September 2014
TABLE OF CONTENTS

COMMISSION DECISIONS
09-10-2014

EMERALD COAL RESOURCES, LP

PENN 2011-168

Page 2409

COMMISSION ORDERS
09-09-2014

OAK GROVE RESOURCES, LLC

SE 2013-301

Page 2411

ADMINISTRATIVE LAW JUDGE DECISIONS
09-04-2014

LHOIST NORTH AMERICA OF
VIRGINIA, INC.

VA 2013-169-M

Page 2413

09-08-2014

SEC. OF LABOR O/B/O KENNETH
P. LEAR, JR. V. KENAMERICAN
RESOURCES, INC.

KENT 2014-708-D

Page 2432

09-08-2014

PICKETT MINING GROUP

SE 2012-101-M

Page 2444

09-10-2014

AMERICAN COAL COMPANY

LAKE 2011-1054

Page 2456

09-11-2014

HIGMAN SAND AND GRAVEL,
INC.

CENT 2012-080-M

Page 2484

09-19-2014

YOUNGQUIST BROTHERS ROCK,
INC.

SE 2012-0266 M

Page 2492

09-25-2014

PEABODY MIDWEST MINING,
LLC

LAKE 2011-0277

Page 2504

09-26-2014

RECON REFRACTORY &
CONSTRUCTION

WEST 2010-450-M

Page 2514

09-30-2014

EXCEL MINING, LLC

KENT 2012-952

Page 2530

i

09-30-2014

MACH MINING, LLC

LAKE 2009-263

Page 2533

09-30-2014

BLACK BEAUTY COAL COMPANY LAKE 2009-328

Page 2548

09-30-2014

CAMPBELL COUNTY HIGHWAY
DEPARTMENT

SE 2012-198-M

Page 2579

09-30-2014

HECLA, LIMITED

WEST 2011-1390-RM Page 2600

ADMINISTRATIVE LAW JUDGE ORDERS
08-13-2014

AMERICAN COAL COMPANY

LAKE 2010-408-R X

Page 2609

09-03-2014

DICKINSON-RUSSELL COAL
CO. LLC

VA 2014-163-R

Page 2621

09-05-2014

CARL MOORE, employed by
CALVARY COAL CORPORATION

VA 2012-356

Page 2628

09-10-2014

AFFINITY COAL COMPANY, LLC

WEVA 2013-700-R

Page 2631

ii

Review was granted in the following cases during the month of September 2014:
Secretary of Labor, MSHA v. Knife River Construction, Docket Nos. WEST 2013-827-RM,
WEST 2013-828-RM, WEST 2013-829-RM, WEST 2013-1009-M (Judge Manning, August 7,
2014)
Secretary of Labor, MSHA v. CAM Mining, LLC, Docket Nos. KENT 2013-196-R, KENT
2013-197-R (Judge Andrews, August 19, 2014)

Review was denied in the following cases during the month of September 2014:
Secretary of Labor, MSHA v. Oak Grove Resources, LLC, Docket Nos. SE 2013-301, SE 2013352, SE 2013-368, SE 2013-399 (Judge Feldman, Certified for Interlocutory Review, August 22,
2014)
Secretary of Labor, MSHA v. Virginia Drilling Co., Docket No. WEVA 2011-287 (Judge Gill,
August 11, 2014)
Secretary of Labor, MSHA v. The American Coal Company, Docket Nos. LAKE 2010-408-R,
LAKE 2010-409-R, LAKE 2010-759 (Judge Miller, August 13, 2014)

Previously unpublished in FMSHRC Volume 36, No. 8:
Secretary of Labor, MSHA v. The American Coal Company, Docket Nos. LAKE 2010-408-R X,
LAKE 2010-409-R X, LAKE 2010-759 (Judge Miller, August 13, 2014)

iii

COMMISSION DECISIONS

36 FMSHRC Page 2408

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

September 10, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 2011-168
v.
EMERALD COAL RESOURCES, LP

DECISION APPROVING SETTLEMENT
Before: Nakamura, Acting Chairman; Cohen and Althen, Commissioners
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (2012), and is before the Commission on review of the
Administrative Law Judge’s decision upholding Order Nos. 8007973 and 8007974 for alleged
violations of 30 C.F.R. § 75.400 and 30 C.F.R. § 75.360(b)(3), respectively. 35 FMSHRC 2645,
2673 (Aug. 2013) (ALJ). The Judge found that Emerald Coal Resources, LP violated section
75.400, that the violation was “significant and substantial,” and that it was an unwarrantable
failure, when it allowed combustible material to accumulate in the mine, including pushing
material to the face as part of its cleanup program. Id. at 2661-63. She also found that it violated
section 75.360(b)(3) when Emerald failed to record the hazardous accumulations in the pre-shift
examination log, and that this violation was also “significant and substantial” and an
unwarrantable failure. Id. at 2666-67.
The Judge further concluded that because Emerald was a “recidivist operator that [had]
chosen to ignore MSHA’s § 75.00 standard” and had failed to record the violative conditions,
thereby “expos[ing] miners to unknown hazards,” it was appropriate to assess an enhanced
penalty amount for each order. Id. at 2672. Specifically, she increased the penalty for Order No.
8007973 from $41,500 to $90,000 and for Order No. 8007974 from $32,800 to $40,000. Id. at
2672-73.
Emerald petitioned for discretionary review by the Commission challenging the Judge’s
findings regarding the fact of violations, as well as the “significant and substantial” and
unwarrantable failure designations. It also sought review of the Judge’s heightened penalty
assessment for Order No. 8007973. The Commission granted the petition for review.

36 FMSHRC Page 2409

On August 28, 2014, the parties filed a Joint Motion to Approve Settlement pursuant to
section 110(k) of the Act, 30 U.S.C. § 820(k), which provides that “[n]o proposed penalty which
has been contested before the Commission under section 105(a) shall be compromised,
mitigated, or settled except with the approval of the Commission.” The parties have agreed that
with the exception of a reduction in penalty, Order Nos. 8007973 and 8007974 have been
properly adjudicated as set forth in the Judge’s decision. According to the proposed settlement,
the penalty amount for Order No. 8007973 shall be modified to reflect a penalty of $70,000,
which is the statutory maximum for a non-flagrant violation. The penalty assessment for Order
No. 8007974 shall remain at $40,000, for a total assessment of $110,000.
We have considered the representations and documentation submitted in this case, and
we conclude that the proffered settlement is appropriate under the criteria set forth in section
110(i) of the Act, 30 U.S.C. § 820(i).
Wherefore, the motion for approval of the settlement is GRANTED. It is ordered that the
operator pay a penalty of $110,000 within 30 days of the date of this order. Upon receipt of
payment, this case is dismissed.

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Acting Chairman

/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner
/s/ William I. Althen
William I. Althen, Commissioner

36 FMSHRC Page 2410

COMMISSION ORDERS

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

September 9, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos.

SE 2013-301
SE 2013-352
SE 2013-368
SE 2013-399

v.

OAK GROVE RESOURCES, LLC

ORDER
BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners
BY THE COMMISSION:
These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012). On August 22, 2014, the Administrative Law Judge certified for
interlocutory review his Order Requiring Secretary’s Pre-Hearing Statement, which he issued on
June 12, 2014. In that order, the Judge articulated criteria for establishing repeated flagrant
violations pursuant to section 110(b)(2) of the Mine Act, 30 U.S.C. § 820(b)(2), and ordered the
Secretary to submit a pre-hearing statement regarding whether the evidence in the case satisfied
these criteria. Order at 13-14. The Secretary submitted his pre-hearing order on August 7, 2014,
but the Judge determined that this statement failed to clarify a controlling question of law in the
case. Certification at 3.
Pursuant to Commission Procedural Rule 76, 29 C.F.R. § 2700.76, the Commission may
review a Judge’s ruling, prior to the Judge’s final decision in the case, only if certain conditions
are met. First, pursuant to Rule 76(a)(1), either the Judge must certify that his or her
interlocutory ruling involves a controlling question of law and that immediate review will
materially advance the final disposition of the proceeding or the Judge must deny a party’s
motion for certification of the interlocutory ruling to the Commission and the party must file
with the Commission a petition for interlocutory review within 30 days of the Judge’s denial of
such motion for certification. This criterion was met by the Judge’s August 22, 2014
certification.
Second, under Rule 76(a)(2), a majority of Commission members must conclude that the
Judge’s interlocutory ruling involves a controlling question of law and that immediate review
may materially advance the final disposition of the proceeding. Here, however, review of the
Judge’s June 12, 2014 Order would amount to an advisory opinion on an abstract legal principle.
Although the Judge has articulated his view of the legal standard that should be applied in this
case, he has done so by ordering the Secretary to submit a pre-hearing statement applying this

36 FMSHRC Page 2411

standard. Consequently, at this juncture, the only question on review would be whether the Judge
abused his discretion in ordering the Secretary to submit the pre-hearing statement. This does not
constitute a controlling question of law, nor does it frame, in the proper procedural posture, the
legal question on which the Judge seeks interlocutory review.
For the reasons set forth above, we deny interlocutory review.

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Acting Chairman

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

/s/ William I. Althen
William I. Althen, Commissioner

36 FMSHRC Page 2412

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9958/ FAX: 202-434-9949

September 4, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
LHOIST NORTH AMERICA OF
VIRGINIA, INC.,
Respondent

CIVIL PENALTY PROCEEDING
Docket No. VA 2013-169-M
A.C. No. 44-00082-309415
Docket No. VA 2013-191-M
A.C. No. 44-00082-312088
Mine: KIMBALLTON PLANT #1

DECISION AND ORDER
Appearances:

Willow E. Fort, Esq., U.S. Department of Labor, Office of the
Solicitor, Nashville, TN for the Petitioner
Charles H. Morgan, Alston & Bird, LLP, Atlanta, GA for the
Respondent

Before:

Judge Rae

This case is before me upon petitions for assessment of civil penalties under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §815(d).
A hearing was held in Blacksburg, VA. The parties submitted post-hearing briefs which
have been considered. The docket consists of one citation and four orders that arose out of a
two-day inspection made by Mine Safety and Health Administration ("MSHA") inspector
Billy Joe Ratliff1 which commenced on October 10, 20I2. For the reasons set forth below, I
find the Secretary has met his burden of proof on all cited violations as issued.
FACTUAL BACKGROUND
The parties stipulated that: I) Lhoist was the operator of the Kimballton Plant #I, Mine
ID No. 44-00082; 2) The Kimballton Plant #I is a "mine" as that term is defined in
1

Billy Joe Ratliff has been a certified mine inspector for nine years. He is also a trained
accident investigator and spent five years in law enforcement on several police and sheriff's
departments. He also has nine years of mining experience including working with explosives.
Tr. 12-17. He had been inspecting the Kimballton mine since 2005. Tr. 21.

36 FMSHRC Page 2413

Section 3(h) of the Federal Mine Safety and Health Act ("Mine Act" or "Act"), 30 U.S.C. §
802(h); 3) The products of the mine entered commerce, or the operations or products thereof
affected commerce, within the meaning and scope of Section 4 of the Act, 30 U.S.C. § 803;
4) Lhoist is an "operator" as defined in Section 3(d) of the Act, 30 U.S.C. § 802(d); 5)
Lhoist's operations and this mine are subject to the jurisdiction of the Act; 6) The hearing of
these dockets is subject to the jurisdiction of the Federal Mine Safety and Health Review
Commission and its designated Administrative Law Judges pursuant to Sections 105 and 113
of the Act; 7) Inspector Ratliff was acting in his official capacity and as an authorized
representative of the Secretary when he issued the citation and orders; 8) True copies of the
citation and orders were served on Lhoist as required by the Mine Act; 9) The total proposed
penalty for the dockets herein will not affect Lhoist's ability to continue in business; 10) The
Proposed Assessment (Form 1000-179 (MSHA)) contained in Exhibit A attached to the
petition accurately sets forth the size of respondent in production tons or hours worked per
year, the size of respondent of the mine at which the violations were issued, the total number
of assessed violations in the preceding 24 month period, and the total number of production
days for the preceding 24 month period; 11) The Secretary's copies of the citation and orders
are authentic; 12) The Secretary's exhibits are authentic copies; 13) Respondent's copies of
the citation and orders are authentic; and, 14) Respondent's exhibits are authentic. Joint Ex.
1.
The Kimballton mine is the deepest underground limestone mine in the country and
has been in operation since 1947. Some areas of the mine are 2300 feet deep and the
individual tunnels range between 100 and 125 feet tall. Tr. 188-9. The entries are
approximately 45 feet wide and 35 feet in height. The limestone is mined by explosives.
The normal blasting cycle begins with loading the blasting rig with ANFO, which is a solid
explosive agent consisting of essentially fertilizer and diesel fuel. The rig pulls up under the
bulk tank and the ANFO is released into a large steel tank which is also known as the ANFO
pot located at the rear of the rig. The blasting rig is then driven to the face that is to be
blasted where the ANFO is pumped through a hose from the pot using compressed air into
the holes drilled into the face of the stone. The rig is equipped with a boom and a basket
which raises the miner up to feed the ANFO into the holes drilled on the upper part of the
face. Tr. 43. The rig then moves on to the next face to be loaded for blasting. Once the shot
is made, the loose material is then loaded onto haul trucks and brought to an underground
crusher. It is then transported by conveyor up the slope and out to an exterior storage area.
Tr. 29. At the completion of the cycle, the rig is then brought to a wash-down area for
cleaning. The mine operates in two shifts; the evening shift is responsible for drilling and
blasting the face in order to provide ample time for dust and gases raised during the blasting
to settle before mining continues on the day shift. Tr. 27-35. Typically, this mine uses a
Getman blasting rig on which the ANFO pot is welded and bolted on the rear of the vehicle.
Tr. 50, 177, 182. At the time these violations were found, the mine was using a different
vehicle as a blasting rig.
In response to an anonymous hazard complaint, MSHA Inspector Billy Joe Ratliff
went to the Kimballton mine. He did not find any hazards as a result of the complaint;
however, while there, he requested a meeting with all miners in the underground I 0 East
lunchroom to discuss another issue. A rank-and-file miner told Ratliff to take a look at the

36 FMSHRC Page 2414

truck being used as a blasting rig which was parked directly outside. Tr. 169. What Ratliff
found was a Ford F-250 pickup truck that had an ANFO pot rigged in the bed with a
compressor hitched behind the truck. Tr. 41-2. He learned upon further investigation that on
October 4th the transmission on the Getman blasting rig had given out. Management
directed the employees on Monday, October 8th to rig the pickup as a blasting rig. This was
accomplished by placing an ANFO pot that had been taken off an old Volvo blasting rig
directly behind the cab of the truck and tying a series of climbing ropes, straps, and ratchets
around the pot. Tr. 52, 105, 108-12. The pot was a large cylindrical tank positioned in an
upright manner with the top extending several feet above the roof of the truck. Ex. S-3 p.3
Photo.
Because the pickup truck was significantly smaller than the Getman rig the manner in
which it was used in the blasting sequence was very different from the norm. It was too small
to pull under the bulk tank to load the ANFO into the pot. Instead, the truck was being driven
to the face that was to be blasted where it was met by a flatbed truck carrying 50 pound bags
of ANFO. Tr. 48, 74. The ANFO bags were handed off from one miner standing on the
flatbed truck to a miner standing on the rear of the pickup truck and then the miner lifted the
bags overhead and poured the ANFO by hand into the pot through a funnel located at the top
of the tank. Tr. 48, 63, 74-6. In order to access the funnel, the miners were standing on the
side rails of the pickup truck's bed or on the roof of the truck. Tr. 64. The truck was used in
this fashion on the night of October 8th. The next morning a miner put in a work ticket for a
safe way to load the pot because the tank was too tall and the bags had to be lifted overhead.
Tr. 201; Ex. R-5. Mine Manager Luxbacher 2 called down to the repair shop to ensure this
work order was being fulfilled and a small platform was placed in the truck bed before it was
used again on the night of the 9th. Id The miners informed Ratliff, however, that they
continued to stand on the rails and roof of the truck because the platform, or step, would shift
and slide under their feet. Tr. 64. They also stood on the side of the truck when the ANFO
bags were being transferred from the flatbed to the pickup truck because they could not
reach out far enough from the platform. Tr. 74.
Based upon his observations of the pickup truck and the conversations with the
miners, Ratliff issued one citation and five orders discussed herein.
LEGAL PRINCIPLES
Significant and Substantial/Gravity
A significant and substantial ("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
2

Luxbacher has been mine manager for five years and has been in the mining
industry for ten years. He is a graduate of Virginia Polytechnic Institute and State
University with a degree in mine engineering. Tr. 187-90.

36 FMSHRC Page 2415

hazard contributed to will result in an injury or illness of a reasonably serious nature."
Cement Div., Nat'/ 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 1, 3-4 (Jan. 1984); see also Buck Creek Coal
Co., Inc., 52 F.3d 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 fmdings. 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.
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).
Negligence/Unwarrantable Failure
Negligence is conduct which falls below the standard of care established under the
Mine Act. Under the Act an operator is held to a high standard of care and is required to be
on the alert for conditions and practices that may cause injuries and to take necessary
precautions to prevent or correct them. 30 C.F.R. § 10.0(d). High negligence is defined as
when "[t]he operator knew or should have known of the violative condition or practice, and
there were no mitigating circumstances." 30 C.F.R. § 100.3 Table X.
In Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001), the Commission reiterated
the law applicable to determining whether a violation was the result of an unwarrantable
failure:
The unwarrantable failure terminology is taken from section 104(d) of the
Act, 30 U.S.C. § 814(d), and refers to more serious conduct by an operator in
connection with a violation. In Emery Mining Corp., 9 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 200304; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991)

36 FMSHRC Page 2416

("R&P"); see also [BuckCreek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th
Cir. 1995)] (approving 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 'don other grounds,195 F.3d 42 (D.C. Cir. 1999);
Midwest 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. Consol, 22 FMSHRC at 353. Because
supervisors are held to a high standard of care, another important factor
supporting an unwarrantable failure determination is the involvement of a
supervisor in the violation. REB Enters., Inc., 20 FMSHRC 203,225 (Mar.
1998).
It is not necessary to find that all factors are relevant or deserving of equal weight in
order to determine that a violation is unwarrantable. /0 Coal, 31 FMSHRC 1346, 1351 (Dec.
2009); Eastern Associated Coal Corp., 32 FMSHRC 1189 (Oct. 2010).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Citation No. 8639930
This safe access Section 104(d)3 citation was written in accordance with 30 C.F.R. §
57.11001 which requires that all working places have a safe means of access provided and
3

Section 104(d) of the Mine Act states in relevant part, "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 a nature as could significantly and substantially contribute to the cause and effect of a
coal or other mine safety or health standard, and if he finds such violation to be caused by
an unwarrantable failure of such operator to comply with such mandatory health or safety
standards, he shall include such fmding in any citation given to the operator under this Act."

36 FMSHRC Page 2417

maintained. It was issued because a safe means of access to load the ANFO pot on the Ford
F- 250 pickup truck was not provided. The miners were using the roof, side rail or unsecured
step without handrails to load the 50 pound bags of ANFO into the top of the tank. Ratliff
noted in his citation that the truck had been used in this fashion since October 8, 2012 and
that this was not the first time the tank had been used on the back of the truck.
Ratliff assessed the gravity of the violation as reasonably likely to result in a fatal
accident to one miner, S&S, and the result of high negligence. He issued the citation as an
unwarrantable failure to comply with the standard because Luxbacher was aware of the
danger and allowed the pickup truck to be put into service. Ex. S-1. The Secretary has
proposed a specially assessed civil penalty in the amount of $11,900.00.
In addition to the previously stated facts, Ratliff considered several additional facts in
issuing this citation. As he testified, the ANFO pot was loaded at the face where lighting was
poor. Tr. 61-2. The bed of the truck had a plastic liner which made the unbolted step (or
platform) shift easily when a miner stepped on it. An employee told Ratliff because of the
way the platform was positioned in the truck bed, the miner on the truck would have one foot
on the side rail and one foot on the unsecured shifting platform in order to reach for the bag of
ANFO being passed to him from the flatbed truck. Tr. 75. When a miner was lifting bags
overhead, this platform became an elevated working place. Neither a handrail nor fall
protection was provided. Tr. 60, 72-3. Additionally, because ANFO contains diesel fuel, it can
be slippery if spilled. There was residue in the bed of the truck apparently from spillage. Tr.
59-68. All of these factors led to the inspector's determination that the miners did not have
safe access to the ANFO pot creating a slip and fall hazard in violation of this standard.
Luxbacher testified that he reviewed the repair ticket submitted by a miner on the
morning of October 9th requesting a safe means of accessing the pot. He called the repair
shop to ensure the platform would be available on that night shift. Tr. 199-200. It is his
position that providing the platform made access to the pot safe at least as of the night of
October 9th. Resp. 's Post-Hearing Br. He stated that he "believed" that the bags were only
lifted to chest height but he was not "positive" of that. Tr. 221. He also testified that before
Ratliff arrived at the lunchroom and saw the truck, he (Luxbacher) climbed into the bed of
the pickup truck to inspect it for ANFO residue and cleaned ANFO pellets that had spilled
around the top of the pot. Tr. 205. Luxbacher also confirmed that he was well aware that this
F-250 pickup truck had been used in the same manner as a blasting rig in the past and that he
issued the order to the foreman to put the system back on the truck when the Getman rig was
taken out of service. Tr. 195.
I reject Lhoist's position that the violation was abated with the installation of the
platform. A reasonable person would recognize that the miners still had to lift the bags
overhead to load the pot which necessitated standing on an unsecured platform and standing
on the side rails and the roof of the truck. The violation has been established.
In Ratliff s opinion, this violation was S&S. The platform was not bolted or
otherwise properly secured in the bed of the truck. The bed liner was made of plastic which
caused the platform to slip under the weight of the miner's feet. ANFO was spilled creating

36 FMSHRC Page 2418

a slippery surface as well. The lighting was poor and the bags were heavy. There were
straps, ropes, hoses and other material cluttering the area. A miner could easily lose his
balance, slip, or trip when stepping on this wobbly platform or the roof or sides of the truck
resulting in a head injury from striking the comers of the truck or pieces of equipment in and
around it. Tr. 73. Breaks, bruises and sprains were also reasonably likely consequences of a
fall. Tr. 74.
An inspector's opinion of an S&S violation is entitled to substantial weight.
Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998); Buck Creek Coal, Inc. v.
FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995). Based upon the circumstances present here, I
find the inspector to be credible and his opinion is supported by the evidence. I find this
violation to be S&S.
The gravity of this violation is very serious. The hazard created by management put
the miner filling the ANFO pot at a substantially likely risk of a fatal injury.
The inspector marked the negligence involved in this violation as high because
management directed the miners to rig up the pickup truck in this manner. It had been done
before in the same way. This was confirmed by Luxbacher at trial. Tr. 195. Blaster Darrell
Haymore testified that he had been the one to rig it in this manner on October 8th and knew
how to do it because he had done it the same way before. Tr. 173. Miners Gregory Parcell and
Melvin Whitaker also confirmed that it had been in service in this condition during two night
shifts before Ratliff issued the violations and it was taken out of service. Tr. 176, 180.
I do not find the installation of the platform a mitigating factor for the reasons set
forth above. High negligence is appropriate.
The Secretary has assessed this violation as unwarrantable failure. Lhoist had notice
that the transmission on the Getman rig was failing at least as early as October 4th and took
no action to procure a rental from any source. Ex. R-4. Indeed, Luxbacher testified that he
made no efforts to do so prior to the citation being issued to Lhoist. Tr. 219-20. There were
numerous cords, ropes and other items coupled with spillage of ANFO in the bed of the truck
which posed an obvious slip and trip hazard that had been uncorrected. In fact, the truck had
been used in the same manner in the past and was ordered by Luxbacher to be put back in
service without any modifications. Additionally, this was the seventh unsafe access violation
issued at this mine putting Lhoist on notice that greater compliance efforts were necessary. Tr.
84.
Lhoist admits that safe access "may have been lacking" on the night of October 8th
but having been made aware of the issue on the morning of the 9th it took prompt action to
install the step, or platform, after a miner had requested a safe means of access. This prompt
response does not rise to the level of aggravated conduct in its opinion. Resp. 's Br. at 9.
Alternatively, it argues that if access to the pot remained unsafe thereafter, Luxbacher was
unaware of it and the violation was not obvious. There were no further complaints from the
miners and he used it himself and did not notice any problems with it. Tr. 207; Resp. 'sBr. at
10. I find this argument troubling. Management is held to a higher standard of care than the

36 FMSHRC Page 2419

rank-and-file miner. It should not wait for a miner to make a safety complaint or to be injured
before it becomes aware of a hazard such as this. Management should be ever vigilant for
such hazards and be proactive in eliminating them. It would have been obvious to even a lay
person that the manner in which the ANFO pot was set up on this truck posed a serious risk
of injury. The pot was filled through a funnel or cone located at the top which was positioned
several feet above the roof of the truck. Ex. S-9 p.8 photograph. It was readily apparent that
in order for the miners to pour the 50 pound bags of ANFO into the pot they would have to
climb on the side and/or roof of the truck to do so. The truck was employed throughout the
night shift of October 8th in this condition. Luxbacher was also aware that it had been rigged
the same way in the past and he should not have waited until a miner came forward to
complain about the unsafe manner in which they were working.
Ronald Munsey 4 was the night shift foreman at the time of this inspection. It was his
responsibility to direct the location of the shots, check readings, and supervise the men. Tr.
88. He should also have been aware of the manner in which the miners were accessing the
pot.
Despite Luxbacher' s claims that he was unaware that the step failed to eliminate the
safe access violation, he admitted that on October 1Oth, he climbed aboard the pickup truck,
inspected the cone, or funnel, at the top of the pot and cleaned spilled ANFO material from it.
He therefore had to have been aware that the platform was not bolted or otherwise properly
secured to the bed of the truck allowing it to move underfoot. He also would have to have
noticed that the platform did not alleviate the miners' need to reach overhead and lean forward
to access the funnel. See photograph at Ex. S-3 p.3. In fact, on cross-examination he as much
as admitted this fact. Tr. 221. Further, he was aware, or should have been, that the bags of
ANFO were being brought to the face on a flatbed truck and were being handed across the
back of the flatbed to the miner on the pickup. As the miners interviewed by Ratliff
described it, this would require the miner loading the pot to perform a balancing act with one
foot on the unsecured step and one on the side of the truck to transfer the bags from the
flatbed to the pickup truck. They told Ratliff that the platform would wobble and shift as
they performed this maneuver. Clearly they were still concerned for their safety as one
miner suggested to Ratliff that he take a look at the truck while it was parked by the
lunchroom. Tr. 169. The night foreman would have been present during the blasting cycle
and would certainly have been aware that the platform was not providing them with safe
access to the pot. Tr. 87-8. Luxbacher's claim that management was unaware of the
violation and that it was not obvious after the platform was installed is not credible. 5
Placing the platform in the bed of the truck did not make access to the pot safe. It also
was not a reasonable attempt to abate the violation. Having been made aware that the miners
were concerned for their safety in loading the ANFO pot, it would have been prudent and
4

Munsey was deceased at the time of this hearing.

5

In assessing Luxbacher' s credibility, I have also considered the fact that at the time
of this hearing a Section 110(c) investigation was pending which could result in subjecting
him as an individual to civil penalties for knowingly authorizing, ordering, or carrying out a
violation under the Mine Act.
36 FMSHRC Page 2420

reasonable for Luxbacher or the night foreman to have inspected the step on the 9th to insure
it was properly installed and secured before the truck was used on the second night. It also
would have been reasonable for management to contact one of the companies that leased
blasting rigs to obtain another until the Getman was repaired. Ratliff testified that he
contacted Austin Powder and Orica and was told a rig with a driver could be rented which
would have been a safer option than rigging the ANFO pot on the back of a pickup truck. Tr.
57. Another way to have abated the violation would have been to cease blasting until the
repairs could have been made to the Getman rig. In any event, putting an unsecured step that
wobbled and shifted underfoot in the back of the pickup truck that did not alleviate the need
to lift heavy bags overhead and climb on the side or roof of the pickup truck cannot be
considered a reasonable step to abate the violation.
The combination of factors that made this violation obvious also posed a high degree
of danger to the miners. In the event a miner should trip on the many obstacles located on
and around the tank or slip on the roof or side rails of the truck or lose his balance when
stepping on the platform that wobbled and shifted underfoot, there was a very high degree of
probability that a serious injury would result. As the inspector testified, there were sharp
corners and hard objects in the area such as a toolbox, the tow hitch, the platform itself, and
the ground below that could cause fatal head injuries or other serious injuries.
The violation did not exist for a brief period of time as suggested by the Respondent.
This was the second time management had put this make-shift rig into service. It had been
used this second time on the night of October 8th and 9th in this violative condition. It would
have been used again on the 1Oth and for an untold number of nights thereafter had it not
been for Ratliff's intervention. Taking into consideration that this was the second time it was
used in this manner without the danger being recognized or remedied coupled with the very
short time in which it would take for a miner to lose his balance and fall suffering a serious or
fatal injury, the amount of time miners were exposed to the violative condition was
excessive. Furthermore, in a situation where the violation existed for a relatively brief period
of time, the high degree of danger posed by the hazardous condition and its obvious nature
may still lead to an unwarrantable failure determination. This is especially so when
management is involved in creating the danger. SecyofLabor v. Midwest Material Co., 19
FMSHRC 30 (Jan. 1997); Capitol Cement Corp., 21 FMSHRC 883 (Aug. 1999).
The inspector noted on his citation that Lhoist had received seven prior safe access
violations, which I deem sufficient to have put them on notice that greater efforts at
compliance with this standard were necessary.
For all of the above reasons, I find that this violation is an unwarrantable failure to
comply with the safe access standard.
Order No. 8639931
This Section 104(d) order was issued in violation of30 C.F.R. § 57.13011 which
requires all air receiver tanks be equipped with one or more automatic pressure-relief valves
and indicating pressure gauges which accurately measure the air pressure in the tank. This

36 FMSHRC Page 2421

ANFO tank had neither gauge on it although it did when it was on the Volvo rig.
The inspector assessed the gravity as reasonably likely to result in a fatal accident,
S&S, affecting two miners with high negligence. Ex. S-4. The Secretary has proposed a civil
penalty in the amount of$4440.00.
Lhoist admits to the violation and contests only the unwarrantable failure designation.
Ratliff testified that the compressor hitched behind the truck sends air into the ANFO
pot where it pushes the explosive agent through the tank into the hoses and delivers it to the
drilled blast holes. The relief gauge and the indicating gauge are both designed to prevent the
receiving tank from rupturing in the event of over pressurization. The former off gasses
excess pressure while the latter provides an accurate reading of the amount of pressurized air
in the tank. Ratliff was told by a miner that he had asked Luxbacher when transferring the
tank from the old Volvo rig to the pickup whether the "pop-off" valve was needed. Luxbacher
responded in the negative. Tr. 97. Luxbacher denies any recollection of this. Tr. 208. The tank
was equipped with these two gauges when it was on the Volvo rig but they were removed
and based upon Luxbacher' s direction, were not put back on. Tr. 97, 103.
The compressor itself is equipped with a regulator which shuts the compressor down
when it gets up to a certain pressure. It is also equipped with a one-way back pressure relief
valve which would prevent any pressure that exceeds the capacity of the compressor from
over pressurizing it. Neither protects the ANFO pot from being over pressurized. Tr. 99.
The ANFO tank was re-plumbed and reconfigured with different fittings and hoses when it
was installed on the pickup. As a result, there would be no way to know what its maximum
pressure capacity was. A recertification and rating would be needed to make this
determination. Tr. 100-2. Striking the proper balance between the two components was now
left up to chance. I find under continued normal mining operations, an over pressurization
and rupture of the tank was reasonably likely to occur. Should the tank rupture, it could
impale someone or the compression could cause a miner to fall and strike his head or other
body part against hard objects in the immediate vicinity causing a fatal or serious injury. Tr.
95-6.
I find the evidence is sufficient to satisfy the Mathies criteria.
The gravity of this violation is very serious, affecting two miners.
Negligence/Unwarrantable Failure
Lhoist contests the unwarrantable failure assessment, addressing three points. First,
Luxbacher testified that he did not consider the ANFO pot an air receiver tank. He did not
know or have reason to know that the tank did not have the gauges or that they were needed.
Secondly, the tank was in service for just two days before it was removed from service.
Lastly, the Secretary did not meet his burden of proving the elements of an unwarrantable
failure. The inspector offered no testimony regarding his reasons for designating this
violation as unwarrantable.

36 FMSHRC Page 2422

The Secretary argues that although the inspector determined that the operator acted
with high negligence, the evidence as a whole supports a finding of a complete disregard for
the safety of the miners. Sec y 's Br. n.6. In fact, the inspector stated that he felt the negligence
was high because the operator was aware of the missing gauges when a miner asked
Luxbacher if the pop-off gauge was needed. It was an unreasonable belief on the part of
Luxbacher that it was not. Tr. 103. I find no mitigating factors present to reduce the high
negligence.
With respect to unwarrantable failure, I find the operator knew or should have known
that the ANFO tank was an air tank and that the violation existed. Luxbacher has his mine
engineering degree from Virginia Polytechnic Institute and State University. As an engineer,
it should come as no surprise to him that a tank that receives air from a compressor is an air
receiver subject to this mandatory standard. Additionally, as a mine manager, he is
responsible for complying with the mandatory standards of the Act. Section 57.13015 requires
that all air receivers be inspected by a qualified inspector with records kept available for the
Secretary. The ANFO pot, whether mounted on the pickup truck or on the other blasting rig,
would be subject to this inspection and record keeping requirement. The mine manager is
charged with having knowledge of this provision and complying with it. This requirement,
coupled with the fact that the pot had these gauges on it before it was removed from the
Volvo rig, confirms that Luxbacher, at the very least, should have known this piece of
equipment was an air receiver requiring the two gauges. His claim that it just didn't occur to
him detracts greatly from his credibility. On the other hand, Ratliffs testimony is credible
and establishes that management was aware of this violation. I also find that in addition to
being known to management this violation was knowingly authorized by management.
The danger posed by not having the pressure relief valve in particular is obvious. It is
common knowledge that a contained tank that receives pressurized air, water or gas is subject
to explosion if it becomes pressurized beyond its tolerance level. Safety measures are critical
to prevent this from occurring. The relief valve performs this function. The indicator gauge
would normally also contribute a measure of safety by providing a visual reading of the
pressure in the tank. In this case, however, the tank was reconfigured so that there was no way
to determine its safe working pressure. Knowing how much pressure was in it would not, by
itself, provide sufficient warning of its being over-pressurized, making this violation
additionally aggravated. The danger posed by a tank of this size blowing apart requires little
elaboration. Ex. S-9 p.l-12. The miner loading the tank would be standing within inches of it
during the blasting cycle.
The absence of the gauges was also obvious. Because the two gauges were an
integral and critical component of the tank their absence would be readily apparent to one
using or inspecting the tank. Their absence certainly became apparent to management when
a miner asked management whether the pop-offvalve should be put back on.
The violation existed for two night shifts before Ratliff interceded and this rig was
taken out of service. An explosion of an over-pressurized tank can happen in an instant. Using
this rig for one shift was excessive; two was unfathomable. Had Ratliff not interceded, there
is no doubt it would have been used until the transmission work on the Getman rig was

36 FMSHRC Page 2423

completed. I find the violation, under the specific circumstances of this case, was extensive
and existed for an unreasonably long period of time without any action taken to abate the
violation.
Absent in the record is any evidence of mitigation by the Respondent. The
unwarrantable failure is appropriate.
Order Number 8639932
30 C.F.R. Section 57.14100(b) states "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." This order was written because the inspector found that the ANFO tank
was not properly secured to the truck creating a hazard to persons. Specifically, he recorded
that climbing straps, rope, and a ratchet strap were wrapped around the top of the tank and
had become loose. There was also a loose fitting at the top of the tank through which 120 psi
of air was being pushed.
The violation was marked as reasonably likely to result in a permanently disabling
injury to one person, S&S, and the result of high negligence. Ratliff also found it to be an
unwarrantable failure on the part ofLuxbacher. This standard had been cited six times in the
preceding two years. Ex. S-7. The Secretary proposes a penalty in the amount
of$16,400.00.
The tank was not welded or bolted to the bed of the truck in the usual fashion as
confirmed by Lhoist' s witnesses. Tr. 177, 182. It was held in place by a series of climbing
ropes, regular rope and tightening ratchets. The ends of the ropes were secured with some
fashion of knots which Ratliff described as "granny knots" similarly used to tie shoe laces.
One end of the rope was attached to a tool box in the bed of the truck. Tr. 112. The ratchet
was wrapped around the top of the tank and hooked into itself. Tr. 105-16; Ex. S-3 and Ex.
S-9, photographs. The straps and ropes were loose and the tank moved easily as did the
fittings supplying the pressurized air to the tank, according to Ratliff. The straps and ropes
were soaked in ANFO which could decrease their load bearing capacity and no one Ratliff
spoke at the scene was able to tell him the load rating for the straps and ropes which was of
concern to him as well. Tr. 107, 118. The truck is driven inside the mine creating a danger of
the tank falling out of the truck during transportation injuring persons in the area, in Ratliff's
opinion. Tr. 118-19.
Ratliff reached the conclusion that the condition created a defective piece of
equipment which posed a danger to miners in the event it fell off the truck while moving or
tipped while a miner was leaning against it. Ratliff was aware that the truck had been used
in this manner on the night of the 8th and 9th and was ready to be used again on the 1Oth had
he not interceded. Miners Darrell Haymore, Gregory Parcell, Melvin Whitaker, Jr., and
Steven Chandler, all Lhoist witnesses, confirmed this information. Tr. 172-4; 176-8; 180-2;
185.

36 FMSHRC Page 2424

Lhoist argues that a violation has not been proven. It claims that Ratliff's basis for
concluding defects existed was purely speculative because he was not aware of the load
rating for the climbing straps or whether they would deteriorate or weaken when exposed to
ANFO. He also could not properly identify the type of knot used on the ropes. Resp. 's Br. at
12-13. Luxbacher testified that the McMaster-Carr chart lists nylon as resistant to oil and
grease and therefore these ropes were capable of holding the tank in place. He admitted on
cross- examination that the information given on that website does not say the rope is resistant
to ANFO. In fact, the McMaster-Carr chart Luxbacher referred to states that fibrous nylon
rope material is resistant to rot and mildew; it says nothing about oil and grease. It also states
that all nylon ropes can stretch and lose strength when wet. See www. Mcmaster.com.fibrous
rope material. Luxbacher described the knots Ratliff called "granny knots" as "water knots"
which as a former climber he knows are strong climbing knots. Tr. 212. The water knot,
however, is designed to join two pieces of rope together, not to loop around an object and tie
back onto itself as was done here. It is also known to slip requiring inspection before each use.
In climbing, it is known as the death knot for its fallibility. See www. Wikipedia.com. water
knots. Luxbacher further admitted that he did not know if the ropes used on the pot were used
or new. Tr. 222-3. He was also not aware of their load rating. Tr. 223.
It is not necessary to consult these reference materials, however, to determine that
Ratliffs opinion was far more than speculative. The photographs introduced by the
Secretary make clear to even a lay person, let alone someone familiar with the mining
industry as Ratliff is, that the ANFO pot was rigged up in a make-shift manner. The ropes
and straps were wrapped and looped in a haphazard fashion through and around various
hoses, the framework of the unsecured platform, the tank and other objects in the truck bed.
The ends of the ropes were frayed and damaged. Ex. S-9. Additionally, Ratliff observed
first-hand that the ropes and straps were loose from use and the pot was able to be moved
easily. Although Luxbacher claimed he did not notice the tank was unstable when he
cleaned ANFO off it on the lOth, Steven Chandler, Lhoist's witness, confirmed that the tank
had tilted and had some movement. Tr. 212, 185. Miners Gregory Parcell and Melvin
Whitaker, Jr., testified that they felt bolting and welding the tank was more secure than tying
it with these straps and ropes. Tr. 178, 182. I find Lhoist's argument unpersuasive.
Lhoist also argues that the truck was out of service when Ratliff observed it and there
was no evidence that it would not have been corrected prior to use. I find this argument also
fails. The truck was in the same condition it had been in since management told Haymore and
another miner to rig it up on the 8th. Tr. 172-4. The truck was rigged and ready for use on the
1Oth as well. In fact, it was not until Ratliff found the violations on the 1Oth that the afternoon
shift foreman called Luxbacher to tell him they would need to take it out of service, as
Luxbacher testified.. Tr. 206. Based upon these facts, the truck was available for use and was
not out of service. A piece of equipment can be inspected and cited as long as it is not tagged
out and parked for repairs. Alan Lee Good, an individual doing business as Good Construction, 23
FMSHRC 995, 997 (Sept. 2001). As long as a piece of equipment is available for use, it must
comply with MSHA safety standards. Ideal Basic Indus., Cement Div., 3 FMSHRC 843,844
(Apr. 1981).
Next, Respondent raises the notice requirement. As noted above, this violation would
have been apparent to a lay person. The photographs depict a tower of a tank extending far

36 FMSHRC Page 2425

above the roof of the truck's cab haphazardly looped and tied with frayed ropes and straps tied
to unsecured objects in the bed of the truck. It appears to be off balance without being secured
in all directions. Lhoist states that each of its miners who appeared as witnesses are competent
and experienced and each testified that the tank did not pose a hazard. I recognize that these
witnesses were well aware they were called to support the Respondent's position. I also take
notice of the fact that each of them on cross-examination admitted that they would have been
more comfortable with the tank being welded and bolted to the bed as was done with the
other rigs. I fmd this more telling than their assertions that it was safe. It also bears repeating
that a miner told Ratliff to take a look at the truck when it was parked outside the lunchroom.
Clearly, the miners had concerns for their safety. The standard to be applied here, as
Respondent notes, is whether a reasonably prudent person familiar with the mining industry
would have recognized that the manner in which this tank that was loose and tilting was tied
up posed a hazard and would have removed it from service. La Farge North America, 35
FMSHRC 3497 (Dec. 2013). The answer to that is resoundingly, yes.
S&S
I find this violation was properly marked as S&S. The tank had become visibly loose
and tilted after it was used on two shifts. The truck was used throughout each night shift
driving to and from the faces and the wash down station. Miners leaned up against it and
climbed all around it to pour the ANFO into the top of the pot to ready the shots. Under
continued normal mining operations, had it not been for Ratliff s interception, the straps and
ropes would have continued to loosen and deteriorate. It was reasonably likely that it would
either fall during transportation or fall or tilt when leaned up against or bumped into by a
miner filling the pot. This is in turn would cause a miner to be struck or pushed off balance
causing serious injuries such as head injuries, broken bones, sprains, and cuts.
The gravity is serious and would cause injury to at least one miner.
Negligence/Unwarrantable Failure
The violation was created by management when Luxbacher ordered the pickup truck
to be rigged in the same manner in which it had been in the past. He supplied the straps that
were used but did not determine their load capacity or ensure that only new ones were used. It
was not only apparent to Ratliff that they were loose allowing the tank to move creating an
unsafe condition. Lhoist's witnesses were well aware that the tank was tilting and was not
secured in place. Management did nothing to ameliorate or mitigate the hazard. It acted with
high negligence.
In addition to management creating this obvious and very dangerous hazard to the
miners, Lhoist had been cited seven previous times under this standard putting them on
notice that greater efforts at compliance were necessary. It existed through two night shifts
and was to be used on a third shift. In view of the fact that after two shifts, the ropes and
straps had already loosened allowing the tank to tilt and move easily, the condition existed
for a significant period of time already. Nothing was done in mitigation of this hazard before
the order was issued.
36 FMSHRC Page 2426

Unwarrantable failure is supported by the evidence.
Order Number 869933
In relevant part, 30 C.F.R. § 57.6202(a)(4) requires that all vehicles containing
explosive material have at least two dry-chemical fire extinguishers onboard. This violation
was charged because there was one extinguisher located behind the rear seat in the cab of the
truck. The order was written as reasonably likely to result in permanently disabling injuries
to one miner, S&S with high negligence, and an unwarrantable failure to comply. Ex. S-10.
The proposed penalty is $2,000.00.
The Respondent argues that this standard was not violated because the second
extinguisher was located on the compressor trailer which was attached behind the truck. It
provides no legal basis for this statement.
The language of the standard speaks for itself. It requires the vehicle containing the
explosive material have two extinguishers, not the vehicle including any trailers or other
pieces of equipment that may be attached thereto. The purpose of the standard is to provide
two readily accessible extinguishers as a means of escape in the event of a fire. Two are
required to because there are often two miners operating a blasting rig who may need to
evacuate or suppress a fire. The Safety Standards for Explosives at Metal and Nonmental
Mines, 56 Fed. Reg. 2070, 2078 (Jan. 18, 1991). At hearing, Luxbacher testified that he
"would have thought maybe they would have thrown a second in since they put the ANFO
pot on it. It wasn't something I thought to check for." Tr. 230. It is clear from Luxbacher's
testimony that he was aware of the requirements of this standard but did not care enough to
ensure it was complied with. This violation has been established.
S&S
The Respondent has presented no argument regarding the S&S designation of this
violation. I find that the lack of the second fire extinguisher contributed to a discrete hazard
of the miners not being able to suppress and escape a fire on or near this vehicle carrying
explosive material. Injuries sustained in a fire would be at least permanently disabling. The
event of a fire is presumed in this instance. Consolidation Coal Co., 35 FMSHRC 2326
(Aug. 2013). The S&S nature of the violation has been established.
The gravity is serious and could result in smoke inhalation and burns to the miner
loading the ANFO pot and the miner on the flatbed truck delivering the ANFO at the face.
Negligence/Unwarrantable Failure
Luxembacher displayed a complete and reckless disregard for the safety of the miners
exemplified by his statement that he didn't even think to check the truck for the fire
extinguishers. Clearly, his concern was not for the safety of the miners but was focused on
uninterrupted production of stone. Respondent's claim that he was not aware of the violation,
that it existed for a short period of time and that it was promptly abated is not supported by
36 FMSHRC Page 2427

the credible evidence of record. The importance of the fire extinguishers on a vehicle
containing blasting materials is critical. Luxbacher ordered this truck to be jury rigged for
blasting service. That he did not take it upon himself to make an inspection of the rig before
it was used on October 8th to ensure it complied with all relevant safety standards is
inexcusable. Monthly inspections for fire extinguishers are mandatory and he was aware that
as of the last one this truck had only one onboard. Tr. 225. The danger posed by a fire in the
presence of explosive materials is extremely high. Luxbacher stated that he found ANFO
pellets in and around the pot when it was parked outside the lunchroom which is an area
where smoking allowed. Clearly, Respondent was not enforcing the need to keep the truck
clean. There is no doubt that the truck was still in service and was to be used in its present
condition again on the night of October l0th. Lhoist did nothing to abate this condition.
Ratliff s issuance of the violations is what caused the truck to be taken out of service.
Abatement requires the operator take action to eliminate the hazard before the inspector
discovers the violation. Enlow Fork Mining Co., 19 FMSHRC 5, 17 (Jan. 1997); Utah
Power & Light Co., 11 FMSHRC 1926, 1933-34 (Oct. 1989).
Based upon a totality of the circumstances, I find that high negligence and
unwarrantable failure to comply with the standard are appropriate.
Order Number 8639934
The pickup truck lacked any warning signs that it contained explosive material, in
violation of 30 C.F.R. § 57.6202(a)(5), which requires such warning signs to be visible from
each approach. The narrative portion of the violation includes the statement that Luxbacher
told employees that the signs were not necessary. The gravity is marked as reasonably likely
to result in permanently disabling injuries to one miner, S&S and the result of high negligence
and an unwarrantable failure to comply. Ex. S-13. The proposed penalty is $9,300.00.
The Respondent admits the violation and I find the evidence supports such a finding.

S&S
During the blasting cycle, this truck was brought to the face to load ANFO. Once the
holes drilled in the face were filled with ANFO, the truck would be taken to the next face
where it would perform the same task. At the end of the shift, it would be taken to the 15 East
sump area where the residual explosive material would be washed out. Tr. 39-41. As noted
above, however, cleaning the truck properly was not done and it was found to have ANFO
pellets around the tank when it was parked by the 14 East lunchroom where miners are
permitted to smoke. Tr. 137-8. In Ratliffs opinion, there were sufficient ignition sources
present from cigarettes to pieces of machinery, steel fittings and the tank which could produce
a spark in the presence of the ANFO. All of the elements required for a fire were present. Tr.
145. Without the placards on the truck to identify its contents as explosive, miners would not
be warned to keep burning materials away from it. ANFO is a lower class of explosive
material making an ignition more likely to result in a fire rather than an explosion. Tr. 144.
Because of this Ratliff opined that injuries to a miner would be burns. !d. Contributing to the

36 FMSHRC Page 2428

likelihood of such an accident was the exposure presented by having had this truck in service
for three days. Tr. 143.
I concur with Ratliff s opinion that under continued normal mining conditions it was
reasonably likely given the presence of fuel, air, and spark-producing items that a fire would
occur and injuries sustained would be very serious if not fatal. The S&S assessment has been
established.
I find the gravity of this violation to be serious.
Negligence/Unwarrantable Failure
I find this violation was the result of high negligence and unwarrantable failure for
much the same reasons as in the previous violations. Management directed that the truck be
rigged as a blasting rig performing the normal routine of carrying ANFO to the faces and
then returning to the sump area for cleanup. Tr. 39-41. It had been in service for two shifts
when Ratliff interceded preventing it from being used again on the next shift. Two shifts
was far too long a time considering the grave danger posed by a fire fueled by explosive
materials.
Luxbacher was fully aware that the blasting rig normally used for this task had
reflective warning placards on all four sides. He was asked by a miner if the placards should
be put on the pickup truck and he said it was not necessary. Tr. 148. He attempted to
explain at hearing that he believed the ANFO would be loaded on the truck at the face where
it would be parked behind the blast area sign. He later admitted, however, that he was aware
the truck would move from face to face with ANFO onboard as well as to the cleanout area
which would take it outside the blasting area. Tr. 225-6. He further testified that he
considered the miner's question concerning the placards to be an "inquiry." He explained the
difference between an inquiry and a complaint as follows, "Maybe the attention I give the
matter, maybe give it a little more attention if it is a complaint." Tr. 225. I find his attempts
to downplay the degree of negligence he exhibited underscores his reckless disregard for the
miners' safety.
I find Luxbacher's assertions that he was unaware that the platform was unstable and
unsecured, that the tank was an air receiver necessitating a pressure gauge and relief valve,
that the explosive materials warning signs were necessary, that the truck lacked a second fire
extinguisher or that the straps around the tank and the tank itself were loose to be self-serving
and not credible. This is particularly egregious coming from an individual with a mine
engineering degree from Virginia Tech, a leading institute of higher learning. It is apparent
that production was a far greater priority than safety for the miners. Management
intentionally and knowingly violated each of the mandatory standards herein exhibiting an
unconscionable indifference and complete disregard for its employees.

36 FMSHRC Page 2429

CIVIL PENALTIES
The Commission has reiterated in Mize Granite Quarries, Inc., 34 FMSHRC 1760,
1763- 64 (Aug. 2012):
Section 11O(i) of the Mine Act grants the Commission the authority to
assess all civil penalties provided under the Act. 30 U .S.C. § 820(i). It
further directs that the Commission, in determining penalty amounts, shall
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.
30 U.S.C. § 820(i).
The Commission and its ALJs are not bound by the penalties proposed by the
Secretary nor are they governed by MSHA' s Part 100 regulations, although substantial
deviations from the proposed penalties must be explained using the section 11O(i) criteria.
See Sellersburg Stone Co., 5 FMSHRC 287,293 (Mar. 1983). In addition to considering the
110(i) criteria, the judge must provide a sufficient factual basis upon which the Commission
can perform its review function. See Martin Co. Coal Corp., 28 FMSHRC 247 (May 2006).
The parties have stipulated that the proposed penalties will not affect the operator's
ability to continue in business. They have also stipulated that MSHA Proposed Assessment
Form 1000-179 attached to the Secretary's Petition accurately reflects the operator's size,
total assessed violations for the 24 months preceding the month the citation and orders herein
were issued and the number of inspection days for the same period. The gravity, negligence
and unwarrantable failure to comply with the cited standards are stated within the analysis of
each of the violations above. I have taken into account the deterrent effect of civil penalties in
comparison to the size of the operator and its overall resources in making this decision. See
Sec y v. Thunder Basin Coal Co., 19 FMSHRC 1495, 1505 (Sept. 1997).

36 FMSHRC Page 2430

Having considered the six statutory criteria, I assess the following penalties:
Citation No. 8639930 - $11,900.00
Order No. 8639931 -$4,440.00
Order No. 8639932- $16,400.00
Order No. 8639933 - $2,000.00 (This is a single order in Docket No. VA 2013-169)
Order No. 8639934- $9,300.00

ORDER
Lhoist is ORDERED to pay a total penalty of$44,040 within 30 days of the date of this
order.6

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

Distribution List:
Willow E. Fort, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street,
Ste. 230, Nashville, TN 37219-5321
Charles H. Morgan, Alston & Bird, LLP, One Atlantic Center, 1201 West Peachtree Street,
Atlanta, GA 30309-3424

6

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.

36 FMSHRC Page 2431

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9958 / FAX: 202-434-9949

September 8, 2014
SECRETARY OF LABOR, MSHA,
on behalf of KENNETH P. LEAR, JR.,
Complainant

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. KENT 2014-708-D
MADI-CD 2014-22

v.
KENAMERICAN RESOURCES, INC.,
Respondent

Mine: Paradise #9
Mine ID 15-17741

DECISION
AND
ORDER OF TEMPORARY REINSTATEMENT
Appearances: Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for Complainant,
R. Lance Witcher, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, PC,
St. Louis, Missouri, for Respondent.
Before:

Judge Zielinski

This matter is before me on an Application for Temporary Reinstatement filed by the
Secretary of Labor on behalf of Kenneth P. Lear, Jr., 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 an order
requiring Respondent, Kenamerican Resources, Incorporated, to reinstate Lear as an employee,
pending completion of a formal investigation and final order on the complaint of discrimination
he has filed with the Secretary’s Mine Safety and Health Administration (“MSHA”). A hearing
on the application was held in Madisonville, Kentucky, on August 29, 2014.1 For the reasons set
forth below, I grant the application and order Lear’s temporary reinstatement.

1

The hearing was held on the Friday before the Labor Day weekend and the transcript
was not received until Tuesday, September 2, 2014, which left limited time within which to issue
this decision within the time specified in Commission rules. 29 C.F.R. § 2700.45(e)(1). Under
these circumstances, I deem it necessary to extend the time for issuance of the decision one work
day.

36 FMSHRC Page 2432

Findings of Fact and Conclusions of Law
Overview
Kenamerican operates the Paradise #9 mine, a large underground coal mine, located in
Muhlenberg County, Kentucky. Lear worked as a belt mechanic, performing maintenance and
repairs on conveyor belts and repositioning belts as needed in the development of the mine. He
worked the day shift, 7:00 a.m. to 3:00 p.m., and generally worked six days a week, Monday
through Saturday. Miners that are scheduled to work are required to appear in time to dress and
go underground and, if not, they are to call in to the mine’s dispatch office before their scheduled
reporting time and report that they will be late or will not be working. If their absence is not
excused, they receive an “occurrence” which can lead to disciplinary action. Under Kenamerican
policy, as explained in its employee handbook, a miner who does not appear, or call in, for two
successive days, is considered to have resigned. A miner who walks off the job is also
considered to have resigned.
Lear failed to call in or appear for his shift on Saturday, April 26, 2014. When he
reported for work on Monday, April 28, he had a confrontation with Jeffery Todd Mackey, the
belt coordinator. Lear claims that Mackey gave him a work assignment that would have created a
hazardous condition, disruption of mine ventilation currents, which he refused to perform.
Mackey then questioned him about his failure to appear on April 26. The exchange became
heated, and Lear eventually left the mine and went home. He did not call in to the mine’s
dispatcher or report for work on Tuesday, April 29, and did not call in on Wednesday, April 30.
He came to the mine on the morning of April 30, spoke to Ron Winebarger, Kenamerican’s
human resources manager, and was told that his employment had been terminated.
On June 11, 2014, Lear went to MSHA’s District 10, Madisonville, Kentucky, field
office and filed a complaint alleging that he had been discriminated against when he was
discharged. He identified Mackey and Winebarger as the persons responsible for the
discriminatory action, which was described in the complaint as follows:
I had been instructed to work in unsafe conditions on numerous occasions, I
finally told them no and lost my temper. We had heated words and I was later
fired. I am requesting my job back and loss[sic] pay and benefits restored to me.
The Secretary investigated the complaint and, on August 11, 2014, filed an Application
for Temporary Reinstatement on Lear’s behalf. Kenamerican timely requested a hearing.
The Witnesses
Kenneth Lear
Lear was the sole witness called by the Secretary. He had worked as a belt mechanic at
the Paradise #9 mine for five years, and reported to his foreman, Jason Durham. One of the
major tasks performed by belt mechanics was moving belt head drives to other locations in the
mine. It is a lengthy process that requires breaking down, or disassembling, the major
components of the drive, and using a scoop to transport or drag them to the new location. Most
of the head drive moves were done by Lear and Durham on the day shift.
36 FMSHRC Page 2433

Moving a belt head drive often required travel through locations served by different
ventilation air currents, i.e., intake, neutral or return. Equipment moves between such areas
involved passing through an airlock – two sets of doors that separated the different air flows. The
approach set of doors would be opened, the equipment would be driven into the space between
the doors, those doors would be closed, the second set of doors would be opened, and the
equipment would be driven out into the new area. Lear testified that smaller parts of the head
drive could be moved through the airlock successfully. However, the major component could
not, because it was too large. The scoop would reach the second set of airlock doors before the
towed piece of equipment cleared the first set of doors. Tr. 16. If both sets of doors were opened
simultaneously, ventilation air currents would short circuit, disrupting ventilation to the working
sections, exposing three crews of miners to respirable dust and potential accumulations of
methane. James Nichols, a Kenamerican safety official, was present one day when Lear was
about to open a second set of doors while the first set remained open. Nichols told him that “if
you value your job, don’t open those doors.” Tr. 17. He added that, if he caught Lear opening
both sets of doors, he would be fired. Tr. 17.
Lear confirmed that there were alternative ways to move a belt head drive. It could be
pushed into the airlock and pulled out by a different piece of equipment, or it could be dragged
all the way out to the bottom mine entrance and then taken in through the intake airway.
However, he had been told that he couldn’t drag the drive out and back in the intake, and that
when he suggested pushing the drive into the airlock, was told that there was not enough
manpower or equipment to do it that way. Tr. 41-42. He testified that, subsequent to the Nichols
incident, he had moved drives through an airlock with both sets of doors open, while a foreman
monitored the location of safety personnel with his “text pager” to assure that they were not in
the area.2 Tr. 42-43, 57.
As noted above, miners in the belt department, including Lear, worked six days a week,
Monday through Saturday. According to Lear, as an outby worker, he “couldn’t get a weekend
off - couldn’t buy one.” Tr. 54. Occasionally, Lear and Durham worked out a “switch,” to allow
them to take Saturday off, e.g., by doubling up a weekday shift, or working Sunday. Tr. 53-54.
Lear had applied for and been approved to take vacation days on Thursday, April 24, 2014, and
Friday, April 25, 2014. He was scheduled to work on Saturday, April 26, but did not report that
day, and did not call in to advise that he would not be coming in. Tr. 39, 54.
On Monday, April 28, Lear reported for work at his regular time, a little before 6:00 a.m.
He encountered Mackey outside the bathhouse/office building. He testified that the confrontation
began when Mackey instructed him to move a belt drive to the #1 unit. Tr. 14. Lear had broken
the belt drive down the previous week. Tr. 41. Lear asked him which scoop to use, and Mackey
replied “I don’t know, you figure it out.” Tr. 19. They had “other words,” and Lear told Mackey
that “federal (an MSHA inspector) is underground, safety (Nichols) is underground, I can’t go
2

Underground miners are required to wear a disk-shaped electronic tag that allows their
location in the mine to be tracked. Through use of a text pager the location of a particular person
can be determined. Tr. 20-21.

36 FMSHRC Page 2434

through them doors.” Tr. 19-20. Mackey told him to “look them up on your text pager, see where
they’re at, and then go do your job.” Tr. 20. After Lear had made clear that he would not move
the belt drive. Mackey asked him where he was on Saturday, when he was supposed to have
worked. Lear, who was angry, responded that he was “at the f-ing house.” Tr. 21-22. Mackey
pressed the issue, and Lear told him to do his job - “give me an [occurrence] and leave me
alone.” Tr. 24. In the course of the exchange, Lear told Mackey that they could “settle it right
here,” and that he would “kick [Mackey’s] midget m-f-ing ass.” He made numerous threats to
get into a fight with Mackey.
Tr. 36.
Lear turned away, stepped into the section foremen’s office briefly, came back out and
had another exchange with Mackey, who then left the area. While in the foremen’s office, Lear
asked James Pendergraff, a shift foreman, if he had any work for him. Pendergraff told him he
couldn’t give him anything, that he had to talk to Jeffrey Rideout, the production coordinator at
the time. Tr. 24. Lear asked Rideout if he had work, and told him he wanted to leave the belt
department. Rideout, who had heard part of the exchange between Lear and Mackey, responded
that Lear couldn’t speak to management that way, and that he had nothing for him. Tr. 25. Lear
went back outside and had a few more words with Mackey. Mackey and William Piper, another
miner who was in the area, left the scene. Lear, who then had nothing to do, went to the locker
room, talked briefly with some miners there, put up his tool belt and hard hat and went home. Tr.
28.
Lear described a heated exchange between he and Mackey, during which Mackey raised
his voice, pointed a finger in his face and got in his face. However, he conceded that Mackey,
who was a Baptist preacher, did not cuss or swear. Tr. 21, 35. Rather, he described Mackey as a
“smartaleck” who had a condescending manner that aggravated him. “He treats you like your
stupid when you’re working for him. He’s the smart one, you’re the dumb one, and you’re going
to do what he says or you’re going to have a problem with Todd Mackey.” Tr. 53.
Lear stated that there were two persons in the area of the confrontation, and that Rideout
stuck his head out the door of the mine foremen’s office briefly. He also stated that Piper was
present when Mackey and he discussed the work assignment. He denied that another miner,
Jeffery Sullivan, who he considered a friend, was there, stating that he was in the bathhouse.
Tr, 37. He spoke with Sullivan when he went to the locker room. Sullivan asked what he was
doing and urged him not to leave. Lear replied that he was going home. Tr. 44. Lear denied
telling Sullivan or Piper that he was quitting his job. Tr. 44. He also did not recall talking to
Pendergraff more than once on the 28th, and did not believe that he told him that he’d had
enough, and was quitting. Tr. 43.
Lear did not report for work on Tuesday, April 29, and did not call in to the dispatch
office to report that he would not be coming in. Tr. 45, 48, 50. Lear testified that he placed two
calls to the mine on April 29, in an effort to speak to Winebarger. He was connected to
Winebarger’s phone, but Winebarger did not answer. The calls were transferred to Winebarger’s
voicemail, but Lear did not leave a message on either occasion. Tr. 28-29, 49. Lear did not
report for his regular shift assignment on Wednesday, April 30, and did not call the dispatcher to
so advise. Tr. 29, 48. He did travel to the mine on the morning of April 30, to speak to

36 FMSHRC Page 2435

Winebarger. He wasn’t sure what time it was, but thought it may have been around the time his
shift would have started. Tr. 50. As he was walking toward the office, he met Pendergraff, who
told him not to take things out of his locker, that he would go with him to talk to Winebarger and
try to save his job. Tr. 47. However, he stated that Pendergraff “went his way. I went mine.” Tr.
47. When he spoke to Winebarger, he asked about his job, and indicated that he wanted another
assignment. Tr. 30. Winebarger told him that the mine superintendent had heard of the conflict
and that Lear was to be fired. Tr. 30. Lear apologized for what happened, turned in his tools and
safety equipment, took his property, and left the mine. Tr. 30-31.
Lear later filed a claim for unemployment compensation. He testified that he told the
State agency that the confrontation with Mackey was about his being absent on that Saturday.
Tr. 52. However, he also stated that the work assignment was part of it, but, that the “referee”
didn’t understand what an airlock door was, said that it didn’t pertain to their case, and that they
didn’t want to hear what he had to say. Tr. 54.
Jeffery Todd Mackey
Mackey is the belt coordinator at Kenamerican, and has worked there for 10 years. The
belt mechanics report to belt foremen, who report to him. If the belt foremen aren’t around, he
tells the men what to do. The belt department works weekends, basically six days per week,
including every Saturday. Lear was scheduled to work on Saturday, April 26, but did not appear
and did not call in. Tr. 75. On Monday, April 28, he encountered Lear outside the
bathhouse/section foremen’s office, greeted him, engaged him in general conversation, and
asked him where he was on Saturday. Tr. 77. He was getting ready to do time sheets, and wanted
to clarify Lear’s status on Saturday. He had not yet spoken to Durham, Lear’s belt foreman, and
did not know whether Durham and Lear had worked out an alternative work schedule. Tr. 77-78.
Lear got mad, and responded that he had “told you all a month ago that I ain’t working every
Saturday.” Tr. 79. Mackey said, “OK, I need to know what to put on the time sheet,” and started
walking toward his office. Lear went toward the bathhouse. When he reached the top step, he
stated, “I don’t have to put up with this mess – I’ll tell you what, I can take care of this right now
– I’ll stomp your midget [ass] right here.” Tr. 80. He went into the building for a minute, then
came back out and said, “Let’s take care of this right here. I ain’t puttin up with this. I’m tired of
your f-ing mouth.” Tr. 80. Mackey asked him “what’s wrong with you?” Lear replied that he
“ain’t putting up with this,” and went into the bathhouse. Tr. 80. Mackey stated that he did not
give a work assignment to Lear, and had not gotten to that part of his job yet. Tr. 77, 82. He did
his time sheet, and prepared to go underground.
Two miners, Sullivan and Piper came up to him and said, “You need to talk to Kenny –
he’s quitting.” He replied that he couldn’t help that, Lear was grown man, and he couldn’t stop
him. Tr. 82-83. Mackey denied raising his voice during his interaction with Lear, and professed
that he was upset at losing him, because he was “probably the best belt man I had.” Tr. 87. He
had seen Lear get angry before, with other miners, and express frustration with work. He usually
got over it pretty quick, and Mackey had been able to talk him out of leaving. Tr. 94-95.
Mackey confirmed that Nichols had caught Lear in the process of opening both sets of
doors of an airlock. He also confirmed that opening both sets of doors would probably disrupt

36 FMSHRC Page 2436

the mine’s ventilation system. Tr. 84-85. He denied holding airlock doors open while equipment
was driven through, or ordering miners to do so. Tr. 85-86. Mackey testified that, if the head
drive was broken down properly, all of the components could be moved through an airlock with
a scoop, without requiring that both sets of doors be opened at the same time. He also explained
that there were alternative means to move a head drive, it could be pushed into the airlock, and
then pulled out the other side by a different piece of equipment. It could also be dragged out to
the bottom entrance of the mine and back in the intake air current. Tr. 85-86, 92.
Jeffery Sullivan
Sullivan is a belt mechanic who worked for Mackey. He likes Lear “very much” and
considers him a friend. Tr. 59-60. He noticed something going on outside the bathhouse between
Lear and Mackey, and walked up to observe. Tr. 64-65. When he was about 10 feet away, he
heard Mackey ask Lear where he was on Saturday. Lear said he wasn’t working every Saturday,
and he was tired of it. Lear asked Rideout if he had another job for him, and Rideout said he
didn’t. Lear then stated, “If they ain’t got nothing else better for me to do, I don’t want to be
here.” Tr. 60. While he wasn’t sure of the exact words, he recalled that Lear told Rideout, “I
quit,” after he said he didn’t have any work for him. Tr. 61. He had some conversation with Lear,
along the line that he hated to see him go, but did not recall what was said. Tr. 62. He did not see
Mackey get into Lear’s face or stick a finger in his face, and has never witnessed Mackey yelling
or cursing at employees, pointing fingers in their faces or getting into their faces. Tr. 62. He did
not overhear any discussion between Lear and Mackey about job assignments. Tr. 61-62.
James Pendergraff
Pendergraff is a shift foreman, who has worked at Kenamerican for over 19 years. He
testified that he did not witness the confrontation between Lear and Mackey on April 28. He saw
Lear walking toward the parking lot. He was surprised, because he had already checked Lear in
as a person working underground that day, and asked him, “What are you doing?” Tr. 109-10.
Lear responded, “I’ve had enough. I quit. I’m out of here. I quit.” Tr. 111. Pendergraff did not
respond, and Lear left the mine site. He denied talking with Lear earlier on the 28th, or that Lear
asked him if he had another job he could do. Tr. 112..
Jeffrey Rideout
Rideout, has worked at Kenamerican for eight years, and was its production coordinator
at the time. He was in the section foremen’s office on the morning of the 28th, and heard
“clamoring” going on, “arguing back and forth.” Tr. 67. Lear came in, abruptly turned, and went
back out. As he turned, he said, “I’ll tell you what I can do. I can kick your midget f-ing ass.” Tr.
67. The words were directed at Mackey, and it appeared that he was trying to initiate a fight. Tr.
68. Mackey was outside. He replied, “What, Bud, what are you upset about?” Tr. 68. Mackey did
not seem to be upset, and his voice was not raised compared to Lear’s. Tr. 70. Rideout thought
things were calming down. Lear came into the office a little later, and said to Rideout, “Do you
have anything for me? I can’t work for that m-f-er.” Rideout responded, “No, Kenny, you cannot
talk to a manager at this coal mines like that. And, no, I don’t have anything for you.” Tr. 69.
Rideout went about his business, and had no further involvement.

36 FMSHRC Page 2437

Ronald Winebarger
Winebarger is Kenamerican’s human resources manager. He generally comes into work
early, and walks around outside the bathhouse/office area, in an effort to make himself available
to the men. Tr. 101. He did not witness the April 28th confrontation between Lear and Mackey.
He explained that under Kenamerican’s policy, as explained in its employee handbook, a person
who walks off the job is considered to have resigned. In addition, a person who fails for two
consecutive days to report for work, or call in to the mine’s dispatcher prior to the start of his
shift, is considered to have resigned. Tr. 98-99. He was at work on April 29. There are a number
of ways for callers to leave messages for him, including voicemail and paper notes recorded by
office staff. Callers can also obtain his cell phone number from the dispatch office. He was not
aware of any attempts by Lear to call him, or leave a message, on April 29.
At the beginning of the day on Wednesday, May 30, Winebarger contacted
Kenamerican’s corporate office and advised that Lear was “terminated.” Tr. 107. “Because he
was a second day no call, no show. So I immediately - - e-mailed the corporate people and told
them that he was no longer employed, he had resigned his position.” Tr. 107. Lear came to his
office about 8:00 a.m. Winebarger had not seen Lear at the mine earlier that day. Tr. 101. Lear
said. “Well, I guess I’ve messed up, haven’t I?” Winebarger replied, “Yeah, Kenny, you know
you messed up.” He said, “Well, I just wanted to see what I could do as far as, you know, maybe
going back to work.” Winebarger said, “Well, Kenny, you resigned your job. I mean, you walked
off the job. You quit.” Tr. 101. Lear “sort of acknowledged” that with his body language.
Winebarger asked why Lear waited until Wednesday to come in, and he replied that he was “too
mad” and needed “time to cool down.” Tr. 102.
The Applicable Law
Section 105(c)(2) of the Act, 30 U.S.C. § 815(c)(2), provides, in pertinent part, that the
Secretary shall investigate a discrimination complaint “and if the Secretary finds that such
complaint was not frivolously brought, the Commission, on an expedited basis upon application
of the Secretary, shall order the immediate reinstatement of the miner pending final order on the
complaint.” The Commission has established a procedure for making this determination.
Commission Procedural Rule 45(d), 29 C.F.R. § 2700.45(d), states:
The scope of a hearing on an application for temporary reinstatement is limited to
a determination as to whether the miner’s complaint was frivolously brought. The
burden of proof shall be upon the Secretary to establish that the complaint was not
frivolously brought. In support of his application for temporary reinstatement, the
Secretary may limit his presentation to the testimony of the complainant. The
respondent shall have an opportunity to cross-examine any witnesses called by
the Secretary and may present testimony and documentary evidence in support of
its position that the complaint was frivolously brought.
“The scope of a temporary reinstatement hearing is narrow, being limited to a determination by
the judge as to whether a miner’s discrimination complaint is frivolously brought.” Sec’y of
Labor on behalf of Price v. Jim Walter Resources, Inc., 9 FMSHRC 1305, 1306 (Aug. 1987),
aff’d, 920 F.2d 738 (11th Cir. 1990).
36 FMSHRC Page 2438

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).
The “not frivolously brought” standard has been equated to the “reasonable cause to believe”
standard applicable in other contexts. Jim Walter Resources, Inc., 920 F.2d at 747; Sec’y of
Labor on behalf of Bussanich v. Centralia Mining Company, 22 FMSHRC 153, 157 (Feb. 2000).
While an applicant for temporary reinstatement need not prove a prima facie case of
discrimination, it is useful to review the elements of a discrimination claim in order to assess
whether the evidence at this stage of the proceedings meets the non-frivolous test. In order to
establish a prima facie case of discrimination under Section 105(c) of the Act, a complaining
miner bears the burden of establishing (1) that he engaged in protected activity; (2) that he
suffered adverse action; and (3) 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,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).
Protected Activity
A miner’s ability to complain about safety issues is a fundamental right afforded and
protected by the Act. Complaints made to an operator or its agent of “an alleged danger or safety
or health violation,” is specifically described as protected activity in section 105(c)(1) of the Act.
30 U.S.C. § 815(c)(1). In addition, the Commission and the courts have recognized that,
although not explicitly stated in the Act, a miner’s refusal to work in conditions that he
reasonably believes in good faith to be hazardous is also activity protected under the Act. See
Bryce Dolan, 22 FMSHRC 171, 176-77 (Feb. 2000), and cases cited therein.
The Secretary presented evidence, testimony by Lear, that he refused to perform an
assigned task that he believed would have created a hazardous condition, i.e., disruption of
ventilation on the working sections which would have exposed three crews of miners to
excessive dust and the potential accumulation of methane. There does not appear to be a dispute
that opening both sets of airlock doors at the same time would disrupt ventilation of the mine.
While there is a dispute as to whether it was necessary to simultaneously open both sets of doors
to move the belt head drive through the airlock, Mackey confirmed that there had been a prior
incident where the safety department had taken issue with Lear’s attempt to do so. There was
also evidence, through Lear, that simultaneous opening of both sets of airlock doors was not an
infrequent practice associated with movement of belt head drives.
There is a direct conflict in the evidence as to whether or not Lear was given an
assignment to move the head drive, prompting his concerns about safety and his exposure to
possible disciplinary action. Lear testified that he was given the assignment, and Mackey
testified that no such assignment was given. Other witnesses to portions of their exchange did
not hear a discussion of work assignments. However, those witnesses did not claim to have

36 FMSHRC Page 2439

witnessed the entire encounter. Lear identified one individual who he claimed was present when
the work assignment was given. However, that person was not called as a witness. Whether or
not he had been interviewed in MSHA’s preliminary investigation of Lear’s complaint is
unknown.
It is well-established that the purpose of a temporary reinstatement proceeding is to
determine whether the evidence presented by the Secretary establishes that the complaint is not
frivolous, not to determine “whether there is sufficient evidence of discrimination to justify
permanent reinstatement.” Jim Walter Resources, Inc., 920 F.2d at 744. “It is ‘not the judge’s
duty, nor is it the Commission’s, to resolve the conflict in testimony at this preliminary stage of
the proceedings.’” Sec’y of Labor on behalf of Williamson v. CAM Mining, LLC., 31 FMSHRC
1085, 1088 (Oct. 2009) (quoting Sec’y of Labor on behalf of Albu v. Chicopee Coal Co.,
21 FMSHRC 717, 719 (July 1999). See also Sec’y of Labor on behalf of Billings v. Proppant
Specialists, LLC, 33 FMSHRC 2383, 2385 (Oct. 2011) (resolving conflicts in the testimony, and
making credibility determinations in evaluating the Secretary’s prima facie case, are simply not
appropriate at this stage in the proceeding).
The Secretary presented evidence that Lear engaged in protected activity. That evidence
is sufficient to establish that this element of Lear’s discrimination complaint is not frivolous.
Resolving the testimonial conflict in this proceeding would be inappropriate and contrary to
established precedent, which counsel for Kenamerican recognized at the close of the hearing.
Tr. 118.
Adverse Action
Kenamerican contends that it is clear that Lear resigned, that there is no colorable claim
that he was discharged, and that temporary reinstatement must be denied, citing Sec’y of Labor
on behalf of Bussanich v. Centralia Mining Co., 22 FMSHRC 153 (Feb. 2000). Whether
Bussanich had quit, or had been terminated was hotly contested. However, Bussanich had done
several things subsequent to his departure that were consistent with his having quit his job. He
deposited his final pay and vacation pay checks; voluntarily participated in a telephonic exit
interview; made several calls about obtaining the proceeds of his 401(k) account; signed and
returned an exit interview check list without protest; and accepted the proceeds of his 401(k)
account which he needed to satisfy outstanding business obligations. On the “unusual facts” of
that case, three Commissioners affirmed the ALJ’s determination that there was no colorable
claim that Bussanich had been discharged, i.e., that he had suffered adverse action. Two
Commissioners dissented, believing that evidentiary conflicts on that issue should not have been
resolved at the temporary reinstatement stage of proceedings. As discussed below, the facts of
this case are significantly different than those in Bussanich.
It is not entirely clear how or why Lear’s employment with Kenamerican was terminated.
Lear testified that Winebarger told him that the mine superintendent had heard about the
“conflict” and directed that he be terminated. It would not be unusual for a miner who admittedly
cursed and threatened a supervisor to be discharged. While Winebarger did not assert that Lear
was discharged for disciplinary reasons, there were no employment records introduced that
purported to specify the reason that Lear’s employment ended. If Lear was discharged, a host of

36 FMSHRC Page 2440

issues might have to be explored, including, whether his conduct was provoked by his being
directed to perform an unsafe work assignment, and whether his discharge was consistent with
company policy and treatment of other similarly situated employees. See Sec’y of Labor on
behalf of Bernardyn v. Reading Anthracite Co., 23 FMSHRC 924 (Sept. 2001).
Winebarger testified that Lear had been terminated by the time he saw him around 8:00
a.m. on Wednesday, April 30, because, pursuant to the two-day, no call, no show policy, he was
considered to have resigned. Lear had not reported for work or timely called in to the dispatch
office on Tuesday, the 29th, although he did claim to have placed two calls to Winebarger’s
office. He did not call the dispatcher’s office prior to the start of his shift on April 30. He came
to the mine that morning, but wasn’t sure of the time. Winebarger did not see him until about
8:00 a.m., one hour after his shift would have started. There was no evidence as to how strictly
Kenamerican’s aforementioned policy has been applied, or whether its application to Lear was
consistent with past practice.3
When Winebarger explained to Lear why he was no longer employed, his primary
reference was to the other prong of Kenamerican’s “assumed resignation” policy, i.e., that Lear
had resigned because he had “walked off the job. You quit.” Tr. 101. Winebarger did not explain
why, if Lear’s employment had been terminated for that reason, he waited two days, until April
30, to “immediately” contact the corporate office. Lear left the mine site on Monday,
April 28, and there is no evidence that Kenamerican took any action that indicated that Lear was
considered to have resigned as of that time. If so, issues of constructive discharge and
provocation might have to be addressed.
Lear is alleged to have told several people that he “quit.” He denied using that term, and
his actions were arguably inconsistent with an intention to quit. When he left, angrily, on April
28, he returned his tools and other equipment to his locker. He did not return his tools and
personal protective equipment to Kenamerican or remove his personal property until after
speaking with Winebarger on April 30. His appearance at Winebarger’s office to inquire about
his job status and see if he could get a different assignment was also arguably inconsistent with
an intention to quit, although it could also be construed as evidencing a change of heart.
As with Lear’s claim of having engaged in protected activity, there is conflicting
evidence on whether he voluntarily left his job, or whether his employment was terminated
against his wishes. The evidence establishes a colorable issue that Lear suffered adverse action.
Nexus Between Protected Activity and Adverse Action
The Commission has frequently acknowledged that it is very difficult to establish “a
motivational nexus between protected activity and the adverse action that is the subject of the
complaint.” Sec’y of Labor on behalf of Baier v. Durango Gravel, 21 FMSHRC 953, 957 (Sept.
1999). Consequently, the Commission has held that “(1) knowledge of the protected activity;
In Bussanich, the ALJ also considered whether Centralia discriminatorily failed to
rehire the miner who had quit his job. Winebarger testified that Kenamerican can rehire miners
who have resigned. It does not appear that such an option was discussed with Lear.
3

36 FMSHRC Page 2441

(2) hostility or animus towards the protected activity; and (3) coincidence in time between the
protected activity and the adverse action” are all circumstantial indications of discriminatory
intent. Id.
Here, the alleged adverse action, whether it was discharge, constructive discharge, or
termination, closely followed Lear’s claimed protected activity. There is a more than ample
nexus between the claimed protected activity and the adverse action to raise a colorable issue
that it was motivated, at least in part, by the protected activity.
Conclusion
Every element of Lear’s discrimination complaint is contested by Kenamerican. It
introduced substantial evidence that Lear did not engage in protected activity, that he did not
suffer adverse action, and that his employment was terminated for a legitimate
non-discriminatory reason. It may eventually prevail on any or all of those issues. At this stage
of the proceedings, however, they cannot be finally resolved.
The legislative history of the Mine Act indicates that section 105(c)’s prohibition against
discrimination is to be construed expansively to assure that miners will not be inhibited in any
way in exercising any rights afforded by the legislation, and that Congress clearly intended that
employers should bear a proportionately greater burden of the risk of an erroneous decision in a
temporary reinstatement proceeding. Congress intended that the benefit of the doubt be with the
employee, rather than the employer, because the employer stands to suffer a lesser loss in the
event of an erroneous decision, since he retains the services of the employee until a final
decision on the merits is rendered. Sec’y of Labor on behalf of Rodriguez v. C.R. Meyer and Sons
Company, 35 FMSHRC 811, 814 (Apr. 2013), citing Jim Walter Resources, 920 F.2d at 748,
n.11.
The U.S. Court of Appeals for the Eleventh Circuit has described the test for whether the
Secretary has established that a claim of discrimination was not frivolous as follows:
If the evidence produced by the Secretary viewed in the light
most favorable to the claimants, together with all inferences that
can be made in favor of claimants, would reasonably support a
finding that claimants had established a prima facie case, the claim
cannot be said to be frivolous.
Drummond Company, Inc. v. FMSHRC and Secretary of Labor on behalf of Owens, (11th
Circuit No. 02-14394, May 9, 2003) (unpublished opinion at 6).
The temporary reinstatement provision of the Mine Act is heavily weighted in favor of
the miner, who can be restored to his job, often in areas where employment opportunities are
limited, pending the investigation and resolution of his discrimination complaint. If the Secretary
determines that the claim lacks merit, an order of temporary reinstatement is promptly vacated. If
the Secretary determines to pursue a formal complaint of discrimination before the Commission,
the “temporary” relief could extend for years while the discrimination case proceeds through

36 FMSHRC Page 2442

decision at the ALJ level, and potential appeals to the Commission and/or the courts.4
Here the protected activity claimed by Lear, his refusal to perform a task that would have
resulted in a hazardous condition, is supported only by his testimony. Substantial evidence,
testimony by other witnesses, and excerpts from records of the proceedings on his
unemployment compensation claim, weigh against his testimony. There may be, as in Bussanich,
cases where a claimant’s testimony may not be sufficient to establish that the claim is not
frivolous. Here, there are “loose ends” that justify granting of the application, although arguably
not by a wide margin. Completion of the Secretary’s investigation of the complaint should
clarify areas of ambiguity and allow an informed determination of whether to initiate a formal
claim of discrimination on Lear’s behalf. Under section 105(c)(3) of the Act, the Secretary’s
determination is to be made on or before September 9, 2014.
I find that the Secretary has established that Lear’s claim of discrimination is not
frivolous.
ORDER
The Application for Temporary Reinstatement is GRANTED. Kenamerican Resources,
Inc., is ORDERED to reinstate Lear to the position that he held prior to April 30, 2014, or to a
similar position, at the same rate of pay and benefits, IMMEDIATELY ON RECEIPT OF
THIS DECISION.

/s/ Michael E. Zielinski
Michael E. Zielinski
Senior Administrative Law Judge

Distribution (Certified and electronic Mail):
Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37215
Kenneth P. Lear, Jr., 235 Bruce Lane, Breman, KY 42325
R. Lance Witcher, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, PC, 7700 Bonhomme
Avenue, Suite 650, St. Louis, MO 63105
4

See, e.g., Sec’y of Labor on behalf of Williamson v. CAM Mining, LLC, 31 FMSHRC
1187 (Sept. 2009) (ALJ) (Application for Temporary Reinstatement denied); rev’d temporary
reinstatement ordered, 31 FMSHRC 1085 (Oct. 2009); Sec’y of Labor on behalf of Williamson
v. CAM Mining, LLC, 33 FMSHRC 1980 (Aug. 2011) (ALJ) (Complaint of Discrimination
dismissed).

36 FMSHRC Page 2443

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9958/ FAX: 202-434-9949

September 8, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. SE 2012-101-M
A.C. No. 31-02224-270791

v.
PICKETT MINING GROUP,
Respondent

Mine: Pickett Mining Group

DECISION AND ORDER
Appearances:

Yasmin K. Yanthis-Bailey, Esq. U.S. Department of Labor, Office of
the Solicitor, Atlanta, GA, for the Petitioner
Jeff Pickett, New London, NC, for the Respondent

Before:

Judge Rae

This case is before me upon a petition for assessment of a civil penalty under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d) (the Mine
Act). The Respondent was issued a single citation for an alleged violation of30 C.F.R. §
56.14107(a) for failure to guard the fan blades and alternator drive belt on a Ford tractor that
was allegedly parked on a mine access road. The Secretary of Labor proposed a penalty of
$121. A hearing was held in Charlotte, North Carolina on May 6, 2014. The parties submitted
post-hearing briefs, which I have considered in rendering this decision.
For the reasons set forth below, I find that the Mine Safety and Health Administration
(MSHA) lacks jurisdiction over the cited Ford tractor, and accordingly I vacate the citation.
Summary of Evidence and Findings of Fact
Jeff and Tina Pickett operate a recreational campground and "pan for gold" business
called Cotton Patch Gold Mine on a piece of property in New London, North Carolina. Tr. 5.
On the same piece of property, Mr. Pickett runs a commercial gold mining business called
Pickett Mining Group. Tr. 5. Pickett Mining Group employs several miners and has operated
a single open-pit gold mine on the New London property since about 2008. Tr. 75, 86. The
mine formerly was active about three or four months out of the year, but apparently the
commercial pit is now abandoned. Tr. 50, 84-5.

36 FMSHRC Page 2444

The parties do not dispute that Pickett Mining Group is covered under the Mine Act.
MSHA regularly inspects Pickett Mining Group's worksite, which includes the commercial
pit, the mill site, an explosives magazine, and half of a fuel shed that is shared between
Pickett Mining Group and Cotton Patch. By contrast, MSHA does not claim jurisdiction
over Cotton Patch or over any part of the recreational side of the New London property. Tr.
18.
The Citation
On September 14, 2011, MSHA Inspector Cecil W. Worrell, Jr. 1 conducted a regular
inspection of Pickett Mining Group's mine. Tr. 9-10; Ex. S-1. The mine was idle on the day
of the inspection. Tr. 10, 13. The only employee present when Worrell arrived was Ronnie
Crook, who identified himself as the lead man and plant operator who was in charge of the
mine when Mr. Pickett was away. Tr. 10, 26-7. Mr. Pickett later arrived at the mine site to
join the inspection party, which also included Inspector David Nichols ofMSHA's Staunton,
Virginia field office.2 Tr. 11.
During the inspection, Worrell observed a "Ford 8N tractor" with unguarded fan
blades and an unguarded alternator drive belt sitting on a road on the New London property
near the explosives magazine, where Crook had parked it. Tr. 12-14; Exs. S-1, S-3. A bush
hog mower was attached to the tractor. Tr. 17. Inspector Worrell believed that the tractor,
which was "rather an old model" without an automatic shutoff mechanism, presented a lossof-limb hazard to any miner who might come into contact with the unguarded moving parts.
Tr. 12. Worrell interviewed Crook about the tractor, took photographs of the unguarded
tractor parts, and issued Citation No. 8640280. Tr. 12; Ex. S-1; Photographs S-4, S-5, S-6.
The citation alleges a violation of30 C.F.R. § 56.14107(a) for failure to properly guard
moving machine parts. Ex. S-1. After Worrell issued the citation, the tractor was tagged out
of service. Ex. S-2.
MSHA Inspector Danny R. Ellis,3 who had inspected Pickett Mining Group several
times in the past, terminated the citation about eighteen months later on April 3, 2013 after
observing that the tractor "had been removed from mine property." Tr. 32; Ex. S-7. The bush
hog mower was still attached to the tractor and the fan blades and belt drives were still
1

Worrell testified he has worked out of MSHA' s Sanford, North Carolina office as a
mine safety and health inspector for about six years. Previously, he worked for Arrow
Products for nine years, spending his last five years there as a safety director and quality
control manager. He attended the Miner Safety and Health Academy in Beckley, West
Virginia to receive his training to become a mine inspector. His area of expertise is
impoundments. Tr. 8-9.
2

Worrell testified that Nichols accompanied him to the mine site because they had
heard a rumor that Pickett Mining Group had opened a shaft underground. This rumor proved
to be unfounded. Tr. 11, 23.
3

Ellis has worked as a federal mine inspector for 22 years and has worked out of
MSHA' s Sanford, North Carolina office since 2008. Tr. 30-1.

36 FMSHRC Page 2445

unguarded. Tr. 32; Ex. S-7. Inspector Ellis was told the tractor had been towed from its
former location, but at the hearing he could not recall how far the tractor had been moved. Tr.
32, 34.
Use of the Cited Tractor
When he was interviewed during the inspection, Ronnie Crook averred that he uses
the cited Ford tractor to mow grass on the recreational side of the New London propertyi.e., the portion of the property used by Cotton Patch campground, not the MSHA-regulated
portion. Tr. 17, 25; Ex. S-3. Mrs. Pickett testified that Crook works for her on the
recreational side of the property on the weekends. Tr. 57-9. She indicated the Ford tractor
is used exclusively to mow the lawn at Cotton Patch, and to her knowledge it has never been
used without the bush hog mower attached. Tr. 59-61. The tractor is sometimes parked on
the recreational side of the property during the summer and the rainy seasons, but when the
grass does not need to be mowed frequently, it is parked on the non-public side of the
property in the general area where the citation was issued. Tr. 73-4.
Mr. Pickett testified the tractor has never been used to haul equipment on mine
property. Tr. 84. He testified that the bush hog mower has been attached to the tractor for so
long, it might not be possible to remove it. Tr. 37, 75. He asserted there is no grass and
therefore no use for the tractor and bush hog on the MSHA-regulated portions of the New
London property. Tr. 77-8. He cited photographs of the New London property in support of
his assertions.4 Pictures labeled "mill area" show a gravel-strewn clearing in the woods
accessible by a gravel and dirt road and containing a rock crusher, springers, conveyors, a
storage shelter, and other equipment. Some sparse weedy undergrowth is visible in this area,
but no grass. Photographs R-1 to R-5; Tr. 41-2, 51-2.
The Secretary does not dispute that the Ford tractor is primarily used to mow the
grass for Cotton Patch. The narrative portion of the citation alleges that the tractor is used
by "[o]ne miner... as needed" for "mowing purposes." Ex. S-1. Inspector Worrell
acknowledged at hearing that he would not consider Crook a "miner" when he is on the
recreational side of the New London property, but indicated he would begin considering
Crook a mine employee as soon as he drove the tractor onto mine property. Tr. 25-7.
Worrell further acknowledged that the tractor was not in such a state that it could have been
used for mining purposes on the day he issued the citation, as Pickett Mining Group would
have had no use at its mine for the attached bush hog mower. Tr. 17. However, he felt that
the bush hog could be easily removed and that the tractor could be used to pull stones or
equipment if the bush hog were no longer attached. Tr. 18. "I didn't see [the tractor] used
that way, and I don't know if it would be used that way," he testified, "[b]ut it could be used
that way." Tr. 18 (emphasis added). However, he later conceded he had no reason except
the tractor's location to believe the tractor was ever used on mine property. Tr. 25.
4

Mr. Pickett labeled each photograph with a date and location, marked where each
was taken on a copy of his hand-drawn map, and numbered them 1 through 14. In this
decision, the photographs will be referred to as Photographs R-1 to R-14.

36 FMSHRC Page 2446

Inspector Ellis also offered his opinion at the hearing on potential uses of the cited
tractor. Like Inspector Worrell, he did not believe the tractor could be used for mining
operations with the bush hog attached. Tr. 35. However, he testified that a bush hog is
easily removed and opined that the cited tractor could be used to haul mining equipment and
supplies if the bush hog were removed. Tr. 35-6. He also testified that the tractor had been
"used" such that it fell under the jurisdiction of the Mine Act because it had been driven on
mine property. Tr. 36-37. On cross-examination, Ellis conceded that he had no special
knowledge of how difficult it would be to remove a bush hog from that particular model
of tractor, which is a 1942 Model N Ford and an antique, according to Mr. Pickett. Tr.
7, 37. Ellis further conceded that, considering Pickett Mining Group's overall safety
record, 5 he did not believe the operator would actually use a piece of equipment like the
cited tractor for mining. Tr. 38.
Location of the Cited Tractor and Layout of the New London Property
At the hearing, Inspector Worrell indicated that his sole ground for asserting
jurisdiction over the cited tractor was his belief that the tractor was parked on mine
property. Tr. 25. His handwritten notes from the inspection explain his rationale:
This tractor is used to mow the recreation area. However it was in the mine
parked alongside the pit access road near the magazine ... The rear pit access road
is used to access the pit as well as the magazine. Miner has parked this machine
here. Miner could suffer loss of limb type injury due to this condition ... Ronnie
Crook stated he thought this machine was exempt as it's used for recreation.
However, it was parked in the mine along side the mine road.
Ex. S-3. At the hearing, Worrell testified he could see no reason a dual-usage machine
would be parked where the tractor had been located, because the access road where it
was parked led to the pit and magazine. Tr. 14. Thus, he apparently believed that the
sole purpose of that road was to provide access to the MSHA-regulated pit and
magazine. On cross-examination, when questioned as to whether he remembered the
access road being used for other purposes, he testified he was unfamiliar with any dualpurpose usage of that road; did not recall a path to the creek branching off of it; and did
not recall seeing lumber, railroad ties, trailers, or equipment stored on the side of the
road. Tr. 50, 52-5.
When Inspector Ellis conducted an unrelated inspection of the Pickett Mining
Group mine in March 2012, about six months after Worrell had issued the citation at
issue here, Ellis observed the cited tractor parked in the exact same place it had been
when the citation was issued. Tr. 32-3. He opined the tractor was on mine property at
that time because it was between the plant and the pit. Tr. 33. Like Inspector Worrell, he
saw no reason for anyone other than a miner to come to that location because he "saw no
other activity that could occur in that area." Tr. 33-4.
5

Inspectors Worrell and Ellis both testified that on a scale of zero to 100, with
100 representing 100% compliance with safety standards, Pickett Mining Group's safety
rating is about 90. Tr. 24,37-8.

36 FMSHRC Page 2447

Mr. Pickett does not dispute that at the time the citation issued, the cited tractor
was parked near the explosives magazine on the side of the access road that runs
between the pit and mill. However, he characterizes the access road as a dual-purpose
road and the area where the tractor was parked as the main storage area for the entire
New London property. Tr. 69-70, 72. At the hearing, he explained that the access road
"cuts across the piece of property, and we use both sides of the property for recreational
and personal storage." Tr. 79. He testified that non- miners are not allowed in the pit
and mill areas, but non-miners and employees of the recreational side access the area
where the tractor was cited all the time in order to move supplies and equipment to and from
the storage area. Tr. 75-6, 81-2.
There are two distinct areas of the New London property, as shown in the handdrawn map introduced by Mr. Pickett. One is the publicly accessible recreation area and the
other is the non-public area. The recreation area includes Cotton Patch's campground and
recreational mining pit, along with a public path to the creek. The non-public area is a
wooded area at the back of the property with an access road running through it. Map, Ex. R1.
The fuel shed is the first structure a person walking down the road would encounter
when crossing onto the non-public side ofthe property. Ex. R-1. The fuel shed is used by
both Cotton Patch and Pickett Mining Group. Ex. R-1; Tr. 24, 40. A bam, which is used for
storage, is located in the same clearing as the fuel shed. Photograph R-9. MSHA apparently
considers these two structures to mark the outer boundary of the mine area, with everything
beyond them on the non-public side of the property constituting mine property. 6 This would
include Pickett Mining Group's commercial pit, a storage area, an explosives magazine, a
path to the creek labeled "upper road to creek area," Pickett Mining Group's milling site, and
the access road itself, which eventually loops back onto the recreational side of the property.
Ex. R-1.
As noted, at the time the Ford tractor was cited, it was parked along the access road
near where the storage area and magazine are located. Ex. R-1; Ex. S-3; Tr. 41, 52. The
storage area and magazine are in the woods alongside the access road, on the same side of
the road as the commercial pit. Ex. R-1; see Photograph R-10 (showing the magazine is just
at the edge of the storage area). The magazine is an MSHA-regulated facility used exclusively
by Pickett Mining Group. Tr. 41, 80, 87-8. However, the storage area is not. As seen in
pictures introduced by Mr. Pickett, the storage area consists of a section of woods where
machinery is parked on the side of the road and equipment and supplies are piled up in the

6

Inspector Worrell testified he considered everything on the New London property
"[b]eyond the fuel shed where there's now an abandoned pit" to be mine property. Tr. 50.
Inspector Ellis testified that the mine area included everything on the left side of the road in
Photograph R-6 (which would include the pit, storage area, magazine, and, further down the
road, the upper creek path and mill area). Tr. 42; Ex. R-1.

36 FMSHRC Page 2448

woods beside the road. For example, one picture shows a flatbed truck and backhoe parked
just off the road at the storage area with boxes, equipment, and tarp-covered piles of supplies
visible in the woods beyond. Photograph R-6 (taken in May 2014). Other pictures show
various equipment and supplies sitting in the woods at the storage area, including a dumpstersized blue storage bin, piles of lumber and rail ties, and pallets of building materials.
Photographs R-7, R-8, R-11 to R-14 (taken in September 2012 and May 2014). Mrs. Pickett
testified the lumber and other items had been stored at that location since she and her
husband moved to the New London property, and the storage trailers seen next to the bam in
Photograph R-9 used to be parked there as well. Tr. 64-5. Mr. Pickett indicated that the items
and equipment kept in the storage area are used on either or both sides of the property. For
example, the backhoe is used on the recreational side of the property and the railroad ties are
used to build barrier walls on both the recreational and MSHA-regulated sides of the
property. Tr. 40, 53. Mr. Pickett testified that the equipment and trailers in the storage area
have been there for years and have always been moved back and forth between the
recreational and commercial sides of the property, and MSHA has never before attempted to
regulate them. Tr. 70-1, 76.
Mr. Pickett's map does not show where the tractor was moved after the issuance of
the citation. At the hearing, Mr. Pickett asserted that at the time the citation was terminated,
the tractor was parked on the same side of the access road as when the citation was issued,
but had been moved about one hundred feet down the road. Tr. 70. He did not specify in
which direction the tractor was moved. Inspector Ellis took a picture of the tractor in its new
location at the time he terminated the citation. Tr. 34; Photograph S-9. A grainy, black-andwhite copy of that photo shows the tractor parked in front of a barely discernible wooded
area and a large box- shaped piece of equipment, which appears to be black and white.
Photograph S-9. Initially, Inspector Ellis testified he could not identify that piece of
equipment and could not say how far the tractor had been moved since the issuance of the
citation. Tr. 34, 39. Mrs. Pickett offered testimony that the unidentified piece of equipment
was one of two boxes, one blue and the other black-and-white, that have been sitting behind
a trailer on the property for several years. Tr. 66-8. Photographs R-13 and R-14, which were
taken in May 2014, show the referenced blue box sitting in the storage area on the New
London property. After viewing those pictures, Inspector Ellis agreed that the blue box
might be the same box pictured in Photograph S-9. Tr. 45-8. Inspector Worrell testified that
the boxes in the pictures resembled each other but did not look the same to him. Tr. 55-6.
Discussion and Conclusions of Law
The issue before me in this case is whether MSHA had jurisdiction to cite the Ford
tractor for a violation of30 C.P.R.§ 56.14107(a).
Statutory Definition of "Coal or Other Mine"
Section 3(h)(1) of the Mine Act contains the following three-part definition of"coal
or other mine":
"[C]oal or other mine" means (A) an area of land from which minerals are extracted

36 FMSHRC Page 2449

in nonliquid form or, if in liquid form, are extracted with workers underground, (B)
private ways and roads appurtenant to such area, and (C) lands, excavations,
underground passageways, shafts, slopes, tunnels and workings, structures, facilities,
equipment, machines, tools, or other property including impoundments, retention
dams, and tailings ponds, on the surface or underground, used in, or to be used in, or
resulting from, the work of extracting such minerals from their natural deposits in
nonliquid form, or if in liquid form, with workers underground, or used in, or to be
used in, the milling of such minerals, or the work of preparing coal or other minerals,
and includes custom coal preparation facilities.
30 U.S.C. § 802(h)(1). It is well established that Congress intended this definition to be
interpreted broadly. See, e.g., Calma! Co. of Ariz., 27 FMSHRC 617, 622 (Sept. 2005), citing
S. Rep. No. 95-181, at 14 (1977) ("[I]t is the Committee's intention that what is considered
to be a mine and to be regulated under this Act be given the broadest possible
interpretation.").However, the courts have recognized that the jwisdiction of the Mine Act is
not without limitations. See, e.g., Sec yof Labor v. Nat 'I Cement Co. of Cal., Inc., et. al, 573
F.3d 788, 794- 95 (D.C. Cir. 2009) (rejecting unreasonably expansive reading of subsection
3(h)(1)(B)); Paul v. P.B.-KB.B., Inc., 7 FMSHRC 1784, 1787 (Nov. 1985) ("While we have
recognized that the definition of 'coal or other mine' provided in section 3(h) of the Mine
Act is expansive and is to be interpreted broadly ... the inclusive nature of the Act's
coverage is not without bounds."); Donovan v. Carolina Stalite Co., 734 F.2d 1547, 1551
(D.C. Cir. 1984).
In Secretary of Labor v. National Cement Company of California, the Court of
Appeals for the D.C. Circuit discussed reasonable limitations on what could be considered
part of a "coal or other mine" under subsections 3(h)(1)(A), (B), and (C). 573 F.3d at 793-97.
In that case, the subject mine operator leased its mine site from a ranch and held an
appurtenant easement to the ranch-owned road that provided the sole means of access to the
mine. /d. at 789-90. MSHA, asserting jwisdiction under subsection (B), had cited the mine
operator for failure to maintain the access road in safe condition. Id at 790. The D.C. Circuit
had previously expressed concerns that subsection (B) may be susceptible to an overly broad
reading. ld at 791. To allay these concerns, the Secretary explained that she interpreted
subsection (B) more narrowly than subsection (A). She took the position that subsection (A),
which covers extraction areas, extends to all the facilities and equipment within the
boundaries of the extraction area, because virtually everything within an extraction area is
necessarily related to mining activity. Id at 794. However, she interpreted subsection (B),
which covers private ways and roads appurtenant to extraction areas, to apply only to the
ways and roads themselves. /d. Applying this interpretation, equipment and vehicles traveling
on such roads would fall under MSHA jwisdiction only if they were covered under
subsection (C), which covers only those facilities and equipment that are "used in, or to be
used in, or resulting from" mining activities. The D.C. Circuit found that this interpretation
of section 3(h)(1) was reasonable and in harmony with the Mine Act's overall enforcement
scheme. /d. at 794-97.

36 FMSHRC Page 2450

The Parties' Positions
The Secretary asserts that because Pickett Mining Group is subject to MSHA' s
jwisdiction, the only remaining question is whether the cited Ford tractor was located in an
MSHA-regulated area when the citation was issued. Secretary's Post Hearing Br. at 5-6.
Acknowledging that MSHA lacks jwisdiction to issue citations on the recreational side of
the New London property, the Secretary nonetheless contends that any equipment and
facilities available for use by miners must comply with MSHA safety standards regardless of
their location. Id at 6. The Secretary asserts that the Ford tractor was subject to
MSHAjwisdiction at the time it was cited because it was used by a miner, was available for
use in mining, and was located on mine property. Id at 7. The Secretary further argues that
MSHA has jwisdiction over access roads under section 3(h)(1)(B) of the Mine Act, and
therefore the tractor's location on the side of the mine access road subjected it to MSHA
jwisdiction. /d. at 7-8.
Pickett Mining Group asserts that the tractor was parked in a storage area the operator
shares with Cotton Patch Gold Mine. Respondent's Post Hearing Br. at 1. Pickett Mining
Group contends that MSHA has historically allowed dual access to and usage of this area,
which is used for storage of personal equipment and miscellaneous other items. Id Pickett
Mining Group further argues that the Ford tractor has never been used on mine property
because there is no grass to mow, and the tractor never will be used on mine property
because the company's operational and safety protocols preclude use of a piece of
equipment of the tractor's age and condition. Id. at 2. Pickett Mining Group also argues that
MSHA has inconsistently interpreted what part of the New London property constitutes
mine property, considering that MSHA determined the tractor had been moved off of mine
property when it had merely been moved one hundred feet down the road. Id. at 3.
Analysis of the Facts
The first point the Secretary makes in his closing brief is that Pickett Mining Group's
operations fall within the definition of a "coal or other mine." Petitioner's Br. at 5. Pickett
Mining Group does not dispute this fact. However, a mine's MSHA-covered status does not
give the Secretary authority to regulate equipment that is not located within the boundaries
of the extraction area, is not a component of an appurtenant road or way, is not used by the
operator's employees, and bears no relation to its mining operations. I conclude that the
Secretary has impermissibly attempted to regulate such equipment in this case. For the
reasons discussed below, I find that MSHA had no jurisdiction to issue a citation to the Ford
tractor.
First, consistent with the Court's decision in National Cement Company of
California, discussed above, I find that the Ford tractor is not covered under section
3(h)(l)(B) of the Mine Act because the tractor is not a component of a road. A vehicle's
mere presence on "private ways and roads appurtenant to" a mine site is not sufficient to
bring the vehicle within the jurisdiction of the Mine Act.

36 FMSHRC Page 2451

Second, I find that the tractor is not subject to the jurisdiction of the Mine Act under
section 3(h)(l )(C) because there is no evidence it has been used in, will be used in, or is the
product of mining activities. The Secretary argues the tractor is subject to Mine Act
jurisdiction because it was used by a miner and could be used for mining. Secretary's Post
Hearing Br. at 7. However, the tractor is and always has been used to tow a bush hog and
mow the grass on the Cotton Patch campground. It is true that mine employee Ronnie Crook
uses the tractor on the weekends, but not in his capacity as a miner. When using the tractor,
he is working as a weekend campground employee and is paid out of campground funds and
accounts. Tr. 57-61. It is undisputed that there is no grass on Pickett Mining Group's
property and worksite, so Pickett Mining Group has no use for the bush hog mower that is
attached to the tractor. Inspector Worrell suggested at hearing that the tractor could be used
to haul equipment if the bush hog were removed. Tr. 18. However, Mr. Pickett testified it
may be difficult or impossible to remove the bush hog without taking measures such as
shearing off the bolts, considering that the tractor is an antique 1942 model and the mower
has been attached to it for a very long time. Tr. 34, 70. Inspector Worrell ultimately
conceded he had no reason to believe the tractor had ever been used on mine property except
that it was parked on the access road, and Inspector Ellis testified he did not believe Pickett
Mining Group would ever use a piece of equipment like the tractor in its mining operations.
Tr. 25, 38. In short, there is no evidence that the tractor has ever been used by Pickett
Mining Group's employees or in connection with its mining activities, and it appears highly
unlikely the tractor would ever be used for mining considering its age, customary usage, and
the difficulties and hindrance detaching the bush hog would likely entail.
Finally, at the time the citation was issued, the tractor was not located at Pickett
Mining Group's commercial pit, mill, or any other location that could be deemed part of an
"extraction area" under section 3(h)(1)(A) of the Mine Act. Rather, the tractor was parked
along the access road between the pit and the mill near the explosives magazine, on the
same side of the road as the pit. Mere proximity to the magazine or pit isnot grounds for
assertion of jurisdiction. At the hearing, the Secretary's witnesses advanced the theory that
the tractor was parked on mine property. They variouslydelineated the bounds of the mine
property as including (1)everything "[b]eyond the fuel shed where there's now an
abandoned pit," and (2) everything on the same side of the access road as the pit. Tr. 42, 50.
However, Pickett Mining Group has introduced maps, photographs, and witness testimony
suggesting that the property beyond the fuel shed on both sides of the access road is a dualpurpose storage area routinely accessed and used both by miners and by non-miner
employees of the Cotton Patch campground and recreational area. Specifically, Mr. Pickett
testified that equipment and supplies used on both the recreational and mine sides of the New
London property, such as abackhoe (used on the recreational side) and railroad ties
(available for use on either side of the property as needed) have been stored along the access
road for years without MSHA's oversight or intervention. Tr. 40, 53, 69-82. His wife
offered corroborating testimony, stating that the lumber and equipment had been in the
storage area since she and Mr. Pickett moved to the New London property several years

36 FMSHRC Page 2452

back. Tr. 64-5. Mr. Pickett also submitted photographs taken in September 2012 and May
2014 showing machinery parked along the access road; equipment and supplies sitting in
piles in the woods on the pit side of the accessroad; and the large storage barn across the road,
which is not MSHA- regulated. Photographs R-6toR-14;Ex.R-1. TheMSHA inspector who
issued the citation claimed he did not recall seeing various equipment or supplies between
the pit and mill at the time he inspected the property. Tr. 52-5. However, MSHA's other
witness testified he remembered seeing some of the trailers and storage boxes parked along
the access road and seemed to agree that Mr. Pickett's photographs accurately depicted the
storage area between the pit and mill. Tr. 39-45. On consideration, I find that the Picketts'
description of a shared storage area along the access road makes sense in light of the layout
and dual-purpose nature of the New London property and is credible. The tractor's location
was not part of Pickett Mining Group's mine, but was part of a storage area that mine
employees occasionally accessed.
Mr. Pickett testified that to abate the citation, he merely moved the tractor about one
hundred feet down the same side of the access road, and MSHA was satisfied. Tr. 70. The
MSHA inspector who terminated the citation could not recall how far the tractor had been
moved and did not provide any details about its new location except that he felt it was no
longer on mine property. Tr. 32-4. The photograph he took at the time of termination shows
the tractor sitting along the edge of the woods in front of a box that is almost identical in
appearance to a blue box seen in Mr. Pickett's photographs of the storage area. Photograph
S-9; Photographs R-13, R-14. Mrs. Pickett testified that two boxes like the one in the
termination photo had been sitting in the storage area since the Picketts moved to the
property. Tr. 66-8. Taken together, the evidence weighs in favor of a finding that at the time
the citation was terminated, the tractor was parked in essentially the same place it had been
parked when the citation was issued. Thus, MSHA terminated the citation even though the
tractor had not been moved out of the area its witnesses defined as "mine property." This
further undermines the Secretary's position that the tractor was parked on MSHA-regulated
mine property in the first place.
Citing various cases, the Secretary argues that because the tractor was parked in a
dual- use area, it was subject to MSHA regulation so long as it was available for use by
miners. However, the cases the Secretary cites are readily distinguishable from the instant
case in that all of them include findings that the cited equipment was used for mining
purposes.
For example, in W.J. Bokus Indus., Inc., the Commission found that MSHA had
jurisdiction to issue citations in a dual-use garage for improper storage of compressed gas
cylinders, exposed wiring on a stove fan, and a defective grinding machine. 16 FMSHRC
704 (Apr. 1994). The Commission first found that each piece of equipment at issue in that
case was "used or to be used" in mining: the gas cylinders were used by miners as needed,
the grinding machine was used to maintain mine equipment, and miners used the stove to

36 FMSHRC Page 2453

heat the garage while they were working in it. Id at 708. The Commission then went on to
explain how each cited condition could injure miners working in the garage. Id. By
contrast, in this case the equipment in question is not used by miners or in mining.
Moreover, the chance that the cited conditionwill injure a miner is virtually a nullity, as the
unguarded moving parts present a hazard to miners only when the tractor's engine is
engaged while it is in a dual-purpose location, and this apparently occurs only when Ronnie
Crook is working in his capacity as a recreational employee on the weekends.
The Secretary also cites Ideal Basic Indus., Cement Div., 3 FMSHRC 843 (Apr.
1981), in support of his argument that equipment "available for use" is subject to regulation.
Inthat case, the evidence definitively showed the cited equipment, a track mobile with a
defective component, had been used in mining. 3 FMSHRC at 844. However, the
Commission went on to find that even if the evidence had been insufficient to show actual
use during the time when the defect was present, the equipment was still "used" within the
meaning of the Mine Act because it was located in its normal work area (on the tracks) and
was fully capable of being operated. Id at 845. The Commission noted, "To preclude
citation because of 'non-use' when equipment in such condition is parked in a primary
working area could allow operators easily to use unsafe equipment yet escape citation
merely by shutting it down when an inspector arrives." Id By contrast, in this case, there is
no indication the cited equipment was ever used in mining or ever will be used in mining,
rendering inapposite the concerns underpinning the Commission's dicta in Ideal Basic.
The other three cases cited by the Secretary are Administrative Law Judge decisions
which I may consider as persuasive authority. However, again, these cases are factually
distinguishable from the case at hand. In Jeppesen Gravel, the ALJ upheld MSHA's
assertion of jurisdiction over a loader that was being used to load processed gravel into
dump trucks for removal from the mine, characterizing this as an "integral part of [the]
overall mining operation." 32 FMSHRC 1749, 1750 (Nov. 2010) (ALJ). In the case at hand,
the cited equipment was not a part of Pickett Mining Group's mining operation at all. In
Titan Constructors, Inc., the ALJ found that MSHA could assert jurisdiction over a
mechanic shop when the evidence affirmatively established that the tools and materials in
the shop had been used to repair and maintain mine equipment. 34 FMSHRC 403,412 (Feb.
2012) (ALJ). Finally, in Beylund Construction, Inc., the ALJ determined MSHA had
appropriately asserted jurisdiction over the equipment in question under section 3(h)(1)(A)
of the Mine Act because the equipment was located at the extraction site -that is, at the mine
itself. 31 FMSHRC 1410, 1414 (Nov. 2009) (ALJ). Here, the cited tractor was not located
within the bounds of the extraction site, as discussed above. After considering all the

36 FMSHRC Page 2454

foregoing, I find that none of the cases the Secretary cites support a finding that equipment
located in a dual-use area is subject to Mine Act jurisdiction when the equipment in question
is not used by miners, has never and will never be used for mining activities, and does not
pose a risk of injury to bystanders.
Accordingly, I find that MSHA had nojurisdiction to issue Citation No. 8640280.

ORDER
It is ORDERED that Citation No. 8640280 is DISMISSED.

/s/ Priscilla M. Rae
Priscilla M. Rae
Administrative Law Judge
Distribution:
Jeff Pickett, Pickett Mining Group, 41697 Gurley Road, New London, NC 28127
Yasmin K. Yanthis-Bailey, Esq., U.S. Department of Labor, Office ofthe Solicitor, 61
Forsyth Street SW, Room 7Tl 0, Atlanta, GA 30303

36 FMSHRC Page 2455

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9958 / FAX: 202-434-9949

September 10, 2014
CIVIL PENALTY PROCEEDINGS

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

Docket No. LAKE 2011-1054
A.C. No. 11-02752-265355
Docket No. LAKE 2011-1055
A.C. No. 11-02752-265355

v.
AMERICAN COAL COMPANY,
Respondent

Mine: The American Coal Company New
Era Mine
DECISION AND ORDER
Appearances:

Ryan L. Pardue, Esq., Department of Labor, Office of the Solicitor,
Denver, Colorado 80202, on behalf of the Petitioner,
Jason W. Hardin, Esq. and Mark Kittrell, Salt Lake City, UT, on behalf of
the Respondent.

Before:

Judge L. Zane Gill

This proceeding arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) (“Mine Act” or “Act”), involves nine (9) section 104(a) citations, 30 U.S.C.
§ 814(a), issued by the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) to American Coal Company (“AmCoal”) at its New Era Mine. The parties presented
testimony and documentary evidence at the hearing held in Evansville, Indiana on February 26
and 27, 2013.
Prior to trial, the parties came to an agreement on two of the citations from docket
number LAKE 2011-1055 – Nos. 8424631 and 8427551.1 Thus, the trial concerned only the six
citations from LAKE 2011-1054 – Nos. 8427482, 8424603, 8432076, 8432085, 8432106, and
8432151− and one (1) citation from LAKE 2011-1055 – No. 8427550.
I find that for Citation No. 8432076, AmCoal violated § 75.1403 of the Mine Act,
AmCoal’s negligence was moderate, the injury was reasonably likely to result in lost workdays
1

The Secretary filed a Motion to Approve Settlement, wherein AmCoal agreed to
withdraw the penalty contest and agreed to pay the citation fines as proposed by the Secretary. I
have approved the Motion in a Partial Settlement Decision dated September 3, 2014, and
directed AmCoal to pay the citations as issued for a total amount of $942.00.

36 FMSHRC Page 2456

or restricted duty, and I find that the citation was properly designated as significant and
substantial. I assess a penalty in the amount of $1,842.00.
I find that for Citation No. 8432085, AmCoal violated § 75.202(a) of the Mine Act,
AmCoal’s negligence was moderate, the injury was reasonably likely to result in lost workdays
or restricted duty, and I find that the citation was not properly designated as significant and
substantial. I assess a penalty in the amount of $541.00.
I find that for Citation No. 8427482, AmCoal violated § 75.202(a) of the Mine Act,
AmCoal’s negligence was low, the injury was reasonably likely to result in lost workdays or
restricted duty, and I find that the citation was not properly designated as significant and
substantial. I assess a penalty in the amount of $264.00.
I find that for Citation No. 8432106, AmCoal violated § 75.202(a) of the Mine Act,
AmCoal’s negligence was moderate, the injury was reasonably likely to result in no lost
workdays, and I find that the citation was properly designated as non-significant and substantial.
I assess a penalty in the amount of $586.00.
I find that for Citation No. 8432151, AmCoal violated § 75.370(a)(1) of the Mine Act,
AmCoal’s negligence was moderate, the injury was reasonably likely to result in lost workdays
or restricted duty, and I find that the citation was properly designated as significant and
substantial. I assess a penalty in the amount of $2,902.00.
I find that for Citation No. 8424603, AmCoal violated § 75.202(a) of the Mine Act,
AmCoal’s negligence was moderate, the injury was reasonably likely to result in be lost
workdays or restricted duty, and I find that the citation was properly designated as significant
and substantial. I assess a penalty in the amount of $2,902.00.
I find that for Citation No. 8427550, AmCoal violated § 75.400 of the Mine Act,
AmCoal’s negligence was moderate, the injury was reasonably likely to result in be lost
workdays or restricted duty, and I find that the citation was not properly designated as significant
and substantial. I assess a penalty in the amount of $745.00.
I.

Stipulations:
The parties submitted the following stipulations at the hearing: (Tr. 452:10 – 453:1)
1. At all relevant times, AmCoal was engaged in mining operation in the United States,
and its mining operations affected interstate commerce.
2. Prior to September 24, 2010, AmCoal was the owner and operator of the Galatia
Mine, I.D. No. 11-02752, which encompassed multiple operations and mines (i.e., the
New Era, New Future, and Galatia North mines). The Galatia North mine closed prior
to September 24, 2010, and on that date, the New Future Mine began operating under
Mine ID No. 11-03232, and the New Era Mine continued operating under Mine ID
No. 11-02752. AmCoal remained the owner and operator of both mines. The citations

36 FMSHRC Page 2457

at issue in the aforementioned dockets all were issued after September 24, 2010 and
concern the New Era Mine operated by AmCoal.
3. AmCoal is subject to the jurisdiction of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. §§801 et seq.
4. The Administrative Law Judge and Federal Mine Safety Health Review Commission
have jurisdiction in this matter.
5. In addition to the aforementioned paragraph, the other exhibits offered by the parties
were stipulated to be authentic, but no stipulation was made as to the relevancy or
truthfulness of the matters or statements asserted therein or for any other purpose
other than establishing their authenticity.
6. The citations at issue herein were properly served by a duly authorized representative
of the Secretary upon an agent of AmCoal on the dates and places stated therein and
may be admitted into evidence for the purpose of establishing their issuance, but not
for the truthfulness or relevancy of any statements asserted therein for any other
purpose other than establishing their issuance.
7. AmCoal demonstrated good faith in abating the violations.
II.

Basic Legal Principals
A. Significant and Substantial

The Secretary bears the burden of proving all elements of a citation by a preponderance
of the evidence. In re: Contests of Respirable Dust Sample Alteration Citations: Keystone
Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995), aff’d 151 F.3d 1096 (D.C. Cir. 1998); Jim
Walter Resources, Inc., 30 FMSHRC 872, 878 (Aug. 2008) (ALJ Zielinski) (“The Secretary’s
burden is to prove the violations and related allegations, e.g., gravity and negligence, by a
preponderance of the evidence.”) Some of the citations in dispute and discussed below have been
designated by the Secretary as significant and substantial (“S&S”). 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 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). S&S enhanced enforcement is applicable only to
violations of mandatory health and safety standards. Cyprus Emerald Res. Corp. v. FMSHRC,
195 F.3d 42, 45 (D.C. Cir. 1999).

36 FMSHRC Page 2458

In Mathies Coal Co., the Commission established the standard for determining whether a
violation was S&S:
In order to establish that a violation of a mandatory safety standard
is significant and substantial under National Gypsum, the Secretary
of Labor must prove: (1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard – that is, a measure of
danger to safety – contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury in question will be of
a reasonably serious nature.
6 FMSHRC 1, 3-4 (Jan. 1984).
The third element of the Mathies test presents the most difficulty when determining
whether a violation is S&S. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985),
the Commission provided additional guidance: [T]he 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.” (citing U.S. Steel Mining Co., Inc., 6 FMSHRC
1834, 1836 (August 1984)). The Secretary, however, “need not prove a reasonable likelihood
that the violation itself will cause injury.” Cumberland Coal Resources, 33 FMSHRC 2357, 2365
(Oct. 2011) (citing Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1281
(Oct. 2010). Further, the Commission has found that “the absence of an injury-producing event
when a cited practice has occurred does not preclude a determination of S&S.” Id. (citing Elk
Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005); and Blue Bayou Sand & Gravel, Inc., 18
FMSHRC 853, 857 (June 1996)). This evaluation is also 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 at 905; U.S. Steel
Mining Co., Inc., 6 FMSHRC at 1574.
B. Negligence
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 present 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 or 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.

36 FMSHRC Page 2459

The Commission has provided guidance for making the negligence determination in A. H.
Smith Stone Co., stating that:
Each mandatory standard thus carries with it an accompanying
duty of care to avoid violations of the standard, and an operator’s
failure to satisfy the appropriate duty can lead to a finding of
negligence... 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.
5 FMSHRC 13, 15 (Jan. 1983) (citations omitted).
Mitigation is something the operator does affirmatively, with knowledge of the potential
hazard being mitigated, that tends to reduce the likelihood of an injury to a miner. This includes
actions taken by the operator to prevent or correct hazardous conditions.
C. Gravity
The gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), “is
often viewed in terms of the seriousness of the violation.” Consolidation Coal Co., 18 FMSHRC
1541, 1549 (Sep. 1996) (citing Sellersburg Stone Co., 5 FMSHRC 287, 294-95 (March 1983),
aff'd, 736 F.2d 1147 (7th Cir. 1984) and Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 681
(April 1987)). 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 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 Commission has recognized that the likelihood of
injury is to be made assuming continued normal mining operations without abatement of the
violation. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985).
D. 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
said penalty. 29 C.F.R. § 2700.28.
Under Section 110(i) of the Mine Act, the Commission is to consider the following when
assessing a civil penalty: (1) the operator’s history of previous violations; (2) the appropriateness
of such penalty to the size of the business of the operator charged; (3) whether the operator was
negligent; (4) the effect on the operator's ability to continue in business; (5) the gravity of the

36 FMSHRC Page 2460

violation; and (6) the demonstrated good faith in abatement of the violative condition. 30 U.S.C
§ 820(i). Thus, the Commission alone is responsible for assessing final penalties. See Sellersburg
Stone Co. v. FMSHRC, 736 F.2d 1147, 1151-52 (7th Cir. 1984) (“[N]either the ALJ nor the
Commission is bound by the Secretary's proposed penalties … we find no basis upon which to
conclude that [MSHA's Part 100 penalty regulations] also govern the Commission.”); See
American Coal Co., 35 FMSHRC 1774, 1819 (July 2013)(ALJ).
The Commission has repeatedly held that substantial deviations from the Secretary's
proposed assessments must be adequately explained using the section 110(i) criteria. E.g., 293
Sellersburg Stone Co., 5 FMSHRC at 293; Hubb Corp., 22 FMSHRC 606, 612 (May
2000); Cantera Green, 22 FMSHRC 616, 620-21 (May 2000) (citations omitted). A judge need
not make exhaustive findings but must provide an adequate explanation of how the findings
contributed to his or her penalty assessments. Cantera Green, 22 FMSHRC at 622.
Although all of the statutory penalty criteria must be considered, they need not be
assigned equal weight. Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997).
Generally speaking, the magnitude of the gravity of a violation and the degree of operator
negligence are important factors, especially for more serious violations for which substantial
penalties may be imposed. Musser Engineering, 32 FMSHRC at 1289 (judge justified in relying
on utmost gravity and gross negligence in imposing substantial penalty); Spartan Mining Co., 30
FMSHRC 699, 725 (Aug. 2008) (appropriate for judge to raise a penalty significantly based
upon findings of extreme gravity and unwarrantable failure); Lopke Quarries, Inc., 23 FMSHRC
705, 713 (July 2001) (judge did not abuse discretion by weighing the factors of negligence and
gravity more heavily than the other four statutory criteria). For example, violations involving
“extreme gravity” and/or “gross negligence,” or, as stated in the former section of 105(a), “an
extraordinarily high degree of negligence or gravity, or other unique aggravating circumstances,”
may dictate higher penalty assessments. See 30 C.F.R. Part 100 Final Rule, 72 Fed. Reg. at
13,621.
In addition, Commission ALJs are obligated to explain any substantial divergence
between a penalty imposed and that proposed by the Secretary. As explained in Sellersburg
Stone Co., 5 FMSHRC at 293:
When … it is determined that penalties are appropriate which
substantially diverge from those originally proposed, it behooves
that Commission and its judges to provide a sufficient explanation
of the bases underlying the penalties assessed by the Commission.
If a sufficient explanation for the divergence is not provided, the
credibility of the administrative scheme providing for the increase
or lowering of penalties after contest may be jeopardized by an
appearance of arbitrariness.

36 FMSHRC Page 2461

1. Special Assessment
Through notice and comment rulemaking, the Secretary has promulgated regulations
specifying the “Criteria and Procedures for Proposed Assessment of Civil Penalties.” 30 C.F.R.
Part 100. Those regulations provide two options for determining the amount of a civil penalty to
be assessed by the Secretary: regular assessment and special assessment. 30 C.F.R. §§
100.3, 100.5(a), (b). Penalties for the vast majority of violations are determined through the
“regular assessment” process, whereby penalty points are assigned pursuant to criteria and tables
that reflect the factors specified in sections 105(b) and 110(i) of the Act. 30 C.F.R. §100.3.
The regulations also provide that MSHA may elect to waive the regular assessment
process if it determines that conditions warrant a special assessment. 30 C.F.R. §100.5(a), (b).
The regulations do not further explain what conditions may warrant a special assessment.2 Nor
do they identify how the amount of a special assessment will be determined, other than to state
that “the proposed penalty will be based on the six criteria set forth in 100.3(a). All findings shall
be in narrative form.” Id. The narrative findings for special assessments are typically brief and
conclusory.
AmCoal argued that the Secretary's secretive special assessment process arbitrarily
subjects it to substantially enhanced penalties, and deprives it of due process. The lack of
transparency in the Secretary's special assessment process coupled with the Secretary's refusal to
disclose the bases for specially assessing a penalty, can frustrate attempted explanations.
However, whether the Secretary proposes a regularly or a specially assessed penalty is not
relevant to the Commission's determination of a penalty amount because the Commission
imposes civil penalties de novo. While AmCoal's arbitrariness and due process arguments are
unavailing,3 its concerns about the practical implications of the Secretary's determination to
specially assess a violation, especially when the assessment is not based upon extreme gravity
and/or gross negligence, are well founded, as evidenced by these proceedings. In AmCoal's
words, “the large disparity between the proposed special assessments and what would have
resulted under the regular assessment guidelines, make informal resolution of such matters
almost impossible and make time consuming and costly trials much more likely.” (Rsp. Br. at 3).
2

In 2007, the Secretary substantially amended the penalty regulations, significantly
increasing penalties for most violations, eliminating the single penalty assessment, and deleting
language from section 105(a) that specified eight categories of violations “that would be
reviewed to determine whether a special assessment is appropriate,” including, “[v] iolations
involving an extraordinarily high degree of negligence or gravity or other unique aggravating
circumstances.” Ex. R-36; 30 C.F.R. Part 100 Final Rule, 72 Fed. Reg. 13,592, 13,621 (March
22, 2007).
3

AmCoal argued that the absence of criteria specifying what violations would be
specially assessed, and how special assessments would be determined, renders the special
assessment process impermissibly vague in violation of the due process clause, citing FCC v.
Fox Television Station, Inc., 132 S.Ct. 2307, 2317 (2012). It also argued that the process cannot
pass muster under the Commission's reasonably prudent person test, described in Lanham Coal
Co., 13 FMSHRC 1341, 1343-44 (Sept. 1994). However, the FCC and Lanham cases involved
substantive standards, not penalties, and AmCoal did not challenge the language of any of the
mandatory standards.
36 FMSHRC Page 2462

AmCoal also argued that the “Rule To Live By” initiative as applied constitutes a
substantive, mandatory rule, requiring notice-and-comment rulemaking, citing Drummond
Company, Inc., 14 FMSHRC 661 (May 5, 1992). I find this argument to also be unavailing.4
III.

The Citations
A. Citation No. 8432076 (LAKE 2011-1054)

On January 24, 2011, at 8:45am, MSHA Inspector Edward W. Law5 issued Citation No.
8432076 to AmCoal’s New Era Mine alleging a violation of 30 C.F.R. § 75.1403, specifically
Safeguard No. 7568565, pursuant to Section 104(a)6 of the Mine Act. The regulation states that
“all mine travelways be kept as free as practicable of bottom irregularities, debris, and wet and
muddy conditions that could affect the control of mobile equipment traveling these areas.” 30
C.F.R. § 75.1403. Section 75.1403 regulates a mandatory safety standard. The citation alleges:
The Intake/Primary Escape way/ Travelway at cross cut #47 on the
Main North travelway is not being kept free of bottom irregularities
and muddy conditions that could affect control of mobile
equipment. The area is rutted up and a mantrap has become stuck in
the intersection when it bottomed out in the mud. The area was
flagged off to prevent travel in the area of the ruts.
Ex. S-1.
1. The Violation
The citation also alleges the injury is reasonably likely to occur, the injury could
reasonably be expected to result in lost workdays or restricted duty, the violation was significant
4

A substantive rule is one “issued by an agency pursuant to statutory authority and which
implement[s] the statute.... Such rules have the force and effect of law.” Am. Min. Cong. v. Mine
Safety & Health Admin., 995 F.2d 1106, 1009 (D.C.Cir.1993) (quoting Attorney General's
Manual on the Administrative Procedure Act 30 n.3 (1947)) Here, AmCoal argues that according
to Inspector Ramsey, one district manager imposed the Rule To Live By initiative as a
requirement and not a discretionary act by each inspector, thereby making the initiative subject
to notice-and-comment rulemaking. However, AmCoal does not make the argument that
Inspector Ramsey was following the initiative of the Department of Labor. Additionally,
AmCoal admitted that both Inspector Law and Inspector Rusher were not under an obligation to
enforce the Rule To Live By Standard as a mandatory rule. (See Resp. Br. at 12; Tr. 74:19 75:23; 308:14-19; 313:9-20) Therefore, AmCoal did not prove that a non-discretionary initiative
existed under the direction of the Department of Labor.
5

Inspector Law works for MSHA out of the Benton field office as a coal mine inspector.
He has been an MSHA inspector since 2005. (Tr. 272:5-10) Before joining MSHA, he worked
for Consol Mine for a year and a half and Galatia Mine for approximately 21 years. He worked
mainly in maintenance for 19 of the 21 years. (Tr. 272:13-18)
6

All citations are 104(a) citations, and therefore, no analysis is necessary to determine if
unwarrantable failures existed.
36 FMSHRC Page 2463

and substantial, one person could be affected, and the negligence standard level was
characterized as moderate. Id. Additionally, as of the date the citation was issued, Section
75.1403 was cited 57 times in the two years preceding the issuance of the citation. Id.
AmCoal argues that the citation should be vacated because it does not strictly conform to
the requirements of Safeguard 7568565. Safeguard No. 7568565 states:
Bottom irregularities, debris in the form of rock that had fallen from
the roof, and wet and muddy conditions were present on the mine
travelways … [at several] locations…. This Notice to Provide
Safeguards requires that all mine travelways be kept as free as
practicable of bottom irregularities, debris and wet and muddy
conditions that could affect the control of mobile equipment.
Ex. R- 47, at 6.
Pursuant to section 314(b) of the Mine Act, and the Secretary's regulations, authorized
representatives of the Secretary may issue orders, or safeguards, to address hazards related to the
transportation of men and materials at a particular mine. 30 U.S.C. § 874(b); 30 C.F.R. § 75.1403.
The mine operator is obligated to comply with a safeguard, and if it is violated, the operator may
be subject to citations or orders issued pursuant to section 104 of the Act. Cyprus Cumberland
Res. Corp, 19 FMSHRC 1781 (Nov. 1997).
Safeguards are issued by MSHA inspectors, who do not follow a notice and comment
rulemaking procedure. Because this procedure is an “unusually broad grant of regulatory power”
granted to MSHA, the Commission in Southern Ohio Coal Co., 7 FMSHRC 509, 512 (Apr.
1985) (“SOCCO I”), held that “safeguards must be drafted with specificity, so that operators
receive adequate notice of the conduct required and the conditions covered by the
safeguard.” American Coal Co., 34 FMSHRC 1963, 1967 (Aug. 2012). Thus, the language of a
safeguard, which may be issued without consulting with representatives of the operator, must be
narrowly construed. Cyprus Cumberland, 19 FMSHRC at 1785; SOCCO I, 7 FMSHRC at 512.
The validity of Safeguard No. 7568565 was recently upheld by the Commission, noting
that it has “consistently treated safeguards that specify hazardous conditions and specify a
remedy as valid safeguards.” American Coal Co. at 1974 (emphasis in original). The Commission
concluded that the safeguard specifies the nature of the hazard, “i.e., bottom irregularities, debris,
and muddy conditions in a travelway that could affect the control of mobile equipment[,]” and
specifies a remedy, “i.e., all mine travelways are to be kept as free as practicable of bottom
irregularities, debris, and muddy conditions that could affect the control of mobile equipment.” Id.
Here, AmCoal challenged Citation No. 8432076 and argued that a narrow interpretation
of the safeguard, under Cyprus Cumberland and SOCCO I, requires that all three of the
conditions identified in the safeguard be present before a violation can be established, i.e., that
there must be bottom irregularities and debris and muddy conditions. (Resp. Br. at 61-63) Since
there is no evidence that all three conditions were present, AmCoal argued that the citation must
be vacated.

36 FMSHRC Page 2464

Any of the conditions addressed by the Safeguard could threaten the loss of control of
mobile equipment. Under the Safeguard, AmCoal was obligated to keep its travelways as free as
practicable from any and all of the three hazardous conditions. AmCoal's strict interpretation
argument is rejected.
Inspector Law testified that the Safeguard requires the road should be maintained without
ruts and irregularities so that the vehicles can travel and not affect their handling of the vehicle.
(Tr. 273:25 − 274:1-3) Inspector Law testified that he wrote the citation because when traveling
into the mine there was a piece of mobile equipment − a mantrip − stuck in the road in the
primary entranceway. (Tr. 273:16-18) At the time of his inspection, the area was rutted, damp,
and wet, which caused a loaded mantrip to bottom out. (Tr. 276:6-8; 277:16-22; 278:1-9)
Inspector Law observed groundwater on the floor and noticed the ground was damp. (Tr. 276:19) Matt Mortis,7 AmCoal’s safety director, testified that the condition of the area was muddy at
the time the citation was issued. (Tr. 322:4-7) For the reasons stated above, I find that AmCoal
violated § 75.1403 of the Mine Act.
2. Negligence
Inspector Law assessed the violation as arising from moderate negligence. As stated
above, moderate negligence is when “[t]he operator knew or should have known of the violative
condition or practice, but there are mitigating circumstances.” 30 C.F.R. § 100.3(d). AmCoal
argued that the inspector did not investigate if management was on the mantrip that was stuck
(Tr. 298:22); the mantrip could have been carrying a crew of hourly employees (Tr. 298:13-17);
the citation was issued at 8:45am, but the crews did not leave until 9:00am (Ex. R-45; Tr.325:2 −
326:8); and Inspector Law’s notes indicate that it was unknown who knew of the conditions (Tr.
295:16-19; Ex. R-2). Mr. Mortis testified that AmCoal built a sump area near the crosscut and
used PVC pipe and a staged pneumatic pump to pump out excess water because the area is under
an aquifer. (Tr. 322:6-23; 331:12-23) Mr. Mortis also testified that the road was maintained at
first every shift, but then after they put the PVC pipe and the gravel they just maintain it “daily if
they needed more work, they would do it; if not, it was okay.” (Tr. 329:4-7).
Inspector Law testified that the citation was marked as moderate negligence, as opposed
to a higher negligence standard, because mine managers travel the road where the violation
occurred and could have noticed the ruts, and that the area where the violation occurred can get
rutted pretty quickly. (Tr. 286:9-18) He also testified that the negligence standard was cited as
moderate because the mantrip in question sits lower to the ground than most models. Id. Mr.
Mortis admitted that the area in question where the violative condition occurred is traditionally
wet, is a travelway, and is an escapeway. (Tr. 327:17-24) Mr. Mortis also testified that the
condition of the area at the time of the citation was muddy. (Tr. 322:4-7) From Inspector Law’s
vantage point coming into the mine, you could see the wet and rutted conditions “pretty easily”
7

At the time of trial, Mr. Mortis was the AmCoal New Era Mine Safety Director since
July of 2010. (Tr. 88:15-19) Mr. Mortis previously worked for KVR for two years and Peabody
Coal as a Safety Director. (Tr. 89:5-19) Mr. Mortis worked in safety for Alliance Coal Company
before that for four years. (Tr. 89:23 − 90:2) Before that Mr. Mortis worked for Ken American
Resources as a miner for six years. (Tr. 90:6-14)

36 FMSHRC Page 2465

and it was “fairly obvious.” (Tr. 284:19-25) He also testified that he had previously issued
citations in this area for this issue. (Tr. 281:4-6) Based on the above, I find AmCoal’s negligence
to be moderate.
3. Gravity
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. Inspector Law testified that the
Safeguard covers road irregularities, so anywhere in the mine where a road becomes hazardous
to travel or someone can get injured traveling in and out, the operator has to rehabilitate. (Tr.
287:14-19) He designated the citation as reasonably likely because he believed the mantrip
would come to a sudden stop or would lose control in the muddied ruts in the travelway. (Tr.
282:7-12) He also testified that he listed lost work days due to the potential broken bones in the
hands from the impact with the steel areas inside the mantrip. (Tr. 283:3-6) The mantrip in this
case was all steel, so the miners would hit the steel if an accident occurred. (Tr. 282:15-17)
These injuries were likely to occur if there was a sudden stop or loss of control of the mantrip.
(Tr. 283:3-7) Breaking the bones in your hand or breaking your wrist from a vehicle accident
caused by bottom irregularities is serious in nature. The fact that Inspector Law did not know
how the mantrip bottomed out, or whether they slowed down or stopped suddenly is of no
consequence to the gravity determination. (Tr. 280:16-20). I agree that the injury could
reasonably likely result in lost workdays or restricted duty.
4. Significant and Substantial
As stated above, I have already determined that there was a violation of a mandatory
safety standard. Additionally, I determined there is a reasonable likelihood that the injury in
question will be of a reasonably serious nature, i.e. broken bones in the hand or broken wrists. A
measure of danger to safety, a discrete safety hazard, was contributed to by the wet, muddy
conditions that caused rutting on the ground, and thus can impair an operators ability to control a
piece of mobile equipment, which could result in injuries to a miner or miners. What is left to be
determined is whether there was a reasonable likelihood that the hazard contributed to will result
in an injury.
The area in question is a travelway that is used continually. (Tr. 288:3-6) Everyone
coming in and out of the mine with a piece of equipment uses this entry. Id. It is also the primary
escapeway from the mine and it was obvious to Inspector Law that the operator was not
maintaining the roads. (Tr. 317:5-7)
Inspector Law testified that the hazards he was thinking about when he wrote the citation
included people getting jostled around and thrown around inside the vehicles they were traveling
in, hitting the corners, or hitting something solid while driving in a vehicle. (Tr. 281:9-20) The
one person affected designation could be the operator or the person in the front passenger seat
because he is sitting adjacent to the steel frames and he is going to be jostled or thrown in those
areas. (Tr. 283:11-16)

36 FMSHRC Page 2466

AmCoal argued that there was no standing water in the area affected, it was just damp
(Tr. 286:5-6); the travelway was straight and relatively level (Tr. 288:23-25; 306:20); the
travelway was wide enough to have two-way traffic, and that after the mantrip was stuck, there
was room for foot traffic. (Tr. 275:22-23; 285:6-7) However, these proffered reasons for the
Secretary not meeting his burden of proving S&S is unavailing. A loss of vehicle control would
be reasonably likely to result in impact injuries to passengers who would not expect or brace
themselves for sudden impacts. Inspector Law testified that he was aware of even more serious
injuries from mantrip accidents in rough, wet, and muddy conditions. (Tr. 303:4-13) I find that
the Secretary properly designated this citation as S&S.
5. Penalty
The Secretary specially assessed the penalty for this citation as $5,600.00. The AmCoal
New Era Mine operates a 5,774,752 tonnage mine. Additionally, as of the date the citation was
issued, Section 75.1403 was cited 57 times in the two years preceding the issuance of the
citation. As I found above, AmCoal was moderately negligent. At even the assessed penalty of
$5,600.00, AmCoal’s business will not be significantly affected. As to the gravity of the
violation, I found the violation to be S&S. According to the stipulations agreed to by the parties,
AmCoal demonstrated good faith in abatement of the violative condition.
The Secretary failed to prove that the magnitude of the gravity of the violation, that the
degree of operator negligence was gross or extreme, or any other unique aggravating
circumstances to warrant a higher or “special” penalty assessment. Therefore, I assess a penalty
in the amount of $1,842.00.
B. Citation 8432085 (LAKE 2011-1054)
On February 3, 2011, at 11:45am, MSHA Inspector Law issued Citation No. 8432085 to
AmCoal’s New Era Mine alleging a violation of 30 C.F.R. § 75.202(a) pursuant to Section
104(a) of the Mine Act. The regulation states that “[t]he 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.” 30 C.F.R. § 75.202(a). The
citation is a violation of a mandatory safety standard. The citation alleges:
The ribs on the inby side of cross cut #119, from the man door to
the belt is not being adequately supported or controlled where the
miners normally work or travel to protect miners from the hazards
related to falls of the roof and ribs. The rib on the inby side is
cracked and leaning out toward the walkway. The rib is
approximately 20 feet long, 4 to 6 feet high and 1 to 8 inched thick.
The rib is gapped open from 3-6 inches between the rib and coal
pillar.
Ex. S-4.

36 FMSHRC Page 2467

1. The Violation
The citation also alleges the injury as reasonably likely to occur, said injury could
reasonably be expected to be lost workdays or restricted duty, the violation was significant and
substantial, one person would be affected, and the negligence standard was cited as moderate. Id.
Section 75.202(a) was cited 98 times in the two years preceding the issuance of the citation.
Inspector Law testified that there was an area of the rib, inby crosscut 119 adjacent to a
mandoor that was bad, broken, cracked open, leaning, and hazardous. (Tr. 333:11-13) AmCoal
does not dispute the existence of the hazardous condition, i.e., the loose rib on the inby side of
crosscut 19 near a mandoor. (Resp. Br. at 73) Inspector Law testified that the area is used by
people accessing the back of the belt for things such as, cleaning, shoveling, or carrying
materials through it. (Tr. 334:10-17; 335:3-6). For these reasons, I find that AmCoal violated
Section 75.202(a) of the Mine Act.
2. Negligence
Inspector Law assessed the violation as moderate negligence. As stated above, moderate
negligence is when “[t]he operator knew or should have known of the violative condition or
practice, but there are mitigating circumstances.” 30 C.F.R. § 100.3(d). Inspector Law
designated the citation as moderate negligence because of the location of the violative condition,
and because it might be hard for an examiner to see the damaged area because of the rock
dusting. (Tr. 341: 24 − 342:15) Inspector Law testified that he wrote it was unknown who knew
of the violative condition at the time the citation was issued, but did notice the rib was rock
dusted. (Tr. 337:7-17) In fact, it had been gapped open long enough that the rock dust present did
not appear to be fresh. Id. Inspector Law also observed that there were no warning flags on the
rib. (Tr. 339:2-3)
AmCoal argued that the mandoor was small – measuring three (3) feet by three (3) feet.
(Tr. 345:17-18) Charles Thome,8 AmCoal’s mine examiner, testified that while he was
responsible for examining the cited area, he “never” used this mandoor and did not know of
anyone else who had ever used the mandoor. (Tr. 353:22-24; 360:12-25) Mr. Thome, during his
inspections, did look down to inspect crosscuts with doors, but he did not walk each crosscut and
did not see the cracked and leaning rib. (Tr. 364:17-25) AmCoal should have known of the
hazard because, as Mr. Thome testified, on the date of the citation he performed the pre-shift
examination of the belt line and in that immediate area of 119 and 102. (Tr. 353:17-24) There
were no mitigating factors shown. For the reasons stated above, I agree with the designation that
was cited, and find the negligence to be moderate.
8

Mr. Thome works for American Coal Company New Era Mine as a mine examiner. (Tr.
351:13-15) He travels all over the mine examining all areas of the mine, belt lines, units, heads,
drives, and tails, return escapeways, and primary and secondary escapeways, examining for
safety issues and hazards. (Tr. 351:17-24) Before working at American Coal, he worked at
Zeigler Coal Company for thirty years as a roof bolter, general inside laborer, scoop operator,
and he filled in on hoisting engineer and examining. (Tr. 352:14-23) Mr. Thome has thirty-nine
years’ experience in coal mining. (Tr. 353:1-2)

36 FMSHRC Page 2468

3. Gravity
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. Inspector Law testified that the hazard
was that at any given time, any vibration, or if the rib continued taking weight it could not
handle, the rib could fall over and badly injure someone. (Tr. 339:4-11) A miner’s right side
coming through the mandoor would be exposed up to six feet, depending on how close he was to
the rib. (Tr. 340:18-24) A miner would likely be struck because the rib gives no warning when it
falls. The rib was already separated, hazardous, and leaning. (Tr. 341:2-7) So it was ready to fall
at any given time and it was likely to fall. Id. Inspector Law testified that it was a matter of
when, not if, the rib was going to fall. (Tr. 341:8-9) He also testified that the injury cited was lost
work day injuries from broken bones − leg or arm− or getting trapped with rubble on top of the
miner. (Tr. 339:13-19) The injury sustained from being struck from a falling rib is serious in
nature. I agree with the designation of lost work days or restricted duty as Inspector Law
assessed.
4. Significant and Substantial
As stated above, I have already determined that there was a violation of a mandatory
safety standard. Additionally, I determined there is a reasonable likelihood that the injury in
question will be of a reasonably serious nature, i.e. broken bones. A measure of danger to safety,
a discrete safety hazard, was contributed to by the cracked, leaning, and unsupported rib, which
could result in injuries to a miner or miners. What is left to be determined is whether there was a
reasonable likelihood that the hazard contributed to will result in an injury.
Inspector Law indicated one person affected because typically only one person would be
behind the belt shoveling or inspecting the belt. (Tr. 341:15-21) The rib did not have any support
− it was freestanding and leaning. (Tr. 338:16-19) Indeed, it appeared to Inspector Law that the
cracked and leaning rib was in a condition to fall at any time. (Tr. 339:10-11) However, only the
miner’s right side coming through the door would be exposed up to six feet, depending on how
close he was to the rib. (Tr. 340:18-24) Additionally, Mr. Thome’s testimony that he never used
the 3x3 mandoor and that he never knew of anyone using the mandoor near the cracked rib,
decreases the likelihood that an injury was reasonably likely to occur. (Tr. 360:12-25)
Additionally, Inspector Law also testified that the mandoor and the area near the cracked rib was
not used day-to-day. (Tr. 335:7-8) I find that the Secretary did not meet his burden to prove the
violation was reasonably likely to result in serious injury, and therefore the citation should not be
designated as S&S.
5. Penalty
The Secretary specially assessed the penalty for this citation at $9,100.00. The AmCoal
New Era Mine operates a 5,774,752 tonnage mine. Additionally, Section 75.202(a) was cited 98
times in the two years preceding the issuance of the citation.9 As I found above, AmCoal was
moderately negligent. At even the assessed penalty of $9,100.00, AmCoal’s business will not be
9

The Secretary asserts that one of the reasons that all of the Section 75.202(a) citations
were specially assessed was that AmCoal was put on notice of enhanced enforcement. This alone
does not warrant a special assessment.

36 FMSHRC Page 2469

significantly affected. As to the gravity of the violation, I found the violation was not S&S.
According to the stipulations agreed to by the parties, AmCoal demonstrated good faith in
abatement of the violative condition.
The Secretary failed to prove that the magnitude of the gravity of the violation, that the
degree of operator negligence was gross or extreme, or any other unique aggravating
circumstances to warrant a higher or “special” penalty assessment. Therefore, I assess a penalty
in the amount of $541.00.
C. Citation 8427482 (LAKE 2011-1054)
On February 14, 2011, at 11:50am, MSHA Inspector James D. Rusher,10 issued Citation
No. 8427482 to AmCoal’s New Era Mine alleging a violation of 30 C.F.R. § 75.202(a) pursuant
to Section 104(a) of the Mine Act. The regulation states that “[t]he 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.” 30 C.F.R. § 75.202(a).
The citation cites a violation of a mandatory safety standard. The citation alleges:
The roof of areas where persons work or travel was no longer
adequately supported or otherwise controlled to protect persons
from hazards related to falls of the roof. There are two installed
pattern roof bolts that had been dislodged in the No. 3 entry at
approximately tag No. 8250’ on the 8th West Unit, MMU 009-0.
Ex. S-6.
1. The Violation
The citation also alleges the injury is reasonably likely to occur, the injury could
reasonably be expected to be lost workdays or restricted duty, the violation was significant and
substantial, one person could be affected, and the negligence level was moderate. Id. Section
75.202(a) was cited 99 times in the two years preceding the issuance of the citation.
Upon inspection of the mine, Inspector Rusher discovered two pattern roof bolts that had
been dislodged by mobile equipment, with bearing plates that were no longer connecting the roof
as designed and no longer adequately supporting the roof. (Tr. 14:13-15) Inspector Rusher
testified that the bearing plate, coupled with intact fully grouted roof bolts, are what give the roof
its support, and when those bolts are bent, the bolts no longer provide the support necessary for
the roof. (Tr. 84:15-21) The roof bolts were dislodged in a haulage road area. (Tr. 14:16-19) Mr.
Morris agreed that the two bolts were damaged. (Tr. 100:16-24) Inspector Rusher testified that
the people who use the entry where the dislodged bolts were located were the continuous miner,
10

James Rusher had worked for MSHA for approximately thirty-three years as a federal
health and safety inspector at the time of trial. (Tr. 11:5-8) At one point Inspector Rusher was a
district training manager. (Tr. 11:9) He also worked for Freeman United Coal Company in
Sesser, IL for about eleven years. (Tr. 11:14-18)

36 FMSHRC Page 2470

the supervisor, coal haulers, roof bolter operators, possibly a mechanic, and mine examiners. (Tr.
16:10-14) He also testified that the conditions of the bolts were in violation of AmCoal’s roof
control plan. (Tr. 13:7-12) For the reasons stated above, I find that AmCoal violated 30 C.F.R. §
75.202(a).
2. Negligence
Inspector Rusher assessed the violation as moderate negligence. As stated above,
moderate negligence is when “[t]he operator knew or should have known of the violative
condition or practice, but there are mitigating circumstances.” 30 C.F.R. § 100.3(d). Inspector
Rusher indicated that the violative condition was obvious, and stated that he noticed the damaged
bolts 50 to 60 feet away. (Tr. 20:12-15) However, I find that the Secretary failed to prove by a
preponderance of evidence that AmCoal knew or should have known that the violative condition
existed. The Secretary produced no evidence at trial that any AmCoal management or any
personnel “knew” of the two damaged bolts. Inspector Rusher did not identify or notice any
management or hourly personnel in entry No. 3 where the violative condition was located. (Tr.
20:16-18; 50:9-14) Additionally, the only evidence produced at trial that AmCoal “should have
known” that the violative condition existed was: (1) that the supervisor would have to have
conducted gas checks at the No. 3 face and thus would have been in the proximity of the
damaged bolts, and (2) that the bolts were damaged by equipment being operated in the section.
The gas check requiring methane tests to be conducted every twenty (20) minutes “during
the operation of equipment in the working place” but “[w]hen mining has stopped for more than
20 minutes, methane tests shall be conducted prior to the startup of equipment.” 30 C.F.R. §
362(d). Inspector Rusher based his gas check requirement on his notes stating that the unit was
active. (Tr. 60:3-7; Ex. R-6, at 3) However, according to the production and delay report for that
shift, and the testimony of Mr. Mortis, the area was idle from 8:55am until 2:00pm (Tr. 105:7-9),
and the workers did not began loading until 2:50 pm. (Tr. 107:1-4) The citation was issued at
11:50am. Additionally, the Secretary produced no evidence at trial that the personnel operating
the equipment would or should have known that their equipment hit two roof bolts.
As such, the Secretary failed to meet his burden to prove moderate negligence. Because
Section75.202(a) was cited 99 times in the two years preceding the issuance of the citation, I find
that there was low negligence.
3. Gravity
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. Inspector Rusher was concerned about
the roof falling and hitting miners traveling in the area. (Tr. 22:14-17) A roof fall would usually
result in lost-time injuries, or worse, possibility a fatality. (Tr. 22:20-22) The potential injuries
from a roof fall are serious. I agree that if a roof fall were to occur, the injury could reasonably
be expected to be lost workdays or restricted duty.

36 FMSHRC Page 2471

4. Significant and Substantial
As stated above, I have already determined that there was a violation of a mandatory
safety standard. Additionally, I determined there is a reasonable likelihood that the injury in
question will be of a reasonably serious nature. A measure of danger to safety, a discrete safety
hazard, was contributed to by the damaged roof bolts, which could result in injuries to a miner or
miners. What is left to be determined is whether there was a reasonable likelihood that the hazard
contributed to would result in an injury.
It was apparent at trial that there was a question of fact whether limestone was present
where the violative condition was located. Inspector Rusher testified that the roof sounded
“drummy” when tested with a sounding rod. (Tr. 85:14-18) To Inspector Rusher, the “drummy”
sound indicated that the beam was not solid. Id. He also testified that limestone thickness varied
through the mine roof. (Tr. 39:24)
Gary Vancil, Jr.,11 witness for AmCoal, testified that limestone is the best possible roof
because it is very hard. (Tr. 134:8-15) Inspector Rusher testified that limestone is like concrete.
(Tr.35:8-9) Mr. Vancil testified that he was personally familiar with the 8th west gate where the
two bolts were dislodged because he was mapping, looking at limestone thickness, and looking
for any geological hazards in the area. (Tr. 130:9-16) Mr. Vancil testified that the immediate roof
at the location had very good limestone − non-jointed and no shale in it whatsoever. (Tr. 142:49) Additionally, he testified that there was limestone four feet to five feet up where the violative
condition was located. (Tr. 142:10-15)
Mr. Vancil did not think there was a likelihood of a roof fall in the violative area even if
the two roof bolts were damaged because of the strength of the limestone. (Tr. 144:10-22) He
testified that the roof bolts were only in place because AmCoal was required to put them there
and the roof bolts did not offer more strength than what the limestone already had. Id.
Inspector Rusher testified that due to the nature of the fully grouted resin bolts, the resin
(glue) would spread into the cracks and strengthen the roof (Tr. 31:2-24), and would still provide
some roof support if the bolts were dislodged. (Tr. 32:18-22) Additionally, neither the
inspector’s notes nor the citation states that there was a “drummy” sound in the violative area.
(Tr. 34:3-11)
Based on the foregoing, I find that the Secretary failed to prove by a preponderance of
evidence that there was a reasonable likelihood that the hazard contributed to will result in an
injury. Therefore, I find that the S&S designation was unwarranted for this citation.
11

Mr. Vancil is a senior geologist at AmCoal in the Galatia mine. He handles Utah,
western Kentucky, and Illinois. (Tr. 128:23-25) He started working at AmCoal two and a half
years before testifying at trial. (Tr. 129:3) After getting his Master’s degree, he worked in the oil
fields of west Texas, and he also worked out in the Thunder River basin in Wyoming for Triton
Coal Company. (Tr. 129:9-12) Mr. Vancil has a master’s and undergraduate degree, both in
geology. (Tr. 129:14-16)

36 FMSHRC Page 2472

5. Penalty
The Secretary specially assessed the penalty for this citation at $9,800.00. The AmCoal
New Era Mine operates a 5,774,752 tonnage mine. Additionally, Section 75.202(a) was cited 99
times in the two years preceding the issuance of the citation. As I found above, AmCoal’s
negligence was low. At even the assessed penalty of $9,800.00, AmCoal’s business will not be
significantly affected. As to the gravity of the violation, I found the violation was not S&S.
According to the stipulations agreed to by the parties, AmCoal demonstrated good faith in
abatement of the violative condition.
The Secretary failed to prove elevated gravity of the violation, that the degree of operator
negligence was gross or extreme, or any other unique aggravating circumstances to warrant a
higher or “special” penalty assessment. Therefore, I assess a penalty in the amount of $264.00.
D. Citation No. 8432106 (LAKE 2014-1054)
On February 16, 2011, at 1:30pm, MSHA Inspector Law issued Citation No. 8432106 to
AmCoal’s New Era Mine alleging a violation of 30 C.F.R. § 75.202(a) pursuant to Section
104(a) of the Mine Act. The regulation states that “[t]he 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.” 30 C.F.R. § 75.202(a). The
citation cites a violation of a mandatory safety standard. The citation alleges:
The roof on 5 seam at survey station #225 West and #225 South is
not being adequately supported or controlled where miners work or
travel to protect miners from the hazards related to falls of the roof
and ribs. The corners on both sides of the travelway have rashed
away. The East corner is 8 feet from the roof bolt to the coal pillar
for 3 bolts and approximately 12 feet in length. The West corner is
7 feet from the roof bolt to the coal pillar for approximately 10 feet.
The corners have been particularly loaded out by the end loader.
The area was flagged out by the operator at the time of the issuance
of the citation to prevent travel in the area.
Ex. S-8.
1.

The Violation

The citation alleges the injury is unlikely, the injury could reasonably be expected to
result in lost workdays or restricted duty, the violation was not significant and substantial, one
(1) person could be affected, and the negligence standard was cited as moderate. Id. AmCoal is
not contesting the citation as written; they are contesting the penalty amount. (Tr. 367:3-8)
Additionally, at trial the parties stipulated to the designations alleged in the citation. (Tr. 367:1 −
369:15; 378:21-23) Further, AmCoal’s attorney stated that they agree with the statutory criteria
that would justify a regular assessment. (Tr. 368:7-9)

36 FMSHRC Page 2473

The citation was issued under 75.202(a). Inspector Law testified that a miner was doing
some rehabilitation work, cleaning up the violative area with an end loader. (Tr. 370:8-20) He
further testified that there was an area about 12 feet by seven feet that was unsupported where
they had been cleaning under and around. Id. The violative condition occurred because the more
the miner cleaned, the more the ribs rashed, and the ribs became wider from the bolts. (Tr. 372:36) Inspector Law testified that it is not unusual to do the rehabilitation work like what was
occurring, but AmCoal had to go back and re-bolt or set timbers because of the expanded the size
of the area. (Tr. 372:21-25) He cited Section 202(a) because the conditions and rehabilitation
work caused the area to become unsupported. (Tr. 378:15-19) I find that AmCoal violated
Section 75.202(a).
2. Negligence
Inspector Law assessed the violation as moderate negligence. As stated above, moderate
negligence is when “[t]he operator knew or should have known of the violative condition or
practice, but there are mitigating circumstances.” 30 C.F.R. § 100.3(d). Section 75.202(a) was
cited 99 times in the two years preceding the issuance of the citation. Inspector Law testified that
he cited moderate negligence because when he was in the violative area, only an operator was
working and there was no foreman, and there is no way to know if the operator knew or should
have known that something needed to be done about the roof. (Tr. 374:6-22) Inspector Law
further testified that the foreman could have come and checked the area, but there was no way of
knowing if he did so before or after or if he saw the damage. (Tr. 374: 25 − 375: 7) However,
Inspector Rusher testified that someone should have been paying attention to make sure that the
exposed area was supported. (Tr. 385:19-25) For the reasons stated above, I find that AmCoal
was moderately negligent.
3. Gravity
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. Inspector Law assessed the violation as
lost workdays or restricted duty. He testified that there were no people on foot in the area, and
there was only an operator who was driving in a cab of a piece of equipment. (Tr. 377:22-25) He
further stated that the machine operator would be protected by the cab and canopy if the roof
were to collapse. Id. A roof fall could result in serious injury, however, the facts presented at trial
indicate that the gravity determination should be lower. The Secretary failed to prove by a
preponderance of evidence that there would be lost work days or restricted duty. As such, I find
that the injury could be reasonably expected to be no lost work days.
4. Significant and Substantial
Inspector Law testified that there were no people on foot in the area, and there was only
one operator who was driving in a cab of a piece of equipment who would be protected by the
cab and canopy. (Tr. 377:22-25) The gravity designation was cited as unlikely by Inspector Law
because the area was not hanging, or cracked, or hazardous, there was just a corner missing. (Tr.
377:2-8) I agree and find that the likelihood of injury is unlikely and that Inspector Law was
correct in making the citation non-S&S.

36 FMSHRC Page 2474

5. Penalty
The Secretary specially assessed the penalty for this citation as $9,100.00. The AmCoal
New Era Mine operates a 5,774,752 tonnage mine. Additionally, Section 75.202(a) was cited 98
times in the two years preceding the issuance of the citation. As I found above, AmCoal was
moderately negligent. At even the assessed penalty of $9,100.00, AmCoal’s business will not be
significantly affected. As to the gravity of the violation, I found the violation was not S&S.
According to the stipulations agreed to by the parties, AmCoal demonstrated good faith in
abatement of the violative condition.
The Secretary failed to prove that the gravity of the violation was elevated, that the
degree of operator negligence was gross or extreme, or any other unique aggravating
circumstances to warrant a higher or “special” penalty assessment. Therefore, I assess a penalty
in the amount of $586.00.
E. Citation No. 8432151 (LAKE 2014-1054)
On March 21, 2011, at 10:15am, MSHA Inspector Law issued Citation No. 8432151 to
AmCoal’s New Era Mine alleging a violation of 30 C.F.R. §75.370(a)(1) pursuant to Section
104(a) of the Mine Act. The regulation states that “[t]he 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…” 30
C.F.R. §75.370(a)(1). The citation is a violation of a mandatory safety standard. (Tr. 395:19-21)
The citation alleges:
The approved ventilation plan for this mine is not being complied
with in the Intake/ Primary Escape Way/ Travelway from the 6th
West Airshaft to the mouth of the 6th West Head gate is extremely
dusty. Heavy concentrations of air born dust can be seen throughout
the entry and is limiting the visibility of equipment operators in the
area. A large plum of dust is also being created by the exhaust
discharge of a supply tractor also creating visibility hazards. The
dry roads had a layer of powdery dust that was getting suspended
when driving through the area.
Ex. S-21.
1. The Violation
The citation alleges that an injury is reasonably likely to occur, the injury could
reasonably be expected to result in lost workdays or restricted duty, the violation was significant
and substantial, one person could be affected, and the violation arose from moderate negligence.
Id. Section 75.370(a)(1) was cited 66 times in the two years preceding issuance of the citation.
Inspector Law testified that from the 6 west headgate, where they were still developing the area
as a longwall entry, examiners, mine managers, crew, and belt workers would be traveling in the

36 FMSHRC Page 2475

violative area. (Tr. 393:9-15) That is because the 6 west air shaft is on the main travelway and
primary escapeway. (Tr. 393:16-20)
Inspector Law testified that as he was traveling on a golf cart, he ran into visible airborne
dust, the roads were very dry, and the roads had not been watered. (Tr. 393:23 − 394:2) The
closer he got to the mouth, the dustier it became. Id. AmCoal was running Fairchild scoops on
which the exhaust dumps downwards. Because the roads were not watered, this caused plumes of
dust in the air. (Tr. 394:9-12) Keith Violett,12 witness for AmCoal, testified that Inspector Law
told him to pull the golf cart over so that he could see how long it would take for the dust to
settle − it took about 30 to 45 seconds. (Tr. 431:22 − 432:5) Mr. Violett also testified that it was
fairly dusty, but not to the point where you couldn’t see. (Tr. 432:17-18) Based on the foregoing,
I find the AmCoal violated Section 75.370(a)(1).
2. Negligence
Inspector Law assessed the violation as moderate negligence. As stated above, moderate
negligence is when “[t]he operator knew or should have known of the violative condition or
practice, but there are mitigating circumstances.” 30 C.F.R. § 100.3(d). The undisputed evidence
at trial showed that the cited area is extremely dry during the winter months. (Tr. 396:13-19;
434:10-11) Inspector Law testified that this is a problem area of the mine for dry conditions, and
AmCoal is required to keep the travelway watered. (Tr. 396:19-25) He was aware of the
travelway watering program and admitted it usually does a pretty good job controlling the dust.
(Tr. 401:14-23) He also testified that in the winter, the time it takes to dry depends on the
temperature, so it could take as little as a shift for it to become dusty with low visibility. (Tr.
397:17-25) Inspector Law testified that the violative condition was obvious because the dust was
visible as he was traveling through it. (Tr. 396:5-10)
Inspector Law testified that he designated the citation as arising from moderate
negligence partly due to the time factor, because it can get dry very quickly, however, he said
that he could have made the designation high just the same. (Tr. 400:14-17) Marvin Webb,13
witness for AmCoal, testified that if they had not been cited, they would have watered the area
anyway in an hour or less. (Tr. 446:9-11) Mr. Webb testified that AmCoal has a road watering
program that uses a modified ram car with installed water tanks to water the roadways. (Tr.
440:7-16) Mr. Webb testified that the area would be watered once or twice a shift, depending on
how dry it was. (Tr. 446:20-22; Tr.447:18) This watering program is evidence that AmCoal
knew of the dry and dusty condition of the area and should have been more vigilant to meet the
ventilation plan and water the area. While the roads were watered every shift (Tr. 443:2-3),
12

Mr. Violett is a safety specialist for AmCoal, and worked as both an examiner and now
is in the safety department. (Tr. 430:22-23; 431:13-14) He had worked at AmCoal for six years
prior to the time of trial. (Tr. 431:2-4) He has about 37 years in the mines, both underground and
surface. He has been an examiner, mechanic, and pretty must everything else. (Tr. 431:7-10)
13

Mr. Webb is a shift foreman at AmCoal. (Tr. 437:21-23) He has worked for American
Coal for fourteen years. (Tr. 438:5) At the time of trial, he had been in the mining industry for 39
years (Tr. 438:8), and he had been a supervisor at American Coal for six or seven years. Before
joining AmCoal he was a supervisor at Old Ben Coal Company for about 17 years. (Tr. 438:2022).
36 FMSHRC Page 2476

AmCoal’s ventilation plan requires AmCoal to water the roadways as required before conditions
deteriorate to dust clouds. For the reasons stated above, I find that AmCoal was moderately
negligent.
3. Gravity
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. Inspector Law was concerned about the
visibility hazard for people traveling through the area. (Tr. 398:4-10) He testified that there was
equipment and people in the violative area and all you could see was the dim headlights and
nothing else, and you couldn’t tell if something was coming at you other than by sound. Id.
Inspector Law testified that he could barely keep his eyes open at times because the dust was
coming at him at a high volume. (Tr. 399:7-9) Inspector Law classified the citation as lost work
days or restricted duty, but he could have easily classified it as fatal because he could have easily
been run over in his golf cart by the machinery working in the mine. (Tr. 398:13-15) I find that
there was a reasonably likelihood of a serious injury and agree with the lost workdays or
restricted duty determination.
4. Significant and Substantial
As stated above, I have already determined that there was a violation of a mandatory
safety standard. Additionally, I determined there is a reasonable likelihood that the injury in
question will be of a reasonably serious nature. A measure of danger to safety, a discrete safety
hazard, was contributed to by the dusty conditions in violation of the ventilation plan, which
cause visibility issues, and could result in injuries to a miner or miners. What is left to be
determined is whether there was a reasonable likelihood that the hazard contributed to will result
in an injury.
Inspector Law testified that he designated the citation as one person affected, but it could
have easily been two. (Tr. 400:9-12) He stated that he hoped someone would be able to get out of
the way if a machine was going to hit him. Id. The dusty conditions made it difficult to determine
the direction of travel of other vehicles. (Tr. 426:3-9) Mr. Violett testified that although it was
dusty, he could still see the scoop. (Tr. 431:22 – 432:3) Based on the dusty conditions that
negatively affected visibility, there was a reasonable likelihood that the hazard contributed to
would result in an injury. I find that the Secretary met his burden to prove S&S.
5. Penalty
The Secretary specially assessed the penalty for this citation as $9,800.00. The AmCoal
New Era Mine operates a 5,774,752 tonnage mine. Additionally, Section 75.370(a)(1) was cited
66 times in the two years preceding issuance of the citation. As I found above, AmCoal was
moderately negligent. At even the assessed penalty of $9,800.00, AmCoal’s business will not be
significantly affected. As to the gravity of the violation, I found the violation was S&S.
According to the stipulations agreed to by the parties, AmCoal demonstrated good faith in
abatement of the violative condition.

36 FMSHRC Page 2477

The Secretary failed to prove that the gravity of the violation was elevated, that the
degree of operator negligence was gross or extreme, or any other unique aggravating
circumstances to warrant a higher or “special” penalty assessment. Therefore, I assess a penalty
in the amount of $2,902.00.
F. Citation No. 8424603 (LAKE 2014-1054)
On March 28, 2011, at 9:30am, MSHA Inspector Danny R. Ramsey,14 issued Citation
No. 8424603 to AmCoal’s New Era Mine alleging a violation of 30 C.F.R. § 75.202(a) pursuant
to Section 104(a) of the Mine Act. The regulation states that “[t]he 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.” 30 C.F.R. § 75.202(a).
The citation cites a violation of a mandatory safety standard. The citation alleges:
A loose rib, measuring 9 feet long, 7.5 feet high and 3 inches to 6
inches wide, was present on the South side of the 8th West Headgate
unit breaker feeder. A visible crack, measuring 1 inch to 3 inches in
width was observed between the loose rib and the solid block. This
are is routinely traveled by miners.
Ex. S-13.
1. The Violation
The citation alleges that an injury was reasonably likely to occur, the injury could
reasonably be expected to be lost workdays or restricted duty, the violation was significant and
substantial, one person could be affected, and the negligence standard was cited as moderate. Id.
Section 75.202(a) was cited 103 times in the two years preceding the issuance of the citation.
Inspector Ramsey testified that as he was walking in the violative area he observed a lose
rib in the feeder area of the 8th west headgate where the shuttle cars dump coal that they haul
coal from the face area onto the belt. (Tr. 229:10-19) He testified that shuttle car operators, belt
cleaners, examiners, and mechanics work in this area. (Tr. 229:21-25) AmCoal did not flag the
loose rib as a hazard. (Tr. 231:7-9) AmCoal does not dispute the existence of the hazardous
14

Mr. Ramsey had worked for MSHA for the past nine and a half years as a roof control
specialist inspector at the time of trial. (Tr. 226:15-20) He started working in mines in 1972. He
worked for UMWA for five years, then worked for ten years as either a face boss or section
foreman, then for a year and half worked as assistant mine manager. Then he was promoted to
mine manager for six years. Then worked as a general underground mine manager for two years
then superintendent for two years. Then he worked for Galatia (purchased by American Coal) for
six and a half years as a longwall foreman then longwall coordinator, and had been the
superintendent for three years. Then he went to Zeigler 11 as a section foreman for 11 months.
Then he started working for MSHA as a coal mine inspector for four years. Then he was a
ventilation specialist for four years. And he has been a roof control specialist for about two years.
(Tr. 266:24 −227:24)

36 FMSHRC Page 2478

condition, i.e. the loose rib. (Resp. Br. at 51) For the reasons stated above, I find that AmCoal
violated Section 75.202(a).
2. Negligence
Inspector Ramsey assessed the violation as involving moderate negligence. As stated
above, moderate negligence is when “[t]he operator knew or should have known of the violative
condition or practice, but there are mitigating circumstances.” 30 C.F.R. § 100.3(d). Inspector
Ramsey testified that he designated the citation as moderate negligence because the violative
condition was not in the examiner’s book, and he did not designate the negligence as high
because it looked like a fresh crack so it had not been there for an extended period of time. (Tr.
235-236:21-2) He also testified the loose rib was obvious and easily seen. (Tr. 230:20)
Despite the fact that Inspector Ramsey could not tell how long the condition existed or
who knew of the violative condition (Tr. 250:15-251:5), belt examiners walk the entire belt on
both sides and should have seen the cracked rib. (Tr. 249:15-16) However, the unit was idle (Tr.
255:9) and the crack in the rib appeared recent. (230:24 − 231:6; 250:15 − 251:5) The inspector
had no personal knowledge that any mechanics or workers on the feeder had been working or
when they were to start working. (Tr. 255:20 − 256:4)
Despite the fact that the unit was idle, due to the obvious nature of the cracked rib and the
fact that belt examiners would be in the vicinity and should have seen the violative condition, I
agree that the citation was properly designated as moderate negligence.
3. Gravity
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. Inspector Ramsey anticipated lost work
days, which probably could have been designated as permanently disabling. (Tr. 232:25 − 233:3)
He testified that the hazard was the rib falling on the people in the area causing injury. (Tr.
232:11-12) An injury could include broken bones, contusions, cuts, and scrapes. Id. It appeared
recent because there was no visible rock dust behind it. (Tr. 231:1-6) I find that there is a
reasonable likelihood that the injury in question will be of a reasonably serious nature and agree
with the determination that the injury could reasonably be expected to be lost workdays or
restricted duty.
4. Significant and Substantial
As stated above, I have already determined that there was a violation of a mandatory
safety standard. Additionally, I determined there is a reasonable likelihood that the injury in
question will be of a reasonably serious nature. A measure of danger to safety, a discrete safety
hazard, was contributed to by the damaged rib, which could result in injuries to a miner or
miners. What is left to be determined is whether there was a reasonable likelihood that the hazard
contributed to will result in an injury.
Inspector Ramsey testified that in the process of normal mining, people are going to
travel the area routinely. This rib was loose, big, and cracked; it was going to fall. (Tr. 253:4-7)

36 FMSHRC Page 2479

He testified that there was also machinery running that could vibrate and cause the rib to fall.
(Tr. 232:18-22) He also testified that he designated it as potentially affecting one person because
there is usually no more than one person traveling through the area at a time. (Tr. 235:17-20)
Additionally, Inspector Ramsey testified that the rib was pried down easily, which indicated to
him that it was loose and could have easily fallen. (Tr. 23317-25)
Inspector Ramsey testified that people traveled in the violative area routinely (Tr. 253:47), for example, examiners, belt cleaners, belt mechanics, and greasers (Ex. R-12). However, the
unit was idle (Tr. 255:9), and the crack in the rib appeared recent. (Tr. 230:24 − 231:6; 250:15 −
251:5) Nonetheless, I find that the Secretary met his burden to prove that the S&S designation
was warranted for this citation.
5. Penalty
The Secretary specially assessed the penalty for this citation at $9,800.00. The AMCoal
New Era Mine operates a 5,774,752 tonnage mine. Additionally, Section 75.202(a) was cited 103
times in the two years preceding the issuance of the citation. As I found above, AmCoal was
moderately negligent. At even the assessed penalty of $9,800.00, AmCoal’s business will not be
significantly affected. As to the gravity of the violation, I found the violation was S&S.
According to the stipulations agreed to by the parties, AmCoal demonstrated good faith in
abatement of the violative condition.
The Secretary failed to prove that the magnitude of the gravity or the degree of operator
negligence was gross or extreme, or any other unique aggravating circumstances to warrant a
higher or “special” penalty assessment. Therefore, I assess a penalty in the amount of $2,902.00.
G. Citation No. 8427550 (LAKE 2014-1055)
On July 11, 2011, at 11:45am, MSHA Inspector James Rusher, issued Citation No.
8427550 to AmCoal’s New Era Mine alleging a violation of 30 C.F.R. § 75.400 pursuant to
Section 104(a) of the Mine Act. The regulation states that “[c]oal 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.” 30 C.F.R. § 75.400. The violation is for a mandatory safety standard. (Tr.
151:13-16) The citation alleges:
There is an accumulation of spilled loose coal and coal dust (dry)
that measured in depths of 4” to 6” deep on the floor of the No. 2
and 3 entries in the 9th West, unit, mmu 008-0. Additionally [,] [t]he
roof, left and right coal ribs of both the No. 2 and No. 3 entries has
not been rockdusted. This area in the No. 2 entry begins at
approximately tag no. 8320” and extends inby to the last row of
roof bolts at tag No. 8420”. This is a distance of about 100’[.] In the
No. 3 entry, the roof, left and right coal ribs need to be rock dusted
and the floor scooped to clean up 4” to 6” of loose coal and coal
dust. This begins about tag No. [8200]” inby to about tag No.

36 FMSHRC Page 2480

8300’. No one was observed cleaning or rock dusting until this
citation was issued.
Ex. S-15.
1. The Violation
The citation alleges a reasonable likelihood that an injury would occur, the injury could
reasonably be expected to be lost workdays or restricted duty, the violation was significant and
substantial, one person could be affected, and the negligence standard was cited as moderate. Id.
The violative area had previously been mined by AmCoal and the coal spillage had not
been cleaned up. (Tr. 152:8-12) The coal accumulated four to six inches deep in number 2 and
number 3 entries. Id. Inspector Rusher testified that the direct violation of Section 75.400 went
for a distance of 100 feet in the number 3 entry. (Tr. 151:25 −152:1) The principal reason
Inspector Rusher issued the citation was because AmCoal chose to move the belt and power
before choosing to do the safety work. (Tr. 179:18-22) AmCoal does not dispute the
accumulations, but disagrees with its extensiveness. (Tr. 175:12-14) Mike Smith,15 witness for
AmCoal, testified that the depth was about two to three inches, and the further you got away
from the center it will feather out to less than an inch. (Tr. 203:2-9)
Inspector Rusher testified that the area that had been previously mined had not been rock
dusted and appeared black. (Tr. 152: 12-14) Mr. Smith, however, testified that the coal ribs in the
number 2 and 3 entry were hand dusted. (Tr. 220:20-22) The weight of evidence supports my
conclusion that the Secretary failed to meet his burden to show that the roof and ribs of the entry
were not rock dusted.
For the reasons stated above, I find that AmCoal violated Section 75.400 of the Mine Act
for the coal spillage, but not for failing to rock dust.
2. Negligence
Inspector Ramsey assessed the violation as involving moderate negligence. As stated
above, moderate negligence is when “[t]he operator knew or should have known of the violative
condition or practice, but there are mitigating circumstances.” 30 C.F.R. § 100.3(d). Inspector
Rusher testified that he designated the citation as moderate negligence, as opposed to a higher
negligence, because it seemed as though AmCoal was hurrying to do the power move, not that it
was a modus of operation they would normally do. (Tr. 163-164:22-3) He also testified that the
15

At the time of the trial, Michael Smith worked for the University SIU mining
engineering department and resource development. (Tr. 195:19-25) He was studying dust control
and trying to help the different coal mines with compliance with federal regulations with dust
and trying to minimize dust exposure to miners. Id. He started that job on December 15, 2010.
(Tr. 196:2-3) Before that worked for American Coal from 2003-2011. (Tr. 196:4-7). He was in
the safety department and traveled with the federal and state mine inspectors, as well as tried to
help the mine be in compliance with regulations. (Tr. 196:11-14) He was also part of the mine
rescue team for 21 years between both mines. (Tr. 196-197:20-1)

36 FMSHRC Page 2481

condition was very obvious. (Tr. 158:13-14) The violative condition existed and should have
been discovered prior to the power move. (Tr. 164:4-6) Additionally, Inspector Rusher had given
prior safety talks about this type of condition before to operators of the mine. (Tr. 164:22-25)
Because the coal accumulation was obvious, and because someone of authority made the
decision to move the belt before cleaning the coal accumulation, I agree that the negligence
determination is moderate.
3. Gravity
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. Inspector Rusher testified that he
believed a fire hazard existed. (Tr. 152:15-19) When giving out the citation, Inspector Rusher
testified that he thought the coal spillage and oxygen formed two sides of the fire triangle − all
that was left was an ignition source. (Tr. 160:1-8) Inspector Rusher testified that if an ignition
did occur resulting in a fire or explosion, miners could get hurt or killed by the initial blast, or the
fire could consume all the oxygen in the atmosphere. (Tr. 161: 25 − 162:5) I find that the
resulting injury from a fire would be serious and agree that the resulting injury could reasonably
be expected to cause lost workdays or restricted duty.
4. Significant and Substantial
As stated above, I have already determined that there was a violation of a mandatory
safety standard. Additionally, I determined there is a reasonable likelihood that the injury in
question will be of a reasonably serious nature. A measure of danger to safety, a discrete safety
hazard, was contributed to by the coal accumulation, which could result in injuries to a miner or
miners. What is left to be determined is whether there was a reasonable likelihood that the hazard
contributed to will result in an injury.
Inspector Rusher believed that there were two sides of a fire triangle in the violative area
and all that was left was the ignition source. (Tr. 160:1-8) The diesel equipment in the area being
used to bring the power transformer up provided a potential ignition source. (Tr. 160:20 − 161:6;
183:5-7) However, Inspector Rusher admitted that if there was diesel equipment in the area, it
would not be allowed to operate above 302 degrees Fahrenheit. (Tr. 176:11-20) The ignition
temperature of coal dust is above 400 degrees Fahrenheit. Id. He also testified that there was no
methane in the section that day (Tr. 182:5-7), and that there was no “float coal dust” mentioned
in the cite notes. (Tr. 170:5-8) The Secretary did not prove the existence of an ignition source.
Accordingly, I find that the Secretary failed to meet his burden to prove by a
preponderance of evidence that there was a reasonable likelihood that the hazard contributed to
will result in an injury. Therefore, I find that the citation was not properly designated as S&S.
5. Penalty
The Secretary specially assessed the penalty for this citation as $9,800.00. The AMCoal
New Era Mine operates a 5,774,752 tonnage mine. As I found above, AmCoal was moderately
negligent. At even the assessed penalty of $9,800.00, AmCoal’s business will not be

36 FMSHRC Page 2482

significantly affected. As to the gravity of the violation, I found the violation was not S&S.
According to the stipulations agreed to by the parties, AmCoal demonstrated good faith in
abatement of the violative condition.
The Secretary failed to prove that the magnitude of the gravity or the degree of operator
negligence was gross or extreme, or any other unique aggravating circumstances to warrant a
higher or “special” penalty assessment. Therefore, I assess a penalty in the amount of $745.00.
WHEREFORE, it is ORDERED that AmCoal pay a penalty of $9,782.00 within thirty
(30) days of the filing of this decision.16

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

Distribution:
Ryan L. Pardue, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
800, Denver, Colorado 80202
Jason W. Hardin, Esq., Fabian & Clendenin, 215 South State Street, Suite 1200, Salt Lake City,
Utah 84111-2323

16

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.

36 FMSHRC Page 2483

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
Office of Administrative Law Judges
721 19th Street, Suite 443
Denver, CO 80202-2536
303-844-3577 FAX 303-844-5268

September 11, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 2012-080-M
A.C. No. 13-02346-269803

v.

HSG-Perm Washta Plant

HIGMAN SAND AND GRAVEL, INC.,
Respondent
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 2013-701-M
A.C. No. 13-02346-330309 A

v.

HSG-Perm Washta Plant

MIKE HUBER, employed by
HIGMAN SAND AND GRAVEL, INC.,
Respondent
DECISION
Appearances:

Leigh Burleson, Esq., Office of the Solicitor, U.S. Department of Labor,
Kansas City, Missouri, for Petitioner;
Jeffrey A. Sar, Esq., Baron, Sar, Godwin & Lohr, Sioux City, Iowa, for
Respondents.

Before:

Judge Manning

These cases are before me upon petitions for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”),
against Higman Sand and Gravel and Mike Huber pursuant to sections 105 and 110 of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Act” or “Mine
Act”). The parties introduced testimony and documentary evidence at a hearing held in Sioux
City, Iowa, and filed post-hearing briefs.
Higman Sand and Gravel operates a permanent wash plant (the “Plant”) in Washta, Iowa,
on an intermittent basis. These cases involve Citation No. 6550983, which was issued on May
16, 2011, under section 104(d)(1) of the Mine Act. 30 U.S.C. § 814(d)(1). The Secretary
proposed a penalty of $3,000.00 under his special assessment regulation against Higman Sand &
Gravel and a penalty of $2,200.00 against Mike Huber under section 110(c) of the Mine Act.

36 FMSHRC Page 2484

I. DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW
On May 16, 2011, MSHA Inspector Howard W. Wood issued Citation No. 6550983
under section 104(d)(1) of the Mine Act, alleging a violation of section 56.12032 of the
Secretary’s safety standards. (Ex. G-3). The citation alleges that a 480 volt energized switch box
upon a stacker conveyor was damaged in such a way that the door did not close completely,
leaving an opening of about 4 inches. The door to the switch box includes push buttons that
control the stacker. The citation further alleges that there was standing water in the area and that
miners access the area at least two times a day. The citation states that miners informed the
inspector that this condition existed for at least one month and that the operations manager was
informed of the condition at least one week before the inspection.
Inspector Wood determined that an injury was reasonably likely to occur and that such an
injury could reasonably be expected to be fatal. Further, he determined that the violation was
Significant and Substantial (“S&S”), the operator’s negligence was high, and that one person
would be affected. Section 56.12032 of the Secretary’s safety standards provides that
“[i]nspection and cover plates on electrical equipment and junction boxes shall be kept in place
at all times except during testing or repairs.” 30 C.F.R § 56.12032. The Secretary proposed a
penalty of $3,000.00 against Higman Sand & Gravel under his special assessment regulation at
section 100.5. 30 C.F.R. § 100.5.
The Secretary also brought a civil penalty case against Mike Huber, a superintendent and
operations manager with Higman Sand & Gravel, for the same alleged violation. This proceeding
was brought under the authority of section 110(c) of the Mine Act. 30 U.S.C. § 820(c). The
Secretary proposed a penalty of $2,200.00 against Huber.
I find that Mike Huber did not violate section 110(c) and therefore the civil penalties
assessed against him are vacated. I also modify Citation No. 6550983 to a 104(a) citation with
moderate negligence.
Summary of the Evidence
Inspector Wood testified that when he inspected the No. 220 stacker conveyor he noticed
that the energized electrical switchbox attached to the conveyor was damaged. (Tr. 19). He
photographed the damaged switchbox, which was bent on the bottom right corner. (Ex. G-2). He
assumed that the box was hit by a piece of equipment. As a result of the damage, the door to the
electrical box did not fully close. He estimated that the distance between the door and cabinet of
the box in the bottom right corner was 3 to 4 inches. (Tr. 20, 24-25; Ex. G-2). He did not
measure the width of the opening. (Tr. 41). The circuits in the electrical box carry 480 volts of
current. The inspector believed that a miner accessed the box at least twice a day to turn the
conveyor on and off. (Tr. 25, 26).
The conveyor stacks sand, which is often wet. Inspector Wood testified that he was
concerned about water and sand dripping off the bottom of the belt, entering the electrical box,
shorting out the box, and energizing the cabinet of the box. (Tr. 20, 25-26). He observed puddles

36 FMSHRC Page 2485

of water upon the ground in the vicinity of the electrical box and there was wet sand on top of the
box. (Tr. 21; Ex. G-2). According to the inspector, the cabinet and door of the box could become
energized if wet sand accumulated upon the contacts within the box. (Tr. 25).
Based upon his observations and his conversation with the foreman at the plant, Inspector
Wood issued Citation No. 6550983 under section 104(d)(1) of the Mine Act. He determined that
the violation was serious and that an injury was reasonably likely based upon the conditions he
observed. (Tr. 31). He determined that any injury was reasonably likely to be fatal because the
area was wet, the box was metal, there were live 480 volt circuits in the box, and miners must
open the box to turn the conveyor on or off twice a day. (Tr. 32). He further determined that the
violation was S&S and one person would be affected. He considered the violation to be the result
of Higman’s high negligence because Larry Holzman, the foreman, told him that the box was in
that condition for at least one week. Although Holzman requested that the electrical box be
replaced a week before the inspection, Higman did not purchase a new one. (Tr. 32-34, 74-75).
Holzman’s supervisor was Mike Huber and according to the inspector, Huber told Holzman to
try to straighten the existing box. (Tr. 35).1
Inspector Wood recommended that MSHA file a penalty proceeding against Huber
because he was the production supervisor, had the authority to purchase supplies, and failed to
order a new electrical box to correct the hazardous condition. (Tr. 36-37). The inspector testified
that he did not know whether Huber saw the damaged electrical box or knew the extent of the
damage. (Tr. 37-38, 40-41, 50). Inspector Wood testified that Huber was not at the plant the day
of the subject inspection.
Jason Coombs, a former assistant production manager at the plant, worked for Higman
when the cited electrical box was damaged and when the subject citation was issued. He testified
that the box was damaged around June 2009 when a loader operator backed into it. (Tr. 107-08).
He did not believe that the damage to the box created a safety hazard. (Tr. 150). This damaged
electrical box was not cited by MSHA until the May 2011 inspection.
Coombs further examined the electrical box after it was removed from the stacker
conveyor and stated that there was a lip around the cabinet of the box that prevented rain or
moisture from entering the box. (Tr. 115, 138-39; Ex. R-103(f)). He measured the opening
between the door and the cabinet to be less than 1 inch. (Tr. 117; Ex. R-103(i)). He testified that
it was possible that the opening in the box was different when he examined it than when the
inspector cited it but, because the box was able to close and latch, it could not have been
substantially different. (Tr. 128, 130).2 Coombs further testified that, even if there was water in
the area, a miner could not get a hand into the box to be shocked by energized parts. (Tr. 142).
1

Inspector Wood initially determined that the violation was the result of Higman’s
“reckless disregard” but he modified the citation to high negligence because he did not talk to
Huber. (Tr. 38).
2

Higman used the box in the damaged condition to operate the sand conveyor and the
box will not energize the conveyor unless the door is closed and latched. The damage did not
affect the ability of miners to close and latch the door.

36 FMSHRC Page 2486

Mike Huber is the production manager for Higman. He oversees a number of plants and
pits for Higman. (Tr. 153-54). His “second in command” is Jason Coombs. Larry Holzman
became the foreman of the Washta Plant in April 2011. (Tr. 154-55). Huber testified that he
never saw the subject electrical box prior to the MSHA inspection on May 16, 2011, but he knew
that a loader damaged it. (Tr. 155). Holzman’s predecessor, Randy Rasmussen, accidently
backed into the electrical box. Huber testified that Rasmussen told him that the damage was “just
a cosmetic issue.” Id. Huber stated that Higman did not move the cited sand conveyor after the
loader damaged the electrical and that MSHA inspected it several times without issuing a
citation. (Tr. 156). Because the electrical box was neither cited by MSHA nor mentioned as a
safety issue, Huber did not think about the box until Holzman mentioned it shortly after he was
hired in April 2011. (Tr. 157). Huber testified that he believed that the damage Holzman referred
to was the “cosmetic” damage that Rasmussen told him about. (Tr. 158). He testified that he did
not know that the electrical box presented a safety hazard and, if he had reason to believe that a
hazard was present, he would have replaced the box. (Tr. 158).
Huber does not believe that the damaged electrical box presented a safety hazard to
miners. (Tr. 169). First, moisture was unable to enter the box. Second, the continuity and
resistance tests performed upon the box prior to the MSHA inspection demonstrate that the box
was fully grounded. (Tr. 168-69, Ex. R-104). If water or wet sand did enter the box, the circuit
breaker would cut off all power. (Tr. 182-83). Huber believed that MSHA inspectors examined
the sand stacker conveyor including the electrical box during past inspections. Because these
inspectors did not issue any citations for the condition of the electrical box, Huber assumed that
it complied with the safety standards. (Tr. 173-74, 177). He never saw the box after the loader
backed into it. The operations he supervises are spread out over 100 miles and they include about
400 conveyors. (Tr. 175). When it was reported to him that a loader damaged the box, but that
the damage was cosmetic, he had no reason to disbelieve that statement. Id.
Larry Holzman started working for Higman as a foreman at the Washta Plant in April
2011. (Tr. 186-87). He was present during Inspector Wood’s May 2011 inspection. He testified
that the opening in the electrical box caused by the loader was too narrow for a person to put
their hand or fingers into the box. (Tr. 189). The gap was about 3/4 of an inch at its widest point.
(Tr. 189-90, 195; Ex. R-103(g) & (i)). The presence of the “rain gutter lip” prevented extraneous
material or someone’s fingers from entering the box. (Tr. 194-95). Holzman testified that it was
not reasonably likely that the electrical box would injure anyone. (Tr. 190). Continuity and
resistance testing demonstrated that the box was fully grounded. Although he recommended that
the box be replaced, he did not believe that it was dangerous. (Tr. 192). He never indicated to
Huber that it presented a hazard to miners.
Richard Lemmon, the safety superintendent with Higman, worked for the company for
eight years. He does not work at the plant. He testified that after Rasmussen hit the electrical box
with the loader, MSHA inspected the plant several times but issued no citations. (Tr. 200, 20607, 218). He also stated that he is not aware of any facts that would have alerted Huber that the
box presented a safety hazard to miners. (Tr. 207). He testified that the condition of the electrical
box did not create a safety hazard, but he admitted that if water entered the box and the box
became energized, someone could be electrocuted. (Tr. 213-14, 215, 217-18). The grounding

36 FMSHRC Page 2487

system would prevent the box from being energized in the event of a short, so a miner would not
be shocked or electrocuted. (Tr. 220).
Discussion and Analysis
Higman does not dispute the fact of violation for Citation No. 6550983, but does
challenge the S&S, negligence, and unwarrantable failure designations. Mike Huber argues that
he should not be assessed a penalty under the section 110(c) civil penalty action.
I find that the violation was S&S.3 Higman accepts the violation of section 56.12032. I
find that the discrete safety hazard presented by the violation was the danger of electrifying the
box and resulting electric shock. As is typical, it is the third element of the Mathies test that
presents the greatest challenge. In U.S. Steel Mining Co., the Commission held that “the third
element of the Mathies test does not require the Secretary to prove it was ‘more probable than
not’ an injury would result.” 18 FMSHRC 862, 865 (citation omitted). The Commission has also
long held that “[t]he fact that injury has been avoided in the past in connection with a particular
violation may be ‘fortunate, but not determinative.’” U.S. Steel, 18 FMSHRC at 867 (quoting
Ozark-Mahoning Co., 8 FMSHRC 190, 192 (Feb. 1986)).
The Commission reiterated these principles in Cumberland Coal Resources, LP, 33
FMSHRC 2357 (Oct. 2011), and Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC
1257 (Oct. 2010). In Musser Engineering, the Commission rejected the mine operator’s
argument that “there must be a reasonable likelihood that the violation will cause injury.” 32
FMSHRC at 1280-81. Instead, the Commission held that the “test under the third element [of
Mathies] is whether there is a reasonable likelihood that the hazard contributed to by the
violation will cause injury.” Id.
Assuming continued mining operations, the hazard contributed to by the violation was
reasonably likely to lead to a serious injury. The cited cover closed and latched, preventing
miners from directly contacting the interior circuit. I credit Inspector Wood’s testimony,
however, that a miner could be shocked because the gap where the door met the cabinet could
allow water to enter the box, contact the circuits, cause a short, and energize the box. This gap
was in the bottom corner of the box, there was no foreign material in the box at the time of
inspection, and the box had a lip to prevent material from entering; Higman, however, did not
3

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)
(2006). A violation is properly designated S&S “if, based upon the particular facts surrounding
that violation, there exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC
822, 825 (Apr. 1981). In order to establish the S&S nature of a violation, the Secretary must
prove: “(1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard –
that is, a measure of danger to safety – contributed to by the violation; (3) a reasonable likelihood
that the hazard contributed to will result in an injury; and (4) a reasonable likelihood that the
injury will be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984);
accord Buck Creek Coal Co., Inc., 52 F.3d 133, 135 (7th Cir. 1995); Austin Power Co., Inc., 861
F. 2d 99, 103 (5th Cir. 1988) (approving Mathies criteria).

36 FMSHRC Page 2488

plan to replace the electrical box. Assuming continued mining operations, I find that the violation
and conditions in the area could degrade to allow water, sand, and other materials to enter the
electrical box through the opening. This material could short the electrical circuit and the
grounding system could fail to prevent current from energizing the box. Miners access the box at
least twice a day. The electrical components in the box carry 480 volts of electricity. If this
current energized the box as a result of foreign material entering the box through the opening,
anyone who contacted the box would suffer a serious electrical shock, which is reasonably likely
to cause a serious or fatal injury. I find that the risk of death or serious injury was not so remote
as to fail the third element of the Mathies test. Consequently, I find that the violation was S&S.
Looking at all the facts and circumstances of this case, I find that the violation was the
result of Higman’s moderate negligence, not its high negligence or unwarrantable failure. 4 The
cited condition existed since June 2009 when a loader backed into the box. Although the
violation existed for more than two years and was in plain sight, the plant did not move in that
time and MSHA never cited the condition, despite conducting several inspections. The operator
knew of and did not abate the condition, but I credit the testimony of Holzman, Coombs,
Lemmon, and Huber that they did not believe that the damage to the electrical box presented a
hazard and that Higman did not know that the condition violated the standard. None of the
photographs the parties introduced at the hearing are conclusive and witness accounts differ
concerning the condition of the box, but the damage was not extensive because the door still
latched.5 The Secretary did not show that the operator was on notice that greater efforts were
necessary for compliance with section 56.12032. Higman should have corrected the cited
condition and therefore the violation was the result of its moderate negligence. Citation No.
6550983, however, was not the result of Higman’s unwarrantable failure because its conduct was
not aggravated.

4

Unwarrantable failure is defined by such conduct as “reckless disregard,” “intentional
misconduct,” “indifference” or a “serious lack of reasonable care.” Emery Mining Corp., 9
FMSHRC at 2003; see also Buck Creek Coal, Inc. v. FMSHRC, 52 F. 3d 133, 136 (7th Cir.
1995). Whether conduct is “aggravated” in the context of an unwarrantable failure analysis 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 e.g. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). Repeated similar
violations are relevant to an unwarrantable failure determination to the extent that they serve to
put an operator on notice that greater efforts are necessary for compliance with a standard.
Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992).
5

A shadow obscures the damaged area of the box in the Secretary’s photo. (Ex. G-2).
The photos presented by Respondents were taken after the box was removed from the sand
conveyor. (Ex. R-103)

36 FMSHRC Page 2489

I find that the Secretary did not fulfill his burden6 to show that Huber knew or had reason
to know of the cited condition that violated section 56.12032 and Huber therefore did not violate
section 110(c).7 I credit Huber’s testimony that he believed that the condition cited in Citation
No. 6550983 constituted cosmetic damage that neither violated the Secretary’s safety standards
nor posed a danger to miners. Huber’s subordinates alerted him of the damage, but did not
suggest that it was dangerous or violative. Because the electrical box was neither cited by MSHA
nor mentioned as a safety issue, Huber lacked notice that it required replacement. He did not
work on-site and supervised all Higman’s operations that included 400 conveyors spread over
100 miles. Huber did not see the cited condition; he relied upon the opinion of the miners he
trusted who did not believe the condition created a hazard. Although Huber knew that the box
was damaged, the Secretary did not present evidence to show that Huber knew or had reason to
know that the cited condition created a hazard or violated the Secretary’s safety standards. His
actions did not exhibit aggravated conduct or greater than ordinary negligence. The civil penalty
proposed by the Secretary against Mike Huber in CENT 2013-701-M under section 110(c) is
VACATED.

6

In order to find individual liability in a 110(c) action, the Secretary bears the burden to
show by a preponderance of the credible evidence that the conduct at issue was aggravated.
Maple Creek Mining, 27 FMSHRC 555, 570 (2005).
7

The Commission summarized the law applicable to a Section 110(c) violation as

follows:
Section 110(c) of the Mine Act provides that, whenever a corporate
operator violates a mandatory health or safety standard, a director, officer, or
agent of such corporate operator who knowingly authorized, ordered, or carried
out the violation shall be subject to an individual civil penalty. 30 U.S.C. §
820(c). The proper legal inquiry for determining liability under section 110(c) is
whether the corporate agent knew or had reason to know of a violative
condition. Kenny Richardson, 3 FMSHRC 8, 16 (Jan. 1981), aff'd on other
grounds, 689 F.2d 632 (6th Cir. 1982), cert. denied, 461 U.S. 928 (1983); accord
Freeman United Coal Mining Co. v. FMSHRC, 108 F.3d 358, 362-64 (D.C. Cir.
1997). To establish section 110(c) liability, the Secretary must prove that an
individual knew or had reason to know of the violative condition, not that the
individual knowingly violated the law. Warren Steen Constr., Inc., 14 FMSHRC
1125, 1131 (July 1992) (citing United States v. Int'l Minerals & Chem. Corp., 402
U.S. 558, 563 (1971)). A knowing violation occurs when an individual “in a
position to protect employee safety and health fails to act on the basis of
information that gives him knowledge or reason to know of the existence of a
violative condition.” Kenny Richardson, 3 FMSHRC at 16. Section 110(c)
liability is predicated on aggravated conduct constituting more than ordinary
negligence. BethEnergy Mines, Inc., 14 FMSHRC 1232, 1245 (Aug. 1992).
Cougar Coal Company, 25 FMSHRC 513, 516 (Sept. 2003).

36 FMSHRC Page 2490

II. APPROPRIATE CIVIL PENALTIES
Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an
appropriate civil penalty. I have considered the Assessed Violation History Report, which was
submitted by the Secretary. (Ex. G-1). MSHA issued 15 citations at the plant in the 15 months
prior to May 16, 2011, and none of the violations were S&S. At all pertinent times, the HSGPerm Washta Plant was a small operation and Higman Sand and Gravel, Inc., was a small mine
operator. The violation was abated in good faith. The penalty assessed in this decision will not
have an adverse effect upon the ability of Higman Sand & Gravel to continue in business. The
gravity was serious and the negligence was moderate.

III. ORDER
For the reasons set forth above, Citation No. 6550983 is MODIFIED to a section 104(a)
citation with moderate negligence and Higman Sand & Gravel, Inc., is ORDERED TO PAY the
Secretary of Labor the sum of $1,250.00 within 30 days of the date of this decision.8 The case
against Mike Huber, CENT 2013-701-M, is hereby DISMISSED.

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

Distribution:
Leigh Burleson, Esq., Office of the Solicitor, U.S. Department of Labor, Two Pershing Square
Building, 2300 Main Street, Suite 1020, Kansas City, MO 64108
Jeffrey A. Sar, Esq., Baron, Sar, Godwin, Gill & Lohr, PO Box 717, Sioux City, IA 51102

8

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.

36 FMSHRC Page 2491

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9958 / FAX: 202-434-9949

September 19, 2014
CIVIL PENALTY PROCEEDING

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

Docket No. SE 2012-0266 M
A.C. No. 08-01203-279931

v.
YOUNGQUIST BROTHERS ROCK, INC.,
Respondent

Mine: Youngquist Brothers Rock Inc.

DECISION AND ORDER
Appearances:

Emily O. Roberts, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, TN, for Petitioner;
Jake Huffman, Youngquist Brothers Rock, Inc., Myers, FL, pro se litigant,
for Respondent

Before:

Judge L. Zane Gill

This proceeding arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) (“Mine Act” or “Act”), involves one section 104(a) citation, 30 U.S.C. §
814(a), issued by the Department of Labor’s Mine Safety and Health Administration (“MSHA”)
to Youngquist Brother’s Rock, Inc. (“Youngquist”).1 The parties presented testimony and
documentary evidence at the hearing held in Fort Myers, Florida on September 24, 2013.
The contested issues at trial for Citation No. 8642418 included whether MSHA had
jurisdiction under the Act to issue the Citation to Youngquist and whether Youngquist violated
30 C.F.R. § 56.15005 as alleged in the Citation.
For the reasons set forth below, I find that MSHA did have jurisdiction to issue the
Citation under the Mine Act. I also find that Youngquist violated Section 56.15005 under the
Act, the negligence was moderate, the injury was highly likely to result in fatality, and I find that
the citation was significant and substantial. I assess a penalty in the amount of $6,458.40.

1

On July 25, 2013, I signed a Decision Approving Partial Settlement for the remaining
eight Citations for Docket No. SE 2012-0266 M, and ordered Youngquist Brothers, Inc. to pay a
total sum of $3,278.00.

36 FMSHRC Page 2492

I.

Stipulations

At the hearing, the Secretary read the Stipulations into the record: (Tr. 6:6-22)
1. The respondent owns and operates a surface mine producing sand and gravel lime rock
products. The mine, Youngquist Brothers Rock, Inc., ID number 08-01203, is located in
Lee County, Florida.
2. Employees at Youngquist Brothers Rock, Inc., Mine ID 08-01203 worked 80,543 hours
in 2011.
3. Copies of 104(a) citation number 8642418 and 107(a) order number 8642417 were
served on the respondent by an inspector employed by the Mine Safety and Health
Administration.
4. The Respondent timely contested the 104(a) citation number 8642418.
5. The proposed penalty will not affect the respondent’s ability to continue business.
Prior to the hearing, the parties also stipulated to the Commission’s jurisdiction to hear and rule
on this case in a Joint Prehearing Report received by the Court on September 18, 2013, which
states:
Jurisdiction exists because the Respondent was an operator of a
mine, I.D. Number 08-01203, as defined in section 3(d) of the
Mine Act, 30 U.S.C. § 802(d), and the products of that mine
entered into the stream of 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, at all times relevant to
these proceedings.
Joint Prehearing Report at 1.
II.

Jurisdiction
A. Statutory Definition of “coal or other mine”
Section 3(h)(1) of the Mine Act defines of “coal or other mine” as follows:
[C]oal or other mine means (A) an area of land from which
minerals are extracted in nonliquid form or, if in liquid form, are
extracted with workers underground, (B) private ways and roads
appurtenant to such area, and (C) lands, excavations, underground
passageways, shafts, slopes, tunnels and workings, structures,
facilities, equipment, machines, tools, or other property including
impoundments, retention dams, and tailings ponds, on the surface

36 FMSHRC Page 2493

or underground, used in, or to be used in, or resulting from, the
work of extracting such minerals from their natural deposits in
nonliquid form, or if in liquid form, with workers underground, or
used in, or to be used in, the milling of such minerals, or the work
of preparing coal or other minerals, and includes custom coal
preparation facilities.
30 U.S.C. § 802(h)(1). (emphasis added)
It is well established that Congress intended this definition to be interpreted broadly. See,
e.g., Calmat Co. of Ariz., 27 FMSHRC 617, 622 (Sept. 2005), citing S. Rep. No. 95-181, at 14
(1977) ([I]t is the Committee’s intention that what is considered to be a mine and to be regulated
under this Act be given the broadest possible interpretation.). However, the courts have
recognized that the jurisdiction of the Mine Act is not without limitations. See, e.g., Sec’y of
Labor v. Nat’l Cement Co. of Cal., Inc., et. al, 573 F.3d 788, 794-95 (D.C. Cir. 2009) (“National
Cement”) (rejecting unreasonably expansive reading of subsection 3(h)(1)(B)); Paul v. P.B.K.B.B., Inc., 7 FMSHRC 1784, 1787 (Nov. 1985) (While we have recognized that the definition
of coal or other mine provided in section 3(h) of the Mine Act is expansive and is to be
interpreted broadly the inclusive nature of the Act’s coverage is not without bounds.); Donovan
v. Carolina Stalite Co., 734 F.2d 1547, 1551 (D.C. Cir. 1984).
In National Cement, the Court of Appeals for the D.C. Circuit discussed reasonable
limitations on what could be considered part of a “coal or other mine under subsections
3(h)(1)(A), (B), and (C). 573 F.3d at 793-97. The Secretary interpreted subsection (B) more
narrowly than subsection (A). Id. at 793. She took the position that subsection (A), which covers
extraction areas, extends to all the facilities and equipment within the boundaries of the
extraction area, because virtually everything within an extraction area is necessarily related to
mining activity. Id. at 794. However, she interpreted subsection (B), which covers private ways
and roads appurtenant to extraction areas, to apply only to the ways and roads themselves. Id.
Additionally, equipment and vehicles traveling on such roads would fall under MSHA
jurisdiction only if they were covered under subsection (C), which covers only those facilities
and equipment that are used in, or to be used in, or resulting from mining activities. Id. at 795.
The D.C. Circuit found that the Secretary’s interpretation of section 3(h)(1) was reasonable and
entitled to deference. Id. at 794-97.
The Court in National Cement also adopted the Secretary’s interpretation that “private”
means are “restricted to a particular group or class of persons (not to a particular person).” Id. at
791,795. However, liability under the Mine Act requires a finding of control because only mine
“operators” can be cited and held liable for violations. See 18 U.S.C. §§ 802(d), 814(a); Sec'y
of Labor v. Berwind Natural Res. Corp., 21 F.M.S.H.R.C. 1284, 1293 (1999) (stating that to be
an “operator,” an entity must have “substantial involvement” in the operation of the mine).
Therefore, an entity cannot be held liable unless it “operates, controls, or supervises” the
mine. 30 U.S.C. § 802(d).
Section 3(h)(1)(A) of the Mine Act is not in issue here. What is in issue is subsection (B),
which covers private ways and roads appurtenant to extraction areas themselves, and subsection

36 FMSHRC Page 2494

(C) which covers equipment and vehicles that are used in or resulting from mining activities
traveling on such roads. National Cement at 794-795. Thus, what must be determined is if the
area is a private way, appurtenant to the mine and under the control of the mine, and that the
truck in question is equipment used in or resulting from mining activities.
B. The Parties’ Positions
On December 14, 2011, MSHA Inspector Leroy Ford2 (“Inspector Ford”) issued Citation
No. 8642418 to Youngquist alleging a violation of 30 C.F.R. § 56.15005. Inspector Ford
observed a truck driver on top of his load in the bed of his truck shoveling material. Ex. S-1. The
driver was not wearing a safety belt or line. Id. Inspector Ford testified that he had just finished
inspecting the mine and was doing some work in his vehicle when he looked up and noticed a
truck driver on the back of his bed about two hundred to three hundred feet from where he was
sitting. (Tr. 24:24 – 25:6) He testified that the truck was approximately three hundred to four
hundred feet inside the gate entrance to the mine. (Tr. 26:12-20) Inspector Ford was able to take
a picture3 of the vehicle before it drove away. (Tr. 27:3-8)
Immediately, Inspector Ford went straight to the office to talk to Jake Huffman4 (“Mr.
Huffman”) and explained that he was going to issue a 107(a) imminent danger order. (Tr. 27:1821) Inspector Ford also testified that he wrote the Citation because he believed the property
where the truck was located belonged to the mine. (Tr. 64:22-24) Inspector Ford testified that he
told Mr. Huffman the truck was located at the gate entrance (Tr. 28:8-9) and located on mine
property because it was just inside the gate to the mine. (Tr. 66:24-25) If the truck driver had
been outside of the gate, Inspector Ford noted, it would not have been under MSHA’s
jurisdiction. (Tr. 65:2-4)
Mr. Huffman testified that Youngquist owns two thousand acres, and that there are pieces
of land that are leased out that MSHA does not have jurisdiction over, including the “restaurant”
that sits on the property.5 (Tr. 51:4-10; Ex. S-4) Mr. Huffman testified that the truck in the
picture was taken in the “restaurant” parking lot. (Tr. 51:4-10) Mr. Huffman testified that while
the truck was on the mine property owned by Youngquist Brothers, that particular section was
leased out. (Tr. 52:12-14) Mr. Huffman testified that truck drivers or the general public can drive
into the dirt lot and go over into the leased “restaurant” area to have lunch. (Tr. 51:22-24)
2

After serving in Vietnam, Inspector Ford worked in the coal mines in Kentucky. (Tr.
10:19-21) During his twenty-six year tenure for a surface mine (Tr. 5-13), he was a safety
director for ten years, and worked on pretty much everything else in the mine. (Tr. 16-18) He
also worked as a truck driver for ten years before working for MSHA. (Tr. 12:5-6) Inspector
Ford began working for MSHA in 1998 in the metal non-metal division. (Tr. 12:8; 12:19-25) As
of the day of the hearing, Inspector Ford worked a total of sixteen years for MSHA in Florida.
(Tr. 13:20-21)
3

The picture was admitted into evidence. Ex. S-4.

4

At the time of the hearing, Mr. Huffman was the general manager of Youngquist
Brothers Rock and agreed to represent the Respondent and to give testimony as required at trial.
(Tr. 5:9-15)
5

The “restaurant” Mr. Huffman refers to is nothing more than a “truck that this man has
turned into his restaurant… [that] hasn’t moved… [and] [h]e set it up on blocks.” (Tr. 75:4-9)
36 FMSHRC Page 2495

Inspector Ford spoke to Mr. Huffman and told him that the violation occurred on his property,
but Mr. Huffman testified that he did not bring up any issues because “it’s best not to ruffle those
feathers.” (Tr. 60:19-22)
Mr. Huffman, however, did admit that the land that the “restaurant” leases abuts the
entrance and exit gate of the mine. (Tr. 77:1-3) Inspector Ford testified that he told Mr. Huffman
at the time he wrote the imminent danger order that the truck was on his property, (Tr. 86:10-11)
and at the time he issued the Citation there was no conversation that the area in question was a
lunch area and not part of the mine. (Tr. 86:21-23) To Inspector Ford the area in question
appeared to be a meals-on-wheels set up. (Tr. 66:9-12)
C. Analysis of the Facts
It is important to note that at no point during the hearing, (Tr. 82:12-14) or at any point
after the hearing, did Mr. Huffman or any agent of Youngquist provide the Court with a copy of
the lease agreement between Youngquist and the “restaurant.”6 Nor did Mr. Huffman call the
“restaurant” owner as a witness to leasing out a portion of the mine property. As such, there is no
evidence on record other than trial testimony of Mr. Huffman that a lease exists, and that the area
in question does not in fact belong to Youngquist’s mine and subject to MSHA jurisdiction.
Indeed, other than vague testimony that the leased property to the “restaurant” was a “dirt”
section of approximately one acre, there is no evidence on record to show that the truck in the
picture taken by Inspector Ford was actually on the restaurant’s property.7 Mr. Huffman did
provide a handwritten drawing of the property, but without a lease or evidence showing where
the actual property line existed, I cannot be certain that the truck was on any other property but
on Youngquist’s mine property. Ex. S-4, Ex. R-1.
Even if Respondent had put forth credible evidence that the area in question where the
truck was located was leased property to the “restaurant,” I would still find that under National
Cement, the area in question is subject to the jurisdiction of MSHA.8
Mr. Huffman admitted that the land that the “restaurant” leases abuts the entrance and
exit gate of the mine. (Tr. 77:1-3) Additionally, according to the drawing made by Mr. Huffman,
the “restaurant” property abuts the mine property. Ex. R-1. Mr. Huffman testified that the whole
property within the gates was owned by Youngquist (Tr. 51:4-10); that the “restaurant” was
within Youngquist’s property gates (Tr. 77:1-3; 77:11-12); and assuming a lease does exist, the
area in question is leased to a private party who provides food for patrons of the mine and other
people who came onto the property. (Tr. 52:12-14) Mr. Huffman also testified that the truck
depicted in the picture was in the “restaurant’s” dirt parking lot. (Tr. 51:9-10; Ex. S-4) The
“restaurant” property is considered private even if it is open for business to the public because it
6

The Court did provide Mr. Hufffman and Youngquist the opportunity to provide a copy
of the lease to the Court after the hearing.
7

Mr. Huffman made the distinction that the mine property is the area that is asphalted
and the “restaurant” property is the dirt area. (Tr. 67:8-18)
8

As the litigant was pro se, I will include the National Cement reasoning in the decision
to explain that MSHA had jurisdiction to issue Citation No. 8642418 even if the land was leased
to the “restaurant.”
36 FMSHRC Page 2496

is “restricted to a particular group or class of persons, namely its customers. Therefore, according
to the above, I find that the truck in question was located on a private way appurtenant to
Youngquist’s operations.
Mr. Huffman testified that the distance from the scales to the road, which is directly
outside the mine gates, is approximately four hundred to five hundred feet. (Tr. 59:17-20) The
mine property and the “restaurant” property share this gated entrance. (Tr. 77:11-12) When Mr.
Huffman was asked if the load on the truck in the picture appeared to be sand and gravel, Mr.
Huffman testified that it seemed to be the color of sand and gravel in the bed of the truck in the
picture. (Tr. 54:16-18; Ex. S-4) By looking at the picture and the hand drawing made by Mr.
Huffman together, it appears as though the truck in question was driving from the scales towards
the exit gates of the mine, and on his way out, the truck driver pulled over slightly off to the side
of the paved road to level off his load. (See Ex. S-4; See Ex. R-1) I therefore conclude that the
truck was used in and resulted from the mining activities at Youngquist.
Youngquist’s control over the “restaurant” lot can be proven circumstantially by its
location and testimony of Mr. Huffman. The “restaurant” is inside the mine’s gates, three
hundred to four hundred yards away from the scale house, and adjoining the lot on which
Youngquist’s printers and scales sit. (Tr. 77:1-3; 77:11-12; Tr. 26:12-20; Tr. 26:12-20; Ex. R-1)
There is no barrier between the “restaurant” lot and the mine. (Tr. 79:19-21) Additionally, Mr.
Huffman’s testimony showed that the behavior which led to Citation 8642418 is unusual because
of the mine’s zero tolerance policy:
They’re all aware that if they get caught in the back of their trucks,
in any of the rock mines, we’d just forever ban you from the rock
mines… There’s a zero tolerance for any of this. It’s an issue we
really don’t have. They go down the road where they’re far away
from the mines, and they do what they have to there. This is
something that we do not see.
(Tr. Tr. 58:25 − 59:9)
Mr. Huffman testified that the best place for the truck drivers to level off their load would
be four miles down the road (Tr. 59:5-9; 60:4-7), and that this was because “[w]e don’t
encourage it anywhere in the general vicinity of the mines.” This indicates that Youngquist did
have some control over what the truck drivers did within the mine gates.9
I find that MSHA did have jurisdiction to issue Citation No. 8642418 to Youngquist
because the area where the violative condition occurred was a private way appurtenant to the
mine under the control of the mine, and the truck in question was used in mining activities.

9

This is not to say that MSHA has jurisdiction of the operations of the “restaurant,” but
over violations such as the Citation at issue in this docket.

36 FMSHRC Page 2497

III.

Citation 8642418
A. The Violation

On December 14, 2011, MSHA Inspector Leroy Ford issued Citation No. 8642418 to
Youngquist alleging a violation of 30 C.F.R. § 56.15005. The regulation states that “[s]afety belt
and lines shall be worn when persons work where there is a danger of falling.” Section 56.15005
regulates a mandatory safety standard. The Citation alleges:
One truck driver was observed on top of a load in the bed of the
truck shoveling material. The driver was not wearing a safety belt
or line. The fall to the ground was estimated to be a 6’ to 7’ drop.
The truck was hauling from the scale house. The operation
manager had signs posted all around the scale house with
instructions to stay off the bed of the trucks. The signs were
written in Spanish and English. This condition was a factor that
contributed to the issuance of imminent danger order # 8642418
[sic]. Therefore no abatement time was set.
Ex. S-1.10
The Citation also alleges that the condition was highly likely to cause injury, that the
injury was reasonably likely to be fatal, that the violation was significant and substantial
(“S&S”), and the negligence standard was moderate negligence. Id. The Secretary proposed a
penalty of $7,176.00 for this violation.11 Inspector Ford observed a truck driver on top of his load
in the bed of his truck shoveling material. Id. Inspector Ford testified that the truck driver was
approximately six or seven feet off of the ground, (Tr. 25:24) and the truck driver was not
wearing a safety line, harness, belt, or anything to keep him from falling. (Tr. 26:2-5) Inspector
Ford could tell the driver did not have safety equipment on because he had a shovel in his hand
and he could see the truck driver moving around the back part of the bed. (Tr. 26:6-9; See also
Ex. S-4) I find that Youngquist violated Section 56.15005.
B. Negligence
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 present when “[t]he operator displayed
10

The actual imminent danger order number is 8642417.

11

The Respondent failed to present any evidence regarding the Citation itself. The
Respondent’s sole defense at the hearing was that MSHA lacked jurisdiction to issue the
Citation. In fact, upon the conclusion of the Secretary’s direct examination of Inspector Ford,
Mr. Huffman stated that “[e]verything he said is very accurate” when referring to Inspector
Ford’s testimony. (Tr. 50:10)
36 FMSHRC Page 2498

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 or 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.
The Commission has provided guidance for making the negligence determination in A. H.
Smith Stone Co., stating that:
Each mandatory standard thus carries with it an accompanying
duty of care to avoid violations of the standard, and an operator’s
failure to satisfy the appropriate duty can lead to a finding of
negligence... 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.
5 FMSHRC 13, 15 (Jan. 1983) (citations omitted).
Mitigation is something the operator does affirmatively, with knowledge of the potential
hazard being mitigated, that tends to reduce the likelihood of an injury to a miner. This includes
actions taken by the operator to prevent or correct hazardous conditions.
Inspector Ford marked the citation as moderate negligence because he explained to Mr.
Huffman at the time that he felt like they did everything they could possibly do as a company
because they had signs. (Tr. 38:14-17) Inspector Ford considered the signs to be mitigation. (Tr.
38:22-25)
Mr. Huffman testified that he is aware that there is an issue that some of the truck drivers
want to get into the bed of their trucks. (Tr. 57:1-5) Youngquist had seven signs at the scale
house, in English and Spanish, telling the truck drivers not to get inside the beds of the trucks.
(Tr. 21:7-10; 21:13-15; 56:23-25; 51:17-19) Mr. Huffman testified that there is a zero tolerance
policy for getting onto the truck beds at Youngquist and that the drivers go down the road four
miles where they are far from the mine to level the loads. (Tr. 59:5-9; 60:4-7)
Youngquist, however, does not provide a safe place for the drivers to level the load on the
mine property. (Tr. 59:11-13) They do not provide safety lines, belts, or harnesses. (Tr. 59:1416) Truck drivers are not advised of safe methods of tying off on the mine property. (Tr. 60:810) There are no signs that say that truck drivers must wear a belt to line if they need to tarp. (Tr.
58:9-11) There is no site-specific hazard awareness training for tying off. (Tr. 58:12-15) There
are no trainings or signs for acceptable safety methods for leveling the load of the truck bed. (Tr.
58:16-18) There are no trainings or signs about acceptable safety methods for leveling the load
of the truck bed. (Tr. 58:16-18) I find that given the known issue to Youngquist, they should

36 FMSHRC Page 2499

have training for safely tying off and safely leveling the load of the truck bed. For the reasons
stated above, I find the negligence to be moderate.
C. Gravity
The gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), “is
often viewed in terms of the seriousness of the violation.” Consolidation Coal Co., 18 FMSHRC
1541, 1549 (Sep. 1996) (citing Sellersburg Stone Co., 5 FMSHRC 287, 294-95 (March 1983),
aff'd, 736 F.2d 1147 (7th Cir. 1984) and Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 681
(April 1987)). 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 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 Commission has recognized that the likelihood of
injury is to be made assuming continued normal mining operations without abatement of the
violation. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985).
Inspector Ford testified that the truck driver was approximately six or seven feet off of
the ground, (Tr. 25:24) and the truck driver was not wearing a safety line, harness, belt, or
anything to keep him from falling. (Tr. 26:2-5) Inspector Ford could tell the driver did not have
safety equipment on because he had a shovel in his hand and he could see the truck driver
moving around the back part of the bed. (Tr. 26:6-9; See Ex. S-4) The safety harnesses tether the
drivers to the truck itself to prevent falls. (Tr. 33:22-25) From what Inspector Ford observed, the
truck driver could fall over the side, hit the ground head first, and probably break his neck. (Tr.
32:7-13) The driver could have been killed because he was high enough off of the ground. (Tr.
32:7-13) Based on the above, I agree that the injury is serious in nature and that the resulting
injury could result in a fatality.
D. Significant and Substantial
The Secretary bears the burden of proving all elements of a citation by a preponderance
of the evidence. In re: Contests of Respirable Dust Sample Alteration Citations: Keystone
Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995), aff’d 151 F.3d 1096 (D.C. Cir. 1998); Jim
Walter Resources, Inc., 30 FMSHRC 872, 878 (Aug. 2008) (ALJ Zielinski) (“The Secretary’s
burden is to prove the violations and related allegations, e.g., gravity and negligence, by a
preponderance of the evidence.”) Some of the citations in dispute and discussed below have been
designated by the Secretary as significant and substantial (“S&S”). 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 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). S&S enhanced enforcement is applicable only to
violations of mandatory health and safety standards. Cyprus Emerald Res. Corp. v. FMSHRC,
195 F.3d 42, 45 (D.C. Cir. 1999).

36 FMSHRC Page 2500

In Mathies Coal Co., the Commission established the standard for determining whether a
violation was S&S:
In order to establish that a violation of a mandatory safety standard
is significant and substantial under National Gypsum, the Secretary
of Labor must prove: (1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard – that is, a measure of
danger to safety – contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury in question will be of
a reasonably serious nature.
6 FMSHRC 1, 3-4 (Jan. 1984).
The third element of the Mathies test presents the most difficulty when determining
whether a violation is S&S. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985),
the Commission provided additional guidance: [T]he 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.” (citing U.S. Steel Mining Co., Inc., 6 FMSHRC
1834, 1836 (August 1984)). The Secretary, however, “need not prove a reasonable likelihood
that the violation itself will cause injury.” Cumberland Coal Resources, 33 FMSHRC 2357, 2365
(Oct. 2011) (citing Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1281
(Oct. 2010). Further, the Commission has found that “the absence of an injury-producing event
when a cited practice has occurred does not preclude a determination of S&S.” Id. (citing Elk
Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005); and Blue Bayou Sand & Gravel, Inc., 18
FMSHRC 853, 857 (June 1996)). This evaluation is also 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 at 905; U.S. Steel
Mining Co., Inc., 6 FMSHRC at 1574.
As stated above, I have already determined that there was a violation of a mandatory
safety standard. Additionally, I determined there is a high likelihood that the injury in question
will be of a reasonably serious nature, i.e. broken neck or broken back resulting in a fatality. A
measure of danger to safety, a discrete safety hazard, was contributed to by the lack of harness or
safety equipment, and thus could fail to keep the truck driver from falling from the truck bed,
which could result in serious injuries to a miner. What is left to be determined is whether there
was a reasonable likelihood that the hazard contributed to will result in an injury.
Inspector Ford had just finished inspecting the mine. He was doing paper work in his
vehicle when he looked up and noticed a truck driver on the back of his bed about two hundred
to three hundred feet from where he was sitting. (Tr. 24:24 – 25:6) That is what led Inspector
Ford to write the imminent danger order. (Tr. 25:20-22) Inspector Ford told Mr. Huffman that
the reason he wrote the imminent danger order was because a man was inside the back of the bed
without any fall protection and he could fall and possibly be killed. (Tr. 28:3-6)
Inspector Ford testified that he marked the citation as highly likely because he felt that if
the man had fallen from the top of the truck he could have broken his neck or his back, and that

36 FMSHRC Page 2501

would have resulted in paralysis or death. (Tr. 36:14-19; 37:3-6) Inspector Ford also testified that
he felt that falling was very likely to happen from where the truck driver was standing in the
back of the bed. (Tr. 36:24-25) It is also apparent form the photo exhibit that the truck driver was
standing towards the back of the truck bed. Ex. S-4. Inspector Ford testified that he designated
one person affected, and that person was the truck driver. (Tr. 37:7-8) Accordingly, I find that
the Secretary did meet his burden to prove S&S.
E. 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
said penalty. 29 C.F.R. § 2700.28.
Under Section 110(i) of the Mine Act, the Commission is to consider the following when
assessing a civil penalty: (1) the operator’s history of previous violations; (2) the appropriateness
of such penalty to the size of the business of the operator charged; (3) whether the operator was
negligent; (4) the effect on the operator's ability to continue in business; (5) the gravity of the
violation; and (6) the demonstrated good faith in abatement of the violative condition. 30 U.S.C
§ 820(i). Thus, the Commission alone is responsible for assessing final penalties. See Sellersburg
Stone Co. v. FMSHRC, 736 F.2d 1147, 1151-52 (7th Cir. 1984) (“[N]either the ALJ nor the
Commission is bound by the Secretary's proposed penalties … we find no basis upon which to
conclude that [MSHA's Part 100 penalty regulations] also govern the Commission.”); See
American Coal Co., 35 FMSHRC 1774, 1819 (July 2013)(ALJ).
The Commission has repeatedly held that substantial deviations from the Secretary's
proposed assessments must be adequately explained using the section 110(i) criteria. E.g., 293
Sellersburg Stone Co., 5 FMSHRC at 293; Hubb Corp., 22 FMSHRC 606, 612 (May
2000); Cantera Green, 22 FMSHRC 616, 620-21 (May 2000) (citations omitted). A judge need
not make exhaustive findings but must provide an adequate explanation of how the findings
contributed to his or her penalty assessments. Cantera Green, 22 FMSHRC at 622.
The Secretary assessed the penalty for this citation as $7,176.00. Youngquist operated the
mine for approximately 80,543 hours in 2011, which indicates that the mine is medium sized.
(Tr. 6:6-22; Ex. S-6) I have already determined above that Youngquist’s negligence was
moderate. As per the joint stipulations, Youngquist’s business will not be significantly affected
by the assessed penalty of $7,176.00. (Tr. 6:6-22) As to the gravity of the violation, I found the
violation to be S&S. The Secretary did not apply to ten percent penalty reduction for good faith
abatement because it was issued in conjunction with an imminent danger order, Order 8642417.
Therefore, no abatement time was set. However, given the circumstances that the truck driver
was not apprehended and Youngquist could not abate the violation, I will give Youngquist the
ten percent penalty reduction. Therefore, I assess the penalty amount against Youngquist to be
$6,458.40.

36 FMSHRC Page 2502

WHEREFORE, it is ORDERED that Youngquist pay a penalty of $6,458.40 within thirty (30)
days of the filing of this decision.

/s/ L. Zane Gill
L. Zane Gill
Administrative Law Judge
Distribution:
Emily O. Roberts, Esq., Office of the Solicitor, U.S. Department of Labor, 211 7th Avenue
North, Suite 240, Nashville, TN 37219
Jake Huffman, Youngquist Brothers Rock, Inc., 15401 Alico Road, Fort Myers, FL 33913

36 FMSHRC Page 2503

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
Office of Administrative Law Judges
721 19th Street, Suite 443
Denver, CO 80202-2536
303-844-3577 FAX 303-844-5268

September 25, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 2011-0277
A.C. No. 12-02295-242579
Docket No. LAKE 2011-1030
A.C. No. 12-02295-265364

v.

Docket No. LAKE 2012-0543
A.C. No. 12-02295-284950-01
PEABODY MIDWEST MINING, LLC,
Respondent

Docket No. LAKE 2012-0909
A.C. No. 12-02295-301060
Francisco Mine – Underground Pit
DECISION

Appearances:

Laura Ilardi Pearson, Esq., Office of the Solicitor, U.S. Department of
Labor, Denver, Colorado, for Petitioner;
Arthur M. Wolfson, Jackson Kelly PLLC, Pittsburgh, Pennsylvania, for
Respondent.

Before:

Judge Manning

These cases are before me upon petitions for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”),
against Peabody Midwest Mining, LLC, 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 Henderson, Kentucky, and
filed post-hearing briefs. Four section 104(d)(2) 1 orders of withdrawal were adjudicated at the
hearing. The orders were issued at the Francisco Underground Pit in Gibson County, Indiana.

1

Subsequent to the hearing, the parties submitted Additional Stipulations with respect to
the section 104(d) sequence for each order, as discussed below.

36 FMSHRC Page 2504

I. DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW
A. Order No. 8428824; LAKE 2011-277
On July 20, 2010, MSHA Inspector Philip Douglas Herndon issued Order No. 8428824
under section 104(d)(2)2 of the Mine Act, alleging a violation of section 75.202(a) of the
Secretary’s safety standards. (Ex. G-5). The order states that loose rocks hung about 9.5 feet
above the mine floor in the face area of the No. 7 entry on MMU-022. The order alleges that one
rock was 3 feet by 2 feet and was up to 7 inches thick. The other rock was 2 feet by 1.5 feet and
was up to 6 inches thick. The order also alleges that miners traveled directly below the hanging
rocks.
Inspector Herndon determined that an injury was reasonably likely to occur and that such
an injury could reasonably be expected to result in lost workdays or restricted duty. Further, he
determined that the violation was significant and substantial (“S&S”), the operator’s negligence
was high, and that one person would be affected. Section 75.202(a) provides that 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.” 30
C.F.R. § 75.202(a). The Secretary proposed a penalty of $17,800.00 for this order under his
special assessment regulation. 30 C.F.R. § 100.5.
For the reasons set forth below, I modify Order No. 8428824 to a 104(a) citation with
moderate negligence.
Discussion and Analysis
I find that the conditions cited in Order No. 8428824 constitute a violation of section
75.202(a). The Secretary's roof-control standard 30 C.F.R. § 75.202(a) is broadly worded.
Consequently, the Commission held that “the adequacy of particular roof support or other control
must be measured against the test of whether the support or control is what a reasonably prudent
person, familiar with the mining industry and protective purposes of the standard, would have
provided in order to meet the protection intended by the standard.” Harlan Cumberland Coal Co
Company, 20 FMSHRC 1275, 1277 (Dec. 1998) (citing Helen Mining Company, 10 FMSHRC
1672, 1674 (Dec. 1988)). The requirements of the safety standard, as applied to the roof, can be
broken down into three parts: (1) the cited area must be an area where persons work or travel; (2)
the area must be supported or otherwise controlled, and (3) such support must be adequate to
protect persons from falls of roof. The cited roof conditions were inby the last open crosscut in a
busy area where workers traveled. (Tr. 17). I credit Terry Morson, a safety technician of
Respondent, that pie pans and more bolts than the roof plan required helped to support the roof.
(Tr. 41-42). I credit, however, Inspector Herndon’s testimony that despite Respondent’s efforts,
the cited roof control was not adequate to protect miners from roof falls. Inspector Herndon
testified that the rocks he cited were “barely hanging” and shed particles onto the floor. (Tr. 20).
Respondent argues that the roof was controlled beyond the requirements of its roof control plan
2

The parties stipulate that this order was issued in the proper sequence under section
104(d). Additional Stipulations ¶ 1.

36 FMSHRC Page 2505

and merely showed signs of changing geology. I credit Inspector Herndon’s testimony, however,
that the rocks he viewed hanging from the roof required further support. A reasonably prudent
person familiar with the mining industry and this standard would provide more roof support to
address the hazard viewed by the inspector. Respondent violated section 75.202(a).
I find that Order No. 8428824 was S&S because the violation contributed to a hazard that
was reasonably likely to cause a serious injury.3 The cited condition violated section 75.202(a)
and contributed to the hazard of a rock fall permanently disabling a miner. Although pie pans
helped hold the cited rocks in place upon the roof and Respondent argues that as a result the
rocks would not fall, I credit Inspector Herndon’s testimony that the loose rocks were only held
by the corner of the pan. (Tr. 41, 26). Clint Underhill, the shift mine manager, testified that the
roof conditions at the mine changed daily due to geology and the humidity in July, which could
account for this dangerous condition that occurred despite Respondent’s additional roof control.
(Tr. 57). Further changes in the geological conditions in the area could also lead to the cited
stones falling. Although Respondent argues that the area beneath the rocks was not traveled the
day of or before the inspection, assuming continued normal mining operations I find that miners
would travel beneath the cited rocks. Inspector Herndon testified that rock dust in the cracks of
the rock suggested that the rocks existed in the cited condition for days, which means the
condition was unlikely to be corrected. The precarious position of the rocks made them likely to
fall and the area underneath was often busy, making a rock fall likely to strike a miner. (Tr. 17).
Due to the traffic in the cited area and the precarious position of the cited rocks, I find that Order
No. 8428824 was S&S and a serious violation.
I find that Respondent’s moderate negligence, but not its unwarrantable failure4 to
comply with the safety standard, caused the violation. Respondent knew or should have known
3

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)
(2006). In order to establish the S&S nature of a violation, the Secretary must prove: “(1) the
underlying violation of a mandatory safety standard; (2) a discrete safety hazard – that is, a
measure of danger to safety – contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury will
be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); accord
Buck Creek Coal Co., Inc., 52 F.3d 133, 135 (7th Cir. 1995); Austin Power Co., Inc., 861 F. 2d
99, 103 (5th Cir. 1988) (approving Mathies criteria). The Commission has held that “[t]he test
under the third element is whether there is a reasonable likelihood that the hazard contributed to
by the violation…will cause injury.” Musser Eng’g, Inc. and PBS Coals, Inc., 32 FMSHRC
1257, 1281 (Oct. 2010).
4

Unwarrantable failure is defined by such conduct as “reckless disregard,” “intentional
misconduct,” “indifference” or a “serious lack of reasonable care.” Emery Mining Corp., 9
FMSHRC at 2003; see also Buck Creek Coal, Inc. v. FMSHRC, 52 F. 3d 133, 136 (7th Cir.
1995). Whether conduct is “aggravated” in the context of an unwarrantable failure analysis 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
(continued…)

36 FMSHRC Page 2506

of the condition, but mitigated its negligence by undertaking efforts to control the roof. I find that
the condition of the roof was not obvious because the positioning of the rocks made them appear
trapped by pie pans. The pie pans highlight Respondent’s efforts to abate the hazardous roof
condition by providing additional support. The pie pans were not required by the roof plan and
Respondent also used more bolts than the plan required. Although aggravating factors exist
including that the condition existed for several days and the condition posed a high degree of
danger, I find that Respondent’s efforts to abate the citation and comply with the standard make
an unwarrantable failure designation inappropriate. Respondent did not ignore the need to
properly support its mine roof, it merely misjudged what was necessary to do so. These factors
combine to warrant a moderate negligence designation because Respondent should have known
of the violative condition.
I MODIFY Order No. 8428824 to a 104(a) citation with moderate negligence. A penalty
of $15,000.00 is appropriate for this violation.
B. Citation No. 8433566, LAKE 2012-543; and Citation No. 8433568, LAKE 2011-1030
On June 27, 2011, MSHA Inspector Shawn D. Batty issued Order No. 8433566 under
section 104(d)(2)5 of the Mine Act, alleging a violation of section 75.220(a)(1) of the Secretary’s
safety standards. (Ex. G-5). The citation alleges that Peabody Midwest did not follow the
provision in its approved roof control plan that requires entries in the mains to be no wider than
18 feet. The citation states that Inspector Batty measured the width of entries in Unit No. 1 and
discovered 35 places where the width of an entry was greater than the permissible 18 foot
maximum.
Inspector Batty determined that an injury was reasonably likely to occur and that such an
injury could reasonably be expected to be fatal. Further, he determined that the violation was
S&S, the operator’s negligence was high, and that 14 people would be affected. Section
75.220(a)(1) requires mine operators to “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.” 30 C.F.R. § 75.220(a). The Secretary proposed a penalty of $40,300.00
for this citation under his special assessment regulation. 30 C.F.R. § 100.5.

4

(…continued)
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 e.g. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). Repeated similar
violations are relevant to an unwarrantable failure determination to the extent that they serve to
put an operator on notice that greater efforts are necessary for compliance with a standard.
Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992).
5

Based upon these proceedings and the stipulations of the parties in Additional
Stipulations, this violation should be a 104(d)(1) citation. Additional Stipulations ¶ 3.

36 FMSHRC Page 2507

Inspector Batty also issued Citation No. 8433568 on June 27, 2011 under section
104(d)(2)6 of the Mine Act, alleging a violation of section 75.362(a)(1) of the Secretary’s safety
standards. (Ex. G-7). The citation alleges that Peabody Midwest did not conduct adequate onshift examinations in Unit No. 1. The inspector determined that the on-shift examinations were
inadequate based upon the conditions he cited in Citation No. 8433566. The citation states that
the mine examiners’ books did not contain the cited conditions.
Inspector Batty determined that an injury was reasonably likely to occur and that such an
injury could reasonably be expected to be fatal. Further, he determined that the violation was
S&S, the operator’s negligence was high, and that 14 people would be affected. Section
75.362(a)(1) requires that 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 . . . .” 30 C.F.R. § 75.362(a)(1). The safety
standard further provides that the certified person “shall check for hazardous conditions and
violations of mandatory health or safety standards referenced in paragraph (a)(3) of this section. .
. .” Id. Paragraph (a)(3) references section 75.220(a)(1). The Secretary proposed a penalty of
$38,503.00 for this citation.
For the reasons set forth below, I modify Citation Nos. 8433566 and 8433568 to affect
less than 14 people.
Discussion and Analysis
For Citation Nos. 8433566 and 8433568, Respondent accepts the violation, and the S&S,
negligence, and unwarrantable failure designations. Respondent contests the fatal designation
and the number of persons affected, seeking to reduce the penalty amount.
I find that fewer than 14 persons would be affected by the violation cited in Citation No.
8433566. An expansive, well-traveled area of entries of the submains were wider than 18 feet,
potentially affecting multiple miners. I find, however, that it was unlikely that the cited condition
would contribute to the injury of 14 miners. Although the inspector testified that 14 miners
worked in the area, I find it unlikely that 14 miners would be in the same space at the time of a
rock fall. I credit the testimony of Respondent’s witnesses, Chad Barras, Respondent’s safety
director, and Jack Wells, who was a member of Respondent’s safety department at the time of
the violation, that 14 miners were unlikely to be in one spot due to their varied work duties.
Wells testified that it “would be kind of a miracle” to see 14 miners together. (Tr. 108). Barras
also testified that the mine’s procedure to investigate roof falls would make it unlikely that this
citation would contribute to a succession of numerous roof falls and injury causing events that
would injure 14 people. (Tr. 118). I find that it was not reasonably likely that the violation at
issue in Citation No. 8433566 would have affected the entire 14-person crew. The maximum
number of miners affected would have been about five.
I find that the violation cited in Citation No. 8433566 was reasonably likely to contribute
to a fatal injury. Respondent does not dispute that Citation No. 8433566 was reasonably likely to
6

Based upon these proceedings and the stipulations of the parties in Additional
Stipulations, this violation should be a 104(d)(1) citation. Additional Stipulations ¶ 3.

36 FMSHRC Page 2508

contribute to an injury, 7 but does contest that the likely injury in such an event would not be
fatal. Respondent argues that an injury causing event was unlikely to occur because the cited
areas were newly mined submains instead of intersections, only marginally exceeded the
standard in the roof control plan, and did not show any evidence of unsafe conditions. It is well
recognized that roof falls pose one of the most serious hazards to miners in the coal mining
industry. United Mine Workers of America v. Dole, 870 F.2d 662, 669 (D.C. Cir. 1989). The
Commission has noted the inherently dangerous nature of mine roofs and attributed the leading
cause of death in underground mines to roof falls. Consolidation Coal Co., 6 FMSHRC 34, 37
(Jan. 1984); Eastover Mining Co., 4 FMSHRC 1207, 1211, n.8 (July 1982); Halfway
Incorporated, 8 FMSHRC 8, 13 (Jan. 1986). I find that the cited condition was extensive and
unlikely to be corrected under continued normal mining operations. Respondent’s arguments that
the ribs were not cracking or falling and the submains were new suggest that danger was not
imminent, but do not change the fact that a roof fall is likely to fatally injure a miner. Roof falls
are one of the greatest dangers in mining and I credit the inspector’s conclusion that the likely
injury for Citation No. 8433566 would be fatal.
My findings concerning the fatal designation and affected people for Citation No.
8433566 apply to Citation No. 8433568, but Citation No. 8433568 could potentially affect more
people. The dangers of the underlying conditions cited in Citation No. 8433566 affect the gravity
of Citation No. 8433568, but a variety of other hazards also contribute to the gravity because
inadequate examinations can allow additional hazards to exist. The distance covered by the
violative conditions cited in Citation No. 8433568 shows that the inadequate examinations were
not contained to a small area. Performing adequate examinations is one of the most important
safety precautions for a mine; proper examinations lead to the identification and correction of
hazards. Improper examinations allow hazards to exist and multiply. For these reasons and the
ones discussed above concerning Citation No. 8433566, Citation No. 8433568 was reasonably
likely to contribute to a fatal injury. The violation was serious and could affect more than five
miners.
Although I reduce the number of miners affected by the conditions identified in Citation Nos.
8433566 and 8433568, I highlight the seriousness of the violations, which posed a hazard to
multiple miners. Both of these violations could lead to roof falls that were likely to be fatal to
miners.

7

If Respondent had not accepted the S&S designation and argued that an accident was
not reasonably likely to contribute to a serious injury, I would have determined that Citation No.
8433566 contributed to the hazard of a roof fall that was reasonably likely to result in crushing
injuries. The roof control plan mandated 18 foot submains at entries. Allowing greater widths is
a clear violation of the plan that can contribute to a roof fall resulting in crushing injuries. The
sheer volume of violative areas, 1142 linear feet in 35 different locations, makes an injury more
likely. (Tr. 83). The cited areas of the mine were active and frequented by miners. (Tr. 84). The
cited condition was extensive, dangerous, and reasonably likely to contribute to a fall of rock and
resulting crushing injuries.

36 FMSHRC Page 2509

I MODIFY Citation No. 8433566 to be likely to affect no more than five miners and
Citation No. 8433568 to be likely to affect more than five miners. A penalty of $25,000.00 is
appropriate for Citation No. 8433566 and $28,000.00 is appropriate for Citation No. 8433568.
C. Citation No. 8434301; LAKE 2011-909
On May 26, 2011, MSHA Inspector Stephen J. Wilson issued Order No. 8434301 under
section 104(d)(2)8 of the Mine Act, alleging a violation of section 75.1103-5(h) of the
Secretary’s safety standards. (Ex. G-9). The citation states that the carbon monoxide (“CO”)
sensor at crosscut 12 providing fire protection for the 2nd Southwest Main A belt line became
inoperative at 02:57 am on May 26, 2011 during the midnight shift. The sensor alerted the person
upon the surface who is responsible for tracking the system. The citation alleges that this person
alerted the maintenance foreman of the condition but the foreman took no action to correct the
condition and did not assign anyone to continuously monitor for CO at the inoperative sensor.
The citation further alleges that two production units were in operation and belts continued to
operate.
Inspector Wilson determined that an injury was reasonably likely to occur and that such
an injury could reasonably be expected to be fatal. Further, he determined that the violation was
S&S, the operator’s negligence was high, and that 64 people would be affected. Section 75.11035(h) provides that “[i]f any fire detection component becomes inoperative, immediate action
must be taken to repair the component.” 30 C.F.R. § 75.1103-5(h). The safety standard further
provides that “[w]hile repairs are being made, operation of the belt may continue” if, as
applicable here, a “trained person . . . continuously” monitors for CO “at the inoperative sensor.”
Id. The Secretary proposed a penalty of $38,500.00 for this citation.
Discussion and Analysis
I find that Respondent’s failure to immediately calibrate the cited CO sensor violates
section 75.1103-5(h). I find that the cited sensor, which required calibration, was inoperative.
Herbert Andy Ryder, Respondent’s maintenance foreman, testified that the sensor still monitored
CO, but underestimated the amount of CO in the area by 5 ppm. (Tr. 159). The screen that
alerted Respondent that the sensor needed calibrated, however, did not contain specific data
about the performance of the sensor. A test that exposes the sensor to a known quantity of CO
had to be performed to garner this information. (Tr. 159). The sensor’s CO monitoring ability
could have estimated CO levels well below a calibrated sensor, which would impair the sensor
enough to make it effectively inoperative. The standard requires immediate repair because an
inoperative sensor cannot detect increased CO levels to provide warning of a fire, which can be
true of a poorly calibrated CO sensor. Without performing a test to confirm the specific condition
of the CO sensor, Respondent neglected to fix the sensor immediately, risking that an ineffective
and inoperative sensor would fail to provide warning of a fire. Inspector Stephan J. Wilson
8

The parties stipulate that this violation should be a 104(d)(1) citation. Additional
Stipulations ¶ 2.

36 FMSHRC Page 2510

testified that Respondent did not recalibrate the sensor for almost six hours, which does not
qualify as immediately, which violates the standard.
I find that Citation No. 8434301 was not S&S because it did not contribute to a hazard
that was reasonably likely to cause an injury. Although it required calibration to function at its
full capacity in violation of the standard, the CO monitor continued to detect CO. 9 I credit
Ryder’s testimony that the cited sensor continued to alert miners to a drop in CO before the level
of that CO became dangerous. (Tr. 157). If a fire occurred, the CO output would be great enough
to trigger the cited sensor almost as quickly as a correctly calibrated sensor. I also credit Ryder’s
testimony that he calibrated the sensor as part of his normal duties and not due to the violation or
a threat of a violation; he did not even know that Inspector Wilson was in the area when he
traveled there with the intention to fix the sensor. (Tr. 158). Under continued normal mining
operations, therefore, the condition would not have existed any longer than it did and would not
have further deteriorated because normal mining operations rather than the violation led Ryder to
correct the condition. This violation was unlikely to contribute to the hazard that a mine fire
would propagate faster due to inadequate warning, resulting in burns or fatalities and therefore is
not S&S. The gravity was serious, however.
I find that fewer than 64 miners were affected by the violation. The air passing over the
cited sensor traveled outby, which means that it would not bring CO to the working faces. The
slight delay responding to a fire caused by this improperly calibrated sensor would most likely
only affect those miners who responded to fight the fire. I find, therefore that Citation No.
8434301 affected only a few miners.
The violation was the result of Respondent’s high negligence. Charles S. Lyons,
Respondent’s third shift maintenance supervisor, knew or should have known of the violation yet
failed to calibrate the sensor immediately. Lyons admittedly saw that the sensor required
calibration. (Tr. 140-41). Instead of traveling directly to the sensor, Lyons performed various
other duties and repairs and never reached the sensor before the end of his shift. (Tr. 143-47).
Respondent did not address this violation for six hours. Lyons’ negligence is attributable to the
operator. The Secretary did not present evidence to show that Respondent was on notice that
greater efforts were necessary to comply with section 75.1103-5(h). As discussed above, this
violation presented little danger to miners and was abated as the citation was issued. Lyons knew
of this condition and should have addressed it sooner, but was distracted by numerous
maintenance projects, some of which were also safety concerns. It is important to note that
Respondent believed that the sensor was functional and its condition did not contribute to a
serious threat to safety. (Tr. 142-47). I find that Respondent’s negligence was high but it did not
rise to the level of aggregated conduct. Consequently, taking into consideration all of the relevant
9

The Secretary relies upon Black Beauty Coal Co. to argue that this violation should be
S&S, but that decision addresses the complete absence of an audible warning device in a CO
censor system, which is different and more dangerous than the facts presented here. 33 FMSHRC
1504, 1525 (2011) (ALJ). Here, every other sensor continued to work and provide warning,
which would not cause the same danger as a system that failed to provide an audible warning.
That decision, furthermore, is not precedent.

36 FMSHRC Page 2511

facts, I find that the violation was not the result of Respondent’s unwarrantable failure to comply
with the safety standard.
I MODIFY Citation No. 8434301 to a non-S&S 104(a) citation with high negligence. A
penalty of $8,000.00 is appropriate for this violation.
II. SETTLED CITATIONS AND ORDERS
Docket No. LAKE 2011-277 was originally assigned to Judge Janet Harner. By order
dated March 9, 2012, she approved the settlement of Citation Nos. 8426473 and 8426476 and
Order No. 8430017. She ordered Peabody Midwest to pay a penalty of $8,500.00 within 30 days
of the date of her order.
III. APPROPRIATE CIVIL PENALTIES
Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an
appropriate civil penalty. I reviewed the Assessed Violation History Report, which is not
disputed. (Ex. G-1). Peabody Midwest paid penalties for 688 violations in the 15 months prior to
June 26, 2011 and 82 of these violations were S&S. Id. At all pertinent times, Peabody Midwest
was a large mine operator and the controlling company, Peabody Energy Corporation, was also a
large operator. The violations were abated in good faith. The penalties assessed in this decision
will not have an adverse effect on Peabody’s ability to continue in business. The gravity and
negligence findings are set forth above. I have assessed the penalty for each citation de novo
taking into consideration the six penalty criteria. Peabody Midwest argues that the penalty for
each citation should be substantially reduced from that proposed by the Secretary. I have
assessed relatively high penalties based primarily on the size of the mine and the controlling
company and on my gravity and negligence findings.
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/Order No.

30 C.F.R. §

Penalty

LAKE 2011-277
8428824

75.202(a)

$15,000.00

LAKE 2011-1030
8433568

75.362(a)(1)

$28,000.00

LAKE 2012-543
8433566

75.220(a)(1)

$25,000.00

LAKE 2012-909
8434301

75.1103-5(h)

$8,000.00

TOTAL PENALTY
36 FMSHRC Page 2512

$76,000.00

For the reasons set forth above, the citations and order are MODIFIED as set forth
above. Peabody Midwest Mining, LLC is ORDERED TO PAY the Secretary of Labor the sum
of $76,000.00 within 40 days of the date of this decision.10

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

Distribution:
Laura Ilardi Pearson, Esq., Office of the Solicitor, U.S. Department of Labor, 1244 Speer
Boulevard, Suite 216, Denver, CO 80204 (Certified Mail)
Arthur M. Wolfson, Esq., Jackson Kelly, 3 Gateway Center, Suite 1500, 401 Liberty Ave.,
Pittsburgh, PA 15222 (Certified Mail)
RWM

10

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.

36 FMSHRC Page 2513

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, D.C. 20004-1710

September 26, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 2010-450-M
A.C. No. 02-03243-203823 (NWB)

v.
RECON REFRACTORY &
CONSTRUCTION,
Respondent.

Mine: Drake Quarry

AMENDED DECISION AND ORDER
Appearances: Douglas L. Sanders, Esq., U.S. Department of Labor, Office of the
Solicitor, Denver, Colorado, for Petitioner;
Eugene F. McMenamin, Esq., Atkinson, Andelson, Loya, Ruud & Romo,
Cerritos, California, for Respondent.
Before:

Judge Paez

The decision and order issued August 28, 2104, is hereby amended pursuant to
Commission Rule 69(c), 29 C.F.R. § 2700.69(c), to read as set forth below.1
This case is before me upon the Petition for the 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 (“Mine Act”), 30 U.S.C. § 815(d). In dispute are five section 104(a) citations
issued by the Mine Safety and Health Administration (“MSHA”) to Recon Refractory &
Construction (“RECON” or “Respondent”) as a subcontractor at Drake Cement Company’s
Drake Quarry mine. Respondent withdrew its contest to a sixth section 104(a) citation issued by
MSHA. (Resp’t Answer at 2.) To prevail, the Secretary must prove the cited violations “by a
preponderance of the credible evidence.” In re: Contests of Respirable Dust Sample Alteration
1

On September 24, 2014, the Secretary filed a Motion to Approve Penalty and Order
Payment for Citation No. 6453944. In his motion, the Secretary explained that RECON had
withdrawn its contest to the citation in its initial Answer to the Petition and agreed to pay the
proposed penalty of $263.00. (Sec’y Mot. at 1.) Although the withdrawal of contest for Citation
No. 6453944 was noted on the record at hearing (Tr. 6:25–7:2), through clerical error, the
citation was not addressed or dismissed in the August 28, 2014, Decision and Order.
Accordingly, I approve this penalty under 30 U.S.C. § 110(i) and amend the August 28 decision
sua sponte to rectify this clerical omission.

36 FMSHRC Page 2514

Citations, 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas Co.,
11 FMSHRC 2148, 2152 (Nov. 1989)), aff’d sub nom. SOL v. Keystone Coal Mining Corp., 151
F.3d 1096, 1106-07 (D.C. Cir. 1998). This standard requires the Secretary to demonstrate that
“the existence of a fact is more probable than its non-existence.” RAG Cumberland Res. Corp.,
22 FMSHRC 1066, 1070 (Sept. 2000) (citations omitted).
I.

STATEMENT OF THE CASE

Four of these alleged violations involve electrical equipment at Drake Quarry, and the
fifth alleged violation involves workplace examination procedures at the site. First, Citation
No. 6453940 charges RECON with a violation of 30 C.F.R. § 56.12025 for the failure to install a
grounding rod on a power generator. Second, Citation No. 6453941 charges RECON with a
violation of 30 C.F.R. § 56.12028 because continuity and resistance testing had not been
performed on the aforementioned power generator. Third, Citation No. 6453945 charges
RECON with a violation of 30 C.F.R. § 56.12004 for leaving 13 damaged electrical extension
cords unprotected. Fourth, Citation No. 6453946 alleges a violation of 30 C.F.R. § 56.12025
because the ground prongs on five electrical extension cords and one grounding device were
broken or missing. Finally, Citation No. 6454808 charges RECON with a violation of 30 C.F.R.
§ 56.18002(a) for a failure to perform and document required workplace examinations. The
Secretary designated each violation as significant and substantial (“S&S”).2 The Secretary
proposed a total civil penalty of $2,535.00 for these five citations.
A hearing was held in Riverside, California. The Secretary presented testimony solely
from MSHA Inspector Enrique Vidal. (Tr. 16:17–101:9; Sec’y Preh’g Statement at 4.) RECON
called three witnesses: Joseph Longstreet, Vice President of RECON; Benjamin Allen,
RECON’s Cost Controls Manager; and Gregory Howearth, RECON’s Corporate Health and
Safety and Environmental Manager. (Tr. 103:8–108:11; 110:17–117:6; 118:4–133:15.)
II.

ISSUES

The Secretary argues that the conditions were properly cited as violations and that the
allegations underlying the citations are valid. (Sec’y Post Trial Br. at 15.) RECON denies each
violation, arguing that the Secretary has failed to meet his burden of proof for each citation.
(Resp’t Post Trial Br. at 5.)
Accordingly, the following issues are before me: (1) whether, for each citation, the
Secretary proved that a violation of a mandatory safety or health standard occurred at Drake
Quarry; (2) whether the Secretary proved that each alleged violation was S&S; (3) whether the
Secretary proved that RECON acted with moderate negligence regarding each violation; and
(4) whether the Secretary’s proposed penalties are appropriate.

2

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

36 FMSHRC Page 2515

For the reasons that follow, I AFFIRM as written Citation Nos. 6453940, 6453941,
6453945, and 6453946, and I VACATE the fifth, Citation No. 6454808.
III.
A.

FINDINGS OF FACT

Operations at Drake Quarry

Prior to hearing, the Secretary filed a motion for partial summary decision to establish
that RECON was subject to MSHA jurisdiction. (Sec’y Mot. for Partial Summ. Dec.) I held that
the Drake Quarry site was a “mine” under the Mine Act, that the quarry was subject to MSHA
jurisdiction, and that the MSHA inspectors had the authority to issue RECON the citations at
issue in this case. Recon Refractory & Constr., Inc., 34 FMSHRC 1722, 1731 (2012) (ALJ).
Accordingly, I granted the Secretary’s motion for partial summary decision solely on the issue of
jurisdiction. Id. My findings of fact from that order are reproduced below:
On April 6, 2009, MSHA assigned a mine identification number to
Drake Quarry, a surface metal/nonmetal mine owned by Drake
Cement Company (“Drake”) and located near Paulden, Arizona.
On October 6 and 7, 2009, MSHA Inspector Enrique Vidal
conducted a routine health and safety inspection of the Drake
Quarry site. On October 8, 2009, MSHA Inspector Kyle Griffith
continued the inspection of the Drake Quarry site.
RECON was hired as a subcontractor by CCC Group to build a
facility on the Drake Quarry construction site. During the October
2009 inspections, the Secretary's inspectors issued RECON seven
citations, five of which are before me.
Recon Refractory & Const., Inc., 34 FMSHRC 1722, 1724 (2012) (ALJ).
B.

October 6–7, 2009 Inspection

Upon arriving at Drake Quarry on October 6, Inspector Vidal noticed a power generator
(“Gen-set”). (Tr. 20:18–20.) Vidal discovered that the Gen-set did not have a grounding rod. (Tr.
20:20–21.) A grounding rod is required to prevent the metal generator from becoming electrified.
(Tr. 23:24–24:4.) Inspector Vidal stated that miners regularly came into direct contact with the
generator, which placed them in danger of fatal electrocution. (Tr. 24:5–25:2.) Based on his
observations, Vidal issued Citation No. 6453940 alleging a violation of 30 C.F.R. § 56.12025.
(Ex. G–2.) He determined that this violation was reasonably likely to result in a fatal injury to
one miner due to the operator’s moderate negligence. Id. MSHA proposed a penalty of $873.00
for this violation.
Moreover, because the grounding rod was not installed, testing on the rod could not be
performed. (Tr. 34:21–22.) Accordingly, Vidal also issued Citation No. 6453941 alleging a
violation of 30 C.F.R. § 56.12028. (Ex. G–5.) He determined that this violation was reasonably

36 FMSHRC Page 2516

likely to result in a fatal injury to one miner due to the operator’s moderate negligence. Id.
MSHA likewise proposed a penalty of $873.00 for this violation.
Thereafter, during the inspection of the lay-down area3 in Drake Quarry, Vidal saw a
gang box and asked one of Drake Quarry’s employees about its contents. (Tr. 42:16–17.) The
unidentified employee told Vidal that the gang box contained extension cords available for use
by the miners. (Tr. 42:15–24.) Vidal further observed that out of 13 electrical extension cords, 11
had compromised outer protective jackets along with some damage to the inner conductors. (Tr.
46:7–11;49:4–17.) In addition, two of the electrical extension cords had completely exposed bare
wiring that could expose miners to 110 volts of electricity. (Tr. 46:7–11;49:4–17.) Vidal testified
that the unidentified employee told him the gang box containing the wires was unlocked and
accessible by any miner. (Tr. 43:22–44:9.) As a result of his observations, Vidal issued Citation
No. 6453945 alleging a violation of 30 C.F.R. § 56.12004. (Ex. G–8.) He determined that this
violation was reasonably likely to result in lost workdays or restricted duty to one miner due to
the operator’s moderate negligence. Id. MSHA proposed a penalty of $263.00 for this violation.
While inspecting the gang box, Vidal also noticed that the ground prongs on five of the
extension cords were either removed, missing, or broken. (Tr. 51:21–52:8.) Further, an on-site
ground fault current interceptor (“GFCI”)—which is a device intended to prevent
electrocution— was damaged. (Tr. 52:16–53:8.) Based on his observations, Vidal issued Citation
No. 6453946 alleging a violation of 30 C.F.R. § 56.12025. (Ex. G–11.) He determined that this
violation was reasonably likely to result in lost workdays or restricted duty to one miner due to
the operator’s moderate negligence. Id. MSHA proposed a penalty of $263.00 for this violation.
C.

October 8, 2009 Inspection

On October 8, 2009, Inspector Kyle Griffith issued Citation No. 6454808 at Drake
Quarry alleging a violation of 30 C.F.R. § 56.18002(a). (Ex. G–14.) The citation has boxes
checked noting that the violation was reasonably likely to result in lost workdays or restricted
duty to one miner due to the operator’s high negligence. Id. MSHA proposed a penalty of
$263.00 for this violation. The citation alleges that RECON failed to perform or document such
workplace examinations. (Ex. G–14.) However, neither Inspector Griffith nor any other
authorized representative of the Secretary testified regarding the issuance of this citation.
IV.
A.

PRINCIPLES OF LAW

Independent Contractors

The Commission has held that an independent contractor performing services at a mine is
an operator of the mine within the meaning of section 3(d) of the Mine Act. Ames Construction,
Inc., 33 FMSHRC 1607 (July 2011), aff’d, 676 F.3d 1109 (D.C. Cir. 2012) (“independent

3

The “lay-down area” consists of an office, fabricating area, and shop-area covered by a
tarp. (Tr. 42:25–43:3.)

36 FMSHRC Page 2517

contractors who exercise supervision and control—in other words, ones also covered by the
production-operator portion of § 3(d)—are [strictly] liable”). Moreover, the Commission has a
“longstanding view that the purpose of the [Mine] Act is best effectuated by citing the party with
immediate control over the working conditions and the workers involved when an unsafe
condition arising from those work activities is observed.” Old Dominion Power Co., 6 FMSHRC
1886 (Aug. 1984) (citing Phillips Uranium Corp., 4 FMSHRC 549 (Apr. 1982)).
B.

Significant and Substantial

A violation is S&S if, “based on the particular facts surrounding that violation, there
exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
To establish an S&S violation, the Secretary must prove: “(1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard—that is, a measure of danger to
safety—contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to
will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3–4 (Jan. 1984) (footnote omitted);
see also Buck Creek Coal, Inc. v. 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).
Aside from specifying the elements I must consider in examining an S&S designation,
the Commission has also provided guidance to Administrative Law Judges in applying the
Mathies test. The Commission found that “an inspector’s judgment is an important element in an
S&S determination.” Mathies, 6 FMSHRC at 5 (citing Nat’l 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 the opinion of an experienced inspector). The Commission has also observed that “the
reference to ‘hazard’ in the second element is simply a recognition that the violation must be
more than a mere technical violation—i.e., that the violation present a measure of danger.” U.S.
Steel Mining Co., 3 FMSHRC 822,827 (Apr. 1981). Moreover, the Commission has indicated
“[t]he correct inquiry under the third element of Mathies is whether the hazard identified under
element two is reasonably likely to cause injury.” Black Beauty Coal Co., 34 FMSHRC 1733,
1742–43 & n.13 (Aug. 2012). Finally, the Commission indicated an evaluation of the reasonable
likelihood of injury should be made assuming continued 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)).
C.

Regulatory Interpretation

Interpreting the Secretary’s regulations that implement the Mine Act is a two-step
process. First, unambiguous regulatory provisions “must be enforced as they are written unless
the regulator clearly intended the words to have a different meaning or unless such meaning
would lead to absurd results.” Jim Walter Res., Inc., 28 FMSHRC 578, 587 (Aug. 2006) (citing
Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir. 1987), and Utah Power & Light Co.,
11 FMSHRC 1669, 1681 (Dec. 2010) (citing RAG Shoshone Coal Corp., 26 FMSHRC 75, 80 &
n.7 (Feb. 2004)). Second, if the meaning of the regulation is ambiguous, the Secretary’s

36 FMSHRC Page 2518

reasonable interpretation of the regulation is entitled to deference. Mach Mining, LLC,
34 FMSHRC 1784, 1806 (Aug. 2012).
V.

ADDITIONAL FINDINGS OF FACT — ANALYSIS — CONCLUSIONS OF LAW

A.

Electrical Violations
1.

Citation No. 6453940 – The Grounding Rod

Section 56.12025 requires operators to ensure that all metal used to enclose or encase
electrical circuits be grounded or provided with equivalent protection.4 30 C.F.R. § 56.12025.
Moreover, section 56.12025 is a performance standard; thus, it does not specify or require that
the operator ground the metal in a specific manner. Contractors Sand & Gravel Supply, Inc.,
18 FMSHRC 384, 387 (Mar. 1996) (ALJ). Accordingly, an operator violates section 56.12025
when it fails to ground the metal that encloses electrical circuits. See Brown Bros. Sand Co.,
17 FMSHRC 578, 584 (Apr. 1995).
a.

Contractor Liability

Inspector Vidal issued Citation No. 6453940 for RECON’s failure to install a grounding
rod on the power generator he observed. (Ex. G–2.) RECON does not dispute that a grounding
rod was absent but instead argues that the Secretary should have issued this citation to the
general contractor, CCC Group, which brought the power generator to the Drake Quarry but
failed to install it properly. (Resp’t Preh’g Report at 3.) Joseph Longstreet, RECON’s Vice
President, testified that, under the contract with CCC Group, RECON was not allowed to
maintain any equipment provided by CCC Group, including the power generator. (Tr.
104:15–22.) However, despite this testimony, RECON failed to provide a copy of the specific
contract provision that spelled out the prohibition it alleges.
Nevertheless, Respondent’s argument misses the mark. The Mine Act is a strict liability
statute that imposes liability without fault for things within one’s control or supervision.
See Sec’y of Labor v. Nat’l Cement Co. of Cal., 573 F. 3d 788, 795 (D.C. Cir. 2009). It is
undisputed that the power generator was located on RECON’s work site. (Tr. 76:25–77:6.)
Therefore, the power generator was under RECON’s control and supervision at the time the
citation was issued.
Although CCC Group installed the power generator, RECON—as a subcontractor hired
to perform work at the mine—is deemed an operator of the mine within the meaning of section
3(d) of the Mine Act. Ames Construction, Inc., 33 FMSHRC 1607 (July 2011), aff’d, 676 F.3d
4

Section 56.12105 provides: “All metal enclosing or encasing electrical circuits shall be
grounded or provided with equivalent protection. This requirement does not apply to
battery-operated equipment.” 30 C.F.R. § 56.12025.

36 FMSHRC Page 2519

1109 (D.C. Cir. 2012). Consequently, RECON is strictly liable for the cited condition that
occurred in connection with the power generator. Further, Respondent does not dispute that
the power generator lacked a grounding rod. Accordingly, I conclude that RECON violated
30 C.F.R. § 56.12025.
b.

S&S

RECON’s violation of 30 C.F.R. § 56.12025 establishes the first element of the Mathies
test for an S&S violation. The second element of the Mathies test requires that the violation
contribute to a safety hazard. In this case, Inspector Vidal testified that the power generator’s
lack of a grounding rod would expose anyone who came into contact with the energized
generator to approximately 240 volts of electricity. (Tr. 23:24–24:4.) Further, Vidal testified that
the power generator was located right next to where miners worked, and thus miners could come
in direct contact with the generator. (Tr. 24:21; 25–2.) Moreover, Vidal indicated that 240-volt
electrocution would likely be fatal. (Tr. 25:14–17.) I give great weight to Inspector Vidal’s
testimony based on his 15 years as a MSHA inspector. Therefore, given Vidal’s testimony, I
determine that the third and fourth Mathies elements are established and, thus, conclude that this
violation was appropriately designated as S&S.
c.

Negligence

The Secretary’s regulations define negligence as “conduct, either by commission or
omission, which falls below a standard of care established under the Mine Act to protect miners
against the risk of harm.” 30 C.F.R. § 100.3(d). Moderate negligence is appropriate when “[t]he
operator knew or should have known of the violative condition or practice, but there are
mitigating circumstances.” Id. Inspector Vidal stated that looking for a grounding rod is a “very
basic” practice (Tr. 20:20) and information regarding grounding rods is readily available on the
Internet. (Tr. 30:1–3.) Thus, RECON knew or should have known that the power generator
required a grounding rod. Nevertheless, I note that RECON’s status as an independent
subcontractor in conjunction with its understanding that CCC group, as the general contractor,
was responsible for the installation of the power generator somewhat mitigates RECON’s
negligence in this case. Thus, I agree with Inspector Vidal’s determination and conclude that
Citation No. 6453940 was properly designated as “moderate” negligence.
Based on the above analysis, I conclude that RECON violated section 56.12025, that the
violation was S&S, and that the violation occurred as a result of RECON’s moderate negligence.
2.

Citation No. 6453941 – Continuity Testing

Section 56.12028 states the following: “Continuity and resistance of grounding systems
shall be tested immediately after installation, repair, and modification; and annually thereafter. A
record of the resistance measured during the most recent tests shall be made available on a
request by the Secretary or his duly authorized representative.” 30 C.F.R. § 56.12028.

36 FMSHRC Page 2520

Inspector Vidal issued Citation No. 6453941 for RECON’s failure to perform continuity
and resistance testing on the same power generator cited in Citation No. 6453940. Respondent
argues that the absence of a grounding rod forecloses a claim for failure to perform the required
continuity and resistance testing. (Resp’t Reply to Sec’y Post-Trial Br. at 2.) Essentially,
Respondent argues that Citation No. 6453941 cannot be sustained if I affirm Citation No.
6453940. Curiously, Respondent cites no case law for the proposition that its duty to comply
with section 56.12028 depends on whether it has satisfied its duty to comply with section
56.12025. Notwithstanding Respondent’s efforts to make compliance with section 56.12025 a
necessary element of section 56.12028, I note that the Mine Act is a strict liability statute, and it
requires operators to comply with the Secretary’s safety and health standards. Cf. Rock of Ages
Corp., 20 FMSHRC 113–14 (Feb. 1998) (stating that the Mine Act imposes strict liability and
refusing to insert an unwritten element into the text of a regulation). Moreover, the Secretary
argues that Respondent misinterprets the phrase “immediately after installation” in 30 C.F.R.
§ 56.12028 by reading it narrowly to mean “immediately after installation of the grounding rod.”
(Sec’y Post-Trial Br. at 8.) Instead, the Secretary claims that “installation” refers to installation
of the equipment, rather than the grounding rod. (Id.) In addition, the Secretary asks that I defer
to his interpretation of the regulation. (Id. at 9.)
a.

Ambiguity of the Phrase “Immediately After Installation”

As explained above, the parties interpret the phrase “immediately after installation”
differently. Neither the Mine Act nor the regulation provides a definition for the phrase. Looking
at the text of the regulation and the parties’ alternative interpretations, I conclude that it is in
some respects ambiguous. Island Creek Coal Co., 20 FMSHRC 14 (Jan. 1998) (citing National
R.R. Passenger Corp. v. Boston & Maine Corp., 503 U.S. 407, 418-19 (1992)); Norman J.
Singer, Sutherland Statutory Construction § 45.02, at 6 (5th ed. 1992) (“Ambiguity exists when
a statute is capable of being understood by reasonably well-informed persons in two or more
different senses.”). As the Supreme Court stated in Boston & Maine, “[f]ew phrases in a complex
scheme of regulation are so clear as to be beyond the need for interpretation when applied in a
real context.” 503 U.S. at 418.
b.

Reasonableness of Secretary’s Interpretation

Given my conclusion that the phrase “immediately after installation” is ambiguous as
applied to the installation of a grounding rod on a power generator, I must decide whether the
Secretary’s interpretation of the provision is reasonable. The Secretary’s interpretation of a
regulation is reasonable where it is “logically consistent with the language of the regulation[s]
and . . . serves a permissible regulatory function.” Gen. Electric Co. v. EPA, 53 F.3d 1324, 1327
(D.C. Cir. 1995) (citing Rollins Envtl. Servs., Inc. v. EPA, 937 F.2d 649, 652 (D.C. Cir.1991)).
Moreover, a policy favoring deference is particularly important where, as here, a technically
complex statutory scheme is backed by an even more complex and comprehensive set of
regulations. Id. Under such circumstances, “the arguments for deference to administrative
expertise are at their strongest.” Gen. Electric Co., 53 F.3d at 1327 (citing Psychiatric Inst. of
Washington, D.C. v. Schweiker, 669 F.2d 812, 813–14 (D.C. Cir.1981)); see also Chevron,
U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 865 (1984) (finding that the
Administrator’s interpretation represented a reasonable accommodation of manifestly competing

36 FMSHRC Page 2521

interests and was entitled to deference because the regulatory scheme was technical and
complex, the agency considered the matter in a detailed and reasoned fashion, and the decision
involved reconciling conflicting policies.).
The Secretary interprets “immediately after installation” in section 56.12028 to mean
immediately after the installation of the equipment that needs to be grounded. (Sec’y Post-Trial
Br. at 8.) This interpretation focuses on the purpose of the regulation, which is to ensure that
regular testing prevents fatalities and other injuries. See IV MSHA, U.S. Dep’t of Labor,
Program Policy Manual, Part 21, at 44 (2003) (“PPM”) (“The intent of this standard is to ensure
that continuity and resistance tests of grounding systems are conducted on a specific schedule.
[N]umerous fatalities and injuries have occurred due to high resistance or lack of continuity in
the equipment grounding systems. These accidents could have been prevented by proper testing
and maintenance of grounding systems.”) (emphasis added); see also 30 C.F.R. § 56.1 (“This
part 56 sets forth mandatory safety and health standards for each surface metal or nonmetal
mine, including open pit mines, subject to the Federal Mine Safety and Health Act of 1977. The
purpose of these standards is the protection of life, the promotion of health and safety, and the
prevention of accidents.”). Testing “will alert the operator if a problem exists in the grounding
system, which may not allow the circuit protective devices to quickly operate when faults
occur.” IV MSHA, U.S. Dep’t of Labor, Program Policy Manual, Part 21, at 44 (2003). The
Secretary’s interpretation does not deviate significantly from the language of the regulation.
Furthermore, this interpretation is consistent with the purpose of the regulation reflected in
MSHA’s PPM for 30 C.F.R. § 56.12028. As I noted, the preservation of safety is at the core of
the regulation’s purpose. Testing the grounding system immediately upon installation of the
equipment provides greater miner safety because it ensures the grounding rod and other elements
of the grounding system are employed and tested. This provides the intended protection,
especially if the generator is later energized. In contrast, allowing the generator to be installed
without immediately testing the grounding system, as RECON suggests, provides less safety for
miners from accidental electrocution. Thus, the Secretary’s interpretation serves a permissible
regulatory function. Accordingly, I conclude that the Secretary’s interpretation is reasonable and,
thus, entitled to deference.
c.

Violation

Respondent admits that it did not perform continuity and resistance testing on the power
generator. (Resp’t Reply to Sec’y Post-Trial Br. at 2.) Therefore, I conclude that RECON
violated 30 C.F.R. § 56.12028.
d.

S&S

RECON’s violation of 30 C.F.R. § 56.12028 establishes the first element for an S&S
violation under the Mathies test. The second element of the Mathies test asks whether the
violation contributed to a discrete safety hazard. Here, Inspector Vidal testified that the power
generator’s lack of a grounding rod exposed anyone who came into contact with the generator to
approximately 240 volts of electricity (Tr. 23:24–24:4) and that miners could come in direct
contact with the generator. (Tr. 24:21; 25–2.) Vidal has significant experience inspecting mines

36 FMSHRC Page 2522

(Tr. 17:17–25), and I accord his experience great weight. Accordingly, I determine that the
violation contributed to the discrete safety hazard of electric shock. The Secretary has therefore
met his burden of proof on the second element of Mathies.
The third and fourth elements of Mathies ask whether the safety hazard is reasonably
likely to contribute to a reasonably serious injury. Here, Inspector Vidal testified that 240-volt
electrocution would likely be fatal. (Tr. 25:14–17.) Given Vidal’s credible testimony, I
determine that the Secretary has satisfied his burden of proving that reasonably serious injuries
were reasonably likely to occur. Thus, the Secretary has satisfied Mathies’ third and fourth
elements.
Based on my above determinations, I conclude that RECON violated section 56.12028,
that the violation was S&S, and that it was the result of RECON’s moderate negligence.
3.

Citation No. 6453945 – The Gang Box

Section 56.12004 requires operators to protect electrical conductors that are exposed to
mechanical damage.5 30 C.F.R. § 56.12004. An operator violates section 56.12004 when
exposed cable or wiring that is capable of carrying an electrical current, thus creating a shock
hazard, lacks an outer protective jacket or structure of some sort. See Northshore Mining Co.,
35 FMSHRC 1889, 1893 (June 2013) (ALJ); Baker Rock Crushing Co., 32 FMSHRC 968, 977
(Aug. 2010) (ALJ).
a.

Additional Findings of Fact

Inspector Vidal issued Citation No. 6453945 because 13 damaged electrical extension
cords with compromised outer protective coverings and exposed bare wiring were left in a gang
box and available for use by miners. Specifically, Vidal testified that an unidentified employee
told him that the gang box was unlocked and accessible by any miner. (Tr. 43:22–44:9.)
Inspector Vidal also stated that two of the cords had completely exposed bare wiring, potentially
exposing miners to 110 volts of electricity. (Tr. 49:6–12.) He indicated that the injuries resulting
from 110-volt electrocution could range from a fatality to lost work days and restricted duty. (Tr.
49:18–22.)
Respondent does not dispute the condition of the cords; indeed, RECON’s Cost Controls
Manager, Benjamin Allen, admitted that at least some of the contents of the box were intended
for use by miners (Tr. 112:21–113:1), and that the cords inside the box were unsuitable for use.
(Tr. 116:4–8.) Instead, RECON alleges that the gang box was locked and, thus, the cords were
5

Section 56.12004 provides: “Electrical conductors shall be of a sufficient size and
current-carrying capacity to ensure that a rise in temperature resulting from normal operations
will not damage the insulating materials. Electrical conductors exposed to mechanical damage
shall be protected.” 30 C.F.R. § 56.12004.

36 FMSHRC Page 2523

unavailable for use. (Resp’t Reply to Sec’y Post-Trial Br. at 3.) Specifically, Allen testified that
the box was usually locked and was only unlocked for the inspection. (Tr. 113:3–114:3.) Allen
also stated that there was only one key to the gang box and it was kept in a separate office.
(Tr. 114:4–5.) Finally, Allen testified that equipment from the gang box had to be distributed to
the miners by a supervisor per RECON’s safety manual, which they provided as evidence.
(Tr. 114:20–24; 115:14–16; Ex. R–2.)
I do not find Allen’s testimony regarding the locked gang box persuasive for three
reasons. First, operators are not given advance notice of MSHA inspections; it is unlikely that
the box was unlocked in anticipation of Inspector Vidal’s visit. Second, Respondent presented no
evidence at the hearing indicating that Vidal “ordered all locked receptacles on site to be opened
for his inspection,” as it alleges in its reply brief (Resp’t Reply to Sec’y Post-Trial Br. at 3.)
Finally, Allen is RECON’s Cost Controls Manager. (Tr. 110:21–22.) Allen did not explain how
his duties as a cost control manager provided a basis for explaining the actual day-to-day
operations of the rank-and-file miner. On the other hand, an actual miner told Inspector Vidal
that the gang box was openly accessible by miners and that miners could use the equipment
within as needed. (Tr. 42:15–24.) Therefore, I find that the gang box was unlocked and the items
inside, including the extension cords, were accessible by any miner.
Inspector Vidal observed that 11 of the 13 extension cords had missing or damaged outer
protective jackets (Tr. 47:16–19) and the remaining two were so damaged that bare wiring was
visible. (Tr. 46:10–11.) Moreover, Vidal explained that, even with the bare wiring exposed, the
extension cords were still capable of carrying a current. (Tr. 47:5–8.) Based on the evidence
before me, I find that the 13 damaged extension cords were still functional and capable of
carrying an electrical current.
b.

Violation

Respondent does not dispute that the outer protective jackets of the extension cords were
damaged thus exposing the bare wiring. Given my finding that the cords were available for use, I
conclude that RECON violated 30 C.F.R. § 56.12004 because the extension cords in the gang
box were capable of carrying an electrical current and left with damaged or missing protective
coverings.
c.

S&S

RECON’s violation of section 56.12004 establishes the first element for an S&S
violation under the Mathies test. As for the second Mathies element, Inspector Vidal credibly
testified that the bare wiring on the extension cords exposed the miners to a safety hazard of
110-volt electric shock. (Tr. 46:7–11; 49:4–17.) As I have noted, I accord great weight Vidal’s
testimony based on his significant experience as an inspector. I therefore determine that the
violation contributed to a discrete safety hazard of 110-volt electric shock. Thus, the Secretary
has met his burden of proof on Mathies’ second element.

36 FMSHRC Page 2524

Regarding the third and fourth elements of Mathies, Inspector Vidal credibly testified
that the result of 110-volt electric shock would likely range from lost workdays to death.
(Tr. 49:18–22.) I find his testimony regarding the electric shock hazard posed by the damaged
extension cords credible and persuasive. Therefore, I determine that the Secretary has satisfied
his burden of proving that reasonably serious injuries were reasonably likely to occur, and thus
has satisfied the third and fourth elements of Mathies.
d.

Negligence

Vidal designated RECON’s negligence regarding this violation as “moderate” because
the company is responsible for ensuring that any equipment that it brings on-site for use is
checked daily. (Tr. 50:4–6.) Allen testified that, at some point, the gang box and access to the
sole key was restricted. (Tr. 114:1–6.) Although RECON’s written safety policy was not
followed here, I note that RECON’s safety manual requires that equipment such as the extension
cords in the gang box be issued from a designated tool room attendant or supervisor. (Tr.
115:10–16; Ex. R–2.) That policy somewhat mitigates RECON’s negligence in this case. Thus, I
agree with Inspector Vidal’s determination that Respondent’s negligence is properly designated
as moderate.
Based on the above determinations, I conclude that RECON violated § 56.12004, that the
violation was S&S, and that it was the result of RECON’s moderate negligence.
4.

Citation No. 6453946 –The Ground Prongs

Inspector Vidal issued Citation No. 6453946 because five cords in the same gang box had
damaged or missing ground prongs. Moreover, a GFCI which is used to prevent electrocution
was also damaged.
a.

Evidentiary Weight of The 2008 National Electrical Code

At trial, and without prior notice to the Secretary, Respondent introduced evidence
regarding the 2008 version of the National Electrical Code (“the Code”)—a 600-page document.
(Tr. 121:25–122:1.) Respondent admitted that it did not prepare this aspect of the hearing until a
day prior. (Tr. 122:25–123:3.) RECON’s Corporate Health and Safety and Environmental
Manager, Gregory Howearth, testified that some unidentified “MSHA documents” referenced
the code. (Tr. 121:25–122:1.) Respondent contends that it is not a hazard to use GFCIs in
conjunction with extension cords. (Resp’t Reply to Sec’y Post-Trial Br. at 3.) Further,
Respondent claims that the Code supports its position. Id.
Respondent’s eleventh hour introduction of the Code left the Secretary unable to
adequately cross-examine Howearth on the document. At the hearing I had no reason to believe
Respondent’s action was anything more than a mere oversight, so I admitted the Code into
evidence. (Tr. 123:22–24.) Regardless, I do not find Respondent’s position on the Code
persuasive. Respondent never identified the MSHA documents that purportedly reference the
Code either at the hearing or in its post-hearing brief, and neither did Respondent establish their
significance. Indeed, a miner using a damaged GFCI with a cord that has no grounding would

36 FMSHRC Page 2525

be exposed to the hazard of electrocution. Therefore, I conclude that Howearth’s testimony
regarding the 2008 version of the National Electrical Code is irrelevant to 30 C.F.R. § 56.12025.
b.

Violation

Section 56.12025 states that “[a]ll metal enclosing or encasing electrical circuits shall be
grounded or provided with equivalent protection.” 30 C.F.R. § 56.12025. As I found above, the
damaged extension cords in the gang box were capable of carrying an electrical current and left
unprotected and accessible by miners. Therefore, I conclude that RECON violated 30 C.F.R.
§ 56.12025.
c.

S&S

Respondent’s violation of 30 C.F.R. § 56.12025 establishes the first element of the
Mathies test. As for the second element, Vidal credibly testified that the use of an extension cord
without a ground prong exposed miners to the safety hazard of electric shock. (Tr. 54:8–15.) In
concluding that leaving extension cords with damaged or missing ground prongs available to
miners constituted a violation, I have determined that a reasonably prudent person would
recognize that allowing miners to use such damaged cords constituted a defect in safety.
Likewise, I determine that the violation contributed to a discrete safety hazard of electric shock.
Therefore, the Secretary has met his burden of proof on Mathies’ second element.
The third and fourth elements of Mathies ask whether the safety hazard is reasonably
likely to contribute to a reasonably serious injury. The Secretary claims that injuries in this case
are reasonably likely to result in lost workdays or restricted duty. (Ex. G–11.) Noting that these
cords would likely carry 110 volts of electricity, Vidal described the potential injuries as a burn
hazard, and heart defibrillation that could put a miner in the hospital. (Tr. 57:4–13.) Vidal
determined this would reasonably likely result in lost workdays or restricted duty. As I noted,
Inspector Vidal has significant experience inspecting mines. (Tr. 17:17–25.) Accordingly, given
Vidal’s significant experience as an inspector, I give his testimony great weight and determine
that the Secretary has satisfied his burden of proving that reasonably serious injuries were
reasonably likely to occur, and has thus satisfied Mathies’ third and fourth elements.
d.

Negligence

Vidal designated RECON’s negligence regarding this violation as “moderate” due to the
company’s obligation to ensure that any equipment it brings on-site for use is checked daily.
(Tr. 50:4–6.) Allen testified that he believed access to the gang box was restricted at some point.
(Tr. 114:1–6.) Moreover, RECON, through its safety manual, had contemplated procedures to
monitor distribution of the equipment. (Tr. 115:10–16; Ex. R–2.) I find these factors to be
somewhat mitigating and, thus, I agree with Vidal’s determination that Respondent’s negligence
is properly designated as moderate.

36 FMSHRC Page 2526

B.

Citation No. 6454808 – Workplace Examination Violation
1.

Parties’ Arguments

The Secretary argues that the text of Inspector Griffith’s citation itself, as well as his
notes, establish a facial violation of 30 C.F.R. § 56.18002(a). (Sec’y Post-Trial Br. at 19.)
Specifically, the Secretary points out that Citation No. 6454808 and Griffith’s notes mention that
the alleged failure to perform and document a workplace examination contributed to the issuance
of three S&S violations during the same inspection. (Id.) Although counsel for the Secretary
acknowledges that the Secretary has the burden of proof, counsel nevertheless highlights
Respondent’s failure to introduce any evidence regarding this citation. (Id.)
In contrast, Respondent argues that the Secretary has failed to meet his burden of proof
regarding this citation. (Resp’t Reply to Sec’y Post-Trial Br. at 4.) Respondent further argues
that RECON has no obligation to present evidence given its position that the Secretary failed to
meet his burden of proof. (Id.)
2.

Analysis and Conclusions of Law

To establish the violation alleged in Citation No. 6454808, the Secretary must meet his
burden of proof, which is by a preponderance of the evidence. To meet his burden of proof, the
Secretary must demonstrate that “the existence of a fact is more probable than its non-existence.”
RAG Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept. 2000) (citations omitted). Put
simply, “the evidence must be sufficient to convince the trier of fact that the proposition asserted
is more likely true than not true.” Keystone Coal Mining Corp., 16 FMSHRC 857,896 (1994)
(ALJ). Here, the Secretary presented only copies of Inspector Griffith’s citation and notes. Yet,
in his prehearing report, the Secretary stated that he would call Inspector Griffith to testify
regarding this citation. (Sec’y Preh’g Statement at 8.) Thereafter, at the hearing, the Secretary
indicated that a MSHA field office supervisor was supposed to testify regarding Citation No.
654808 but fell ill. (Tr. 14:14–17.) The Secretary could have asked for a continuance or, at a
minimum, asked that the record be left open to introduce later deposition testimony from the
then-ill MSHA supervisor. The Secretary pursued none of these options.
Instead, the Secretary chose to move forward with the hearing and circumvent the
deficiencies in his presentation by attempting to introduce Inspector Griffith’s citation under the
business records exception to hearsay evidence through the testimony of Inspector Vidal, who
could provide no information on Citation No. 6454808 itself. (Tr. 14:12–20.) The Secretary’s
attempt to use the business records exception is a red herring. It is a basic principle of
administrative law that hearsay is admissible in federal and state administrative hearings. See
Richardson v. Perales, 402 U.S. 389 (1971). Moreover, Commission Procedural Rule 63(a)
specifically permits hearsay evidence in Commission proceedings. 29 C.F.R. § 2700.63(a).
I understand why the Secretary wants to introduce the citation into evidence under the
business records exception to hearsay evidence, as I may then conclude that the text contained in
the citation is somehow more reliable and should be taken at face value. However, Inspector

36 FMSHRC Page 2527

Vidal did not issue Citation No. 6454808, did not speak to Inspector Griffith about this citation,
and was not at Drake Quarry on the date the citation was issued. Moreover, it was not his job to
be the custodian of records. The Secretary’s attempt to introduce the citation as a business record
is unconvincing and inapposite. Nevertheless, the Commission’s Procedural Rules allow for the
introduction of hearsay evidence, and I duly admitted the citation and notes at the hearing. Their
admission, however, does not determine the weight I give such evidence.
Indeed, the Secretary hopes to buttress his case by using the business records exception
to the hearsay rule. Yet, in the end, it is still hearsay. With no foundation for the documents and
no testimony to support the allegations and determinations contained in Citation No. 654808, I
am left with little more than bald allegations to consider. In fact, I know nothing about the
inspector who issued this citation or his qualifications, and nothing was admitted at hearing as
evidence, such as an affidavit or deposition testimony, regarding Inspector Griffith or the
issuance of this citation. As the Secretary well knows, MSHA vacates citations from time to time
based on its view that the inspector erred in issuing a citation or in finding a violation, and
Commission Judges have done the same. Without testimony from an inspector or witness who
can substantiate the claims made in this citation, I have no way of determining the veracity of the
charges contained in the citation. Thus, I am precluded from making any credibility
determinations.
In my view, what the Secretary asks me to do here offends the basic tenets of due
process. Moreover, it offends basic concepts of fairness, inasmuch as the operator cannot
cross-examine a sheet of paper. The Secretary’s attempt to find fault with Respondent’s refusal
to put on a case against this citation is also dubious. It is a failed attempt to draw attention away
from the deficiencies in the Secretary’s own case. All the Secretary has here is hearsay evidence,
which I do not credit given the circumstances described and which I determine is insufficient to
carry the Secretary’s burden of proof. Consequently, I vacate Citation No. 654808.
VI.

CIVIL PENALTIES

Under section 110(i) of the Mine Act, the Administrative Law Judge must consider six
criteria in assessing a civil penalty: (1) the operator’s history of previous violations; (2) the
appropriateness of the penalty relative to the size of the operator’s business; (3) the operator’s
negligence; (4) the penalty’s effect on the operator’s ability to continue in business; (5) the
violation’s gravity; and (6) the demonstrated good faith of the operator in attempting to achieve
rapid compliance after notification of a violation. 30 U.S.C. § 820(i).
Prior to the violations at issue, RECON has had no recorded history of violations.
(Ex. G–1.) Of the five citations before me, I affirmed all but Citation No. 6454808. The
Secretary has proposed a penalty of $2,272.00 for the remaining four citations. Nothing in the
record suggests that this penalty is inappropriate for the size of RECON’s business or that it
would infringe on RECON’s ability to remain in business. Moreover, after these citations were
issued, nothing suggests that RECON failed to make a good faith effort to achieve rapid
compliance with the safety standards. RECON was moderately negligent in all four violations,
and each affirmed violation exposed miners 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 $2,272.00.

36 FMSHRC Page 2528

VII.

ORDER

In light of the foregoing, it is hereby ORDERED that Citation Nos. 6453940, 6453941,
6453945, and 6453946 are AFFIRMED. It is further ORDERED that Citation No. 6454808 is
VACATED. It is further ORDERED that Respondent’s request to withdraw its contest of the
civil penalty for Citation No. 6453944 is hereby GRANTED.
WHEREFORE, Respondent is ORDERED to pay a penalty of $2,535.00 within 40
days of this decision.

/s/ Alan G. Paez
Alan G. Paez
Administrative Law Judge

Distribution:
Gregory W. Tronson, Esq., Office of the Solicitor, U.S. Department of Labor,1999 Broadway,
Suite 1600, Denver, CO 80202-5708
Eugene F. McMenamin, Esq., Atkinson, Andelson, Loya, Ruud & Romo, 12800 Center Court
Drive, Suite 300, Cerritos, CA 90703-9364
/bm

36 FMSHRC Page 2529

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, D.C. 20004

September 30, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 2012-952
A.C. No. 15-08079-284662-01

v.

Docket No. KENT 2012-953
A.C. No. 15-08079-284662-02

EXCEL MINING, LLC,
Respondent.

Mine: Mine No. 3
DECISION

Appearances: J. Malia Lawson, Esq.,U.S. Department of Labor, Office of the Solicitor,
Nashville, Tennessee, on behalf of the Secretary of Labor;
Gary D. McCollum, Esq., Excel Mining, LLC, Lexington, Kentucky, on behalf
of Respondent.
Before:

Judge Paez

This case is before me upon the petitions for the assessment of civil penalty filed by the
Secretary of Labor (“Secretary”) under section 105 of the Federal Mine Safety and Health Act of
1977 (“Mine Act”), 30 U.S.C. § 815. These matters were called for hearing on September 11,
2014, in Pikeville, Kentucky. For an hour beginning at the scheduled hearing time, the parties
were permitted to attempt an amicable resolution of these dockets, given that counsel, witnesses,
and the principals were all in attendance. At the conclusion of this period, I went on the record
whereby the parties stated that they had resolved their differences. (Tr. 6–7.) Counsel for the
Secretary specified the terms of the settlement, which I outline below, and counsel for Excel
Mining, LLC (“Excel” or “Respondent”) concurred. (Tr. 7–8.) The parties read the terms of the
settlement into the record and provided the rationale for the settlement agreement. (Tr. 7-10.)
The Secretary’s originally proposed assessment for both dockets was $12,143.00, and the
parties’ proposed settlement amount is $10,500.00. The proposed settlement is as follows:
KENT 2012-952
Citation/
Order No.
8265645
8268748

Date
01/10/2012
01/10/2012

30 C.F.R.
48.7(a)(3)
50.10(b)
Total:

Assessment
$ 3,143.00
$ 5,000.00
$ 8,143.00

36 FMSHRC Page 2530

Settlement
$ 2,500.00
$ 5,000.00
$ 7,500.00

KENT 2012-953
Citation/
Order No.
8268749

Date
01/10/2012

30 C.F.R.
50.12

Assessment
$ 4,000.00

Settlement
$ 3,000.00

Cumulative Totals:

$12,143.00

$10,500.00

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 Mine Act, 30 U.S.C.
§ 820(i), including information regarding Respondent’s size, ability to continue in business, and
history of previous violations. In addition, the Secretary and Respondent have stated reasons on
the record 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 that 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.

36 FMSHRC Page 2531

ORDER
Order.1

Respondent is ORDERED to PAY a civil penalty of $10,500.00 within 30 days of this

Additionally, within the same 30 days, the Secretary is ORDERED to MODIFY the
following:
Gravity
Citation/Order Standard Likelihood Severity S&S Number Negligence Type of
No.
of
Action
Persons
Affected
KENT 2012-952
8265645
2656
To “Highly N/A
N
N/A
N/A
N/A
Likely”
KENT 2012-953
8268749
2687
N/A
N/A
N/A N/A
N/A
To
“104(a)
Citation
”

/s/ Alan G. Paez
Alan G. Paez
Administrative Law Judge
Distribution:
J. Malia Lawson, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street,
Suite 230, Nashville, TN 37219-2456
Gary D. McCollum, Esq., Assistant General Counsel, Excel Mining, LLC, 771 Corporate Drive,
Suite 500, Lexington, KY 40503
/cm

1

Payments should be sent to: U.S. Department of Labor, MSHA, Payment Office,
P.O. Box 790390, St. Louis, MO 63179-0390. Please include docket and A.C. numbers.

36 FMSHRC Page 2532

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, D.C. 20004-1710

September 30, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. LAKE 2009-263
A.C. No. 11-013141-173084-01
Docket No. LAKE 2009-338
A.C. No. 11-013141-175621

v.
MACH MINING, LLC,
Respondent.

Mine: Mach Mine No. 1

DECISION
Appearances: Sarah T. Weimer, Esq., U.S. Department of Labor, Office of the Solicitor,
Denver, Colorado, for Petitioner;
Christopher D. Pence, Esq., Allen Guthrie & Thomas, PLLC, Charleston,
West Virginia, for Respondent.
Before:

Judge Paez

This case is before me upon a Petition for Assessment of Civil Penalty filed by the
Secretary of Labor (“Secretary”), pursuant to section 105 of the Federal Mine Safety and Health
Act of 1977 (“Mine Act”), 30 U.S.C. § 815. In dispute are two section 104(a) citations issued to
Mach Mining, LLC (“Mach” or “Respondent”), alleging violations at Mach’s Mach No. 1 mine.
To prevail, the Secretary must prove his charges “by a preponderance of the credible evidence.”
In re: Contests of Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1838 (Nov.
1995) (citing Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989)), aff’d sub
nom., Sec’y of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096, 1106–07 (D.C. Cir. 1998).
This burden of proof requires the Secretary to demonstrate that “the existence of a fact is more
probable than its nonexistence.” RAG Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept.
2000) (citations and internal quotation marks omitted), aff’d, 272 F.3d 590 (D.C. Cir. 2001).
I. STATEMENT OF THE CASE
The Secretary filed his petitions for the assessment of penalty against Mach, and Mach
timely filed its answers. Chief Judge Lesnick assigned consolidated Docket Nos. LAKE
2009-263 and LAKE 2009-338 to me along with Docket No. LAKE 2009-264. The parties
subsequently settled Docket No. LAKE 2009-264, and I disposed of the case in a separate
Decision Approving Settlement.

36 FMSHRC Page 2533

The Secretary has proposed a total civil penalty of $4,800.00 for the two remaining
citations, and I held a hearing on the record in Evansville, Indiana to determine the merits
of the Secretary’s case.1 Citation No. 6683204 charges Mach with violating 30 C.F.R.
§ 75.380(f)(3)(iii) for obstructing a primary escapeway with a battery charging station, and
alleges that Respondent’s conduct constituted high negligence.2 The Secretary presented the
testimony of Mine Safety and Health Administration (“MSHA”) Inspector and Electrical
Engineer Dean Cripps, while Respondent presented testimony from Mach General Manager
Anthony Webb and Fire Safety Incorporated Sales Representative Lowell Holler.
In addition, Citation No. 6679603 charges Mach with violating 30 C.F.R. § 75.400 for
failing to clean up and prevent the accumulation of coal dust, loose coal, and other combustible
material.3 The Secretary also alleges that the condition was significant and substantial4 (“S&S”)
and the result of Mach’s high negligence. The Secretary presented testimony from two
inspectors, Inspector Edward Law and Inspector Bobby Jones, while Mach presented evidence
from Webb, Mach Examiner Dave Adams, and Mach Mine Foreman Chris England.
1

In this decision, the following abbreviations are used: “Resp’t Prehr’g Rprt” refers to
the Respondent’s Prehearing Report; “Br.” refers to a brief by either party; “Tr.” refers to the
hearing transcript; “Sec’y Ex. #” refers to the Secretary’s exhibits; “Resp’t Ex. (Letter)” refers to
Respondent’s exhibits.
2

Section 75.380(f)(3) provides:
The following equipment is not permitted in the
primary escapeway
....
(iii) Underground transformer stations, battery
charging stations, sub-stations, and rectifiers except–
(A) Where necessary to maintain the escapeway in
safe, travelable condition; and
(B) Battery charging stations and rectifiers and power
centers with transformers that are either dry-type or contain
nonflammable liquid, provided they are located on or near a
working section and are moved as the section advances or
retreats.

30 C.F.R. § 75.380(f)(3).
3

Section 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.” 30 C.F.R.
§ 75.400.
4

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

36 FMSHRC Page 2534

Respondent has stipulated to my jurisdiction over this matter under the Mine Act, Mach’s
status as an operator subject to the Mine Act, and the effect Mach’s coal has on interstate
commerce. (Resp’t Prehr’g Rprt. at 1.) The Secretary and Respondent each submitted
posthearing briefs and reply briefs.
II. ISSUES
The Secretary asserts that the conditions were properly cited as violations and the
allegations underlying the citations were valid. (Sec’y Br. at 1.) Mach admits a violation of both
cited safety standards but contends that Citation No. 6679603 should be modified to a non-S&S
citation. (Resp’t Br. at 1.) Moreover, Mach asserts that both citations were improperly
designated as resulting from Mach’s high negligence. (Id.)
Accordingly, the issues before me are as follows: (1) whether the record supports the
Secretary’s assertions regarding the gravity of Citation No. 6679603; (2) whether the record
supports the Secretary’s assertions in Citation Nos. 6683204 and 6679603 regarding Mach’s
level of negligence; and (3) whether the civil penalties proposed by the Secretary are
appropriate.
For the reasons set forth below, Citation Nos. 6683204 and 6679603 are AFFIRMED as
written.
III. BACKGROUND AND FINDINGS OF FACT
The Mach No. 1 mine is a longwall coal mine in Johnston City, Illinois. (Sec’y Ex. 1;
Tr. 18:8–9, 220:20–21, 263:8–11.) Mach Mine No. 1 is a “gassy” mine that liberates more than 1
million cubic feet of methane per 24 hours. (Tr. 143:20–144:3.) Each panel of the Mach No. 1
mine has a similar configuration and is generally about 18,000 feet in length. (Tr. 27:20–22,
30:13, 84:16–19.) A system of conveyor belts carries the coal to the main belt. (Tr. 13:7–8,
118:11–14.) The main belt—also known to as the “second east belt”—runs the entire
18,000-foot length of the longwall and carries the coal out of the mine. (Tr. 13:7–8, 118:11–14.)
Mach Mine No. 1 also maintains sprinkler systems and carbon monoxide (“CO”) monitors as fire
suppression and detection equipment in the Second East Headgate area of the mine.
(Tr. 157:4–161:5, 255:4–11.)
In the fall of 2008, a temporary belt—known as a pony belt—extended into a setup room
area to facilitate transfer of coal to the second east belt. (Sec’y Ex. 1; Tr. 114:5–23, 118:2–4.)
The pony belt transferred the coal from the setup room onto the second east belt. (Sec’y Ex. 1;
Tr. 115:12–117:23.) The pony belt and second east belt were the same width, making spillage
common at the transfer point. (Tr. 13:9–13, 119:11–18, 231:12–23, 253:12–24.)
The mine also maintains primary and secondary escapeways for each section, which
provide miners in the working area a safe pathway to exit the mine in the event of an emergency.
(Tr. 24:15–25:10, 32:7–9.) Primary escapeways are designed to be ventilated with intake air

36 FMSHRC Page 2535

fresh from the surface to prevent smoke contamination of the main escape route in the event of a
mine fire. (Tr. 24:24–25:3.) Alternate escapeways are separated from the primary escapeway in
their entirety, but they need not be ventilated with intake air. (Tr. 25:4–10.)
IV. PRINCIPLES OF LAW
A.

General Principles Governing Significant and Substantial (“S&S”) Designations

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., 52 F.3d at 135–36 (affirming ALJ’s application of the Mathies
criteria); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving the
Mathies criteria).
The third Mathies element is often heavily contested. In the accumulations context, the
third element is met where a “confluence of factors,” such as the extent of the accumulation and
presence of possible ignition sources, make the hazard reasonably likely to result in injury. See
Enlow Fork Mining Co., 19 FMSHRC 5, 9 (Jan. 1997). This evaluation should be made
assuming continued normal mining operations. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130
(Aug. 1985) (citing U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984)). Materials need
not be hot when inspected to prove friction as an ignition source, if heat will eventually result
during continued normal mining operations. Mid-Continent Res., Inc., 16 FMSHRC 1218, 1222
(June 1994) (finding the lack of a hot spot immaterial where friction was present between belt
rollers and accumulations).
The Commission has also provided guidance to Administrative Law Judges in applying
the Mathies test. The Commission has indicated that “an inspector’s judgment is an important
element in an S&S determination.” Mathies, 6 FMSHRC at 5 (citing Nat’l Gypsum, 3 FMSHRC
at 825–26); see also Buck Creek Coal, 52 F.3d at 135 (finding no abuse of discretion where ALJ
credited opinion of experienced inspector).
B.

General Principles Governing Determinations of Negligence

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 risk of harm. 30 C.F.R.
§ 100.3(d). Mine operators are held to a high standard of care, and failure to exercise such care
constitutes negligence. Id. An operator is required to be alert for conditions affecting the health
and safety of miners, while taking preventive and/or corrective action to address hazardous
conditions or practices. Id. MSHA may consider mitigating circumstances which can include the
operator’s actions to prevent or correct hazardous conditions or practices. Id.

36 FMSHRC Page 2536

Estoppel defenses are not generally available against the federal government. See, e.g.,
Knob Creek Coal Co., 3 FMSHRC 1417, 1421 (June 1981). Inspectors’ previous representations
about compliance with a regulation do not estop MSHA from issuing future citations,
Nolichuckey Sand Co., 22 FMSHRC 1057, 1063–64 (Sept. 2000), but detrimental reliance on an
inconsistent interpretation is properly considered in mitigating the penalty. U.S. Steel Mining,
Co., 6 FMSHRC 2305, 2310 (Oct. 1984) (indicating that a local MSHA office’s past approval of
operator’s transportation methods does not negate an S&S finding and noting that detrimental
reliance may be considered in mitigation of penalty).
V. FURTHER FINDINGS OF FACT, ANALYSIS, AND CONCLUSIONS OF LAW
A.

Citation No. 6679603 — The Accumulations Violation
1.

Additional Findings of Fact
a.

Roof Fall, Inspection, and Accumulations — October 30

The early hours of October 30, 2008, were a busy time at Mach Mine No. 1. At
approximately 2:00 a.m., Mach began to move the temporary pony belt connecting the mine’s
setup room to the second east belt, which would be a four or five hour process.5
(Tr. 240:17–241:7.) Meanwhile, at approximately 2:30 a.m., Adams identified coal
accumulations in the second east belt tail area, deenergized the belt, and notified Mach’s
foreman that the belt tail needed to be cleaned. (Tr. 228:15–21, 229:1–12.) However, a roof fall
occurred in the Second East Headgate area between 3:00 a.m. and 3:30 a.m. (Tr. 239:2–3.)
Finally, at some point overnight prior to 7:00 a.m., a miner injured himself while installing
supplemental support in another area of the mine. (Tr. 204:20–22, 205:8–11, 246:21–23.)
Two MSHA inspectors, Inspector Jones and Inspector Law, independently responded to
the report of the roof fall. (Tr. 110:8–12, 113:4–5, 204:8–14, 205:4–5.) Inspector Jones arrived at
Mach Mine No. 1 at approximately 6:30 a.m. (Tr. 204:8–14, 205:4–5, 122:18–22, 136:9–13,
137:13–15, 205:17–18.) He verbally issued a section 103(k) order at approximately 7:15 a.m.,
which required Mach to evacuate the area near the roof fall—including the area of the
accumulations, which was approximately 400 feet away. (Tr. 123:6–11, 148:3–6, 208:4–10,
210:6–10, 14–17.) After Jones issued the section 103(k) order, Mach was prohibited from
accessing the Second East Headgate area, including the junction point between the pony belt and
main belt. (Tr. 185:2–5.) Jones testified that he saw the accumulations at the tail piece of the
second east belt on his way to the roof fall area. (Tr. 206:4–8.) According to Jones, he did not
immediately cite the accumulations because he was “more concerned with getting the roof
control—the roof fall investigation so I could go and investigate the accident to the miner.”
(Tr. 206:11–14.)

5

However, the stopped pony belt did not require the main belt to stop. (Tr. 190:10–15.)

36 FMSHRC Page 2537

Later that morning, Law received a call regarding the roof fall at Mach No. 1 Mine.
(Tr. 110:8–11.) While traveling to the roof fall area, Law also observed the accumulations at the
head of the pony belt and the tail of the second east belt. (Tr. 113:12–24.) At 10:40 a.m., Law
issued a section 104(a) citation to Mach for violating 30 C.F.R. § 75.400. Law’s citation states:
The [Second] East Headgate belt tail has been running in
accumulations of combustible materials in the form of coal fines,
loose coal and coal. The accumulations are in front of, along the
sides of and under the belt tail area. They range from 5 to 10 feet
in length, 3 to 4 feet wide and from 6 to 24 inches in depth. The
bottom belt has been running in coal and is in contact with the belt,
under the tail pulley and in contact on both sides of the tail pulley.
The accumulations of combustible materials are also built up under
the pony belt scrapers in contact with the belt 10 to 18 inches in
depth and the width of the belt. There has been a roof fall on the
pony belt and the belts are currently not operating.
(Sec’y Ex. 7.) The accumulations were dark in color6 and were not rock dusted.7 (Sec’y Ex. 7;
Tr. 120:2–7,0 121:9–10.) Although the second east belt was not running at the time, it appeared
the accumulations were extensive and had been in contact with both sides of the belt. (Sec’y Ex.
7; Tr. 113:24, 114:1, 119:1–3.) According to Law, belt friction provided an ignition source.
(Tr. 145:8–10.) He also indicated the accumulations appeared to have been there “for a while.”8
(Tr. 156:3–4.)
As to the extent of the accumulations, Law observed loose coal spilled along both sides
of the belt, behind it, and underneath the head area. (Sec’y Ex. 7; Tr. 118:23–119:1.) Law
measured the accumulations with a tape measure and described them as being five to 10 feet out
along the sides of the belt tail and pony belt head area, three to four feet wide, and six to 24
inches deep. (Sec’y Ex. 7; Tr. 126:18–19, 113:19–20.) Underneath the pony head area, there
6

Although General Manager Webb testified that the accumulations were mostly rock
(Tr. 251:12–19), I note that Law credibly testified that the material was coal. (Tr. 126:21–24.)
Moreover, Respondent’s own witness, Foreman England, testified that the accumulations had “a
little bit of rock and coal.” (Tr. 270:15–17 (emphasis added).) Thus I credit Law’s description
regarding the composition of the accumulations.
7

Law did note that the surrounding area was rock dusted “fairly well” but indicated the
accumulations, which were “pretty distinct in color,” were not. (Tr. 121:8–14.)
8

At the hearing, Inspector Law admitted he did not specifically know whether Mach had
performed any work during the October 29 afternoon shift to address the accumulations noted in
its afternoon examination books. (Tr. 156:24–157:2, 188:16–20.) However, Law noted that
Mach’s exam records from both the October 29 afternoon and October 30 midnight shifts
identified accumulations at the belt tail area but listed no corrective action had been taken.
(Tr. 155:2–14; see also Resp’t Ex. B.) Inspector Law therefore inferred that the accumulations
had been there for a “fairly long length of time.” (Tr. 155:9–11.)

36 FMSHRC Page 2538

were 10 to 18 inches of coal accumulations, such that the belt was “actually sitting on top of the
coal.” (Sec’y Ex. 7; Sec’y Ex. 8; Tr. 113:21–24.)
Based on his observations, Law also determined that the violation was S&S and the result
of Mach’s high negligence. (Sec’y Ex. 7; Tr. 111:7–13, 152:15–154:16, 164:1–165:17.)
b.

Additional Findings of Fact — Mach’s Corrective Measures

Although Respondent admits that the cited accumulations were present in the belt tail
area, Mach disputes Inspector Law’s determination regarding the duration of the violative
condition. (Resp’t Br. at 2–3, 12–13.) Instead, Mach claims that the accumulations were a recent
spill. Specifically, Respondent points to Examiner Adams’ testimony to suggest that
accumulations listed in the exam book for the afternoon shift on October 29 had been cleaned.
Adams worked a 9:00 p.m. to 7:00 a.m. shift at Mach Mine No. 1 on October 29 and October 30.
(Tr. 224:22–23, 238:1–3.) Between 9:30 p.m. and 10:00 p.m. on October 29, Adams passed by
the second east belt tail area. (Sec’y Ex. 7; Tr. 227:2–9, 228:10–11.) Adams testified that the
accumulations described in Citation No. 6679603 were not consistent with his observations at
9:30 p.m. (Tr. 228:1–3.) According to Adams, at 9:30 p.m. the main belt and pony belt were
running, and the tail rotor was clear. (Tr. 228:4–14.) Mach thus claims that the accumulations
from the October 29 afternoon shift must have been cleaned before Adams’ 9:30 p.m.
observations. (Resp’t Br. at 14.)
Despite Adams’ testimony, the evidence in this case convinces me that Respondent made
no attempt to clean or address the accumulations at issue until Adams shut down the second east
belt at 2:30 a.m. First, Inspector Law credibly testified that he believed no corrective action had
been taken based on the amount of coal accumulations he found during his examination. As Law
explained: “If it had been cleaned up twice prior to that, then they had an awful spill occurring . .
. when whatever took the belt down, whoever took the belt down . . . it was running in coal and it
had built up to the point that it was a pretty good size accumulation. . . . [I]f it was [cleaned up],
then the spill they had ongoing was creating a very big hazard.” (Tr. 156:15–157:3.) In Law’s
opinion, therefore, no corrective action had been taken between the October 29 afternoon shift
and his inspection on October 30. (Tr. 156:15–17.) Law has more than 27 years experience as a
miner and inspector. (Tr. 108:9–109:24.) His opinion is therefore entitled to significant weight.
See Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278–79 (Dec. 1998) (relying on the
opinion of an experienced inspector to conclude that substantial evidence supported the ALJ’s
S&S determination).
Second, Adams admitted he was not making a belt examination when he made his 9:30
p.m. observation; instead, he was in the area to examine a belt transformer. (Tr. 228:4–10.)
Though Adams may have observed the area, his observation was not focused on the
accumulations. In fact, during the hearing Adams gave no basis to believe his 9:30 p.m.
observation of the belt tail area was at all rigorous. I therefore give no weight to Adams’
testimony on this point.

36 FMSHRC Page 2539

Finally, Mach produced neither testimony from General Manager Webb, Mine Foreman
England, or Adams nor other evidence identifying any actual corrective action taken to clean up
the accumulations.9 Based on the above, I therefore find Mach made no corrective actions to
clean up the accumulations between the time the afternoon examiner observed them and the roof
fall occurred at approximately 3:30 a.m.
2.

Legal Analysis

a. Conclusion of Law — S&S Determination
Mach stipulated to a violation of 30 C.F.R. § 75.400, fulfilling the first Mathies factor.
As I noted, Law credibly testified that the belt was in contact with the coal and an ignition was
possible. Moreover, a belt running in coal may lead to a belt fire, creating smoke affecting
anyone in the belt entry and increasing the chance of an explosion. See Black Diamond Coal
Mining Co., 7 FMSHRC 1117, 1121 (August 1985) (recognizing that coal can dry out and
ignite). Thus, the accumulation contributed to a discrete safety belt fire safety hazard, and I
determine that the Secretary has satisfied the second element of the Mathies test.
Mach also claims that injuries were not reasonably likely to occur, which is the third
Mathies element.10 (Resp’t Br. at 10–12.) First, Respondent contends that if an ignition did
9

Mach’s posthearing briefs note that operators are allowed 24 hours to mark corrective
actions in their examination books and that those 24 hours had not passed when Law inspected
Mach’s examinations books. However, Respondent’s own brief highlights its lack of evidence:
“Presumably, the accumulations noted during the afternoon shift (before 11:00 p.m. on October
29) could have been cleared prior to Mr. Adams’ examination at approximately 9:30 p.m. that
evening.” (Resp’t Br. at 14 (emphasis added).) Undeterred, Mach apparently hopes I will
hypothesize about the corrective actions it might have taken and infer that those actions
occurred. Yet, such conjecture provides no actual evidence from which I might infer that Mach
actually cleaned the accumulations noted on its afternoon exam books.
10

Mach also included several other arguments that bear brief discussion, but which are
ultimately inapposite. First, Mach suggests an ignition was unlikely because the material under
the belt tail was wet and mostly rock. (Resp’t Br. at 10; Resp’t Reply Br. at 5.) However, I have
credited Inspector Law’s description of the accumulations. See discussion supra note 6. Here,
Inspector Law indicated that the friction created from the belt contacting the coal would dry out
the coal and provide an ignition source. (Sec’y Ex. 8; Tr. 135:14–19.) In addition, the
Commission has consistently found that wet or damp coal will dry out and fuel or propagate a
fire or explosion. See, e.g., Consolidation Coal Co., 35 FMSHRC 2326, 2329–30 (Aug. 2013)
(citing Black Diamond Coal Mining Co., 7 FMSHRC 1117, 1120–21 (Aug. 1985), and
Mid-Continent Res., Inc., 16 FMSHRC 1226, 1230, 1232 (June 1994)).
Mach also claims that its CO detection and fire suppression systems would alert affected
miners to evacuate. (Tr. 15:12–21; Resp’t Br. at 11–12.) Likewise, Mach suggests that personnel
doors on the belt entry would allow a belt examiner to escape in the event of a fire. (Resp’t Br. at
11–12). However, the presence of other fire safety equipment like CO monitors and personnel
(continued…)

36 FMSHRC Page 2540

occur, the direction of air flow in the entry meant that “smoke would travel outby away from
miners in the working section.” (Id. at 11.) Second, Respondent claims that the belt did not
provide a possible ignition source because it had been deenergized. (Id. at 10–11.) Finally,
Mach claims that it would have cleaned the violative accumulations in the course of normal
mining operations before the second east belt was reenergized. (Id. at 14–15.)
Nevertheless, the evidence before me demonstrates that the Secretary has satisfied his
burden of proof on Mathies’ third element. Here, Law credibly testified that the second east belt
had been running in coal. According to Law, one miner would be exposed to the hazard of a belt
fire because the belt examiner that regularly checked the belt system would encounter smoke.
(Tr. 154:8–9.) Regardless of the air flowing away from the miners on working section, a belt fire
would therefore reduce visibility and make it difficult for the examiner to breathe or find his or
her way out of the mine.
Respondent’s claim that the deenergized belt did not provide an ignition source is
similarly inapposite. Although the second east belt had been deenergized at the time Law issued
Citation No. 6679603, the belt was running in accumulations when Adams observed the
accumulations at 2:30 a.m. Cf. Rushton Mining Co., 11 FMSHRC 1432, 1435 (Aug. 1989)
(noting that “[t]he operative time frame for determining if a reasonable likelihood of injury exists
includes both the time that a violative condition existed prior to the citation and the time that it
would have existed if normal mining operation had continued.”) (emphasis added). Thus, the
second east belt provided a source of ignition for several hours before Adams took any steps to
shut down the belt.
In addition, the evidence suggests the belt was reasonably likely to be reenergized in the
course of normal mining operations. Notwithstanding the belt shut down and Inspector Jones’
section 103(k) order, Respondent failed to clean the accumulations for several hours prior to the
3:30 a.m. roof fall. Thus, it appears that cleaning the accumulations was not a priority for
Respondent. Indeed, England admitted that he prioritized conditions listed in Mach’s exam
books. (Tr. 265:14–9.) In this context, the belt could be purposefully or inadvertently
reenergized after Mach addressed the roof fall and completed its pony belt move. Cf. Knox Creek
Coal Corp., 36 FMSHRC 1128, 1141 (May 2014) (concluding that an accumulation was S&S
where the operator had already dispatched a clean-up crew to an accumulation running in coal
10

(…continued)
doors does not decrease the likelihood of injury. Buck Creek Coal, 52 F.3d at 136 (stating that
the presence of fire safety measures does not mean that fires do not pose a serious safety risk to
miners).
Finally, Mach claims that methane was not present at the time of the violation. (Resp’t
Br. at 12.) I note that Mach Mine No. 1 is a gassy mine and methane may develop quickly.
Nevertheless, it is unclear why Respondent believes methane is a necessary prerequisite for an
ignition. As Inspector Law credibly testified, a fire may occur when a “fire triangle” is present.
(Tr. 144:23–145:3.) A “fire triangle” has three components: an ignition source, fuel, and oxygen.
(Tr. 145:1–3.) Law identified all three fire triangle components—an ignition source (the belt
friction), fuel (the accumulations of coal), and oxygen (in the air). (Tr. 145:8–10.)

36 FMSHRC Page 2541

because the Commission could not assume the clean up would be completed before production
resumed.) Given the presence of an ignition source, the size of the coal accumulation, the
amount of time that the accumulations existed and ran in coal, Mach’s previous inaction, and the
possibility that the belt would be reenergized in continued mining operations, the confluence of
factors in this case convinces me that the hazardous condition was reasonably likely to result in
injury. I therefore determine that the third Mathies element has been satisfied.
Finally, Law also credibly testified to the seriousness of the injuries a belt fire would
cause. Specifically, Law testified that a belt fire is reasonably likely to result in smoke inhalation
and carbon monoxide poisoning injuries. (Tr. 154:8–16.) As the Commission has observed,
smoke inhalation and carbon monoxide poisoning are serious injuries. Cf. Big Ridge, Inc., 35
FMSHRC 1525, 1533 (June 2013) (affirming judge’s S&S determination where the hazard was
reasonably likely to result in smoke inhalation, carbon monoxide poisoning, and burns); see also
Black Diamond Coal Mining Co., 7 FMSHRC 1117, 1120 (Aug. 1985) (indicating that “ignitions
and explosions are major causes of death and injury to miners.”). Accordingly, I determine that
the Secretary has also satisfied the fourth element of Mathies.
Based on the foregoing, I determine that the Secretary has established all four elements
under Mathies and conclude that this violation was properly designated as S&S.
a. Conclusions of Law — Negligence Determination
The Secretary contends that Respondent’s knowledge of the violative condition, notice
that greater efforts were necessary for compliance, history of previous violations, the extent and
obviousness of the accumulations, and the danger the accumulations presented each demonstrate
Mach’s high negligence. (Sec’y Br. at 21–22.) In contrast, Mach argues that the high negligence
designation is improper because: (1) Examiner Adams shut off the belt upon discovery of the
accumulations and instructed the foreman to clean up the accumulations; and (2) the roof fall and
the resulting section 103(k) order prevented Mach from cleaning up the accumulations for a
lengthy period before Inspector Law issued the citation.11 (Resp’t Br. at 16–17.)
Here, Mach knew that coal commonly accumulated at the transfer point where coal from
the pony belt was dumped onto the main belt. (Tr. 13:5–11.) As Adams observed, accumulations
and spillage occurred in that area “pretty often.” (Tr. 231:23.) Likewise, General Manager Webb
noted that coal accumulated at this transfer point because the two belts were the same width,
causing significant build-up on the sides of the main belt. (Tr. 253:12–15.) Despite this
knowledge, Mach allowed significant amounts of coal to accumulate under the belt. Indeed,
Inspector Law’s testimony and description in Citation No. 6679603 detail the extent of the
11

Mach also suggests the accumulations listed in the exam book from the afternoon shift
on October 29 had been cleaned and that the accumulations at issue in Citation No. 6679603
resulted from spillage. (Resp’t Br. at 16–17.) However, I have found that Respondent took no
steps to clean the accumulation in the belt tail area prior to the roof fall. See discussion supra
Part V.A.1.b.

36 FMSHRC Page 2542

violation. (Sec’y Ex. 7; Tr. 125:20–126:2.) Mach was also on notice of the specific
accumulations at issue beginning on the afternoon of October 29. (Tr. 13:14–19.) Thus,
Respondent was on notice that accumulations were likely to arise at this transfer point and knew
about the actual violative conditions in question.
Moreover, Law stated that Mach could have promptly cleaned up the accumulations with
a shovel. (Tr. 150:3–7.) In fact, Mach quickly corrected the condition after Law issued Citation
No. 6689603. (Tr. 237:14–16.) Compared with the danger the accumulations presented, it
appears that cleaning the accumulation would have been relatively simple. Yet, Mach took no
steps to clean the condition prior to the roof fall at 3:30 a.m.
Further, the evidence before me does not demonstrate any mitigating factors. Although
Adams instructed the foreman to shut off the main belt because it was “gobbed out” (Tr. 228:24,
258:11–14), Adams’ efforts neither prevented nor corrected the hazardous condition: the coal
accumulation remained under the belt line. Rather than mitigate its negligence, Mach’s
willingness to shut down the belt and halt the transportation of coal out of the mine highlights
just how negligent Mach had been in allowing the situation to progress over several hours. At
that point, the accumulations must have been so serious that Mach was willing to stop the
transport of coal despite the slowdown to its operations. Moreover, neither Adams’ action nor
the roof fall precluded the main belt’s purposeful or inadvertent reengagement in the hours prior
to the section 103(k) order at 7:15 a.m. or after the roof fall had been addressed. If the belt were
reenergized, the belt remained an ignition source for a dangerous belt fire.
Mach’s claim that it would have cleaned the violative accumulations if the roof fall had
not occurred is likewise unavailing. (Tr. 233:17–23.) It is true that the early morning hours of
October 30 were busy ones at Mach Mine No. 1. A miner had been injured. A roof had fallen.
Focusing on the roof fall and injured miner is a seemingly rational decision; indeed, Inspector
Jones himself testified that he bypassed issuing the accumulation citation to attend to the roof
fall and injured miner.12 Superficially, Mach’s reasons for not cleaning the accumulations in
those hectic early morning hours might seem to mitigate Respondent’s negligence. Yet when
examined more closely, Mach’s argument ignores hours of inactivity preceding the roof fall.
Despite the ease with which Mach could have cleaned the accumulation, Respondent took no
steps to address the violative condition between the afternoon shift on October 29 and the roof
fall at 3:30 a.m. on October 30.
For the foregoing reasons, I find the Secretary met his burden to prove Mach’s high
negligence concerning Citation No. 6679603. In light of my conclusion that this violation was
also S&S, Citation No. 6683204 is hereby AFFIRMED as written.

12

Jones explained: “If it had been an normal day, I would have cited it, or if it—even if it
had just been the roof fall, I probably would have cited it. My number one intention when I went
below was to get where the miner was injured where I could look it over.” (Tr. 212:10–15.)

36 FMSHRC Page 2543

B.

Citation No. 6683204 — The Charging Station Violation
1.

Additional Findings of Fact
a.

Additional Findings of Fact — Prior Citation

A battery charger is a large piece of electrical equipment, measuring approximately six
feet long, three feet wide and two to three feet high. (Tr. 41:22–24.) Battery chargers connect, or
plug in, to belt power centers through a cable attached to the charger. (Tr. 26:11–27:4.) The end
of the battery charger cable, called a cathead, plugs into the belt power station. (Tr. 34:10–12.)
When a lock is placed on the cathead, the battery charger’s cable cannot be plugged into the belt
power center and thus the battery charger cannot be energized unless the lock is removed. (Tr.
38:8–11, 93:7–12.)
On October 28th, 2008, Inspector Cripps cited Mach for a violation of 30 C.F.R.
§ 75.380(f)(3)(iii) because he had found two charging stations in same primary escapeway.
(Sec’y Ex. 5; Tr. 35:11–19.) After the October 28th citation, Mach moved the charger to the
surface so to allow Fire Safety, Incorporated (“Fire Safety”) to update its fire suppression
system. (Tr. 11:13–15, 104:18–23.) According to Sales Representative Holler, Fire Safety
completed the update on October 29, tagged the charger, completed an inspection report, and left
it on the surface of the mine because it was not Fire Safety’s responsibility to return the charger
underground. (Tr. 104:14–16. 105:3–8; Resp’t Ex. C.)
On November 7, another inspector terminated the October 28 citation when the charger
cable was locked out.13 (Sec’y Ex. 5; Tr. 36:19–37:1, 46:22–47:7, 68:21–22, 75:11–12,
100:5–16.) At some point, someone returned the charger to the primary escapeway, but the
means by which it returned and the actual date of return is unknown. (Tr. 98:3–7.) General
Manager Webb testified that he did not order any Mach employees to return the charger to the
primary escapeway, does not have a way of knowing who returned the charger underground, and
did not know the charger was returned to the primary escapeway until November 15 or 16. (Tr.
88:14–23.) When Webb found the charger in the escapeway, he saw its power cable rolled out
towards the power center, with the cathead laying on the ground unlocked. (Tr. 93:12–19,
98:17–21, 99:19–22.) Webb then directed his longwall maintenance chief, Dallas Travelstead, to
put a lock on the cathead. (Tr. 89:15–18, 93:5–10, 99:16–18.)
b.

Cripps’ November 17, 2008 Inspection

On November 17th, 2008, Inspector Cripps conducted an inspection of Mach No. 1 mine.
(Sec’y Ex. 6; Tr. 19:10–15.) During his inspection, Cripps noticed a battery charging station
parked in the primary escapeway at Headgate Number 2, about one and a half miles away from
the working section. (Tr. 24:8–10.) The charging station was not being used to maintain the
13

Cripps, however, would not have terminated the October 28 citation simply for locking
out the charger’s cathead; instead, he would have required removal from the primary escapeway.
(Tr. 37:10–14.) As Cripps noted, merely locking the cathead would allows “anybody [with] . . . a
key . . . [to] go up and simply take the lock off and plug it in and begin charging with it at any
time.” (Tr. 38:4–11.)
36 FMSHRC Page 2544

escapeway. (Sec’y Ex. 5; Tr. 23:21–24:6.) The charger cable was locked out, but it was extended
to the belt power center one crosscut inby. (Sec’y Ex. 5–6; Tr. 34:7–12, 43:5–14, 38:8–11.)
Cripps also noticed a battery-operated scoop located in the charging station in a position to be
charged, although it was not charging at the time. (Tr. 23:8–9, 26:2–3, 31:5–6.) As Cripps
observed the condition, Greg Patton, a foreman, approached the area and told Cripps he had
come to see if his scoop was charged up. (Sec’y Ex. 6; Tr. 44:19–45:5.) Patton told Cripps he
normally charged his scoop in this location, and he did not know whose lock was on the charging
station. (Tr. 45:17–20.)
Based on his inspection and observations, Cripps issued Citation No. 6683204,
indicating:
A scoop charging station, No. 4 charger, was located at No. 78
crosscut of the HG #2 primary escapeway and was not being used
to maintained [sic] the escapeway. The cable that supplies 480
volts to the charger extended to the belt power center at No. 79
crosscut and was locked out. This charging station was cited on
10/28 for being in the primary escapeway. The citation was
terminated when the charger was locked out. Evidence indicates
that this charger has been being used since the previous citation
was issued and terminated.
(Sec’y Ex. 5; Tr. 21:20–24, 49:6–51:1.) In addition, Cripps determined the violation was the
result of Mach’s high negligence. (Id.; Sec’y Ex. 6; Tr. 50:8–52:1, 57:24–58:10.)
2.

Conclusion of Law — Negligence Determination

Mach argues that it did not receive notice that MSHA would no longer accept a
locked-out cathead as abating the 30 C.F.R. § 75.380(f)(3)(iii) violation. (Resp’t Br. at 20–22.)
Mach notes that the charger’s cathead was locked out—purportedly in conformance with the
abatement procedures approved in abating its October 28 citation—when Cripps found it in the
primary escapeway. (Resp’t Br. at 20–22.) Mach argues, therefore, that conformance with prior
abatement should mitigate its negligence. The Secretary argues the battery charger’s return to the
escapeway after its October 28 citation makes Mach negligent and contends the lock on the
cathead does not mitigate Respondent’s negligence.14 (Sec’y Br. at 10–12.)
14

At the hearing and in their briefs, the parties disagreed whether Foreman Patton used
the battery charger in the interim between the October 28 citation and November 17 citation.
(See, e.g., Resp’t Br. at 7–8.) Yet, it is unclear why the chargers’ actual use would measurably
affect Mach’s negligence in this case. As General Manager Webb admitted, the cathead had been
unlocked and extended toward the power center when he found the charger in the primary
escapeway just one or two days before Inspector Cripps issued Citation No. 6683204. (Tr.
93:7–8, 99:19–22.) It is also appears that Mach’s management did not closely monitor the use of
the charger. Indeed, Webb admitted he did not know how or when the charger returned to the
(continued…)

36 FMSHRC Page 2545

Although I recognize that prior forms of abatement might be the basis for mitigating
negligence in some scenarios, see discussion supra Part IV.B, in this case Mach made no
showing of detrimental reliance. Standing alone, General Manager Webb’s order to lock the
cathead once he found the charger in the escapeway might have been a basis to infer a
late-in-the-game attempt to rely on the abatement required for the October 28 citation.15
However, the text of the regulation itself suggests Mach knew or should have known the charger
could could not be in the escapeway regardless of whether it was locked. In fact, the regulation
itself specifically states that battery charging stations are not permitted in primary escapeways.
See 30 C.F.R. § 75.380(f)(3)(iii). Thus, it is unclear why Respondent believes that the locking
the cathead on the battery charger would allow the charger to be placed in the escapeway.
Moreover, the evidence before me also suggests that Mach knew a battery charger could
not be located in the primary escapeway. Webb admitted that when he noticed the charger in the
escapeway and had it locked, he was trying to do “the next best thing . . . to prevent it from being
energized until we could . . . get it either, one, moved out of there or two, get it air locked.”16 (Tr.
93:2–11.) Further, Mach brought forth no other evidence demonstrating that Respondent relied
on MSHA’s allegedly inconsistent guidance when it stationed the battery charger in the
escapeway. On the contrary, Webb indicated he did not know how or when the charger returned
to the escapeway, nor did he order anyone to do so. Thus, no matter how many back of the
envelope calculations it might make, Mach’s math does not add up: unplanned activity and
after-the-fact efforts to do “the next best thing” do not equal reliance.
Although the cathead was locked out when Mach moved the charger back to the
escapeway, the cathead was unlocked in the escapeway a few days before Citation No. 6683204.
Webb’s steps to relock the cathead notwithstanding, such actions do not preclude its future use.
Allowing the charger to return to a place where it could be used does not meet the Mine Act’s
high standard of care. Though Mach’s policy may not have been to use the charger in the
14

(…continued)
escapeway. (Tr. 88:14–23.) Thus, Mach allowed the cathead to be unlocked and available for use
for an indeterminate length of time. If the charger was not actually used during that period, that
inactivity appears to have been fortuitous or accidental.
Although good fortune and happy accidents are always welcome outcomes, the Mine Act
holds operators to a high standard of miner safety. Regardless of the charger’s actual use, and
30 C.F.R. § 75.380(f)(3) prohibits Mach from placing battery chargers in the escapeway absent
certain conditions. The actual use of the battery charger in this case is irrelevant to that duty.
Thus, I need not determine whether Patton actually used the battery charger after its return to the
escapeway.
15

Although Respondent argues it conformed with the procedures approved in abating its
October 28 citation, Mach curiously did not introduce a copy of the October 28 citation into the
record. Cripps and Webb both testified regarding those abatement steps, but the record is unclear
precisely when and how Mach abated the October 28 citation.
16

Air locking is a means by which a battery charger could be separated from the
escapeway using a set of doors between entries. (Tr. 86:19–87:8.)

36 FMSHRC Page 2546

escapeway, charger’s location, convenience, and utility provide both an opportunity and
incentive for miners to use the misplaced charger. I conclude, therefore, that Mach’s level of
negligence was high. Citation No. 6683204 is hereby AFFIRMED as written.
C.

Penalty Assessment

Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an
appropriate civil penalty. The Secretary seeks a penalty of at least $4,800 for these violations. I
have reviewed the History of Violations and Assessments Reports, which are not disputed (Sec’y
Ex. 2; Sec’y Ex. 3; Sec’y Ex. 4.) This report included nine previous section 75.400 violations, of
which one was S&S. In considering this history along with the other statutory factors, I also take
special note that the section 75.380(f)(3)(iii) violation occurred just three weeks after an
identical violation. Respondent stipulated to the gravity of Citation No. 6683204, and I have
found Mach’s negligence to be high. I have also found Citation No. 6679603 to be properly
designated S&S and the result of Mach’s high negligence. Additionally, nothing in the record
suggests that the Secretary’s proposed penalty of $4,800 is inappropriate for the size of Mach’s
business, that it would infringe on Mach’s ability to remain in business, or that Mach did not
abate the violation in good faith. The violations were abated in good faith. (Sec’y Ex. 5; Sec’y
Ex. 7.)
Considering the evidence before me, I conclude a total civil penalty of $4,800.00 is
appropriate, given the violation history, size of the mine and Mach’s ability to remain in
business, Mach’s high negligence, the gravity of both violations, and Mach’s good faith
abatement of the violations. Accordingly, I hereby assess a civil penalty of $4,800.00.
VI.

ORDER

WHEREFORE, it is ORDERED that Citation No. 6683204 and 6679603 are
AFFIRMED. Within 40 days of this decision, Mach is ORDERED to pay a civil penalty of
$4,800.00.

/s/ Alan G. Paez
Alan G. Paez
Administrative Law Judge
Distribution:
Gregory Tronson, Esq., U.S. Department of Labor, Office of the Solicitor, 1244 Speer
Boulevard, Suite 216, Denver, CO 80204
Christopher D. Pence, Esq., Hardy Pence, PLLC, P.O. Box 2548, Charleston, WV 25329
/dyb

36 FMSHRC Page 2547

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004

September 30, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 2009-328
A.C. No. 12-02010-177009

v.
BLACK BEAUTY COAL COMPANY,
Respondent

Mine: Air Quality #1 Mine

DECISION
Appearances: Emily L.B. Hays, Esq., U.S. Department of Labor, Office of the Solicitor,
Denver, Colorado, for Petitioner;
Arthur M. Wolfson, Esq., and Patrick W. Dennison, Esq., Jackson
Kelly PLLC, Pittsburgh, Pennsylvania, for Respondent.
Before:

Judge Paez

This case is before me upon the Secretary’s Petition for the Assessment of Civil Penalty
pursuant to section 105 of the Federal Mine Safety and Health Act of 1977 (“Mine Act”),
30 U.S.C. § 815 (2006). In dispute are four section 104(d)(2) orders issued to Black Beauty Coal
Company (“Black Beauty” or “Respondent”) over a 40-day period at its Air Quality #1 Mine
operation (“AQ1 Mine”). The Secretary has proposed a total penalty of $163,225.00 for these
four alleged violations.
The parties stipulated to the following:
1.
2.
3.
4.

Black Beauty is an “operator” as defined in [section] 3(d) of the [Mine Act], as
amended, 30 U.S.C. § 803(d), at the coal mines at which the Citations and Orders
at issue in this proceeding were issued.
Operators of Black Beauty, at the coal mine at which the Citations and Orders
were issued in this proceeding, are subject to the jurisdiction of the Mine Act.
This proceeding is subject to the jurisdiction of the Federal Mine Safety and
Health Review Commission and its designated Administrative Law Judges
pursuant to Sections 105 and 113 of the Mine Act.
The individual whose signature appears in Block 22 of the Citations and Orders at
issue in this proceeding [was] acting in the official capacity and as an authorized
representative of the Secretary of Labor when the Citations and Orders were
issued.

36 FMSHRC Page 2548

5.
6.
7.

8.

True copies of the Citations and Orders at issue in this proceeding were served on
Black Beauty as required by the Mine Act.
The total proposed penalties for the Citations and Orders in this proceeding will
not affect Black Beauty’s ability to continue in business.
LAKE 2009-328 involves six [section] 104(d)(2) orders, four of which remain at
issue for the hearing. The [section] 104(d)(1) order giving rise to these four orders
was issued on August 15, 2007 (Order No. 6670623) and is a final [section]
104(d) order. In the period from August 15, 2007 to November 24, 2008,
thirty-one orders (including those at issue here) were issued pursuant to [s]ection
104(d) of the [Mine] Act. Ten of these orders are listed as being final 104(d)
orders. The rest are still in contest.
The R-17 Assessed Violation History Report ([Ex. G–9]) is an authentic copy and
may be admitted as a business record of the Mine Safety and Health
Administration.
I. STATEMENT OF THE CASE

The Secretary has filed a Petition for Assessment of Civil Penalty, and two of the six
alleged violations in this docket were settled and disposed by a separate decision and order prior
to the hearing. The remaining four violations, Order Nos. 6681061, 6681064, 6681073, and
6682224, charge Black Beauty with violating the health and safety standard at 30 C.F.R.
§ 75.400 that prohibits accumulations of combustible materials in active workings.1 In addition,
the Secretary determined these violations were significant and substantial (“S&S”),2 constituted
an unwarrantable failure3 to comply with a mandatory health and safety standard, and resulted
from Black Beauty’s high negligence.
Chief Administrative Law Judge Robert J. Lesnick assigned this case to me, and I held a
hearing in Evansville, Indiana.4 The Secretary presented testimony from MSHA Inspector Glenn
Fishback, who issued the contested orders on October 15, October 20, October 23, and
November 14, 2008. Currently an MSHA Roof Control Specialist, Fishback has twenty-eight
1

Section 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.” 30 C.F.R.
§ 75.400.
2

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

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

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

36 FMSHRC Page 2549

years of experience in the coal mining industry, first as a general laborer, then in supervisory
positions, including eight years with AQ1 Mine, and he has four mining certificates. (Tr. 16–20.)
Respondent presented nine witnesses. Randall Hammond, a Compliance Supervisor with
Black Beauty at the time of the hearing, was a Section Foreman at the AQ1 Mine at the time of
the inspections. (Tr. 117.) Matthew Benjamin, the current Section Foreman for AQ1 Mine, was a
Section Foreman on the midnight maintenance shift at the time. (Tr. 98.) Stephen Elliot,
currently a Belt Examiner, was a utility worker. (Tr. 157.) Eric Carter, currently a third-shift
Mine Manager, was an Assistant Mine Manager. (Tr. 170.) Harry Luckett was and is a hauler
driver for the mine. (Tr. 177.) Del Culbertson, currently an Examiner, Assistant Mine Manager,
and Operator, was an Assistant Mine Manager whose duties often included escorting MSHA
inspectors. (Tr. 250–53.) Todd Armstrong, currently a Belt Mechanic, was an outby laborer in
2008 and accompanied MSHA inspectors on occasion. (Tr. 308–09.) Rick Carie, a Shift
Foreman for the AQ1 Mine in 2008, currently works with Special Projects. (Tr. 331.) Chad
Barras is the Midwest Safety Director for Peabody Energy, which was the parent company of
Black Beauty at the time of the inspection, and who previously worked with MSHA for one year
as a ventilation engineer. (Tr. 345–46.)
The Secretary and Respondent each submitted post-hearing briefs and reply briefs.
II. ISSUES
The Secretary asserts that the four conditions before me were properly cited as violations
of section 75.400, and that the significant and substantial (“S&S”), unwarrantable failure, and
high negligence determinations are valid. (Sec’y Br. at 1, 10–20, 22–26, 29–34.) The Secretary
emphasizes that the opinions of an experienced MSHA inspector are entitled to substantial
weight. (Id. at 35–36; Sec’y Reply Br. at 1–4, 6.)
Respondent denies that the alleged accumulations described in three of the four
orders—Order Nos. 6681061, 6681064, and 6682224—constituted violations of section 75.400.
(Resp’t Br. at 5–7, 24–26, 34–35.) In addition, Respondent contends that the record is
insufficient to support the Secretary’s S&S,5 unwarrantable failure, and high negligence
determinations for all four orders. (Resp’t Br. at 7–20, 26–30, 35–45, 48–55.)
5

Black Beauty also argues that I should consider the presence of functioning carbon
monoxide (CO) monitors, self-contained self-rescuers (SCSRs), and other fire detection,
suppression, or management systems “in evaluating what would occur in continued mining
operations.” (Resp’t Reply Br. at 8; see also Resp’t Br. at 51–52.) According to Respondent,
“[t]his inquiry is relevant in analyzing the third element of the [test for S&S], which is to be
considered assuming continued normal mining operations.” (Resp’t Reply Br. at 8–9 (citations
omitted).) However, the Commission has repeatedly rejected operator arguments that additional
fire safety measures prevent an S&S finding. Big Ridge, Inc., 35 FMSHRC 1525, 1529 (June
2013); Cumberland Coal Res., LP, 33 FMSHRC 2357, 2369–70 (Oct. 2011), aff’d, Cumberland
Coal Res. v. FMSHRC, 717 F.3d 1020 (D.C. Cir. 2013); see also Buck Creek Coal, Inc. v. Fed
(continued…)

36 FMSHRC Page 2550

Accordingly, the following issues are before me: (1) whether the cited conditions in three
of the four orders constitute a violation of 30 C.F.R. § 75.400; (2) whether the record supports
the Secretary’s S&S designation in each order; (3) whether the record supports the Secretary’s
allegations that Black Beauty’s level of negligence was high in each order; (5) whether the
record supports the Secretary’s unwarrantable failure designation in each order; and (6) whether
the proposed penalty for these violations is appropriate.
For the reasons that follow:
1.
2.
3.
4.

Order No. 6681061 is AFFIRMED as S&S, and MODIFIED to remove the
unwarrantable failure designation and to lower the level of negligence from
“high” to “moderate”;
Order No. 6681064 is AFFIRMED as written;
Order No. 6681073 is AFFIRMED as S&S, as an unwarrantable failure, and as
the result of Black Beauty’s high negligence, and MODIFIED to reduce the
number of miners affected from ten to three;
Order No. 6682224 is AFFIRMED as written.
III. FINDINGS OF FACT

A.

Air Quality #1 Mine – Background

The AQ1 Mine is a room-and-pillar coal mine located in Vincennes, Indiana. (Tr. 18, 20;
Ex. G–10; Ex. R–20.) The strata below the AQ1 Mine’s coal seam is made up of fireclay, which
is an incombustible rock. (Tr. 121, 130–31, 134, 136, 173–74, 198–99.) Respondent uses an
intricate system of conveyor belts to transport the newly-mined coal and rock out of the mine.
(Tr. 30–31, 35, 100.) The belt system contains several distinct parts, including the tailpiece, the
rollers, and the feeder. (Tr. 30–37, 100.) At the end of the tailpiece is a roller, two-and-a-half to
three feet in diameter, which turns while the belt is running. (Tr. 34–35; Ex. G–21.) The feeder
sits directly on top of the tailpiece and is the point at which coal is loaded onto the belt.
(Tr. 37–38, 100, 109, 122, 168.) The tailpiece is used to maintain belt alignment and is
constructed of a metal I-beam framework. (Tr. 34–35, 39.) The belts themselves vary from three
feet to seven feet in width. (Tr. 34.)

5

(...continued)
Mine Safety and Health Admin., 52 F.3d 133, 136 (7th Cir. 1995) (“The fact that [Respondent]
has safety measures in place to deal with a fire does not mean that fires do no pose a serious
safety risk to miners. Indeed, the precautions are presumably in place . . . precisely because of
the significant dangers associated with coal mine fires.”). Accordingly, I decline to consider the
presence or functionality of Black Beauty’s CO monitors, SCSRs, and other fire detection,
suppression, or management systems in evaluating the Secretary’s S&S allegations.

36 FMSHRC Page 2551

B.

Air Quality #1 Mine – Operations

At the time of the inspections, the mine operated on three shifts: day shift, second shift,
and midnight shift. (Tr. 122–23.) Black Beauty performed maintenance on the midnight shift.
(Tr. 122, 222.) During midnight maintenance shifts, a crew typically checked the tailpiece at
least three times: once upon arrival at the unit, once during an on-shift examination, and once
around 4:00 a.m. during the preshift examination in preparation for the day shift. (Tr. 101–102,
236–37.) Before the day shift arrived, the maintenance crew typically dusted and cleaned the
tailpiece and fixed any hazards. (Tr. 99–104, 123, 237.)
The day shift typically arrived between 7:15 a.m. and 7:30 a.m. (Tr. 102.) Compliance
Supervisor Hammond was a section foreman on the day shift in 2008, and he normally
conducted a cursory check of the tailpiece within the first twenty minutes of the shift. (Tr.
123–24, 147–48.) The section foreman typically conducted another six to ten checks throughout
the shift. (Tr. 123.) If it was clear of accumulations, Hammond would date, time, and initial the
tailpiece. (Tr. 124–25.) He testified he normally—but not always—instructed someone to clean
up any accumulations and address any hazards immediately. (Tr. 125–26, 149.)
Notwithstanding Black Beauty’s examinations and maintenance efforts, the AQ1 Mine
has a history of section 75.400 violations. (Ex. G–9; Ex. G–10; Ex. G–11.) Specifically, MSHA
records show 94 final orders involving section 75.400 between July 2007 and December 2008.
(Ex. G–9.) In addition, Inspector Fishback testified that numerous conversations took place
between mine management and MSHA inspectors regarding accumulations violations in the
AQ1 Mine. (Tr. 46, 47–49, 286.) Specifically, Fishback recalled issuing an order on September
11, 2008, and discussing belt problems with mine management. (Tr. 46, 47–49, 286.)
As part of MSHA’s regular inspections of the AQ1 Mine, Fishback visited the mine on
October 15, October 20, October 23, and November 24, 2008. (Ex. G–1; Ex. G–3; Ex. G–5; Ex.
G–7.) Based on his observations, he issued Order Nos. 6681061, 6681064, 6681073, and
6682224, respectively. (Ex. G–1; Ex. G–3; Ex. G–5; Ex. G–7.) These orders each charge Black
Beauty with violating 30 C.F.R. § 75.400, which prohibits accumulations of combustible
materials in active workings. (Ex. G–1; Ex. G–3; Ex. G–5; Ex. G–7.) These orders are addressed
seriatim below. See discussion infra Part V.B–.E.
IV. PRINCIPLES OF LAW
A.

30 C.F.R. § 75.400 – Accumulations

A violation of section 75.400 occurs “where the quantity of combustible materials is such
that, in the judgment of the authorized representative of the Secretary, it could cause a fire or
explosion if an ignition source were present.” Old Ben Coal Co., 2 FMSHRC 2806, 2808 (Oct.
1980) (“Old Ben II”) (footnote omitted). This judgment is viewed through the objective standard
of whether a “reasonably prudent person, familiar with the mining industry and the protective
purposes of the standard, would have recognized the hazardous condition that the regulation
seeks to prevent.” Utah Power & Light, Mining Div., 12 FMSHRC 965, 968 (May 1990), aff’d,
951 F.2d 292 (10th Cir. 1991) (“UP&L”). In addition to being combustible, the material cited
must be of a sufficient quantity to cause or propagate a fire or explosion. UP&L, 12 FMSHRC at

36 FMSHRC Page 2552

968 (quoting Old Ben II, 2 FMSHRC at 2808). Although spills can occur quickly, accumulations
of combustible material substantial enough to cause or propagate a fire are prohibited, even if
recent. See Black Beauty Coal Co. v. Fed. Mine Safety & Health Review Comm’n, 703 F.3d 553,
558–59 & n.6 (D.C. Cir. 2012) (rejecting operator argument regarding recency of spill); Prabhu
Deshetty, 16 FMSHRC 1046, 1049 (May 1994) (rejecting a defense based on recentness of the
spill). Finally, the Commission has observed that damp coal and coal mixed with fireclay
remains combustible; thus, excluding such materials would defeat Congress’ intent to remove
fuel sources from mines and prohibit potentially dangerous conditions. Black Diamond Coal
Mining Co., 7 FMSHRC 1117, 1120–21 (Aug. 1985).
B.

Significant and Substantial Determinations

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., 52 F.3d at 135–36 (affirming ALJ’s application of the Mathies
criteria); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving the
Mathies criteria).
The third Mathies element is often heavily contested. In the accumulations context, the
third element is met where a “confluence of factors” such as the extent of the accumulation and
presence of possible ignition sources make the hazard reasonably likely to result in injury. See
Enlow Fork Mining Co., 19 FMSHRC 5, 9 (Jan. 1997). This evaluation should be made
assuming continued normal mining operations. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130
(Aug. 1985) (citing U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984)). Materials need
not be hot when inspected to prove friction as an ignition source, if heat will eventually result
during continued normal mining operations. Mid-Continent Res., Inc., 16 FMSHRC 1218, 1222
(June 1994) (finding the lack of a hot spot immaterial where friction was present between belt
rollers and accumulations).
The Commission has also provided guidance to Administrative Law Judges in applying
the Mathies test. The Commission indicated that “an inspector’s judgment is an important
element in an S&S determination.” Mathies, 6 FMSHRC at 5 (citing Nat’l Gypsum, 3 FMSHRC
at 825–26); see also Buck Creek Coal, 52 F.3d at 135 (stating that ALJ did not abuse discretion
in crediting opinion of experienced inspector).
C.

Unwarrantable Failure and High Negligence Determinations

In Emery Mining, the Commission determined that an unwarrantable failure is aggravated
conduct constituting more than ordinary negligence. 9 FMSHRC 1997, 2001 (Dec. 1987).

36 FMSHRC Page 2553

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
Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195
(Feb. 1994); BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243–44 (Aug. 1992); Peabody Coal
Co., 14 FMSHRC 1258, 1261 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June
1988). The Commission’s factors are “viewed in the context of the factual circumstances of each
case, and some factors may not be relevant to a particular factual scenario.” Consolidation Coal
Co., 22 FMSHRC at 353. All “relevant facts and circumstances of each case must be examined
to determine if an actor’s conduct is aggravated” or whether mitigating circumstances exist. Id.
V. ADDITIONAL FINDINGS OF FACT, ANALYSIS, AND CONCLUSIONS OF LAW
A.

Combustibility and Ignition

Based on the evidence at hearing, loose coal, coal fines, and float coal dust are each
combustible materials. (Tr. 26–27, 91–92.) Combustion requires fuel, oxygen, and an ignition
source. (Tr. 352.) Methane is the most common source of ignition and becomes explosive at
concentrations of 5–15%. (Tr. 22, 80–81.) The AQ1 Mine is considered a “gassy” mine and
liberates over a million cubic feet of methane in a 24–hour period. (Tr. 22.) During October and
November 2008, the AQ1 Mine was on a five-day spot inspection for methane gas. (Tr. 22–23,
69–70, 204.) A five-day spot inspection means that MSHA must inspect the mine’s ventilation
every five days to ensure that methane is properly being ventilated out of the mine. (Tr. 22–23.)
However, methane levels never tested above 0.3% during any of the four inspections at issue in
this case. (Ex. G–2 at 19–20; Ex. G–4 at 10; Ex. G–6 at 12–13; Ex. G–8 at 19–21.)
Frictional heat is another common ignition source, particularly for belt fires. (See, e.g.,
Ex. R–25 at 20 (indicating that friction along the belt or belt drive ignited 36% of belt entry
fires).) Friction also increases the likelihood of a fire by creating small fragments of material
with an increased surface-to-mass ratio. (Ex. G–12 at 85.) Although dampness and incombustible
materials decrease flammability (Tr. 27–28), frictional heat can first dry accumulations and then
ignite the material. (Tr. 92.)
Both belt rollers and coal rubbing the belt structure framework are methods by which
coal may be ground into float coal dust. (Tr. 27.) Float coal dust is coal that has been ground into

36 FMSHRC Page 2554

extremely small pieces, with the consistency of baby powder. (Tr. 27.) Float coal dust is highly
combustible. (Tr. 27–28.) Conversely, rock dust lowers the combustibility of float coal dust. (Tr.
27–28.) Although float coal dust also requires suspension in order to combust on its own, a
nearby ignition can “kick up” non-suspended float coal dust and propagate the explosion. (Tr.
80, 353.)
B.

Order No. 6681061 – Accumulations at 5 North on October 15
1.

Order No. 6681061 – Accumulations at 5 North on October 15

Inspector Fishback visited the AQ1 Mine to conduct a quarterly inspection on October
15, 2008. (Ex. G–1; Tr. 24.) Upon arriving at the mine, Fishback first met with mine
management and reviewed Black Beauty’s record books. (Tr. 24–25.) Next, he traveled into the
mine along with Belt Examiner Elliot as his escort. (Tr. 25; Ex. G–2 at 3.) The pair arrived at the
section tailpiece of the 5 North energized belt conveyor between crosscuts 12 and 13 in the
MMU-003 active working section at approximately 11:00 a.m. (Ex. G–2 at 10–11, 13; Ex. G–13;
Tr. 24.) At the time the working face of the section was just seventy feet away from the tailpiece.
(Tr. 41–42; Ex. G–2 at 20.)
Previous production at the AQ1 Mine had mined 5 North Section twelve crosscuts deep,
but the section was then flooded with water. (Tr. 119–20, 179.) When Black Beauty restarted
production in the area approximately two weeks prior to October 15, they pumped the water out
of the panel’s crosscuts and entries. (Tr. 120, 179–80.) However, the geologic conditions of the
mine meant there was a constant inflow of water through the floor of the mine. (Tr. 120–21,
179–80, 245–48.) Because the floor was wet, Black Beauty tried to soak up the water in the area
using rock dust and placed the belt tailpiece on crib blocks. (Tr. 86, 121, 246.) Notwithstanding
these efforts, the tailpiece structure and feeder were sinking into the floor. (Tr. 122, 154, 246.)
The tailpiece was therefore closer to the mine floor than normal. (Tr. 122.) At the time, the belt
was just four inches above the mine floor. (Tr. 38.)
According to Fishback’s contemporaneous notes and testimony, he observed coal
underneath the belt line that measured three feet in width, three feet in length, and two to eight
inches in depth. (Tr. 32; Ex. G–2 at 11–12.) He also indicated that the belt was in contact with
the loose coal and coal fines below the tailpiece. (Ex. G–2 at 11–12; Tr. 32.) In addition,
Fishback observed float coal dust on the framework of the tailpiece, and he characterized the
dust as black in color and dry. (Tr. 28, 32; Ex. G–2 at 12–13.) He measured the float coal dust at
nine-inches wide, seven-feet long, and one-to-three inches deep. (Tr. 32; Ex. G–2 at 12–13.)
However, the float coal dust was not in suspension. (Tr. 79, 135–36, 161, 184.) Fishback also
testified that Elliott agreed with his observations. (Tr. 59, 84–85; see also Ex. G–2 at 13–14
(noting Elliot’s agreement).)
Elliot then shut down the belt and called for section foreman Randall Hammond.
(Ex. G–2 at 14; Ex. G–13; Tr. 84.) Hammond gathered a sample of the alleged accumulation for
testing after he arrived; however, the material was accidentally placed on the belt and discarded.

36 FMSHRC Page 2555

(Ex. G–2 at 15–16; Tr. 71–74, 134–35.) Based on his observations, Fishback issued Order No.
6681061, providing:
Combustible material in the form of loose coal, coal fines and float
coal dust (black in color and dry) have been allowed to accumulate
on the 5 North Energized belt conveyor tail located between
crosscut 12 and crosscut 13 on the roadway side of the belt line
located on the MMU-003. The combustible material under the belt
line measured approximately 3 feet in width by 3 feet in length by
2 to 8 inches in depth and was observed rubbing the belt for this
total distance. On the tailpiece structure directly above these
accumulations dry float coal dust was present which measured
approximately 1 to 3 inches in depth by 9 inches in width for a
length of 7 feet. The operator, Randy Hammond (Section
Foreman) showed more than ordinary negligence by allowing the
belt to run under this known condition until the arrival of MSHA
to the area. This [v]iolation is an unwarrantable failure to comply
with a mandatory standard.
(Ex. G–1.) Fishback also designated the order as S&S. (Id.) In Fishback’s judgment, the
materials were “obvious to the most casual observer” (Tr. 51) and had existed for two to three
shifts. (Ex. G–2 at 18; Tr. 50.)
To abate the condition, Black Beauty cleaned the area from rib-to-rib and spread rock
dust. (Ex. G–1; Ex. G–2 at 18). According to Fishback, four employees spent sixty-five minutes
abating the cited conditions. (Ex. G–1).
2.

Additional Findings of Fact

Black Beauty challenges three factual details underlying the Secretary’s allegations in
this case. First, Respondent disputes the amount of time that any such conditions existed. Black
Beauty claims that any coal at the tail piece had been deposited only recently. (Resp’t Br. at 1–3,
7.) Respondent explicitly points to evidence that the unit was checked and found clear of
accumulations multiple times: no accumulations were noted during Section Foreman Benjamin’s
preshift examination at 4:52 a.m., or during Compliance Supervisor Hammond’s check at 7:41
a.m. (Ex. R–3; Tr. 103–06, 126.) Conversely, Inspector Fishback testified that the conditions
existed for two-to-three shifts and based his estimation on his observations and experience. In
particular, he claimed it would take a “substantial amount of time for that much dust to develop.”
(Tr. 52.) Yet, it is also uncontroverted that coal deposits may accumulate quickly. (See, e.g., Tr.
262–63.) Indeed, a well-worn aphorism in mining law is that mining is a dynamic process.
Moreover, I note that Fishback issued no citation for improper preshift examinations. This
failure does not prove that the tailgate section was clean at the time of the preshift examination,
but, coupled with the potential for rapid accumulation, I have doubts about Fishback’s testimony
on this point. Given the evidence in this case, I therefore find that the conditions at issue in
Order No. 6681061 developed after Hammond’s check at 7:41 a.m.

36 FMSHRC Page 2556

Second, Black Beauty contends that the cited material was not combustible. (Resp’t Br.
at 6.) Specifically, Compliance Supervisor Hammond, Belt Examiner Elliot, and hauler driver
Luckett each claim that the material under the belt contained minimal amounts of coal and was
mostly mud and water. (Tr. 128, 134, 160, 185.) As for the alleged float coal dust accumulation,
Elliott, Hammond and Luckett each testified that the material was a gray mix of float coal and
rock dust. (Tr. 135–36, 160–61, 182.)
At first blush, contrary testimony from three operator employees would appear
convincing. However, upon closer examination, I have serious questions regarding the testimony
of Elliot and Luckett. In particular, Elliot’s testimony conflicts with the text of his Inspector
Report.6 Moreover, it appears that Luckett conflated the inspections that took place on October
15 and 20. (Tr. 187–88, 192) As he admitted: “[T]hey kind of blend together, because they’re so
close together and they’re in the same location . . . .” (Tr. 188.) Given the number of
accumulations violations Black Beauty received during this period, it is understandable why
Luckett might conflate some of the events of the days in question. Nevertheless, these
deficiencies give me significant pause regarding the testimony each witness provided.7
In light of my doubts regarding two of the operator’s three witnesses, it appears this is a
simple case of conflicting testimony. Here, Fishback credibly testified that he observed loose
coal and coal fines in contact with Black Beauty’s belt. Likewise, Fishback credibly testified
regarding the color, size and composition of the float coal dust he observed on the belt’s
tailpiece. In particular, he testified that he saw and touched the float coal dust. (Tr. 28.) He also
indicated that loose coal, coal fines, and float coal dust are combustible. (Tr. 26–28, 92–94.)
Moreover, he explained his basis for identifying each type of accumulation. (Tr. 199.) Finally,
his contemporaneous notes also support his observations. (Ex. G–2 at 12–15.)
6

Elliot prepared this “Inspector Report” as he traveled with Inspector Fishback on
October 15. Notably, the “Inspector Report” states: “Arrived at #3 unit at approx 11 am. Found
belt & tail roller of 5N running in accumulations.” (Ex. G–13.) The report also states that
“[a]though not written up [the] unit needed [to be] cleaned better. Unit was heavily dusted.” (Id.)
Elliot testified that his notations reflected Fishback’s observations rather than his own.
(Tr. 162–69.) In other words, Elliot claimed a Black Beauty employee would record an
inspector’s observations—observations with which the escort specifically disagreed—to produce
a report of what the Inspector observed. Paradoxically, however, those same details would be
recorded in any citation or order Inspector Fishback issued. If believed, Elliot’s self-serving
testimony would neutralize the probative value of his “Inspection Report.” However, Elliot
curiously did not explain why Black Beauty would adopt a seemingly redundant system.
Accordingly, I do not credit Elliot’s testimony on this point. On the contrary, I determine that the
“Inspector Report” supports Fishback’s testimony regarding the cited conditions.
7

I recognize that Fishback also admitted that the passage of time had affected his
memory. (See, e.g., Tr. 37, 70–73, 86.) Unlike Luckett, Fishback was able to refer to his
contemporaneous notes to refresh his memory and differentiate this case from the many
accumulation citations and orders MSHA issued to Black Beauty during this time period.
Accordingly, I find his testimony to be more credible than Luckett’s testimony.

36 FMSHRC Page 2557

Although Fishback had only been an inspector for a few months, I recognize that he has
more than twenty-eight years of experience in the coal mining industry. In addition, he
specifically worked in the AQ1 Mine before becoming an inspector, and is therefore familiar
with the specific conditions found at this mine. His opinion is therefore entitled to significant
weight. See Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278–79 (Dec. 1998) (relying on
the opinion of an experienced inspector to conclude that the substantial evidence supported an
ALJ’s S&S determination).
I also note that neither Hammond nor Luckett were present at the time Fishback arrived
at the tailpiece. Although both witnesses arrived thereafter, neither were able to observe the
precise conditions Fishback encountered. Further, Fishback’s testimony about the color of the
float coal dust is consistent with my above factual findings regarding the duration of these
conditions. Benjamin and Hammond testified that the tailpiece was free of accumulations and
had been rock dusted, so the recent accumulation of float coal dust predictably would be black in
color. I also note that Fishback’s own testimony admitted that the area around the tailpiece was
wet. (Tr. 86.) Based on the evidence before me, I therefore find that the accumulations appeared
as Fishback described them in his written order except that they were wet.
Third, Respondent also questions Fishback’s testimony that four miners spent 65 minutes
abating the conditions he found. Hammond testified the material took at most fifteen minutes to
clear. (Tr. 132.) In addition, Hammond testified that Fishback’s 65-minute estimate included
time to lock the belt, assemble miners, collect necessary equipment, and clean the material.
(Tr. 133.) Further, Luckett stated that shoveling the material took only a few minutes.
(Tr. 182–86.)
Although Fishback may have correctly estimated the amount of time from his arrival to
ultimate abatement, I credit Hammond’s testimony that his estimate included time not spent
removing the material. Further, four miners operating in concert would seem likely to remedy
coal deposits of the size Fishback cited in fewer than 65 minutes. Thus, I find that the conditions
at issue were cleared in approximately 15 minutes.
3.

Violation of 30 C.F.R. § 75.400

Order No. 6681061 alleges that Respondent violated section 75.400 by allowing
extensive accumulations of combustible material in the form of loose coal, coal fines and float
coal dust at 5 Main North belt tailpiece located between crosscuts 12 and 13. The Secretary
contends that Inspector Fishback’s testimony and notes support his allegations. (Sec’y Br. at
10–11; Sec’y Reply Br. at 2–4.) In addition, the Secretary claims that Black Beauty’s history of
previous violations “raises serious doubts about the mine’s ability to control accumulations . . .
including those in [Section Foreman] Benjamin’s section.” (Sec’y Br. at 11–12.)
For its part, Respondent argues the material was a non-combustible mix of mud, water,
and minimal coal under the belt and a mix of rock dust and float coal dust on the tailpiece.
(Resp’t Br. at 6.) Black Beauty also argues that any combustible material was “de minimis and

36 FMSHRC Page 2558

constituted non-violative spillage because it did not exist until shortly before the Order was
issued.” (Id. at 6 n.6.) Finally, Black Beauty also disputes the credibility of Inspector Fishback’s
testimony. (Id. at 7.)
In light of my factual findings, I determine that a reasonably prudent person, familiar
with the mining industry and protective purposes of section 75.400, would have recognized these
coal deposits were the type of hazardous conditions the regulation seeks to prevent. See Old Ben
II, 2 FMSHRC at 2808 (“[T]hose masses of combustible materials which could cause or
propagate a fire or explosion are what Congress intended to proscribe.”) In this case, Fishback
observed loose coal and coal fines underneath the belt in question, as well as significant deposits
of black float coal dust on the framework of the tailpiece. Despite the presence of fireclay and
water in the area, it is uncontroverted that loose coal, coal fines, and float coal dust are
combustible. Although these accumulations were relatively small in size, Fishback also testified
that these materials were combustible and could ignite. (Tr. 26–28, 43–44.) These accumulations
developed between Hammond’s 7:41 a.m. check of the tailpiece and Fishback’s arrival on the
scene at 11:00 a.m., but the Commission has rejected the argument that “accumulations may be
tolerated for a ‘reasonable time.’” Old Ben Coal Co., 1 FMSHRC 1954, 1957–58 (Dec. 1979)
(“Old Ben I”). Thus, a reasonably prudent person who is familiar with the mining industry and
protective purposes of section 75.400 would therefore have recognized that these were the types
of materials that could propagate a fire or explosion and were impermissible accumulations. I
therefore conclude that Black Beauty violated 30 C.F.R.
§ 75.400.
4.

S&S

Black Beauty’s violation of section 75.400 establishes the first element of an S&S
violation. In addition, Inspector Fishback credibly testified that the violation at issue contributed
to fire and mine explosion hazards. (Tr. 43–45.) I do not doubt that combustible material along
the belt contributes to—or makes more likely—mine fire and explosion hazards. Further,
Fishback credibly described that smoke inhalation, burns, or death were the type of injuries that
would reasonably result from a mine fire or explosion. (Tr. 45–46.) In view of Fishback’s
testimony, I determine that the Secretary has satisfied his burden of proof on the second and
fourth elements of the Mathies test.
The parties most heavily contest whether the mine fire and explosion hazards are
reasonably likely to result in injury. According to the Secretary, the “energized belt rubbing
against loose coal and coal fines created an ignition source as it produced friction and, under
continued mining operations, would cause the loose coal and coal fines to ignite.” (Sec’y
Br. at 15.) The Secretary also contends that the “ignition of the loose coal and coal fines would,
in turn, ignite the float coal dust above it.” (Id.) In contrast, Black Beauty contends that the
material under the tailpiece was not in contact with any point of friction. (Resp’t Br. at 9.) In
addition, Respondent argues that the float coal dust at issue “was not in contact with any ignition
sources.” (Id. at 10.) Further, Black Beauty argues that an ignition of methane was unlikely to
place the dust into suspension because methane was not present at the time of the inspection.

36 FMSHRC Page 2559

(Id.) Finally, Respondent also suggests that the dampness of the area makes an S&S
determination inappropriate. (Resp’t Br. at 11 n.9.)
Based on the evidence before me, I determine that the Secretary has satisfied his burden
of proof on Mathies’ third element. I have credited Fishback’s description of the accumulations
he found. Thus, the loose coal and coal fines under the tailpiece were in contact with the belt,
which provided an ignition source as the coal dried out and heated up in the course of continued
mining operations. Given the belt as an ignition source and the loose coal and coal fines as fuel,
these accumulations were reasonably likely to ignite. Moreover, these ignitions were also
reasonably likely to place the float coal dust in suspension, which could lead to a mine
explosion.
Furthermore, I note that the tailpiece in question was located just seventy feet from the
working face of the mine. Given that the AQ1 Mine is a gassy mine, methane may quickly
accumulate on the section. I also note that MSHA’s Assessed Violations History Report for the
AQ1 Mine shows thirty-two violations of the approved ventilation plan in the twenty-seven
months prior to the citation at issue. (Ex. G–9 at 5–6.) Moreover, Fishback and Safety Director
Barras each mentioned arcing as a potential source for ignition at the AQ1 Mine. (Tr. 94, 351.)
In light of the proximity of the tailpiece to the working face and the potential for methane
accumulation, I also determine that is reasonably likely in the course of continued mining
operations that a methane ignition at the face would put the float coal dust in suspension and
propagate an explosion.
Finally, I recognize that this area of the AQ1 Mine was very wet at the time of the
inspection. Yet, the Commission has consistently found that wet or damp coal will dry out and
fuel or propagate a fire or explosion. See, e.g., Consolidation Coal Co., 35 FMSHRC 2326,
2329–30 (Aug. 2013) (citing Black Diamond Coal Mining Co., 7 FMSHRC 1117, 1120–21
(Aug. 1985), and Mid-Continent Res., Inc., 16 FMSHRC 1226, 1230, 1232 (June 1994)). Given
Respondent’s regular on-shift and preshift examinations, I recognize that a section foreman
might have identified this accumulation in the next few hours. However, Hammond’s 7:41 a.m.
check of the tailpiece was the last recorded examination. Accordingly, these extremely
dangerous conditions created a window of several hours where a quick uptick in methane, a
spark, or frictional heat were reasonably likely to lead to disaster.
In view of the above, I therefore determine that Mathies’ third element has been satisfied.
Given my prior determinations regarding the first, second, and fourth elements, I conclude that
this violation was appropriately designated as S&S.
5.

Unwarrantable Failure and High Negligence

The Secretary characterizes Black Beauty’s negligence as high and has designated this
violation to be an unwarrantable failure. In support of his allegations, the Secretary points to the
obviousness, extent, and duration of the cited conditions. (Sec’y Br. at 17.) In addition, the
Secretary characterizes the violative condition as highly dangerous and claims that Respondent
did not take steps to address the conditions prior to Inspector Fishback’s arrival. (Id. at 17–18.)

36 FMSHRC Page 2560

Conversely, Black Beauty claims the Secretary’s unwarrantable failure and high
negligence allegations are inappropriate. (Resp’t Br. at 15.) Respondent contends that the
condition existed only for a short time and was not extensive. (Id.) Further, Black Beauty argues
that its past accumulations violations did not put the operator on notice that greater efforts were
necessary to comply with section 75.400 because there is no “nexus” between the “basis for
heightened alert” and “the facts of the alleged violation at issue.”8 (Id. at 16.) Finally,
Respondent avers that the condition was not highly dangerous. (Id. at 20.)
Looking at the Commission’s factors for unwarrantable failure, three of the
unwarrantable factors suggest that Black Beauty’s conduct was aggravated. First, I have
concluded that Black Beauty’s conduct was serious and dangerous enough to constitute an S&S
violation. Second, Respondent had a sizable history of violations: Fishback specifically testified
that Black Beauty had a “terrible reputation of belt violations” (Tr. 47), and MSHA’s records
demonstrate a significant history of accumulations violations. (Ex. G–9; Ex. G–10; Ex. G–11.)
These violations put Black Beauty on notice that greater efforts were necessary for compliance.
Third, the obviousness of the condition is also an aggravating factor. Here, Fishback asserted the
accumulations were “seen as soon as I walked up, obvious to the most casual observer” and he
did not have to get down on his hands and knees or move anything to see the accumulations. (Tr.
51–52.)
In contrast, four of the Commission’s unwarrantable factors mitigate Black Beauty’s
conduct in this case. First, I have found that the accumulations in question had been present for
less than a shift. See discussion supra Part V.B.2. Notwithstanding Black Beauty’s on-going
duty to correct dangerous conditions, this relatively short duration suggests that Respondent’s
conduct was not aggravated. Second, the cited accumulation was not extensive. Although the
8

Black Beauty focuses much of its argument on explaining the “nexus” required between
past and present violations. (See Resp’t Br. at 16–20 (citing Brody Mining, LLC, 33 FMSHRC
1329, 1366–67 (May 2011) (ALJ), petition for review granted (June 30, 2011).) However, the
Commission has indicated:
[i]t was appropriate for the Judge to conclude that
such [section 75.400] violations were sufficient to place the
operator on notice that greater efforts were necessary for
compliance with the standard. We do not agree that past
violations of section 75.400 can provide such notice only if
they are factually indistinguishable from the cited condition.
Big Ridge, Inc., 35 FMSHRC 1525, 1530 (June 2013). Although operators may draw “a
distinction demonstrating an anomaly,” they bear the burden of rebutting the Secretary’s
“contention that the prior violations did, in fact, put the operator on notice.” Twentymile Coal
Co., 36 FMSHRC 1533, 1539 (June 2014). Here, Respondent’s arguments do not demonstrate
that the violation in question was an anomaly. Accordingly, I determine that Black Beauty’s past
accumulations violations put the operator on notice that greater efforts were necessary to comply
with the Secretary’s regulations.

36 FMSHRC Page 2561

float coal dust itself was deeper than Fishback had seen in the past, the remainder of the
accumulation spanned only a few feet. Indeed, I have found that Respondent was able to abate
the condition in approximately 15 minutes. Third, this relatively swift abatement and the
examinations by Section Foreman Benjamin and Compliance Supervisor Hammond suggest that
Black Beauty efforts to keep the tailpiece free of accumulations were having at least some effect.
See Manalapan Mining, Co., 35 FMSHRC 289, 295 (Feb. 2013) (“The evidence of the number
of miners and time necessary to clean up the accumulations after the issuance of the citation and
orders is relevant to [an operator’s efforts to abate the violative condition prior to a citation or
order’s issuance], as it is to the factor of extensiveness of the violation.”) Finally, the Secretary
has not demonstrated that Black Beauty or its agents had knowledge of the condition in question.
In fact, the Secretary presented no evidence that any supervisor or other agent had been through
the area since Hammond’s on-shift examination at 7:41 a.m. that morning. Thus, it is unclear that
Respondent should have known about the violative condition.9 Cf. E. Associated Coal Corp., 32
FMSHRC 1189, 1199–1200 (Oct. 2010) (affirming ALJ conclusion that operator had no
knowledge of the violative condition where Secretary made no attempt to establish actual
knowledge, and did not establish “predicate” circumstances necessary to conclude that Eastern
reasonably should have known of the violative condition.”).
In light of the facts and circumstances, I do not believe the Secretary has met his burden
of establishing aggravated conduct. Nevertheless, I recognize that the aggravating factors before
me are significant. The float coal accumulations presented significant dangers to miners in the
AQ1 Mine. As Fishback succinctly observed: “Float coal dust is what blows up coal mines.” (Tr.
43.) Moreover, it is extremely troubling that Black Beauty received a series of accumulations
violations but did not adequately solve the problems in this mine. These are significant
shortcomings, and Respondent’s failure to adequately fulfill its safety duties under the Mine Act
despite repeated warnings is the epitome of negligence.
Yet, after weighing these serious concerns against the mitigating circumstances of this
case, Respondent’s failure in this case does not cross the line from ordinary negligence to
aggravated conduct. The condition in question was dangerous, but its relatively short duration
and limited extent circumscribes the window within which a hazard could develop. Indeed, given
the accumulations’ obviousness and Respondent’s regular exams of the area, it appears likely
that Black Beauty’s section foreman would have identified the accumulations and had them
cleaned up within a few hours. Although Respondent’s procedures were ultimately inadequate to
satisfy its duties, the Secretary has not demonstrated that Black Beauty’s missteps constitute
intentional misconduct, indifference, reckless disregard, or a serious lack of reasonable care. Cf.
9

Fishback relied on Respondent’s history of past violations, finding the operator should
have known about the accumulations on October 15 “from the previous history.” (Tr. 50.) The
Secretary also introduced into evidence Order No. 6681046, a section 104(d)(2) order involving
accumulations along a belt. (Ex. G–20.) However, I know little about the actual facts involved in
Order No. 6681046. Although Black Beauty’s previous history of accumulations violations is
relevant to an unwarrantable failure analysis, see discussion supra note 8, Fishback’s vague
testimony and the text of Order No. 6681046 are insufficient for me to infer that Respondent had
constructive knowledge in this case.

36 FMSHRC Page 2562

Twentymile Coal Co., 36 FMSHRC 1533, 1534, 1538–39 (June 2014) (affirming ALJ
determination of unwarrantable failure where accumulation existed in a large area over several
shifts).
For these same reasons, I conclude that the Secretary has not met his burden of showing
Black Beauty was highly negligent. Respondent had a duty to ensure that coal did not
accumulate in the AQ1 Mine, and it failed to fulfill that duty. I also recognize that these
accumulations posed a significant danger to miners, and their abatement required only a small
amount of effort. Cf., United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947).
Nevertheless, the Secretary’s own standards call for moderate negligence where “there are
mitigating circumstances.” 30 C.F.R. § 100.3(d) at Table X. Black Beauty’s regular
examinations of the area in question, the relatively short time frame, and the limited extent of
these accumulation somewhat mitigate Respondent’s negligence in this case. Accordingly, I
conclude that Respondent’s level of negligence was moderate.
Based on all of the above, Order No. 6681061 is MODIFIED to remove the
unwarrantable failure designation and change the cited level of negligence to moderate.
6.

Penalty

Under section 110(i) of the Mine Act, I must consider six criteria in assessing a civil
penalty, including the operator’s history of previous violations; the 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).
The Secretary initially sought a penalty of $41,574.00 for Order No. 6681061, and
nothing in the record suggests the proposed penalty is inappropriate for the size of Black
Beauty’s business. Moreover, the parties have stipulated that the proposed penalty would not
infringe on Respondent’s ability to remain in business. I have affirmed the Secretary’s S&S
allegation noting the seriousness of the float coal dust accumulations, but I have removed his
unwarrantable designation and concluded that Black Beauty’s negligence to be moderate. Of the
787 violations in Respondent’s history of violations report, 94 involved 30 C.F.R. § 75.400. (Ex.
G–9.) Once this order was issued, nothing suggests that Respondent failed to make a good faith
effort to achieve rapid compliance with the safety standard. Considering all of the facts and
circumstances set forth above, I hereby assess a civil penalty of $14,000.00.
C.

Order No. 6681064 – Accumulations at 5 North on October 20
1.

Order No. 6681064 – Accumulations at 5 North on October 20

Just five days later on October 20, 2008, Fishback returned to the 5 North Section
accompanied by Mine Manager Eric Carter. (Tr. 60–61, 171.) The belt’s tailpiece still remained
in the same location. (Tr. 61, 107–108, 171.) However, during the early morning hours of
October 20, Section Foreman Benjamin and his midnight shift crew lifted the feeder off the

36 FMSHRC Page 2563

tailpiece to install belt hangers, which would facilitate a future belt move. (Tr. 108–109, 114.)
Before resetting the feeder, Benjamin’s crew attempted to stabilize the ground in the area with a
load of gob rock. (Tr. 109.) The crew also used a “slinger duster” to apply rock dust to the area
around the tailpiece. (Tr. 109–110, 114–15.) According to Benjamin, the area was clean and
“snow white.” (Tr. 110.)
Upon inspecting the same tailpiece, Fishback again observed loose coal, coal fines, and
float coal dust underneath and on the structure. (Ex. G–4 at 5–6; Tr. 60–62.) In Fishback’s
judgment, these materials were obvious and excessive. (Tr. 64–65.) According to Fishback, he
and Carter both observed contact between the loose coal and the belt. (Ex. G–4 at 5–6.) The belt
was shut down, and at 10:05 a.m. Fishback issued Order No. 6681064, providing as follows:
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 5 Main North energized belt conveyor tail
located between crosscut #12 to crosscut #13 on the roadway side
of the belt line located on the MMU-003. The combustible material
under the beltline measured approximately 2 foot in width by 3
[feet] in length and 1 to 2 inches in depth and was observed
rubbing the belt for approximately 1 foot of this distance. On the
tailpiece structure directly above these accumulations dry float
coal dust was present which measured approximately 9 inches in
width by 5 feet in length by 1 to 2 inches in depth. The operator,
Randy Hammond (Section Foreman) showed 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.
(Ex. G–3 at 1–2.) Fishback designated the Order as S&S. (Id. at 1.) Further, Fishback
testified that four employees worked for forty-five minutes to abate the violative condition.
(Tr. 66, 88; Ex. G–4 at 8.) He also indicated that he saw no evidence that Black Beauty
attempted to abate the condition prior to his arrival. (Tr. 65.)
2.

Further Findings of Fact

Black Beauty again challenges three important aspects of Inspector Fishback’s testimony.
First, Black Beauty claims that when Compliance Supervisor Hammond performed his check at
9:17 a.m. the tailpiece area was free of accumulations and had been recently rock dusted. (Resp’t
Br. at 21.) As I noted above, coal deposits may accumulate quickly. Given the evidence before
me, I therefore find that the conditions at issue in Order No. 6681064 developed after
Hammond’s check at 9:17 a.m. and had recently been rock dusted.
Second, Respondent disputes the composition of the material Fishback identified. (Resp’t
Br. at 24–26.) Specifically, Respondent’s witnesses claimed the material under the belt consisted
largely of mud and standing water. (Tr. 111, 141–42, 172–75; Ex. G–14 at 1; Ex. R–13.)
Hammond and Mine Manager Carter also contended that the dust on the framework of the

36 FMSHRC Page 2564

tailpiece was a lighter gray than five days earlier because of the recent rock dusting. (Tr. 145,
173.) Hammond also claimed that the dust was not 1–3 inches deep. (Tr. 145.)
Nevertheless, the evidence in this case again convinces me that the cited conditions
generally appeared as Fishback described them. Despite Hammond and Carter’s opinion that the
material under the tailpiece was mostly fireclay and water, Fishback’s credible testimony
reflected his personal observations. Further, I have accorded Fishback’s testimony significant
weight based upon his long experience as a coal miner. Considering the evidence before me, I
find that the cited materials were as Fishback described them. However, I also find that the coal
deposits themselves were wet.
This finding is consistent with my factual determinations for Order No. 6681061. See
discussion supra Part V.B.2. Although Black Beauty had treated the mine floor and applied rock
dust, the tailpiece and feeder in question remained in the same location. Accumulations
predictably developed in the same spots of the tailpiece. Those accumulations in Order No.
6681061 developed during the three-and-a-half hour window between Black Beauty’s last check
of the tailpiece and Fishback’s 11:05 a.m. order on October 15. Here, in contrast, Hammond
last examined the belt at 9:17 a.m. on October 20, and Fishback issued Order No. 6681064 at
10:05 a.m. Thus, this smaller window predictably allowed a smaller amount of coal to
accumulate.
Third, Black Beauty disputes the amount of effort required to abate the condition at issue.
(Resp’t Br. at 22, 28–29.) According to Hammond, the majority of the forty-five minutes
recorded by Fishback consisted of informing Carter of the order, shutting off the belt, finding
and informing Hammond, gathering shovels, and removing the guarding from the belt. (Tr.
144–45.) Hammond testified that he and Luckett spent ten minutes shoveling soupy material
from underneath the tail to abate condition. (Tr. 144.) Again, I credit Hammond’s testimony that
Fishback’s estimate included time not spent removing the material, and I find that the conditions
at issue were cleared in approximately 10 minutes.
3.
Conclusions of Law — Violation of 30 C.F.R. § 75.400, S&S, Unwarrantable
Failure, and High Negligence — Order No. 6681064
The Secretary and Black Beauty each revisit the arguments they made in connection with
Order No. 6681061 to reach the identical conclusions regarding Order No. 6681064 issued on
October 20. Given the similarities between the conditions at issue, the parties’ redundance is
unsurprising. Unfortunately, the rematch proves less compelling than the original. I need not
follow the parties’ lead and mechanically rehash each argument. Instead, I focus below on
identifying any differences between the orders and determining whether those differences impact
my analyses.
Very little distinguishes the conditions Inspector Fishback identified in Order No.
6681064 from the conditions he cited five days earlier in Order No. 6681061. As I noted,
Respondent had installed chain hangers at the tailpiece, attempted to stabilize the ground with
additional rock, and applied rock dust to the area on the preceding midnight shift. In addition, the

36 FMSHRC Page 2565

materials Fishback identified on October 20 were slightly smaller in size than were present in
Order No. 6681061 on October 15. Finally, the materials in question had been present for less
than an hour.
Yet, none of these three differences palpably affect my analyses. First, a reasonably
prudent person familiar with the mining industry and the protective purposes of section 75.400
would have recognized that these materials could propagate a fire or explosion. Fishback
credibly testified that the cited material was combustible and would ignite (Tr. 63, 92), and
neither Respondent’s maintenance efforts nor the smaller size of the materials nor the somewhat
shorter amount of time they existed renders the materials incombustible. Accordingly, I conclude
that Black Beauty violated 30 C.F.R. § 75.400.
Second, those differences also do not alter my S&S analysis. Although I recognize the
accumulations in this case were smaller in size than those present in Order No. 6681061, they
would have continued to grow in on-going mining operations until Hammond performed a check
of the tailpiece area in a few hours. Moreover, Black Beauty’s maintenance efforts preceding the
accumulations in question do not affect my determination that the Secretary has demonstrated all
four elements of the Mathies test. As with Order No. 6681061, the accumulations at issue in
Order No. 6681064 developed after Compliance Supervisor Hammond found the tailpiece area
clean and rock dusted at 9:17 a.m. Consequently, Black Beauty’s midnight-shift maintenance
efforts affect neither the hazards the developing accumulation presented nor the reasonably
likelihood of those hazards causing reasonably serious injuries.
Indeed, the circumstances that remained constant convince me that the Secretary has
again met his burden of proving his S&S designation. Here, Fishback again credibly testified that
the violative condition contributed to—or made more likely—mine fire and explosion hazards
that were reasonably likely to cause reasonably serious injuries. (Tr. 62–63, 65.) The coal
accumulations under the tailpiece were in contact with the belt, which presented an ignition
source. Further, the AQ1 Mine remains a gassy mine that is susceptible to rapid methane
buildup. Given the evidence before me, I therefore determine that the Secretary has met his
burden of proving all four elements of Mathies, and I conclude that he properly designated Order
No. 6681064 as S&S.
Third, Black Beauty’s maintenance efforts on the previous shift, the somewhat smaller
accumulations at issue in Order No. 6681064, and the shorter duration the accumulations existed
have little impact on my unwarrantable failure or negligence analyses. None of these factors
counterbalance the obviousness of these accumulations or the grave danger they presented in
continuing mining operations.
However, I am extremely troubled that loose coal, coal fines, and float coal dust were
able to accumulate in the same spot and same fashion as occurred five days earlier. Indeed, the
rapid build-up of accumulations in Order No. 6681061 placed Black Beauty on notice that
greater efforts were necessary to comply with section 75.400. Given that accumulations had so
recently developed at this precise spot in the mine, Respondent reasonably should have known
about this violative condition. Instead, Black Beauty apparently continued to adhere to the same

36 FMSHRC Page 2566

processes for checking the tailpiece it had used before Order No. 6681061 but with an “extra
eye” on the tail. (See Resp’t Br. at 29–30 (quoting Tr. 139–40).) Unfortunately, this reaction was
inadequate to prevent this violative condition from recurring in a location where dangerous
amounts of coal were known to rapidly accumulate. Based on the accumulations’ obviousness
and danger, the nearly identical order just five days earlier, and Respondent’s resulting reason to
know of the violation, I determine that Black Beauty’s conduct constituted a serious lack of
reasonable care. Accordingly, I conclude that Inspector Fishback appropriately designated Order
No. 6681064 as an unwarrantable failure. For these same reasons, I conclude that Respondent
was highly negligent.
4.

Penalty

The Secretary originally proposed a $41,574.00 civil penalty for this violation.
Again, nothing in the record suggests that the proposed penalty is inappropriate for the size of
Black Beauty’s business. The parties also stipulated that the penalties would not infringe on
Respondent’s ability to remain in business. I have found that this violation was properly
designated as S&S, and affirmed the Secretary’s high negligence and unwarrantable failure
allegations. Of the 787 violations in Respondent’s history of violations report, 94 involved
30 C.F.R. § 75.400. (Ex. G–9.) I also note that the conditions underlying Order No. 6681064
were extremely similar to the conditions cited just five days earlier in Order No. 6681061. Given
the gravity, egregiousness, and similarity of Black Beauty’s missteps in this case, I conclude that
a significant penalty is appropriate. Considering all of the facts and circumstances in this matter
and the criteria of section 110(i), I hereby assess a civil penalty of $41,574.00.
D.

Order No. 6681073 – Accumulations at 4 Main North on October 23
1.

Order No. 6681073 – Accumulations at 4 Main North on October 23

Just three days later on October 23, Inspector Fishback again conducted an inspection at
the AQ1 Mine. (Tr. 276; Ex. G–5.) Upon examining the mine’s Belt and Roadway Inspection
Reports, Fishback noted that a “spill” at Crosscut 178 had been present for three shifts with no
action taken. (Ex. G–6 at 18; Ex. G–16; Ex. G–17; Ex. G–18; G–19; Tr. 286–91, 295.)
After checking the exam books, Fishback traveled with Belt Mechanic Todd Armstrong
to examine the belt in the 4 Main North C entry. (Tr. 310, 369.) The belt ran down the middle of
the entryway until it reached Crosscut 178. (Ex. R–20; Tr. 320–21.) At that point, it intersected
at a right angle with another belt—the 4 Main North A—that ran through the middle of Crosscut
178. (Ex. R–20.) Because the 4 Main North C belt bisected the entry, the entry was split into a
travel/roadway side and a “back” side. (Tr. 297, 320–323; Ex. R–20.) The belt was four feet
wide and located just one foot off of the ground. (Tr. 325.)
Fishback and Armstrong traveled into the mine along the roadway/travel side of the 4
Main North C entry. (Tr. 370–71.) As they approached Crosscut 178, Fishback testified that he
observed loose coal, coal fines, and float coal dust under the belt conveyor tail. (Tr. 277–78,
295–96.) According to Fishback, the material was black. (Ex. G–6 at 5; Tr. 277–78.) In addition,

36 FMSHRC Page 2567

he testified that one of the belt’s bottom rollers was running in the material. (Ex. G–6 at 5; Tr.
277–81, 297–98, 304–05.) In Fishback’s judgment, the accumulations had existed for more than
one shift (Ex. G–6 at 6) and were obvious to the most casual observer (Tr. 292). At 9:40 a.m.,
Fishback issued Order No. 6681073, providing as follows:
Combustible materials in the form of loose coal and coal fines,
including float coal dust, black in color have been allowed to
accumulate under the 4 Main North [C] energized belt conveyor
tail located at crosscut #178. These accumulations measured
approximately 35 feet in length by 4 feet in width and 6 inches to 1
½ feet in depth. One of the bottom rollers was observed running in
these accumulations for a distance of half the length of the roller.
Due to past history of accumulations of combustible material on
belt lines at this mine, this violation is an unwarrantable failure to
comply with a mandatory standard.
(Ex. G–5.) In addition, Fishback indicated that the cited condition was reasonably likely to result
in lost workdays or restricted duty from smoke inhalation and burn injuries.10 (Ex. G–5; Tr. 279,
281–82.) Fishback testified that the abatement required six men and 2-½ hours and that he saw
no evidence of previous efforts to abate the condition. (Tr. 293–94.) No methane was present at
the time the order was issued. (Tr. 298–99.)
2.

Additional Findings of Fact

Although Black Beauty admits an accumulation existed (Resp’t Br. at 47), the operator
again disputes Inspector Fishback’s testimony on three points. First, Respondent contends that
the admitted accumulations of loose coal were much smaller than Fishback had indicated in
Order No. 6681073. Specifically, Belt Mechanic Armstrong claimed that Fishback issued the
order on account of a small pile of coal that was one-foot tall and eight-inches in diameter.
(Tr. 310–11, 320.) He also testified that the remainder of the thirty-five feet of material
contained “sprinkles” of coal.11 (Tr. 314.) Although I believe Armstrong testified to the best of
10

Fishback initially wrote that the cited condition would affect ten persons. (Ex. G–5.)
However, at hearing he testified that the Order should be modified to three persons affected
based on the miners who were likely to be present in the outby area. (Tr. 283–84, 307.) In light
of his testimony, counsel for Black Beauty moved to modify Order No. 6681073 to reflect three
persons affected. (Tr. 307.) The Secretary did not object, and I noted for the record that the
number of persons affected would be modified to three. (Tr. 307.)
11

Shift Foreman Carie also testified that members of the clean-up crew told him that
“‘there wasn’t very much stuff here.’” (Tr. 337.) However, Carie did not arrive at 4 North Main
C tail until the materials in that portion of the mine had already been cleaned. (Tr. 333–34, 337.)
Given Carie’s position as a Shift Foreman, the members of a clean-up crew might have a strong
(continued…)

36 FMSHRC Page 2568

his recollection, Respondent’s own preshift belt examination reports for the three shifts
preceding Fishback’s inspection identify spills at crosscut 178 that had not been cleaned.
(Ex. G–16 at 2; Ex. G–17 at 2; Ex. G–18 at 2.) Notwithstanding Respondent’s argument that
these spills were non-hazardous, the preshift examiners’s notations on the report suggest to me
that the materials in question include more than mere “sprinkles” of coal. In addition, Fishback’s
contemporaneous notes support his description of the size of the accumulation in question.
(Ex. G–6.) Accordingly, I find that the coal accumulations in question appeared as Fishback
described them in Order No. 6681073 and his contemporaneous notes.
Second, Black Beauty disputes the allegation that the cited material was in contact with a
roller on the 4 Main North C belt. (Resp’t Br. at. 45, 48–49, 54–55.) According to Fishback, he
and Armstrong approached the tailpiece at Crosscut 178 on the roadway side of the belt line.
(Tr. 370–71.) He testified that he then observed the accumulations running in the belt rollers on
the back side of the belt and crossed the belt to examine and measure the accumulations.
(Tr. 296–97, 370–71; Ex. R–20.) Fishback also credibly testified that he examined the coal pile
while on his hands and knees, and that he observed the coal to be in contact with the belt roller.
(Tr. 277–81, 296.) Finally, Fishback’s contemporaneous notes also indicate that Armstrong,
Superintendent Gary Campbell, Section Foreman Emery Cain, and Safety Technician David
Weisigner all agreed the roller was in accumulations. (Ex. G–6 at 5.)
In contrast, Armstrong claimed that material was not in contact with the roller. (Tr. 311.)
He agreed that Fishback pointed out the pile of coal from the roadway/travel side of the belt.
(Tr. 310–11.) However, Armstrong claimed that he alone crossed to the back side of the belt,
bent down on his knees, and shined a light up towards the rollers to determine whether the pile
of coal was in contact with the roller. (Tr. 310–11, 327–29.) Finally, Armstrong initially claimed
that Fishback made his determination regarding the pile of coal from 10–15 feet away. (Tr. 311,
326–27.)
Yet, on cross-examination Armstrong admitted that Fishback later joined him on the back
side of the belt. (Tr. 328.) Thus—even according to Armstrong’s version of the
events—Fishback had a close-up opportunity from which to measure and observe the materials.
In light of that opportunity and Fishback’s contemporaneous inspection notes, I credit Fishback’s
account over Armstrong’s contrary testimony. Based on the evidence before me, I therefore find
that the pile of coal accumulation Fishback identified was in contact with a roller on the 4 Main
North C belt.
Third, Respondent again disputes Fishback’s claim that six miners required two and half
hours to abate the violative condition. (Resp’t Br. at 46, 50–51, 53.) Armstrong described three
areas that Fishback required to be cleaned before the 4 Main North C belt could be restarted:
11

(…continued)
incentive to minimize the seriousness of the violation to their boss. Further, Carie had no basis to
judge the accuracy of the clean-up crew’s statements because he arrived after the crew had
finished cleaning the area. Although hearsay evidence is admissible in Commission proceedings,
see 29 C.F.R. § 2700.63(b), I accord no weight to this testimony.

36 FMSHRC Page 2569

(1) the actual pile of coal under the tailpiece, which Armstrong claimed was cleaned in less than
one minute; (2) the 4 Main North C area was cleared and rock dusted from rib to rib, which
required 30–40 minutes to clean; and (3) the area out to the 4 Main North A takeup—located
sixty feet from the intersection with 4 Main North C belt, which was cleaned in 90 minutes.12
(Tr. 313–16.) Although Carie was not present when clean-up began, he testified that the area
around 4 Main North C belt was “pretty well finish[ed] up” and rock dusted when he arrived
20–25 minutes after the belt was shut down. (Tr. 333–34.) Further, he testified that cleaning the
area to the 4 Main North A takeup required an additional 1-½ hours because it required removal
of guards and time-consuming mud removal. (Tr. 333–35.) Curiously, Fishback did not testify
about the extent of the clean-up efforts he required; instead, he testified only that clean-up
required six miners “a period of two and a half hours to remove the materials and rock dust the
affected area.” (Tr. 293–94.) Based on Armstrong and Carie’s credible testimony on this point, I
therefore find that the cited conditions on the were abated within thirty minutes.
3.

S&S

Black Beauty admits that the cited material violated 30 C.F.R. § 75.400; therefore, the
first Mathies element is met. In addition, I have found that the accumulation was in contact with
one of the belt rollers on the 4C belt. As Fishback credibly testified, friction from the belt roller
could lead to a mine fire. (Tr. 279–80.) Accordingly, I determine that the Secretary has met his
burden of proof for Mathies’ second element has been satisfied because the coal accumulations
in question contributed to a mine fire hazard. Cf. Buck Creek Coal, Inc., 52 F.3d 133 at 136
(noting precautions are in place “because of the significant dangers associated with coal mine
fires”); Black Diamond Coal Mining Co., 7 FMSHRC 1117 at 1120 (noting “ignitions and
explosions are major causes of death and injury to miners”).
The Secretary has also met his burden of proof for the third Mathies element. The cited
accumulations were in contact with a roller on the 4C belt, which provided a frictional ignition
source. (Tr. 279–80.) Moreover, I have found that the accumulations of coal stretched
approximately thirty-five feet in length, spanned four feet in width, and measured between six
and eighteen inches in depth. See discussion supra Part V.D.2. According to Fishback, the size
of the accumulations increased the likelihood of fire because it provided additional material to
burn. (Tr. 280.) I also note that the belt in question was located just a foot above the mine floor.
Further, Shift Foreman Carie claimed that the “spills” mentioned on these reports were
nonhazardous and were something that “may need attention later.” (Tr. 340.) Given the repeated
notations in Black Beauty’s own preshift reports and Carie’s testimony, it appears likely that
Respondent had no plans to clean this area in the course of continuing mining operations. Thus,
the accumulations would have continued to grow deeper—eventually contacting the belt located
just one foot above the mine floor— and exposed the accumulations to additional points of
frictional ignition. Finally, it is uncontroverted that three miners would be present in this outby
area. In light of the record before me, I therefore determine that the Secretary has satisfied his
burden of proving that the mine fire hazard was reasonably likely to result in injuries.

12

Notably, this area is not listed on Order No. 6681073.

36 FMSHRC Page 2570

Finally, I determine that Fishback’s testimony regarding the smoke inhalation and burn
injuries that are likely to occur also satisfies the Secretary’s burden of proof for Mathies’ fourth
element. As I determined in Order Nos. 6681061 and 6681064, these injuries are reasonably
likely to be reasonably serious. In view of these determinations and the evidence before me, I
therefore conclude that Order No. 6681073 was properly designated as S&S.
4.

Unwarrantable Failure and High Negligence

The evidence in this case also convinces me that Black Beauty’s conduct was both an
unwarrantable failure to comply with section 75.400 and highly negligent. Indeed, each of the
Commission’s factors for the analysis of unwarrantable failure suggest that Respondent’s
conduct was aggravated in this case and constituted more than ordinary negligence. As I noted
above, see discussion supra Parts V.B.5 and V.C.3, Black Beauty has a significant history of
accumulations violations—including two section 104(d)(2) orders from the preceding seven days
also involving accumulations on a belt line—that put Respondent on notice that greater efforts
were necessary for compliance. In addition, Black Beauty’s own preshift reports demonstrate the
operator’s knowledge that coal was accumulating along the 4C belt. Yet those same reports,
Shift Foreman Barras’ testimony, and Inspector Fishback’s observations make clear that no steps
had been taken to clean up the coal. (See also Resp’t Br. at 53–54 (characterizing the
accumulating coal as non-hazardous and claiming that immediate correction was not required).)
Likewise, Black Beauty’s reports and Inspector Fishback’s testimony also indicate that the
accumulations were obvious and had been building over three shifts. In addition, I have found
that the accumulations in question extended for thirty-five feet and required six miners thirty
minutes to abate. Finally, these accumulations were sufficiently dangerous to warrant an S&S
designation. Based on all of the above, Black Beauty’s conduct was more than ordinary
negligence and constituted a serious lack of reasonable care. Thus, I conclude that Order No.
6681073 was appropriately marked as an unwarrantable failure. Given the lack of mitigating
factors, I also conclude that the Secretary has also demonstrated Black Beauty’s high level of
negligence.
5.

Penalty

The Secretary originally proposed a $41,574.00 civil penalty for this violation.
Again, nothing in the record suggests that the proposed penalty is inappropriate for the size of
Black Beauty’s business. The parties also stipulated that the penalties would not infringe on
Respondent’s ability to remain in business. I have found that this violation was properly
designated as S&S, and affirmed the Secretary’s high negligence and unwarrantable failure
allegations. However, I have modified the citation to reduce the number of miners affected
from 10 to 3. Significantly, of the 787 violations in Respondent’s history of violations report,
94 involved 30 C.F.R. § 75.400. (Ex. G–9.) Specifically, I note that the conditions underlying
Order No. 6681073 were similar to the conditions cited in the previous seven days in Order Nos.
6681061 and Order Nos. 6681063. In considering all of the facts and circumstances in this matter
and the criteria of section 110(i), I hereby assess a civil penalty of $31,000.00.

36 FMSHRC Page 2571

E.

Order No. 6682224 – Accumulations at 5 Main North on November 24
1.

Order No. 6682224 – Accumulations at 5 Main North on November 24

Just one month later on November 24, 2008, Inspector Fishback conducted another
inspection in the 5 Main North section of the AQ1 Mine—the same section where he observed
the violative conditions described in Order Nos. 6681061 and 6681064. (Tr. 205–06, 220–21.)
During that month, Black Beauty’s mining had progressed and the tailpiece unit was accordingly
advanced to Crosscut 24 so that the tailpiece and feeder would remain near the working face.
(Tr. 206–07, 220–21, 240–245.) Crosscut 24 is only 700 feet deeper into the 5 Main North
section, but the mine floor in this area was generally dry and level. (Tr. 206–07, 220, 246–48,
254.)
Upon arriving at the 5 North energized conveyor belt with Assistant Mine Manager Del
Culbertson, Fishback checked the tailpiece. (Tr. 202, 204, 254; Ex. G–8 at 2–3, 8–9.) According
to his notes and testimony, Fishback once again observed coal underneath the tailpiece and float
coal dust on its framework. He testified that the material was black and dry, and the entire width
of the belt was running in accumulations. (Tr. 202–06, 209–10.) In Fishback’s judgment, the
material had been present for several shifts. (Ex. G–8 at 13–14; Tr. 215, 222.) He also found the
material obvious without having to bend down, although he was “pretty sure” he did bend down
to check for friction. (Tr. 217, 221.) Fishback observed rock dust in the area but asserts it was
not mixed with float coal dust. (Tr. 223.) At that point, Culbertson shut off the belt, and at
10:20 a.m. Fishback issued Order No. 6682224, providing:
Combustible material in the form of loose coal, coal fines and float
coal dust (black in color and dry) have been allowed to accumulate
on the 5 North energized belt conveyor tail located in the #4 entry
between crosscut #24 and #25 on Unit #3 MMU-003. The
combustible material under the belt tail piece measured
approximately 2 inches to 6 inches in depth by 3 feet wide by 4
feet in length and was observed rubbing the belt for this total
distance. On the tailpiece structure directly above these
accumulations dry float dust was present which measured
approximately ½ inch to 3 inches in depth by 6 inches wide for a
length of 7 feet. The operator, Bob Smith (section foreman)
showed 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.
(Ex. G–7 at 12.) The order states that abatement required four employees and took fifty-five
minutes. (Id.) Fishback testified that the mine offered no mitigating factors. (Tr. 216.) He also
characterized these accumulations as “[e]xactly the same” as those at issue in Order Nos.
6681061 and 6681064. (Tr. 210.)

36 FMSHRC Page 2572

2.

Additional Findings of Fact

In its briefs, Black Beauty admits that loose coal was present underneath the tailpiece.
(See, e.g., Resp’t Br. at 31–32 (“Upon removing the tailguarding, Mr. Culbertson . . . found a
small pile of coal at the tail inside the guard.”).) In addition, Respondent’s arguments also admit
that float coal dust was intermixed in the material Inspector Fishback found on the tailpiece’s
framework. (See, e.g., Resp’t Br. at 37 (“Mr. Culbertson disagreed with Mr. Fishback’s
assessment [that the] float dust was hazardous because the dust was 80% incombustible,
‘layered’ rock dust mixed with coal dust.”).) However, Respondent again disputes four important
facts underlying the Secretary’s allegations in this case.
First, Black Beauty disputes the length of time the loose coal was present. (Resp’t Br. at
36–37.) Black Beauty once again points to Benjamin’s testimony that the tailpiece area was
cleaned and dusted at the end of the midnight shift.13 (Tr. 239; Ex. R–30.) Further, Culbertson
testified that the “skirt rubber” around the tailpiece had become detached, allowing coal to
collect underneath the tailpiece. (Tr. 262–63, 266–67.) Finally, Respondent suggests that the
depth of the loose coal underneath the tailpiece—here, two to six inches—suggests that the coal
had only recently piled up. (Resp’t Br. at 32, 34, 36–38.) Although Fishback estimated that the
loose and float coal were both present for several shifts, he provided no explanation as to why he
reached that conclusion. As I have noted, coal can accumulate quickly. Given this dynamic
environment, Fishback’s conclusion that the loose and float coal were both present for several
shifts appears tenuous. Accordingly, I find that the coal deposit underneath the tailpiece
developed at some point after the day shift at began 7:00 a.m.14
Second, Black Beauty claims that the coal pile underneath the tailpiece was not in contact
with the belt. (Resp’t Br. at 38.) Here, Inspector Fishback observed the coal deposit and
instructed Assistant Mine Manager Culbertson to shut down the belt. (Tr. 231, 256.) Moreover,
13

The Secretary suggests that I should not find Benjamin’s testimony credible because
Black Beauty has a long history of coal accumulations. (Sec’y Br. 22–23.) Although he does
not make this clear in his brief, it appears the Secretary would like me to infer that Respondent
did not regularly clean and dust the tailpiece from Black Beauty’s repeated accumulations. Yet,
correlation does not necessarily imply causation. Indeed, a failure to clean and dust the belt lines
is not necessarily the best or most natural inference of causation in this case. Fishback’s own
testimony suggests that poor belt installation and repairs contributed to Black Beauty’s ongoing
accumulations problem. (See Tr. 213, 221 (noting that the mine had a history of “very poor” belt
installation and suggesting it caused accumulations).) Repeated installation or repair errors are
also unacceptable, but they do not imply that Benjamin failed to clean or dust the tailpiece on the
midnight shift.
14

I note that the size of the loose coal deposit under the tailpiece in Order No. 6682224 is
comparable to the size of similar accumulations in Order Nos. 6681061 and 6681064. See
discussion supra Parts V.B.2 and V.C.2. My finding that the loose coal at issue in Order No.
6682224 developed in the hours between 7:00 a.m. and 10:20 a.m. on November 24, 2008, is
therefore consistent with those earlier findings.

36 FMSHRC Page 2573

Fishback credibly testified that he got down on his hands and knees to examine the coal in
contact with the belt. (Tr. 221.) Assistant Mine Manager Culberston agrees that he first shut
down the belt, but he testified that he then joined Fishback near the accumulations in question.
(Tr. 256–57.) At that point, Culberston claims he was able to run his pen between the pile of coal
and the belt itself. (Tr. 257–58.) Culbertson also claims that Fishback did not physically examine
the materials. (Tr. 258, 264.)
Despite Culbertson’s testimony, the record as a whole convinces me that the coal pile
was in contact with the 5 Main North Belt when the inspection party arrived at the tailpiece. As I
have noted, I credit Fishback’s observations based on his long experience as a coal miner.
Specifically, Fishback explained that he physically inspected the coal accumulations in question
on his hands and knees and measured it using a tape measure. Moreover, Fishback’s
contemporaneous inspection notes and Culbertson’s Escort Report both indicate that the belt was
running in coal.15 (Ex. G–8 at 10; Ex. G–15.) Culbertson also admitted that he did not
immediately join Fishback at the coal deposit because the belt needed to be shut down. Fishback
therefore had an opportunity to examine the materials independently, and the conditions may
have changed after Culbertson shut down the belt. Given the evidence before me, I therefore find
that the Secretary has met his burden of demonstrating that the coal underneath the tail piece was
in contact with the belt.
Third, Respondent claims that the dust that Fishback found on the framework of the
tailpiece was “part of a dust mixture that was incombustible and ‘layered’ with rock dust.”
(Resp’t Br. at 41.) Specifically, Culbertson described the surrounding area as very white from a
recent rock dusting. (Tr. 261–63.) He also recalled Fishback dragging his walking stick through
the dust material, revealing layered float coal and rock dust. (Tr. 260.) In addition, Culbertson
testified that roadway dust would also collect on the tailpiece because it was located near a
ventilation regulator. (Tr. 260–61.) Nevertheless, I again credit Fishback’s testimony regarding
the color and depth of the dust accumulations based on his long experience as a miner.
Finally, Respondent again disputes the clean-up time recorded in the order. (Resp’t Br. at
41.) Culbertson claimed that he shoveled the loose coal within 5 minutes, spent another 5 or 10
minutes washing the float coal dust mixture from the structure, and spent 20 to 25 minutes
locking and tagging the belt and pulling the guarding. (Tr. 264–65.) In light of Culbertson’s
testimony, the size of the coal deposits, and the similarity to the condition underlying Order Nos.
6681061 and 6681064, I find that the cited materials required fifteen minutes to clean.

15

Culbertson’s Escort Report indicates: “5MN tail roller running in fines - terminated.”
(Ex. G–16.) Black Beauty again claims that this Escort Report reflects Fishback’s observations
rather than Culbertson’s. (See Resp’t Reply Br. at 7). I have previously explained that I do not
find Respondent’s position to be credible. See discussion supra note 6. Accordingly, I determine
that Culbertson’s Escort Report weighs in favor of finding that the 5 Main North belt was in
contact with the coal when Fishback and Culbertson arrived at the belt tailpiece.

36 FMSHRC Page 2574

3.

Violation of 30 C.F.R. § 75.400

Despite the presence of loose coal under the tailpiece and float coal dust on the
framework of the tailpiece, Black Beauty contends the cited conditions do not constitute a
violation of section 75.400. Specifically, Respondent characterizes the loose coal as “spillage”
rather than an accumulation. (Resp’t Br. at 34.) Yet, Respondent’s argument is a red-herring.
Combustible materials of sufficient quantity to cause or propagate a fire are prohibited, even if
recent. Prabhu Deshetty, 16 FMSHRC at 1049; see also UP&L, 12 FMSHRC at 968 (discussing
Congress’ intent to prevent accumulations rather than cleaning them up in a reasonable period of
time).
Given my factual findings in this case, I determine that the cited conditions violated
section 75.400. It is uncontroverted that loose coal, coal fines, and float coal dust are
combustible. Although these accumulations were relatively small in size, Fishback also testified
that these materials were sufficient to ignite. (Tr. 209–11.) Thus, a reasonably prudent person
that is familiar with the mining industry and protective purposes of section 75.400 would
therefore have recognized that these were the types of materials that could propagate a fire or
explosion and were impermissible accumulations. I therefore conclude that Black Beauty
violated 30 C.F.R. § 75.400.
4.

S&S

Black Beauty’s violation satisfies the first element of the Mathies test. Further, Fishback
credibly testified that the cited accumulations contributed to belt fire and explosion hazards. (Tr.
211–12.) Accordingly, the Secretary has satisfied Mathies’ second element.
Once again, Black Beauty focuses its attention on Mathies’ third element. (Resp’t Br. at
35–40.) Black Beauty claims that the “‘confluence of factors’ necessary to make an explosion or
fire reasonably likely was not present at the time the Order was issued.” (Id. at 36.) Specifically,
Respondent claims that the cited accumulations were “minimal” and had recently developed. (Id.
at 36–37.) Further, Black Beauty claims that no ignition source was present. (Id. at 38.) Finally,
Respondent also contends that the float coal dust was not hazardous because it was
incombustible, was not in suspension, and only 0.1% methane was present at the time of the
citation. (Id. at 38–39.)
Given the similarities between Order Nos. 6681061, 6681064, and 6682224, I am not
surprised to see Respondent revisit this dispute for a third time. Yet such persistence does not
ultimately prove effective. Despite Black Beauty’s claims that these accumulations were
minimal, the loose coal and float coal dust spanned several feet and had significant depth.
Moreover, it is well known that S&S determinations are to be made in the context of continuing
mining operations. Although I agree that these accumulations developed at some point since the
beginning of the day shift, in the course of continued operations these combustible materials
provided potential fuel for a mine fire or explosion. Again, the AQ1 Mine is gassy and methane

36 FMSHRC Page 2575

could rapidly develop in the course of continued mining.16 In addition, I have found that the
loose coal accumulations were in contact with the belt, see discussion supra Part V.E.2, which
Fishback credibly testified would provide an ignition source. (Tr. 211.) In light of the evidence
before me, the confluence of factors convince me that an ignition or explosion hazard was
reasonably likely to lead to an injury-causing event. Thus, I determine that the Secretary has
established the third element of Mathies.
Finally, Fishback again credibly testified that smoke inhalation and burn injuries would
result from a mine fire or explosion. (Tr. 212.) Accordingly, I determine that Mathies’ fourth
element has been satisfied. Based on my determinations above, I conclude that the Secretary
properly designated Order No. 6682224 as S&S.
5.

Unwarrantable Failure and High Negligence

Once more, the Secretary has characterized Black Beauty’s negligence as high and has
designated this violation to be an unwarrantable failure. According to the Secretary, each of the
seven aggravating factors support a conclusion of unwarrantable failure and high negligence.
(Sec’y Br. at 25–26.) In contrast, Black Beauty claims that the extent, duration, notice, and
degree of danger each suggest that its conduct was not unwarrantable. (Resp’t Br. at 40.)
Looking at the evidence before me, the Secretary has met his burden of proof on both his
unwarrantable failure and high negligence allegations.
I note the accumulations in question were comparatively small and had developed at
some point after the day shift began. Nevertheless, I have concluded that these accumulations
presented significant dangers to Black Beauty’s miners. As Fishback testified, the conditions at
issue in Order No. 6682224 were nearly identical to the conditions he identified in Order Nos.
6681061 and 6681064. These recent and nearly identical violations in the same 5 Main North
section of the mine—not to mention Black Beauty’s significant history of accumulations
violations—should have put Respondent on notice that greater efforts were necessary for
compliance. Those extremely similar orders also suggest that Respondent reasonably should
have known that accumulations would predictably pile up at the tailpiece. Perplexingly, Black
Beauty appears to have continued to employ the same measures and procedures that had
produced recurring and dangerous accumulations along its belt lines. Further, it appears Black
Beauty made no efforts to clean up the loose coal and float coal dust accumulating in this area
since the beginning of the shift. Finally, it is uncontroverted that the accumulations were
obvious. In light of the record in this case—especially the similarity to recent tailpiece
16

As Black Beauty admits in its posthearing brief, the “presence of methane increases the
likelihood of a fire or explosion when accumulations are present.” (Resp’t Br. at 39.) The
tailpiece and the feeder are purposely located near the active working face to cut to down on
travel time. (Tr. 206–07, 220–21, 240–245.) Although little methane was present at the time,
S&S determinations are made considering continued mining operations. See discussion supra
Part V.B.4.

36 FMSHRC Page 2576

accumulation violations—I determine that Respondent’s conduct constituted a serious lack of
reasonable care. Accordingly, I conclude that Black Beauty’s conduct was unwarrantable in this
case. Given the ease with which these accumulations were ultimately cleaned relative to the
danger they presented, I also conclude that Black Beauty’s negligence was high.
6.

Penalty

The Secretary originally proposed a $38,503.00 civil penalty for this violation.
Again, nothing in the record suggests that the proposed penalty is inappropriate for the size of
Black Beauty’s business. The parties also stipulated that the penalties would not infringe on
Respondent’s ability to remain in business. I have found that this violation was properly
designated as S&S, and affirmed the Secretary’s high negligence and unwarrantable failure
allegations. Of the 787 violations in Respondent’s history of violations report, 94 involved 30
C.F.R. § 75.400. (Ex. G–9.) I also note that the conditions underlying Order No. 6682224 were
extremely similar to the conditions cited just five days earlier on Order Nos. 6681061 and
6681064. In considering all of the facts and circumstances in this matter and the criteria of
section 110(i), I hereby assess a civil penalty of $38,503.00.
VII. ORDER
In light of the foregoing, I hereby ORDER the following:
Section 104(d)(2) Order No. 6681061 is MODIFIED to a section 104(a) citation by
removing the unwarrantable failure designation, and lowering the cited level of negligence from
“high” to “moderate.”
Section 104(d)(2) Order No. 6681064 is AFFIRMED as written.
Section 104(d)(2) Order No. 6681073 is AFFIRMED as S&S, as an unwarrantable
failure, and as resulting from Black Beauty’s high negligence and MODIFIED to reduce the
number of miners affected from “10” to “3.”
Section 104(d)(2) Citation No. 6682224 is AFFIRMED as written.
Black Beauty shall PAY a civil penalty of $125,077.00 within 40 days of the date of this
decision.

/s/ Alan G. Paez
Alan G. Paez
Administrative Law Judge

36 FMSHRC Page 2577

Distribution:
Emily L. B. Hays, Esq., U.S. Department of Labor, Office of the Solicitor, Cesar E. Chavez
Memorial Building, 1244 Speer Blvd., Suite 216, Denver, CO 80204
Arthur M. Wolfson, Esq., and Patrick W. Dennison, Esq., Jackson Kelly PLLC, Three Gateway
Center, Suite 1500, 401 Liberty Avenue, Pittsburgh, PA 15222
/tw & pjv

36 FMSHRC Page 2578

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9958 / FAX: 202-434-9949

September 30, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. SE 2012-198-M
A.C. No. 40-00739-276522

v.
CAMPBELL COUNTY HIGHWAY
DEPARTMENT,
Respondent.

Mine: County Quarry

DECISION
Appearances: Robert S. Bexley, Esq., Office of the Solicitor, U.S. Department of Labor,
Atlanta, Georgia, for Petitioner;
Charles W. Kite, Esq., Knoxville, Tennessee, for Respondent.
Before:

Judge Paez

This case is before me upon the Petition for the 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 (“Mine Act”), 30 U.S.C. § 815(d). In dispute are two section 104(d)(2)
orders issued by the Mine Safety and Health Administration (“MSHA”) to the Campbell County
Highway Department as the owner and operator of the County Quarry mine. To prevail, the
Secretary must prove the cited violations “by a preponderance of the credible evidence.” In re:
Contests of Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995)
(citing Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989)), aff’d sub nom.,
Sec’y of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096, 1106–07 (D.C. Cir. 1998). This
burden of proof requires the Secretary to demonstrate that “the existence of a fact is more
probable than its nonexistence.” RAG Cumberland Res. Corp., 22 FMSHRC 1066, 1070
(Sept. 2000) (citations and internal quotation marks omitted), aff’d, 272 F.3d 590 (D.C. Cir.
2001).
I. STATEMENT OF THE CASE
The two alleged violations in this case were issued at the Campbell County (Tennessee)
Highway Department’s County Quarry. Order No. 8542424 charges the Campbell County
Highway Department (“Campbell County” or “Respondent”) with a violation of 30 C.F.R.

36 FMSHRC Page 2579

§ 56.41021 for failing to remove in a timely manner a pool of flammable hydraulic fluid on the
cab floor of the mine’s John Deere 544G loader. Order No. 8542431 charges the mine operator
with a violation of 30 C.F.R. § 56.110012 for failing to clean up an accumulation of rock material
on a walkway used to service the quarry’s rock crusher, also known as the hammer mill. The
Secretary designated both violations as significant and substantial (“S&S”)3 and in both
instances characterized the Campbell County Highway Department’s negligence as high. The
Secretary further asserts that each violation was an unwarrantable failure4 to comply with a
mandatory health and safety standard. The Secretary proposed a penalty of $4,000.00 for each
violation, for a total penalty of $8,000.00.
Chief Administrative Law Judge Robert J. Lesnick assigned Docket No. SE 2012-198-M
to me, and I held a hearing in Knoxville, Tennessee.5 The Secretary presented testimony from
MSHA Inspector Robert McPheeters. Campbell County presented testimony from Safety
Director Samuel Franklin, Campbell County Highway Superintendent Dennis Potter, and
Assistant Road Superintendent Estel Muse. The parties each filed post-hearing briefs, and
Campbell County Highway Department filed a reply brief.
II. ISSUES
For Order No. 8542424, the Secretary asserts that Respondent failed to fulfill its duty
imposed by 30 C.F.R. § 56.4102 by allowing a combustible liquid to accumulate on the floor of a
vehicle at the mine. (Sec’y Br. at 5–7.) The Secretary further claims that the dangerous nature of
the violation, the length of time the violation existed, and Respondent’s knowledge of the
violation provide sufficient aggravating circumstances to support the issuance of an order under
section 104(d)(2). (Id. at 7–13.) Campbell County asserts that the Secretary did not satisfy its
burden of persuasion to show that a combustible liquid was present. (Resp’t Br. at 4–5.)
Alternatively, Campbell County claims that additional safety measures mitigated the gravity of
1

Section 56.4102 provides: “[f]lammable or combustible liquid spillage or leakage shall
be removed in a timely manner or controlled to prevent a fire hazard.”
2

Section 56.11001 provides: “[s]afe means of access shall be provided and maintained to
all working places.
3

The S&S terminology is taken from section 104(d)(1) of the Mine Act, 30 U.S.C.
§ 814(d)(1), which distinguishes in gravity violations that “could significantly and substantially
contribute to the cause and effect of a . . . mine safety or health hazard.”
4
The unwarrantable failure terminology is taken from section 104(d)(1) of the Mine
Act, 30 U.S.C. § 814(d)(1), which establishes more severe sanctions for any violation that is
caused by the “unwarrantable failure of [an] operator to comply with . . . mandatory health or
safety standards.”
5

In this decision, the hearing transcript, the Secretary’s exhibits, and Campbell County’s
exhibits are abbreviated as “Tr.,” “Ex. P–#,” and “Ex. R–#,” respectively.

36 FMSHRC Page 2580

the violation and the operator’s efforts to repair the violative leak mitigate the level of
Respondent’s negligence. (Resp’t Br. at 5–7.)
For Order No. 8542431, the Secretary contends Respondent failed its duty under
30 C.F.R. § 56.11001 to maintain safe access to a workplace. (Sec’y Br. at 15–17.) The Secretary
asserts that an accumulation of rock material made access to the mine’s rock crusher unsafe. (Id.)
He further claims that the duration of the violation’s existence and the operator’s knowledge of
the violation were sufficient aggravating factors to support the issuance of an order under section
104(d)(2). (Id. at 16–25.) Campbell County contends the area where the accumulation occurred
was not a working place and, alternatively, disputes the Secretary’s allegations about the danger
posed by the debris and the length of time the debris was present. (Resp’t Br. at 7–15.)
Accordingly, the following issues are before me: (1) whether the Secretary has carried his
burden of proof that Respondent violated the Secretary’s mandatory health or safety standards
regarding the removal of spills involving flammable or combustible liquids; (2) whether the cited
conditions violated the Secretary’s mandatory health or safety standards regarding safe access to
working places; (3) whether the record supports the Secretary’s assertions regarding the gravity
of the alleged violations, including the S&S determinations; (4) whether the record supports the
Secretary’s assertions regarding Campbell County’s negligence, including the unwarrantable
failure determinations, in committing the alleged violations; and (5) whether the Secretary’s
proposed penalties are appropriate.
III. FINDINGS OF FACT
The Campbell County Highway Department owns and operates the County Quarry in
Jacksboro, Tennessee. Campbell County mines and crushes stone at the County Quarry for use
on the county’s roads. (Tr. 228:6–10.) Campbell County employs four workers at the County
Quarry. (Tr. 162:2–10.) Among its equipment, Campbell County employs a rock crusher to grind
larger pieces of rock into gravel. The mine also employs a John Deere 544G front-end loader to
move and load rock. (Tr. 46:15–19.)
On June 22, 2010, MSHA Inspector Robert McPheeters and his supervisor, Inspector
Don Ratliff, visited the County Quarry as part of a regular biannual inspection of the Mine.
(Tr. 33:11–14.) McPheeters had extensive experience as a mining safety inspector, working for
thirty-three years as a state or federal inspector, including thirteen years for MSHA.
(Tr. 24:11–28:16.)
A.

Order No. 8542424: The John Deere Loader

Prior to his visit, McPheeters looked at past MSHA inspection reports to check for any
history of violations at the mine. (Tr. 37:1–25.) McPheeters’ review revealed a history of
citations and orders issued under section 104(a) and (d) of the Mine Act. (Tr. 39:10–12,
42:11–19.) Upon arriving at the mine, McPheeters and Ratliff also examined the mine’s pre-shift
safety inspection reports, which included notes indicating the presence of a leak on the mine’s
John Deere front-end loader. (Tr. 57:4–6.)

36 FMSHRC Page 2581

Along with quarry Safety Director Samuel Franklin, inspectors McPheeters and Ratliff
examined the mine’s John Deere 544G front-end loader. (Tr. 46:12–20.) The front-end loader
has a single-person cab. (Tr. 47:14–23.) The cab stands seven to eight feet above the ground and
has one entry door. (Tr. 47:6–23) The vehicle’s cab also has windows on all sides.
(Tr. 47:22–23.) Although not required by law, the cab possessed a fire extinguisher. (Tr. 48:7.)
At the mine, an employee alerted McPheeters to a potential problem with the front-end
loader, telling the inspector that a valve or hose in the machine was leaking. (Tr. 50:18–21.)
Campbell County’s Franklin testified that one of the inspectors asked him to remove a rubber
mat covering the floor of the vehicle’s cab before checking the interior. (Tr. 149:10–11.) Upon
inspection of the cab floor, McPheeters found an oily sheen across the entire floor and a puddle
of brown, oily fluid in the corner. (Tr. 48:12–49:19.) McPheeters identified the brown liquid as
oil-based hydraulic fluid. (Tr. 48:19.) The fluid was mixed with dirt. (Tr. 51:21–22.)
The inspectors observed that the mine’s workplace examination records first noted the
presence of a leak of hydraulic fluid in January 2010, five months prior to the June 22 MSHA
inspection. (Tr. 115:14.) Yet, Campbell County’s records revealed no attempts to repair the
hydraulic fluid leak. (Tr. 125:21–126:2.)
Based on his observations, Inspector McPheeters issued Order No. 8542424, alleging a
violation of 30 C.F.R § 56.4102:
Flammable or combustible liquid spillage or leakage was not
removed in a timely manner or controlled to prevent a fire hazard.
On the John Deere 544G loader, a hydraulic leak exist[ed] in the
cab. The floor is covered with oil and employees are exposed to a
fire or burn hazard. The mine operator has engaged in aggravated
conduct constituting more than ordinary negligence. This violation
is an unwarrantable failure to comply with a mandatory standard.
(Ex. P–4 at 1.) McPheeters designated the order as an S&S violation affecting one person and
characterized the Campbell County Highway Department’s negligence as “high” and as an
unwarrantable failure to comply with a mandatory health or safety standard (Id.) Because of the
mine’s history of citations and orders under section 104(d)(1) of the Mine Act, McPheeters
issued a closure order under section 104(d)(2) for the alleged violation.
B.

Order No. 8542431: The Hammer Mill

After examining the front-end loader, the MSHA inspectors checked the mine’s rock
crusher, which they generally referred to as the “hammer mill.” (Tr. 96:14–15.) The hammer mill
is a big piece of equipment used to reduce large rocks to a size suitable for use by the Campbell
County Highway Department. (Tr. 70:14–15.) The hammer mill operates almost continually
when the mine is open. (Tr. 178:1–10.) The machine’s design causes material to be expelled
during the crushing process. (Tr. 172:6–8.) To prevent this expulsion of material, the hammer
mill is equipped with chains covering the ejection points. (Tr. 168:14–25.)

36 FMSHRC Page 2582

A miner operates the hammer mill remotely from a stand located approximately 100 feet
away from the crushing device. (Tr. 161:2.) However, workers must still access the area
immediately surrounding the crusher device to perform occasional repairs and weekly
maintenance. (Tr. 161:6–13.) To facilitate those repairs and maintenance, Campbell County
installed an elevated walkway around the hammer mill. (Tr. 228:25–229:10.) The main portion
of the walkway is approximately eight feet long, thirty inches wide, and stands about eight feet
off the ground. (Tr. 71:5–14.) The walkway has guard rails around the outer edge.
(Tr. 73:17–20.) The walkway runs around the side of the hammer mill and then reaches a small
platform area that is level with the walkway. (Tr. 185:4–7.) A feeder runs across the small
platform and connects to the hammer mill. (Tr. 182:23–183:3.) The feeder stands approximately
four feet above the walkway and platform. (Tr 73:10–13.) A small catwalk branches off from the
platform and runs to other parts of the rock crusher. (Tr. 183:21–184:17.)
Upon inspecting the elevated walkway, Inspector McPheeters discovered an
accumulation of rock material six inches to a foot in depth. (Tr. 73:21–22.) The material covered
the entire width of the elevated walkway and stretched a length of four to five feet. (Tr.
74:7–15.) The material, which included rocks ranging from the size of gravel to the size of a fist,
had spilled out of the hammer mill where the feeder overhangs the walkway. (Tr. 73:5–9.)
McPheeters testified that during the inspection an employee at the mine told him the hammer
mill was missing chains that would prevent rock from being thrown out of the mill. (Tr.
97:12–15.)
When looking at the County Quarry’s workplace records, McPheeters discovered that the
accumulated material had been noted on June 16, six days prior to the inspectors’ visit, but with
no indication it had been cleaned up. (Tr. 79:18–21.) Franklin, the mine’s safety director,
testified that the hammer mill would take several days to expel the quantity of rock McPheeters
found on the walkway. (Tr. 178:2–4.)
Based on his observations, McPheeters issued Order No. 8542431, alleging a violation of
30 C.F.R. § 56.11001:
Safe means of access was not provided and maintained to all
working places. At the primary plant the walkway adjacent to the
hammer mill had a build up of rock material about six inches to a
foot deep. Employees that work in this area are exposed to a trip or
fall hazard. This condition was noted on work place exams;
however, it was not corrected.
(Ex. P–18 at 1.) McPheeters designated Order No. 8542431 as an S&S violation affecting one
person and characterized Campbell County’s negligence as “high” and as an unwarrantable
failure to comply with a mandatory health or safety standard. (Id.)

36 FMSHRC Page 2583

IV. PRINCIPLES OF LAW
A.

30 C.F.R. § 56.4102 – Spillage and Leakage

Section 56.4102 requires that operators (1) remove or control (2) flammable or
combustible liquid spillage or leakage (3) in a timely manner.
MSHA has defined “flammable liquid” as a “liquid that has a flashpoint below 100̊F.” 30
C.F.R. § 56.2. The Secretary has defined “combustible liquids” to mean “liquids having a flash
point at or above 100̊F.” Id. “Flash point” in turn is defined as “the minimum temperature at
which sufficient vapor is released by a liquid or solid to form a flammable vapor-air mixture at
atmospheric pressure.” Id. As one Commission Judge observed, these expansive definitions
mean the regulation covers nearly every liquid other than water. See Lehigh Southwest Cement
Co., 33 FMSHRC 340, 352–353 (2011) (ALJ).
The determination of whether an operator fails to correct a defect in a timely manner
depends entirely on when the defect occurred and when the operator knew or should have known
of the condition’s existence. See Lopke Quarries, Inc., 23 FMSHRC 705, 715 (July 2001)
(affirming Judge’s ruling that the Secretary must present evidence of when a device became
defective to show a violation of 30 C.F.R. § 56.14100(b) for failing to correct the defect “in a
timely manner”) (footnote omitted). Where an operator has actual knowledge of a violative
condition and nevertheless continues to use the equipment without addressing the hazard,
Commission Judges have found violations of this standard. See, e.g., Consolidated Rebar, Inc.,
35 FMSHRC 3025, 3027–28 (Sept. 2013) (ALJ) (violation established because operator
continued to use vehicle for several days while damaged); Northshore Mining Co., 35 FMSHRC
1006, 1017 (Apr. 2013) (ALJ) (violation established because operator used vehicle for six
months without replacing damaged mirrors); Sweetman Construction Co., 21 FMSHRC 101
(Jan. 1999) (ALJ) (violation established because defective truck was in use at the time the
inspector found the defect); Walker Stone Company, 20 FMSHRC 1225 (Oct. 1998) (ALJ)
(violation established where the operator had been using equipment without functioning
headlights for a long period of time due to a lack of knowledge that MSHA required them).
B.

30 C.F.R. § 56.11001 – Safe Access

Section 56.11001 requires that operators (1) provide and maintain (2) safe means of
access (3) to all working places. The Commission has held that section 56.11001 “comprises the
dual requirements of providing and maintaining safe access to working places.” Watkins Eng’rs
& Constructors, 24 FMSHRC 669, 680 (July 2002) (emphasis added) (citation omitted). The
Commission also has concluded that the term “maintain” requires “an operator to uphold, keep
up, continue, or preserve the safe means of access it has provided to a working place.” Lopke
Quarries, 705 at 708. MSHA has defined a “working place” as any place in or about a mine
where work is being performed.” 30 C.F.R. § 56.2.
The Commission has held that in determining whether a broadly worded standard that is
intended to be applied to many factual situations, such as this one, applies to a specific situation,

36 FMSHRC Page 2584

“it is appropriate to evaluate the evidence in light of what a ‘reasonably prudent person, familiar
with the mining industry and the protective purpose of the standard, would have provided in
order to meet the protection intended by the standard.’” Ideal Cement Co., 12 FMSHRC 2409,
2415 (Nov. 1990) (citing Canon Coal Co., 9 FMSHRC 667, 668 (Apr. 1987)). Applied to section
56.11001, the standard imposes an obligation on the operator to make each means of access to a
working place safe unless, for example, there is no reasonable possibility that a miner would use
the route as a means of reaching a workplace. The Hanna Mining Co., 3 FMSHRC 2045, 2047
(Sept. 1981).
C.

Significant and Substantial Violations

A violation is S&S “if, based on the particular facts surrounding that violation, there
exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
To establish an S&S violation, the Secretary must prove: “(1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard—that is, a measure of danger to
safety—contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to
will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3–4 (Jan. 1984) (footnote omitted);
see also Buck Creek Coal, Inc. v. Fed. Mine Safety & Health Admin., 52 F.3d 133, 135-36 (7th
Cir. 1995) (affirming ALJ’s application of the Mathies criteria); Austin Power, Inc. v. Sec’y of
Labor, 861 F.2d 99, 104 (5th Cir. 1988) (approving the Mathies criteria).
The Commission has provided guidance to Administrative Law Judges in applying the
Mathies test. The Commission has observed that “the reference to ‘hazard’ in the second element
is simply a recognition that the violation must be more than a mere technical violation—i.e. that
the violation present a measure of danger.” U.S. Steel Mining Co., 3 FMSHRC 822, 827 (Apr.
1981). The Commission also has indicated that “[t]he correct inquiry under the third element of
Mathies is whether the hazard identified under element two is reasonably likely to cause injury.”
Black Beauty Coal Co., 34 FMSHRC 1733, 1742–43 & n.13 (Aug. 2012). Finally, the
Commission has specified that evaluation of the reasonable likelihood of injury should be made
assuming continued 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 Commission has determined that unwarrantable failure is aggravated conduct
constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001
(Dec. 1987). It is characterized by “indifference,” a “serious lack of reasonable care,” “reckless
disregard,” or “intentional misconduct.” Id. at 2003–04. Whether conduct is “aggravated” in the
context of unwarrantable failure is determined by looking at all the facts and circumstances of a
case to see if aggravating or mitigating factors exist. The Commission has identified several such
factors, including: (1) the length of time a violation has existed, (2) the extent of the violative
condition, (3) whether the operator has been placed on notice that greater efforts are necessary
for compliance, (4) the operator’s efforts in abating the violative condition, (5) whether the

36 FMSHRC Page 2585

violation was obvious, (6) whether the violation posed a high degree of danger, and (7) the
operator’s knowledge of the existence of the violation. See IO Coal Co., 31 FMSHRC 1356,
1350-51 (Dec. 2009). These factors are viewed in the context of the factual circumstances of
each case. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). All relevant facts and
circumstances of each case must be examined to determine whether an actor’s conduct is
aggravated or mitigating circumstances exist. Id.
V. FURTHER FINDINGS OF FACT, ANALYSIS, AND CONCLUSIONS OF LAW
A.

Order No. 8542424 – The John Deere Loader
1.

Further Findings of Fact
a.

The Presence and Flammability of Hydraulic Fluid

Respondent claims the Secretary did not demonstrate that the material in the front-end
loader’s cab was hydraulic fluid. (Resp’t Br. at 2, Resp’t Reply at 2.) Respondent’s argument
lacks support in the evidence. Here, McPheeters, an MSHA inspector with thirty-three years of
experience working at mines, identified the material on the cab floor as hydraulic fluid that had
likely leaked from the front-end loader’s steering column. (Tr. 48:19.) At the hearing,
McPheeters testified that an employee of the mine alerted the MSHA inspectors to the hydraulic
fluid leak before the inspectors checked the vehicle. (Tr. 50:18–21.) Moreover, Campbell
County’s own witness, Franklin, testified that the front-end loader had leaked oil into the cab
intermittently for several months. (Tr. 217:2–218:4.) Franklin further testified that the mine had
attempted to repair the leak by replacing seals in the hydraulic system. (Tr. 217:2–218:4).
Finally, Franklin testified that he cleaned the pooled liquid from the cab floor with Oil-Dri, a
material specifically designed for cleaning oil-based fluids. (Tr. 157:10–15.) Indeed, Campbell
County’s witnesses failed to provide any evidence suggesting an alternative origin for the fluid
in the vehicle’s cab, or even questioning the Secretary’s assertion that the spill was of hydraulic
fluid. Given the evidence before me, I find that the accumulated material on the cab floor of the
John Deere loader was hydraulic fluid.
Respondent also argues that the Secretary has not demonstrated that the accumulated
fluid was flammable or combustible.6 (Resp’t Br. at 2.) At the hearing, however, McPheeters
6

Relying heavily on LeBlanc’s Concrete and Mortar Sand Co., 11 FMSHRC 660 (1989)
(ALJ), Respondent claims 30 C.F.R. § 56.4102 requires the Secretary to collect a sample of the
accumulated liquid and submit it to rigorous laboratory testing. (Resp’t Br. at 5.) Respondent’s
argument runs counter to the text of the regulation. MSHA has defined the terms of section
56.4102 broadly enough to cover most liquids. See Lehigh, 33 FMSHRC at 352–53. The Judge
in LeBlanc’s relied on the definitions of “flammable” and “combustible,” rather than the
definitions for “flammable liquid” and “combustible liquid.” LeBlanc’s, 11 FMSHRC at 674.
Furthermore, while some MSHA regulations require laboratory testing to prove a violative
condition, the Commission has not extended that requirement to section 56.4102. See Old Ben
(continued…)

36 FMSHRC Page 2586

credibly testified from his extensive experience that hydraulic fluid is combustible.
(Tr. 52:7–53:3.) Given his experience, I find McPheeters’ testimony persuasive. Harlan
Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998) (relying on the opinion of an
experienced inspector to conclude that substantial evidence supported an ALJ’s S&S
determination). Meanwhile, Campbell County again curiously failed to present any evidence at
hearing suggesting the fluid in the cab was not flammable.
Based on the evidence before me, I therefore find that the accumulated liquid was
hydraulic fluid and that it was combustible.
b.

The Duration of the Spill

Respondent also disputes the amount of time the leaked hydraulic fluid was present in the
front-end loader’s cab. (Resp’t Br. at 5–7.) Here, Inspector McPheeters testified the hydraulic
fluid spill was first noted in equipment examination reports in January 2010, five months prior to
the MSHA inspection. (Tr. 59:20–23.) Although McPheeters did not specifically note any
subsequent equipment examination reports showing the presence of hydraulic fluid, the MSHA
investigator testified that his use of the term “since” in his notes suggested he had found other
examination reports noting the presence of the fluid after January. (Tr. 59:20–23,
134:18–135:23.) McPheeters also testified that Respondent did not produce any repair records
showing him the front-end loader’s leak had been remedied. (Tr. 89:6–19.) McPheeters further
noted the quantity of hydraulic fluid present in the cab and the presence of dirt mixed into the
fluid suggested the leakage was present “for sometime.” (Tr. 51:15–52:6.) Accordingly,
McPheeters inferred the material had been present since first reported in January. (Tr. 63:11–22.)
At the hearing, Respondent presented testimony that the mine attempted to repair the
front-end loader after the leak’s discovery in January. Assistant Superintendent Estel Muse, who
oversaw repair of equipment at the mine during the period, claimed Campbell County had
worked on the front-end loader three times, but he was unsure of the precise dates of the work.
(Tr. 247:11–15.) Safety Director Franklin likewise testified the operator attempted to repair the
leak twice prior to the June 22 inspection, but admitted neither attempt permanently solved the
problem. (Tr. 153:8–154:2.) Superintendent Potter testified that the county purchased a set of
seals specific for the 544G John Deere front-end loader on November 3, 2009, over seven
months prior to McPheeters’ inspection, and that the seals were used on the machine.
(Tr. 227:1–20.) Nevertheless, Campbell County failed to provide any record of repairs for
the front-end loader during that period. Speaking specifically of the leak McPheeters cited on
June 22, Franklin testified the accumulated liquid was present for at least two days prior to the
inspection. (Tr. 215:14–25.)

6

(…continued)
Coal Co., 2 FMSHRC 2806 (Oct. 1980) (upholding the use of band sample method to prove
violations of 30 C.F.R. § 75.403). More importantly, decisions by Administrative Law Judges
are not precedential. 29 C.F.R. § 2700.69(d). Thus, I am not bound by LeBlanc’s, and I chose not
to follow it.

36 FMSHRC Page 2587

Based on the above testimony, I conclude the leak in the front-end loader’s hydraulic
system existed from January until the MSHA inspection. Campbell County’s efforts to repair the
loader were repeatedly ineffectual. I further find the specific accumulation forming the basis of
the Secretary’s claim existed for at least two days prior to the examination.
2.

Analysis and Conclusions of Law
a.

Violation of 30 C.F.R. § 56.4102

Inspector McPheeters issued Order No. 8542424 for Campbell County’s failure to clean
up an accumulation of hydraulic fluid in the cab of the mine’s John Deere 544G front-end loader.
(Ex. P–4.) I have already found that the accumulated liquid present in the John Deere loader’s
cab was hydraulic fluid, which is a combustible liquid as defined by 30 C.F.R. § 56.2. I therefore
determine that an accumulation of combustible material was present and not controlled,
satisfying the first and second elements of a violation of § 56.4102.
Consequently, this violation turns on whether Campbell County failed to remove the
leakage in a timely manner. As discussed above, I have found that the defect causing the leak
existed for five months prior to the MSHA inspection. I have also found that the accumulation of
hydraulic fluid on June 22 existed for at least two days, during which the operator knew of the
leaked fluid and still operated the vehicle.
Given the evidence before me, I determine that Campbell County failed to remove the
leakage in a timely manner. The repeated recurrence of the leak, despite numerous, inadequate
repair efforts throughout the five-month period leading up to MSHA’s inspection, put Campbell
County on notice that it needed to be vigilant in checking for new accumulations of hydraulic
fluid. Furthermore, Campbell County had actual knowledge that the combustible liquid lay at the
feet of the front-end loader’s operator for two days, yet failed to clean up the liquid. Considering
the danger posed by having a pool of combustible liquid at the feet of a worker in a vehicle eight
to ten feet off the ground, as well as the ease with which the material could be removed, the
operator could be expected to remove the hydraulic fluid immediately upon noticing the
accumulation. In fact, Franklin testified that he was able to clean the accumulation with a
pressure washer and Oil-Dri. (Tr. 157:10–15.) Under the circumstances, two days certainly was
not a timely response. Thus, I conclude that Respondent violated 30 C.F.R. § 56.4102.
b.

Gravity and S&S Determination

Campbell County’s violation of section 56.4102 establishes the first element of the
Mathies test for an S&S violation. The second element of the Mathies test asks whether the
violation contributed to a discrete safety hazard; that is, whether the violation provides a measure
of danger to safety. Here, Inspector McPheeters credibly testified that accumulated hydraulic
fuel contributed to the safety hazard of a fire in the cab of the front-end loader, as well as the
hazard of slipping and falling from the vehicle. (Tr. 55:10–18.) Respondent claims that the risk
of a fire was negligible because the vehicle’s operator did not smoke. (Resp’t Br. at 13.)

36 FMSHRC Page 2588

However, McPheeters testified that the electrical components in the vehicle’s cab or a related
fire in the engine of the vehicle also could light the hydraulic fluid on fire. Accordingly, I
determine that the violation contributed to the discrete safety hazard of a fire in the vehicle cab.
The Secretary has therefore met his burden of proof on the second element of Mathies.
The third and fourth elements of Mathies ask whether the safety hazard is reasonably
likely to contribute to a reasonably serious injury. The Secretary claims that injuries in this
instance are reasonably likely to be fatal. I recognize that the opinion of an experienced inspector
is entitled to significant weight. Harlan, 20 FMSHRC at 1278–79. Based on the quantity of
hydraulic fluid and its location in the cab of the vehicle, Inspector McPheeters determined that
injuries from a fire were reasonably likely to be serious. (Tr. 58:9–11.) The potential for the
vehicle operator to slip on the fluid and fall eight feet to the ground when evacuating in an
emergency compounded the potential for a serious injury. (Tr. 55:10–18.)
Campbell County contends that several factors mitigate the threat of a serious injury
posed by a fire in the vehicle’s cab. First, Respondent argues that a second point of egress
through the cab window increases a miner’s chances of escaping from a dangerous fire. (Resp’t
Br. at 13.) Respondent adds that the presence of a fire extinguisher also reduces the chances of a
fire causing serious injuries. (Id.) Finally, Campbell County argues that the rubber mat on the
floor reduces any risk of the operator slipping and falling. (Id.)
The evidence and the law do not support Respondent’s arguments. A second exit through
the cab window adds only a negligible degree of safety. A miner forced to scramble out the cab
window of his vehicle during a fire faces an increased risk of falling from the vehicle.
McPheeters already testified that the accumulation of hydraulic fluid increased the risk of a
potentially fatal fall from the vehicle cab. (Tr. 55:16–18, Tr. 129:19–130:4.) Next, the
Commission has consistently rejected the argument that extraneous safety measures such as the
front-end loader’s fire extinguisher reduce the likelihood of a serious injury. See Buck Creek,
52 F.3d at 136 (indicating that the fact a mine operator “has safety measures in place to deal with
a fire does not mean that fires do not pose a serious safety risk to miners”). Finally, while a
rubber mat may make the floor less slippery, McPheeters testified it would not prevent a fire, the
primary danger involved in this case. (Tr. 130:17–131:7.)
Given the evidence before me, I determine that the Secretary has satisfied his burden of
proving that reasonably serious injuries were reasonably likely to occur, thus satisfying Mathies’
third and fourth elements. Based on my above determinations, I therefore conclude that this
violation was appropriately designated as S&S.
c.

Negligence and Unwarrantable Failure

The Secretary designated this violation as an unwarrantable failure and characterizes
Campbell County’s negligence as high. In support of his allegations, the Secretary points to the
length of time Campbell County had knowledge of the leak’s existence. The Secretary further
emphasizes that Campbell County provided no evidence of mitigating circumstances during the
inspection or in the following closeout conference. (Sec’y Br. at 10–13.)

36 FMSHRC Page 2589

Looking to the aggravating factors in the unwarrantable failure determination, five of the
seven factors favor the Secretary’s unwarrantable failure allegation. First, the violative
conditions lasted for a long time. Respondent’s own witness testified that the hydraulic fluid
accumulation was present in the cab for at least two working days prior to the inspection, during
which time the front-end loader was in regular use. When a hazard is found to exist, it must be
addressed. See Buck Creek, 52 F.3d at 133 (finding unwarrantable failure where cited
accumulation hazard must have been present at least since the previous shift). Considering the
ease with which the fluid could be removed, allowing the combustible material to persist for two
days exhibited a lack of care. Furthermore, the front-end loader had a defect in the hydraulic
system of its steering column for approximately five months prior to the inspection on June 22,
2010. Over that period, Campbell County’s safety director noted accumulations of hydraulic
fluid in the loader’s cab at least five times. Second, Campbell County had actual knowledge of
the accumulation of hydraulic fluid in the front-end loader’s cab. Third, Campbell County’s
actual knowledge of the violative conditions on June 22 and its repeated failure to repair the leak
over the previous five months put Respondent on notice that greater efforts were necessary to
come into compliance with the regulation. The Commission has indicated that a mine operator’s
own safety reports can serve to put the operator on notice that its existing abatement efforts are
insufficient. See Peabody Coal Co., 14 FMSHRC 1258, 1262 (1992) (holding that a mine’s
preshift examination books were “relevant in demonstrating that [the operator] had prior notice
that a problem with coal and coal dust accumulations existed in the cited area, and that greater
efforts were necessary to assure compliance. . . .”). Fourth, the extent of the violative condition
was significant. The leaked fluid had formed a six-inch puddle at the feet of the vehicle’s
operator and was smeared across the cab floor. As such, the hazard posed a high degree of
danger to the vehicle operator, which applies to the fifth factor. As I have already held, the
violation was S&S and reasonably likely to cause a fatal injury.
In its defense, Respondent first contends that the presence of a rubber mat on the cab
floor obscured the leakage. But the repeated incidences of the leaked hydraulic fluid in the
months leading up to the MSHA inspection put Campbell County on notice that it should be
extra vigilant in examinations of the front-end loader. Just as an apartment owner who covers his
leaking pipes with a rug gets no reprieve when the apartment below floods, Campbell County
merits no sympathy for having a mat covering the loader’s floor.
Finally, Respondent claims that its efforts to fix the leak by replacing seals on the
hydraulic lines should weigh against the Secretary’s allegations. Campbell County’s good
intentions garner it minimal credit. As the Commission has observed: “Good intentions [] and
good faith are not the same. Good faith requires vigilance about one’s responsibilities,
commitment to finding the resources to get the job done, and accountability for failure.”
Consolidation Coal Co., 22 FMSHRC 328, 332 (2000). Perhaps if this were the first or even the
second time that the hydraulic fluid leak had arisen, I would credit Respondent’s abatement
efforts. But the condition was noted no less than five times. Campbell County’s abatement
efforts amount to treating a bullet wound with a Band-Aid; at some point, the efforts must
become inadequate to any reasonable observer.

36 FMSHRC Page 2590

In light of Campbell County’s failure to address the leakage of combustible material in
the cab of the front loader, I conclude that the Secretary has met his burden of proving
unwarrantable failure.
Similarly, I conclude that the Secretary has demonstrated Campbell County’s level of
negligence to be high. See 30 C.F.R. § 100.3(d) at Table X (suggesting “high negligence” where
the “operator knew or should have known of the violative condition or practice, and there are no
mitigating circumstances.”) Here, Respondent knew of the hydraulic fluid leak yet dangerously
allowed violative conditions to remain in the cab. For at least two days, the miner operating the
loader faced potentially serious injuries from a known condition that Respondent failed to
address. Campbell County’s efforts to address the leakage repeatedly proved inadequate to fix
the problem, and thus do not mitigate Respondent’s negligence.
d.

Penalty

The Secretary proposed a $4,000.00 civil penalty for this violation. I have found that this
order was properly designated S&S. I also have found Campbell County’s negligence to be
“high” and its actions to amount to an unwarrantable failure. Under section 110(i) of the Mine
Act, I must consider six criteria in assessing a civil penalty: (1) the operator’s history of previous
violations; (2) the appropriateness of the penalty relative to the size of the operator’s business;
(3) the operator’s negligence; (4) the penalty’s effect on the operator’s ability to continue in
business; (5) the violation’s gravity; and (6) the demonstrated good faith of the operator in
attempting to achieve rapid compliance after notification of a violation. 30 U.S.C. § 820(i).
In the two years prior to the MSHA inspectors’ visit on June 22, 2010, Campbell County
received approximately fifty citations or orders for violations of mandatory safety and health
standards. (Ex. P-1.) Considering that the County Quarry employs a modest four miners on site,
such a high number of violations is substantial. Nothing in the record suggests that the penalty
would impinge on Campbell County’s ability to remain in business. Moreover, Campbell County
was highly negligent in allowing the hydraulic fluid accumulation to persist, and the violation
exposed miners to a reasonable risk of fatal injuries. Nevertheless, I acknowledge the small size
of Campbell County’s mining operation and the operator’s rapid efforts to repair the front-end
loader after the June 22 inspection.
The Mine Act sets a minimum penalty of $4,000.00 for an order issued under section
104(d)(2). 30 U.S.C. § 820(a)(3)(B); see Stansley Mineral Resources, Inc., 35 FMSHRC 1177
(May 2013) (holding that Administrative Law Judge cannot reduce penalty below statutory
minimum set under 30 U.S.C. § 820(a)(3)(A) for analogous section 104(d)(1) violation).
Considering all of the facts and circumstances of this matter, I do not see that the
violation deserves a penalty beyond the statutory minimum. Accordingly, I affirm the
Secretary’s proposed penalty and assess the statutory minimum penalty of $4,000.00.

36 FMSHRC Page 2591

B.

Order No. 8542431: The Hammer Mill
1.

Further Findings of Fact
a.

Whether Work Took Place on the Elevated Walkway

Campbell County disputes at length the Secretary’s allegation that the walkway upon
which debris had accumulated was a workplace or the means of access to a workplace for the
purposes of section 56.11001. (Resp’t Br. at 7–10, Resp’t Reply at 2–5.) Campbell County
contends the only work performed on the elevated walkway is “clearing the catwalk of build-up,
which miners are required to do, per quarry rules, as they make their way to the de-activated
hammer mill to perform maintenance and repairs.” (Resp’t Br. at 9.)
The evidence does not support Respondent’s position that work did not take place on the
elevated walkway. In fact, Safety Director Franklin, testified that workers accessed the walkway
at least once a week to grease the machinery. (Tr. 161:9–11.) Indeed, Superintendent Potter
testified that the entire reason for installing the elevated walkway was to provide a safer means
of performing maintenance work on the hammer mill. (Tr. 229:1–10.) In addition to this regular
maintenance, miners accessed the walkway on a daily basis to perform necessary equipment
safety checks. (Tr. 196:9–11.) Workers also occasionally accessed the catwalk branching off of
the main walkway section. (Tr. 188:16–19.) Inspector McPheeters testified the walkway was a
work area because mine employees accessed it to perform regular maintenance on the hammer
mill. (Tr. 143:8–10.) Indeed, the testimony of McPheeters, Franklin, and Potter is
uncontroverted.
All three witnesses agree that work is performed on the platform where the rock material
had accumulated. Based on the evidence before me, I find that work did take placed on the
elevated walkway on a daily basis.
b.

Whether the Rock Material Covered Accessible Parts of the Walkway

Campbell County also asserts that the area containing the accumulation of material
cannot constitute a working place or a means of access under the regulation because the
accumulation was confined to the small area underneath the overhanging feeder. (Resp’t Br.
at 9.) Respondent argues that the low clearance of the feeder makes traversing the area difficult,
and thus not a means of access. (Id.)
Once again, the evidence does not support Respondent’s argument. McPheeters testified
that the rock pile covered nearly four feet of the elevated walkway, leaving no way to navigate
past the rubble without traversing it. (Tr. 82:1–4.) In addition, the Secretary introduced into
evidence photographs showing the accumulated rocks spreading to the edge of the walkway and
completely blocking access to the catwalk. (Ex. P–5.) In the photograph, the debris spread well
beyond the shadow of the feeder. (Id.)

36 FMSHRC Page 2592

Based on this evidence, I find that the accumulation of rubble extended to an accessible
area of the walkway.
c.

The Duration of the Rock Spill’s Existence

Next, Respondent challenges the Secretary’s assertion that the ejected material had been
present on the walkway for approximately a week at the time of the inspection. (Resp’t Reply Br.
at 4.) At the hearing, Inspector McPheeters said the accumulation of debris along the walkway
was noted on June 16, 2010, six days prior to the MSHA inspection. (Tr. 79:16–21.) He also
speculated that the hammer mill would have to run for about a week to eject the amount of rock
found at the site. (Tr. 75:19–76:6.)
In contrast, Superintendent Potter testified that the hammer mill would eject the amount
of material present at the time of the inspection in merely two days. (Tr. 178:2–5.) Respondent
emphasizes that McPheeters did not find any notes identifying the accumulated rock in the
mine’s workplace examination reports subsequent to the initial June 16 notice. (Resp’t Reply Br.
at 4; Tr. 81:13–22.) Notably, however, Respondent presented no specific testimony that anyone
had cleaned the walkway in the time between the June 16 report and the inspection on June 22.
Respondent urges me to make the negative inference that because McPheeters did not note any
report of the debris accumulation subsequent to that of June 16, it therefore follows that
Campbell County cleared the violation. The evidence does not support such a conclusion.
I find that the inspector’s testimony is credible in that a regularly functioning hammer
mill could eject the amount of collected material in one week. Because Potter had greater
specific knowledge of the County Quarry’s hammer mill, I also find credible his testimony that
the hammer mill was functioning more poorly than McPheeters estimated. Furthermore, it is
uncontroverted that the design flaw allowing a mass of material to eject onto the elevated
walkway had been present for longer than a few days. (Tr. 170:22–172:11.)
Based on the evidence before me, I find that the rock spill had lasted at least two days.
Indeed, the defect in the hammer mill causing the material to eject onto the elevated walkway
likely existed since the hammer mill’s installation.
2.

Analysis and Conclusions of Law
a.

Violation of Section 56.11001

Inspector McPheeters issued Order No. 8542431 for Campbell County’s failure to clean
an accumulation of rock debris off the elevated walkway around the mine’s hammer mill. (Ex.
P–5.) To demonstrate a violation of 30 C.F.R. § 56.11001, the Secretary must prove by the
preponderance of the evidence that the operator (1) failed to provide or maintain (2) safe means
of access (3) to a working places.

36 FMSHRC Page 2593

I have already determined that work regularly took place on the elevated walkway and
that the expelled material covered the walkway where workers could walk. For the
debris-covered section of the walkway to constitute means of access to a working area under
section 56.11001, therefore, I need only find there was a reasonable possibility that a miner
would access that area. Hanna Mining, 3 FMSHRC at 2047.
Here, the rubble was directly adjacent to access points to grease the hammer mill.
Furthermore, a worker would have to traverse the material to reach the catwalk for equipment
examinations. Thus I determine it is reasonable to believe a miner would have reason to walk
across the walkway covered in debris to perform work.7 Based on the evidence before me, I
conclude that the walkway around the hammer mill was a working area. The Secretary has
therefore satisfied the second and third elements necessary to show a violation of the regulation.
As there is no question that Campbell County provided safe access to the hammer mill by
constructing the walkway,8 the case turns on whether Campbell County maintained the walkway
in a reasonably prudent manner.
At the hearing, Inspector McPheeters testified that accumulation of material presented a
distinct trip-and-fall hazard to miners working on the walkway, and that no amount of ejected
material would be safe. (Tr. 78:10–11, 77:4–8.) He also explained that the reasonably prudent
course of action for the mine would be to repair the hammer mill to prevent the escape of
material onto the elevated walkway. (Tr. 77:15–19.) In contrast, Campbell County claims that
the ejection of material is a natural function of the hammer mill and that the Secretary’s demands
would require the mine to shut down the hammer mill several times per day to clean the
accumulated debris. (Resp’t Br. at 14; Tr. 178:5–9.)
7

Rather than attempting to show there was no reasonable possibility of miners crossing
the debris pile, Campbell County contends its use of signs blocking the entrance to the elevated
walkway while the hammer mill was in operation precludes the walkway from being considered
a working area. (Resp’t Br. at 8–9.) Respondent’s argument, which is devoid of any citation to
law, essentially claims that only areas in which work is currently taking place are subject to the
Secretary’s regulations. Such an interpretation effectively would require inspectors to observe
work in progress in the area before MSHA could find a violation. Thus, an operator could escape
penalty by shutting down operations upon the inspector’s arrival. The Commission has
consistently rejected this argument. See Nacco Mining Co., 9 FMSHRC 1541, 1545–51 (Sept.
1987).
8

Respondent appears to contend that it met its duty under section 51.11001 simply by
building the elevated walkway. (Resp’t Br. at 9.) Respondent argues that upholding Order No.
8542431 would tacitly deter mine operators from providing such safety measures. (Id.) This
contention is inapposite. The question of whether providing maintenance on the hammer mill
from ladder-top would constitute safe access is not relevant to the question of whether Campbell
County maintained the walkway in a reasonably prudent manner. Simply stating that its conduct
could have been worse is not evidence that the steps Campbell County took fulfilled the high
standard of safety required under the Mine Act and the Secretary’s mandatory health and safety
regulations.

36 FMSHRC Page 2594

Respondent’s argument again is inapposite. By their nature, safety regulations may
impede mining operations to ensure that workers are safe. In passing the Mine Act, Congress
prioritized worker safety over mine output. In allowing the rock debris to accumulate around the
hammer mill for days at a time, Campbell County prioritized output above the safety of its
workers. At the very least, reasonable prudence would require the operator to clean up the debris
on a daily basis to protect miners performing the daily workplace inspections. It is unclear from
the record how daily cleaning would require the operator to alter the hammer mill’s operating
schedule. By Superintendent Potter’s own admission, the ejected rock took at least two days to
accumulate. Thus, Campbell County did not even reach the low bar of daily cleaning. I find
McPheeters’s testimony credible, and I determine that a mine’s reasonable response to the
continual ejection of material would be to modify the hammer mill to prevent the debris from
spilling out. Campbell County eventually did exactly this, but only when faced with a work
closure order from MSHA. (Tr. 169:2–13.)
Consequently, I determine that the Secretary has satisfied all three elements to show a
violation of section 56.11001. The area around the hammer mill was a working place as defined
in the regulation, and the elevated walkway was a means of access to that working place.
Campbell County therefore had a duty to maintain the walkway in a reasonably safe manner.
Campbell County failed in this duty by allowing the accumulation of rock material that created a
risk of tripping and falling.
b.

Gravity and S&S Determination

Campbell County’s violation of section 56.11001 establishes the first element of the
Mathies test for an S&S violation. Second, I must assess whether the violation contributed to a
discrete safety hazard. Inspector McPheeters credibly testified that the debris on the walkway
threatened to trip a miner traversing the area. (Tr. 78:10–11.) McPheeters judged that the
material, which included fist-sized rocks, was six to twelve inches high. (Tr. 73:21–22.) I find
his testimony credible, and determine that the loose rubble in the middle of a walkway presented
a discrete risk of causing a worker to fall and suffer injury.
Next, I must determine whether the safety hazard is reasonably likely to contribute to an
injury. In support of its assertion that the rubble pile would reasonably likely result in injury, the
Secretary points to the size of the rock pile and the regularity with which miners accessed the
walkway to perform maintenance and daily workplace examinations. (Sec’y Br. at 19.) Campbell
County, on the other hand, emphasizes the low frequency with which miners access the hammer
mill and the mine’s efforts to limit access to the mill by chaining off walkway entrances while
the mill is operational. (Resp’t Br. at 13–14.) Campbell County also claims that the overhanging
feeder belt forces miners in the area to move slowly, further reducing the risk of an injury
occurring. Again, the evidence does not support Respondent’s argument. The debris pile covered
the entire width of the walkway in parts. A miner performing workplace evaluations would be
forced to traverse the pile of rocks on a daily basis. I determine that a miner traversing the rock
accumulation regularly could reasonably be expected to trip and fall, resulting in injury.

36 FMSHRC Page 2595

Finally, I must determine whether the injury caused would likely be serious. The
Secretary claims the injuries in this instance are reasonably likely to be permanently disabling.
(Sec’y Br. at 19.) McPheeters testified that the resulting fall from tripping on the walkway could
result in a damaged back, broken bones, torn tendons, or a head injury. Respondent contends
that, because a railing enclosed the walkway and because the overhanging feeder prevented
workers from moving quickly through the area, any injuries resulting from a fall likely would be
minor. In addition, Respondent suggests that a trip and fall hazard is insufficient to support a
designation of S&S without the presence of aggravating circumstances.9 (Resp’t Br. at 14.)
Looking at the evidence, I am convinced that the injury likely to result from a fall on the
walkway would not be permanently disabling. Given the presence of the railing and the fact that
miners did not access the walkway while the hammer mill was operational, the injuries resulting
from a fall on the platform likely would be limited in severity. In this context, the kind of injuries
McPheeters describes are more likely to cause lost work time than to be permanently disabling.
Accordingly, I reduce the type of injury in Order No. 8542431 from “permanently disabling” to
“lost workdays or restricted duty”
Nevertheless, the Commission has consistently recognized that muscle strains, sprained
ligaments and tendons, and broken bones are injuries of a sufficiently serious nature to support
an S&S designation. S & S Dredging Co., 35 FMSHRC 1979, 1981 (July 2013) (overturning a
judge’s ruling that muscle strains were insufficient to underpin an S&S designation); see, e.g.,
Maple Creek Mining, Inc., 27 FMSHRC 555, 562–63 (Aug. 2005) (affirming Judge’s conclusion
that serious injuries such as a leg or back injury would arise from the failure to maintain an
escapeway in a safe condition); Buffalo Crushed Stone Inc., 19 FMSHRC 231, 238 n.9 (Feb.
1997) (concluding that slipping on a walkway would result in reasonably serious injuries such as
a finger or a wrist fracture); Southern Ohio Coal Co., 13 FMSHRC 912, 918 (June 1991)
(affirming Judge’s conclusion that a trip and fall would result in reasonably serious injuries such
as “sprains, strains, or fractures”).
Given the evidence before me, I determine that the Secretary has met his burden of
proving that reasonably serious injuries were reasonably likely to occur, thus satisfying the
fourth element of Mathies. Based on my above determinations, I therefore conclude that this
violation was appropriately designated as S&S.
c.

Negligence and Unwarrantable Failure

The Secretary designated this violation as an unwarrantable failure, characterizing
Campbell County’s negligence as high. In support of this allegation, the Secretary points to the
obvious nature of the risk and the length of time the problem existed. (Sec’y Br. at 23.) In
9

Respondent’s argument relies on Hamilton Pipeline, Inc., 24 FMSHRC 915 (Oct. 2002)
(ALJ). In Hamilton, the judge determined on the evidence that a single crooked step on a short,
narrow stairway bordered by two railings did not present a risk of injury resulting in lost
workdays. Id. at 924–925. Those same facts are not present in the case before me. Furthermore,
decisions by Administrative Law Judges do not constitute binding precedent. 29 C.F.R.
§ 2700.69(d).

36 FMSHRC Page 2596

response, Campbell County asserts that its efforts to limit access to the walkway during
operation and its policy of cleaning the walkway whenever work must be performed in the area
mitigate the operator’s negligence. (Resp’t Reply Br. at 8.)
Each of the Commission’s unwarrantable failure factors suggests Respondent’s conduct
was aggravated. First, the extent of the violation was significant, spreading across half the length
of the eight-foot walkway and covering nearly the entire width of the walkway, as well as the
platform directly under the feeder. Second, Campbell County’s own safety inspections put the
operator on notice regarding the need to clean the accumulating debris. Furthermore, Respondent
had been cited for violations of section 56.11001 four times in the two years prior to the order in
question, so it was well aware of the requirements of the regulation. (Tr. 84:7–14.) Third, the
operator did not provide any evidence of specific efforts it had made to prevent the material from
collecting, other than the assertion that miners servicing the hammer mill were told to grab both
grease and a shovel to clear their way. Indeed, Campbell County did not clear the rock piles on
even a daily basis and instead apparently adopted a policy of allowing the material to collect for
days at a time. Fourth, the violation was obvious, accumulating quickly and spreading across the
breadth of the walkway. Furthermore, the material was ejected in the direct line of site of the
machine’s operator. Because of the rapidity with which the hammer mill expelled material, the
operator either knew or should have known of the existence of the accumulated debris on June
22. Sixth, as I determined above, the trip-and-fall hazard was dangerous because it could result
in broken bones, torn tendons, or a head or back injury.
In response, Campbell County suggests its negligence is mitigated because the debris
accumulation took place over two days instead of the inspector’s estimated week. (Resp’t Reply
Br. at 4.) Respondent’s argument is unsupported. It defies logic to suggest that the operator
should be granted leniency because the machine creating a hazard functioned worse than the
inspector believed when he found the violation. In light of the obviousness of the violation and
the significant degree of danger, leaving the material on the walkway for two days is aggravated
conduct. Cf. Midwest Material Co., 19 FMSHRC 30, 32–37 (Jan. 1997) (finding unwarrantable
failure for extremely unsafe violation that lasted only minutes).
Campbell County next argues that its negligence is mitigated because the hammer mill
was operating within its design parameters. (Resp’t Br. at 14.) Respondent’s reliance on the
hammer mill’s safety manual is misplaced. The manual warns of the danger of ejected material
and explicitly states that alterations may be necessary to conform to federal and state safety
regulations. (Ex. R–3.)
Similarly, Campbell County Highway Superintendent Potters testified expansively on the
pristine safety record the County Quarry enjoys. While it may be true that Campbell County has
a commendable record of injury-free operations, MSHA does not need an injury to find a
violation of a mandatory health or safety standard. The Mine Act is a strict liability statute.
Western Fuels-Utah, Inc. v. FMSHRC, 870 F.2d 711, 716 (D.C. Cir. 1989).
In light of these factors, I find that the Secretary has met his burden of showing that
Respondent’s conduct was aggravated, amounting to an unwarrantable failure.

36 FMSHRC Page 2597

Likewise, I determine Campbell County’s negligence to be high. See 30 C.F.R.
§ 100.3(d) at Table X (suggesting “high negligence” where the “operator knew or should have
known of the violative condition or practice, and there are no mitigating circumstances.”).
Again, the violative conditions were readily apparent and exposed Campbell County’s miners to
significant injuries. Rather than clearing the walkway, however, Campbell County chose to
continue operating the hammer mill.
d.

Penalty

The Secretary also proposed a $4,000.00 civil penalty for this violation. Again, I have
found that this order was properly designated S&S. I have also found Campbell County’s
negligence to be “high” and its actions to amount to an unwarrantable failure.
Turning to the relevant factors for assessing a penalty, I again note the mine’s history of
violations. The record does not show that the Secretary’s proposed penalty would impinge on
Campbell County’s ability to remain in business, but I note that the County Quarry is a small
mining operation. Campbell County’s negligence in allowing the debris accumulation was high,
but the hazard posed only the risk of lost workdays or restricted duty. Finally, Campbell County
swiftly made adjustments to the hammer mill after the MSHA inspection to prevent future debris
accumulations.
The evidence does not support a penalty above the Secretary’s proposed penalty, which is
the statutory minimum penalty allowed for an order issued under section 104(d)(2). 30 U.S.C.
§ 820(a)(3)(B); see Stansley Mineral Resources, 35 FMSHRC at 1177. Accordingly, I hereby
assess a civil penalty of $4,000.00 for this violation.
VI. ORDER
In light of the foregoing, it is hereby ORDERED that Order No. 8542424 is
AFFIRMED. It is further ORDERED that Order No. 8542431 be MODIFIED by changing the
type of injury from “permanently disabling” to “lost workdays or restricted duty.”
WHEREFORE, Respondent is ORDERED to pay a penalty of $8,000.00 within 40 days
of this decision.

/s/ Alan G. Paez
Alan G. Paez
Administrative Law Judge

36 FMSHRC Page 2598

Distribution:
Leslie P. Brody, Esq., U.S. Department of Labor, Office of the Solicitor, 61 Forsyth Street, S.W.,
Room 7T10, Atlanta, GA 30303
Christian Barber, Esq., U.S. Department of Labor, Office of the Solicitor, 211 Seventh Avenue
North, Suite 420, Nashville, TN 37219-1823
Charles W. Kite, Esq., 9925 Tierra Verde Drive, Knoxville, TN 37922
/lct

36 FMSHRC Page 2599

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9958 / FAX: 202-434-9949

September 30, 2014
CONTEST PROCEEDING

HECLA LIMITED,
Contestant

Docket No. WEST 2011-1390-RM
Order No. 8565445; 08/16/2011

v.

Mine: Lucky Friday
Mine ID: 10-00088

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 2012-0631-M
A.C. No. 10-00088-281470 M445

v.
CEMENTATION USA, INC.,
Respondent

Mine: Lucky Friday Mine
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 2012-0760-M
A.C. No. 10-00088-283636

v.
Mine: Lucky Friday Mine

HECLA, LIMITED,
Respondent

DECISION AND ORDER
Appearances:

Matthew Vadnal, United States Department of Labor, Office of the
Solicitor, Seattle, Washington for Petitioner;
Willa B. Perlmutter, Crowell & Moring, Washington, DC 20004, for
Contestant and Respondents;
Mike Clary, Hecla Limited, Coeur d’Alene, Idaho, for Respondent Hecla,
Limited.

Before:

Judge L. Zane Gill

36 FMSHRC Page 2600

This proceeding arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) (“Mine Act” or “Act”), involves one section 104(d)(2) Order, 30 U.S.C. §
814(d)(2), issued by the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) to Hecla, Limited, and one section 104(d)(1) Citation, 30 U.S.C. § 814(d)(1), issued
by MSHA to Cementation USA, Inc. (“Cementation”). The parties presented testimony and
documentary evidence at the hearing held in Coeur d’Alene, Idaho, on January 14 and 15, 2014.
The original dockets before me consisted of two civil penalty proceedings – WEST 20120760M and WEST 2012-0631M − and three contest proceedings – WEST 2011-1390 RM,
WEST 2011-1428RM, and WEST 2011-1429RM. On November 5, 2012, I signed an Order to
Sever and Reconsolidate. I ordered that Citation Nos. 8559609 and 8559610 be severed from
WEST 2012-0760M, be given a new docket number, and be consolidated with WEST 20111428RM and WEST 2011-1429RM. I also ordered that WEST 2012-0760M, WEST 20120631M, and WEST 2011-1390M be consolidated. Therefore, only Order No. 8565445 and
Citation No. 8565446 are before me in this proceeding.
For the reasons stated below, I vacate both Order No. 8565445 and Citation No. 8565446.
I.

Stipulations
At the hearing, the Secretary read the Stipulations into the record: (Tr. 9:3 – 10:20)

1. Hecla admits that its Lucky Friday Mine is a mine within the definition of the Mine
Safety and Health Act of 1977.
2. At all times relevant to these matters, the Lucy Friday Mine had products that entered
interstate commerce or had operations or products which affected interstate commerce
within the meaning and scope of Section 4 of the Act.
3. Hecla admits that is was a mine operator within the meaning of the Act and subject to the
Act.
4. Cementation admits that it is a mine contractor within the meaning of the Act and subject
to the Act.
5. Cementation and Hecla admit that this proceeding is subject to the jurisdiction of the
Federal Mine Safety and Health Review Commission, and the presiding administrative
law judge has authority to hear this case, issue a decision, and assess the appropriateness
of the evidence.
6. At all relevant times, Keith Palmer was an authorized representative of MSHA acting in
an official capacity.
7. Hecla and Cementation were served copies of the citation or order with qualifications at
issuance in this proceeding by an authorized representative of MSHA.

36 FMSHRC Page 2601

8. Exhibit A of the Secretary’s Petition for Assessment of Civil Penalty, actively sets forth
the number of inspection days at the site for Cementation and Hecla, their history of
violations, and the number of persons affected.
9. Hecla timely contested the order contained in these dockets, and Hecla and Cementation
served timely answers to the Secretary’s Petitions for Assessment of Penalty.
10. The maximum proposed penalties for the alleged violations will not affect the ability of
Hecla or Cementation to remain in business.
11. The exhibits the parties intended to offer into evidence and exchanged prior to the
hearing are not subject to objection on that basis.
II.

Background Facts

The Lucky Friday Mine (“the Mine”) is an underground silver mine owned and operated
by Hecla Limited (“Hecla”) in Mullan, Idaho. (Tr. 25:2; 27:17-18) Hecla hired Cementation
USA, Inc. (“Cementation”) to construct a new vertical shaft at the Mine. (Tr. 25:15-16) The
4860 slot1 of the Mine at the 51 ramp2 is a three-sided slot that is about eighteen feet high,
twenty-five feet wide, and eighty feet deep. (Tr. 36:19-20; 37:18; 37:23-24) The Mine uses slot
4860 for a gob pile, or waste debris pile. (Tr. 98:2-4) On April 7, 2011, a gob pile located at the
4860 slot was cleaned up to remove combustible materials3 from the pile. (Tr. 48:14-19; 123:1922; 242:7-19; 349:7-11) What remained behind among rock, cement, and metal debris in the
4860 slot were some pieces of timber, some fire-retardant vent bags, one HDPE pipe, and one
wooden pallet. (Tr. 215: 22-25; 266:20-267:19; 352:15-18) After the April 7, 2011 clean up date,
management at the Mine decided not to dump any more gob at the 4860 slot. (Tr. 297:5-6)
Justin Bartlett,4 who was in charge of cleaning up the 4860 slot on April 7, 2011, testified
that he did not think there was any waste debris left that was a fire hazard. (Tr. 352:19-24) Mr.
Bartlett testified that there was old wire mesh, rock, shotcrete, and some timbers left, but nothing
in the pile that he considered easily combustible. (Tr. 215:21-25) William Strickland5 also
1

A slot is an “area that is cut out of rock that can be used to store materials… mine
trash… permanent electrical boxes… powder magazines, [and] cap magazines….” (Tr. 28:2-8)
2

The 51 ramp is a winding ramp “from the 4900 level going up along the vein and
providing access to the lead, silver, zinc veins for the mining activities.” (Tr. 213:12-14)
3

“Combustible material” is defined as “a material that, in the form in which it is used and
under the conditions anticipated, will ignite, burn, support combustion or release flammable
vapors when subjected to fire or heat. Wood, paper, rubber, and plastics are examples of
combustible materials.” 30 C.F.R. §57.2.
4

At the time of the hearing, Mr. Bartlett was employed by Cementation at the Lucky
Friday Mine and had been for approximately two and a half years. (Tr. 244:20 – 245:12) He had
worked as a construction miner for approximately three and a half years at the time of the
hearing. (Tr. 245:13-16)
5

At the time of the hearing Mr. Strickland was employed by the Franklyn Company and
(continued…)
36 FMSHRC Page 2602

testified that he did not consider anything he saw in the gob pile to be a fire hazard. (Tr. 226:7;
242:16-19). James Duane Perryman6 also saw nothing in the pile that he considered to be a fire
hazard (Tr. 285:10-22; 293:5-8) and said that he “went back up there to make sure that we got
everything, and I didn’t see anything else.” (Tr. 324:12-14)
The following month, however, excavations in the Mine created more waste which was
moved to the 4860 slot on approximately May 29, 2011. (Tr. 295:3-6; 297:17-19; 300:14-16)
The new gob items included metal split sets, metal mats, and approximately three pieces of old
wood lagging (3” x 12” planks, each about six to eight feet long). (Tr. 296:4-7; 315:4-6; 317:6-7)
After the additions to the gob pile at the 4860 slot, the slot area was barricaded, first with a snow
fence (Tr. 299:10-13), which was later replaced by a chain-link fence. (Tr. 36:10-12, 234:12,
300:20) A sign was hung on the fence notifying miners that the area was not ventilated. (Tr.
300:11-12)7 As of July 2011, the gob pile itself was approximately ten feet wide by twelve feet
high. (Tr. 330:15)
On July 26, 2011, an arsonist intentionally set fire to the gob at the 4860 slot of the Mine
at the 51 ramp at or around 6:30 pm. (Tr. 22:15; 27:24-25; 31:10-11; 170:22-23). The mine was
safely evacuated, and there were no injuries as a result of the fire. (Tr. 70:19-25) The fire lasted
about twelve to fourteen hours before it was put out. (Tr. 31:13) MSHA Inspector Keith Palmer8
(“Inspector Palmer”) arrived on July 27, 2011, to investigate. (Tr. 26:11-20) Additionally,
personnel from the local Shoshone County Sheriff’s office, the Idaho State Fire Marshal’s office,
and the federal Bureau of Alcohol, Tobacco, Firearms and Explosives came to the Mine to
investigate the fire. (Tr. 33:3-21)
III.

The Law

The Secretary bears the burden of proving all elements of a citation by a preponderance
of the evidence. In re: Contests of Respirable Dust Sample Alteration Citations: Keystone
5

(…continued)
was working as a contract employee for Hecla. (Tr. 202:5-10) He was project engineer for all of
Hecla’s projects by overseeing all design work, engineering work, and supervises four
construction coordinators. (Tr. 202:12-17)
6

At the time of the hearing, Mr. Perryman was employed by the Franklyn Company and
was working in a temporary-type position for Hecla. (Tr. 248:20-25) He was a construction
coordinator and was in charge of helping Hecla oversee the shaft construction project. (Tr.
249:4-6)
7 To the best of Inspector Palmer’s knowledge, there was no active work being performed

in the 4860 slot. (Tr. 98:10-12)
8

At the time of the hearing, Inspector Palmer had been employed by MSHA since
January of 2001, (Tr. 17:13-16) as the field office supervisor for the Kent, Washington MSHA
field office. (Tr. 20:19-20) At MSHA, Inspector Palmer worked as a mine inspector, he worked
for the educational policy and development educational field services division, and was a field
office supervisor at the time of the hearing. (Tr. 19:17-21) Before working at MSHA, Inspector
Palmer worked approximately ten years at Asarco Incorporated in Arizona, which is an open-pit
copper mine. (Tr. 17:21-24) Inspector Palmer also worked for the State of Arizona Game and
Fish Department as a crew leader for about three or four years. (Tr. 19:9-11)
36 FMSHRC Page 2603

Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995), aff’d 151 F.3d 1096 (D.C. Cir. 1998); Jim
Walter Resources, Inc., 30 FMSHRC 872, 878 (Aug. 2008) (ALJ Zielinski) (“The Secretary’s
burden is to prove the violations and related allegations, e.g., gravity and negligence, by a
preponderance of the evidence.”) The Citation and Order in this case allege a violation of Section
57. 4104(a) of the Mine Act, which states that “[w]aste material, including liquids, shall not
accumulate in quantities that could create a fire hazard.” 30 C.F.R. § 57.4104(a).
The Secretary must prove by a preponderance of evidence that waste material
accumulated and that the accumulation “create[d] a fire hazard.” 30 C.F.R. § 57.4104(a). The
regulation, however, is silent on the quantity of waste that is allowed to accumulate before a
waste pile is considered to be a fire hazard. Therefore, the appropriate analysis 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.” Canon
Coal Co., 9 FMSHRC 667, 668 (Apr. 1987); Rock of Ages Corp. v. Secretary of Labor, 170 F.3d
148, 156 (2d Cir. 1999); Walker Stone Co. v. Secretary of Labor, 170 F.3d 1080, 1083-1084
(10th Cir. 1998). This test is an “objective – not subjective – analysis of all the surrounding
circumstances, factors, and considerations bearing on the inquiry in issue.” Canon Coal Co., 9
FMSHRC at 668.
In Essroc Cement Corp., 33 RMSHRC 459 (Feb. 2011) (ALJ Manning), Administrative
Law Judge Manning vacated a citation that alleged a violation of § 56.4104(a)9 and found that:
[T]he Secretary did not meet the burden of establishing that the
condition created a fire hazard. The flashpoint of hydraulic fluid is
quite high and there were no ignition sources in the area. A spark
or other similar event would be insufficient to ignite the fluid […]
Without a realistic possibility of a fire hazard, there is no violation.
33 FMSHRC at 465.10

9

Section 56.4104(a) states that: “[w]aste materials, including liquids, shall not
accumulate in quantities that could create a fire hazard.” 30 C.F.R. § 56.4104(a). This language
is exactly the same as Section 57.4104(a), however, Part 56 of the Mine Act pertains to surface
metal and nonmetal mines and Part 57 pertains to underground metal and nonmetal mines.
10

The Secretary attempts to analogize Section 77.1104 to Section 57.104(a). He cited
case law that states that “the Secretary is not required to provide that an ignition or explosion
was reasonably likely to occur. Rather, he is required to prove the presence of sufficient
accumulations that can create a fire hazard or add to a fire hazard if an ignition source is
introduced.” Pittsburgh & Midway Coal Co., 16 FMSHRC 574, 576 (Mar. 1994) However, I
find this argument unavailing because Part 77 pertains to surface coal mines and surface work
areas of underground coal mines. Additionally, Section 77.1104 states that “[c]ombustible
materials, grease, lubricants, paints, or flammable liquids shall not be allowed to accumulate
where they can create a fire hazard.” 30 C.F.R. § 77.1104. (emphasis added) Part 56 and 57 of
the Mine Act specifically refer to “waste materials,” whereas Part 77 specifically refers to
“combustible materials.”
36 FMSHRC Page 2604

The Secretary put great emphasis on the fact that the Mine Act is a strict liability statute.
He also emphasized that mine owners are vicariously liable for employees’ deliberate violations
and that “the Mine Act clearly contemplates that a violation may be found where the wrongful
act is performed by someone other than the operator.” Western Fuels-Utah, et al. v. FMSHRC,
870 F.2d 711, 716 (D.C. Cir. 1989) He further stated that the 9th Circuit Court of Appeals, in
affirming a decision of the Commission, held that a mine owner was liable for a violation of the
Mine Act committed by an unknown person who entered the mine property without the
knowledge of the owner. Miller Mining Co. v. FMSHRC, 713 F.2d 487, 491 (9th Cir. 1983)
IV.

The Violation

On August 16, 2011, MSHA Inspector Palmer issued Order No. 8565445 to Hecla and
Citation No. 8565446 to Cementation alleging that both had unwarrantably failed to comply with
30 C.F.R. § 57.4104(a).11 Section 57.4104(a) regulates a mandatory safety standard. The Citation
and Order allege:
An excessive amount of combustibles were [sic] allowed to
accumulate in the 4860 slot. The 4860 slot, off of the 51 ramp, was
used as a gob area. Old timber, driscoll pipe, hydrolic [sic] hoses,
pallets, and card board12 had been thrown away in this area.
Evidence indicated that this area contained the combustibles since
at least 04/07/2011. Hecla and Cementation management was
aware of this condition and had discussed this area on 04/07/2011.
According to a miner, a barricade was erected to prevent access in
this area sometime during the week of June 20, 2011 because of an
ongoing MSHA inspection. There are several miners that work and
travel on the 4900 level and the 51 ramp on a daily basis. There is
no evidence that reasonable efforts were made by Hecla or
Cementation to correct this condition. A fire occurred in this gob
area on 7/26/2011 in which the excessive amounts of combustibles
contributed to the intensity and duration of the fire. Management
engaged in aggravated conduct constituting more than ordinary
negligence because they were aware of the excessive amounts of
combustibles and did not take reasonable efforts to remove them.
This violation is an unwarrantable failure to comply with a
mandatory standard.
Ex. G-1, Ex. G-4.
The Citation and the Order also allege that the condition was reasonably likely to cause
injury, that the injury was reasonably likely to be fatal, that the violation was significant and
substantial (“S&S”), the negligence standard was high, and the number of persons affected was
11

The Citation and Order are identical in substance apart from the Order being a
104(d)(2) violation and the Citation being a 104(d)(1) violation.
12

Inspector Palmer admitted at the hearing that there was no cardboard present in the gob
pile. (Tr. 105:19 − 106:9)
36 FMSHRC Page 2605

eighteen. Ex. G-1, Ex. G-4. The Secretary proposed a penalty of $63,000.00 against Cementation
and $38,000.00 against Hecla for this violation.
Inspector Palmer admitted that in some cases some combustible waste is allowable
underground and that the mine has the discretion to decide how much combustible waste is
stored underground. (Tr. 92:4-8; 92:9-18) Inspector Palmer testified that he believed the waste
materials that accumulated in the 4860 slot created a fire hazard (Tr. 69:22 −70:1) because the
wood in the pile and the pallet could catch fire. (Tr. 70:3-14) He testified that there was at least
one pallet that was considered waste on the gob pile. (Tr. 89:18-21) However, Inspector Palmer
admitted that the slot held mostly rock and dirt. (Tr. 85:10-12; 108:5-6) The Secretary admitted
into evidence some photos taken on April 8, 2011, but they depict some limited pieces of timber
in the gob pile in slot 4860 that are not in close proximity to one another. Ex. G-9.
Mr. Strickland testified that most of the combustible materials were removed, put in
dumpsters, and sent to the surface of the mine to be discarded. (Tr. 241:25 – 242:1) Most
importantly, Mr. Strickland testified that “[a]nything of kindling size, that concerns me more.
Paper waste, of course, rags, of course, any material like that gets sent out in bins to the surface.”
(Tr. 232:18-21) Further, Inspector Palmer admitted that the fire marshal was unable to determine
how much combustible material was present before the fire. (Tr. 105: 2-5) Inspector Palmer also
testified that there was no evidence that an abundance of combustibles had been present before
the fire due to the small about of ash after the fire was extinguished. (Tr. 105:9-13) In Mark
Aamondt’s, the Fire Chief of Shoshone County Fire District No. 2, report he noted that “[i]t
could not be confirmed how much debris was removed or how much remained after the
cleanup.” Ex. R-6, pg. 4.
Mr. Strickland testified that the amount of combustibles in slot 4860 was at most ten
percent, maybe less (Tr. 218:2-6) He also testified that he was not worried that the wood timbers
were a fire hazard because it is very difficult to light 4x4s, 2x12s, 6x8s, or 6x10 timbers. (Tr.
222:22 – 223:7) Mr. Strickland was also not worried that the pallet was a fire hazard because it is
very difficult to light a pallet. (Tr. 223:17-23) He was not concerned that the HDPE pipe was a
fire hazard because its melting point is above 400 degrees. (Tr. 225:11-14) Inspector Palmer
admitted that it would be difficult to hold a match to a timber and light it on fire. (Tr. 112:8-10)
Inspector Palmer testified that there was no ignition source identified at the 4860 slot
other than the arsonist. (Tr. 96:10-12) Further, to the best of Inspector Palmer’s knowledge, there
is no methane in the mine. (Tr. 101:6-7) Fire Chief Aamondt testified that he found nothing in
the 4860 slot that was an ignition source, (Tr. 189:6-8) and that there were no electrical problems
in the slot. (Tr. 189:9-19) After the fire was investigated, it was concluded that the fire was
intentionally set with an open flame by a person. (Tr. 170:22-23) Inspector Palmer did mention
other potential ignition sources – cigarettes and/or a pressurized paint can that was lit on fire. (Tr.
215:10-14; 228:9-10) However, the Secretary presented no evidence at the hearing that these
sources were anywhere near slot 4860.
As stated above, the Secretary put great emphasis on the Mine Act being a strict liability
statute and the fact that there is vicarious liability even for unknown persons who enter a mine
and violate the Mine Act. However, the Secretary did not prove by a preponderance of evidence

36 FMSHRC Page 2606

that a trespasser accumulated waste material in quantities sufficient to create a fire hazard in
violation of Section 57.4104(a). The Secretary cannot use vicarious liability or the Mine Act’s
strict liability to infer that a criminal intervener who intentionally set a fire to the gob pile in slot
4860 somehow violated Section 57.4104(a). The Secretary also did not prove by a
preponderance of evidence that a mine employee or agent accumulated waste material in
quantities sufficient to create a fire hazard in violation of Section 57.4104(a). Indeed, the only
thing that the Secretary proved by a preponderance of the evidence is that a fire was set by an
arsonist in slot 4860, which is not a violation of Section 57.4104(a).
While the Secretary did show that there were some waste materials in slot 4860 that were
combustible, the Secretary failed to meet his burden by a preponderance of evidence that a
reasonably prudent miner familiar with the purposes of Section 57.4104(a) could find that the
accumulation of waste materials in slot 4860 could create a fire hazard. The Secretary also failed
to present sufficient evidence that there would have been an ignition source to create a fire
hazard if the arsonist had not intervened. Therefore, I find that Hecla and Cementation did not
violate Section 57.4104(a). Because I find that no violation existed, I need not discuss the
gravity, negligence, significant and substantial, and unwarrantable failure standards.
WHEREFORE, it is ORDERED that both Order No. 8565445 and Citation No.
8565446 be VACATED;
It is further ORDERED that Docket Nos. WEST 2011-1390-RM, WEST 2012-0631-M,
and WEST 2012-0760-M be DISMISSED.

/s/ L. Zane Gill
L. Zane Gill
Administrative Law Judge
Distribution:
Matthew Vadnal, United States Department of Labor, Office of the Solicitor, 300 Fifth Avenue,
Suite 1120, Seattle, Washington 98101
Willa B. Perlmutter, Crowell & Moring, 1001 Pennsylvania Avenue, NW, Washington, DC
20004
Mike Clary, Hecla, 6500 North Mineral Drive, Suite 200, Coeur d’Alene, Idaho 83815

36 FMSHRC Page 2607

ADMINISTRATIVE LAW JUDGE ORDERS

36 FMSHRC Page 2608

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
th
721 19 STREET, SUITE 443
DENVER, CO 80202-2536
TELEPHONE: 303-844-5266 / FAX: 303-844-5268

August 13, 2014
AMERICAN COAL COMPANY,
Contestant,
v.
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Respondent.
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner,

CONTEST PROCEEDINGS
Docket No. LAKE 2010-408-R X
Order No. 8418503; 1/19/2010
Docket No. LAKE 2010-409-R X
Citation No. 8418504; 1/19/2010
Mine: New Era Mine
Mine ID: 11-02752
CIVIL PENALTY PROCEEDING
Docket No. LAKE 2010-759
A.C. No. 11-02752-219590-02

v.
AMERICAN COAL COMPANY,
Respondent.

Mine: New Era Mine

ORDER DENYING AMERICAN COAL COMPANY’S MOTION TO SUPPLEMENT
THE RECORD &
DECISION ON SECOND REMAND
Before:

Judge Miller

These matters are before me upon remand from the Federal Mine Safety and Health
Review Commission. American Coal Co., 36 FMSHRC 882 (Apr. 2014). The cases involve an
order and citation issued to the American Coal Company (“American”) by the Secretary of
Labor, Mine Safety and Health Administration, following an inspection of a coal stockpile at
American Coal’s New Era Mine. The Commission remanded the cases with the direction that
the parties be allowed to file briefs and that further proceedings, as necessary, be conducted.
Subsequently, American filed a Motion to Supplement the Record, to which the Secretary filed a
response in opposition. The parties then filed simultaneous briefs and a joint stipulation. For
reasons that follow, I DENY American’s Motion to Supplement the Record, and AFFIRM my
earlier findings regarding the fact of violation in both Order No. 8418503 and Citation No.
8418504.

36 FMSHRC Page 2609

I. BACKGROUND
On January 19, 2010, MSHA inspectors issued Order No. 8418503 to American pursuant
to section 103(k) 1 of the Act after observing what they believed to be a “mine fire” on the coal
stockpile. At the same time, MSHA issued Citation No. 8418504 for American’s alleged failure
to timely notify MSHA of the incident in violation of 30 C.F.R. § 50.10. American contested
both issuances.
On July 22, 2010 Judge Avram Weisberger held an expedited hearing to address Order
No. 8418503. At the conclusion of the hearing the parties presented oral arguments and Judge
Weisberger issued a bench decision vacating the order, which he later reduced to writing and
issued on September 28, 2010. American Coal Co., 32 FMSHRC 1387 (Sept. 2010) (ALJ).
Subsequently, the Secretary of Labor appealed the matter to the Commission.
On February 28, 2013, the Commission issued a decision concluding that a “mine fire”
does not require the presence of a flame. 35 FMSHRC 380, 387 (Feb. 2013). The Commission
stated that the Secretary reasonably interpreted the term “mine fire” in section 3(k) to include
“both events marked by flaming combustion and events marked by smoldering combustion that
reasonably has the potential to burst into flames.” Id. As relevant to this proceeding, the
Commission noted:
Indeed, this interpretation is somewhat different from the
interpretation the Secretary presented at the hearing. Before the
judge, [he] articulated an interpretation that included “both events
marked by flaming combustion and events marked by smoking
combustion.” . . . In other words, the Secretary’s interpretation at
the hearing did not require that the smoking or smoldering
combustion “reasonably [have] the potential to burst into flames.”
Id. at 384-385 (citations and footnotes omitted). Accordingly, the Commission vacated the
judge’s decision and remanded the matter for further proceedings. 2
On January 16, 2014, I issued a Decision on Remand addressing Order No. 8418503,
which is the subject of Docket No. LAKE 2010-408-R. American Coal Co., 36 FMSHRC 176
(Jan. 2014) (ALJ). There, the primary issue was whether the smoldering and smoking coal on
the stockpile that the inspectors observed was a “mine fire” as that term is used in the Mine Act
and defined by the Commission. I found that the smoking and smoldering stockpile was a fire
and, therefore, an accident had occurred and the 103(k) order was properly issued.
1

Section 103(k) states that “[i]n the event of any accident occurring in a coal or other
mine, an 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 . . . .” 30 U.S.C.
§ 813(k).
2 Judge Weisberger retired while the case was on review before the Commission.

cases were then reassigned to me for a decision after remand.

36 FMSHRC Page 2610

The

On March 3, 2014, I issued a second and related decision addressing Citation No.
8418504. American Coal Co., 36 FMSHRC __, slip op. (Docket Nos. LAKE 2010-409-R and
LAKE 2010-759) (Mar. 3, 2014) (ALJ). In that decision, the issue was whether American
violated section 50.10 of the Secretary’s regulations, by failing to notify MSHA of the fire on the
stockpile. Relying upon my finding in LAKE 2010-408-R that a mine fire had occurred, I found
that American had failed to immediately report the incident to MSHA in violation of section
50.10 of the Secretary’s regulations. At the request of the parties, the negligence of the citation
was reduced to low.
American petitioned for, and was granted, discretionary review of my decisions in the
two contest cases and the penalty case that accompanied LAKE 2010-409-R. On review,
American argued that it should have been offered the opportunity to file a brief on the issues
raised following the Commission’s original direction remanding Docket No. LAKE 2010-408-R.
The Commission agreed with American and noted that “the issues that were presented to the
Judge were somewhat unusual because the Secretary had presented a modified definition of the
term “mine fire” to the Commission as compared to the definition that he proffered at the initial
hearing. 35 FMSHRC at 384-85. 36 FMSHRC 884 (Apr. 2014). Accordingly, the cases were
remanded so that the parties could brief the issues.
Subsequent to the Commission’s decision, I asked the parties whether there was any other
evidence that the parties wanted to enter into the record by stipulation and sought the parties’
opinion about taking further evidence in the case. After speaking to the parties and reviewing
the record, however, I determined that a new hearing was not appropriate because both parties
had ample time to prepare and to present evidence, including evidence on the meaning of fire
and the fair notice issue. The parties informed the court that there was no dispute of fact and a
hearing was not needed, but American wished to supplement the record with additional
information, and both parties wished to file a brief.3 I then allowed the parties time to stipulate
to any facts or items they wished to include in the record. The parties were not able to reach any
stipulations. Thereafter, American filed a Motion to Supplement the current record with
testimony from depositions. The Secretary objected to the submissions and I deny the motion
herein. Therefore, no other testimony or evidence is included in the original record made before
Judge Weisberger but both parties have filed a brief.
II. MOTION TO SUPPLEMENT
On May 29, 2014 American filed a Motion to Supplement the Record with Designated
Deposition Testimony. American asks the court to supplement the formal record with
designated deposition testimony of MSHA inspector Michael Rennie. It argues that this
testimony is “necessary to address issues that were not directly raised at the previous hearing in
this matter before Judge Weisberger.” American. Mot. to Supp. 2. Specifically, it argues that
these deposition designations demonstrate that the Secretary’s interpretation of fire that was
raised on appeal is unconstitutionally vague as applied to American in this case and therefore

3

American, in its Motion to Supplement the Record, states that “it is willing to forego
requesting a new evidentiary hearing if these deposition designations are admitted into the
formal record.” American Mot. to Supp. 2 n. 1.

36 FMSHRC Page 2611

American did not receive fair notice.4 Id. 2-3. American asserts that Inspector Rennie’s
deposition testimony shows that he had seen conditions similar to those he observed on the New
Future stockpile, a coal stockpile smoking in spots with no flames, but that he had never before
issued a Section 103(k) order for those conditions. A reasonably prudent person familiar with the
mining industry and the protective purpose of the standard, as of the date the order was issued,
therefore would not recognize that the cited conditions constituted a “fire” or “mine fire” for
purposes of the Act and its regulations. Id. at 5. Moreover, American asserts that Rennie’s
deposition testimony indicates that he did not see “smoldering combustion” and therefore, he did
not use the Secretary’s new interpretation of ‘fire’ when he and Inspector Crick issued the 103(k)
Order and reporting violation on January 19, 2010. Given the arbitrary enforcement of the new
interpretation and the inspector’s application of a definition broader than what was endorsed by
the Commission in the original appeal, American could not know, on January 19, 2010, what
was required of it to act accordingly. Id. at 5-6. As a result, American requests that it be allowed
to supplement the record with the deposition testimony of Inspector Rennie.
On June 6, 2014 the Secretary filed a Response to American’s Motion objecting to
American’s request to supplement the record. The Secretary argues that American stipulated at
the initial hearing that the existence of a mine fire was the issue to be decided by the Court and if
the Court found that the conditions constituted a fire, then the order would be upheld. The
Secretary also asserts that Inspector Rennie’s testimony is not relevant to the fair notice issue,
given that he did not issue the 103(k) order. In any event, American did have notice of the
Secretary’s interpretation of the word “fire”. The Secretary argues that smoke without flame is
the true issue for decision and whether smoldering or smoke have the potential to burst into
flames does not change the issue of notice to the mine. While the Secretary acknowledges that
there is an “additional requirement that a smoldering location have the reasonable potential to
burst into flame,” American need only have known that smoldering was sufficient for a fire.
American asserts that the deposition testimony is relevant to the issue of “fair notice” and
whether “smoldering combustion” existed on the day the order was issued. The motion to
supplement seeks to introduce deposition testimony regarding what Rennie observed on the day
the order was issued and his previous treatment of allegedly similar conditions. While the issue
of notice is relevant based upon the Commission’s direction on remand, American offers no
reasonable justification to now address Rennie’s deposition testimony. Clearly the question of
statutory interpretation, as well as fair notice was at issue in the original proceeding and the
record demonstrates that the parties argued those issues before Judge Weisberger. Moreover,
American deposed Rennie prior to the hearing and could have elicited similar testimony at
hearing. American asked for an expedited hearing on the issues here, made time to depose
witnesses, and presumably was prepared to defend its position before the ALJ. While the
original hearing focused upon the limited issue of whether there was a fire, American also raised
the issue of fair notice in its argument to the Court. American had its opportunity to include this
4

American points to the difference in the Secretary’s interpretation of “mine fire” that he
put forth before the Commission, which included “both events marked by flaming combustion
and events marked by smoldering combustion that reasonably has the potential to burst into
flames[,]” from the interpretation the Secretary argued before the judge, which included “both
events marked by flaming combustion and events marked by smoking combustion.” American
Mot. to Supp. 2.

36 FMSHRC Page 2612

information in the record, and failed to do so. Parties are responsible for developing a complete
record at hearing. Given the lack of any reasonable justification for why American failed to
address the deposition testimony at hearing, I decline to allow it now. See e.g., Hansen Truck
Stop, Inc., 26 FMSHRC 293 n. 1 (Mar. 2004) (ALJ). In addition, since both parties had equal
opportunity to present evidence and develop a factual record, no matter what legal arguments
they chose to raise, there is no reason to reopen the record and allow a new hearing on the
matter.5 Accordingly, I DENY American’s Motion to Supplement and will not consider the
deposition testimony of Inspector Rennie, or the arguments premised upon that testimony.
III. DISCUSSION
On June 23, 2014 the parties filed simultaneous briefs. American, in its brief, argues first
that that the Secretary failed to meet his burden of proving that the conditions cited constituted
“smoldering combustion that reasonably has the potential to burst into flames,” and second, that
it lacked fair notice of the Secretary’s new interpretation. American Br. 4. The Secretary argues
that ample evidence supports a finding of a mine fire as defined by MSHA to include smoldering
that has the reasonable potential to burst into flame, and that the mine did receive fair notice of
MSHA’s interpretation. After careful consideration of all the evidence in the record, finding no
conflict in the facts presented at hearing, I find that the condition of the coal stockpile constituted
a “mine fire.”
Interpretation of mine fire. American contends that, on remand, the court should defer to
the Secretary’s prior interpretation of what constitutes “smoldering” or “smoldering combustion”
as evidenced by articles and treatises submitted by the Secretary. American Br. 4. Those
articles and treatises, for the most part, state that smoldering combustion requires the presence of
oxygen and is evidenced by heat generation, some form of ‘glowing’ or ‘illumination,’ visible
smoke, and ‘toxic gasses’ such as carbon monoxide that give way to complex chemical reactions.
American Br. 4-5. Therefore, American argues, the Secretary must show evidence of some
glowing or illumination in order to show that there was a fire.
American argues that based upon the same interpretive material, self-heating of coal
occurs along a spectrum from low temperature weathering, to non-combustion oxidation, to the
point of spontaneous ignition, to smoldering combustion, and then possibly to flaming
combustion. With that spectrum in mind, American argues that heat, light colored smoke, and
noxious gases can be emitted even in the absence of ignition or combustion. Given the lack of
any evidence regarding the observation of a flame, illuminated or glowing material, and the
failure of the MSHA inspectors to further examine the smoking areas, analyze the purported
white ash, or take any carbon monoxide or temperature readings, the Secretary failed to establish
that flaming or smoldering combustion occurred. American contends that the testimonial
evidence relied upon by the court on remand to find the existence of a fire: the sulfur-like smell,
whitish-brownish smoke, heat waves, and white ash, can all be explained by non-combustion
self-heating coal phenomena that do not rise to the level of a “mine fire.” Id. at 8-10.
5

Finally, even if Rennie’s testimony were added to the record, it would not change my
decision in this case. Rennie testified to what he observed and his deposition testimony does not
differ significantly from his testimony at hearing. In addition, a fair notice argument requires
much greater evidence than the general testimony of one inspector who may or may not have
seen these same conditions and failed to issue a citation.
36 FMSHRC Page 2613

In the first decision on remand, I relied upon the facts from the transcript as presented by
each of the witnesses who testified, including MSHA supervisor Rennie, mine inspector Crick,
and American’s witness, Michael Smith. The transcript was short but each party had the
opportunity to present its evidence and to cross examine all witnesses. In that previous decision
I explained that Rennie, who has been a mine inspector for 20 years, observed the five areas
described as smoldering and took photographs, which are included in the file as exhibits.
Inspector Crick, while a fairly new inspector, had more than 20 years of mining experience and
once owned a safety company where he trained miners in the area of stock pile safety. Crick’s
testimony included a description of the stockpile and what he observed at the time he issued the
order. He explained that he noted a sulfur smell, and that he observed smoking and smoldering
material from about 5 feet away. He described the smoke as whitish and brownish with visible
heat waves and he observed white ash around the area. American’s only witness, Michael Smith,
who was a member of its safety department testified on behalf of the mine. He observed the
same areas as the inspectors and also did not see any flames. He had fire brigade training once
each quarter while at the mine, and he was never called to fight a fire without a flame. (Tr. 106107). Smith described the workings of the Galacia complex and the reasons for having
stockpiles of coal outside the mine. He says he was within 60 to70 feet of the smoking and
smoldering but did not see any flame and his carbon monoxide detector did not alarm. When
asked if he saw white ash, he said he did not, but saw a grayish rock that comes out with the coal.
His opinion was that there was no fire. He did not comment on whether it was windy or that if
the smoking and smoldering coal came into contact with oxygen it would ignite.
While I understand American’s argument that the conditions observed, the smoldering,
white ash, heat waves and sulfur smell could lead to results other than combustion and fire, there
is no evidence in the record that is the case. Instead, the mine inspector’s unrefuted testimony is
that it was windy on the day of the inspection and that the smoldering areas, when exposed to
oxygen could reasonably lead to combustion. While the inspectors did not specifically testify
that they observed some kind of illumination, the testimony they presented is sufficient to
suggest a fire existed at the mine.
American next argues on this second remand that Inspector Crick did not rely upon the
Secretary’s new interpretation, and instead relied upon his personal definition of ‘fire’ and
determined that when “[y]ou see smoke, there’s fire.” American Br. 11. Though the inspector
claimed to have relied upon his “life experience and on his experience as a volunteer firefighter,”
American points out that the trial judge did not accord much weight to the inspector’s opinions.
American argues that, since the trial judge was the only judge to preside over and observe
Inspector Crick’s testimony, this court should defer to that credibility determination. American
Br. 11. I note that in Judge Weisberger’s discussion of deference in the first decision, he writes
that he is aware of no case in which the position of the Secretary’s witness is a basis for
deference. In doing so, in a footnote, he mentions that he does not give much weight to the
Secretary’s witness, who is presumably Crick, because while Crick has extensive experience as a
firefighter, there is no evidence that the experience relates to coal fires. Further, he says, Crick
was not established as an expert. American Coal Co., 32 FMSHRC 1387 (Sept. 2010) (ALJ), n.
5. I disagree with American’s interpretation of Judge Weisberger’s footnote and instead I find

36 FMSHRC Page 2614

that the fact that an ALJ gave less weight to Crick’s opinion when discussing the issue of
deference does not translate into a credibility finding nor does it support a finding that Crick’s
lay opinion should be disregarded. Crick described in detail what he observed and how he
interpreted it based upon his experience and particularly his experience as a firefighter. While I
agree that Crick was not an expert, neither was any other witness at the hearing. Each witness
relied upon his experience to translate what he observed into his opinion. For the MSHA
supervisor and MSHA inspector, it translated into a fire, but not so for the safety supervisor at
the mine. I relied upon the facts presented by each witness in my earlier decision and do so in
this one.
American also argues that the Secretary has not offered an interpretation of, nor provided
any credible evidence regarding, the “reasonable potential to burst into flames” element endorsed
by the Commission. American Br. 12-13. American asserts this element was not raised before
or during the hearing, the Secretary did not directly address it, and American was not given the
chance to present evidence to rebut it, or cross-examine the Secretary’s witnesses regarding their
testimony upon it. Moreover, American argues, the only evidence that could be construed to
address this element was the inspector’s testimony that if oxygen or air hit the cited areas, they
could burst into flame at any time. I find this argument also to be without merit. American had
an opportunity to call any and all witnesses to discuss combustion and the potential of the coal,
as observed, to lead to a fire, or a flame. The Secretary was the only party to produce any
evidence of what causes coal to burst into flames and if American failed to cross examine on that
testimony, or rebut it, then it did so by choice. The transcript reflects that both parties were
focused upon the issue of having a flame to define a fire at hearing. American had an
opportunity to present evidence about what constitutes a fire and how the smoking and
smoldering material can be defined. The only evidence in the record on that issue, however, is
Crick’s testimony that it was possible on that windy day for oxygen to mix with the smoldering
areas and burst into flame. While the evidence is not overwhelming on either side, and both
parties could have done a much more thorough job of presenting evidence in the case, the
Secretary did meet his basic burden of proof and American provided no rebuttal.
American, while citing a source relied upon by the Secretary during the initial appeal,6
also argues that “propagation and spreading of smoldering combustion as well as how
smoldering combustion transitions to flaming combustion are complex technical issues involving
a number of factors.” Id. at 14. American argues that the Secretary presented virtually no
evidence on these issues. Moreover, the source cited by the Secretary indicates that when
smoldering combustion occurs below the surface of a stockpile and it begins migrating toward
the surface, it does not have the potential to burst into flames until it reaches the surface, which
can be a slow process depending up on the fuel layer above the smoldering material. Here, there
is no evidence that the alleged smoldering areas were on the surface and the inspectors took no
steps to determine if smoldering occurred on the surface or below the surface. American Br. 16.
American is correct that many documents were submitted in this case with little or no
explanation and that a number of complex issues regarding combustion are noticeably absent
from the record. However, the record reflects that both Crick and Rennie agree that the
6

American cites T.J. Ohlemiller, National Fire Protection Association, SFPE Handbook
of Fire Protection Engineering, §2, Chap. 9, “Smoldering Combustion,” at 2-200, 2-201 to 2-207
(3d ed. 2002).

36 FMSHRC Page 2615

smoldering, when mixed with oxygen, would burst into flames. Again, American did not refute
that finding in its cross examination or in its case in chief.
Applying the Secretary’s interpretation, I find that the area observed and subsequently
cited constitutes a “mine fire” based upon the observation of smoke, ash, and heat as well as the
smell of sulfur. Both Crick and Rennie testified that they observed smoking and smoldering
areas on the stockpile. Additionally, Crick testified that he observed “heat waves” and white ash
in the smoking and smoldering areas. Further, he explained that if oxygen or air hit those areas,
they “could burst into flame at any time.” (Tr. 59). Smith, the mine’s sole witness, did not
testify to the existence of smoke or smoldering material, and instead offered that he did not see
flames, “hot coals,” or white ash. While Smith testified that he was only able to get within 60 to
70 feet of the smoldering areas, Crick indicated that he was able to travel within 5 feet of at least
one of the areas. Given the testimony as a whole, I find that smoke, ash, and smoldering areas
existed on the New Future Stockpile and those areas had the potential to burst into flame at any
time; therefore there was a fire on the stockpile, which in turn is an accident as described by the
statute. Given the testimony of the witnesses at hearing and accepting all testimony as true, I
reaffirm my finding that “smoke, ash, and smoldering areas existed on the New Future Stockpile
and those areas had the potential to burst into flame at any time, and therefore there was a fire on
the stockpile, which in turn is an accident as described by the statute.” American Coal Co., 36
FMSHRC 176, 179 (Jan. 2014) (ALJ).
Fair Notice Argument. American asserts that a reasonably prudent person familiar with
the mining industry and the protective purpose of Section 3(k) of the Act would not have
recognized that “fire” or “mine fire,” as used in Section 3(k), could include “smoldering
combustion that reasonably has the potential to burst into flames.” American Br. 18-19.
American points to the deposition testimony of Inspector Rennie, in which he commented that he
previously saw similar conditions as those observed on the stockpile, but never issued a 103(k)
order for those conditions. Rennie’s testimony is not admitted in this proceeding, but even if it
were, I find that American had adequate notice.
American argues that, even in the absence of Rennie’s testimony, the Secretary’s
interpretation was never communicated to American prior to the issuance of the 103(k) order.
The order itself mentions smoking and white colored ash, but not the reasonable potential to
burst into flames. American is unaware of any prior history of a 103(k) order or any other
available guidance from the Secretary that existed as of January 19, 2010 and provided advance
notice that the Secretary’s inspectors might find smoldering or smoking areas on a surface
stockpile devoid of flames or glowing embers to constitute a fire and hence to be an ‘accident’
under Section 3(k) of the Mine Act. Further, American argues that the Secretary never
presented, before or during the hearing of this matter, the altered interpretation that was upheld
by the Commission and requiring the Secretary to prove the additional element that smoldering
material has the reasonable potential to burst into flames. This interpretation was not raised at
trial and American was not given an opportunity to address this additional element. Finally, the
Commission’s decision in Phelps Dodge Tyrone, 30 FMSHRC 646 (Aug. 2008), does not
provide fair warning to mine operators that their surface stockpiles are subject to 103(k) orders
absent a flaming fire.

36 FMSHRC Page 2616

The Secretary, in his brief, argues that American had notice of the Secretary’s
interpretation that a fire included smoldering combustion that reasonably has the potential to
burst into flames. Sec’y Br. 2. The Secretary states that (1) American stipulated at hearing that
the existence of a fire was the singular issue in the case and that a determination as to whether a
fire existed would dispose of the case, (2) the Secretary’s interpretation of the standard at hearing
gave American notice that MSHA considered smoldering combustion to be ‘fire’ without the
presence of flames, (3) that the issue of whether the smoldering locations had the potential to
burst into flames was tried at the original hearing, and (4) that the trial record contains evidence
regarding the conditions observed: that is smoke, sulfur odor, white ash, and heat waves, such
that the mine operator should reasonably have believed that a mine fire existed on New Future
Stockpile.
The Commission has stated that “due process considerations preclude the adoption of an
agency’s interpretation which ‘fails to give fair warning of the conduct it prohibits or requires.’”
Lafarge North America, 35 FMSHRC 3497, 3500 (Dec. 2013) (citing Gates & Fox Co. v.
OSHRC, 790 F.2d 154, 156 (D.C. Cir. 1986)). Fair notice is provided when a party has “actual
notice of MSHA’s interpretation . . . prior to enforcement . . . against the party.” Id. (citing
Consolidation Coal Co., 18 FMSHRC 1903, 1907 (Nov. 1996)). In the absence of actual notice,
the Commission has applied the “reasonably prudent person” test, in which “the violative
condition is appropriately measured against the standard of whether a reasonably prudent person
familiar with the factual circumstances surrounding the allegedly hazardous condition, including
any facts peculiar to the mining industry, would recognize a hazard warranting corrective action
within the purview of the applicable regulation.” Alabama By-Products Corp., 4 FMSHRC
2128, 2129 (Dec. 1982). The Commission has explained that “‘the appropriate test is not
whether the operator had explicit prior notice of a specific prohibition or requirement,’ but
whether a reasonably prudent person, familiar with the protective purposes of the standard,
would have ascertained the specific prohibition of the standard and concluded that a hazard
existed in that ‘particular factual setting[.]’” Lafarge North America, 35 FMSHRC at 3501
(citing Ideal Cement Co., 12 FMSHRC 2409, 2415-416 (Nov. 1990).
There is no evidence in the record that the Secretary articulated his interpretation
introduced during review before the Commission directly to American prior to the issuance of
the 103(k) order. However, I find that the purpose of the Act, Congress’ recognition of the
dangers of smoldering flameless fires, and prior Commission case law involving an identical
interpretation of the term “fire” are all things that a reasonably prudent person familiar with the
mining industry would have been aware of and considered to determine that the conditions on
the stockpile amounted to a hazard that warranted corrective action within the purview of the
cited provision of the Act.
Section 103(k) of the Act provides, in pertinent part, that “[i]n the event of any accident
occurring in a coal or other mine, an 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[.]” 30 U.S.C. § 813(k). The Act defines the word “accident” as “includ[ing] a mine
explosion mine ignition, mine fire, or mine inundation, or injury to, or death of, any person.” 30
U.S.C. § 802(k) (emphasis added).

36 FMSHRC Page 2617

In the Commission’s original decision, relying upon the legislative history of the Act, it
stated that “Congress understood that ‘mine fires’ may manifest themselves differently in
different environments or scenarios.” American Coal Co., 35 FMSHRC 380, 383-384 (Feb.
2013). Further, it stated that “the purpose of the Mine Act is to enhance safety standards ‘to
prevent death and serious physical harm.’” Id. (citing 30 U.S.C. § 801(c)). In upholding the
Secretary’s interpretation of the term “mine fire,” the Commission noted that the “proffered
interpretation [was] also aligned with the purposes of the Act” and agreed that
“Time is of the essence when dealing with a fire, and requiring an inspector who observes
smoldering coal to wait to observe a flame before evacuating an area may cause a delay that is
the difference between life and death.” 35 FMSHRC at 385.
Mine operators are aware of the broad nature in which safety standards are to be
interpreted and the dangers associated with mine fires. Here, the Secretary’s interpretation,
while broad, is certainly one a reasonably prudent person familiar with the dangers of fire and
the Act’s purpose of enhancing safety would be aware of and expect. The testimony of the
MSHA inspectors and that of the mine safety manager indicate that fire is a serious and everpresent hazard in coal mining. The fact that the stock pile was smoking, smoldering, smelled of
sulfur and exhibited waves of heat would all lead a reasonably prudent person to understand that
flames were imminent and that the conditions as described met the definition of a mine fire.
While the Secretary did not explicitly set forth the fact that the smoldering must have the
reasonable potential to burst into flames, I find that a reasonably prudent person would
understand the potential for fire and that the smoldering in the manner observed by the inspectors
was considered a fire.
American also argues that the Commission’s decision in Phelps Dodge Tyrone, Inc., does
not provide notice of the Secretary’s interpretation. 30 FMSHRC 646 (Aug. 2008).
Specifically, American asserts that Phelps Dodge Tyrone “involved the term ‘fire’ as used in 30
C.F.R. § 50.2(h)(6) and as the Commission recently recognized, ‘Section 50.2 plainly limits its
application to terms ‘used in this part,’ that is Part 50 of MSHA’s regulations (the reporting
regulations).” American Br. 21 (citing Revelation Energy, LLC, 35 FMSHRC 3339 (Nov. 20,
2013)). For reasons that follow, I disagree and find that Phelps Dodge Tyrone did provided
notice of the Secretary’s interpretation.
In Phelps Dodge Tyrone the mine operator petitioned for review of a Commission
judge’s decision upholding a violation of section 50.10 of the Secretary’s regulations.7 There,
the Secretary alleged that an “accident,” as defined by the Section 50.2(h)(6), 8 occurred due to
an “unplanned fire.” Id. at 651. A Commission judge, relying upon a dictionary definition of
“fire,” decided that a flame must be present for there to be a fire, and that once a flame is present,
the mine operator is under an obligation to comply with section 50.10 and notify MSHA. Id. at
650. There, the Secretary put forth an interpretation of “fire” before the Commission which is
identical to that which he advanced in the instant matter.9 Id. at 659.
7

Section 50.10 provides in pertinent part that an “operator shall immediately contact
MSHA at once without delay and within 15 minutes . . . once the operator knows or should know
that an accident has occurred.” 30 C.F.R. § 50.10.
8

Section 50.2(h)(6) provides that “Accident means: . . . In underground mines, an
unplanned fire not extinguished within 10 minutes of discovery; in surface mines and surface
areas of underground mines, an unplanned fire not extinguished within 30 minutes of discovery.”
36 FMSHRC Page 2618

Here the Secretary has set forth an interpretation of “fire” identical to that which was set
forth in Phelps Dodge Tyrone. While American asserts that the interpretation in Phelps Dodge
Tyrone is limited to part 50 of the Secretary’s regulations, I disagree. At least one Commission
judge addressing a violation of a standard not under part 50 of the Secretary’s regulations has
interpreted the Phelps Dodge Tyrone decision to mean that smoldering coal fines are included in
the definition of “fire.” See Powder River Coal, LLC, 31 FMSHRC 243, 254 (Feb. 2009) (ALJ).
Moreover, given the statements of the Commission in the original decision on review and the
majority’s acknowledgement that the instant matter was “not the first time [the Secretary] has
proffered this interpretation to the Commission,” I find that Phelps Dodge Tyrone provided
notice of the Secretary’s interpretation.
While American argues that the Secretary did not present his new interpretation before or
during the hearing of this matter, I find that notice of that interpretation was provided, as
discussed above, by means of the Mine Act, Congress’ recognition of the dangers of smoldering
flameless fires, and the Commission’s decision in Phelps Dodge Tyrone. American argues that
the additional element that smoldering material has the “reasonable potential to burst into
flames” was not raised at trial and American was not given a chance to present rebuttal evidence.
However American was given every opportunity to present evidence about smoldering and
combustion relevant to the case and the fact the issue was not raised at hearing does not change
my view that the mine received fair notice of the meaning of fire prior to being issued the order
in this case. The reasonably prudent person test must be based upon conclusions drawn by an
objective observer with knowledge of the relevant facts. It follows that the facts to be considered
must be those which were reasonably ascertainable prior to the alleged violation. Moreover, the
test must be applied based upon the totality of the factual circumstances involved, not just those
which tend to favor one party or the other. U.S. Steel Mining Co., 27 FMSHRC 435, 439 (May
2005) (citations omitted). Therefore, I find that the Secretary provided American with fair notice
of his interpretation.
IV. CITATION 8418504
On June 23, 2014 the parties filed a joint stipulation regarding Citation No. 8418504.
The parties stipulate that, if I vacate Order No. 8418503, then Citation No. 8418504 should also
be vacated. Jt. Stip. ¶ 7. Conversely, they stipulate that, if I find that a “‘fire’ or ‘mine fire’
occurred on the New Future stockpile” then the violation of section 50.10, as alleged in Citation
No. 8418504, should be affirmed. Id. The parties agree that, if Citation No. 8418504 is

9

A split Commission did not address the question of whether the mine had notice of the
Secretary’s interpretation. Commissioners Jordan and Cohen, however, agreed that the
Secretary’s interpretation was reasonable while Commissioners Duffy and Young declined to
address the Secretary’s interpretation and instead advocated that the case should be decided on
other, narrower grounds. Id. at 660, 663. Notably, Commissioners Duffy and Young believed
that section 50.2(h)(6)’s use of the term ‘fire’ is hardly unique in the Mine Act and its
regulations. ‘Fire’ is found in numerous sections of the amended Mine Act and in more than 100
of MSHA’s Mine Act Regulations.” Id. at 664.

36 FMSHRC Page 2619

affirmed, the negligence of the citation should be reduced from “high” to “moderate” based upon
American’s claimed good faith belief that it had no reporting obligation because it did not
believe there was a mine fire at the time the order and citation were written. The parties also
agree that, if Citation No. 8418504 is affirmed, the violation will remain S&S, but that the degree
of injury should be modified to “lost workdays or restricted duty” since although the hazard
would result in injuries of a reasonably serious nature, those injuries would not be fatal. Id. at ¶
7(f). Further, the parties provide a stipulation as to the remaining penalty factors and agree that
$4,000.00 is an appropriate penalty for this violation, which was originally assessed at
$8,893.00. Id. at ¶ 7(j).
Given my findings with regard to Order No. 8418503, I AFFIRM Citation No. 8418504
as modified by the stipulations of the parties. Citation No. 8418504 is modified to “lost
workdays or restricted duty” and “moderate” negligence. I assess a penalty of $4,000.00.
V. ORDER
American’s Motion to Supplement the Record is DENIED. Consistent with the
Commission's decision and direction on remand and based upon the record evidence, I find that
the Secretary established that Order No. 8418503 was validly issued. Order No. 8418503 is
hereby AFFIRMED and contest proceeding LAKE 2010-408-R X is DISMISSED. Further,
Citation No. 8418504 is MODIFIED to “lost workdays or restricted duty” and “moderate”
negligence. American Coal Company is hereby ORDERED to pay the Secretary of Labor the
sum of $4,000.00 within 30 days of the date of this decision. Upon receipt of payment, contest
proceeding LAKE 2010-409-R X is DISMISSED.

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

Distribution:
Lauren Polk, Office of the Solicitor, U.S. Dept. of Labor, 1999 Broadway, Suite 800, Denver CO
80202-5708
Barbara Villalobos, Office of the Solicitor, U.S. Dept. of Labor,
230 South Dearborn St., 8th Floor, Chicago, IL 60604
Jason Hardin, Fabian & Clendenin, 215 South State St., Suite 1200, Salt Lake City, Utah 841112323

36 FMSHRC Page 2620

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

September 3, 2014
DICKENSON – RUSSELL COAL CO.
LLC
Contestant,

CONTEST PROCEEDING
Docket No. VA 2014-163-R
Citation No. 8208673-01; 01/15/2014

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

Cherokee Mine
Mine ID 44-06864

ORDER OF DISMISSAL
Before: Judge William B. Moran
Contestant, Dickenson-Russell Coal Company (“Contestant” or “DRC”), has filed a
Notice of Contest challenging the issuance of a notice to provide safeguard, pursuant to Section
314(b) of the Mine Safety and Health Act of 1977 (“Mine Act”).1 In turn, the Secretary filed an
Answer, and Motion to Dismiss, together with a memorandum in support thereof (“Response”).2

1

A notice of safeguard is issued under the Mine Act pursuant to section 314(b) of the
Mine Act, 30 U.S.C. § 874(b) which provides: “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.” Section 75.1403 of the Secretary's regulations repeats
verbatim the provisions of section 314(b) of the Act. The procedure for issuing citations for
safeguard violations under section 75.1403 is described as: The authorized representative of the
Secretary shall in writing advise the operator of a specific safeguard which is required pursuant
to § 75.1403 and shall fix a time in which the operator shall provide and thereafter maintain such
safeguard. If the safeguard is not provided within the time fixed and if it is not maintained
thereafter, a notice shall be issued to the operator pursuant to section 104 of the Act. 30 C.F.R.
75.1403-1(b). See generally Southern Ohio Coal Co., 14 FMSHRC 1 (Jan. 1992), Cyprus
Cumberland Resources Corp., 19 FMSHRC 1781 (Nov. 1997).
2

Also filed was DRC’s Motion to Expedite and the Secretary’s Opposition thereto;
DRC’s Opposition to the Secretary’s Motion to Dismiss and its Notice of Additional Authority
and the Secretary’s Reply to DRC’s Opposition. All filings were considered.

36 FMSHRC Page 2621

Contestant’s Contest and Associated Filings
In its Statement in Opposition to the Secretary’s Motion to Dismiss its Notice of Contest
(“Contestant’s Opposition”), Contestant first mentions some history with a prior safeguard at this
mine,3 which background the Court considers to be immaterial as, at the end of the day, this
matter still comes down to the safeguard issued on January 21, 2014, to Dickenson-Russell.4
No citation has been issued in connection with this safeguard notice but the Contestant
still maintains that the Commission has jurisdiction over the matter as soon as such a notice is
issued, regardless of whether a citation has been issued. With no Commission level decision
addressing its claim, the Contestant points particularly to the decision issued by administrative
law judge William Steele in Affinity Coal Co. v. Secretary, Unpublished Order (Aug 29, 2013).
Essentially, and fairly characterizing its argument, the Contestant’s Opposition mirrors the points
made by Judge Steele in his decision, citing cases such as Drummond Co., Inc., 14 FMSHRC
661 (May 1992), involving review of a program policy letter (“PPL”). Referencing Drummond,
Contestant’s position is that since the Commission has, in other contexts, broadly interpreted its
jurisdiction, it may therefore do so whenever the Secretary’s actions adversely affect an operator.
Opposition at 5. Contestant also maintains that section 314(b) of the Mine Act, “which was
published under Title III of the Act, is an interim mandatory safety standard applicable to all
underground coal mines, and because a ‘mandatory health or safety standard’ is defined to
include interim mandatory health or safety standards under Title III, section 314(b) is a
3

It is questionable whether the history offered by the Contestant actually creates a
sympathetic picture. Apparently intended to show that MSHA erred by originally relying on an
earlier-issued safeguard, which applied to personnel carriers transporting six or more miners, the
personnel carrier cited in January 2014 carried less than six miners. The new safeguard was then
issued to cover personnel carriers transporting five or less miners. It is true that a new safeguard
had to be issued but, that said, it should not be lost that both safeguards addressed MSHA’s
perceived need for sanding devices on those personnel carriers and that both originated from a
perceived hazard of losing control on a slippery and wet track.
4

“The condition or practice on this citation should have read: The Co. #DM39
Brookeville track mounted personnel carrier, used at this mine to transport miners, was not
equipped with sanding devices. This personnel carrier was in the motor barn and available for
immediate use by the miners. This is a notice to provide safeguard(s) requiring that the
Brookeville Co. #DM39 personnel carrier and all other track mounted personnel carriers that
transport 5 men or less be equipped with properly installed and well maintained sanding devices.
This mine has a slope which runs from the motor barn on the surface to the mine portal, with a
sharp curve at the bottom. This slope is outside and exposed to rain, snow, ice and other
inclement weather. An accident has previously occurred on this slope. The track entry at this
mine has several dips and hills and was wet at the time of inspection. The foreman stated that
when this ride is used, miners carry sand in the front passenger compartment and reach out and
sand the track as needed. The hazard exist of loosing [sic] control of the personnel carrier due to
slick track conditions, and loss of braking ability, resulting in de-railing, colliding with other
personnel carriers and/or running over miners on foot.” Contestant’s Opposition at 2-3, quoting
from January 21, 2014, condition or practice identified in safeguard.

36 FMSHRC Page 2622

mandatory safety standard. 30 U.S.C. § 803(l).” Opposition at 6. Contestant then continues that,
“when an inspector . . . issues a notice of safeguard, the inspector is, in effect, issuing a citation
under section 104(a) for the violation of a mandatory safety standard.” Id. (italics added).
As a separate basis for its position, Dickenson-Russell contends that due process also
requires that a mine operator be able to immediately contest a notice of contest upon its issuance.
For this portion of its argument, Contestant points to Mathews v. Eldridge, 424 U.S. 319 (1976),
for support, noting that “three distinct factors are considered: [ ] the private interest that will be
affected by the official action; [ ] the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or substitute procedural safeguards;
and [ ], the Government's interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement would entail.”
Opposition at 7 (quoting Mathews v. Eldridge, 424 U.S. at 335).
Applying those factors, Contestant asserts that its affected interests are substantial: “[t]he
instant Safeguard will require three personnel carriers to be retro-fitted with sanding devices, at
considerable expense to the mine. [ ] These three personnel carriers are used on a daily basis. As
a result of the Safeguard, however, all three are currently out of service and cannot be used. This
unnecessarily and negatively impacts the mine’s operations and employees.” Opposition at 7-8,
citations to declaration omitted). Nor, it contends can it wait to receive a citation, because there
is no “guarantee of when a citation will be issued” and that route also exposes it to civil
penalties. Finally, Contestant contends that allowing operators to contest notices of safeguard
upon issuance will not unduly burden the Secretary. Opposition at 7-8.
As noted, a particular case cited by the Contestant as authority is Affinity Coal Co. v.
Secretary, Unpublished Order (Aug 29, 2013). That case does involve the same issue5 but, as the
parties well know, the decision of another administrative law judge has no precedential effect. Its
value is limited to the persuasiveness of the reasoning in the decision upon another judge who is
presented with a similar situation. The judge in Affinity was persuaded by the argument that a
mine need not wait for a citation to be issued, on the basis that section 105(d) allows an operator
to contest an order or a citation upon the view that “[a] notice of safeguard is just that – a
violation of a provision of the Mine Act.” This Court does not share that perspective because a
notice to provide a safeguard is plainly not a violation. Instead, it is analogous to the
promulgation of a safety and health standard, albeit it comes into existence through a different,
but Congressionally prescribed, procedure to address hazards with respect to the transportation
of men and materials.6
5

In Affinity, five safeguard notices had been issued following a fatality and the mine then
filed notices of contest. The Secretary took the same stance as here: the Commission’s
jurisdiction is limited under section 105(d) and as such it does not extend to notices of contest.
Instead, a mine must wait until a citation is issued for not complying with the safeguard notice.
6

Although the judge in Affinity also stated that “the Commission has jurisdiction to hear
all disputes arising out the Mine Act . . . and make a determination upon, any proceeding
instituted before the Commission,” the Court believes that jurisdiction must exist first and that
instituting a proceeding does not by itself confer jurisdiction.

36 FMSHRC Page 2623

In short, this Court believes that, so to speak, the other shoe must drop before litigation of
a safeguard can commence. Accordingly, this Court cannot adopt the rationale expressed in the
Affinity decision that “jurisdiction is conferred in the Commission because Affinity is specifically
alleged to have violated a mandatory health or safety standard.” Affinity at 6. This is because in
point of fact the Secretary has not made such an allegation at the point in time the safeguard
notice is created and issued. For this reason, the Contestant’s claim that a notice to provide
safeguard is in effect the equivalent as issuing a citation or order, does not mean that the two are
the same.
Although the judge in Affinity rested his conclusion on the theory that Section 105(d)
confers jurisdiction, he also rested his view on due process grounds. The example offered by the
judge was a mine operator having to wait twenty-two years before having the ability to challenge
the validity of an underlying safeguard notice. However, while that recounting is a dramatic
characterization of such an instance, it is misleading in a sense because there is nothing to
prevent a mine operator from simply refusing to comply with a safeguard notice. Once that
refusal happens and a citation then follows, the mine can then challenge the validity of the
safeguard, together with the citation and the appropriateness of the penalty proposed by the
government for that citation. Such a challenge can occur immediately after the citation is issued,
putting all issues on the table.
The Secretary’s Response
The Secretary’s central contention is that the Mine Act does not give the Commission
jurisdiction to review a safeguard notice until there has first been a subsequent citation or order
issued in connection with that notice. The basis for its position is simple and direct, noting that
the section of the Act addressing the Commission’s jurisdiction, section 105(d), pertains to
“MSHA’s issuance or modification of orders, (2) MSHA’s issuance or modification of citations
and proposed assessments of penalties; and (3) the reasonableness of the length of time that
MSHA sets for abatement.”7 Response at 4. Thus, the Secretary contends that as section 105(d)
7

The full text of section 105(d) provides: (d) If, within 30 days of receipt thereof, an
operator of a coal or other mine notifies the Secretary that he intends to contest the issuance or
modification of an order issued under section 104, or citation or a notification of proposed
assessment of a penalty issued under subsection (a) or (b) of this section, or the reasonableness
of the length of abatement time fixed in a citation or modification thereof issued under section
104, or any miner or representative of miners notifies the Secretary of an intention to contest the
issuance, modification, or termination of any order issued under section 104, or the
reasonableness of the length of time set for abatement by a citation or modification thereof
issued under section 104, the Secretary shall immediately advise the Commission of such
notification, and the Commission shall afford an opportunity for a hearing (in accordance with
section 554 of title 5, United States Code, but without regard to subsection (a)(3) of such
section), and thereafter shall issue an order, based on findings of fact, affirming, modifying, or
vacating the Secretary's citation, order, or proposed penalty, or directing other appropriate relief.
Such order shall become final 30 days after its issuance. The rules of procedure prescribed by the
(continued…)

36 FMSHRC Page 2624

makes no mention of a safeguard notice, nor the provision from which it is derived, section
314(b) of the Act, the Commission lacks jurisdiction.8 Unlike a reviewable citation under section
105(d), which stems from the Secretary’s allegation that a mine operator has violated the Act, or
any mandatory health or safety standard, rule, order, or regulation promulgated pursuant to the
Act, the safeguard notice is analogous to a mine-specific mandatory standard. Both, the
Secretary notes, establish required conduct, and both, when violated can be cited for failing to
comply with such conduct.9
Perhaps more importantly, at least from the Court’s perspective, as the Secretary notes,
the issuance of a safeguard notice does not assert that a mine operator has committed any
violation.10 Instead, a violation can only occur later in time, upon a mine operator’s subsequent
failure to comply with the safeguard notice. Naturally, this also means that there is no civil
penalty proposed either. That too only occurs upon a subsequent failure to comply with the
safeguard notice. It is true that, upon issuance of the notice to provide a safeguard, a standard is
created, but as with every other safety standard, no civil penalty occurs when the standard is
created; rather it is only when the standard, however it comes into being, is thereafter violated.
Accordingly, it is the Secretary’s contention that no Commission jurisdiction attaches until after
the safeguard notice comes into existence and then, following that, there is issued a citation or
order asserting that the safeguard was violated.11
In Pocahontas Coal Company, LLC v. Secretary of Labor, 2014 WL 2809893 (June 11,
2014) (“Pocahontas”), another administrative law judge addressed the same issue. As in the case
7

(…continued)
Commission shall provide affected miners or representatives of affected miners an opportunity to
participate as parties to hearings under this section. The Commission shall take whatever action
is necessary to expedite proceedings for hearing appeals of orders issued under section 104.
8

The Secretary has also taken note that the Contestant, DRC, did not cite to any specific
provision of the Mine Act as supplying jurisdiction to the Commission in DRC’s Notice of
Contest. Response at n.1.
9

Nor, the Secretary notes, is a safeguard analogous to an Order issued under section 104,
as the latter requires withdrawal from an area of a mine, but the former does not. Response at 5.
10

A reply was also filed by the Secretary. Much of the Secretary’s reply echoes the
points it already made but it emphasizes that without jurisdiction first being present to hear the
challenge the Commission cannot reach a due process claim. Jurisdiction, then, is a condition
precedent to addressing a due process claim.
11

If the Contestant’s action is a request for declaratory relief, which it appears to be, the
Secretary also notes that the Commission provides such “relief only ‘where jurisdiction
otherwise exists’ based on Section 105(d) or another one of the Mine Act’s delegations of
authority to the Commission. Response at 8 (citing Kaiser Coal, 10 FMSHRC 1165, 1170-71
(Sept. 1988); Drummond Company, Inc., 14 FMSHRC 661, 671-76 (May 1992)). Thus, the
Secretary argues that jurisdiction is a condition precedent to declaratory relief.

36 FMSHRC Page 2625

presently before this Court and in the Affinity Coal matter (supra), notices to provide safeguards
were issued to Pocahontas pertaining to the transportation of men or materials, and the mine filed
notices of contest for each notice. The Secretary, again as in this case, filed a motion to dismiss
on the grounds that the Commission lacks jurisdiction to hear such a contest until after a citation
or order is issued for a violation of the underlying safeguard notice. The judge in Pocahontas
noted that the Commission has addressed a safeguard challenge only in the context of when it
has been accompanied by a citation alleging a violation of that safeguard.12 Reduced to its
essential conclusion, the judge in Pocahontas concluded that the Commission’s jurisdiction is
limited under section 105(d) of the Mine Act to particular challenges, but that challenging a
safeguard notice itself, unaccompanied by citation or order alleging a violation of that safeguard
notice is not one of those bases for Commission jurisdiction. The judge in Pocahontas also
concluded that the ability for a mine to challenge a safeguard notice, once the triggering event of
a citation or order occurs, also answers the claim that due process demands review prior to the
allegation that the notice has been violated. In that regard, the judge noted that it “cannot create
jurisdiction where none exists . . . [and that] less formal mechanisms, such as a request for a
technical citation, . . . could seemingly be used to immediately contest the issue on an expedited
basis . . . [and also that] the operator [could] bring a facial challenge [to that safeguard notice] in
Federal District Court.” Id. at *4. Last, the judge in Pocahontas observed that “the government
interest in flexibly and quickly addressing hazards related to the transportation of men and
materials is an extremely compelling one.” Id.
This Court agrees with both conclusions by the judge in Pocahontas; section 105 review
of a challenge to a safeguard is limited to instances when a citation or order has been issued
alleging a violation of that safeguard notice; and due process is achieved through that challenge
mechanism.13
As this docket contains no citations or orders, but only the notice to provide safeguard
that was issued to the mine, the above captioned contest proceeding is DISMISSED.

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

12

The judge also noted that it is not bound by the opinion of another administrative law
judge and that she did not concur with the reasoning of the judge decision in Affiinity. On both
those points, this Court shares the views of the decision in Pocahontas.
13

It is also noted that the Court’s conclusions regarding reviewability and due process are
fully consonant with the Commission’s most recent observations on these subjects, as reflected
in Secretary of Labor (MSHA) v. Brody Mining, LLC, 36 FMSHRC ___, slip op., No. WEVA
2014-82-R (Aug. 28, 2014).

36 FMSHRC Page 2626

Distribution:
K. Brad Oakley
Jackson Kelly PLLC
175 East Main Street, Suite 500
Lexington, KY 40507
859-255-9500
859-281-6478 fax
R. Henry Moore
Jackson Kelly PLLC
Three Gateway Center, Suite 1500
401 Liberty Avenue
Pittsburgh, PA 15222
412-434-8055
412-434-8062 fax
Matthew N. Babington, Esq.
U.S. Department of Labor
Office of the Regional Solicitor
1100 Wilson Boulevard
22nd Floor West
Arlington, VA 22209-3939

36 FMSHRC Page 2627

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES 1331
PENNSYLVANIA AVENUE, NW SUITE 520N
WASHINGTON, DC 20004

September 5, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. VA 2012-356
A.C. No. 44-06791-282333A

v.
CARL MOORE, employed by
CALVARY COAL CORPORATION,
Respondent.

Mine: No. 1

ORDER TO SHOW CAUSE TO CARL MOORE
Before Judge Feldman:
This matter concerns section 104(d)(1) Order No. 8169789, issued to Calvary Coal
Corporation (“Calvary”) on May 4, 2010, for an alleged violation of the mandatory standard in
30 C.F.R. § 75.400 that is attributable to an unwarrantable failure.1 The cited violative condition
concerns loose coal, coal dust, and float coal dust that accumulated along the entire distance of
the #1 belt, measuring from a thin layer, up to five inches in depth. The order also cites
accumulations from nine inches to 30 inches in depth at the #1 tailpiece. The order further notes
that foreman Carl Moore stated that the accumulations had been present for two shifts, that they
were obvious to the most casual observer, and that Moore knew of the existence of the
accumulations.
The Mine Safety and Health Administration’s (“MSHA”) data retrieval system reflects
that MSHA proposed a civil penalty of $7,176.00 against Calvary for 104(d)(1) Order No.
8169789. Calvary did not contest the order.

1

Section 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.
30 C.F.R. § 75.400.

36 FMSHRC Page 2628

On May 16, 2012, the Secretary filed an assessment for civil penalty against Carl Moore,
seeking to impose a $3,300.00 civil penalty for personal liability under section 110(c) of the
Federal Mine Safety and Health Review Act (“Mine Act” or “the Act”), 30 U.S.C. § 820(c), for
the violative condition cited in Order No. 8169789. Section 110(c) provides that supervisory
mine personnel “who knowingly authorized, ordered, or carried out” a violation of a mandatory
safety standard may be subject to personal liability. Absent strict liability, knowledge by mine
supervisory personnel is always assumed for all violations that are attributable to an
unwarrantable failure. Although Moore’s acknowledgement that he knew about the cited
accumulations, which is imputed to Calvary, may provide an adequate basis for an unwarrantable
failure designation, his knowledge alone may not be adequate to impose personal liability under
section 110(c), absent aggravated circumstances.
An individual is subject to personal liability under section 110(c) if he is uniquely “in a
position to protect employee safety and health [and] fails to act on the basis of information”
regarding the existence of a violative condition. Kenny Richardson, 3 FMSHRC 8, 16 (Jan.
1981), aff’d on other grounds, 689 F.2d 632 (6th Cir. 1982), cert. denied, 461 U.S. 928 (1983).
The issue is whether Moore’s “failure to act” in the face of his awareness of the cited
accumulations constitutes the requisite “authoriz[ing], order[ing], or carr[ying] out” of the
subject section 75.400 violation as contemplated by the personal liability provisions of section
110(c) of the Act.
In order to determine whether the Secretary has an adequate basis for seeking your
personal liability in this case, it is necessary that you actively participate in these proceedings.
However, to date, you have been unresponsive to my office’s inquiries, in that you have not
provided an adequate method of reaching you by telephone, mail, or email. For example, the
telephone number of record, which was provided by Moore and furnished to the Solicitor, has
repeatedly indicated that its mailbox is full. Thus, my office has been unable to reach you, and
you have failed to contact my office.
Consequently, Carl Moore IS ORDERED TO SHOW CAUSE within 21 days of this
Order why he should not be held in default and ordered to pay the $3,300.00 civil penalty, as
proposed by the Secretary. In order to avoid default, Carl Moore must contact my law clerk,
Avery Peechatka, via telephone at 202-233-4010 or email at apeechatka@fmshrc.gov, and
demonstrate his continued desire to participate in this matter by providing a mailing address and
a telephone number or email address at which he can be successfully reached. IT IS FURTHER
ORDERED that Moore must make himself available for participation in a telephone conference
with the Judge and with J. Matthew McCraken, Esq., Counsel for the Secretary, which can be
scheduled through contact with Mr. Peechatka.

/s/ Jerold Feldman
Jerold Feldman
Administrative Law Judge

36 FMSHRC Page 2629

Distribution: (Regular and Certified Mail)
J. Matthew McCracken, Esq., U.S. Department of Labor, Office of the Solicitor, 1100 Wilson
Boulevard, 22nd Floor West, Arlington, VA 22209-2247
Carl Moore, Calvary Coal Corporation, 16463 KY Rt. 122, Hi Hat, KY 41636
Carl Moore, Calvary Coal Corporation, 268 East Main Street, Prestonsburg, KY 041216
/acp

36 FMSHRC Page 2630

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
th
721 19 STREET, SUITE 443
DENVER, CO 80202-2536
TELEPHONE: 303-844-5266 / FAX: 303-844-5268

September 10, 2014
AFFINITY COAL COMPANY, LLC,
Contestant,

CONTEST PROCEEDINGS
Docket No. WEVA 2013-700-R
Safeguard No. 3575542; 02/28/2013
Docket No. WEVA 2013-701-R
Safeguard No. 3575543; 02/28/2013

v.

Docket No. WEVA 2013-702-R
Safeguard No. 3575544; 02/28/2013
Docket No. WEVA 2013-703-R
Safeguard No. 3575545; 02/28/2013

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

Docket No. WEVA 2013-704-R
Safeguard No. 8155075; 03/04/2013
Mine: Affinity Mine
Mine ID: 46-08878

ORDER STAYING PROCEEDINGS
These cases are before me on Notices of Contest filed by Affinity Coal Company, LLC,
pursuant to Section 105(d) of the Federal Mine Safety and Health. These contests are directed
not at a particular citation or order but, rather, at five written notices to provide safeguard issued
by MSHA pursuant to Section 314(b) of the Act. For reasons that follow, these cases are
STAYED until the Commission rules on the issue of whether the Commission judges have
jurisdiction to undertake an independent review of notices to provide safeguard issued pursuant
to section 314(b) of the Mine Act.
On April 15, 2013 the Secretary filed motions to dismiss these five contests. The
Secretary, in each of the motions to dismiss, argued that, in the absence of a citation or order
issued for violation of a safeguard, the Commission lacks jurisdiction under the Mine Act to hear
contests of notices to provide safeguard. Subsequently, on April 25, 2013, Contestant filed a
statement in opposition to the motions, arguing that notices to provide safeguard should be
treated as section 104(a) citations and, as a result, section 105(d) of the Act confers jurisdiction
on the Commission to hear independent contests of notices to provide safeguard. Further,
Contestant argued that due process concerns demand that mine operators be able to contest
notices to provide safeguard at the time they are issued, and not have to wait until a citation or
order is issued for violation of the safeguard. On August 29, 2013 Judge William Steele denied
the Secretary’s motion and found that section 105(d) of the Act granted the Commission
jurisdiction to hear contests of notices to provide safeguard prior to the issuance of a citation or

36 FMSHRC Page 2631

order for an alleged violation of the safeguard. Affinity Coal Co., LLC, Unpublished Order
Denying Motion to Dismiss dated August 29, 2013, Docket No. WEVA 2013-700-R et al. (ALJ).
On June 11, 2014 this court dismissed a separate, but similar matter. Pocahontas Coal
Co., 36 FMSHRC __, slip op. (Docket Nos. WEVA 2014-642-R, WEVA 2014-646-R through
679-R) (June 11, 2014) (ALJ). In Pocahontas, the parties raised essentially identical arguments to
those raised in the instant proceeding. There I found that, while the Commission had
acknowledged a mine operator's right to contest the validity of a safeguard in the context of
contest to a citation issued pursuant to a violation of the underlying safeguard, it had not
addressed the question of whether it has jurisdiction to hear a contest of a notice to provide
safeguard in the context of a separate proceeding prior to the issuance of a citation or order for a
violation of the safeguard. Id. (citing Southern Ohio Coal Co., 14 FMSHRC 1 (Jan. 1992)). In
dismissing the cases I relied upon the absence of any legal authority to hear contests of notices to
provide safeguard within the context of a dedicated proceeding, the unique nature of safeguards
that prevents them from being considered a citation or order, other avenues which the contestant
could have utilized to properly challenge the notices to provide safeguard, and the current
protections in place which negate any due process concerns. Id. On July 16, 2014 the
Commission granted Pocahontas’ petition for discretionary review. Clearly the decision issued in
Affinity is directly opposite the decision in Pocahontas. Additionally, in the time since these
cases were reassigned at least one Commission judge has dismissed a similarly situated matter
for many of the same reasons cited in my June 11th order. Dickenson-Russell Coal Co., 36
FMSHRC __, slip op. (Docket No. VA 2014-163-R) (Sept. 3, 2014) (ALJ).
On August 14, 2014 these five cases were reassigned to this court.1 The Secretary has
represented that, as of August 28, 2014, no citations or orders have been issued for violations of
the safeguards that are contained in these cases. The reassignment of these cases presents a novel
issue, namely that an order finding jurisdiction is presently in place, however the currently
presiding judge believes that there is no jurisdiction and these cases should not be before the
Commission. Judge Steele’s determination that jurisdiction exists directly contradicts my finding
in the similarly situated Pocahontas case. While the instant proceeding involves Affinity Coal
Company, and my June 11th order related to Pocahontas Coal Company, the two entities are one
and the same, sharing the same mine identification number. While the court recognizes that
Judge’s Steele order remains in place, it disagrees with his ultimate finding and, in an effort to
avoid confusion by issuing a contradictory order, the court believes that the question of
jurisdiction should be stayed until the Commission issues an order in the Pocahontas case
presently before it.
ORDER
Consequently, these cases are STAYED until the Commission issues a decision in the
Pocahontas case, after which time, this matter will either be dismissed or set for hearing.
Further, should the Secretary believe it necessary, he may request that this matter be put before
the Commission on interlocutory review.

1

Judge Steele retired and his cases have been reassigned to other Commission judges.

36 FMSHRC Page 2632

The parties are ORDERED to notify the Court immediately should the status of these
cases change or the Pocahontas case is decided.

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

Distribution:
Benjamin D. Chaykin and Robert Wilson, U.S. Department of Labor, Office of the Regional
Solicitor, 1100 Wilson Blvd., 22nd Floor, West, Arlington, VA 22209-2247
Jason M. Nutzman, Dinsmore & Shohl, LLP, Huntington Square, 900 Lee Street, Suite 600,
Charleston, WV 25301
Robert H. Beatty, Jr., Dinsmore & Shohl, LLP, 215 Don Knotts Blvd., Suite 310, Morgantown,
WV 26501

36 FMSHRC Page 2633