an
inadequate onshift examination. Different proof is required for an S&S finding of an inadequate
onshift examination violation.
While I have found that there is a violation of the mandatory safety standard as alleged by
the Secretary, and I can infer that not conducting an adequate on-shift examination creates a
discrete safety hazard, the third element of the Mathies formula is not shown here. The third
element is often the most difficult to prove, and this case is no exception. The fact that the
on-shift examiner failed to mention the lifeline and map in the report does not make it reasonably
likely lead to a serious injury. According to DiLorenzo, the danger associated with being unable
to quickly and safely escape the mine in the event of smoke and fire is connected to the violation
of the missing lifeline. I note that much of DiLorenzo’s testimony was in response to leading
questions and he did not fully explain why the failure to note the hazard of the missing lifeline
during an on-shift examination would result in an injury.
While I find that the absence of the lifeline is a serious problem, I cannot find that omitting
mention of the lifelines from the on-shift report is, in and of itself, a S&S violation. Hammond,
who testified on behalf of Black Beauty, focused, as DiLorenzo had, on the fact that the lifeline
was missing for 100 feet, and not on the actual violation of identifying and recording the hazard in
the on-shift book. In any event, the Secretary has not provided substantial evidence to support a
finding of S&S in this matter.
c.

Negligence
33 FMSHRC 1499

DiLorenzo designated this violation as high negligence. He relied on the fact that the
condition existed for 12 shifts, i.e., since the time of the belt move. Again, DiLorenzo focused on
the length of time the lifeline and map went unchanged, but in this instance, the fact that it went
unchanged substantiates that it was not noted on any on-shift examination for an extended period
of time. The Commission has often discussed the importance of preshift and on-shift
examinations and that the failure to conduct adequate inspections, as evidenced by the violations
found, can be the result of high negligence. See Quinland, 10 FMSHRC 705, 708-09 (June 1988)
(obvious nature of lack of proper roof support), Youghiogheny & Ohio Coal Co., 9 FMSHRC
2007, 2010-11 (Dec. 1987) (finding of unwarrantable failure where preshift examinations had
been conducted but the roof control violations were not reported), Eastern Associated Coal Corp.,
13 FMSHRC 178, 187 (Feb. 1991) (violations not reported following preshift examinations).
The mine operator asserts that it was not highly negligent because the condition had only
existed for one shift prior to the citation. Hammond testified that failing to extend the lifeline and
update the map was an oversight and the mine was not highly negligent. He explained that the
belt was moved on May 22, 2009, as DiLorenzo described, but the move was followed by a
holiday weekend. When the crew arrived on the evening of the 25th for the midnight shift on the
26th, there was no production. Therefore, the first production in this area was the shift on which
DiLorenzo issued the violation and, likewise, the first shift on which any person was assigned to
work in the area.
While the lifelines should have been extended at the time of the belt move, there is little
evidence to show that the negligence in not doing so was high, and even less evidence to support
that not noting it during an on-shift examination constitutes high negligence. In this case, the
lifeline and map seemingly should have been discovered during what would have been the onshift
examination that would have taken place had it not been a holiday weekend. Outside of the
disputed timing, the Secretary has presented no other evidence of high negligence. As a result I
find the negligence to be moderate. After consideration of all of the penalty criteria, I assess a
$10,000.00 penalty.
II. PENALTY
The principles governing the authority of Commission Administrative Law Judges to
assess civil penalties de novo for violations of the Mine Act are well established. Section 110(I)
of the Mine Act delegates to the Commission and its judges the “authority to assess all civil
penalties provided in [the] Act.” 30 U.S.C. § 820(I). The Act delegates the duty of proposing
penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the
Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess
the penalty. 29 C.F.R. § 2700.28. The Act requires, that in assessing civil monetary penalties, the
Commission [ALJ] shall consider the six statutory penalty criteria:
[1] the operator’s history of previous violations, [2] the appropriateness of such
penalty to the size of the business of the operator charged, [3] whether the operator
was negligent, [4] the effect on the operator’s ability to continue in business, [5]
the gravity of the violation, and [6] the demonstrated good faith of the person
charged in attempting to achieve rapid compliance after notification of a violation.
30 U.S.C. 820(I).
I accept the stipulation of the parties that the penalties proposed are appropriate to this
operator’s size and ability to continue in business and that the violations were abated in good
faith. The history shows the past violations at this mine, including citations for the standards
discussed above. The size of the operator is large. I have discussed the negligence and gravity
associated with each citation and, except where noted, I accept the designations as set forth in
each citation. I assess the following penalties:
33 FMSHRC 1500

Docket Lake 2009-470:
Order No. 8414994
Order No. 8415253
Order No. 8415254

$ 70,000.00
$ 70,000.00
Vacated

Docket Lake 2009-471:
Citation No.6681954
Citation No 6681953
Citation No.8414992

Vacated
$ 10,000.00
$ 3,689.00

Docket Lake 2009-612:
Citation No.8416307

$ 10,000.00

Total:

$ 163,689.00

The parties have settled the remaining citations and orders contained in these dockets.
The settlement terms are as follows:
Citation/Or Originally
der No.
Proposed
Penalty

Settlement
Amount

Modifications

LAKE 2009-471
8415129 $15,570.00

$946.00

Reduction in gravity to Non-S&S.
Reduction in negligence to Moderate.

$7,578.00

$2,282.00

Reduction in negligence to Moderate.

8414977 $10,437.00

$2,106.00

Reduction in gravity to Non-S&S.

8415232 $11,306.00

$687.00

Reduction in gravity to Non-S&S.
Reduction in negligence to Moderate.

8415230

8415235

$7,578.00

$2,282.00

Reduction in negligence to Moderate.

6681955

$7,578.00

$3,405.00

Reduction in gravity to Permanently Disabling.

8415237

$3,689.00

$1,111.00

Reduction in negligence to Moderate.

8415247

$7,578.00

$1,530.00

Reduction in gravity to Non-S&S.

8415250 $14,373.00

$1,304.00

Reduction in gravity to Lost Workdays or
Restricted Duty.
Reduction in negligence to Moderate.

8415260

$7,578.00

$2,282.00

Reduction in negligence to Moderate.

8415255

$8,209.00

$6,567.00

8415259

$7,578.00

$2,282.00

Reduction in negligence to Moderate.

8415262

$7,578.00

$2,282.00

Reduction in negligence to Moderate.

8415513

$4,689.00

$1,203.00

Reduction in gravity to 1 Person Affected.

8415267

$7,578.00

$7,578.00

8415271

$7,578.00

$2,282.00
33 FMSHRC 1501

Reduction in negligence to Moderate.

8415268

$4,689.00

$1,412.00

Reduction in negligence to Moderate.

8415221

$7,578.00

$1,412.00

Reduction in negligence to Moderate.

8415263 $11,306.00

$9,045.00

Docket $160,048.00
Total

$51,998.00

LAKE 2009-612
8415789

$5,961.00

$362.00

Reduction in gravity to Non-S&S.
Reduction in negligence to Moderate.

8415790

$1,111.00

$550.00

Reduction in negligence to Moderate.

8415791

$687.00

$207.00

Reduction in negligence to Moderate.

8416303

$2,473.00

$1,000.00

Reduction in gravity to 2 Persons Affected.

8415388 $12,248.00

$3,698.00

Reduction in gravity to 2 Persons Affected.
Reduction in negligence to Moderate.

8416306

$2,901.00

$2,300.00

8416401

$2,901.00

$873.00

8416403

$873.00

$873.00

8416404

$873.00

$873.00

8416314

$873.00

$285.00

Reduction in gravity to 3 Persons Affected.

8416315

$873.00

$285.00

Reduction in gravity to 3 Persons Affected.

8416406

$4,689.00

$2,106.00

Reduction in gravity to Permanently Disabling.

8416316

$2,282.00

$2,282.00

8416318

$1,657.00

$1,657.00

8416319

$946.00

$285.00

Reduction in gravity to
Lost Workdays or Restricted Duty.

8415398 $12,248.00

$3,689.00

Reduction in negligence to Moderate.

8416312

$7,578.00

$6,062.00

Docket $61,174.00
Total

$27,387.00

Overall $221,222.00
Total

$79,385.00

Reduction in negligence to Moderate.

I have considered the representations submitted by the parties and I conclude that the proposed
settlement is appropriate under the criteria set forth in section 110(I) of the Act. The motion to
approve settlement is GRANTED.
33 FMSHRC 1502

III. ORDER
Based on the criteria in section 110(I) of the Mine Act, 30 U.S.C. § 820(I), I assess a total
penalty of $243,074.00 for the heard and settled citations and orders. Black Beauty Coal Company
is hereby ORDERED TO PAY the Secretary of Labor the sum of $243,074.00 within 30 days of
the date of this decision.

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

Distribution: (First Class U.S. Mail)
Awilda Marquez, Pamela Mucklow, Office of the Solicitor, U.S. Department of Labor, 1999
Broadway, Suite 800, Denver, CO 80202
Arthur Wolfson, Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty Ave.,
Pittsburgh, PA 15222

33 FMSHRC 1503

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19th STREET, SUITE 443
DENVER, CO 80202-2500
303-844-5266/FAX 303-844-5268

June 21, 2011

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.
BLACK BEAUTY COAL COMPANY,
Respondent.

:
:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 2009-569
A.C. No. 12-02010-188272-02
Docket No. LAKE 2009-570
A.C. No. 12-02010-188272-03
Mine: Air Quality #1 Mine

DECISION
Appearances:

Awilda Marquez, Pam Mucklow, Office of the Solicitor, U.S. Department
of Labor, Denver, Colorado, for Petitioner;
Arthur Wolfson, Dana Svendson, Jackson Kelly, Pittsburgh, Pennsylvania,
for Respondent.

Before:

Judge Miller

These cases are before me on a petition for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration, against Black
Beauty Coal Company at its Air Quality #1 Mine, pursuant to sections 105 and 110 of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act” or “Act”). The
two dockets captioned above , which are the subject of this decision, were heard along with four
other dockets, LAKE 2009-470, 471, 565 and 612, and share a common transcript and exhibits.
Docket Nos. LAKE 2009-470, 471, 565 and 612, are addressed in two other decisions. With the
exception of the fifteen citations and orders discussed below, the parties have agreed to settle all
citations and orders in the captioned dockets. The settlement terms are set forth at the end of this
decision. The parties presented testimony and documentary evidence at the hearing held in
Evansville, Indiana commencing on February 15, 2011.
I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
Black Beauty Coal Company, (“Black Beauty”) operates the Air Quality #1 mine (the
“mine”), a bituminous, underground coal mine, near Vincennes, Indiana. The mine uses a
continuous miner and utilizes the room and pillar method. (Tr. 15). The mine is subject to
regular inspections by the Secretary’s Mine Safety and Health Administration (“MSHA”) pursuant
to section 103(a) of the Act. 30 U.S.C. § 813(a). The parties stipulated that Black Beauty is the
operator of the mine, that the mine’s operations affect interstate commerce, and that it is subject to
the jurisdiction of the Mine Act. Jt. Ex. 1; (Tr. 587-588). Black Beauty Coal, like a number of
other mines in the Indiana-Illinois area, is owned by Peabody Energy. The mine is a large
operator.
A.

Common Facts and Law

In addition to the penalty criteria and jurisdictional matters, there are a number of facts
that are common to the citations and orders discussed below. The parties have agreed that each of
them is “free to argue that evidence admitted in the context of a particular Citation or Order is
33 FMSHRC 1504

relevant to the court’s determination of other Citations and Orders. Further, if the Court accepts
the party’s argument, the Court may consider that evidence in reaching her decision concerning
those other Citations and Orders.” Jt. Ex. 1, Stip. 11. I have used the transcript in it’s entirety in
addressing citations and orders.
At the time the subject citations and orders were issued the mine had been on the (d)(2)
series for an extended period of time. Each inspector who testified indicated that this mine has
had a number of serious, ongoing problems. The primary ongoing problem has been
accumulations, including coal, float coal dust, and oil. The mine has also had chronic issues with
keeping the accumulations out of the belt areas, and keeping the ventilation in place to prevent
exposure to dust. This mine has a greater than normal number of permissibility violations. All
inspectors credibly testified that the mine was on notice, both from past violations and meetings
with management, that it should be paying attention to the violations related to accumulations,
ventilation plans, roof control plans, and dust exposure.
The mine is on a 103(I) five day spot inspection due to the large quantities of methane
liberated. The mine argues that the methane is primarily emitted at the sealed areas.
Nevertheless, the mine is considered a gassy mine. During the time frame that many of these
citations and orders were issued, from March 30, 2009 until June 29, 2009, the mine received 271
citations and 11 orders. Sec’y Ex. 60. The mine history shows that, in the less than one year
period prior to when the subject violations were issued, the mine received 102 citations and orders
for accumulations violations, Sec’y Ex. 63, and 47 citations and orders for permissibility
violations, Sec’y Ex. 64. Further, a number of the subject violations were issued in February
2009. The history also shows 234 violations of accumulation standards in the prior two year
period. Sec’y Ex. 69. Finally, the history shows that, from March 2007 to March 2009, there
were a large number of permissibility, accumulations, ventilation and roof violations, all or which
are all very serious hazards. Sec’y Ex.71. During testimony, each of the inspectors who issued
the subject violations found that the violations were obvious and should have been discovered
prior to the inspection by either a preshift examination, an onshift examination, or during the
regular course of mining.
The majority of the orders and citations discussed below have been designated as
significant and substantial. A significant and substantial (“S&S”) violation is described in section
104(d)(1) of the Act as a violation “of such nature as could significantly and substantially
contribute to the cause and effect of a coal or other mine safety or health hazard.” 30 U.S.C. §
814(d)(1). A violation is properly designated S&S “if, based upon the particular facts surrounding
that violation, there exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC
822, 825 (Apr. 1981). The Commission has explained that:
[i]n order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum, the Secretary of Labor
must prove: (1) the underlying violation of a mandatory safety standard; (2)
a discrete safety hazard--that is, a measure of danger to safety--contributed
to by the violation; (3) a reasonable likelihood that the hazard contributed
to will result in an injury; and (4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861 F.2d 99,
103-04 (5th Cir. 1988), aff’g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving
Mathies criteria).
The difficulty with finding a violation S&S normally comes with the third element of the
Mathies formula. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the
Commission provided additional guidance:
33 FMSHRC 1505

We have explained further that the third element of the Mathies formula
“requires that the Secretary establish a reasonable likelihood that the hazard
contributed to will result in an event in which there is an injury.” U.S. Steel
Mining Co., Inc., 6 FMSHRC 1834, 1836 (August 1984). We have
emphasized that, in accordance with the language of section 104(d)(1), it is
the contribution of a violation to the cause and effect of a hazard that must
be significant and substantial. U.S. Steel Mining Co., Inc., 6 FMSHRC
1866, 1868 (August 1984); U.S. Steel Mining Co., Inc., 6 FMSHRC 1573,
1574-75 (July 1984).
This evaluation is made in consideration of the length of time that the violative condition existed
prior to the citation and the time it would have existed if normal mining operations had continued.
Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc.,
6 FMSHRC at 1574. Further, the question of whether a violation is S&S must be based on the
particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
In addition to being designated S&S, many of the citations and orders were designated as
an unwarrantable failure or attributable to high negligence. The term “unwarrantable failure” is
defined as aggravated conduct constituting more than ordinary negligence. Emery Mining Corp.,
9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable failure is characterized by such conduct as
“reckless disregard,” “intentional misconduct,” “indifference,” or the “serious lack of reasonable
care.” Id. at 2004-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC at 193-94. Aggravating
factors include the length of time that the violation has existed, the extent of the violative
condition, whether the operator has been placed on notice that greater efforts were necessary for
compliance, the operator’s efforts in abating the violative condition, whether the violation was
obvious or posed a high degree of danger, and the operator’s knowledge of the existence of the
violation. See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000); Mullins & Sons Coal
Co., 16 FMSHRC 192, 195 (Feb. 1994); Windsor Coal Co., 21 FMSHRC 997, 1000 (Sept.
1999); Consolidation Coal Co., 23 FMSHRC 588, 593 (June 2001). All of the relevant facts and
circumstances of each case must be examined to determine if an actor’s conduct is aggravated, or
whether mitigating circumstances exist. Consol, 22 FMSHRC at 353.
I rely on the cited case law when considering the citations and orders discussed below,
particularly with respect to the issues of S&S and unwarrantable failure. The findings of fact are
based on the record as a whole and my careful observation of the witnesses during their testimony.
In resolving any conflicts in testimony, I have taken into consideration the interests of the
witnesses, corroboration, or lack thereof, and consistencies or inconsistencies, in each witness’
testimony and between the testimonies of witnesses. In evaluating the testimony of each witness,
I have relied on his or her demeanor. Any failure to provide detail on each witness’s testimony is
not to be deemed a failure on my part to have fully considered it. The fact that some evidence is
not discussed does not indicate that it was not considered. See Craig v. Apfel, 212 F.3d 433,436
(8th Cir. 2000) (administrative law judge is not required to discuss all evidence and failure to cite
specific evidence does not mean it was not considered).
Finally, there are a number of citations that were issued based upon a safeguard for clear
walkways along the side of each belt. I have already ruled on the validity of the underlying
safeguard. As a result, two of the citations that remain at issue were not addressed at hearing and,
instead, the parties stipulated that “ the only defenses . . . [Black Beauty is] raising concerning
Citations 8415372 and 8415373 are (1) the Citation must be vacated because the underlying
Safeguard is invalid and (2) the Court could not find the violations to be significant and
substantial because safeguards are not mandatory standards.” Jt. Ex. 1, Stip. 15. The parties
further “stipulate that neither will present evidence particular to Citations 8415372 and 8415373.”
Id. at Stip. 16.
B.

Docket No. LAKE 2009-569
33 FMSHRC 1506

This docket contains five violations with a total proposed penalty of $73,045. The parties
have agreed to settle one of the violations. The remaining violations are addressed below. The
terms of the settlement are addressed near the end of the decision.
1.

Citation No. 9942563

On April 9, 2009, Inspector Charles Weilbaker issued citation number 9942563 for a
violation of section 70.100(a). The citation, in pertinent part, alleges the following:
The average concentration of respirable dust in the working environment of
the designated occupation was 2.691 milligrams per cubic meter which
exceeds the 2.0 milligrams per cubic meter standard. This finding was
based on the results of five (5) valid dust samples collected by the operator.
The operator shall take corrective action to lower the respirable dust.
The inspector found that a permanently disabling injury was reasonably likely to occur, that the
violation was significant and substantial, that six persons would be affected, and that the violation
was the result of high negligence.
The cited standard requires the following:
Each operator shall continuously maintain the average concentration of
respirable dust in the mine atmosphere during each shift to which each
miner in the active workings of each mine is exposed at or below 2.0
milligrams of respirable dust per cubic meter of air as measured with an
approved sampling device and in terms of an equivalent concentration
determined in accordance with §70.206 (Approved sampling devices;
equivalent concentrations).
30 C.F.R. § 70.100. The Secretary has proposed a civil penalty in the amount of $42,600.
a.

The Violation

Inspector Ron Hayes, the health supervisor in MSHA Vincennes office, has been with
MSHA for 22 years. He was a member of the team of “dust busters” sent to the mine to address
issues of respirable dust. Hayes supervises the dust and noise groups and reviews the dust
violations for the mines in his district. (Tr. 183-185).
According to Hayes, in each dust case, including the one here, the violation for an
overexposure to dust is based upon the average of five valid samples collected by the mine
operator and sent to the MSHA lab for analysis. The results are entered into a computer and the
district office is notified. The mine receives an advisory if it is out of compliance and the district
office issues a violation. At this mine the maximum allowable respirable dust exposure is 2.0
milligrams per cubic meter in an eight hour period. The hazard associated with exposure to
respirable dust is that, in the case of coal dust, it will be brought into the lungs, cause damage, and
eventually lead to “black lung.” The greater the exposure, the greater the hazard. The samples are
taken for designated miner occupations. Here, the samples are those for the continuous miner
operator. (Tr. 186-188).
Several witnesses testified on behalf of the mine operator, however, there is no dispute
that the weighted samples demonstrated an overexposure, i.e,. the average weighted samples
exceeded the 2.0 limit. While Mr. Polston and others at the mine expressed their opinion that the
manner in which the Pittsburgh lab weights the samples results in inaccurate results, there is no
evidence that the testing was faulty. The five weighted dust samples collected by the mine
demonstrated an exposure over the 2.0 milligrams per cubic meter limit allowed by the MSHA
standards. Accordingly, I find that a violation has been established.
33 FMSHRC 1507

b.

Significant and Substantial

This case involves a mandatory health standard as opposed to a safety standard. In
Consolidation Coal Co., 8 FMSHRC 890 (June 1986), aff’d 824 F.2d 1071 (D.C. Cir. 1987), the
Commission applied the Mathies test to a violation of a mandatory health standard. The
Commission stated the following:
Adapting this test to a violation of a mandatory health standard, such as
section 70.100(a), results in the following formulation of the necessary
elements to support a significant and substantial finding: (1) the underlying
violation of a mandatory health standard; (2) a discrete health hazard--a
measure of danger to health--contributed to by the violation; (3) a
reasonable likelihood that the health hazard contributed to will result in an
illness; and (4) a reasonable likelihood that the illness in question will be of
a reasonably serious nature.
Id at 897. The Commission went on to state the following:
[G]iven the nature of the health hazard at issue [i.e., respirable dust induced
disease], the potentially devastating consequences for affected miners, and
strong concern expressed by Congress for eliminating respiratory illnesses
in miners, . . . if the Secretary proves an overexposure to respirable dust in
violation of § 70.100(a), based upon designated occupational samples, has
occurred, a presumption arises that the third element of the “significant and
substantial” test - - a reasonable likelihood that the health hazard contribute
or will result in an illness - - has been established.
Id. at 899.
Hayes testified that two of the tested samples showed dust levels that were double the
allowable amount. The miners were exposed to these excessive levels of respirable dust for two
shifts over the course of two days, and to relatively high levels on three other shifts. (Tr. 198).
Hayes stated that this overexposure is S&S because it harms the lungs immediately, as well as in
the long term by causing black lung.
I have already found that there is a violation of the mandatory health standard. Second, I
find that a discrete safety hazard existed as a result of the violation, the danger of overexposure to
respirable dust which causes significant lung damage. Third, there is a reasonable likelihood that
the health hazard contributed to will result in an illness. The operator offered no evidence suitable
to overcome the presumption that the exposure to dust would result in a serious injury. The mine
focused on the ventilation that was in place on the day the citation was issued and the fact that
they noticed nothing out of the ordinary. I find that operator has failed to rebut the presumption
discussed above. The Respondent’s witness testimony primarily focused on the negligence
attributed to the violation, and not the S&S nature. Fourth, the illness will be serious. The
damage to the lung is permanent and irreversible and will eventually lead to death. In light of the
foregoing analysis, I find that the violation was properly designated S&S.
c.

Negligence

Weilbaker designated the citation as high negligence. According to Hayes, the designation
was based on the previous history of violations and the existence of several trigger samples that
came back as overexposed. Hayes testified that, given that the high level of dust should have been
visible in the air and therefore, the mine foreman should have known that the dust concentration
was high. Further, Hayes opined that, even if the mine was adhering to the approved ventilation
plan when the samples were taken, the mine should have seen the large quantities of dust in the air
given that two samples demonstrated exposure of more than double the allowable limit. (Tr.
33 FMSHRC 1508

194-196, 199, 208). Inititally, Hayes did not clarify when the earlier exposures occurred.
However, on cross-examination, he explained that he reviewed dust reports for the mine and
found that it had received two citations on the same MMU during a four month period beginning
in 2008. Hayes viewed the “trigger samples” taken on the coal haulers that indicated
overexposure to respirable dust. (Tr. 209-211).1
Elliot Polston was the section foreman at the mine at the time the violation was issued. He
saw nothing in the notes or reports on the day of the overexposures that would have led him to
believe there was a dust issue. Polston testified that it is an ongoing process throughout the day to
keep ventilation in place, keep the roads watered, and make sure that miners stand behind line
curtains in order to minimize dust exposure. He was in charge of, for the most part, collecting the
samples that were out of compliance, but he has no explanation for the over exposure. It is his
belief that the mine was complying with the ventilation plan on the day the samples were taken.
In his view, the manner in which the samples were weighted caused the inaccurate results. (Tr.
238-244).
Jeff Buskirk is presently, and was at the time of the violation, a lead man at the mine. He
reviewed the mine’s documents, including the preshift and onshift records, and could not identify
anything that would lead him to believe that there were elevated dust levels that day. Although
Buskirk was lead through his testimony, it appears that, in his view, the amount of air was
adequate and the ventilation was working as required by the plan. (Tr. 249-250).
David Wininger is currently retired but worked at Air Quality for nine years as a safety
technician. He was certified “to run dust pumps” and was in charge of the dust program. He
reviewed the samples. Wininger stated that he does not see any pattern of violation in the MMU 4
and the mine “hadn’t had a citation for awhile.” He opined that an issue with dust on one unit
does not necessarily indicate a problem with the other continuous miner since the equipment
operates on separate splits of air. At one time, 19 months prior to this violation, the mine did have
some single samples that were over the 2.0 limit. (Tr. 267). After reviewing a dust sampling
result report for the mine, Wininger agreed that there were a number of samples over the 2.0 limit
but, in his view, those samples would not put the mine on notice that they had any unusual
problem with repsirable dust. See BB Ex. TT. Wininger believes that many things can happen to
elevate the dust sample over the limit. In his opinion, the violations were not consistent and did
not demonstrate a pattern. I give little credit to Mr. Wininger’s testimony as his answers were
limited to a few words except on cross-examination.
I find Hayes to be a credible and knowledgeable witness with a good basis for his opinion
regarding the overexposure to dust. However, I can’t agree that the Secretary has proven by a
preponderance of the evidence that the negligence was any more than moderate. The mine has
offered some mitigating, albeit confusing, evidence regarding the negligence. Therefore, I find
the negligence to be moderate and based upon the statutory penalty criteria, assess a penalty of
$20,000.
2.

Order No. 8415738

On April 20, 2009, Inspector Anthony DiLorenzo issued order number 8415738 to Black
Beauty for a violation of 30 C.F.R. § 363(a) of the Secretary’s regulations. The citation alleges
the following:
Hazardous conditions found during the onshift of the 1 “B” belt have been
carried in the book, maintained at the mine surface, since the 4/14/2009 day
1

I note here that, while the mine had two prior violations and a number of trigger samples
out of compliance, the Secretary did not adequately explain the trigger samples and their
significance.
33 FMSHRC 1509

shift. The hazards are preventing the examiner from making a
complete examination from crosscuts #51-#52 and #61-#62. The
areas are not safe for travel due to the excessive water, obstructions
in the passageway and slip/trip/fall hazards. No effort has been
made to correct these hazards. The conditions are obvious,
extensive and have existed for a significant amount of time. This
violation is an unwarrantable failure to comply with a mandatory
standard.
DeLorenzo initially found that the violation was non-S&S and that an injury or illness was
unlikely, but that any injury could reasonably be expected to result in lost workdays or restricted
duty. He later modified the citation to reflect that it was S&S and that an injury or illness was
reasonably likely. In addition, he found that 1 person would be affected by the condition and that
the violation was the result of the respondent’s high negligence and unwarrantable failure to
comply with the mandatory standard. The Secretary has proposed a penalty of $4,000.
a.

The Violation

DiLorenzo issued the order for a violation of section 75.363(a) which requires, in pertinent
part, the following:
Any hazardous condition found by the mine foreman or equivalent mine
official, assistant mine foreman or equivalent mine official, or other
certified persons designated by the operator for the purposes of conducting
examinations under this subpart D, shall be posted with a conspicuous
danger sign where anyone entering the areas would pass. A hazardous
condition shall be corrected immediately or the area shall remain posted
until the hazardous condition is corrected
30 C.F.R. § 75.363(a). The dictionary defines hazard as “a source of danger.” Webster’s New
Collegiate Dictionary (1979) at 522. In the context of this analysis, the danger associated with a
hazardous condition is damage to, or accidents involving, miners.
DiLorenzo issued this order after observing a number of hazards, primarily large pools of
water, along the 1 B belt that had been listed in the examination books of the mine for several
days. (Tr. 856-857). In his view, the areas referenced in the order were not safe to travel and no
effort has been made to correct the hazards. The hazards were the subject of a separate violation,
and were issued primarily for water, mud, and debris in the walkway along the belt. (Tr. 858-859).
He explained that, while no one was traveling through the area while he was present, the belt
examiner was required to travel the area at least once on each production shift. (Tr. 858). The
examination books indicated that there was “work in progress” but DiLorenzo saw no pumps or
pump lines, no warning signs, and no other evidence of work being done at that time to correct the
conditions. He did see a make-shift dam that proved to be inadequate, but he could not discern
any other measures in place to alleviate the water problem. (Tr. 859-860).
Horst, an hourly employee at Air Quality, accompanied DiLorenzo on the inspection.
Horst has worked in the mining industry for over eight years. He recalled that, as he walked the 1
B belt with DiLorenzo, there was water in the walkway but it did not go over the top of his boots.
He estimated that the water was around 13 inches deep. Horst agreed that the water was rib to rib,
but stated that the water was clear and he was not concerned about falling as he walked through it.
The examiner would not be prohibited from making his examinations with this amount of water.
Horst would not describe the condition as creating a hazard. DiLorenzo, on the other hand,
determined that, given the water was 13 inches deep, murky, and covered up an uneven bottom of
rock and coal, there was a hazard. (Tr. 842-843).
33 FMSHRC 1510

In order to establish a violation, the Secretary must first demonstrate that “hazardous
conditions” existed. Next, she must establish that the hazard had not been corrected or posted.
Hence, the Secretary has the burden of demonstrating that the conditions listed by DiLorenzo are a
hazard, that they can cause damage or accidents. Once the existence of a hazard has been
established, the focus shifts to the actions, if any, taken to remediate the condition. In his
testimony, DeLorenzo refers to the hazardous conditions he cited in citation number 8415735,
discussed below, for an alleged failure to keep a clear 24 inch walkway on either side of the
beltway. I rely on the description of that hazard here. The safeguard that is the subject of that
violation requires that the travelway be kept free from water and mud such that a clear 24 inch
width of travelway is provided along the belt. The safeguard must, and in this case does, address
the hazard associated with walking in water along the beltway. While there is some disagreement
about the condition of the water, I credit DiLorenzo’s testimony that it was dark, murky, difficult
to see through, and contained rocks and debris. Given that the water was undeniably 13 inches
deep, and the bottom could not be seen, the Secretary has demonstrated that the water in the
walkway was a hazard. As a result, the condition was a hazard and should been immediately
corrected or posted. The evidence establishes that the condition was neither posted nor corrected.
I find that the violation has occurred.
b.

Significant and Substantial

DiLorenzo initially marked this violation as “unlikely” and, therefore, not S&S. He later
modified the citation to “reasonably likely” and S&S. However, DiLorenzo’s testimony about the
S&S nature of the violation was limited. In response to one question about why this was S&S,
DiLorenzo essentially restated certain elements of the S&S analysis. (Tr. 867-868). There was no
further explanation or elaboration. I have already found a violation, and that a hazard existed, but
the third element of the Mathies test has not been sufficiently addressed and, therefore, the
Secretary has not shown that the violation is S&S.
c.

Unwarrantable Failure

The mud and water obstructing the walkway was obvious and extensive. As far as
DiLorenzo could see, little if any effort was made to correct the condition even though it had been
noted by the examiner for six days, on each production shift. The 1 B belt line was taken out of
service to terminate the violation and it took about five hours to adequately pump out the water.
(Tr. 863-865). DiLorenzo explained that, given the amount of time he spent in the belt area, he
would have noticed corrective efforts. However, there were no corrective measures being taken.
DiLorenzo testified that management was on notice that there continued to be water and mud in
the walkway since the condition had first been entered in the record of examination six days prior.
Despite that knowledge, the condition was not corrected. At times, the examination book
contained a notation that work was in progress to correct the condition. However, since the
condition existed for an extended period of time and there was nothing noticeable being done,
DiLorenzo felt it was inexcusable. He explained that “there was no corrective action taken to
correct that condition. The - it’s been carried in the record books for approximately six days. A
mine management and officials have countersigned the belt examining record books
acknowledging that they have read and understand what they have entered.” (Tr. 861).
Eric Carter, an assistant mine manager for Air Quality, oversees all outby activities and
has 17 years mining experience. He assisted in terminating the order by getting tools and
pumping the water. He testified that the water at crosscut 62 was only a small amount, but agrees
that the water near crosscut 50 had been coming through the walls and was more extensive.
Nevertheless, Carter believes that the amount of water at both locations did not amount to a
hazard. When he arrived at the belt walkway on the day the order was issued, the miners were
mucking the water with buckets. He brought a pump to use at crosscut 62. After the water had
been mostly pumped out, rock dust was put down to dry the area. He does not believe that the
condition prevented an examination. After the belt was shut down, he saw that the bottom belt
33 FMSHRC 1511

spray was stuck and was causing water to leak and accumulate. In addition, he testified that
washing equipment nearby had caused water to seep through the walls. He stated that he
discovered the notes in the examination books about the water and, as a result, had contractors
shoveling and rock dusting the walkway. Reports provided by the operator for 4/15/09 indicate
work in progress on water in 1 B belt. The same is true on 4/16/09.
A few days prior to the citation, Carter had been told by an examiner that water was
unexpectedly coming into the belt-way. As a result, Carter sent workers to shovel and rock dust.
However, there is no evidence that any pumps were used until after the citation was issued. Once
the pumps were brought in, and the belt shut down, a leak was found and repaired, and the water
was removed. The mine has no explanation as to why the search for the cause and the use of
pumps were not initiated until after a citation was issued. They had not done enough to correct
the water problem over a lengthy period of time. I credit the testimony of DiLorenzo and
characterize the Respondent’s behavior as “indifference” or “serious lack of reasonable care.”
Therefore, I find that the negligence is high and that the violation was a result of an unwarrantable
failure to comply. I assess a $4,000 penalty.
3.

Order No. 7522964

Inspector Donald Roby issued order number 7522964 on April 27, 2009, citing a violation
of section 75.370(a)(1) for a failure to follow the mine’s ventilation plan. The order alleges that
“[t]he respirable dust portion, (requiring the scrubber screen to be cleaned after each cut) of the
ventilation plan approved 05-27-2007 is not followed on the 003-MMU, in that; the scrubber
screen is not cleaned prior to the beginning a second cut.” Roby determined that a permanently
disabling injury was reasonably like to occur, that the violation was significant and substantial,
and that one person would be affected. Further, he found that the violation was the result of the
operator’s high negligence and unwarrantable failure to comply. A penalty of $9,882 is proposed.
a.

The Violation

Inspector Don Roby, a health specialist with MSHA, has 21 years mining experience.
Prior to working for MSHA he held many positions, including mine foreman, and mine
superintendent. Roby was at the Air Quality mine on April 27, 2009 as a part of the “dust
busters” team. The team is a group organized by MSHA to target mines with respirable dust
issues and assist those mines in eliminating the problems. The subject violation occurred on the
003-MMU, the working section where Roby was observing the continuous miner operator. (Tr.
276). After taking a cut, which consists of 4 lifts, the miner operator failed to clean the scrubber
as required by the mine’s ventilation plan. The mine’s plan defines a cut, by way of a diagram, as
four lifts of 20 feet deep by 10 feet wide, for a total cut size of 40 feet deep by 20 feet wide. Sec’y
Ex. 33 p. 25; (Tr. 281). The scrubber screen is a mesh of wire that is layered, encased in a rubber
frame, and inserted into the continuous miner. The screen collects particles of dust so that the
particles are prevented from being liberated into the air. The intent of the screen is to cut down on
exposure to respirable dust. (Tr. 280).
On the day of the violation, Roby was watching the miner while it was cutting a crosscut
from the 4 entry to the 5 entry. The machine must make two runs to make the 20 feet wide cut,
and 4 runs to make the 40 feet deep cut. Roby observed the operator check the scrubber and
sprays, cut 4 lifts, and then stop and check the scrubber. He then watched lift 1 and 2 of the next
cut. When the operator turned the scrubber on to take lift number three, Roby issued the order for
not cleaning the scrubber screen.
Mark Bedwell II, a lead man and former section foreman, testified on behalf of Air
Quality. Bedwell was in charge on the day the citation was issued, and deferred to the inspector
as the work progressed. He remembers the sequence differently than Roby, but states that he
asked Roby if he should clean the screen and was told he was not required to do so. Bedwell’s
testimony is unclear. On one hand, his understanding of “one cut” is different than Roby’s. At
33 FMSHRC 1512

the same time he knew the meaning of a cut as evidenced by the fact that, shortly before the
citation was issued, he asked the inspector if the screen needed to be cleaned. (Tr. 315-317). I do
not find Bedwell to be a credible witness.
The evidence supports the finding that the miner operator did not clean the screen after the
full cut, as was required by the plan. There was some discussion by the operator about how many
lifts must be completed in order to constitute a full cut for purposes of the ventilation plan. I find
that the plan speaks for itself and the cut was made without the screen being cleaned. The
violation is proven.
b.

Significant and Substantial

The Secretary contends that, since the scrubber screen was not cleaned, the operator of the
machine was exposed to respirable dust. Roby testified that the miner operator was exposed to “an
undue amount of respirable dust” because the screen would have been clogged with coal dust
from the previous cut, thereby diminishing its effectiveness. (Tr. 288-289). While there is no
question that exposure to respirable dust is serious and will result in black lung or other
debilitating diseases, there is no evidence in the record to demonstrate that the miner operator was
exposed to any amount of dust. Roby assumed that he was exposed for the short period of time
but provided no further information regarding the exposure. Roby stated that, while he tested the
effectiveness of the screen prior to this cut, it did not fall below the requirements in the ventilation
plan. (Tr. 289). There is little evidence presented by the Secretary to demonstrate that the miner
operator was exposed to dust, and no evidence that he was overexposed.
The Secretary has the burden of proving all elements of the Mathies test. While in dust
cases there may be a presumption applicable in examining the third prong of that test, the
Secretary has not even proven that a hazard existed as a result of the violation. Further, I am not
convinced that the scrubber would have remained in operation without the proper cleaning for any
length of time. The scrubber screen was working and was collecting dust, even though, after the
first cut, it had diminished effect. There is no evidence that the diminished effect exposed anyone
to any amount of respirable dust. Without more, I cannot find that the failure to clean the
scrubber, resulted in a hazard. Therefore, I find that the violation is not S&S.
c.

Unwarrantable Failure

The Secretary presented little evidence to substantiate a finding of unwarrantable failure.
There was no evidence that the action of the foreman in not cleaning the scrubber was aggravated
conduct or intentional. Indeed, with the inspector watching, it is fair to assume that the mine
operator would strictly adhere to its ventilation plan and follow the course it believed to be
correct. In addition, the Secretary has not sufficiently demonstrated the existence of any
aggravating factors. The violation cannot said to be extensive, to pose a high degree of danger, or
that the operator had knowledge of the violation. Again, it is not clear from Bedwell’s testimony
why he failed to clean the scrubber. Nevertheless, there is no evidence adduced by the Secretary
to show that he or other management demonstrated aggravated conduct. Therefore, I find that the
violation is not unwarrantable and that the negligence is moderate. I assess a $5,000 penalty.
4.

Order 8415756

On April 30, 2009, Inspector DiLorenzo issued citation number 8415756 to Black Beauty
for a violation of section of the Secretary’s regulations.2 The citation alleges that:
An adequate examination has not been performed on the 5 “C” belt
conveyor drive. Upon activation of the fire suppression system, no alarm
2

DiLorenzo initially cited a violation of 75.1103-8 but prior to hearing amended the
citation to show a violation of 75.1101-11.
33 FMSHRC 1513

was given to all locations where miners would be endangered by a
belt fire or at a manned location where the posted person has
telephone or equivalent communications with all persons who may
be endangered. A record of any examination could not be found at
or near the belt drive or at any location on the surface. Wires inside
the control panel had to be switched with different channels and
reconfiguration with the computer system had to be made for the
system to become operable. This belt drive has been in service
since 04/15/2009. This violation is an unwarrantable failure to
comply with a mandatory standard.
The inspector found that a fatal injury was reasonably likely to occur, that the violation was
significant and substantial, that two persons would be affected, and that the violation was the
result of the Respondent’s high negligence and unwarrantable failure to comply. The Secretary
has proposed a civil penalty in the amount of $12,563.
a.

The Violation

Inspector DiLorenzo testified that, while conducting an inspection of the Air Quality mine
on April 30, 2009, he tested the fire suppression system. During the test of the system, he asked
to see the examination book, but it could not be found. The standard requires that the sprinkler
system be examined weekly. DiLorenzo testified that an examination of the system includes an
examination of the piping and sprinkler heads, making sure that the sprinklers are pointed the
right direction and that spacing is correct, and that the alarms and warnings are in working
condition. (Tr. 935). The examination book, which is used to document these weekly
examinations, is normally kept at the belt drive. (Tr. 936). Initially a book could not be found
underground, but DiLorenzo testified that the mine eventually produced something that appeared
to be a log book used at the surface to record tests of the system. DiLorenzo had no reason to
question the authenticity of the book (Tr. 939).
DiLorenzo learned that the belt drive was installed on April 15, and the alarm system was
also installed and in service at that time. However, when tested by DiLorenzo two weeks later,
the fire suppression system was not functional, as it failed to send an audible alarm to the surface.
After being at the mine for a number of hours, a log book was produced, but, in DiLorenzo’s
estimation, it did not indicate that any tests of the alarm systems had been conducted as required
(Tr. 939).
Dustin Galloway is an hourly employee at the mine and has ten years of coal mining
experience. He accompanied DiLorenzo to the 5 B belt drive. While Galloway watched,
DiLorenzo tested the fire suppression system. According to Galloway, a visual warning, flashed
and the belt shut down when it was tested. (Tr. 963-965). Galloway agreed that the audible alarm
on the surface didn’t sound and, as a result, the maintenance foreman was called. Galloway
acknowledged that DiLorenzo asked to view the exam book for the fire suppression system, but it
couldn’t be located. According to Galloway, the examination book is kept at the drive and at the
surface in the maintenance planner’s office, yet it could not be found at the time of the inspection.
(Tr. 966-967).
Mark Bedwell, the shift maintenance foreman, conducted the trouble shooting when the
alarm failed to activate. He determined that the flow to the box was good and then began to
examine the electrical box where he found that a neutral wire had been pulled out of the channel
in the box. He repaired the problem by reattaching the wire. (Tr. 978). He agreed with DiLorezo
that it took a little time to find the problem, but he disagrees that he had to reconfigure the box in
order to make the visible alarm operational.
Additional witnesses for the operator testified that the examination was done weekly, as
required by the regulation, and that the results of the tests of the fire suppression system are kept
33 FMSHRC 1514

in the computer and in a book on the surface, as well as in an examination book kept
underground. Eventually, all books were found and presented to the Secretary. One witness,
Kenneth Shuts, knew the mine was looking for the examination books and observed that the
books had recently been placed in protective covers and moved from the starter box to the top of
the box. (Tr. 990). Shuts told DiLorenzo that the system had been operational since the belt
move, but DiLorenzo would not discuss it. (Tr. 992). However, after DiLorenzo mentioned that
he thought the system had not functioned for some time, Shuts pulled the data base logs and
satisfied himself that the system was activated and operated as it should. See BB Ex. R-KKK;
(Tr. 993-995). In order to demonstrate the functionality of the warning system, and to show that
the weekly examinations had been conducted on the belt fire suppression system, there are a
number of records of the system kept both underground and in the office at the surface.
The Secretary has not provided enough evidence to support the violation as alleged. The
fact that the book was missing, and missing for the remainder of the shift, along with the fact that
the system did not operate at the time it was tested, is not enough to support a finding that the
weekly examination was not conducted. The Secretary does not indicate when the last
examination was made. Instead, because the book could not be found, she assumes that the last
examination was two weeks prior when the system was put in place. There is little evidence about
the examination book, what was reviewed, and what it demonstrated once it was discovered. The
Secretary did not establish that the weekly examination had not been conducted or, if it had been,
that it was inadequate. The witnesses for Air Quality indicated that the examination was
conducted weekly, that all aspects of the system were tested, and that the condition cited by
DiLorenzo would have been discovered during the next weekly examination.
The Mine Act imposes upon the Secretary the burden of proving each alleged violation by
a preponderance of the credible evidence. In re: Contests of Respirable Dust Sample Alteration
Citations, 17 FMSHRC 1819, 1878 (Nov. 1995), aff’d sub nom. Sec’y of Labor v. Keystone Coal
Mining Corp., 151 F.3d 1096 (D.C. Cir. 1998) (quoting Garden Creek Pocahontas Co., 11
FMSHRC 2148, 2152 (Nov. 1989)). The preponderance standard, in general, means proof that
something is more likely than not. Id. at 1838. There is not enough evidence presented by the
Secretary to meet the burden of proof. Therefore, the citation is vacated.
C.

Docket No. LAKE 2009-570

This docket contains sixty-three (63) violations with a total proposed penalty of $262,994.
The parties have resolved a number of the violations, leaving eleven for decision here.
1.

Citation No. 8415735

On April 20, 2009, Inspector Anthony DiLorenzo issued citation number 8415735 to
Black Beauty for a violation of section 75.1403-5(g), based upon an earlier notice to provide
safeguard. The citation alleges that:
A clear travelway at least 24 inches wide was not being provided on both
sides of the energized 1 “B” conveyor belt. Water, mud, rock and coal was
observed at crosscut #62 in the beltline up to 13 inches in depth, 17.5 feet
in width and up to 30 feet in length. At crosscut #51-#52 no clear walkway
was provided in the beltline due to rock, coal, curtain and water measuring
up to 9 inches in depth, 16 feet wide and up to 20 feet in length.
The inspector initially found that an injury was unlikely to occur, but that any injury could
reasonably be expected to result in lost workdays or restricted duty. Further, he found that one
person would be affected, and that the violation was non-S&S and result of moderate negligence.
He subsequently modified the order to reflect that and injury was reasonably likely and that the
violation was S&S and the result of high negligence. The Secretary has proposed a civil penalty
in the amount of $3,405.
33 FMSHRC 1515

a.

The Violation

Inspector DiLorenzo testified that he has been an authorized representative of the
Secretary since 2008. He is currently, and has been, the supervisor at Vincennes since the
summer of 2010. He worked in mines during his senior year of high school in 2003, and through
college, where he earned a degree in safety management. He conducted mine examinations and
worked as a lead man while working in the mines. (Tr. 839-840).
On May 11, 2009, DiLorenzo walked the beltway at the 1 B conveyor while he conducted
an inspection of the Air Quality mine. He observed sufficient water in the travelway to hinder
walking. According to DiLorenzo, the water limited the travel area to less than 24 inches, thereby
violating a safeguard that had been issued to the mine in 2003, Sec’y Ex. 45, and modified in
2007, Sec’y Ex. 46. The water was dark and murky as a result of the rock, coal and debris on the
bottom, thereby making it difficult to see the mine floor. (Tr. 841-843). Absent the water and
mud, the travelway was the 24 inches required by the safeguard. (Tr. 844-845). The safeguard
specifically requires that “a clear travelway at least 24 inches wide be provided on both sides of
all belt conveyors.” The modification of the safeguard adds that the travelway “shall be clear of
mud and water.” (Tr. 845).
DiLorenzo observed the water and mud at two separate areas along the belt; first, near
crosscut 51-52 and, second, near crosscut 62. (Tr. 849). In each area, the water and mud hindered
the ability to travel along the belt and prevented the existence of a clear 24 inches of travelway.
The rock and coal in the water, along with the water itself, created a slip, trip, and fall hazard
The water depth of 13 inches reached to the middle of DiLorenzo’s calf. (Tr. 874).
While the mine does not dispute that the travelway contained water, thereby limiting the
access to less than 24 inches, the mine does dispute that the water created a hazard. Damian
Horst, a utility worker for the mine who accompanied DiLorezo, testified that there was water
covering the walkway, but the mine examiner had continued to conduct his examinations. It was
Horst’s belief that the water was not deep enough and that the bottom could be seen, thereby
eliminating any hazard. However, Horst agreed that he would have listed the condition in the belt
examination book as a hazard. (Tr. 885-886).
Rick Carter, the mine manager, abated the citation after observing the condition. He
believed that there was “a small amount if (sic) water at 61/62 [crosscut] and then . . . from that
area down to the 50's where the water had been coming through the walls.” (Tr. 895). When
Carter arrived, miners were mucking water at one location. Carter used a pump at the other
location to remove the water, and then rock dust was put down to dry all the areas. (Tr. 895-896).
After the belt was shut down, he saw that the bottom belt spray was stuck and was causing water
to leak and accumulate in the area. Carter testified that he was also aware that washing equipment
nearby had caused water to seep through the walls. (Tr. 897). While Carter testified that he
discovered the notes in the examination books about the water and had people working in the wet
areas, shoveling and rock dusting the walkway, I note that his testimony was not specific about
when the work was done. Carter reviewed the mine reports and explained that on 4/15/09 the
examination book indicated work on water in 1 B belt. The same is true on 4/16/09. (Tr. 900). At
some point prior to the citation being issued, Carter had been told by an examiner that water was
coming into the beltway, but he didn’t know where. Carter responded by getting involved and
sending workers to shovel and rock dust. However, there is no evidence that any pumps were
used until after the citations was issued. It took just one pump about ten to 20 minutes to pump
out the water at 62 crosscut once the citation was issued. (Tr. 912). I do not find Carter to be a
credible witness.
The mine has raised the issue of the validity of the safeguard itself. Prior to hearing, the
mine filed a motion to dismiss citation numbers 8415735, 8415371, 8415372, and 8415373,
which are all based on the safeguard at issue. (See Black Beauty Mot. to Dismiss). Black Beauty
alleges that the notice to provide safeguard and subsequent modifications are invalid and,
33 FMSHRC 1516

therefore, the citations issued for violations of such should be vacated. Black Beauty makes two
arguments in support of its motion. First, Black Beauty argues that the notice to provide
safeguard as originally issued, and the second modification of that safeguard, do not specifically
identify a hazard. Second, Black Beauty argues that the second modification of the notice to
provide safeguard does not provide any “indication that it was based on specific conditions that
actually existed at the mine.” Id. at 6.
The Secretary argues that the notice to provide safeguard, as originally issued, identifies
with necessary specificity the hazard of “‘rib coal and rib rock’ blocking the travelway.” Sec’y
Resp. to Mot. to Dismiss 3. Moreover, the second modification of the notice to provide safeguard
identifies with necessary specificity the hazard of “‘mud and water’ in the travelways.” Id at 4. A
reading of the safeguard makes it clear that a 24 inch clear travelway on each side of the belt is
required and that to have it otherwise would create a walking hazard along the belt.
Section 314(b) of the Mine Act grants the Secretary authority to issue “[o]ther safeguards
adequate, in the judgment of an authorized representative of the Secretary, to minimize hazards
with respect to transportation of men and materials.” 30 U.S.C. § 874(b). A representative of the
Secretary, generally an inspector, may issue a notice to provide safeguard only after
“determin[ing] that there exists . . . an actual transportation hazard that is not covered by a
mandatory standard.” Southern Ohio Coal Co., 14 FMSHRC 1, 8 (Jan. 1992). The Commission
has held that, because a notice to provide safeguard is issued by an inspector and is not subject to
the notice and comment procedural protections of section 101, the language of a notice to provide
safeguard “must be narrowly construed” and is “bounded by a rule of interpretation more
restrained than that accorded promulgated standards.” Southern Ohio Coal Co., 7 FMSHRC 509,
512 (Apr. 1985). In recognition of such, and in order to provide proper due process, a notice to
provide safeguard “must identify with specificity the nature of the hazard at which it is directed
and the conduct required of the operator to remedy such hazard.” See id.; see also Cyrus
Cumberland Resources Corp., 19 FMSHRC 1781, 1784-1785 (Nov. 1997).
On February 4, 2011 I issued an order denying the mine’s motion to dismiss in which I
noted I agree that, in order for a safeguard to be validly issued, it must be based on specific
conditions that actually existed at the mine. In Southern Ohio Coal Co., the Commission stated
that “[t]he Secretary is required to demonstrate only that the inspector evaluated the specific
conditions at the particular mine and determined that a safeguard was warranted in order to
address a transportation hazard.” 14 FMSHRC 1, 14 (Jan. 1992). The Secretary has the burden of
establishing the validity of a safeguard.
At hearing, the Secretary was required to establish that the second modification of the
notice to provide safeguard was issued based upon specific conditions that actually existed at the
mine. To that end, the Secretary called Kenny Benedict who was present when the modification
to the safeguard was issued in August, 2007. Benedict recalled mud and water in the travelway
and along the belt, that was deep enough that he avoided walking through it. (Tr. 592). The
Secretary also introduced the field notes of the issuing inspector, Sec’y Ex. 72, and Benedict
testified that the safeguard and notes were written as a result of finding water and mud in the
travelway, thereby making it difficult, if not impossible, to walk along the belt. (Tr. 603). The
safeguard, as originally issued, requires at least 24 inches on each side of the conveyor. The
modification also requires 24 inches and adds that the travelway be clear of water and mud. The
general hazard identified by the safeguard and modification is obvious, that of water and mud
obstructing the use of the 24 inch travelway. A miner should be able to travel along the belt
without fear of slipping and falling. Given the nature of safeguards, and this particular safeguard,
the face of the notice need not be as detailed and specific as Black Beauty would require. This
safeguard requires a 24 inch travelway, and specifically requires that the 24 inch travelway be free
of water and mud. I find that the Secretary has demonstrated the inspector evaluated the
conditions at the mine and determined that the safeguard was warranted. I further find, as I did in
my previous order, that this safeguard identifies with specificity the hazard at which it is directed
and what is required to abate the violation of such safeguard.
33 FMSHRC 1517

The Secretary has met her burden of establishing the validity of the safeguard. DiLorenzo
testified, without dispute, that there was water to a depth of 13 inches. I find that a clear 24 inch
travelway along the belt was not provided. Accordingly, I find that a violation has been
established.
b.

Significant and Substantial

I have found that there is a violation of the mandatory safety standard. Second, I find that
a discrete safety hazard existed as a result of the violation; mud, water, rock and coal preventing
safe travel along the belt line. DiLorenzo observed the water and mud at two distinct areas along
the belt. The conditions hindered the ability to travel and did not provide the required 24 inches
of travelway. The water contained rock and coal, making it murky and even more of a travel
hazard according to DiLorenzo. (Tr. 847-850). According to DiLorenzo, any fall would result in
lost workdays or restricted duty due to injuries such as broken bones, strained ankles or knees, or
head injuries. He determined that only one miner would be exposed. (Tr. 848). Witnesses for the
mine credibly testified that they disagreed with DiLorenzo and asserted that the water was not as
deep or as murky as he described.
Air Quality argues that a violation of a safeguard may not be designated as S&S because it
does not qualify as a violation of a mandatory standard. According to the Respondent, even if the
violation meets the Mathies test for S&S, the Secretary is prohibited from designated it as such.
The Commission has disagreed with the mine’s argument and, instead, has determined that a
violation of a safeguard is a violation of a mandatory safety standard and, therefore, can constitute
a S&S violation. Wolf Run Mining Company, 32 FMSRHC 1228, 1236 (Oct. 2010). In spite of
such, in this case the Secretary has not met her burden of establishing that the violation was S&S.
There is a dispute as to the condition of the water and exactly what 13 inches means, i.e., over the
shoes or up to the calf, and a dispute about whether the bottom could be seen while wading
through the water. DiLorenzo briefly mentioned that he has seen people fall in water, but he did
not establish what the result of falling in this particular part of the mine would mean. Hence,
while I believe that the water created a hazard to those walking in it, I find that the Secretary has
not shown that this particular violation is reasonably likely to lead to an injury-causing event. In
light of the foregoing analysis, I find that the Secretary has not met her burden of proving that the
violation was S&S.
c.

Negligence

DiLorenzo reviewed the examination books when he returned to the surface and found an
entry for April 20th that mentions “crosscut 61 to 62 excessive water intake walkway.” Sec’y Ex.
30; (Tr. 854). As far back as April 14th, the examination book shows a notation for water along
the 1 B beltway. DiLorenzo reviewed 11 or 12 exams that mentioned water in the 1 B beltway.
Some of those exams contained a notation that work was in progress. DiLorenzo explained that
the work in progress was not enough, as the water remained and continued to be noted in the
examination records.
DiLorenzo estimates that the mine had ample time to correct the problem. While Carter
testified that he sent some workers to shovel and put down rock dust, it wasn’t clear when this
occurred or how often he did so. It is undisputed that he did not resort to a pump until after the
citation was issued, nor did he take the time to discover the source of the water until that time.
Taken as a whole, the testimony demonstrates that the mine did not take the issue seriously and
made little, if any, effort to correct a hazard that had been listed in the examination books for
nearly a week. The mine was indifferent, at best. I find that the violation was the result of high
negligence. I assess a penalty of $2,500.
2.

Citation No. 8415779

On May11, 2009 Inspector Anthony DiLorenzo issued a citation for a violation of the
33 FMSHRC 1518

ventilation plan, and cited to 30 C.F.R. § 75.370(a)(1). The violation alleges that “[t]he approved
ventilation plan was not being complied with on MMU 005 on the Co. #19 Stamler feeder located
in the #4 entry between crosscuts #8-#9 on the 5 ‘C’. The energized feeder did not have any
functioning water sprays while mining. The water to the feeder was shut off.” The inspector
found that the violation was reasonably likely to result in a permanently disabling injury, that
three persons would be affected, that the violation was S&S, and that it was the result of the
operator’s high negligence. A penalty of $9,634 has been proposed.
a.

The Violation

DiLorenzo arrived at the Air Quality mine on May 11, 2009, to conduct a spot inspection,
primarily of the ventilation system. He traveled to the MMU 005 where he observed the No. 19
feeder in operation and found that the water sprays were not functioning. According to
DiLorenzo, this condition was a violation of the mine’s approved ventilation plan. (Tr.
1019-1020). After further investigation, he found that the water valve supplying water to the
feeder was turned off. The ventilation plan requires that a minimum number of water sprays must
be maintained operational at belt transfer points, one at each transfer point, and loading points
such as the one at the ratio feeder. Sec’y Ex. 33 p. 9 ¶ 2(a); (Tr. 1021-1022). The inspector
testified that the feeder must have at least one spray, which I take to mean that the one spray
should be turned on, or operational, during coal production. (Tr. 1022). The lack of working
sprays created a large, visible cloud of dust for one and a half crosscuts. (Tr. 1021). The mine
does not dispute that the water valve to the sprays was turned off or that there is a violation of the
ventilation plan. Hence I find that there is a violation as alleged.
b.

Significant and Substantial

I have determined that there is a violation of a mandatory standard and I agree with the
Secretary that the lack of water sprays, as required by the ventilation plan, allows respirable dust
to enter into the atmosphere where miners are working, thereby, creating the hazard of
overexposure to respirable dust. Over time, the exposure to dust causes lung disease, specifically
black lung. Three operators of the coal hauling equipment who traveled in the area were exposed
to the respirable dust. The coal haulers continuously rotate between moving to the feeder,
dumping, and then returning. DiLorenzo surmised that, since he could see a thick cloud of dust
for one and a half crosscuts, there were quantities of respirable dust in the air. (Tr. 1025). The
feeder was breaking down the coal, thereby creating dust that was not controlled or suppressed as
it should have been by operational water sprays. (Tr. 1023). DiLorenzo opines that the exposure
to the dust in the air is likely to lead to a serious injury. (Tr. 1027).
Hayes, an MSHA health specialist, testified that an MSHA group known as the dust
busters were assigned to the mine due to the dust issues. Although they had some problems
getting enough valid air samples, a number of the results showed that the mine atmosphere
exceeded the standard for respirable dust. Sec’y Ex. 59. The coal haulers are exposed to dust
when in the area where coal is dumped onto the belt, such as the area near the feeder cited here, as
well as other areas. Hayes explained that the only control of the dust is the spray at the feeder.
Hayes agreed that the violation is S&S and that any exposure, even a short exposure, will cause
harm to the miner. Hayes understands that one of the persons wearing a dust monitor in the area
registered the dust concentration at 1.94. He stated that, even though that concentration does not
exceed the concentration allowed by the regulations, it is very close. Given that close reading,
Hayes believes it has the potential, like any overexposure, to lead to black lung.
Cameron McCallister, a foreman at the mine on MMU-05 on May 11, testified that he was
called to the feeder to speak with the mine inspector. He saw no visible problem with respirable
dust and noted no ventilation problems in the report of examinations that he reviewed. (Tr.
1070-1071). McCallister explained that, given the location of this feeder, the sprays cannot be
seen when standing in certain areas and, accordingly, he believes that no one saw that the sprays
were not operating that day. McCallister agrees that the valve was turned off and no sprays were
33 FMSHRC 1519

operating, but cannot explain why. He did suggest that the sprays do not operate continuously
and, rather, only when coal is in the shoot. (Tr. 1072). He disagrees that the miners were exposed
for the entire shift since his records indicate that mine production did not begin until about 9:40
a.m. on that day, just one hour before the citation was issued.
While the mine operator argues that miners were not exposed to dust for any length of
time, and that the only reading available showed an exposure concentration below the 2.0 ceiling,
I find that, over that time period, there remains sufficient evidence of a hazard. The Commission
has held that the overexposure to coal and quartz dust resulting from a violation of the respirable
dust standards, i.e., 30 C.F.R. §§ 70.100 or 70.101, is presumed to be S&S. U.S. Steel Mining
Co., Inc., 8 FMSHRC 1274, 1281 (Sept. 1986); Consolidation Coal Co., 8 FMSHRC 890, 899
(June 1986). The Commissioners reached this conclusion based on “the nature of the health
hazards at issue, the potentially devastating consequences to affected miners, and the strong
concern expressed by Congress for the elimination of occupation-related respiratory illnesses to
miners.” U.S. Steel, 8 FMSHRC at 1281. While there can be no such presumption in this case,
since a respirable dust standard is not involved, the same concerns still apply. This is particularly
true here, where the exposure was extensive and could have lasted at a minimum of one hour.
Therefore, I find that because of the visible dust in the air, as well as the length of time the
violation continued, it was reasonably likely that an injury would result; and that the injury would
be serious and potentially result in silicosis and/or pneumoconiosis. Therefore, I conclude that the
violation was S&S.
c.

Negligence

DiLorenzo issued this citation with a designation of high negligence because, in his view,
the lack of sprays should have been noted during the preshift examination. DiLorenzo believes
that it is reasonable to assume that the feeder was operating without any sprays for the entire shift,
which began at 7:00 a.m. and continued until the time he issued the citation three hours later. (Tr.
1026-1027). DiLorenzo surmises that the water was probably turned off when the belt was moved
during the previous shift, as it is a general practice to turn off the water during the move. (Tr.
1027). This area of the belt had been examined by the belt examiner at 8:30 a.m., but the exam
books showed nothing was noted. In addition, the foreman should have checked during the
onshift, yet there is nothing to demonstrate that he had conducted an onshift examination. (Tr.
1028).
McCallister disputes DiLorenzo’s assumption that the feeder was operating when the belt
examiner walked the area at 8:30 a.m. He credibly explained that, due to problems at the mine,
coal was not produced until at least 9:40 a.m. No sprays would be expected to be turned on until
coal entered the chute. (Tr. 1074). The citation was terminated by turning the valve on, which
took less than a minute to do. (Tr. 1073). McCallister admits that he was in the process of doing
his dust parameter checks and had not yet made it to the feeder when DiLorenzo found the
violation. He agrees that he is obligated to check the sprays before he begins cutting coal, but he
had not done that by 10:45 that day. Although McCallister’s testimony, as well as DiLorenzo’s, is
confusing in this regard, there is not substantial evidence to support that this violation is anything
more than ordinary negligence. I assess a penalty of $5,000.
3.

Citation No. 7445937

Quentin Blair issued this violation on May 7, 2009, for a violation of the mine’s
ventilation plan. The citations alleges the following:
The operators approved ventilation plan was not being followed on the
004-0 and 044-0 MMU. The operators approved plan requires a line
curtain to be installed in all working places. The installed line curtains
were rolled up and nailed to the curtain boards in entries 0 thru 9. Methane
was detected during this inspection in entries 0 through 9 ranging from
33 FMSHRC 1520

0.1% to 0.6%. If not corrected this condition will cause a serious
accident.
The inspector determined that an injury or illness resulting in lost workdays or restricted duty was
reasonably like to occur, that 13 persons were affected, that the violation was S&S, and that it was
the result of moderate negligence. A penalty of $5,961 has been proposed.
a.

The Violation

Quentin Blair is employed by MSHA as a coal mine inspector and electrical specialist. He
has 16 years of underground mining experience in various positions, including crew leader,
electrician, and others. On May 7, 2009, Blair arrived at the mine around 2:00 a.m., met with the
shift foreman, checked the examination books, and then traveled underground. The crew was
getting ready for a belt move in the number 4 section when he arrived, and 13 miners were
cleaning and doing maintenance in the area. (Tr. 614-615). Blair immediately noticed that the
ventilation devices, the check curtain, back up curtain, and line curtains were rolled up and were
not serving their intended purpose. He issued a citation for a violation of section 75.370(a) for a
failure to follow the approved ventilation plan. The ventilation plan requires that the maximum
curtain setback distance during clean up activities shall be 55 feet from the deepest corner of
penetration or point of deepest penetration. Sec’y Ex. 33, p. 4, ¶ 6. Blair explained that, when
doing the clean up, the curtains have to be in place and extended, and not rolled up. (Tr. 618).
The curtains were not directing ventilation in the area as required by the plan and, as a result, a
hazard in the form of methane accumulation was created. Blair took readings with his methane
detector and checked nine areas, all with curtains rolled up in the entries, and found from 0.1 to
0.6 percent methane.
Chad Barras, who testified on behalf of the company, stated that he is familiar with the
ventilation plan. In his opinion, the rolled up curtains did not violate this particular section of the
plan, and the portion referred to by Blair refers to areas that are being cleaned with the continuous
miner. (Tr. 658-659). It appears that, in this area, the miners may have been using a
battery-powered scoop, not the continuous miner. (Tr. 626). Barras argues that the curtains were
in place as required by the plan, and the fact that they were rolled up does not indicate a violation.
Page 2 of the ventilation plan refers directly to the ventilation system and contains seven
items related to that system. Sec’y Ex. 33, p. 4. Item number 6 addresses clean-up activities. It
reads in its entirety: “The maximum curtain setback distance during clean-up activities shall be
55 feet from the point of deepest penetration. If cutting occurs at the face during the cleanup the
curtain must be within 40 feet of the deepest penetration. The scrubber will be on during the
cleanup operations.” Id. Not only is this the only paragraph to address clean-up activities, it has a
separate sentence for cleanup using the miner. Therefore, I agree with Blair that the first part of
this section applies in this circumstance and that rolling up the curtains renders them ineffective.
Therefore, although the curtains may be in the proper location, they are not in place such that they
function effectively. The Commission has recognized that, although sections of the regulations do
not literally set forth a requirement that the items function effectively, such a requirement is
implicit in the standard’s language and is consistent with the standard’s underlying statutory
purpose. Cumberland Coal, 28 FMSHRC 545 (Aug. 2006). Thus, I find that a violation has
occurred.
b.

Significant and Substantial

I have found a violation of the ventilation plan, and I find that the lack of effective curtains
results in the hazard of methane build up in the area. According to the readings taken by Blair,
methane was building as he walked the entries. The critical question then becomes, is there a
reasonable likelihood that the hazard will result in an injury. Blair unequivocally stated that there
is such a likelihood. First, the mine is on a five day spot inspection, and is therefore considered a
gassy mine that liberates high amounts of methane. In the event the curtains remained nailed to
33 FMSHRC 1521

the wall, as Blair observed, the methane would continue to build to the explosive range. Second,
the buildup of methane creates the likelihood of an explosion when combined with an ignition
source in the mine. Here, he described several ignition sources, particularly those created by the
electrical equipment. There was electrical equipment in the area and, in Blair’s view, it was only
a matter of time until there was an explosion. The battery powered scoop cleaning the face was
the immediate ignition source, and the other electrical equipment, such as the miner, were also
sources of ignition. Although the electrical equipment working in the area is required to be
maintained in permissible condition, Blair found permissibility violations during this same
inspection. Finally, the mine has a significant history of accumulation violations and
permissibility violations, further leading to the likelihood of an ignition or explosion. Sec’y Exs.
60 and 64. The Secretary has established the third element of the Mathies formula that the hazard
associated with this violation of the ventilation plan is reasonably likely to lead to an
injury-producing event. The fourth element, that the injury be reasonably serious, can be
reasonably assumed from the fact that the hazard in this case, the build-up of methane, will result
in an explosion with a number of miners working in the area. The best those miners can hope for
is a serious injury in such a situation.
Barras, on the other hand, testified that the violation was not S&S because .6 percent is not
in the explosive range of methane. (Tr. 660). This practice of rolling curtains is not unusual
during clean-up at this mine and is not a hazard. He further explained that before a miner goes
into an area, the mine must have 7,000 cfm of air and there must be spot inspections for methane.
(Tr. 662). Although this mine is on a spot inspection and methane is liberated while cutting coal,
there is little liberation while cleaning up and little chance of accumulation. (Tr. 663). Air Quality
methane is found primarily in the return air courses and liberation at face areas is minimal. (Tr.
663).
The Commission and courts have observed that an experienced MSHA inspector’s opinion
that a violation is S&S is entitled to substantial weight. Harlan Cumberland Coal Co., 20
FMSHRC 1275,1278-79 (Dec. 1998); Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135-36 (7th
Cir. 1995). Blair, who certainly qualifies as an experienced MSHA inspector, fully explained his
reasoning and for the reasons described above, I accept his assessment that the violation was
significant and substantial.
c.

Negligence

Blair initially designated the violation as moderate negligence, but at hearing explained
that perhaps the negligence was higher. (Tr. 628). He found that there was a foreman directing
the clean up work, and that the foreman told Blair that it is a practice to roll up the curtains when
cleaning. In Blair’s view, this is a very dangerous practice. Ventilation plans are an important
part of the safety and health at any mine. Compliance with the plan is essential to make certain
that overexposure to respirable dust is minimized and that methane is diluted and rendered
harmless. Every person, and particularly every foreman, must know the parameters of the plan
and follow them carefully. I agree with Blair that this is more than moderate negligence and
assess a penalty of $10,000.
4.

Citation No. 7445941

On May 7, 2009, Inspector Blair was conducting a regular inspection of the equipment at
the Air Quality mine when he discovered a roof bolter that was not in permissible condition. Blair
issued a violation which alleges the following:
The Fletcher Twin boom Roof Bolter s/n 97037 (co.no.006-012) being
operated on the 004-0 and 044-0 MMU was not being maintained in a
permissible condition. The following conditions were observed. 1. the rear
area light had an opening greater than .005 of an inch. 2. the operators side
back area light had an opening greater than .003 of an inch and two bolts
33 FMSHRC 1522

missing from the lid. This mine is on a five day spot inspection due
to the amount of methane liberated.
a.

The Violation

Quintin Blair issued this violation after examining the roof bolter and other electric face
equipment. He found two parts that were not in permissible condition. Blair cited a violation of
30 C.F.R § 75.503, which requires that all electrical face equipment be maintained in permissible
condition. (Tr. 629). Blair checked the electrical parts on the roof bolter and then moved on to
check the gaps of each part with the feeler gauge to determine if an excessive gap existed. Blair
found that the opening on the rear area light was greater than .005 of an inch, and that the side
back area light had an opening greater than .003 of an inch and was missing two bolts from the
lid. The regulation requires that there be no gap greater than .002. (Tr. 630). The roof bolter was
not being used at the time of the examination, but was available for use and, in Blair’s estimation,
would have been used immediately upon the beginning of coal production. (Tr. 631). Blair
discovered that bolts were missing from the back light, which led him to believe that they were in
non-permissible condition for several days. He Explained that the last time the permissible check
was required, the bolts would have had to have been loose, in order to work their way completely
out by the time he inspected the equipment
The testimony is undisputed that Blair observed an extra wide gap in the rear light, as well
as the back area light, that exceeded the standard for permissibility on the roof bolter.
Accordingly, I conclude that a violation has been established.
b.

Significant and Substantial

I have found that there is a violation of a mandatory standard and that violation
demonstrates a discrete safety hazard, i.e., exposing an electrical ignition source in the mine
atmosphere. The impermissible equipment was found in the same area discussed above, where
Blair noted that the methane levels were on the rise due to the lack of ventilation. Third, the
hazard created, the exposure of an ignition source, is reasonably likely to lead to an explosion or
fire. Fourth, the explosion of fire would lead to a serious injury.
Blair explained that this is a gassy mine that liberates excessive methane. His concern
about methane was heightened given the gas readings he took when he wrote the ventilation
violation. There were 3 other violations found on unit 4, including an accumulation of coal.
Although the earlier accumulation violation had been abated, the condition did exist at the same
time the permissibility violation existed. If the mine used the roof bolter while being in
non-permissible condition, then it becomes a hazard likely to ignite any methane. Blair testified
that, if left unabated, a fire or explosion was reasonably likely due to gas he already detected and
the accumulation violation on this bolter that was issued on the same day. (Tr. 632). The
testimony of Blair regarding this permissibility violation, coupled with the ventilation violation
discussed above, have established that the violation is S&S.
Air Quality asserts that the violation is not S&S because the mine would have tested the
face for methane prior to moving the equipment to the face. There is also a methane monitor on
the bolter that would have alerted the mine to the presence of methane. (Tr. 664). Further, the
ventilation at the face would have diluted any methane and moved it away from the bolter.
Essentially, the mine argues that the other mandated safety precautions would negate the
likelihood of an explosion or fire. However, the Federal Mine Safety and health Commission,
relying on Buck Creek Coal, Inc. 52 F.3d 133, 136 (7th Cir. 1995), has rejected arguments that
after-the-fact safety systems reduce the likelihood of serious injury. The Seventh Circuit, in
upholding the decision of the ALJ regarding the serious nature of the accumulations, determined
that the existence of other safety measures to deal with a fire does not mean fires are not a serious
safety hazard and, rather, the precautions are in place because of the “significant dangers
associated with coal mine fires.” Id. Here, the same rationale applies to equipment that is not
33 FMSHRC 1523

permissible and thereby introduces an ignition source into a gassy mine environment. The other
mandatory safety precautions that are in place to protect against a build-up of methane do not
detract from the hazard associated with the ignition source. I credit the testimony of Blair and his
understanding of S&S. I find the violation to be significant and substantial. Based upon a review
of all of the penalty criteria, including the history of permissibility violations, I assess a penalty of
$2,000.
5.

Citation No. 8415754

On April 30, 2009, Inspector Anthony DiLorenzo issued citation number 8415754 to
Black Beauty for a violation of 30 C.F.R.§ 75.1103-5(a)(2) of the Secretary’s regulations. The
citation alleges the following:
The fire suppression system provided for the 5 “C” belt drive has not been
installed to provide an effective warning signal. Upon activation of the
system no alarm was given to all location were miners would be
endangered by a belt fire or at a manned location where the posted person
has telephone or equivalent communication with all persons who may be
endangered.
At hearing the Secretary moved and was granted a modification of the citation to a violation of
section 75.1101-10. The inspector determined that a fatal injury was reasonably likely, that two
persons were affected, that the violation was S&S, and that it was the result of the operator’s high
negligence. A penalty of $11,306 has been proposed.
a.

The Violation

DiLorezo conducted an inspection of the mine’s fire suppression system at the 5C belt
drive during the course of his regular inspection on April 30, 2009. The fire suppression system
installed on the drive is a sprinkler system and, when tested, the system shut the belt off but no
alarm, either audible or visible, was given. (Tr. 916). As a result, Lorenzo cited a violation of the
regulations that requires “each water sprinkler system shall be equipped with a device designed to
stop the belt drive in the event of a rise in temperature and each such warning device shall be
capable of giving both an audible and visual warning when a fire occurs.” 30 C.F.R.§ 75.1101
10.
DiLorenzo tested the warning system a second time with the same results. The alarm,
when triggered, is relayed to a surface manned location and the tracker calls down to the area to
alert them to a fire. (Tr. 917). Since the alarm is monitored at the surface, DiLorenzo was able to
learn that it was not functioning when the surface person failed to call down about the alarm.
Finally, after the second try, they placed a call to the surface monitor to inquire about the alarm.
The surface monitor confirmed that the alarm had not been sent. The Respondent has stipulated
to the violation and, therefore, I find that the violation occurred as set forth in the citation. (Tr.
969).
b.

Significant and Substantial

DiLorenzo avers that the violation creates a hazard that would lead to a fatal injury. In his
view, the hazard is not having an audible alarm or warning when there is a belt fire. The lack of
an audible alarm translates into a miner entering an area without knowing of, or being prepared
for, a fire. Persons would enter the subject area either for routine checks, or because the belt is
off, but have no knowledge of a fire because the alarm would not have sounded. Panic or
confusion may ensue and lead to exposure to fire or smoke. In addition, those fighting the fire
would be exposed to burns and smoke inhalation resulting in a fatal injury. This is a belt drive
transfer point and, consequently, there is coal as well as hydraulic and gear oil nearby. This area
is also near the working area and, since the air travels inby, the smoke would reach the workers
33 FMSHRC 1524

and they would be overcome by smoke and flames. In DiLorenzo’s opinion, given that miners
rely on the warning system to avoid entering a smoke or fire filled area, the lack of the audible
alarm system is reasonably likely to lead to a fatal accident. Without the alarm, miners would
enter the area without being prepared for the conditions and may panic or become disoriented.
I have found that there is a violation of a mandatory standard and that the violation
demonstrates a discrete safety hazard, that of a faulty alarm which fails to adequately warn the
miners of a fire on the belt. This is the same fire suppression system discussed in the docket
above that was cited for an inadequate examination. In the earlier discussion DiLorenzo described
the importance of warning the crew in the event a fire erupted on the belt.
Air Quality asserts that the violation is not S&S because the mine would have detected the
malfunctioning notification system during the next weekly examination, and because there are
many other safety measures in place in the case of a belt fire. Further, the mine’s CO detectors are
activated before a fire breaks out, which will, in turn, activate flashing lights in the section.
Moreover, there is fire fighting equipment, including the sprinkler system that was intact.
Essentially, Air Quality argues that the other mandated safety precautions would negate the
likelihood of a fire on the belt and that other warning devices were in place. The Federal Mine
Safety and Health Commission, relying on Buck Creek Coal, Inc.,52 F.3d 133, 136 (7th Cir.
1995), has rejected arguments that after-the-fact safety systems such as carbon monoxide
detectors, fire suppression systems, and fire retardant belts reduce the likelihood of serious injury.
The Seventh Circuit, in upholding the decision of the ALJ regarding the serious nature of the
accumulations, determined that the presence of other safety measures to deal with a fire does not
mean fires are not a serious safety hazard, as the precautions are in place because of the
“significant dangers associated with coal mine fires.” Id.
DiLorenzo’s testimony does not address the likelihood of a fire on the belt and, therefore,
standing alone, it is not enough to substantiate a finding of S&S. However, when taken with the
other testimony presented in these dockets as a whole, the result is different. The parties have
stipulated that “[t]he Secretary and Black Beauty are free to argue that evidence admitted in the
context of a particular Citation or Order is relevant to the court’s determination of other Citations
and Orders. Further, if the Court accepts the party’s argument, the Court may consider that
evidence in reaching her decision concerning those other Citations and Orders.”Jt. Ex. 1, Stip. 11.
The record is replete with testimony about accumulations rubbing in the belt at this mine, as well
as other types of accumulations and ventilation violations. The record also includes testimony
that the mine is a gassy mine on a five day spot inspection, and that a fire is likely to occur on the
belt. Given that a fire is likely to occur, and that the audible warning to alert miners of that fire
was not working, a hazard is created that would lead to a reasonably serious injury. Therefore, I
find the violation to be S&S.
c.

Negligence

In Docket No. LAKE 2009-569, I discussed the testimony of DiLorenzo, as well as various
witnesses for the mine, when I addressed the issue of an inadequate weekly examination of the
fire suppression system. I refer back to that testimony here. DiLorenzo designated the negligence
for this violation as high. He explained that his primary reason for the high negligence was the
extensive work that was necessary in order to repair the visible warning device, in addition to his
belief that the condition had existed for some time. Both reasons were refuted by the witnesses
for Air Quality. Bedwell, who was responsible for the repair, testified that, although it took a
little time to find, an electrical wire had been knocked loose, thereby causing the warning to
malfunction. A number of witnesses testified that the condition had not existed for long as
DiLorenzo believed. Further, the mine produced records to demonstrate that it had been
functioning. The mine observed that the system was functioning when the weekly check was last
complete, and attests that they would have found this problem during the next weekly check. In
considering all of the testimony, I find that the negligence was not high and was, instead,
moderate. I assess a penalty of $6,000.
33 FMSHRC 1525

6.

Citation No. 8415368

On May 6, 2009, Inspector Phillip Herndon issued a citation to Air Quality for a violation
of 30 C.F.R § 75.400 for accumulation of combustible material. The citation alleges the
following:
There was an accumulation of coal fines, fine belt shavings and coal dust,
black in color and dry to the touch at cross cut No. 159 along the 3 West C
belt line. The accumulation measured approximately 2 feet wide by 2 feet
long by 6 inches to 10 inches deep. The belt frame work was warm to the
touch w[h]ere the belt was cutting into the framework at this location by
approximately 2 inches and was also turning in the accumulation of
combustible material.
Herndon determined that the violation was reasonably likely to cause an injury that resulted in lost
workdays or restricted duty, that three persons were affected, that the violation was S&S, and that
it was the result of the company’s high negligence. A penalty of $10,437 has been proposed.
a.

The Violation

Inspector Herndon has been an MSHA inspector for four years and has been working in
mining since 1982. (Tr. 672). He conducted an inspection of the Air Quality mine on May 6,
2009. While walking the three west C belt line, he found an accumulation of coal at crosscut 159.
The accumulation was located underneath the belt line and was up against the roller and the
framework of the belt. (Tr. 675). He noticed that the accumulation was black in color, 100
percent coal, and it was dry to the touch. The belt was operating, but it had cut two inches into the
framework, causing it to be out of alignment. (Tr. 676-677). The accumulation was warm to the
touch due to “the friction of the belt it was cutting into the frame [and] heat was being generated
through the frame into the pile of accumulation and the . . .roller [was] actually turning in the
accumulation.” (Tr. 678). The accumulation was made up of small coal fines, fine belt shavings
and coal dust. Herndon testified that, if left in this condition, a fire would definitely occur. As a
result, Herndon issued a citation for a violation of 30 C.F.R. § 75.400, which prohibits the
accumulation of combustible material in any active working section of the mine.
Hammond accompanied Herndon and testified on behalf of Air Quality. According to
Hammond, the belt had been modified in that particular area to allow scoops to dump. Hammond
described seeing coal and rock on the floor, and accumulated material in contact with the roller.
In his opinion it was not extensive and was only a small accumulation. (Tr. 732). It is his view
that the majority of the material was from the spillage from the scoop since it was in a concise
area and he saw no evidence of spillage off the belt. (Tr. 734). However, he did agree that the
belt had to be realigned in order to terminate the citation.
I find that an accumulation of combustible material existed in the active working, and that
the Secretary has established a violation of the cited standard.
b.

Significant and Substantial

According to Herndon, the danger that is presented by the accumulation is that of a fire
occurring which will, at a minimum, lead to a lost workdays or restricted duty injury. The injury
would be smoke inhalation or burn related and would affect at least three persons. (Tr. 680).
Herndon testified that, given the condition he observed, including the combustible material and
ignition source, it was reasonably likely that a fire would break out. Fires on belt lines are serious
hazards, and lead to burns, smoke inhalation, or worse. For example, the 2005 Aracoma belt fire
involved an accumulation. That fire resulted in the loss of two miners. Here, a friction ignition
source is presented by the belt running on the frame and the belt turning in the coal. The
accumulation of coal dust and fines would be ignited if the belt continued to turn in the coal. The
33 FMSHRC 1526

combustible material, combined with the ignition source, is likely to lead to a fire or explosion.
(Tr. 680). Herndon believed that this accumulation was S&S given that coal dust is a serious
hazard and will lead to an fire or explosion.
The mine operator argues that all of the other protections required by the Mine Act and its
regulations, which it alleges were properly in place at the time of the order, reduced the possibility
of an injury producing event, thereby rendering it non-S&S. The Courts and the Commission
have found to the contrary. In Buck Creek Coal, 52 F.3d 133, 136 (7th cir. 1995), the mine
operator argued that carbon monoxide detectors, a fire-retardant belt, a fire suppression system, a
fire brigade team, a rescue team, fire fighting equipment and ventilation all undermined the
likelihood of a serious injury that would result from a coal accumulation violation. The Seventh
Circuit, in upholding the decision of the ALJ regarding the serious nature of the accumulations,
determined that the fact that there are other safety measures in place to deal with a fire does not
mean that fires are not a serious safety hazard and, rather, the precautions are in place because of
the “significant dangers associated with coal mine fires.” Id. While extra precautions may help to
reduce some risks, they do not make accumulations violations non-S&S.
The Commission has addressed the issue of accumulations and conveyor belts a number of
times. In Amax Coal Co., 19 FMSHRC 846 (May 1997), the Commission upheld an ALJ’s
finding that a belt running on packed coal was a potential source of ignition for extensive
accumulations of loose, dry coal and float coal dust along a belt line, and that the condition
presented a reasonable likelihood of an injury causing event. In addition, in Mid-Continent
Resources, Inc., 16 FMSHRC 1218, 1222 (June 1994), the Commission held that accumulation
violations may properly be designated as S&S where frictional contact between belt rollers and
the accumulations, or between the belt and frame, results in a potential ignition source for the
accumulations. The Commission in Mid-Continent found that it was immaterial that there was no
identifiable hot spot in the accumulations because continued normal mining operations must be
taken into account when evaluating the circumstances. In the present case, if the violative
condition had been allowed to persist, it would have reasonably led to smoke, fire and, potentially,
an explosion. Further, an additional potential ignition source was present in the form of the belt
rubbing the frame structure, which could generate a spark.
I have found a violation of a mandatory standard. Second, I find that the accumulations of
coal turning in the belt roller presented a discrete safety hazard, i.e., the danger fire, smoke, or
potentially an explosion if left unabated. Third, the above analysis establishes the more than
reasonable likelihood that the hazard will result in an injury. Fourth, and finally, the injury would
be serious to those fighting the fire, those who inhale the smoke, and any person caught up in an
explosion. I credit the testimony of Herndon and find that the violation is S&S.
c.

High Negligence

Herndon explained that the accumulation violation history at this mine, combined with the
notice provided by earlier citations and Herndon advising the mine about the accumulation
problem, lead to a finding of high negligence. Sec’y Ex. 63; (Tr. 683). Air quality was cited 102
times for accumulations during the time period from August 22, 2008 until April 30, 2009, i.e., a
period of less than one year. Further, Herndon found the date, time and initials to evidence that an
examination had been completed 20 minutes before his inspection. In Herndon’s view, the
accumulation was not only too extensive to have happened right before his arrival, but the two
inch cut into the steel frame by the belt demonstrated that it had been ongoing for some time. (Tr.
685-686). In fact, when the belt was examined at 5:00 p.m. the afternoon before the citation, the
accumulation must have been present given the condition of the belt and the amount of
accumulation. (Tr. 688). I find Herndon to be a credible and thorough witness.
Hammond disagrees that the violation was a result of high negligence. He believes that a
scoop had dumped onto the belt just prior to the inspector’s arrival, causing the spill, which was
common in that area. Further Hammond testified that this was a small accumulation in a limited
33 FMSHRC 1527

area and he saw no reason for the negligence to be high. He doesn’t know if an examiner or
anyone else had been in the area prior to the citation. (Tr. 735). I credit the testimony of Herndon
and find that the negligence is high and assess the proposed penalty of $10,437.
7.

Citation No. 8415370

On May 6, 2009, Inspector Phillip Herndon issued a citation to Air Quality which alleged
that “[t]he 3 West B, belt tail was observed turning in an accumulation of coal. The accumulation
measured approximately 2 feet wide by 2 feet long by 8 inches to 16 inches deep.” Herndon
determined that the violation was reasonably like to cause an injury that would result in lost
workdays or restricted duty, that three persons were affected, that the violation was S&S, and that
it was the result of the company’s high negligence. A penalty of $10,437 has been proposed.
a.

The Violation

After discovering accumulations on the belt and issuing the citation discussed above,
Herndon continued his travels on the 3 west B belt and observed a second accumulation at the tail
roller. The accumulation of coal was 2 feet wide by 2 feet long by 8 to 16 inches deep. (Tr 689).
The accumulation was under the tail piece, on the floor, and behind the tail roller. There was
such an accumulation behind the tail roller that it had conformed to the shape of the belt roller.
(Tr. 690). The discharge roller for 3 west C dumps here onto the tail piece of the B belt and
Herndon could see that there was a faulty wiper which was causing at least a portion of the
accumulation. (Tr. 690). Herndon described the hazard of a fire. He stated that the tail roller was
turning in coal and coal fines, meaning that there was a frictional ignition source that, when mixed
with the coal fines, would create a fire hazard. The three miners working nearby would be the
first to notice the belt fire, attempt to extinguish it, and be exposed to the hazard of smoke
inhalation.
Hammond did not dispute that the accumulation described by Herndon was present, but he
focused on the safety measures in place to prevent the fire. He did agree that the material was
coal, but explained that it contained some incombustible rock. Hammond saw less material than
that described by Herndon, i.e., maybe only ten to twelve shovelfuls of coal and rock. I credit the
undisputed testimony of Herndon that there was a coal accumulation as he described and find that
there was a violation.
b.

Significant and Substantial

Herndon explained that this violation is S&S based upon his observation of the belt roller
turning in the dry coal would created a friction source that could easily ignite the dry coal. A belt
fire creates a great deal of smoke and the three men in the area would be exposed to, at a
minimum, smoke inhalation. I have already found that there is a violation of the mandatory
standard. I find that the violation creates a discrete safety hazard, i.e., the danger of
accumulations igniting and causing smoke and fire. Herndon explained that the hazard is
reasonably likely to create a fire given the presence of an ignition source and the circumstances
that he observed. While the coal was damp in some areas, it was dry under the roller and around
the tail piece. I rely not only on Herndon’s testimony regarding this accumulation but also his
testimony with regard to the accumulation cited above and the hazards that result from
accumulations.
Air Quality disputes that the violation was significant and substantial. According to the
mine, when coal and rock move down the belt, sensors are activated, causing the water sprays to
turn on. Coal is moving frequently and hence sprays are activated frequently. Much of the
material was coal, but there was also a lot of incombustible rock. Hammond described the coal as
moist, and being shaped by the belt. (Tr. 736-738). Hammond did not believe that the coal in the
belt was an ignition source because it was wet and the water would continue to be applied. The
moistness also indicated that the coal accumulation had not existed for the number of hours that
33 FMSHRC 1528

Herndon suggested. Hammond did not consider the condition serious, nor as extensive as the
inspector described. (Tr. 739). There are belt sprays in place to control dust. Although he agreed
that a belt rubbing the frame of the conveyor would create heat, it is not enough to start a fire.
As discussed in connection with the accumulation citation above, the Commission has
addressed the issue of accumulations and conveyor belts in the context of an S&S analysis. Amax
Coal Co., 19 FMSHRC 846 (May 1997); Mid-Continent Resources, Inc., 16 FMSHRC 1218,
1222 (June 1994). In any event, even if the coal was wet, the Commission has recognized that
wet coal can dry out and ignite. See Black Diamond Coal Mining Co., 7 FMSHRC 1117, 1121
(Aug. 1985).
The mine operator argues that all of the other protections required by the Mine Act and its
regulations, which it alleges were properly in place at the time of the order, reduced the possibility
of an injury producing event, thereby rendering it non-S&S. I have discussed this issue a number
of times above and relying on Buck Creek Coal, 52 F.3d 133, 136 (7th cir. 1995) find that the
other safety measures in place do not make the accumulations non S&S.
I credit Herndon’s testimony in general regarding accumulations, and specifically as it
applies to this violation. I find that the violation is S&S.
c.

Negligence

Herndon indicated on his citation that this violation was the result of high negligence. The
examiner had traveled through the area at 9:24 a.m. and Herndon arrived 11:12 a.m. By the time
Herndon arrived, the coal was compact and compressed, as well as damp, but the accumulation
under the roller and under the tail piece was dry. Thus, Herndon believed that the condition had
existed for at least several hours. Hammond, on the other hand, asserts that the condition was
present for 30 minutes or less based upon what he observed at the location. He testified that it
took only a short time to shovel to abate the condition, so it could not have been as extensive as
the inspector described. (Tr. 741). In reviewing all of the evidence, I find that the Secretary has
not demonstrated that the violation was a result of high negligence and, therefore, I assess a
penalty of $7,500.
8.

Citation No. 8415371

While Herndon was at the mine on May 6, 2009, he issued this citation for a violation of a
safeguard. The citation alleges the following:
The travelway along the 3 West belt line at cross cut No. 83 was not being
maintained free of mud and water as required by Safegaurd No.
7591942-03. There was an incline from both directions covered in slick
mud creating a slip hazard. At the bottom of the incline was a hole filled
with black, murky, wet, mud measuring approximately 15 feet long by 10
feet wide by 2 feet deep.
Herndon determined that the violation was reasonably likely to cause an injury that would result
in lost workdays or restricted duty, that one person was affected, that the violation was S&S, and
that it was the result of the company’s moderate negligence. A penalty of $1,026 has been
proposed.
a.

The Violation

Herndon issued a 104(a) citation on May 6, 2009, for a safeguard violation at the 3 west C
belt near the area where he had discovered accumulations of coal on the belt. At crosscut 83 he
found mud and water along the belt line, making it nearly impossible to pass. The walkway
33 FMSHRC 1529

inclined in both directions along the belt and was covered with slippery mud. Herndon testified
that “[a]t the bottom of the incline was a hole filled with black, murky, wet mud[.]” He explained
that “[e]verything around [the area] was muddy and slick. Very, very small area to pass through it
was timbered along the edge.” (Tr. 697). The condition created a slip, trip and fall hazard. The
safeguard at issue, Safeguard No. 7591942-03, could be found in the in the mine file. Sec’y Ex.
46. Herndon reviewed the safeguard prior to his inspection and carried a summary of the
safeguards with him. The safeguard requires a clear travelway of at least 24 inches. Contrary to
the assertion of the mine, Herndon testified that there were no planks or other material available to
assist walking over or around the mud and water.
Hammond, on the other hand, testified that there were two planks, each 10 to 12 inches
wide, that were parallel to and on the “travelway side going up the incline.” (Tr. 743). He saw no
hazard in the area, but he does not deny that there was not a 24 inch clear travelway. I note that
Hammond did not describe the length of the planks, nor their position over the hole that Herndon
described. Hammond testified that he did walk on the planks and was able to pass through
without falling.
Kenny Benedict, an MSHA inspector and health specialist, had been with MSHA for
about four years prior to the time in question. Prior to working for MSHA, he worked in
numerous positions for 31 years at Old Ben Coal Company. (Tr. 590-591). In August, 2007,
while a trainee inspector, he traveled with Johnny Moore when the modification to the notice to
provide safeguard 7591942-03 was initially written. (Tr. 591, 603). Together they examined the
belt line from one end to the other and discovered that the large quantity of water spraying onto
the conveyor was causing water and mud to accumulate along the beltway. Benedict recalled
that, in one area, he refused to walk through the water and mud and, instead, chose to walk
around. However, Inspector Moore went through the water and had water and mud up to his
knees. According to Benedict, on the day the modification was made there was no clear travelway
on the edge of the water which was rib to rib and existed for a distance of 25-30 feet. (Tr. 593);
Sec’y Exs. 46 and 61. The modification of the safeguard states that mud and water must be kept a
clear of the 24 inch travelways on each side of the belt. (Tr. 601, 603). On cross-examination
Benedict explained that the original safeguard had to do with debris, and this modification was
necessary to address the more specific hazard of mud and water, but since it was along the same
travelway along the belt line, a new safeguard was not appropriate. Instead, a modification was
the correct way to address the issue of water and mud. Both the original safeguard and the
modification address maintaining a clear walkway of 24 inches along the belt.
DiLorenzo testified regarding the original safeguard issued on May 7, 2003. He indicated
that the original safeguard referred to rock, coal, or debris that prohibited clear travel in the
walkway. The modification, relied on by Herndon for this violation, required that the travelway
must also be free of mud and water. According to DiLorenzo, the original safeguard, addresses a
rib roll at crosscut 17. Sec’y Ex. 45; (Tr. 843-844).
Black Beauty alleges that the notice to provide safeguard and its subsequent modification
are invalid and, therefore, the citation issued for a violation of such should be vacated. Black
Beauty makes two arguments in support of its motion. First, Black Beauty argues that the notice
to provide safeguard as originally issued, and the second modification of that safeguard, do not
specifically identify a hazard. Second, Black Beauty argues that the second modification of the
notice to provide safeguard does not provide any “indication that it was based on specific
conditions that actually existed at the mine.” BB Mot. to Dismiss 6.
I have addressed the issues raised by Black Beauty in my earlier ruling on a motion to
dismiss. I further addressed the issues in my discussion above of the safeguard violation issued by
DiLorenzo. The same reasoning and ruling apply to this citation. I find that the modification to
the safeguard was issued as a result of conditions found at the mine at the time it was issued. I
further find that the safeguard identifies with necessary specificity the nature of the hazard at
which it is directed, and that it clearly sets out the conduct required to remedy the hazard, i.e.,
33 FMSHRC 1530

removal of the water and mud. Southern Ohio Coal Co., 7 FMSHRC 509, 512 (Apr. 1985);
Cyrus Cumberland Resources Corp., 19 FMSHRC 1781, 1784-1785 (Nov. 1997). Since it is
undisputed that the travelway was not clear, I find that a violation has been established.
b.

Significant and Substantial

The mud and water created a slip, trip, and fall hazard. The water was murky and dark,
making it impossible to see the bottom as it was traversed. The area was slippery and Herndon
fell while attempting to navigate through the mud and water. (Tr. 699-700). In his view, it is
reasonably likely that anyone who needed to get through the area would slip and fall in the
travelway. A slip and fall would result in a blow to the head, cuts, twisted ankles, broken bones,
or any other number of injuries. (Tr. 699). The following exchange between Herndon and
counsel for the Secretary is telling:
Q: How did you fair when you encountered the muddy water?
A: I busted my butt in this location.
Q: Okay. How likely was it that if the mud and water had - muddy water had
remained in the travelway a miner would have suffered injuries which had (sic)
caused him to lose work or be placed on restricted duty?
A: Reasonably likely.
Q: Okay. And why do you say that?
A: Because I fell
Q: Okay.
A: Absolutely 100 percent sure that it would be easy to fall.
(Tr. 699-700).
Hammond did not believe that the water and mud were a hazard, but did see Herndon fall.
I credit Herndon’s testimony about the hazard and the likelihood that an injury would occur as a
result of the hazard. Further, the injury would be of a reasonably serious nature. Therefore, I find
the violation to be S&S.
Herndon designated the negligence as moderate even though he testified that, while the
water had been in place for some time, the examiner did not note or remedy the problem.
Herndon’s testimony lacks sufficient facts to support a negligence finding higher than moderate.
In light of the foregoing analysis, I assess the penalty of $1,026 as proposed by the Secretary.
9.

Citation Nos. 8415372 and 8415373

Both of these citations were issued based upon the notice to provide safeguard that
requires a clear 24 inch travelway along the belt. I have ruled on the issues raised by the operator,
both in the order denying their motion to dismiss and in discussing the safeguard above. Those
rulings apply here. The parties have agreed to not submit any further evidence with regard to
either citation. As a result, the two citations that remain at issue, Citation Nos. 8415372 and
8415373, were not addressed at hearing and, instead, the parties submitted the following: “Black
Beauty stipulates that the only defenses they are raising concerning Citations 8415372 and
8415373 are (1) the Citation must be vacated because the underlying Safeguard is invalid and (2)
the Court could not find the violations to be significant and substantial because safeguards are not
mandatory standards.” Jt. Ex. 1, Stip. 15. The parties further “stipulate that neither will present
evidence particular to Citations 8415372 and 8415373.” Jt. Ex. 1, Stip. 16. Accordingly, I affirm
the citations as issued and assess the proposed penalty of $3,405 for each of the violations.
.

10.

Citation No. 8415379

On May 15, 2009 Inspector Douglas Herndon issued a citation that alleged a violation of
33 FMSHRC 1531

section 75.220(a)(1) for the mine’s failure to follow its approved roof control plan. The citation
alleges the following:
The approved roof control plan was not being followed on the MMU-003.
A remote controlled continuous miner operator was observed positioned in
the Red Zone between the coal rib and the continuous miner as it was being
trammed past his body. The condition was a factor that contributed to the
issuance of Imminent Danger Order number 8415378 dated 5/14/2009.
Herndon determined that the violation was highly likely to cause a fatal injury, that one person
was affected, that the violation was S&S, and that it was the result of the company’s moderate
negligence. A penalty of $9,122 has been proposed.
a.

The Violation

On May 14, 2009 Herndon was on the MMU-003 section. As he approached the mining
area he observed the continuous miner backing out from a cut. (Tr. 773-774). Herndon could not
see the miner operator as the miner backed out from the cut. Herndon hurried through the
crosscut and found the miner operator between the rib and miner. (Tr. 774, 776-777). He
immediately issued an imminent danger order because the miner operator was in the “red zone”.
(Tr. 778-779). The red zone is the area between the continuous miner and the rib where the miner
operator is in jeopardy of being pinned between the two. It is considered a red zone only if the
pump motor is on, as it was in this case. (Tr. 779). The Air Quality roof control plan prohibits
the miner operator from placing himself in the red zone. Sec’y Ex. 34; (Tr. 779-780). The roof
control plan requires miners to stay out of the danger zone while tramming the miner. If it is
necessary to travel between the machine and the rib, the operator must deactivate the machine by
turning the pump motor off. (Tr. 781). When Herndon arrived, there was no one else in the
immediate vicinity besides the miner operator. The miner operator told Herndon that he was
aware of the danger of operating the miner while in the red zone, but said he was focused on
keeping cables from being run over. (Tr. 782). The miner operator had two years of mining
experience with six months as continuous miner operator. Id.
The operator does not dispute that the continuous miner operator was in the red zone
between the continuous miner and the rib, and that his actions violated the roof control plan as
described by Herndon. Sec’y Ex. 34, pp. 10 and 11; (Tr. 780-781, 834). After conducting an
internal review of the matter, the operator terminated the employment of this miner for working in
the red zone. (Tr. 806). Thus, I conclude that there is a violation of the roof control plan as
alleged.
b.

Significant and Substantial

Working in the red zone, with the pump motor in the on position, creates a hazard of the
miner operator being crushed between the equipment and the ribs, resulting in serious injury or
death. Two such fatalities have occurred in this district, including one at the Air Quality mine.
(Tr. 783). According to Herndon, there have also been at least two miners permanently disabled
in the same district as a result of working in the red zone. (Tr. 783-784). A miner working
between the rib and the machine is standing in an area that is uneven, sloping back from the face,
often slippery and wet, and often muddy; all while he has a remote control device in his hand.
Herndon stated that it is highly likely that, based upon the position of the operator in the red zone,
between the rib and the machine on uneven ground, the operator will be seriously injured or
killed. (Tr. 784).
Mike Middlemas testified on behalf of the operator. He has been the safety manager at the
Air Quality mine for a year and a half and has a total of four and a half years experience as a mine
safety manager for Peabody. (Tr. 802-803). He met with Boyd, the continuous miner operator,
and witnessed Boyd sign a statement regarding the red zone citation. (Tr. 804) Subsequently, the
33 FMSHRC 1532

operator terminated Boyd’s employment because he violated a “cardinal” safety rule. (Tr. 806).
Air Quality mine management communicates the red zone policy to miners during 40 hour
orientation training and covers it in safety talks throughout the year. (Tr. 809). The rules,
including the rule about the red zone, are also posted and miners are told that if the rules are
violated, the miner can be terminated. (Tr. 809-810). Middlemas agreed that a violation of the
policy regarding the red zone can result in a serious injury or a fatality. (Tr. 810, 823). The
operator did present one witness, Cameron McCallister, who stated that it was not likely that Boyd
would have inadvertently enabled the machine while in the red zone because “it takes a little bit to
get it to enable.” (Tr. 829-830).
I have found a violation of a mandatory standard. Next, I find that the violation
contributes to a discrete safety hazard, that of being crushed while standing in an uneven,
potentially slippery area between a large energized mining machine and the rib. I find that the
hazard is likely to lead to an injury and that the injury will be serious or even fatal. This is,
without a doubt, a S&S violation.
c.

Negligence

Although Herndon designated the violation with moderate negligence, both parties
focused large parts of their evidence on negligence. Herndon testified that approximately one
week before issuing this citation he issued a different citation for a red zone violation at the Air
Quality mine. (Tr. 785). The operator highlighted the mine’s safety rules and the training
provided to miner operators regarding the red zone. (Tr. 809, 812).
The miner operator, Boyd, was an hourly employee. The Commission has long held that
the negligence of a “rank-and-file” miner cannot be imputed to the operator for civil penalty
purposes. Fort Scott Fertilizer-Cullor, Inc., 17 FMSHRC 1112, 1116 (July 1995); Western
Fuels-Utah, Inc., 10 FMSHRC 256, 260-61 (Mar. 1988); Southern Ohio Coal Co., 4 FMSHRC
1459, 1464 (Aug. 1982) (“SOCCO”). Specifically, the Commission has stated that: “[W]here a
rank-and-file employee has violated the act, the operator’s supervision, training and disciplining
of its employees must be examined to determine if the operator has taken reasonable steps
necessary to prevent the rank-and-file miner's violative conduct.” SOCCO at 1464. Given that
Boyd was trained, and the mine made reasonable efforts to alert employees to the dangers
associated with the red zone, I conclude that the violation is the result of moderate negligence and
assess the penalty of $9,122 as proposed.
II. PENALTY
The principles governing the authority of Commission administrative law judges to assess
civil penalties de novo for violations of the Mine Act are well established. Section 110(I) of the
Mine Act delegates to the Commission and its judges the “authority to assess all civil penalties
provided in [the] Act.” 30 U.S.C. § 820(I). The Act delegates the duty of proposing penalties to
the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the Secretary that it
intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29
C.F.R. § 2700.28. The Act requires, that in assessing civil monetary penalties, the Commission
[ALJ] shall consider the six statutory penalty criteria:
[1] the operator’s history of previous violations, [2] the appropriateness of
such penalty to the size of the business of the operator charged, [3] whether
the operator was negligent, [4] the effect on the operator’s ability to
continue in business, [5] the gravity of the violation, and [6] the
demonstrated good faith of the person charged in attempting to achieve
rapid compliance after notification of a violation.
30 U.S.C. § 820(I).
33 FMSHRC 1533

I accept the stipulation of the parties that the penalties proposed are appropriate to this
operator’s size and ability to continue in business and that the violations were abated in good
faith. The history shows the past violations at this mine, including citations for the standards
discussed above. The size of the operator is large. I have discussed the negligence and gravity
associated with each citation and, except where noted, I accept the designations as set forth in
each citation. I assess the following penalties:
Docket No. LAKE 2009-569
Citation No. 9942563
$ 20,000.00
Order No. 8415738
$ 4,000.00
Order No. 7522964
$ 5,000.00
Order No. 8415756
Vacated
Docket No. LAKE 2009-570
Citation No. 8415735
$ 2,500.00
Citation No. 8415779
$ 5,000.00
Citation No.7445937
$ 10,000.00
Citation No.7445941
$ 2,000.00
Citation No.8415754
$ 6,000.00
Citation No. 8415368
$ 10,437.00
Citation No. 8415370
$ 7,500.00
Citation No. 8415371
$ 1,026.00
Citation No. 8415372
$ 3,405.00
Citation No. 8415373
$ 3,405.00
Citation No. 8415379
$ 9,122.00
Total:

$ 89,395.00

The parties have settled the remaining citations and orders contained in these dockets.
The settlement terms are as follows:
Citation/Order
No.

Originally Settlement
Proposed
Amount
Penalty

Modifications

LAKE 2009-569
8415376

$4,000.00

$4,000.00

Docket Total

$4,000.00

$4,000.00
LAKE 2009-570

8415331

$3,143.00

$635.00

Reduction in gravity to Unlikely and Non-S&S.

8415716

$1,026.00

$207.00

Reduction in gravity to Unlikely and Non-S&S.

8415718

$8,209.00

$6,567.00

8415719

$3,405.00

$2,724.00

8415335

$634.00

$191.00

8415338

$3,143.00

$2,514.00
33 FMSHRC 1534

Reduction in gravity to
Lost Workdays or Restricted Duty.

8415724

$1,203.00

$1,203.00

6675755

$362.00

$362.00

8415734

$5,961.00

$5,961.00

8415737

$3,143.00

$2,514.00

6681988

$8,893.00

$500.00

Reduction in gravity to Unlikely, Non-S&S,
and 4 persons affected.

6681826

$1,795.00

$688.00

Reduction in gravity to 4 persons affected.

6675756

$1,530.00

$1,203.00

Reduction in gravity to 1 person affected.

6681989

$5,961.00

$4,769.00

6675757

$1,026.00

$207.00

Reduction in gravity to Unlikely and Non-S&S.

8415348

$5,503.00

$1,112.00

Reduction in gravity to Unlikely and Non-S&S.

8415741

$3,689.00

$3,689.00

6675758

$2,282.00

$874.00

Reduction in gravity to 4 persons affected.

6675759

$1,657.00

$634.00

Reduction in gravity to 4 persons affected.

6675760

$2,282.00

$874.00

Reduction in gravity to 4 persons affected.

6675761

$6,996.00

$6,996.00

8415744

$4,329.00

$2,405.00

Reduction in gravity to Unlikely and Non-S&S.

6681992

$10,437.00

$807.00

Reduction in gravity to Unlikely, Non-S&S,
and 4 persons affected.

8319878

$224.00

$224.00

8491715

$8,893.00

$1,796.00

Reduction in gravity to Unlikely and Non-S&S.

8415751

$1,412.00

$800.00

Reduction in gravity to Unlikely and Non-S&S.

8319880

$100.00

7421674

$3,143.00

$634.00

Reduction in gravity to Unlikely and Non-S&S.

6681993

$5,503.00

$4,440.00

Reduction in gravity to 4 persons affected.

7421675

$11,306.00

$2,282.00

Reduction in gravity to Unlikely and Non-S&S.

7054587

$12,248.00

8415357

$745.00

8415755

$100.00

9942569

$18,271.00

$3,406.00

8415759

$5,961.00

$5,961.00

Vacated.

$243.00 Reduction in gravity to Unlikely, Lost Workdays or
Restricted Duty, Non-S&S, and 3 persons affected.
$745.00
Vacated.
Reduction gravity to 7 persons affected.
Reduction in negligence to Moderate.

33 FMSHRC 1535

7445931

$2,678.00

$541.00

Reduction in gravity to Unlikely and Non-S&S.

7445933

$2,678.00

$541.00

Reduction in gravity to Unlikely and Non-S&S.

7445935

$2,473.00

$500.00

Reduction in gravity to Unlikely and Non-S&S.

8415766

$946.00

$946.00

8415369

$1,944.00

$1,203.00

7445936

$1,657.00

$1,657.00

7445938

$946.00

$946.00

7445942

$2,678.00

$541.00

Reduction in gravity to Unlikely and Non-S&S.

7445946

$2,473.00

$500.00

Reduction in gravity to Unlikely and Non-S&S.

8224833

$1,795.00

$1,795.00

8224835

$1,795.00

$363.00

8415778

$946.00

$946.00

8415780

$5,961.00

$5,961.00

8415375

$2,106.00

$2,106.00

8415377

$334.00

$334.00

8415786

$1,026.00

$309.00

8224846

$5,961.00

$1,203.00

Standard violated modified to 75.1731(a).

Reduction in gravity to Unlikely and Non-S&S.

Reduction in gravity to Unlikely and Non-S&S.

Docket Total $192,912.00 $88,559.00
Overall Total $196,912.00 $92,559.00
I have considered the representations submitted by the parties and I conclude that the
proposed settlement is appropriate under the criteria set forth in section 110(I) of the Act. The
motion to approve settlement is GRANTED.

III. ORDER
Based on the criteria in section 110(I) of the Mine Act, 30 U.S.C. § 820(I), I assess a total
penalty of $181,954.00 for both the citations and orders that were heard and those that were
settled. Black Beauty Coal Company is hereby ORDERED TO PAY the Secretary of Labor the
sum of $181,954.00 within 30 days of the date of this decision.

/s/ Margaret A. Miller
Margaret A. Miller
Administrative Law Judge
33 FMSHRC 1536

Distribution: (U.S. Certified Mail)
Awilda Marquez, Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800,
Denver, CO 80202
Pamela Mucklow, Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800,
Denver, CO 80202
Arthur Wolfson, Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty Ave.,
Pittsburgh, PA 15222

33 FMSHRC 1537

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
7 PARKWAY CENTER, SUITE 290
875 GREENTREE ROAD
PITTSBURGH, PA 15220
TELEPHONE: (412) 920-7240
FACSIMILE: (412) 928-8689

June 22, 2011

LAKEVIEW ROCK PRODUCTS, INC.,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Respondent

:
:
:
:
:
:
:
:
:

CONTEST PROCEEDING
Docket No. WEST 2010-1856-RM
Citation No. 6580393; 09/08/2010

Lakeview Rock Products
Mine ID 42-01975

DECISION
Appearances: Timothy S. Williams, Esq., Office of the Solicitor, U.S. Department of Labor
Denver, Colorado, for the Secretary of Labor;
Kevin R. Watkins, Esq., Hughes General Contractors, Inc., North Salt Lake, Utah,
for Lakeview Rock Products, Inc.
Before: Judge Andrews
This Contest Proceeding is before me pursuant to Section 105 of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (the “Act”).
The Procedural History
The parties in conference and by email made a joint request for summary decision, and
have filed a Joint Statement of Undisputed Facts, Joint Exhibits of the Parties, Cross-Motions for
Summary Decision, and Cross Oppositions to the motions. The case involves a citation issued by
the Department of Labor’s Mine Safety and Health Administration (“MSHA”) under Section 104
(a) of the Act alleging a violation of 30 C.F.R. §56.9300(b) by Lakeview Rock Products, Inc.
(“Lakeview”).
The Citation
Section 8, Condition or Practice, reads as follows:
The six truck scales located on the mine property were not provided with berms or guard
rails that were mid-axle height of the largest self-propelled mobile equipment that travels
the roadway. The mid-axle height of the trucks that run on these scales are [sic]
approximately 24 inches. The rub rails that were provided on the scales were between 8
and 8.5 inches in height. Several sections of these rub rails in various areas on different
scales had broken welds and pipe. These scales are used by approximately 5 to 100 plus
trucks per day. The broke [sic] sections of the rub rails as well as the height of the scales
AGL creates a rollover hazard should contact occur. The two scales at the upper pit were
approximately 54 inches AGL. The two scales at the lower pit were approximately 36
inches AGL. The two scales at the Thomas pit were approximately 32 inches AGL.
33 FMSHRC 1538

Berms or guardrails shall be at least mid-axle height of the largest self-propelled mobile
equipment which usually travels the roadway. Joint Exhibit No. 1.
Lakeview timely contested the citation.
The Issue Presented
Whether Citation No. 6580393 issued to Lakeview on September 8, 2010 is valid.
The Stipulations
The Joint Statement of Undisputed Material Facts is as follows:
The Secretary of Labor (the “Secretary”) and Lakeview Rock Products, Inc. (“Lakeview”)
through their counsel, stipulate to the following undisputed material facts to be submitted
with their respective Motion for Summary Decision to be filed in this matter:
1. At all times relevant to this proceeding, Lakeview was an “operator” as defined by
section 3(d) of the Federal Mine Safety and Health Act of 1977 (“the Act”).
2. At all times relevant to this proceeding, Lakeview operated a sand and gravel quarry at
2600 North Beck Street, Salt Lake City, Utah 84054 (“the mine”). The quarry is a
“mine” as defined by Section 3(h)(1) of the Act, and its mining services affect
interstate commerce. Lakeview is Assigned Mine Id. No. 42-01975.
3. Lakeview is subject to the jurisdiction of the Mine Act, and the Administrative Law
Judge has jurisdiction in this matter.
4. On September 8, 2010, MSHA Inspector Mike Tromble (“Inspector”) issued to
Lakeview a Citation, numbered 6580393 (“Citation”) for allegedly violating 30 CFR
56.9300(b). 30 CFR §56.9300(b) reads, in part:
(a) Berms or guardrails shall be provided and maintained on the banks of
roadways where a drop-off exists of sufficient grade or depth to cause a
vehicle to overturn or endanger persons in equipment.
(b) Berms or guardrails shall be at least mid-axle height of the largest selfpropelled mobile equipment which usually travels the roadway. A copy of
the Citation is attached as “Joint Exhibit 1.”
5. The Citation was properly served by a duly authorized representative of the Secretary
upon an agent of Lakeview on the date and at the place stated therein, and may be
admitted into evidence for the purpose of establishing its issuance, and not for the
truthfulness or relevancy of any statements asserted therein.
6. The Inspector alleged in the Citation that three pair of scales that are located at the
mine did not comply with § 56.9300(b). (Joint Exhibit 1.)
7. Lakeview’s mine includes three pits from which sand and gravel is mined. Both
customers and Lakeview employees drive their trucks onto the mine property and sand
and gravel products are loaded by Lakeview loaders into either the beds of the trucks
or trailers being pulled by tractor trucks. The trucks then drive with their loaded sand
and gravel products to one of the six scales, and drive the trucks on the scales to be
weighed. At the entrance of the scales at the lower and upper pits (as described in
paragraph 8 below) there are signs measuring eighteen inches wide by twenty-four
33 FMSHRC 1539

inches high that read “Stop Before Entering Scale, Then Idle On.”
8. There are a total of six scales at Lakeview’s pits; two at what is referred to as the
“Thomas Pit,” two at what is referred to as the “Lower Pit,” and two at what is referred
to as the “Upper Pit.” All of the scales are elevated in order for Lakeview employees
to perform annual maintenance and calibration work on each of the scales.
9. One of the two scales at the Thomas Pit is elevated to a height of thirty one and a half
inches above ground level and the other scale at the Thomas Pit is thirty-eight inches
above ground level; both scales are steel plates with the north scale measuring eleven
feet four inches wide and one hundred twenty feet long, and the south scale is ten feet
six inches wide and one hundred five feet six inches long. Both scales have eight inch
high steel “rub rails” running the length of the scale (See photographs attached as
“Joint Exhibits 2-9.”)
10. At the Lower Pit one of the scales is thirty-five inches above the ground, and the other
scale is thirty-eight inches off the ground. Both scales are also steel plates, with the
north scale measuring eleven feet wide by one hundred ten feet long, and the south
scale measuring eleven feet wide and one hundred five feet six inches long. Both have
eight inch high steel “rub rails” running the length of the scales. (See photographs
attached as “Joint Exhibits 10-18.”)
11. At the Upper Pit the west scale is fifty-four inches above the ground, and the east scale
is fifty-four inches on one side of the scale and is at ground level at the other side of
the scale. The east scale measures ten feet wide by seventy feet six inches long, and
the west scale measures ten feet by one hundred four feet long. The Upper Pit scales
also both have eight inch high steel “rub rails” running the length of the scales. (See
photographs attached as “joint Exhibits 17-25.”)
12. The trucks that use the scales include ten-wheeled dump trucks, ten-wheeled dump
trucks with a “pup” trailer, single or double belly dump trucks, and tractors with end or
side dump trailers. Their wheelbases range from twenty-two feet eight inches to sixtyone feet two inches. The mid-axle height of these trucks range from twenty inches to
twenty-four inches. Their loaded weights vary from 19,000 pounds empty, to 80,000
pounds loaded. Between fifteen and one hundred trucks use the scales daily.
13. At the Upper Pit the trucks, after they are loaded, travel less than ¼ mile from a
loading area and descend down a roadway, and then to the west down a ramp to the
scales. (Joint Exhibits 23 and 24). After driving on the scales trucks then travel out of
the mine area.
14. At both the Thomas and Lower Pits trucks are loaded with material at a loading area
where other stockpiles are located. Trucks then travel across the loading area to a
point that exits the pits where the scales are located; all the vehicles must travel across
the scales to exit the loading area. The trucks drive on the scales, are weighed, and
then exit the scales to turn on a public roadway.
15. At least one accident has occurred when a truck traveling from the loading area of the
upper pit slid down the ramp and struck the scale house that sits adjacent to the east
scale at the upper pit (see photographs attached as “Joint Exhibits 23 and 24”). This
accident occurred on a day when the Lakeview mine had posted a sign at the entrance
of the pit that the pit was closed. Lakeview posted this sign because there was
approximately four to six inches of snow on the ground; this amount of snow was
present at the time of the accident.
33 FMSHRC 1540

16. Were the Citation terminated, MSHA’s Office of Assessments would propose a civil
penalty of one hundred ninety-six dollars ($196.00) for the alleged violation.
Lakeview reserves its right to contest the fact of violation and the negligence attributed
to it therein. However, Lakeview stipulates that the proposed penalty would be
appropriate if the violation were found to have occurred. Lakeview further agrees that
payment of the proposed penalty would not impair its ability to remain in business.
The Contentions
Contestant Lakeview argues that there is no evidence the rub rails at Lakeview’s scales
would not prevent trucks traveling slowly over the scales from dropping off the scales; that the
evidence submitted by Respondent MSHA does not prove that a truck could drive off of their
scales, overturn or drop onto its axle, and endanger the person in the truck; that there is no
scientific or expert analyses of variations in truck speeds or expert biomechanical analyses
showing the potential effects on occupants of trucks dropping onto axles or driving off of scales
similar to Lakeview’s; that the rub rails at Lakeview’s scales are of sufficient height and strength
that even a fully loaded truck would merely push against the rail and slide along the rail rather
than climb up and over the rail and drive off the scale; that there is no evidence of any kind about
actual accidents or injuries resulting from trucks driving off scales like those at Lakeview; and
that the rub rails at Lakeview’s scales do not create a rollover hazard.
Respondent Secretary argues that each scale at Lakeview has a drop-off of sufficient grade
or depth to cause a vehicle to overturn and endanger persons in equipment; that the Lakeview
scales are not equipped with guardrails of at least mid-axle height of the largest self-propelled
mobile equipment which usually travels the roadway; that the rub rails at Lakeview’s scales are
eight inches high, only one-third of the twenty-four inches required by the regulation; that the
Secretary has provided a detailed engineering analysis, the opinion of the Inspector, and citations
to Commission case law showing that each of the Lakeview scales has a drop-off as would cause a
vehicle to overturn and the standard at 30 C.F.R. §56.9300(a) is applicable; and that the Program
Policy Letter No. P10-IV-1 clarifies that elevated truck scales require guardrails and also provides
design parameters.
The Standard of Review
Summary decisions may be granted only where 1) the entire record, including pleadings
affidavits, and answers to interrogatories, establishes that there is no genuine issue as to any
material fact; and 2) the moving party is entitled to summary decision as a matter of law.
Commission Rule 67, 29 C.F.R. § 2700.67(b); UMWA, Local 2368 v. Jim Walter Resources, Inc.,
24 FMSHRC 797, 799 (2002). See also Energy West Mining Co., 17 FMSHRC 1313, 1316
(1995), citing Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (interpreting Fed. R. Civ. P. 56).
In this contest case, the burden of proof rests with the Secretary. Asarco Mining Company, 15
FMSHRC 1303, 1306-1307 (Jul. 1993).
The Questions for Consideration
-Whether a scale roadway presents the same circumstances of use, conditions and
dangers as the haulage roadways on Lakeview’s mine property.
-Whether a truck, traversing Lakeview’s scales at idle speed and required to stop
twice for entry and for weighing, would climb up and over or through the eight inch high
rub rail and drive off of the platform.
-Whether Lakeview’s scales constitute a drop-off and/or overturn hazard to
vehicles crossing the scale roadway to be weighed.
33 FMSHRC 1541

The Evidence Submitted
The Declaration of Mike H. Tromble, the inspector, is of record as Exhibit 1 of the
Secretary’s Motion for Summary Decision. Mr. Tromble has been a MSHA Inspector since 2008,
with prior experience at mines as a mechanic and lead blaster. While inspecting Lakeview in
March 2010, he observed trucks being driven onto the elevated scales for weighing. He measured
the height of the six scales as ranging from thirty-one to fifty-four inches above the ground. He
opined that if a wheel of a truck went off the edge, the vehicle would either overturn and crash
onto the ground or an axle would crash onto the edge of the scale, seriously jarring and risking
injury to the occupant(s). He measured the rub rails at the scales as eight to eight and a half
inches high. He gave the mine operator a copy of a MSHA slide presentation on truck scales.
When he returned to Lakeview on September 8, 2010, none of the rub rails had been raised, and
he issued Citation No. 6580393. He took the twenty-four photographs introduced as evidence.
Joint Exhibits 2-25. Tromble concluded, in effect, that MSHA policy had not been complied with
and therefore the mandatory safety standard at 30 C.F.R. §56.9300(b) had been violated.
The slide presentation contains the information that since 2005, MSHA has issued
citations for inadequate berms or guardrails on truck scales. It was noted that MSHA personnel
have been told of numerous near misses of truck or equipment runovers at scales. The remainder
of the statistics and information presented concerned powered haulage and not scales. The
photographs of various scales in this presentation did not show any drive-over or roll-over
incident at any scales. Only one of the photographs showed a scale similar to those at Lakeview.
In the summary of the presentation, it was noted that berms and guardrails are meant to moderate
or limit travel and provide the driver a warning. Exhibit No. 2, Secretary’s Motion for Summary
Decision.
Exhibit No. 3 of the Secretary’s Motion is the Declaration of Terence M. Taylor. Mr.
Taylor is a Senior Civil Engineer employed by MSHA since 1987. He holds Bachelors and
Masters Degrees in civil engineering, and is a Registered Professional Engineer. He assisted in
the preparation of the Program Policy Letter No. P10-IV-1 (“PPL”). Based on his measurement
assumptions, a truck with a twenty-four inch axle height and a vertical center of gravity of eight
feet would overturn if it drove over the edge of the two Upper Pit scales. At the four scales of the
Thomas Pit and the Lower Pit, the truck would not overturn. For all six scales, if the front tire
drove over the edge, the axle would likely impact the deck of the scale. Hand written calculations
and information relating to haulage roadway roll over and truck structures are a part of this
exhibit. Although he had prepared over five hundred sixty engineering reports that included field
investigations, accident investigations and design reviews, the Declaration did not contain any
report based on either his experience or his research of a vehicle being driven over or through a
rub rail eight inches in height.
Submitted as Exhibit 4 of the Secretary’s Motion for Summary Decision is the PPL
regarding elevated truck scales at mines that became effective on August 26, 2010. The purpose
of the PPL was to clarify that truck scales are considered elevated roadways and require guardrails
under 30 C.F.R. §56.9300. It was also issued to provide guidance on the design parameters for
the guardrails,1 which would depend on the elevation level of the scales and the size of the trucks
or equipment traversing the scales. It was noted that most truck scales are provided with a rub rail
intended to guide the vehicle and provide a visible, audible, or tactile indication to the driver
identifying the edge of the scale roadway.
Submitted as Exhibit A of Lakeview’s memorandum in Support of the Motion for
Summary Decision is the Affidavit of Scott G. Hughes with a CD disk containing two short video
clips. Mr. Hughes is the Vice President of Lakeview, who has installed, calibrated, repaired and
1

Other structures listed are “curb”, and “rub rail”.

33 FMSHRC 1542

maintained all of the scales and equipment supporting the scales at the mine. In the thirty-five
years he has watched thousands of trucks cross the scales, there has never been an accident
involving a haul truck overturning by driving off or falling off the scales. All trucks come to a
complete stop before driving onto the scales, then slowly roll, coast, or idle onto the scales to be
weighed. There are rub rails attached to the side of the scales that prevent trucks from driving off
the scales. In a test he attempted to drive a truck, loaded and unloaded, against the rub rail to
determine whether the truck could be driven up onto the top of the rub rail. He was unable to
make the truck drive up onto the rub rail or off the scales. His attempt was documented by a co
worked with a handheld video. Mr. Hughes also opined that even if a truck could be driven off
the scales, it would come to rest on its axle and not overturn.
The CD at Attachment A contains the two short videos referred to by Mr. Hughes. In one
video, as the truck rolls at what appears to be idle speed from the haulage roadway forward onto
the entry platform the driver steers the front wheel into the rub rail. The wheel is kept turned into
the rail, and the wheel slides or rubs along the rail but there is no indication that it starts to climb
up onto the rub rail. The second video clip is similar, but the truck starts with the wheel further
away from the rub rail, yet again after turning into the rail the wheel rubs along the rail but does
not climb up the rail.
The Joint Exhibits of the parties consist of Citation No. 6580393 issued to Lakeview on
9/8/2010 and twenty-four photographs of the six scales. Since the scale measurements have been
specifically set forth in the stipulations and do not need to be repeated here, the undersigned
would only observe that each of the scales does have rub rails at edges with drop-offs.
The Discussion
At Lakeview there are six scales, two at each of three pits. The scales are elevated from
approximately two feet eight inches to four feet six inches above ground in order that employees
can perform annual maintenance and calibration work. The Joint Exhibit photographs show the
steel construction, the entry/exit platforms, and a separate but adjoining middle platform used for
weighing. The length of Lakeview’s scales varies from seventy feet six inches to one hundred
twenty feet, and all have eight inch high steel rub rails installed the entire length. At the entrance
of the scales there are eighteen inch by twenty-four inch signs that read “Stop Before Entering
Scale, Then Idle On”. The trucks that usually use the scales have mid-axle heights from twenty
inches to twenty-four inches.
When observing the scales in March 2010 Inspector Tromble gave the mine operator a
copy of the MSHA slide presentation on truck scales. Exhibit 2, Secretary’s Motion for Summary
Decision. This presentation is entitled to little, if any, probative value in the instant
determination. This is because the photographs of the scales, with one exception, bear scant
resemblance to those at Lakeview. The information and statistics listed regarding fatalities and
tip-overs concerned powered haulage and not truck scale usage. Very revealing was the
admission that MSHA personnel has been told of “numerous near misses” at scales, essentially
establishing that no accident, injuries or fatalities had occurred due to drive-overs at truck scales.
The presentation did not consider the effect of eight inch rub rails, except to label them as
inadequate, and this in the face of the summary information that guard rails are meant to limit
travel and provide the driver a warning. As shown by the videos, the eight inch rub rails do
indeed serve these purposes.
It is useful to take notice of the common conditions of use of truck scales such as those at
Lakeview. When approaching the scales from the haulage roadway the truck must come to a
complete stop at the entry platform. The truck then “idles” onto the platform, stopping completely
again when positioned on the weighing section. After being weighed, and upon idling forward
onto the exit platform, the truck may be required to stop again before re-entering the haulage
roadway. In using the scales, the truck has traveled only about thirty to forty yards at very low
33 FMSHRC 1543

speed and stopped two to three times. This means that the truck has only moved about ten to
fourteen yards between complete stops. In stark contrast is a truck’s typical use of haulage
roadways.
Commission judges have considered the question of whether scales are a part of a mine’s
roadways. Administrative Law Judge (“ALJ”) Maurer found that where scales were elevated
three and a half feet above ground level with no guardrail provided, §56.9300 was violated.
Walker Stone Company, Inc., 16 FMSHRC 1955, 1960 (1994) (emphasis added). In Highway
195 Crushed Stone, Inc., Judge Melick found that an elevated roadway going to and exiting from
a set of scales with no berm or other guarding was a violation even though the cited standard, 30
C.F.R. §56.9300, suffered from ambiguity and vagueness. 21 FMSHRC 800, 803-804 (Jul. 1999)
(emphasis added). In a later case again involving scales with an unguarded edge Judge
Weisberger relied on the dictionary definition of the term “roadway” to find that a scale was
considered to be a part of that mine’s roadway. APAC-Mississippi, Inc., 26 FMSHRC 811, 812
815 (Oct. 2004) (emphasis added). Judge Manning vacated a similar citation involving elevated
scales with no berms or guardrails on the basis that the mine did not have adequate notice that
guardrails were required. Carder, Inc., 27 FMSHRC 839, 858 (Nov. 2005) (emphasis added).
Judge Manning pointed out that a reasonably prudent person familiar with the mining industry
would not have recognized that the scale was covered by §56.9300 because, in part, the truck
drivers drive over the scale at a very low rate of speed. Id. Notwithstanding the notice issue and
the circumstances of use, Judge Manning found that the scale did fit within the scope of the safety
standard. Id.
All of the above ALJ decisions are distinguishable from the instant case. Each of the
decisions involved elevated platforms and scales with no berms, guardrails or guarding of any
kind. With these types of scales it would appear that a truck driver with no visual, tactile, or
audible warning could drift close to and possibly over the edge of the metal deck even at idle
speeds. The fact that Lakeview's scales have rub rails at the edges with drop-offs sets the instant
case apart from the decisions cited above.
While accepting the guidance of the prior ALJ decisions that scales are a part of a mine’s
roadways, in the opinion of the undersigned a distinction must be drawn between the use of
haulage roadways as opposed to the use of scale roadways. Already noted is the marked
difference in the speed of the truck. The surface conditions are quite different; the scales are
made of metal and level, whereas haulage roadways might be dirt, gravel, or both, with inclines
and slopes contributing to the dangers of travel. Established hazards are also markedly different,
since haulage roadways have an unfortunate history of accidents, injuries and fatalities, yet on the
record before me there is no evidence of such incidents at scale roadways. I find the statement of
Hughes that there has never been an accident involving a truck using the scales at Lakeview to be
credible.
A recent case did involve elevated truck scales with nine inch high manufacturer-installed
rub rails along the length of the edges of the scales at the Coffee Lake Road mine of the Knife
River Corporation. Knife River Corporation v. Secretary of Labor, 2010 WL 2995087 (July
2010). Judge Rae found the Secretary had failed to meet the burden of proof that the scales were
of a depth and/or grade as would trigger application of the standard and dismissed the citation.
The reasoning was that no expert’s statement, case law, or any other authoritative guidance was
provided as to how or why a twenty-six to thirty-six inch elevation would pose a danger of a
vehicle overturning or endangering persons in equipment.
Soon after Judge Rae’s decision, MSHA released the PPL apparently to address the lack of
authoritative guidance. The citation in the instant case was issued soon after the release of the
PPL.
Despite the assumptions and calculations of Taylor, and those contained in the PPL, just as
33 FMSHRC 1544

in Knife River, there is still a lack of probative evidence to establish that truck scales such as those
at Lakeview pose a danger of a vehicle overturning or endangering persons in equipment. This is
because the Secretary has failed to establish how and/or under what circumstances a truck’s front
tire would be able to drive up onto and over or through the eight inch high rub rail installed on the
scales. Neither the engineering analysis nor the PPL contains information regarding the speed,
force, amount of power/throttle, angle of steerage, or other physical factor leading up to the
driving over or breach of these rub rails. It would be obvious even to a lay person that once a
front wheel is almost or completely over the edge of a scale platform the vehicle would fall down
onto its axle. The conclusion of the engineering study that a vehicle might overturn depending on
the depth of drop-off may be correct, and this does stand uncontroverted by any expert opinion
submitted by Lakeview. But the conclusion begs the question of how the front tire could climb
over or breach the rub rail before any drop-down or tip-over could even occur. The undersigned
finds the engineering analysis remarkable mainly for what is not shown. The report assumes a
drive-over would occur, but does not establish how this would happen. One might speculate that
with the wheels forcefully turned and kept angled into a rub rail, and with sufficient throttle, a
truck could intentionally be powered up onto and over the rail. However, the record is devoid of
evidence as to how such an incident could actually occur or facts of such an event occurring in the
past.
On the other hand, the respondent has provided demonstrative evidence that the
undersigned considers to have great probative value. The CD at Attachment A contains two short,
yet persuasive, videos. In one video, as the truck rolls at what appears to be an idle speed from the
haulage roadway forward onto the entry platform the driver steers the front wheel into the rub rail.
Although the wheel is kept turned into the rail, the wheel slides or rubs along the rail but there is
no indication that it starts to climb up onto or break through the rub rail. The second video clip is
similar, but the truck starts with the wheel further away from the rub rail, yet again after turning
into the rail the wheel rubs along the rail but does not climb up the rail.
Close and repeated observation of these videos reveals that they do accurately reflect the
circumstances under which a truck would traverse the scales. Trucks would be traveling at
minimal speeds due to the fact that the scale platforms are too short for any substantial momentum
to be accumulated and the fact that the trucks come to a complete stop at least two times. These
low speeds are imposed on the trucks by Lakeview. The posted signs require the trucks to stop
and idle onto the scales.
It is clear, then, that the eight inch high rub rails do limit the travel of a truck and are
sufficient to provide the driver with tactile, visual and/or audible warnings that the side of the
scale platform has been reached. The driver would be able to take corrective action to position the
truck.
I agree with Lakeview’s contentions to the effect that the scales do not present a dropdown or tip-over hazard to trucks, equipment or personnel. The Secretary has not carried the
burden of proof and has failed to establish by a preponderance of evidence that Lakeview’s scales
present a drive-over hazard and constitute a violation of a mandatory safety standard.

33 FMSHRC 1545

ORDER
The Secretary’s Motion for Summary Decision is DENIED. Lakeview’s Motion for
Summary Decision is GRANTED. Citation No. 6580393 issued on September 8, 2010 is not
valid and is hereby VACATED.

/s/ Kenneth R. Andrews
Kenneth R. Andrews
Administrative Law Judge
Distribution:
Timothy S. Williams, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway,
Suite 1600, Denver, Colorado 80202-5710
Kevin R. Watkins, Esq., Hughes General Contractors, Inc., 900 North Redwood Road, P.O. Box
540700, North Salt Lake, Utah 84054

33 FMSHRC 1546

ADMINISTRATIVE LAW JUDGE ORDERS

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

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of
CHARLES SCOTT HOWARD,
Complainant
v.
CUMBERLAND RIVER COAL
COMPANY,
Respondent

June 15, 2011
:
: TEMPORARY REINSTATEMENT
:
PROCEEDING
:
:
: Docket No. KENT 2011-1044-D
:
:
:
:
: Band Mill No. 2
:

ORDER DENYING REQUEST FOR HEARING
ORDER OF REINSTATEMENT
Appearances: Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, on behalf of the Secretary of Labor;
Tony Oppegard, Esq., Lexington, Kentucky, and Wes Addington, Esq.,
Appalachian Citizens Law Center, Whitesburg, Kentucky, for Charles Scott
Howard;
Timothy M. Biddle, Esq., and Willa B. Perlmutter, Esq., Crowell & Moring LLP,
Washington, D.C., for Cumberland River Coal Company.
Before:

Judge Lesnick

This case is before me on an Application for Temporary Reinstatement brought by the Secretary
of Labor, on behalf of Charles Scott Howard, pursuant to section 105(c)(2) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2). The application seeks the reinstatement of
Mr. Howard as an employee of the Respondent, Cumberland River Coal Company
(“Cumberland”), pending final disposition of the discrimination complaint Howard has filed with
the Mine Safety and Health Administration (MSHA) against the company.
A dispute has arisen in this case as to the timeliness of Cumberland’s request for a hearing. The
Secretary filed her application for Mr. Howard’s reinstatement with the Commission via facsimile
on May 27, 2011. Counsel for Cumberland received a copy of the application via facsimile on
that same day, May 27, 2011. Respondent’s Request for Hearing, Declaration of W. Perlmutter at
¶ 3. Cumberland, however, asserts in an email to the Commission’s Docket Office that it received
the application on June 3, 2011, the day on which the company received a service copy of the
application sent via certified mail. Cumberland filed a request for a hearing with the Commission
on June 13, 2011.
Under Commission Procedural Rule 7(c)(2), service by facsimile is “effective upon successful
receipt by the party intended to be served.” 29 C.F.R. § 2700.7(c)(2). An application for
temporary relief must include “proof of notice to and service on the person against whom relief is
sought by the most expeditious means of notice and delivery reasonably available.” 29 C.F.R. §
2700.45(b) (emphasis added). An operator may request a hearing pursuant to Commission
Procedural Rule 45(c) “[w]ithin 10 calendar days following receipt of the Secretary’s application
33 FMSHRC 1547

for temporary reinstatement.” 29 C.F.R. § 2700.45(c) (emphasis added).
It is undisputed that Cumberland received the Secretary’s application on May 27, 2011. The
Commission’s rules do not distinguish between receipt of or being served with such an
application. Under Commission Procedural Rule 45, the relevant events for purposes of
determining the timeliness of a request for a hearing on the application are notice and receipt of
the application. 29 C.F.R. § 2700.45(b)-(c). Here, given that Cumberland had both notice and
actual receipt of the Secretary’s application on May 27, 2011, any request for a hearing had to
have been made by the company on or before June 6, 2011. I conclude that Cumberland’s June
13, 2011 Request for Hearing was untimely, and I therefore deny the request.
Commission Procedural Rule 45(c) provides in relevant part: “If no hearing is requested, the
Judge assigned to the matter shall review immediately the Secretary’s application and, if based on
the contents thereof the Judge determines that the miner’s complaint was not frivolously brought,
he shall issue immediately a written order of temporary reinstatement.” 29 C.F.R. § 2700.45(c)
(emphasis added). Pursuant to this provision, I have reviewed the Secretary’s application and find
that Mr. Howard’s complaint was not frivolously brought.
In adopting section 105(c), Congress indicated that a complaint is not frivolously brought if it
“appears to have merit.” S. Rep. No. 181, 95th Cong., 1st Sess. 36-37 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong. 2nd Sess., Legislative
History of the Federal Mine Safety and Health Act of 1977, at 624-25 (1978). In addition to
Congress’ “appears to have merit” standard, the Commission and the courts have also equated
“not frivolously brought” to “reasonable cause to believe” and “not insubstantial.” Sec'y of Labor
on behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff'd, 920 F.2d
738, 747 & n.9 (11th Cir. 1990). In order to establish a prima facie case of discrimination under
section 105(c) of the Act, a complaining miner must establish (1) that he engaged in protected
activity and (2) that the adverse action complained of was motivated in any part by that activity.
Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980),
rev’d on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir.
1981); Sec’y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April
1981).
In this case, the Secretary has established that Mr. Howard has a long history of bringing safety
concerns to the attention of Cumberland, MSHA, and members of Congress. Soon after his return
to work on May 16, 2011 after suffering a work-related injury in July 2010, Cumberland removed
Mr. Howard from the company payroll, effectually terminating all his employment rights. Given
the very public nature of Mr. Howard’s past protected activities, I find that there is a reasonable
cause to believe that he could establish that Cumberland’s adverse action was motivated by those
activities.1
Moreover, as the Secretary notes in her response to Cumberland’s request for hearing, Mr.
Howard “currently remains under Court ordered temporary reinstatement as a miner,” citing Judge
Zielinski’s September 4, 2009 Order of Temporary Reinstatement in Docket No. KENT
2009-1427-D. Sec’y Resp. at 5. The complaint on which Judge Zielinski granted Mr. Howard
temporary reinstatement is pending before Judge Gill in Docket No. KENT 2010-493-D. Thus,
under the circumstances, even if Mr. Howard’s instant complaint had been frivolously brought, he
would be entitled to immediate reinstatement pursuant to Judge Zielinski’s order, which has not
been modified since it was issued and regarding which no final order on the complaint has issued.
1

Although under Rule 45(c) I am not required to consider any of Cumberland’s
arguments having found it did not file a timely request for hearing, I have done so and conclude
that the company’s assertions that Mr. Howard was not a miner on May 16, 2011, and that his
employment was not actually terminated on that date, lack any merit whatsoever.
33 FMSHRC 1548

Accordingly, I conclude that Mr. Howard’s discrimination complaint has not been frivolously
brought and that he entitled to immediate reinstatement pending final order on his complaint.
ORDER
Cumberland River Coal Company’s Request for Hearing is DENIED as untimely.
The Secretary’s Application for Temporary Reinstatement made on behalf of Charles Scott
Howard is GRANTED. Cumberland River Coal Company is ORDERED TO REINSTATE
Mr. Howard to the position that he held on May 16, 2011, or to a similar position, at the same rate
of pay and benefits, IMMEDIATELY ON RECEIPT OF THIS DECISION. In addition,
Cumberland River Coal Company is ORDERED TO PAY Mr. Howard his pay and benefits
retroactive to MAY 16, 2011.

/s/ Robert J. Lesnick
Robert J. Lesnick
Chief Administrative Law Judge

Distribution (Certified):
Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219-2456
Tony Oppegard, Esq. and Wes Addington, Esq., Appalachian Citizens Law Center, Inc., 207 W.
Court, St., Suite 202, Prestonsburg, KY 41653-7725
Willa B. Perlmutter, Esq. and Timothy M. Biddle, Esq., Crowell & Moring, LLP, 1001
Pennsylvania Ave., NW, Washington, DC 20004-2595

33 FMSHRC 1549

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
U.S. CUSTOM HOUSE
721 19TH STREET, SUITE 443
DENVER, CO 80202-2500
303-844-5266/FAX 303-844-5268
June 15, 2011
SECRETARY OF LABOR,
:
CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
:
ADMINISTRATION (MSHA),
:
Docket No. WEST 2009-103-M
Petitioner
:
A.C. No. 50-01741-165232
:
v.
:
:
STATE OF ALASKA, DEPARTMENT
:
OF TRANSPORTATION,
:
Respondent
:
Mine: Nome Screener
AMENDED DECISION DENYING MOTION TO DISMISS
Before:

Judge Miller

This case is before me upon a petition for assessment of civil penalty under section 105(d)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the “Act”). On
January 5, 2009, Respondent filed a Motion to Dismiss the Civil Penalty Proceeding and asserted
that MSHA lacked jurisdiction and had failed to state a claim. The issue before me is whether
MSHA has jurisdiction over the Nome Screener, a mobile piece of screening equipment owned
and operated by the Alaska Department of Transportation. For the reasons that follow, I find that
MSHA has jurisdiction over the Nome Screener and I DENY the Respondent’s Motion to
Dismiss.
On July 14, 2008, MSHA inspector Michael Murray issued eleven separate citations
regarding the Nome Screener, Mine ID 50-01741, owned and operated by the State of Alaska
Department of Transportation (“AKDOT”). Inspector Murray issued the citations for a violation
of 30 C.F.R. § 46.9(b)(5) for improperly completed safety training paperwork for eleven AKDOT
employees. On July 22, 2008, Inspector Murray issued a second set of eleven citations when the
mine failed to correct the condition originally cited.
On December 5, 2008, the Secretary issued a Petition for Assessment of Civil Penalty to
AKDOT regarding the July 14th citations. The Secretary proposed a $112.00 penalty for each
improperly completed certificates, for a total proposed assessment of $1,232.00.

I. STATEMENT OF FACTS
The affidavits and statement of facts submitted by the parties show little, if any,
disagreement as to the facts of the case. AKDOT owns a portable screener, i.e., the Nome
screener, which used to size sand and gravel for the Nome, Alaska airport. Resp. Supp. Mot. to
Dismiss 2. During the winter, AKDOT spreads sand on the airport runway to prevent airplanes
from sliding on ice and snow. Murray Declaration ¶ 5b. The screener separates raw beach sand
into three types: (1) undersized ¼ inch minus aggregate, (2) midsized ¼-½ inch aggregate, and (3)
oversized ½ inch plus aggregate. Id. at ¶ 5a-5c. AKDOT spreads the midsized sand on the airport
runway and discards the undersized and oversized material that could be potentially hazardous to
jet engines. Id.
33 FMSHRC 1550

AKDOT operates the Nome Screener annually at various location for a three to four week
period in order to stockpile enough sand for use in the winter. Oden Affidavit ¶ 3. In some
instances, AKDOT transports the portable screener to one of two AKDOT owned ocean beach
borrow pits. Murray Declaration ¶ 5d. Neither of the beach extraction points is registered with
MSHA as a mine. Resp. Supp. Mot. to Dismiss 2. At these two locations, front-end loaders place
unsorted sand into the screener and then load the processed mid-sized sand into trucks that then
transport the material to the Nome airport. Murray Declaration ¶ 5d. On other occasions, trucks
haul beach sand from the borrow pits to a warehouse yard at the Nome airport where the screener
is used to size the sand. Id. at ¶ 5e. AKDOT stores the Nome screener at the Nome airport when
it is not in use. Resp. Supp. Mot. to Dismiss at 2.
In 2002, MSHA requested that AKDOT register the Nome Screener as a mine. Id.
AKDOT complied and was subject to regular inspections by MSHA. Id. On July 14th, 2008,
MSHA inspector Michael Murray conducted an inspection of the Nome Screener at the Nome
Airport. Murray Declaration ¶ 2. The Nome Screener, along with a front end loader and several
piles of sand, was located inside a barricaded area of the airport warehouse yard. Id. at ¶ 6.
Inspector Murray noted that the annual training certificates had not been signed by the Safety
Director in charge of health and safety training. Resp. Supp. Mot. to Dismiss 3. AKDOT had
repeated the error on eleven separate training certificates. Inspector Murray issued separate
citations for each certificate. Id.
AKDOT’s Safety Director, Mike Oden, spoke with Inspector Murray by cell phone during
the inspection and informed the inspector that he was in Fairbanks, Alaska and would correct the
forms and replace the originals at that time. Oden Affidavit ¶¶ 9-10. A week later, when the
forms remained uncorrected, Murray issued a second set of eleven citations for failure to abate the
condition cited. Id. at ¶¶ 11-12. AKDOT was not operating the Nome Screener at the time of
either citation and the screener was located at its usual storage location near the airport. Id. at ¶ 7.
II. SUMMARY OF THE PARTIES’ ARGUMENTS
AKDOT contends that MSHA cannot assert jurisdiction over the Nome Screener because
it is not a “mine” and, therefore, is not subject to MSHA regulation. Resp. Supp. Mot. to Dismiss
1-2. AKDOT concedes that, generally, MSHA can regulate mine equipment under Section
3(h)(1)(C) of the Mine Act. Id. at 3. However, AKDOT contends that there is no precedent for
MSHA to assert jurisdiction over mobile equipment not associated with a registered mine. Id. at
4-5. While the screener itself has a mine ID, the locations where it is used do not. Id. at 2.
AKDOT distinguishes the Nome Screener from those screeners and other equipment that are
located at permanent extraction pits and are subject to MSHA jurisdiction. Id. at 4-5. AKDOT
argues further that the Nome Screener is in essence a “scalping screen” that operates under the
borrow pit exception of the MSHA Interagency Agreement. Id. at 5.
The Secretary asserts several independent grounds for MSHA jurisdiction of the Nome
Screener. Pet. Supp. Response 4. The Secretary contends that the beach sand extraction points
are mines and not “borrow pits.” Id. By sizing the sand and using it as a traction control material,
AKDOT performed “milling” operations and used the material for its “intrinsic qualities” rather
than for bulk fill. Id. at 5. The Secretary argues that milling a material for its intrinsic qualities
prevents an operator from designating an area as a “borrow pit” under the MSHA-OSHA
Interagency Agreement. Id. at 6.
The Secretary also argues MSHA has independent jurisdiction over the Nome Screener
and that it qualifies as a “mine” standing alone. Id. at 7. The Secretary states that in 2002 the
Respondent registered the Nome Screener as a mine with MSHA and has not raised a jurisdiction
argument until many years later despite the fact that the screener has not changed. Id. The
Secretary relies on two precedent cases in which Commission Judges held that MSHA retained
jurisdiction over a piece of mobile equipment regardless of where the equipment was located. Id.
33 FMSHRC 1551

at 7-8; Wallace Brothers, 16 FMSHRC 1889 (Aug. 1994) (ALJ); Fred Knobel, 15 FMSHRC
742, 744 (Apr.1993) (ALJ). The Secretary avers that MSHA retains jurisdiction over equipment
even when it is not operating, unless the equipment is completely tagged out and
decommissioned. Id. at 9.
III. PRINCIPLES OF LAW
The Federal Mine Safety Act of 1977 defines a “mine” as “an area of land from which
minerals are extracted in nonliquid form.” 30 U.S.C. § 802(h)(1). MSHA has the authority to
regulate all equipment, structures, and personnel within a mine. Id. Further, MSHA has broad
authority to make informed and reasonable jurisdictional determinations as, “Congress clearly
intended that … jurisdictional doubts be resolved in favor of coverage by the Mine Act.” Watkins
Eng’rs & Constructors, 24 FMSHRC 669, 675-676 (July 2002). However, in 1979 the
MSHA-OSHA Interagency Agreement (the “Agreement”) designated borrow pits as exempt from
MSHA regulation and defined borrow pits as:
an area of land where the overburden, consisting of unconsolidated
rock glacial debris, or other earth material overlying bedrock is
extracted from the surface. Extraction occurs on a one-time only
basis or only intermittently as need occurs, for use as fill materials
by the extracting party in the form in which it is extracted. No
milling is involved, except for the use of a scalping screen to
remove larger rocks, wood and trash. The material is used by the
extracting party more for its bulk than is intrinsic qualities on land
which is relatively near the borrow pit.
MSHA-OSHA Interagency Agreement, 44 Fed. Reg. 22827 (1979). Further, the Agreement
defined “milling” to include “sizing,” i.e., the “process of separating particles of mixed sizes into
groups of particles of all the same size, or into groups in which particles range between maximum
and minimum size.” Id. In 1996, MSHA issued interpretive guidelines intended to clarify the
definition of borrow pits:
Thus, if earth is being extracted from a pit and is used as fill
material in basically the same form as it is extracted, the operation
is considered to be a “borrow pit.” For example, if a landowner has
a loader and uses bank run material to fill potholes in a road, low
places in the yard, etc and no milling or processing is involved,
except for the use of a scalping screen, the operation is a borrow pit.
The scalping screen can be either portable or stationary and is used
to remove large rocks, wood or trash. In addition whether the
scalping is located where the material is dug, or whether the user of
the material from the pit is the owner of the pit or a purchaser of the
material from the pit, does not change the character of the operation,
as long as it meets the other criteria.
I MSHA, US. Dep’t. Of Labor, Program Policy Manual, Section 4, I.4-3 (1996).
Commission judges have previously considered dismissal motions based on claims that an
operation is a “borrow pit” and not a mine. Those judges have consistently applied a strict
interpretation of the term “borrow pit.” Kerr Enterprises., Inc, 26 FMSHRC 953, 957 (Dec.
2004) (ALJ); New York State Department of Transportation, 2 FMSHRC 1749, 1761 (July 1980)
(ALJ). For instance, a state entity that extracts and screens sand for use as a traction control
material in winter operates a mine and does not qualify for the “borrow pit” jurisdictional
exception. New York State Department of Transportation, 2 FMSHRC at 1761. In New York
Department of Transportation, the New York DOT owned and operated a shaker screen that only
33 FMSHRC 1552

allowed material ¼ inch or less to pass. Id. at 1755. New York DOT stockpiled the sand at a
gravel quarry for highway ice control during the winter. Id. The court held that sand was not
being used as “fill” merely for its bulk. Id. at 1758-59. Instead, the court found that the New
York DOT had used the shaker screen to select a particular size sand for its “intrinsic qualities”
and therefore did not operate a “borrow pit” within the meaning of the MSHA-OSHA Interagency
Agreement. Id. The court also held that using a screen to select 1-1/2" gravel constituted
“milling.” Id. at 1761. This “milling” removed the NY DOT from the MSHA-OSHA Interagency
Agreement definition of “borrow pits.” Id.
MSHA has asserted jurisdiction over operators that employ a minimal “scalping screen”
when the operator does not use the product for bulk fill on nearby sites. Kerr Enterprises, 26
FMSHRC at 957. In Kerr Enterprises, an operator used a scalping screen to remove wood debris
from earthen material at an extraction pit. Id. at 954. The court noted that this minimum
screening operation did technically meet the definition of a scalping screen as allowed for in
section of the MSHA-OSHA Interagency Agreement addressing borrow pits. Id. at 957.
However, the court held that the operator did not qualify for the borrow pit exception because the
material was sold for use in a variety of purposes that were not bulk fill related. Id.
Commission judges have consistently upheld MSHA regulation of individual pieces of
equipment independent from the jurisdiction conferred by a separately named mine. Wallace
Brothers, Inc., 16 FMSHRC at 1891 (holding portable crusher was subject to MSHA jurisdiction
when it operated at various rock pits); Fred Knobel, 15 FMSHRC at 744 (holding that portable
crusher used to crush rock on roadway projects not designated as mines was performing mining
activities and, therefore, was subject to MSHA regulation). Further, “[e]quipment and facilities
that are available for use by miners must be maintained in compliance with applicable safety
standards, and are subject to inspections whether or not they are actually being used at the time.”
Beylund Construction, Inc., 31 FMSHRC 1410, 1416 (Nov. 2009) (ALJ); see also Ideal Basic
Ind., Cement Div. 3 FMSHRC 843 (Apr. 2001). Moreover, MSHA may inspect inactive
equipment that is “not tagged out of operation and parked for repairs.” Alan Lee Good, 23
FMSHRC 995, 997 (Sept. 2001).
IV. ANALYSIS
The AKDOT Nome Screener is used to size ¼” to ½” sand particles. Only particles of this
size are retained and used for traction control on runways because smaller or larger sand causes
damage to airplanes using the runway. As such, AKDOT clearly uses the screener to “mill” or
“size” the sand and operates no differently than any other sand and gravel operation that is subject
to MSHA jurisdiction.
AKDOT does not use the Nome Screener for the typical “borrow pit” purpose of providing
bulk fill. AKDOT uses the Nome Screener to produce a material uniquely capable of providing
traction control on icy pavement. Because AKDOT uses the sand for its “intrinsic qualities”
rather than bulk fill, the Nome Screener is properly classified as a mine rather than a “borrow pit.”
MSHA has authority to regulate the AKDOT Nome Screener as a mine because the Nome
Screener mills earthen material in order to produce a particular sized sand. AKDOT uses the
Nome Screener to generate sand for its intrinsic traction control qualities rather than for bulk fill.
Thus, the Nome screener does not fall under OSHA “borrow pit” jurisdiction according to the
MSHA-OSHA Interagency Agreement.
MSHA has authority to assert jurisdiction over the Nome screener independently of a
separately named mine. The Nome Screener is a mobile piece of equipment and apparently
operates at two beach sand extraction points and the Nome airport yard. Due to its mobile nature,
MSHA was justified in requesting that AKDOT register the screener as an independent mine. If
the Commission accepted the Respondent’s argument that MSHA jurisdiction only exists within a
33 FMSHRC 1553

mine attached to a physical parcel of land, AKDOT and other operators could avoid MSHA
jurisdiction simply by moving equipment on and off designated mine parcels or relocating
equipment to new extraction pits without notifying MSHA. Such an interpretation would thwart
the safety purposes of the Act and prevent MSHA from fulfilling its obligation to ensure the safe
operation of mining equipment.
MSHA has authority to inspect and regulate the Nome Screener when it is not in active
use. At the time of the inspection the Nome Screener was located at the Nome Airport yard.
Inspector Murray observed piles of sand and a front-end loader at the site. Inspector Murray
gathered statements from the Nome Airport Manager that indicated AKDOT transported sand to
the airport yard and operated the Nome Screener at the airport yard. Respondent’s Motion to
Dismiss and AKDOT Safety Director’s affidavit do not refute that AKDOT previously operated
the Nome Screener at the airport yard. Respondent also does not contend that it had tagged out
the Nome Screener or notified MSHA that it was no longer operating the screener as a mine.
Although AKDOT was not operating the Nome Screener on the day of the inspection, the screener
was available for use and positioned in a location where it regularly milled sand. Thus, MSHA
properly asserted jurisdiction over a piece of mining equipment available for use.
V. ORDER
In view of the above, the Nome Screener is subject to Mine Act jurisdiction and MSHA
regulation. Consequently, the State of Alaska’s Department of Transportation’s Motion to
Dismiss, and its subsequent Supplement, are DENIED.
/s/ Margaret A. Miller
Margaret A. Miller
Administrative Law Judge
Distribution: (U.S. First Class Mail)
Matthew L. Vadnal, Office of the Solicitor, U.S. Department of Labor, 1111 Third Ave., Suite
945, Seattle, WA 98101-3212
Sean P. Lynch, Assistant AG, State of Alaska DOT, Civil Division-Transportation Sec., P.O. Box
110300, Juneau, AK 99811

33 FMSHRC 1554

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, NW, Suite 9500
Washington, DC 20001-2021
Telephone No.: 202-434-9933
Telecopier No.: 202-434-9948

June 30, 2011
REVELATION ENERGY, LLC,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, MSHA,
Respondent

:
:
:
:
:
:
:
:
:
:

CONTEST PROCEEDING
Docket No. KENT 2011-71-R
Order No. 8247763;10/08/2010

S-1 Hunts BR
Mine ID 15-18280

ORDER ON MOTIONS
Before the Court are Contestant Revelation Energy, LLC’s Renewed Motion for Summary
Decision (“Revelation’s” or “Contestant’s” Motion) and Respondent, Secretary of Labor’s Motion
to Dismiss ( “Secretary’s” or “Respondent’s” Motion ). Revelation’s Motion presents the legal
issue succinctly, that is, “whether a large rock leaving a mine site after a blast and landing in a
residential yard, with no injuries, constitutes an ‘accident’ for purposes of a Section § (sic)103(k)
Order.”1 Revelation Motion at 1. Under the Mine Act, a section 103(k) order authorizes a mine
inspector, in the event of an accident which occurs in a coal or other mine to issue such orders as
he deems appropriate to insure the safety of any persons in the coal or other mine. 30 U.S.C.
813(k). This issue was addressed in the Court’s January 21, 2011 Order Denying Contestant’s
Motion for Summary Decision and the parties acknowledge that the purpose behind their
respective motions here is to place the case in a posture for review by the Commission. For the
reasons which follow, the Court DENIES Contestant’s Renewed Motion and GRANTS the
Secretary’s Motion to Dismiss Revelation’s Notice of Contest.
Reduced to its essence, Contestant contends in its Renewed Motion for Summary Decision that
the Secretary should be bounded by its definition of an “accident” per its regulation in Part 50 at
30 C.F.R. § 50.2(h). The regulations in Part 50 address “Notification, Investigation, Reports and
Records of Accidents, Injuries, Illnesses, Employment and Coal Production in Mines.” Beyond
Part 50, the Contestant also points to the Secretary’s Program Policy Manual, which cites the
same regulation for the definition of an “accident.” Thus, Contestant asserts that the Secretary
cannot escape the regulatory definition, as echoed by the Policy Manual. It is the Contestant’s
position that to allow the Secretary to go beyond its regulatory and policy manual enunciations
amounts to permitting “ad hoc definitions of the term ‘accident’ after the fact to justify 103(k)
orders.” Contestant’s Motion at 2.
1

Factually, Revelation’s description understates the event, as the “large rock” was about
6 feet in diameter and weighed approximately 2 tons. Although its Notice of Contest challenges
“each and every allegation in the Order,” Revelation has never asserted different facts about the
rock’s size, despite several opportunities to do so. Rather, its challenge has been solely about
whether a section 103(k) accident event occurred.
33 FMSHRC 1555

In its Response to Revelation’s Motion, the Secretary notes this Court’s January 21, 2011
ruling and urges that there is no need for the Court to reconsider its earlier decision but that, if it
elects to do so, the same result should be reached and the Renewed Motion denied. It asserts that
the Court’s earlier ruling “did not overlook controlling precedent, controlling legal principles and
did not misapprehend the facts or law in any way, much less in any way that affected the outcome
stated in the Order.” Sec’s Response at 4.
Alternatively, the Secretary argues that the Contestant has misconstrued the MSHA
Program Policy Manual. While the Secretary agrees that the Policy Manual does note that the
term “accident” is defined at 30 C.F.R. Part 50.2(h), it does not follow that the statutory definition
of an “accident,” per 30 U.S.C. § 802(k) is not authoritative in this proceeding, because the
Manual does not preclude the broader definition’s use. Thus, “accidents” are not limited to those
spelled out in the regulation. The Secretary sees logic in this distinction, maintaining that the Part
50.2(h) provisions identify those types of accidents which must be reported, but that they do not
otherwise constrain the statutory provision. Id. at 6. Last, the Secretary notes that neither policy
statements by the Agency, nor views expressed by other administrative law judges, are binding
upon this administrative tribunal. Id.
Turning to the Secretary’s Motion to Dismiss Revelation’s Notice of Contest, the
Secretary states that the basis for Contestant’s Contest was its claim that “there was no basis for
any enforcement action against [Revelation Energy, LLC] in this case,” because there was no
“accident” at the S-1 Hunts Branch Mine. As with its response to Contestant’s Renewed Motion
for Summary Decision, the Secretary notes that 30 C.F.R. § 50.2 itself provides that it applies only
to “this part,” by which it is clearly referring to Part 50 of the Mine Act. In contrast, 30 U.S.C. §
802, the “Definitions” section of the Mine Act, which includes subsection (k) “accident,” applies
to “this chapter,” a reference to Chapter 22 of the Act. Given that, the Secretary contends that, as
there was an accident, the basis for Contestant’s Contest fails and dismissal must follow.
Consistent with its view of the applicability of Section 802(k), the Secretary observes that
“blasting a 2 ton piece of rock off of mine property and into a nearby yard presented a potential
for injury similar to that of a mine explosion, mine ignition, mine fire, mine inundation or injury
or death of any person.” Sec’s Motion at 4. (emphasis removed). In support of this perspective,
the Secretary notes that the Commission itself has stated that Section 802(k) was “drafted to
provide an inclusive, broad definition of the term ‘accident,’” and that it has observed that the
definition employs the word includes in then listing specific events. Id. at 4, citing Aluminum Co.
of Am., 15 FMSHRC 1821 (Sept. 1993). “Includes,” it points out, is rather obviously a term of
enlargement and as such the specific events then listed cannot then be turned around as if the
statute had provided “includes only” followed by specific listed events.
Last, the Secretary asserts that Section 802(k), as the statutory provision, must be the
source consulted in determining whether an “accident” has occurred. However, even if one could
argue that there was some ambiguity as to whether that section or the regulatory provision at 30
C.F.R. § 50.2(h)(2) should control, under the well-established Chevron analysis, deference must
be afforded to the Agency’s interpretation of its regulation if it is reasonable. Id. at 5, citing
Chevron U.S.A. Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837 (1984). Accordingly, even if a
reviewing body might come to a different choice in its own interpretation, it is not entitled to
substitute its wisdom for that of the agency’s reasonable view.
In its Response to the Secretary’s Motion to Dismiss, Contestant, as did the Secretary for
its part, repeats the arguments made in its original motion for summary decision, and which
arguments the Court outlined in its January 21st Order denying that motion. One difference is that
it characterizes the Court’s earlier ruling, stating that under it, “the occurrence of an ‘accident,’ for
purposes of a §103(k) Order, is left to the sole discretion of the Secretary.” Contestant’s Response
at 2. Contestant adds that “[a]bsent any controlling definition, an operator has no advance
knowledge of what constitutes an ‘accident’ for purposes of a §103(k) . . . [and such an]
interpretation is inconsistent with the intent of §§ 103(j) and 103(k) and [would] violate[ ]
33 FMSHRC 1556

Revelation’s due process rights. Id. As the Court will explain infra, the Contestant overstates the
consequences of the ruling.
At least it may be said that the Contestant clearly stakes out its position in this matter,
contending, as it does, that “events that constitute an ‘accident’ cannot be enlarged beyond those
events set forth in 30 C.F.R. §50.2(h).” Id. at 3 (emphasis added). Yet, the Contestant seems to
acknowledge that there is not a single source to consult in figuring out when an “accident” has
occurred, as it states “[e]ven when an incident does not fall within the statutory or regulatory
definition of accident, and no one is injured, the Secretary believes she has the authority to
proceed pursuant to §103(k).”2 Id. (emphasis in original).
Contestant also asserts that the event giving rise to the issuance of the 103(k) Order here
must be similar to the incidents enumerated in that statutory provision or those in 30 C.F.R.
§50.2(h). Contestant’s Response at 6. Under its “similar” test, Contestant notes that the event
here is not “similar” to a mine explosion, mine ignition, mine fire, or mine inundation – and did
not cause death or bodily injury to an individual.3 Then, consulting 30 C.F.R. §50.2(h), it
interprets that provision as speaking to incidents occurring off of mine property only at subsection
(h)(12) and for that to apply, there must be death or bodily injury to an individual. Id. at 7.
DISCUSSION
The first point which needs to be made is that this matter is appropriately disposed of at
this time. The parties do not have any genuine factual dispute; that is to say that none have been
raised by either of them. The dispute is purely a legal one and whether the rock that blasted off of
the mine property was in fact about 6 feet in diameter and weighing about 2 tons has not been
challenged, nor would the rock’s exact diameter or weight be determinative of the present issue.
Instead the issue is whether a 103(k) Order can be issued in these circumstances:
A non injury blasting accident occurred at this surface at approximately
6:30 pm resulting in a rock about 6 feet in diameter and weighing
approximately 2 tons leaving the mine property. This rock rolled down
the hill through a citizens yard and came to rest in the creek next to the
roadway below the citizens residence. This 103 (k) order is issued to
protect the safety of all persons on mine site and off mine site.
Order No. 8247763, the Section 103(k) Order in issue here.
The Court incorporates and reaffirms its original Order addressing this legal issue. For
convenience, that Order is attached at the end of this Order. However the Court augments its
January 21, 2011 Order with the following additional remarks. First, Contestant elides over the
2

Contestant then repeats itself, maintaining that it is then in the posture of lacking
“advance warning as to what type of incident could be considered an ‘accident’ for purposes of
§103(k) liability.” Contestant’s Response at 3. Again, as will be explained infra, this dire
forecast is unwarranted.
3
Contestant notes that the Court did find that similarity to the listed events is not a
requirement for issuance of a 103(k) Order, but that the fly rock was an exquisitely similar event
to events listed in that provision. However, it is Contestant’s position that it is not similar
because fly rock is not listed in the definition of an accident, at Section 3(k) of the Act. The
short answer is that section 802(k) does not restrict the definition of “accident” to events similar
to those expressly included.
33 FMSHRC 1557

fact that the statutory definition of an “accident” begins with the expansive verb “includes.”
Accordingly, the fact that it then lists a number of events so included does not operate to exclude
events not expressly named. The word “includes” is usually a term of enlargement, and not of
limitation.4
It is the words employed by the statute, not those of a regulation, and even less so the
statements within a program policy,5 that control the outcome here. The term defined, “accident,”
is succinctly expressed in the Mine Act:
DEFINITIONS Sec. 3. For the purpose of this Chapter, the term –
. . . (k) “accident” includes a mine explosion, mine ignition, mine fire,
or mine inundation, or injury to, or death of, any person. 30 U.S.C. § 802
It seems clear that, beyond using the non-restrictive term “includes” for the definition of
“accident,” Congress cited some of the more frequent examples of mine accidents, but that, just as
clearly, by referring to injury or death, all conjoined by use of the alternative conjunction “or,”
that it intended an expansive meaning to “accidents.”6 Accordingly, any analysis of the scope of
4

U.S. v. Alvarez, 638 F.3d 666 (9th Cir. 2011) quoting Burgess v. United States, 553 U.S.
124, 131 n.3 which refers to Singer & J. Singer, Sutherland on Statutory Construction, at §47:7,
at 305 (7th ed. 2007). See also, Jones v. American Postal Workers Union, 192 F.3d 417 (4th
Cir.1999), for the same principle that words which follow “includes” do not constitute an allembracing definition nor an exhaustive list. Further, as noted in U.S. v. Angelilli, 660 F.2d 23,
(C.A. N.Y. 1981) using “includes” is quite different from a statutory definition which instead
employs the term “means.” Here, Congress used the phrase ‘accident includes;’ it did not
express the definition as ‘accident means.’
5
In Tilden Mining company, L.C., 2011 WL 1924263 (F.M.S.H.R.C.), April 18, 2011,
Administrative Law Judge Paez addressed whether a program and policy manual’s provisions
(“PPM”) are substantive rules. The judge noted that the Commission has held that, "the
Enforcement Guidelines and the PPM are not binding on the Secretary or the Commission," and
in citing to King Knob Coal Company noted that "the Manual's ‘instructions are not officially
promulgated and do not prescribe rules of law binding upon this Commission.'… [T]he express
language of a statute or regulation ‘unquestionably controls' over material like a … manual."
Sec'y of Labor v. D.H. Blattner & Sons, 18 FMSHRC 1580, 1586 (Sept. 1996) (quoting King
Knob Coal Co., 3 FMSHRC 1417, 1420 (June 1981) (citations omitted)). The judge observed
that the PPM and the PPL are not rules of law but are the Secretary's interpretations of a
particular regulation and that neither were binding on the Commission or the Secretary.
6
The Commission has agreed that “includes” as used in the definition of “accident” is a
term of enlargement. In Aluminum Co. of Am., 15 FMSHRC 1821 (Sept. 1993), the Commission
dealt with a Section 103(k) order which had been issued upon an inspector’s determination that
an area of a plant was contaminated by mercury. Upon hearing, the administrative law judge
held that the Secretary had failed to prove that there had been an “accident.” While the
Commission affirmed the judge, it did so on an evidentiary basis, stating that the Secretary was
“[i]n general . . . correct,” agreeing with the Secretary that the use of the term “includes” in the
definition of accident, per section 3(k) of the Mine Act, is a term of enlargement, and that events
not specifically listed in section 3(k) do fall within the definition if they are similar in nature or
present a similar potential for injury or death. Importantly, the Commission added that whether a
33 FMSHRC 1558

the definition of “accident” must also take into account the ordinary meaning of that term. It is
certainly not an esoteric term, nor otherwise difficult to understand, being defined in the
dictionary as “An unexpected and undesirable event.” See, for e.g., Webster II New Riverside
University Dictionary 1984.
Applying that common definition of the term, it would be hard to conclude that a rock of
about 6 feet in diameter and weighing about 2 tons, which exited mine property, traveling down a
hill and through a citizen’s yard before coming to rest in a creek below the citizen’s home, could
be described in any other manner than as an accident. Certainly it was unexpected and equally so,
it was undesirable. Further, it occurred in connection with a mine explosion. Blasting most often
is an intended event but, intended or unplanned, it is an explosion and a mine explosion occurred
at Revelation Energy’s S-1 Hunts Branch mine. Thus, it is inaccurate to claim that which
constitutes an “accident” is left to the sole discretion of the Secretary. One can evaluate a given
set of facts and apply that to the very common definition and determine whether there has been an
accident.7
In addition to the Program Policy Manual’s inability to restrict a statutory provision, a fact
which by itself is fatal to the Contestant’s assertion that it limits the statute,8 it is noteworthy that,
as pertinent here, the Manual focuses primarily on Section 103(j) and only tangentially on 103(k).9
given event is similar in nature must be determined on a case-by-case basis. Also, notably,
indirectly addressing one of the arguments made by the Contestant here, the Commission stated
that in 30 C.F.R. Part 50 the Secretary set forth the meaning of the term accident “for reporting
purposes.” * 1826 (emphasis added).
7
For the same reasons, the claim that a mine operator would have no advance knowledge
what constitutes an “accident” is without merit. The Contestant’s theory, if adopted, would mean
that the statutory provision would be entirely unenforceable absent a regulation or a policy
statement, an untenable conclusion.
8
As noted by Adminstrative Law Judge Miller in Performance Coal Co., 32 FMSHRC
1352, 2010 WL 3826411, (Sept. 2010), a “section 103(k) provides that it is MSHA, not the
operator, who is in charge of the investigation. . . . [and the] Act gives MSHA plenary power to
make post-accident orders for the purpose of protection and safety of all persons. . . .
[Consequently,] MSHA has broad authority to issue 103(k) orders to effectuate this purpose.” at
* 1357, citing Rockhouse Energy Mining Co., 26 FMSHRC 599, 602 (July 2004) (ALJ), Miller
Mining Company, Inc. v. FMSHRC, 713 F.2d 487, 490 (9th Cir. 1983), Buck Mountain Coal Co.,
15 FMSHRC 539 (Mar. 1993) (ALJ) and West Ridge Resources, Inc., 31 FMSHRC 287 (Feb.
2009) (ALJ). Judge Miller also observed that “[t]his broad grant of authority is recognized in the
legislative history, which states that: [t]he unpredictability of accidents in mines and uncertainty
as to the circumstances surrounding them requires that the Secretary or his authorized
representative be permitted to exercise broad discretion in order to protect the life or to insure the
safety of any person. The grant of authority under section [103(k)] to take appropriate actions and
… to issue orders is intended to provide the Secretary with flexibility in responding to accident
situations, including the issuance of withdrawal orders.” quoting S. Rep. No. 95-181, at 29
(19770, reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of
the Federal Mine Safety and Health Act of 1977, at 617 (1978).
9
In fact, MSHA’s Program Policy Manual, at Volume I, while addressing many aspects
of section 103 of the Mine Act, omits any direct attention to section 103(k), which, as mentioned,
is referenced only in the context of addressing section 103(j), dealing with Mine Accident and
33 FMSHRC 1559

In sum, the construction urged by the Contestant would deny MSHA authority to deal with an
event which, by any rational measure, was clearly an accident. As such, it is within the reach of a
section 103(k) Order. To reach the result urged by Contestant would affront common sense and
be at odds with the remedial nature of the Mine Act.10
Accordingly, for the reasons articulated in this Order and in the Court’s earlier Order denying
Contestant’s Motion for Summary Decision, the Court DENIES Contestant’s Renewed Motion
and GRANTS the Secretary’s Motion to Dismiss Revelations’ Notice of Contest.

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

Rescue, Recovery and Preservation of Evidence. So too, 30 C.F.R. Part 50, by its very title, is of
broad coverage, speaking to the notification, investigation, reports and records of accidents,
injuries, illnesses, employment and coal production in mines. As applicable here, it is in the
context of such investigations and reports that accident is defined, but it in no way purports to
corral the statutory definition of accident, nor could it. Even if, for arguments sake, one were to
claim that it did limit the statute, accidents included within 30 C.F. R. § 50.2 (h) can be
considered to apply to the situation which occurred here, as (h)(7) references an “unplanned
ignition or explosion of . . . an explosive.” Certainly, the effect of the explosion here was not
planned to have such effects.
10
See, for example, Walker Stone Co., Inc. v. Secretary of Labor, 156 F.3d 1076
C.A.10,1998, September 22, 1998 upholding the Commission’s interpretation of a standard as
“consistent with the safety promoting purposes of the Mine Act,” and that the Mine Act should
be liberally construed to accomplish its remedial purposes and rejecting a construction that would
create absurd results. (internal citations omitted). Congress intended the Mine Act to be liberally
construed to accomplish its remedial purposes. Cyprus Indus. Minerals Co. v. FMSHRC, 664
F.2d 1116, 1118 (9th Cir.1981), Joy Technologies, Inc. v. Secretary of Labor, 99 F.3d 991
C.A.10,1996, (November 5, 1996)

33 FMSHRC 1560

Attachment:
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, NW, Suite 9500
Washington, DC 20001-2021
Telephone No.: 202-577 6809
Telecopier No.: 202-434-9954

January 21, 2011

REVELATION ENERGY, LLC,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, MSHA,
Respondent

:
:
:
:
:
:
:
:
:
:

CONTEST PROCEEDING
Docket No. KENT 2011-71-R
Order No. 8247763;10/08/2010

S-1 Hunts BR
Mine ID 15-18280

ORDER DENYING CONTESTANT’S MOTION FOR SUMMARY DECISION
Contestant, Revelation Energy, LLC, has filed a motion for summary decision (“Motion”)
along with a memorandum in support thereof (“Memorandum”). The Secretary filed a Response
(“Response”) to those filings. For the reasons which follow, the Court DENIES the Respondent’s
Motion.
Contestant’s Motion is based upon the assertion that the MSHA Order at issue in this
proceeding is invalid because the subject of that Order, an accident, does not fall within the
definition of an “accident” under the Mine Act. The Section 103(k) Order in issue, Order No.
8247763, stated in relevant part that:
A non injury blasting accident occurred at this surface at approximately
6:30 pm resulting in a rock about 6 feet in diameter and weighing
approximately 2 tons leaving the mine property. This rock rolled down
the hill through a citizens yard and came to rest in the creek next to the
roadway below the citizens residence. This 103 (k) order is issued to
protect the safety of all persons on mine site and off mine site.
Reduced to its essence, the Contestant asserts that, whether one looks to the statute or the
regulations, neither provides authority for the Order issued here. To arrive at that contention, the
Respondent notes that the issuance of a 103(k) Order is available “[i]n the event of any accident
occurring in a coal or other mine.” Under those circumstances the authorized representative of the
Secretary, when present, may issue such orders as he deems appropriate to insure the safety of any
person in the coal or other mine. Contestant also observes that when one looks to the statutory
definition of an “accident” that provision provides that an accident “includes a mine explosion,
mine ignition, mine fire, or mine inundation, or injury to, or death of, any person.” Section 3 (k)
(emphasis added). Further, the Contestant notes that the regulation further defines the term
“accident” stating that the term means twelve (12) enumerated events. Contestant concludes that,
whichever measure is used to define the term “accident,” none apply to the circumstances which
occurred here and consequently MSHA had no legal authority to issue the 103 (k) Order.
Accordingly, Respondent maintains that as the event did not involve “injury, death or any of the
events included in the definition of “accident” set forth in the Mine Act,” no accident occurred
and the Order should be vacated. Memorandum at 4.
In response, it is the Secretary’s position that, because there are genuine issues of material
facts, the Motion should be denied. The Secretary contends that the proper authority for
33 FMSHRC 1561

determining the meaning of an “accident” is set forth in 30 U.S.C. § 802(k). In this respect, it is
noted that the parties agree, as the Respondent asserts, that the “key question in determining the
validity of a §103(k) citation is whether ‘an accident within the meaning of Section 103(k)’
occurred.” Motion at 3. There is also agreement with the parties that the term “accident” is also
defined at 30 C.F.R. § 50.2(h). However, as the Secretary points out, Section 103(k) applies to
“this chapter,” and that the chapter it refers to is Chapter 22 , that is, the Federal Mine Safety and
Health Act of 1977 (“Mine Act”). Citing Newmont U.S.A. Ltd., 32 FMSHRC 391 (April 14,
2010), the Secretary asserts that Section 802(k) is broader in its application than § 50.2(h).
The Court concludes that summary judgment is clearly not appropriate. As the Secretary
has noted, Section 802(k) provides that, for the purpose of the Chapter, the term “‘accident’
includes a mine explosion, mine ignition, mine fire or mine inundation, or injury to, or death of,
any person.” It is a fundamental tenet of statutory construction that use of the term “includes” is a
term of enlargement and not one of limitation. Congress could have easily omitted the word
“includes” and simply listed certain mine events, such as “mine explosion” and the other events
listed in that section but it expressly decided not to so limit the scope of the term “accident.”
Accordingly, the listing of certain known historical bases for mine accidents when coupled with
the term “includes,” cannot reasonably be construed to limit accidents to those named. In fact, to
limit the definition to those named circumstances would eviscerate Congress’ use of the term
“includes,” making it meaningless.
Although the Secretary also asserts that the incident which resulted in the issuance of the
Order here “presented a potential for injury [which was] similar to that of a mine explosion, mine
ignition, mine fire, mine inundation or injury to or death of any person,” that is to say, the listed
events in Section 103(k), the Court does not conclude that “similarity” to those listed events is an
essential requirement.1 This is because the Mine Act is remedial legislation with its primary
concern directed to the preservation of human life and as such is to be construed broadly to
effectuate its purpose. See, for e.g., Cyprus Cumberland Resources, 21 FMSHRC 722, 1999 WL
557063, July 1999, quoting Cannelton Industries, 867 F.2d 1432, 1437 (C.A. D.C. 1989), and
Freeman Coal Mining Co., 504 F.2d 741, 744 (7th Cir. 1974).
Accordingly, the Contestant’s Motion is DENIED.2

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

1

However, while concluding that similarity to the listed events is not a sine qua non to
establishing that an event is included within the term “accident,” the Court agrees that the
Secretary’s characterization of a 2 ton piece of rock some 6 feet in diameter blasted from mine
property and ending up off mine property in an individual’s back yard, as claimed, is an
exquisitely similar event, with the fly rock, writ large, which apparently occurred here.
2
The parties are directed to arrange a conference call with the Court on Wednesday
January 26, 2011, so that this matter may be set for hearing
33 FMSHRC 1562